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Analyses and Commentaries

When Good Lawyers Write Bad History: Unreliable Evidence and the South China Sea Territorial Dispute

Author: Bill Hayton

Ocean Development & International Law, Volume 48, 2017 – Issue 1: 17-34

The following are the excerpts of the paper:

Abstract

The recent award by an arbitral tribunal in a case brought by the Philippines against China gives lawyers reason to reexamine the historical evidence put forward by claimants in the South China Sea disputes. While the Tribunal was barred from considering territorial or boundary questions, it did cast doubt on the historical narrative rule that China has asserted in support of its claims. Fresh evidence from other sources also suggests that discussions of these matters need to move beyond arguments put forward in a small number of papers published more than thirty years ago. A close examination of the references used in those papers shows that they relied upon highly partisan Chinese sources. Recent historical research has produced new facts about the development of the competing territorial claims in the South China Sea, but international legal discourse has yet to take these findings into account. This article examines some of the key works in the field and calls for them to be reassessed and for future discussion of the disputes to be based upon verifiable and contextualized evidence rather than on nationalist assertions.

[…]

Researchers continue to make new discoveries about the history of the South China Sea and interactions between Southeast Asia and China. Much of what has been asserted as support by claimants to sovereignty over the islands is turning out to be at odds with the evidence. In summary, at present, historians and archaeologists can find no evidence of any official Chinese act of administration in the Paracel Islands before June 1909 and none in the Spratlys before the Republic of China Navy visited Itu Aba on December 12, 1946.

Conclusion

There is more research to be done into the history of the islands of the South China Sea in the first half of the twentieth century. However, the evidence that is available negates much of what has been published in the English-language accounts common within the disciplines of international law and international relations. There is more to be discovered. The Republic of China archives in Taiwan are largely untapped, as are contemporaneous Chinese and international newspaper accounts. Any work on the twentieth-century history of the South China Sea that relies on the evidence put forward in the works under review needs to be reevaluated to determine whether the arguments stand in the light of the new information becoming available. Cheng, Chiu and Park, Heinzig, and Samuels were specialists in international law, political science, and geography, respectively—not Asian maritime historians. They did not conduct independent investigations of archive sources but relied on texts printed much later in highly partisan sources, almost exclusively Chinese, to write their histories of the South China Sea. It is also worth noting that Cheng and Chiu were Chinese born. Cheng graduated with an LLB from Peking University and Chiu from National Taiwan University. It is reasonable to assume they were more familiar with Chinese documents and the Chinese point of view. Both Samuels and Heinzig were scholars of China. In 1933, 1956, 1974, and again today, histories of the islands have been written and rewritten. During each diplomatic or military crisis, advocates of the Chinese position have published new versions of history that recycle earlier mistakes and sometimes added more. By the time these accounts leapt the language barrier into English in the mid 1970s their shaky foundations appeared solid to those exploring the history for the first time. They were printed in Western academic journals and “became fact.” But a review of the sources of the “facts” reveals their inherent weakness. As a result, forty years of discussion and debate on the South China Sea territorial disputes have been skewed in favor of a Chinese narrative that has little basis in fact. This has had implications well beyond academia, right to the highest levels of government decision making. It is time for a new generation of legal experts to reexamine the evidence and reach fresh conclusions.

Read the full article at: BillHayton_GoodLawyers.pdf

About the author: Bill Hayton is an Associate Fellow at Chatham House, London, United Kingdom.

Related articles:

Analyses and Commentaries on Sovereignty over Paracel and Spratly Archipelagoes: https://seasresearch.wordpress.com/category/sovereignty-over-paracel-and-spratly-archipelagoes/analyses-and-commentaries/

Historical/Official Documents on Sovereignty over Paracel and Spratly Archipelagoes: https://seasresearch.wordpress.com/category/sovereignty-over-paracel-and-spratly-archipelagoes/historicalofficial-documents/

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