South China Sea Security Order Construction and Jurisprudential Struggle

At present, maritime issues are increasingly showing profound strategic significance. The competition between major powers dominates the evolution of maritime security. The South China Sea has become an important field for the United States to contain China. In order to implement the spirits of "accelerating the construction of a maritime power" and "protecting maritime rights and interests" proposed by General Secretary Xi Jinping in the report of the 20th National Congress of the Communist Party of China, at the 2022 "South China Sea Forum" hosted by the China Collaborative Innovation Center for South China Sea Studies at Nanjing University, attended the meeting Experts focused on the assessment of the situation in the South China Sea in 2022, the impact of the "small multilateral" formed by the United States on the situation in the South China Sea, the establishment and practice of rules for the maritime order in the South China Sea, the South China Sea issue from the perspective of China's peripheral security, and the historical experience and lessons of competition between major powers and other topics were thoroughly analyzed. The "South China Sea Forum" aims to provide a platform for high-quality research, dialogue and exchange on relevant sea-related hotspot issues, and actively promote the development of research on South China Sea issues. This seminar has important theoretical and practical significance for studying and judging the current situation in the South China Sea and safeguarding national maritime rights and interests.

The construction of security order in the South China Sea is one of the focuses of current South China Sea issues. The participating scholars analyzed the main connotations, concerns and specific goals of the construction of the South China Sea security order, and pointed out the current challenges and realization paths for the construction of the South China Sea security order. The legal struggle surrounding the South China Sea issue is another focus of current attention. Some countries led by the United States have misinterpreted the UNCLOS and taken targeted military actions to unreasonably demand that China abide by the so-called ruling in the "South China Sea Arbitration Case" unilaterally initiated by the Philippines. In response to this situation, scholars conducted in-depth analysis on relevant legal issues and proposed China's countermeasures.

1. Construction of security order in the South China Sea and application of international legal norms

(1) Objectives, approaches and challenges of building a security order in the South China Sea

First, the connotation of "should" in the construction of security order and rules in the South China Sea. The participating experts mainly analyzed and discussed the following aspects: First, the maintenance of order in the South China Sea is mainly carried out by the two major actors, China and ASEAN, which is consistent with the overall trajectory of the development of relations between China and ASEAN. Therefore, order in the South China Sea The construction should also be embedded in the East Asian regional cooperation network, which needs to be grasped from an overall perspective; second, the construction of the South China Sea order should focus on the role of different security norms, such as the ASEAN security cooperation norms and the Asian security concept advocated by China. Unanimous consensus, the security order in the South China Sea should be the consensus result of different security norms; third, the security order in the South China Sea should be a development order, using development to resolve security issues rather than impacting the development order with security conflicts.

Second, the establishment of order and rules in the South China Sea needs to clarify its purpose. According to experts participating in the meeting, the purpose of security order in the South China Sea mainly has the following aspects: First, it is to manage and control conflicts rather than resolve disputes. Such rules are not intended to clarify or affirm a certain right, nor do they alter the legal position of either party, nor do they have the effect of recognizing the legitimacy of the status quo. The second is to take the promotion of maritime cooperation as an important content. The third is that such rules should be treated equally without double standards. Every participating country must feel that its interests and concerns have been met and guaranteed. Fourth, whether the "guidelines" play a role is not necessarily related to whether they are legally binding. Instead of arguing about the legal binding force of the Code, it is better to focus on specific provisions, promote the accumulation of consensus among all parties, and gradually increase mutual trust, so that the Code can play a real role.

