Taking the party line on the South China Sea Arbitration

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I recently posted here on the extraordinary 500-page “Critical Study” of the Awards in the South China Sea Arbitration published by the Chinese Society of International Law (CSIL) in Oxford University Press’ Chinese Journal of International Law.

The piece drew a number of interesting comments, the most interesting from Professor Bing Ling of the University of Sydney:

This Critical Study is not some spontaneous work by individual academics, but clearly a government-orchestrated project produced in the name of a learned society. The Working Report of the Board of CSIL (2013-18) reports that the work of CSIL, including the Critical Study, was carried out “under the supervision and leadership of the Foreign Ministry” (https://mp.weixin.qq.com/s/Xv8Kij_bDuqMETULvUfMqg).

That CSIL Working Report makes for interesting reading in Google Translate. It opens with:

In the past five years, under the guidance of the socialist ideology with Chinese characteristics in the new era of Xi Jinping, the current council has united and led the members to work together under the leadership of the Ministry of Foreign Affairs to earnestly implement the spirit of the 18th and 19th National Party Congress and the Party Central Committee … [including through] adherence to the correct political direction …

In terms of the five years of work the first heading is “Serving the State’s Foreign Affairs and Foreign Affairs Bureau to Promote the International Influence of the Society” and achievement (A)(II) is listed as:

Actively respond to the “Southern Gulf [sic] arbitration case proposed by the Philippines”. From 2016 to 2018 , the Society made a multi-level, multi-channel and multi-perspective speech by organizing domestic and international seminars, writing reports, publishing series of articles, publishing special issues, receiving television interviews, and writing criticism reports. They refuted and exposed the Philippine arbitral tribunal for the South China Sea arbitration case to expand powers, ultra vires, and abuse of power. … Including: 1. Organization of domestic experts and scholars, organized the “Philippine South China Sea Arbitration” academic seminar. 2. Organize domestic experts and scholars to write a report on the “Arbitral Tribunal of the South China Sea Arbitration Court has no legal effect” report and publish it in both Chinese and English; 3. Organize domestic experts and scholars to write a “Critique of the South China Sea Arbitration Award” report in both Chinese and English publishing.  … (Emphasis added.)

A further important piece of context is the following passage:

… [W]e always adhere to the overall situation of serving the country’s diplomacy and foreign affairs. Diplomatic foreign affairs work is an important part of the overall work guilof the party and the country. The work of international law teaching research and associations is also an important component of foreign affairs. In the past five years, the Institute has guided the Chinese international law community to focus on the research direction of the focus of diplomatic work. It closely identifies the actual needs of diplomatic work when organizing various academic conferences to determine the theme of the conference, and effectively plays a role as a bridge between the theoretical and practical world of international law. Under the leadership of the Ministry of Foreign Affairs, the Society has always adhered to the mission of the National Foreign Affairs and Foreign Affairs Center, paid close attention to the evolution of the international situation, strengthened theoretical and empirical studies of international law in related fields, and scored a series of important achievements. In particular, in 2016, the Society mobilized the academic community to cooperate with the overall deployment of diplomacy to carry out the juridical struggle and actively responded to the “Philippine South China Sea Arbitration Case” in various ways, effectively refuting and exposing the unlawful practices of the temporary arbitration tribunal. (Emphasis added.)

Allowing for the vagaries of Google Translate, this five year Working Report raises a number of interesting questions including:

  • Given the close association of the CSIL and the Chinese Foreign Ministry – and the apparent integration of the CSIL into the diplomatic effort on this issue – should Foreign Ministry “leadership” of the Critical Study have been acknowledged in a first footnote?
  • Did the CSIL’s self-professed “mobiliz[ation of] the academic community” have any impact (directly or indirectly) on the peer review process for the Critical Study?
  • OUP lists the Chinese Journal of International Law as “An independent, peer-reviewed research journal edited primarily by scholars from mainland China, and published in association with the Chinese Society of International Law, Beijing, and Wuhan University Institute of International Law, Wuhan …” Should that description make some acknowledgement of the seemingly close links between the CSIL and the Foreign Ministry?

In addition, the editorial board includes a substantial number of distinguished scholars who are resident outside China. It would be interesting to know how many of them were involved in the editorial decision-making and peer review process which has resulted in what could potentially be seen as a 500 page government-commissioned or -vetted report being published in a scholarly journal.

If anyone would wish to correct auto-translated passages, please let me know.

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Prabhakar Singh says

May 28, 2018

Perhaps, the Chinese Journal of International Law conducts peer reviews within "socialist ideology with Chinese characteristics". This peer review should be teased out more clearly. This produces a general critique of peer review. While a typical European journal peer review expects you to engage (read cite) certain scholars, the Chinese journal IL expects you to toe a particular line. Academic publishing has to then choose between scholars and a foreign ministry's line, devil and the deep sea situation indeed. Perhaps the time has come for journals to make public succesful and failed peer review reports. I don't think western journals should pretend they don't toe certain statist lines. If a transnational elite class is the new state, these states dictate the content of academic publishing.

James Nolan J.D. says

May 28, 2018

I suggest that it is not advisable to rely on Google Translate for the translation of official governmental policy statements and commentaries thereon.

Zhihua ZHENG says

May 28, 2018

I can’t find anything wrong for Chinese international lawyers defense their own national interests so long as they stick to the logic and academic ethics. Whether or not the Chinese government supports itself is insignificant. What is much important is the legal argument itself. Self Righteousness is toxic and helps nothing.

zhang says

May 29, 2018

Chinese international lawyers argue for its national interests. It is the normal way elsewhere. Any comments are welcomed.

Marko Milanovic says

May 29, 2018

I have to say that I find the comments by Professors Zheng and Zhang completely perplexing. It is definitely NOT the normal way elsewhere for international law academics to be arguing for the national interests of their country. It is, for example, definitely NOT the business of international law professors in British law schools to espouse the views of the British government under the guise of scholarship. It is, in fact, British academic international lawyers who are often the most vocal critics of the conduct of the British government, e.g. with regard to the legality of the Iraq war.

To be clear, the alignment of the substantive views in the academia with those of the state is a very complicated subject, as ably examined most recently by Anthea Roberts in her book. There are various factors that can influence such alignment that either do or do not impinge upon academic integrity. There is also nothing wrong with an academic undertaking paid work for their government, as an advocate for their position - whether before an international tribunal or elsewhere - so long as it is clear that the individual concerned is acting in such capacity. But it is nonetheless crucial, especially in the legal sphere, to maintain a distinction between advocacy and independent scholarship.

Rosemary Oetojo says

May 29, 2018

I also find the comments by Professors Zheng and Zhang difficult to comprehend - within the context of critical, scholarly international law analysis. While it is not unusual for academics to be consulted by their respective states for an opinion within their sphere of expertise, it is somewhat disingenuous to publish those opinions as independent scholarship. This may be a harsh response, however the issues here are complex with far ranging international legal consequences requiring intense analysis and evaluation, that may not necessarily equate with a particular state's interests. Any report, if being presented in defence of a state's policy should be stated as such if academic integrity is to be maintained.