Chinese Experts on the Situation of the South China Sea

Experts Lists

Wu Shicun, Chairman of Huayang Research Center for Maritime Cooperation and Ocean Governance, director of academic committee of China's National Institute for South China Sea Studies

Hu Bo, Director of SCSPI, research professor & director of the Center for Maritime Strategy Studies, Peking University

Yan Yan, Vice director of SCSPI, director of the Research Center of Oceans Law and Policy in the National Institute for the South China Sea Studies (NISCSS) 

Lei Xiaolu, Vice director of SCSPI, professor of China Institute of Boundary and Ocean Studies (CIBOS), Wuhan University

Zheng Zhihua, Associate professor and Head of East Asia Marine Policy Project, Center for Japanese Studies, Shanghai Jiao Tong University

Ding Duo, Vice director of the Research Center of Oceans Law and Policy in the National Institute for the South China Sea Studies (NISCSS)

On November 3, 2024, the South China Sea Strategic Situation Probing Initiative (SCSPI) organized Chinese experts in related fields of South China Sea research to discuss the current situation, major influencing factors, and maritime frictions between China and the Philippines in the South China Sea. The main views are as follows:

What are the root causes of the current instability in the South China Sea? Who is changing the status quo? Who is creating friction?

Wu Shicun: The root causes of instability in the South China Sea are mainly three factors. First, the United States has nakedly “chosen sides” on the South China Sea issue, standing firmly on the opposite side of China. Second, some claimants in the South China Sea dispute are trying to solidify their vested interests. Third, the so-called ruling of the South China Sea Arbitration almost completely denies China’s claims in the South China Sea.

Who is changing the status quo? The West claims that China’s island reclamation in the Spratlys first changed the status quo in the South China Sea. But in fact, the reclamation is not only a countermeasure to the arbitration initiated by the Philippines, but also an initiative to change the unfavorable strategic status of China in the Spratlys, which is reasonable and lawful.

Who is creating friction? There are two main types of so-called maritime friction. One is the maritime disputes caused by infringement and countermeasures between China and claimant countries, legal struggles and cognitive field of “right and wrong” disputes, “invasion and control” disputes. Another category is the game between China and the United States and Japan and other non-claimant countries in the field of maritime security.

Hu Bo: The outside opinion often criticizes China for “expansion” or “coercion” in the South China Sea. I would like to point out that China’s sovereignty and maritime rights claims in the region have been consistent and continuous since 1947. Besides, since the late 1990s, China’s approach and policy towards handling South China Sea disputes have not changed, which is to “shelve disputes” and maintain the status quo. If there is any change, it is that China’s capabilities and determination to safeguard its rights have significantly strengthened, making its responses to external provocations stronger and more forceful.

Currently, the main sources of instability and turmoil in the South China Sea can be attributed to two factors: first, some claimant countries like the Philippines are attempting to alter the status quo and even violate the commitment of “refrain from action of inhabiting on the presently uninhabited islands and reefs” in Declaration on the Conduct of Parties in the South China Sea (DOC). For example, the Philippines claimed to “develop Second Thomas Shoal into a permanent military post” and “drive China out of the entire ‘West Philippine Sea’”. Other claimants also sometimes disregard the existing disputes with China over maritime boundaries. Without shelving these disputes, the South China Sea will forever struggle for peace.

The second is the interference of the US in South China Sea disputes and its efforts to strengthen military deterrence. Since 2009, the US has increasingly focused its South China Sea policy on China, shifting from relative neutrality on the dispute to taking sides and then direct intervention. Under the framework of the pivot to Asia, Asia -Pacific rebalance, and the Indo-Pacific strategy, emphasizing countering China, the US has significantly bolstered its military presence and activities in the region. I have no interest in making value and stance judgements, the truth is, from the end of the Cold War to 2009, when the US paid less attention to the South China Sea and Southeast Asia, the situation in the region was generally more stable than it currently is.

Why did China not accept the South China Sea arbitration ruling? What is China’s understanding of the international order based on international law? What experience and advantages does Asian wisdom have in resolving disputes?

Lei Xiaolu: The South China Sea arbitral tribunal made an overstepping adjudication despite clearly lacking jurisdiction, rendering the 2016 ruling illegal and void. In practical terms, the overall logic of the arbitration was to delineate China and the Philippines’ maritime rights in parts of the South China Sea while bypassing the core issue of territorial sovereignty disputes. The reversed approach failed to appropriately address the complex disputes between the two countries, deepened the divide and disrupted the conducive atmosphere for conflict management and dispute prevention. Also, the ruling has provided the US with a pretext and opportunity to increase its military presence in the South China Sea and its involvement in regional affairs.

