Interview: Xue Li on the South China Sea
The littoral combat ship USS Fort Worth sails in the South China Sea near the Spratly Islands with the People’s Liberation Army Navy guided-missile frigate Yancheng following behind.

Interview: Xue Li on the South China Sea

 
 

On July 12, the arbitral tribunal in The Hague is expected to deliver its formal judgment on the South China Sea arbitration case brought by the Philippines. How will China react to the ruling? Will China establish an Air Defense Identification Zone in the South China Sea? How does China view the U.S. Freedom of Navigation Operations (FONOPS) in the South China Sea? The international community is deeply concerned with these questions. In collaboration with Consensus Net, The Diplomat had an exclusive interview in Beijing with Xue Li, head of the International Strategy Division at the Institute of World Economics and Politics, Chinese Academy of Social Sciences, to talk about these issues. A Chinese language version of the interview is available here from Consensus Net.

What exactly is China’s “nine-dash line” in the South China Sea supposed to mean?

Xue Li: Even Chinese scholars on the subject do not have a consensus, but there are generally four interpretations of what the line is, namely either as a demarcation of maritime borders, sovereignty over islands, historic rights, or historic waters.

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Those who interpret the line as maritime borders maintain that it should be understood as the extension of national borders on the sea, inside which lie internal waters. This would effectively mean the entire South China Sea belongs to China, which is unacceptable to the neighboring countries as well as countries navigating the South China Sea. This claim is also inconsistent with China’s previous official statements and a deviation from the principle of estoppel in international law. As a matter of fact, this view is endorsed by few Chinese scholars and is perhaps only held by a handful of powerful elements in the government.

Those who see the line as demarcation for claiming sovereignty over islands maintain that all islands within the line belong to China and the surrounding waters within 12 nautical miles of each island are China’s territorial waters, outside which lie China’s contiguous zone and exclusive economic zone. Under the Chinese Nationalist Party (Kuomintang), a map issued by the Division of Territorial Dispute in the Ministry of the Interior clearly indicates that it demarcates the “positions of the various islands in the South China Sea.”

Those who view the line as demarcation for historic rights also maintain that islands within the line belong to China and the surrounding waters within 12 nautical miles are China’s territorial waters, while China is entitled to its “historic rights” over the sea outside its territorial waters. There is, however, no clear definition as to what these historic rights are.

The idea that the nine-dash line demarcates historic waters was proposed by Taiwan, and is embodied in the Policy Guidelines for the South China Sea issued in 1993. Historic waters are similar to internal waters, but with a lower legal status. Chen Shui-bian scrapped the Policy Guidelines in 2003 when he came to power, but Taiwan did not issue any new statements regarding waters within the nine-dash line, so they may still be seen as historic waters.

The official position of Mainland China is that China has historic rights over the South China Sea. This is embodied both in the 1992 Law [of the PRC on the Territorial Sea and the Contiguous Zone] and in China’s diplomatic statements that it has undisputable sovereignty over the islands in the South China Sea and their surrounding waters.

My view is that the nine-dash line should be understood as demarcation for sovereignty over islands. When this line was first drawn by the Chinese government under the Kuomintang in 1947, China was not able to carry out surveys of all the islands to identify their attributes and demarcate the surrounding administrative zones. China instead drew a line between the islands and the neighboring landmass to indicate that all islands within the line are Chinese territory. This line is generally positioned in the midpoint between the outermost periphery of the islands and the landmass. No exact geographic positions were given, and maps issued in different periods have slight differences regarding the exact position of the nine-dash line.

Why is China carrying out land reclamation in the South China Sea?

This is because Vietnam, Malaysia, the Philippines, and Taiwan have all done the same and have even built airports. China found itself in a disadvantageous position when defending its sovereignty over and marine interests in the Spratly Islands. As China becomes stronger, it needs to establish a presence in the Spratly Islands commensurate with the projection of its power. This is why China began land reclamation and construction of tracks for aircrafts toward the end of 2013. The main difference here is that China’s land reclamation is larger in scale; the difference is quantitative, not qualitative.

