Tea Leaf Nation

China’s Legal Scholars Are Less Credible After South China Sea Ruling

Chinese academics either followed Beijing’s lead and rejected the tribunal — or kept silent.

Pedestrians pass a military propaganda poster on a street in Shanghai on July 12, 2016. 
Beijing braced on July 12 for an international tribunal's ruling on the South China Sea, where it has expansive territorial claims, with all eyes watching for the Asian giant's reaction on the ground or in the water. Beijing claims sovereignty over almost the whole of the South China Sea, on the basis of a segmented line that first appeared on Chinese maps in the 1940s, pitting it against several neighbours. / AFP / JOHANNES EISELE        (Photo credit should read JOHANNES EISELE/AFP/Getty Images)
Pedestrians pass a military propaganda poster on a street in Shanghai on July 12, 2016. Beijing braced on July 12 for an international tribunal's ruling on the South China Sea, where it has expansive territorial claims, with all eyes watching for the Asian giant's reaction on the ground or in the water. Beijing claims sovereignty over almost the whole of the South China Sea, on the basis of a segmented line that first appeared on Chinese maps in the 1940s, pitting it against several neighbours. / AFP / JOHANNES EISELE (Photo credit should read JOHANNES EISELE/AFP/Getty Images)

Prior to the July 12 ruling of an international tribunal in the Hague, which many observers correctly predicted would reject China’s sweeping territorial claims in the South China Sea, China launched a massive global public relations campaign to discredit the tribunal. It is not surprising that China has been able to mobilize its global state-run media to support its foreign policies. More remarkable, however, is how Chinese legal academics who specialize in the study of international law have rallied to Beijing’s cause.

State broadcaster China Central Television America recently reported that “300 Chinese legal experts” reached a “unanimous” opinion that “China should abstain from participating in the case, because the arbitration panel has no jurisdiction over the dispute [and] China has legitimate rights under international law to reject the arbitration.” State news agency Xinhua noted that the China Law Society, an organization which represents all academic lawyers in China, released a similarly unanimous and supportive statement of China’s legal position. Xinhua also recently touted an open letter endorsing China’s legal position signed by hundreds of young Chinese international law scholars studying overseas. And leading Chinese scholars have written essays defending the government’s position. Sienho Yee, a professor at Wuhan University and a former professor at the University of Colorado, told Reuters that “[o]bjectively the tribunal has no jurisdiction over the dispute,” while Cai Congyan, a scholar of international law at Xiamen University and a visiting scholar at Humboldt University in Germany, called the process of appointing arbitrators “obviously unjust.”

According to my own research, scholars within the Chinese legal establishment have indeed either expressed support for Beijing’s position or have kept silent. I have searched Chinese databases and the internet for articles or scholarship produced in China even indirectly critical of Beijing’s legal position in this arbitral dispute. But I have only found one Chinese-born and educated scholar of international law who has offered a dissenting opinion: Professor Bing Ling of the University of Sydney Law School in Australia. In an essay distributed widely in Chinese social media in December, Ling sharply criticized Bejing’s refusal to participate in the arbitration and its claims that it has no legal obligation to comply with the arbitral award. Ling does not advocate China’s compliance with the award, but he suggests that China might have been able to prevail on jurisdiction if it had participated in the proceedings. As far as I know, no other scholar or advocate who was born and educated in China has published support for Ling’s views. Moreover, as a chaired professor at an Australian university, Ling is not a part of the Chinese academic legal establishment.

While I do not believe that China can legally ignore an arbitral award issued under a treaty system that it freely agreed to, I recognize that legal scholars can have different opinions about China’s legal position. Both China and the Philippines agreed in UNCLOS Article 279 to give the Hague arbitral tribunal mandatory binding jurisdiction to resolve disputes about the interpretation of UNCLOS except for disputes concerning maritime delimitation and sovereignty. The tribunal accepted the Philippines’ argument that simply determining the status of land features — such as whether a Chinese-claimed island is really a rock or underwater reef — does not make this dispute about maritime delimitation or sovereignty. China vehemently disagrees and cites this disagreement as justification for ignoring the award. But as I have argued, when China acceded to UNCLOS in 1996, it also agreed to comply with whatever the arbitral tribunal decides falls within its jurisdiction. This means that China is now in violation of its UNCLOS legal obligations by refusing to comply with the arbitral award.

Scholars in the United States and Europe who have studied this case evince a diversity of opinion, although none that I could find have argued that China can legally ignore a jurisdictional award. This only makes the unanimity of Chinese legal opinion on this question more startling.