Third, the main issues in the "Code" consultations. Scholars believe that from a legal perspective, the biggest obstacle restricting the negotiation of the "Code of Conduct" is the so-called award in the "South China Sea Arbitration Case" and the construction of islands and reefs of the countries involved in the South China Sea dispute. There is tension between these two issues and the negotiation of the "Code of Practice", which makes the negotiation of the "Code of Practice" more difficult. One of the prerequisites for finding the greatest common divisor for the negotiation of the "Code" and establishing an effective control mechanism is to clarify the relationship between the "Code" and the "Convention", otherwise it will be difficult to reach consensus on many important articles. The current consensus is that the Code must conform to international law including the Convention, but it must be admitted that the Convention is not the only basis for international law consultations on the Code, and the consultation on the Code may not be completely consistent with the Convention, because There is also a need to apply other recognized international law to address what is not covered by the Convention. At the same time, it should also be made clear that the so-called extension of the arbitral award should not be included in the "guidelines" consultation. The "Guidelines" should promote the implementation of maritime cooperative development, including tourism cooperation in the South China Sea and the mechanism of cooperative development with relevant claimant countries in overlapping areas of the 200 nautical mile exclusive economic zone. Interference from external forces should also be excluded, including joint military exercises , Oil and gas exploration activities carried out by foreign oil companies.

Fourth, the "community" approach to security governance in the South China Sea. Some scholars have pointed out that the current regional governance in the South China Sea is characterized by regionalization and security. Regionalization is the institutionalized allocation of elements in the sea area. The regionalization of the South China Sea is in the ascendant. At present, there are a series of institutional arrangements centered on ASEAN, the "Belt and Road Initiative", RCEP and a series of marine mechanisms. Securitization refers to the constant disputes over island reef sovereignty and maritime delimitation. The coexistence of maritime regionalization and security urgently needs a new concept of maritime security to resolve. This concept of maritime security is the "community" of marine security governance, rather than abstraction and individualization, forming countries and organizational communities, people and Marine biomes, as well as marine non-living communities, etc. Because different communities will focus on different rights and interests, for example, countries and organizational communities focus on rights and interests, and human and marine biomes focus on a common destiny, etc. When discussing the regionalization of the ocean with community logic, it is possible to resolve the South China Sea region The coexistence of security and security.

Fifth, the challenges faced by the establishment of security order in the South China Sea. Experts participating in the meeting believed that the United States used the network of allies to impact the local order, and the ever-diverging network centered on ASEAN in the past faced the impact of the security network centered on the United States. The U.S.-centered security network includes military, political, and economic dimensions, impacting local cooperation networks and ASEAN centers, and also dividing ASEAN. In addition, the trust deficit in the South China Sea has impacted the rules and order. The study of international relations theory shows that it is not enough to only emphasize the rules. Under the rules, there must first be basic trust, basic consensus and a certain degree of mutual recognition.

(2) Legal struggle and legal rights protection in the South China Sea

First, there are certain deficiencies in the application of the UNCLOS to the South China Sea issue. Experts at the meeting pointed out that the Convention is a combination of comprehensive and normative principles, rules and systems for ocean affairs, which plays an important role in the development, utilization and definition of ocean space and resource interests, and has become an important and universally complied with. law. However, if the Convention is applied to the South China Sea issue, there are many limitations, and legal rules and principles including general international law should be regulated. Treaty law, including the Convention, cannot exhaust the rules of international law. The Convention does not deal with the acquisition of land, including islands and reefs. The norms of historic rights should be the norms of international law. It is parallel to the Convention. Relationship. The preamble of the "Convention" clearly stipulates that "matters not regulated shall continue to be governed by the rules and principles of general international law". In other words, there are two kinds of international law applicable to the South China Sea issue. The rules and principles of general international law apply to the issue of territorial sovereignty over islands and reefs. The "Convention" has regulations on marine activities, including scientific research, environmental protection, fishery, and mining of mineral resources, which can be resolved by applying the "Convention". Regarding the legal nature and effectiveness of the dotted line in the South China Sea, the provisions of the Convention are obviously not unique, and further research is required on the principles and systems of general international law.