Among the Spratly Islands, 50 are occupied, 29 by Vietnam, five by Malaysia, eight by the Philippines, seven by Mainland China, and one by Taiwan.

The South China Sea has four clusters of islands, while the ongoing disputes mainly concern the Spratly Islands, with countries asserting incompatible claims. Spratly Island is under Vietnamese control. It has an airport, a migrant population and a military presence. Vietnam’s headquarters for the Spratly Islands are also located here. The Philippines did the same on Thitu Island. Malaysia carried out large-scale reclamation on Swallow Reef, and has built an airport, a harbor, and even hotels in order to transform it into an international hotspot for diving. It is quite unfair for media in the West to only accuse China of its wrongdoing.

What needs to be pointed out is that after the ten ASEAN member states and China signed the Declaration on the Conduct of Parties in the South China Sea in 2002, every single ASEAN claimant country has been changing the status quo. They either began new oil and gas drilling, or built new structures, or pushed for economic migration, or resumed land reclamation, or a combination of these. China’s actions have been restrained in comparison. It did not carry out any oil and gas drilling or land reclamation. But this should not continue forever. It would be both unfair to China and counterproductive to the ongoing disputes over the South China Sea. China’s actions now are “compensatory.” The only difference is in the capacity for land reclamation, so China’s projects are larger in scale compared to the other claimant countries.

Is China willing to compromise or make concessions on the South China Sea issue?

China maintains no disputes related to sovereignty or marine interests exist in the Paracel Islands, but it recognizes the existence of disputes over the Spratly Islands. China also maintains that these should be resolved through negotiations, and is against the internationalization of the conflict and the intervention of outside parties. Imagine the U.S. were in a maritime dispute with its neighbors, if China appeared on the scene and said it would like to be the arbitrator, how would the U.S. react?

Even though my position on the South China Sea has been deemed “balanced” and “soft” by fellow scholars in China and overseas, I think the U.S. is overdoing it this time. It is also unfair on the part of Western media to say it is all China’s fault. China has no doubt made mistakes, but it also has some legitimate claims, and we need to make judgments based on professional knowledge. China never said it will not make concessions, but has been pushing a “double-track” strategy, maintaining that issues of sovereignty over the islands as well as maritime demarcation should be negotiated by the parties concerned, while the peace and stability of the South China Sea should be maintained by both ASEAN and China. Outside parties should not be involved in the negotiations of sovereignty, nor intervene in the disputes. The internationalization of the conflict has only made something quite complicated to begin with– involving five or six parties — even more baffling. Why did the U.S. drag in Japan and India? How are we going to negotiate with all these parties involved? The U.S. has also been sending warships to waters within 12 nautical miles of islands under China’s control. This is unacceptable. How would the U.S. react if China did the same and sent its warships into U.S. territorial waters?

I used to be critical of China’s policy on the South China Sea, and believe China needs to reframe its strategy. But I think the U.S. has been overreacting starting from October last year and is only making the situation worse.

China is not unwilling to negotiate, but given the wide range of issues in the South China Sea, negotiations take time. This might give the international community the impression that China is procrastinating, but the problem is China itself still does not understand what it wants in the South China Sea and what exactly its interests are, and is not in a position to rush through negotiations. What China is faced with in the South China Sea are primarily political and strategic challenges; economic and legal considerations come later. China needs to deliberate comprehensively when dealing with the South China Sea. For instance, is the South China Sea more important than Taiwan? China should draw the ASEAN member states to its side or push them to the U.S.? Should the priority be the maximization of interests in the South China Sea, i.e. to grab as many interests as possible, or does the issue need to be incorporated into China’s global interests and objectives?