In reality, ASEAN countries exhibit unique wisdom in handling disputes related to territorial sovereignty and maritime rights. They tend to maintain regional peace and stability by managing conflicts and preventing disputes, thereby creating a positive environment for the ultimate settlement. This inclination aligns with China’s traditional approach to international disputes. Upholding maritime order based on international law should not only consider international laws, including United Nations Convention on the Law of the Sea(UNCLOS), but also respect regional cultural traditions, customs, and the consensus of regional countries to resolve disputes amicably. The “dual-track approach” embodies this consensus, focusing on resolving disputes effectively as well as maintaining regional peace and stability throughout the resolution process. This, indeed, is a viable solution to resolving the South China Sea disputes.

Zheng Zhihua: Why did China not accept the South China Sea arbitration ruling? State consent is the cornerstone of the international dispute settlement mechanism, and dispute settlement bodies cannot exercise jurisdiction without the consent of the state. The substance of the arbitration case brought by the Philippines is the dispute of territorial sovereignty over some islands and reefs in the South China Sea. The case also inevitably involves, and is inextricably linked to, the maritime delimitation between China and the Philippines. The arbitral tribunal, knowing that territorial issues are not within the scope of the Convention and that maritime delimitation disputes have been excluded by China, nevertheless exceeded its jurisdiction and violated the principle of state consent. China does not accept any dispute settlement measures imposed on it concerning territorial and maritime delimitation issues. On 25 August 2006, China submitted a declaration to the Secretary-General of the United Nations in accordance with the provisions of Article 298 of the Convention, stating that the Government of the People’s Republic of China does not accept any of the compulsory settlement procedures provided for in the Convention with respect to disputes concerning maritime delimitation, among others.

The award violated China’s right as a State Party to the Convention to independently choose the procedure and method of dispute settlement and violated the duty of the arbitral tribunal to “ascertain that whether it has jurisdiction over the dispute”. The Arbitral Tribunal abused the principle of “competence-competence” provided for in Article 288 of the Convention, exceeded the scope of the powers conferred on it by the Convention and unlawfully assumed jurisdiction over subject matters that clearly did not fall within its jurisdiction. In international arbitration practice, “ultra vires” is generally regarded as one of the grounds for setting aside an award.

Second, Article 9 of Annex VII to the Convention requires an arbitral tribunal to “satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law” before making an award. However, the award violates the rules of treaty interpretation set out in the Vienna Convention on the Law of Treaties; it goes beyond the text of the Convention and engages in judicial law-making. For example, the award ignored the principle of integrity and interpreted many important provisions, such as Articles 121, 281 and 298 of the Convention, in an arbitrary or even malicious way, thereby distorting the original intent of the Convention and ignoring the object and purpose of the Convention. The erroneous interpretation and application of the Convention in the Award not only departs from the usual practice of international judicial or arbitral institutions, but also exacerbates the differences in understanding of the provisions of the Convention among States Parties, resulting in a fragmentation of the application and practice of the relevant provisions of the Convention, increasing uncertainty and undermining the integrity and authority of the text of the Convention.

In addition, the award contains numerous errors with respect to the burden of proof, the standard of proof and the presumption of facts, admitting irrelevant, insubstantial and inadmissible evidence, as well as circumstantial evidence that lacks probative value; the award violates the rules of evidence, as the appointment of experts violates the rules of due process, and there is a lack of review of the reports of the appointed experts, whose reports are admittedly lacking in probative value.

The award wrongly characterizes a dispute that is clearly about territorial sovereignty as not involving territorial sovereignty, and completely removes the “safety valve” of exceptions to the compulsory dispute settlement mechanism for issues such as historic title and maritime delimitation, thus rendering the optional exceptions to the compulsory dispute settlement procedure completely ineffective. Instead of resolving the dispute over territorial sovereignty and maritime rights and interests between China and the Philippines, the ruling has intensified the dispute and widened the differences in many respects, even making certain contradictions irreconcilable, with the risk of triggering new conflicts and escalating old ones. The ruling seriously undermines the credibility of the dispute settlement mechanism under the Convention, and China has no reason or obligation to accept such an absurd ruling.