Second, the provisions of the Convention are vague. Experts participating in the meeting believed that the provisions of the Convention on some marine activities are vague. For example, the "Convention" does not clearly stipulate the issue of the innocent passage of warships, but Section III of the "Convention" clearly states that the "innocent passage in the territorial sea" system applies to all ships. Article 17 also stipulates that "all countries, regardless of Whether it is a coastal state or a landlocked state, its ships have the right to pass through the territorial sea innocently.” Some scholars believe that all ships, including warships. If a warship has made non-innocent passage, the coastal state can drive it away, but it cannot detain it. From these provisions, it can be reasonably inferred that warships can pass innocently in a narrow sense. Therefore, the ambiguity of the provisions on innocent passage by warships in the Convention leads to different interpretations and applications, which in turn lead to certain conflicts. In fact, the "Convention" is the product of the game of national interests, and there are many similar ambiguities. In practice, disputes between China and the United States over military activities in the exclusive economic zone, innocent passage procedures in the territorial waters, and so-called excessive maritime rights claims cannot be resolved through the Convention. Bilateral negotiations or new disputes are required. system to be enriched, developed and improved.

Third, the obligation to cooperate in semi-enclosed seas. Experts participating in the meeting pointed out that the "Convention" requires the coastal states of semi-enclosed seas to strengthen cooperation, at least in scientific research, environmental protection, and biological resource management. Have an effect.

Fourth, on the issue of freedom of navigation. Some scholars have analyzed that freedom of navigation is indeed a concept of international law. This concept has a long history and mainly refers to the freedom of navigation enjoyed on the high seas. However, navigation in the territorial waters of coastal states constitutes innocent passage. Freedom of navigation is freedom for the purpose of navigation. Now the United States has launched "freedom of navigation operations" to challenge the so-called excessive maritime claims in the South China Sea. This kind of behavior cannot be defined as freedom of navigation, but a military activity.

Fifth, China may face legal challenges on the South China Sea issue. Some scholars pointed out that China may face the following legal challenges: One is about the so-called arbitration award. Some countries led by the United States have frequently issued statements demanding that China implement the ruling. The second is the application for the outer continental shelf submitted by Malaysia. Third, some countries are planning new arbitrations. Once the time is right, if the benefits of submitting new arbitrations outweigh the costs, it may trigger a new round of legal contests.

Sixth, the negotiation of international agreements on the conservation and sustainable use of marine biodiversity beyond national jurisdiction and international judicial trends in marine environmental protection. China must take effective countermeasures and fight for its reasons in the resumption negotiations. It must not only strengthen relevant domestic legislation and amendments, but also prepare for a series of lawsuits or arbitrations that may arise in the future. At present, international judicial institutions are strengthening the legal practice of marine environmental protection. They should be vigilant against countries surrounding the South China Sea to initiate indiscriminate lawsuits against China on the grounds of marine environmental protection in the future, and prevent relevant countries from initiating compulsory procedures under the Convention on marine environmental protection, such as compulsory arbitration. The participating experts also pointed out that the legislation and law enforcement activities for marine environmental protection in the South China Sea should be strengthened, and international cooperation in marine environmental protection in the South China Sea should be strengthened in order to resolve risks and avoid disadvantages.

Seventh, China's response to legal issues in the South China Sea. The first is to further promote the improvement of the legislative procedures and judicial practice of international law including the Convention. The second is to draw on the operating principles and practical experience of international organizations to supplement the deficiencies and unclear points of the international law of the sea system. The third is to formulate a new regional system. Regarding the South China Sea issue, the formulation of the "Code" and other South China Sea security systems are important aspects of solving the South China Sea issue. The fourth is to further strengthen dialogue and coordination at the bilateral level, achieve phased results, and abide by the phased results. Especially between China and the United States, negotiating and consulting on maritime security issues and abiding by the consensus reached are important aspects of maintaining peace and stability in the South China Sea. The fifth is to strengthen domestic legislation. Experts participating in the meeting said that some countries have promulgated relevant marine laws at the level of domestic legislation, which have several functions and inspirations: (1) the role of declaration, which clearly expresses the rights and interests of countries in relevant sea areas. (2) Lock the negotiation strategy and release executable signals. (3) To justify the confrontational actions necessary for rights protection. The provisions on national rights protection and the subsequent refinement of relevant laws and rules attempt to provide a domestic legal basis for law enforcement in disputed waters. (4) Demonstrate and guide the rules of international law.