China has completed border negotiations with 12 out of its 14 neighbors; all of these occurred when China and its neighbors enjoyed good relations. During the negotiations, China made concessions and gave considerations to the other side. My impression is that China’s diplomacy is reciprocal. If you treat me well and show considerations to my concerns, I will make things easy for you and show you considerations as well. But if you want to do it the hard way, you won’t get anything back. The U.S. has been trying to push China to a concession by increasing the costs China has to bear, but I don’t think coercion will work. The harder the U.S. pushes China, the less willing China will be to give concessions.

Disputes over the South China Sea will continue and may take years to resolve. Parties concerned will have to concede eventually. The arbitration result may bring ASEAN and China together, or it may create further tensions. But if the U.S. continues its overbearing stance and pushes China further, it will only result in a more aggressive China.

China and the ASEAN claimant countries have different emphasis in their approach towards the South China Sea. China attaches importance to cooperation while the claimant countries are focusing more on differences. China sees the disputes over the South China Sea as part of its relations with the concerned ASEAN member states, and believes the focus should not be on the conflict itself, but the potential cooperation between China and ASEAN that can boost mutual interests and bring “a bigger pie” for all parties. China wishes to gradually move towards a solution while exploring those possibilities. ASEAN on the other hand put more emphasis on monitoring the differences or in some case bringing an immediate resolution to the dispute; some claimant countries have even deliberately slowed down their cooperation with China.

Is China concerned that tensions in the South China Sea may affect its relations with ASEAN and its maritime silk road?

Tensions in the South China Sea will no doubt affect China’s relations with ASEAN, since conflicts in the South China Sea pose the most important security challenge for the ASEAN member states. It is inevitable that they are not in a position to establish relations of mutual interests with China as long as disputes in the South China Sea continue. The lack of enthusiasm of some claimant countries toward China’s “One Belt, One Road” is the result of their concerns.

Both routes of China’s 21st Century Maritime Silk Road need to go through the South China Sea. China obviously does not want disputes over the South China Sea to affect the construction of its Maritime Silk Road.

China was a superpower in the region for 2000 years, but as a latecomer in the world of nation states, it is still learning how to behave like a modern superpower. China lacks experience in dealing with its medium and small neighbors, something it needs to work on. China can be intimidating to its neighbors with its huge size, and its rapid development only generates more anxiety. China’s major challenge is to dispel other countries’ fear about itself and prevent them from relying on China economically but turning to the U.S. for security.

If China focuses only on pursuing its own interests and disregards other countries’ concerns, this will be no different from the behavior of a small state, and it will also give room for the U.S. to intervene. China’s proposals need to strike a balance between its own interests and other countries’ concerns. This is difficult but it has to be done. I believe China’s approach to conflicts have been satisfactory in the past, notably after the economic reform began in 1978, otherwise it would not have completed border negotiations with 12 of its neighbors. But China still needs to improve in terms of streamlining possible areas of cooperation amidst the conflicts in the South China Sea.

Are neighboring countries justified in raising doubts about China’s intentions?

Such fear is rational in some aspects but can be an overreaction as well. China never declared the nine-dash line to be its maritime border or that all islands, waters, and subsoil within the line belong to China. China maintains that these disputes are to be resolved through negotiations. Why does China find itself at odds with ASEAN, notably the claimant countries? Why do so many ASEAN countries turn to the U.S. for security? Why is there so little articulated international support for China’s position on the South China Sea? We need to reflect on these questions. To criticize and blame it on others is much easier than self-reflection, but this is extremely important for China as a growing superpower.

Quite a number of pundits, including some well-known experts on international issues, are now saying time is on China’s side when it comes to the South China Sea. But is it really so? I have my doubts. If China becomes stronger and its GDP grows to twice that of the U.S., does it mean we can dispense with negotiations and recapture all the occupied islands in the South China Sea with force? How will that be different from the hegemony China has been criticizing? What will be the consequences of such action? ASEAN may collectively turn to the U.S. to oppose China. China’s silk road ambition in ASEAN member states will be stalled if not miscarried. Is this something China wants? China needs to react to the provocation of certain claimant countries, such as the arbitration brought by the Philippine, and encourage the concerned parties to come back to the negotiation table.