What is China’s understanding of the international order based on international law? An international order based on international law is first and foremost the international order established after the Second World War, with the United Nations Charter as its cornerstone. The Chinese government has recovered territories illegally stolen by Japan, including the islands and reefs in the South China Sea. According to Article 2(4) of the Charter, China’s territorial integrity should be respected by all littoral states in the South China Sea. However, since the 1970s, relevant claimant countries have illegally occupied dozens of islands and reefs in the South China Sea, undermining the integrity of China’s territorial sovereignty. China has safeguarded the integrity of its territorial sovereignty with both restraint and determination. Second, the UNCLOS is an important part of the law of the sea, but it is not the whole of the law of the sea. For example, historic rights, as a legitimate existence in the law of the sea, exist and operate under their own rules within the general international law. For countries claiming historic rights, their interests and concerns in maritime matters are not fully covered by the Convention. The handling of matters relating to a country’s historic rights must be based on relevant national practices and specific circumstances, taking into account the complex and diverse historical values and cultural characteristics involved. In addition, with the rapid development of science and technology, the exploitation of the depth and breadth of the ocean has expanded to an unprecedented extent. Many of the problems that have arisen were also not anticipated when the Convention was drafted, such as climate change and sea level rise, ocean acidification, marine plastic debris and underwater noise. In response to these new challenges, many protocols, regulations and rules have been introduced or are being developed in different regions and by different institutions, which are also important parts of the law of the sea. The status and role of the UNCLOS must therefore be considered in a comprehensive and objective manner. The UNCLOS is an important law, but it is not all the international law related to the South China Sea issue, and it is not even all the law of the sea related to the South China Sea issue. We should neither underestimate nor overestimate the importance of the Convention in maintaining peace and stability in the South China Sea region.

What are the experiences and advantages of Asian wisdom in resolving disputes? Not being self-righteous, refraining from imposing one’s will on others, pragmatism, mutual respect and mutual learning, seeking common ground while reserving differences, and reaching consensus are crucial wisdom for East Asian countries with diverse ideologies, belief systems, cultures, and values to maintain peace and stability and manage and resolve disputes. An important aspect of Asian wisdom is to beware of a binary worldview or rigid mindset of right or wrong, black or white, and instead regard mutual respect and harmonious coexistence as a higher value. For instance, in the East Asian cultural tradition, litigation is seen as a zero-sum game. The victory of one party inevitably means the loss of the other, even if it may bring some order, which comes precisely at the cost of a rupture in the relationship between the two parties. Mainstream Chinese traditional thought places even greater emphasis on “avoiding litigation”, believing that “litigation is ultimately harmful” and advocating “harmony is precious.” This thinking has a long history and still influences the present. It has also led China to advocate resolving conflicts and differences through equal and friendly negotiations rather than litigation in international affairs. International judicial institutions and litigation systems are of course significant, but they should also respect the traditional cultures and customs of different regions and peoples, as well as their various choices for dispute resolution.

Ding Duo: A single unfair ruling is more disastrous than many unfair actions, as the latter pollutes the water flow, and the former contaminates the water source. The Philippines has long harbored unreasonable territorial claims on some islands and reefs in the South China Sea. Under different historical conditions, it has adopted various means of concealing its ambitions. The abuse of international judicial procedures is one of its means, which is a clear violation of the “principle of consent of the state”.

There are many fallacies in the arbitration award regarding the interpretation and application of treaties, factual determinations and admissibility of evidence, which have been widely questioned and criticized. In addition, the South China Sea arbitration case is against common sense in many respects. When considering this absurd case, it’s impossible not to see it as a “political farce”.

For instance, on the key issues in the South China Sea arbitration case, some arbitrator had completely opposite views to his long-held academic views, without explanations.

Furthermore, regarding the Philippine claim concerning marine environmental protection, the Arbitration Tribunal appointed three expert witnesses who hastily produced an expert report within just 17 days. This report, addressing the intricate issue of assessing the marine environment in the South China Sea, caused concerns about its reliability and scientific validity, given the substantial scientific support such an assessment demands.

The expert witness, an Australian national invited by the Philippines, had written an article pointing out that there are at least a dozen islands in the Spratly Islands in the full sense of the word. However, during the hearings of the Arbitration Tribunal, the expert witness backtracked and said that there was not a single island in the Spratly Islands that could be used to claim exclusive economic zone or continental shelf.

Regional countries are the biggest beneficiaries of peace in the South China Sea, and the negative impact of regional instability is also absorbed by regional countries. The East Asian spirit of mutual respect, consensus, and accommodating the concerns of all parties is a concentrated embodiment of the cultural tradition, political wisdom, and diplomatic practice of the countries in the region in dealing with relevant disputed issues. Facts have proven that China’s adherence to “settling disputes through negotiation and consultation, alleviating disputes through development cooperation, and managing disputes through rules and mechanisms” has played an important role in properly handling relevant disputes in the South China Sea and maintaining regional peace and stability. China and ASEAN countries should also continue to adhere to the “dual-track approach” that China and ASEAN countries have jointly pursued and brought positive results.

How will the situation in the South China Sea develop? Will there be a military conflict? What are the motives of the Philippines and other foreign forces in hyping up friction in the South China Sea? What changes may the Philippines make during the new transition of the US administrations?