One might assume that Chinese academics are unwilling to dissent on an issue of importance to the government for fear of censorship, or even soft retribution in the competitive domestic academic job market. Yes, this pressure certainly drives some of the remarkable unanimity within the Chinese legal academy on this question.

But there is another reason for the unison within China. It is likely that most Chinese legal academics genuinely believe that the arbitral tribunal erred in asserting jurisdiction in this case. Chinese international law scholars are not immune to the siren calls of nationalism, and the Philippines’ arbitral claims have become an issue of patriotism within China. Given their preference for vindicating China’s interests in the region, scholars might persuade themselves that Beijing’s position is correct.

In the United States, by contrast, rallying to one’s own country on hotly contested issues of international law is far from commonplace. The 1986 case that pitted Nicaragua against the United States in the International Court of Justice (ICJ), the U.N.’s principal legal body, is a neatly analogous example. The U.S. government refused to comply with the ICJ’s judgment declaring U.S. military support for rebels in Nicaragua illegal. But the reaction of U.S. legal scholars then was very different from that of Chinese legal scholars today. Not only did a U.S. lawyer represent Nicaragua — the very same Paul Reichler who represented the Philippines in its case against China — but a leading U.S. law professor Michael Glennon served as a chief witness for Nicaragua. Other leading U.S. international law scholars publicly criticized the U.S. government’s legal position. For instance, Anthony D’Amato, a professor at Northwestern University Law School, published a scathing essay in the American Journal of International Law denouncing the United States for “relinquish[ing] its leadership role in promoting world peace through the rule of law.” Reading the academic literature of the period, it is striking how few U.S. legal scholars actually endorsed or supported the U.S. government’s legal position in that case. Indeed, it is hard to imagine a unanimous opinion of U.S. legal academics either for or against the U.S. government position.

This diversity of opinion in the U.S. legal academy is a strength, not a weakness. Scholars in the United States are not afraid to challenge the U.S. government’s foreign policy and international law arguments, even on a matter of national security. U.S. legal scholars repeatedly issue open letters criticizing U.S. government policy in the war on terrorism and have helped to file lawsuits on behalf of suspected terrorists. The willingness of U.S. legal scholars to take on their own government helps to build and maintain their credibility among scholars outside the United States. But as long as China practices soft censorship and its academic culture promotes nationalist conformity, it will be hard for Chinese legal academics to build and maintain credibility with scholars in other countries.

Nearly 40 years ago, an essay by Columbia University Law School Professor Oscar Schachter famously described international lawyers as a “professional community, though dispersed throughout the world and engaged in diverse occupations, constitut[ing] a kind of invisible college dedicated to a common intellectual enterprise.” Schachter’s “invisible college” has been more of an ideal than a reality, but it remains an influential description today of how international law professionals and academics can influence and shape state behavior. National and regional societies such as the American Society of International Law, the International Law Association, and the European Society of International Law count as their members leading international law scholars who often serve in governments or as part of international organizations. Such scholars therefore have a key role in negotiating and fleshing out the practical details of global treaties such as UNCLOS.

China is eager to bolster its standing in this “invisible college.” The Chinese Society of International Law, a China-based organization founded in 1980, edits the Chinese Journal of International Law, an English-language journal which describes itself as an “independent, peer-reviewed research journal.” Oxford University Press, perhaps the leading English-language academic publisher of international law materials, publishes it. Chinese legal scholars also travel the world to speak at international conferences and visit at leading foreign universities. China’s Xi’an Jiaotong University appointed one of the world’s leading international law scholars, James Crawford, as an honorary professor. China has aggressively pushed for its scholars to join leading international law institutions, both governmental and non-governmental.

This worthy effort is undercut by the remarkably and suspiciously uniform support of China’s legal position in the Philippines case. This points to the true cost of China’s efforts to mobilize its legal civil society in favor of its non-compliance with the UNCLOS tribunal award. Not only has it injured the reputation of Chinese universities, but it has also damaged the credibility of Chinese legal scholars. How persuasive will their scholarship be on any issue related to the South China Sea to scholars outside of China? This damage to the credibility for the Chinese legal academy is far from the most serious consequence of China’s rejection of the UNCLOS arbitral award — but it is not a trivial one either.

JOHANNES EISELE/AFP/Getty Images

Julian Ku is the Maurice A. Deane Distinguished Professor of Law at Hofstra University in New York.

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