I have often told foreign observers that China’s behavior has been quite restrained compared to other emerging superpowers in history. China did not carry out oil and gas drilling in the Spratly Islands, nor did it occupy more islands with force. Land reclamation has been limited to the islands already under China’s control. China has not fought any wars during the 30 years of its rise. Were any of the emerging superpowers in history able to do the same — U.S., let alone Germany and Japan?

China has plenty of options in the South China Sea. It can move to an island not under its control and carry out land reclamation. China is not doing so because it is exerting self-restraint. Land reclamation on islands under a country’s control is something all claimant countries have done before, so what is wrong when China does the same? Simply because China’s projects are larger in scale, the claimant countries are using it as a leverage to gain more advantage from China.

But China also needs to reflect on its own action. Are there any inadequacies in its policy on the South China Sea and how can these be improved? China can only deal with the conflict when it is able to be both assertive and self-critical.

Will China establish an Air Defense Identification Zone in the South China Sea? If so, what is the objective?

The purpose of establishing an Air Defense Identification Zone is of course to increase a country’s security. Whether China will declare an Air Defense Identification Zone depends on whether it feels its national security is being threatened, which given the circumstances largely depends on U.S. actions in the South China Sea. If the U.S. continues to bully China the way it did in October last year, China will not only establish an Air Defense Identification Zone, but may also begin land reclamation on Scarborough Shoal. This is probably what is meant when Ouyang Yujing, director-general of the Department of Boundary and Ocean Affairs at the Ministry of Foreign Affairs, said, “The more the pressure, the greater the reaction.” The U.S. is not a claimant country, but it has been fully involved in the dispute, making the South China Sea a key element in the strategic and political tussling between China and the U.S. Some of the U.S. actions are highly controversial, including the extremely provocative actions of its military aircrafts around Scarborough Shoal.

Whether China will establish an Air Defense Identification Zone is a matter of China’s sovereignty. This is the first point.

The second point is that the U.S. was the first country to establish an Air Defense Identification Zone, but it asked no one’s permission when doing so. The international community does not yet have a universal standard for Air Defense Identification Zones, and we cannot simply accept the U.S. approach as the international standard. China’s protocol for its Air Defense Identification Zone in the East China Sea is the same as Canada. The difference between the American and Canadian approach is that while the U.S. requires reporting for aircraft approaching its territory, Canada requires the same for aircraft approaching and departing from Canada. Why should China only follow the U.S. example? What is wrong with the Canadian approach? This says much about the overbearing stance of the United States.

How do you think China will react to the ruling in the South China Sea arbitration case brought by the Philippines?

First of all, China will not accept nor participate in the arbitration. Although the tribunal has taken notice of the documents stating China’s position, it has not accepted China’s stance toward the issue of jurisdiction over the case. A team working on the South China Sea at the Taiwanese Society of International Law submitted an amicus opinion paper regarding the legal status of Taiping Island to the Permanent Court of Arbitration in The Hague in March. In June, the Asia-Pacific Institute of International Law, an independent, non-profit legal organization based in Hong Kong also submitted an amicus briefing to the same court. The tribunal will take some time to deliberate over these documents. This might be an attempt on the part of the tribunal to present itself as impartial, but such actions have their limits. After all, whether to consider the amicus paper or how much of it should be taken into account is entirely at the discretion of the tribunal. Generally speaking, the tribunal will try to present its decision as independent, while coordinating with U.S. interests.

The overall result of the arbitration will be positive for the Philippines; after all, the U.S. has significant influence over the case. The selection of members for the tribunal is also imbalanced in its geographic distribution (although this is not rare in international judicial and arbitration proceedings). Four members are from Europe, while one is from Africa. This may also affect the final decision.

