ABSTRACT OF PUBLISHED ARTICLE WRITTEN BY PROFESSOR WENDY DUONG ON THE SPRATLYS TERRITORIAL DISPUTE

 Following the Path of Oil: The Law of the Sea or Realpolitik – What Good Does Law do in the South China Sea Territorial Conflicts?

Wendy Nicole Duong

Independent Scholar

Fordham International Law Journal, Winter 2006
U Denver Legal Studies Research Paper No. 07-19

Abstract:     Who owns an island other than the people who were born raised, and have lived there? This layperson's expression of territorial sovereignty also has support in customary international law. However, the legal and factual issues involved in the territorial disputes over the islands of the South China Sea are not that simple. This Article points out that today's leading authority on international maritime law, the U.N. Convention on the Law of the Sea, offers little help to the resolution of these disputes. The competing sovereignties – China and the ASEAN nations – may turn to Joint Development Agreements as a practical treaty solution for the sharing of natural resources.

But such a treaty solution is likewise imperfect. In such a solution, law will matter little and realpolitik will take over. Realpolitik suggests that policymakers will act in accordance with political realism, rather than theories, international laws, morals, or ideals. They will seek to increase their power base, and will use whatever economic or military methods necessary to accomplish these goals of pragmatism. This Article concludes that in a treaty solution motivated by realpolitik, the ASEAN nations should immediately join forces to counter-balance the enormous powerbase of China.

This article also cautions that in a multilateral treaty negotiation, three possibilities may doom the fate of the weaker nation(s). First, the more powerful state will likely team up with the private sector to safeguard their mutual interests. Second, the private sector will end up suggesting, fashioning, implementing and controlling the framework for joint development. Third, the weaker nation will be left with no choice but to participate in the lopsided joint negotiation and take its small piece of the pie, considering the worse alternative: defeat in a military showdown, or facing continuing pressure from the more powerful state. These sad possibilities confirm once more the highly theoretical nature of soft public international law and its heavy dependence on the realpolitik of international relations. Unless and until the power dynamics of international relations can be restructured or shifted based on a new model of globalization – one that operates strictly on the market forces of supply and demand, a truly meaningful new international economic order for the 21st century remains a vision, but not a reality.

This Article uses the legal issues in the South China Sea territorial disputes as the contextual springboard for examining this gloomy picture. Along that vein, this Article confirms my theory (already expounded in my previously academic writings published by the University of Pennsylvania) that international petroleum transactions in the developing economies can be a secretive partnership between the new monarchs of our world and their corporate rainmaker counterparts, to the exclusion of poverty-stricken Third World inhabitants. 
Posted on SSRN
Published by the Fordham International Law Journal Winter 2006