An international Commission of Inquiry for the South China Sea? Defining the law of sovereignty to determine the chance for peace

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Author: Ryan Mitchell
Date: May 2016
From: Vanderbilt Journal of Transnational Law(Vol. 49, Issue 3)
Publisher: Vanderbilt University, School of Law
Document Type: Article
Length: 20,683 words
Lexile Measure: 2090L

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A. A Modern Innovation for a Multipolar World

Regarding international law's legitimacy and enforcement dilemmas, Myres McDougal wrote that "[u]nless there is a basic acceptance of the system of public order no community exists; where no community of loyalty, belief, and faith exists, no rational process of decision can occur, since recommendations will proceed on irreconcilable assumptions." (153) That, as has been described in this Article, is precisely the underlying problem with regard to the Philippines v. China arbitration as well as the South China Sea dispute more generally. In addition to identifying the problem at this general level, McDougal also elaborated in his work a key metric for evaluating its manifestation in specific instances: the question of whether states have competing or irreconcilable hierarchies of values. (154)

As suggested above in Part III, China and the Philippines are advocating very different views regarding such basic international legal principles as nemo dat and "the land dominates the sea." While interpreting the same body of legal rules, the two sides reach different outcomes precisely due to a disagreement as to the hierarchy of values underlying the rules being interpreted. In China's case, to reiterate, the apparent highest value is the positivistic assumption that the legitimacy of legal rules is in the final instance always determined by state consent. (155) On the Philippine-U.S. side lies the alternative view that the highest value of international law is a prioristic rulemaking and the establishment of shared communal norms. (156)

A resolution to the current dispute would be much easier, at least as a legal matter, if one side or the other was "wrong." However, this is not the case, for "[t]here [is] no well-developed and authoritative hierarchy of values in international law." (157) As a result, even more so than is already the case within domestic jurisdictions, international legal decisions can reach markedly different conclusions depending on decision makers' valuation of different factors, such as the rights of sovereign states or the universal rights of individuals. (158)

To accommodate the impossibility of resolving by fiat fundamental interstate differences over hierarchies of value, McDougal and other representatives of the New Haven School of international legal theory advocated "a public order which is designed to promote the greatest production and widest sharing of all values and which in its power processes, in particular, is oriented toward a minimum of coercion and a maximum of persuasion." (159) The resulting order, then, would have to be one that adopts as a basic principle the need for maximally inclusive rules and institutional mechanisms aimed at diminishing what Jacques Ranciere has termed dissensus: the fundamental clash between incompatible collective worldviews based on different epistemologies of value. (160)

The chief need, then, is for a mechanism that enables states that wish to resolve their conflicts, but that bring to the table markedly different Weltanschauungen, to gradually work towards beneficial solutions, mutual understanding, and accommodation. As will be argued in this Part, the Commission...

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Gale Document Number: GALE|A459722279