China’s plan was to wait till the incumbent, pro-U.S. Aquino left office and was replaced by Duterte before it started negotiations with the Philippines on the arbitration case.

How China will react to the arbitration may also depend on the U.S. reaction. The U.S. has made this arbitration part of its “pivot” to the Asia-Pacific, and how much pressure it exerts on the Philippines will influence the attitude of [new President] Duterte. But China’s reaction for the most part depends on how it interacts with the Philippines. If the Philippines insists on enforcing the decision of the tribunal, China will not concede. But if the Philippines uses this as a starting point to communicate and negotiate with China on how to resolve the disputes, it will be acceptable and desirable to China. In this case, the arbitration may serve as an opportunity for China and the Philippines to end their hostility.

The U.S. role in this conflict has been counterproductive with its double standards and hypocrisy. For instance, the U.S. refused to participate in the International Criminal Court, claiming it needs to negotiate bilateral treaties with the various countries independently. How did President Reagan react when the U.S. was sued by Nicaragua in 1984? He issued a statement claiming that all such cases in Central America shall be immune from the compulsory jurisdiction of the International Court of Justice within two years and insisted the ICJ has no jurisdiction in this case. When this was rejected by the ICJ, the U.S. withdrew from the ICJ in protest. Moreover, the U.S. is not even a signatory of the United Nations Convention on the Law of the Sea, but its media depicted China as the offender of the international law. Isn’t that applying double standards? Shouldn’t the U.S. at least ratify the Convention first before it starts pointing fingers?

China has been treading a cautious line toward international justice and arbitration. One example is that China submitted a statement of exclusivity, excluding matters such as maritime demarcation and military activity outside the realm of international judicial and arbitration proceedings.

One detail worth pointing out is that the Philippines has brought this case to arbitration instead of resorting to judicial proceedings. These two have different legal standings. Recently a well-known expert on international law in Europe told me that the Convention has a specific article stipulating that any party can unilaterally enter into arbitral proceedings, which is not common practice in international law. I have also learnt from other scholars of international law that the International Court of Justice, the International Tribunal for the Law of the Sea, as well as the temporary and special courts of arbitration are the four existing means to solve international maritime disputes, which allows the concerned parties to establish a temporary arbitral tribunal and start arbitral proceedings compulsively. This was originally intended as a complementary option, but in reality it is being used by most countries as the main resort, an obvious deviation from its original intention. Most maritime disputes are resolved by direct negotiations. Few have resorted to international law. This is simply a fact.

To go back to your question. Once the decision is delivered on the arbitration case, China will sanction and punish the Philippines for its provocation. This is not the issue. How severe China’s response will be depends on how it interacts with the Philippines, and on some level this also depends on whether the U.S. really wants to help or it wants to continue to be counterproductive.

The U.S. wants international waters to be as extensive as possible. Ideally everything beyond 12 nautical miles should be international waters and can be navigated by U.S. warships at will. Even when U.S. warships enter waters within 12 nautical miles, it can do so after giving a simple notice without the need to ask for permission. China’s law requires ships entering its territorial waters within 12 nautical miles to request approval first. The U.S. follows this protocol when navigating near China’s coast, but behaves differently in the South China Sea.

How do you view the actions of U.S. naval vessels in the South China Sea?

The so-called Freedom of Navigation Operations (FONOPS) exercised by U.S. warships are a bit like wielding a sword at China’s front door. These ships have entered Chinese territorial waters within 12 nautical miles. China’s law requires ships entering its territorial waters to request approval first. The U.S. follows the protocol near China’s coast, but deliberately refuses to do so around Fiery Cross Reef in the Spratly Islands and Triton Island in the Paracel Islands. This blatant exercise of its so-called freedom of navigation is clearly provocation intended to humiliate China. China’s response so far has been extremely restrained.

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