Wu Shicun: U.S.-led militarization of the South China Sea will intensify, but will be different as the White House changes hands. Unilateral actions by claimant states will become more diverse. Regarding the Code of Conduct in the South China Sea (COC), even if the parties eventually compromise and reach a form of “simplified version” of the COC, its role in managing the crisis in the South China Sea and constraining the behavior of individual countries in the South China Sea will be very limited.

Hu Bo: The situation in the South China Sea is far less tense than some countries and media outlets portray. It is unlikely to escalate into a large-scale conflict in the foreseeable future, and I maintain a cautiously optimistic attitude on this issue. Firstly, as the two most stakeholders influencing the situation, China and the US share a strong consensus on avoiding conflict and not engaging in warfare in the region, despite actively preparing for the “worst case scenarios”. They have clearly delivered this message through various channels, which is unlikely to change regardless of the US president. Secondly, while countries like the Philippines may have ambitions to change the status quo with unstable policies, given China’s current strength and capabilities in the South China Sea, with firm determination and will, the Philippines, even with external support, cannot successfully provoke or encroach in the region. Additionally, the Philippines’ desire to leverage US-China strategic competition and directly involve the former in its territorial ambitions holds little appeal in the US as well.

Ding Duo: In recent years, the external uncertainties affecting the situation in the South China Sea have been very clear, mainly due to the intervention of foreign forces represented by the United States, and the shadow of confrontation in the South China Sea order has been lingering due to “geopolitical paranoia”. The United States has provided a lot of intelligence and tactical support for the Philippines’ provocations in the South China Sea in recent two years, reflecting its intention to reshape China’s surrounding security environment by strengthening the US-Philippine alliance and intervening in the South China Sea issue. The collusion between the United States and the Philippines also reveals that the Philippines, especially the Philippine armed forces, have tasted the sweetness of intensifying maritime contradictions, raising confrontational sentiments, and promoting the escalation of frictions.

Judging from the Philippines’ history of infringements, Manila will try to create incidents at sea in the future and spread false information to deceive the domestic their citizens and mislead the international community. However, such prepared and planned “provocations” to test China’s bottom line of safeguarding its territorial sovereignty will only bring humiliation on itself. During the change of US government, the Philippines may continue to fight with China at sea in a “low intensity” manner, and at the cognitive level, the Philippines’ malicious hype and slander and smear against China will most likely not stop. At the legal level, the Philippine president may take advantage of this opportunity to sign the Maritime Zone Act to solidify illegal gains and expand unilateral claims in the form of domestic legislation. In a longer term, the Philippines may also ignore China and negotiate maritime delimitation with other countries concerned and may also initiate a new arbitration in the South China Sea against China.

What is the current situation of navigation and overflight in the South China Sea? Why do the US and other countries want to hype up the issue of navigation and overflight in the South China Sea?

Hu Bo: The South China Sea is the busiest and most prosperous sea in the world. Various type of ships pass through the South China Sea over 1,500,000 times annually, with around 40% of global goods trade transiting the South China Sea and its surrounding straits. Millions of civilian aircraft sorties fly over the South China Sea. The South China Sea is the most open sea in the world. Countries in and outside the region have surface forces presence of over 20,000 ship-days and around 30,000 sorties of military aircraft in the South China Sea each year, along with hundreds of large-scale drills and thousands of various exercises activities.

Every year, the US military maintains over 5,000 ship-days of warships presence and has around 8,000 sorties of military aircraft annually in the South China Sea, fully enjoying freedom of navigation under international law. However, the US has hyped up the issue of navigation and overflight in the South China Sea, mainly to "stigmatize" China and gain strategic and political advantages, rather than to defend international law and the "rules-based international order".

Yan Yan: On the one hand, the speculation on navigation and overflight in the South China Sea is intended to be used as a pretext for the United States to carry out a series of military and paramilitary activities in the region, such as the Freedom of Navigation Operations (FONOPs). It also pays the way for the US to push forward the rules of navigation of the international law of the sea, which are unilaterally interpreted in line with the national interests of itself, and to force the countries of the region to accept them. This is a typical manifestation of American-style maritime hegemony.

On the other hand, since navigation and overflight in the South China Sea are the common interests of coastal States and user States, the United States has constructed a false narrative of “China’s obstruction of freedom of navigation in the SCS”, which will allow more extra-regional countries to pay attention to and even intervene in South China Sea affairs in order to protect their own interests in maritime navigation and further complicate and internationalize the issue of the South China Sea.

As a matter of fact, the US is the biggest danger and challenge to the freedom of navigation and overflight in the SCS. One example, the 2001 EP-3 incident ended with an apology and compensation from the US side. Today and in the future, when the United States is increasingly intensifying its military activities in the South China Sea, it is hoped that such tragic events will not recur.