Do Scholar’s Arguments Matter in the South China Sea?

By Aristyo Darmawan

For centuries, the South China Sea has remained one of the biggest challenges for most Asian countries. The complex nature of the dispute requires efforts from all related countries to contribute in order to maintain peace and security in the region. Diplomats, military leaders, and government decision-makers have their own roles and contribution to securing a peaceful region. Legal scholars, however, also have a strategic yet important role in contributing to the peaceful region.

Currently, there is a lot of academic discourse on international law and geopolitics in the South China Sea, published by Western and Asian scholars in many academic journals and books. Can ideas and opinions from scholars really influence the discourse on the South China Sea?

In May 2018 the Chinese Society of International law published an extraordinary 500 page “Critical Study” of South China Sea Awards in the Chinese Journal of International Law, Oxford University Press. The Critical Study examines the Awards on jurisdiction and the merits in the South China Sea Arbitration between the Philippines and China from the Chinese interest perspective.

The critical studies were jointly created by a group that consists of 70 Chinese scholars under the auspices of the Chinese Society of International Law. Even though most of the arguments in the critical studies are not new and tend to reiterate the Chinese government position regarding the dispute, this Chinese scholar effort shows a positive contribution to the dynamic scholarly debate on these sensitive issues.

Anthea Roberts in her latest book “Is International Law International?” points out that currently, the Chinese Government gives a huge number of research funding to Chinese scholars to develop research and publications on the law of the sea. These funds are expected to increase the number of articles submitted to major English language journals. We would expect that the articles will mostly support the current Chinese government position.

Observing how China is taking scholars' arguments on the dispute seriously, there are at least three positions on how scholarly arguments on the dispute might be significant.

First scholars and academics tend to be less rigid, therefore the ongoing discussion will be more fluid and dynamic. In a more formal diplomatic discussion however, sometimes country positions are stricter. 

Second, the discourse among academics will be more objective and less political in terms of discussing the legal substance. However, it might not be the case for China. Academics in China presumably have less freedom and many Chinese scholars form arguments that support the government policy. In most of the other parties to the dispute, academic freedom is very much important.

Third, with the involvement of academics in the negotiation and second track process, articles published in journals, books, or even an Op-Ed article will give a broader knowledge to the public.

However, the main weakness of scholar’s works is that they can't make binding decisions on formal policy in regards to the issues.  There are two main ways that scholars can maximize their role in settling the South China Sea dispute.

The first is to advise the government and policymakers about the substantial legal discourse of the conflict before the government’s negotiation makes any policy conclusions. Second, scholars should disseminate the Award of the Permanent Court of Arbitration decision so that the public could understand it broadly.

 There is nothing wrong with academics giving arguments that advance government policy. In more practical contributions, for example in the United States, it is very common that academic lawyers serve in government posts in high-ranking positions.

Considering the possible significant contribution from the academic communities in regards to the South China Sea dispute, there should be more effort from legal scholars in helping to find the best solution for the conflict in order to manage peace and security in the region. Through more scholarly publications in international scholarly journals, policy recommendations, and academic seminars, legal scholars could establish second track diplomacy that could promote and manage the conflict more peacefully.

Aristyo is a lecturer and senior researcher at the Center for Sustainable Ocean Policy at the Faculty of Law University of Indonesia where his research focuses on maritime security in the Asia Pacific. He earned his  Masters in International Law from the Fletcher School of Law and Diplomacy at Tufts University.

Cover photo is by the U.S. Pacific Fleet and is licensed under CC BY-NC 2.0