2. Historical experience of sea power competition and other studies related to the South China Sea

Sea power competition is an unavoidable topic in the current situation in the South China Sea. The historical experience of sea power competition has reference significance for the current Sino-US maritime game. In addition, it is also of great significance to properly handle issues such as public opinion, diplomacy, and fisheries in the South China Sea issue. At the same time, strengthening the chain of evidence for South China Sea rights protection is an important means to deal with disputes in the South China Sea.

(1) History, sea power competition and the South China Sea issue

First, the US-Japan sea power competition and lessons learned. Scholars at the meeting believed that sea power competition is related to great power competition and grand strategic competition. Experts participating in the meeting pointed out that the game of great powers and the competition of sea power are unavoidable, and China should learn lessons and actively develop sea power. The first is to earnestly study sea power and correctly respond to the challenges and pressures of hegemonic powers on China. Second, to protect growing overseas interests, it is necessary to go beyond traditional sea power and innovate the theory of sea power. The third is to have a large strategic reserve for the navy and sea power. The fourth is to correctly handle the relationship between national development, internal governance and sea power development. Fifth, in addition to focusing on the technology and professionalism of the navy and sea power, the vision and education on sea power and naval construction are also very important.

Second, historical trade, shipping routes, and management of the South China Sea. After the Age of Discovery, Western historians almost dominated the initiative and subjective consciousness of the entire history writing of the world. Therefore, the history of maritime activities in the Pacific should require further research and writing.

(2) Public opinion, diplomacy, resources and rights protection in the South China Sea

First, global public opinion based on big data pays attention to the South China Sea issue. According to the experts participating in the meeting, according to the big data analysis of public opinion related to the South China Sea issue, the current global public opinion is mainly concerned about the following aspects of the South China Sea issue: First, the military security of the South China Sea, mainly because the major participating countries and countries agitating for the "Indo-Pacific Strategy" are more concerned , creating an insecure atmosphere will help it intervene in the South China Sea. The second is the enforcement of the so-called arbitration award. Due to the media hype in the United States, the Philippines, Australia, and the United Kingdom, nearly one-third of the international public opinion concerning the South China Sea is concerned with the arbitration. The third is the change of the Philippines' China policy. The fourth is public opinion involving the South China Sea issue and the Taiwan Strait issue. Fifth, energy security caused by the Ukraine crisis and public opinion on unilateral oil and gas exploration and exploitation by claimants in the South China Sea. Scholars participating in the meeting pointed out that the main characteristics of international public opinion related to the South China Sea are politicians leading, military clamoring, scholars following up, and collaborative narratives.

Second, establish an ecological maritime diplomacy system to buffer the tension in the South China Sea region. Experts at the meeting suggested that China must speed up the construction of an integrated eco-marine diplomacy system. It mainly includes the following aspects: first, government departments should be the main body to promote maritime public diplomacy; second, coastal cities should actively build public diplomacy brands; The media is the main body to shape maritime public diplomacy, especially to give full play to the supplementary role of non-governmental media to official media, and use small animations, small videos, etc. to enhance the interest of external publicity; fifth, think tank institutions shape maritime public diplomacy, and give full play to the international academic exchanges of think tanks Sixth, sea-related colleges and universities cultivate maritime public diplomacy, and play the role of public diplomacy through exchanges and experience sharing in scientific and technological research and development, personnel training, technical skills, educational methods, academic exchanges, etc. Seventh, play the role of overseas Chinese The role of people's maritime diplomacy.

Third, the security situation in the South China Sea and the security of maritime energy channels. Experts participating in the meeting said that under the current complex security situation in the South China Sea, my country's maritime energy imports and transportation channels are facing major risks. Mainly reflected in: First, the complex strategic situation in the South China Sea. 90% of China's crude oil imports by sea are transported through the Strait of Malacca and the South China Sea. Malacca is within the control of Malaysia, Singapore and Indonesia, and the US military base surrounds Malacca from three sides. In addition, the United States maintains its hegemonic system through deployment in the Indian Ocean, which puts China's energy security at a disadvantage in terms of strategic posture. The second is the security of the passage in the Indian Ocean. The risk of overseas energy transportation is increasing. The number of US troops in the Indian Ocean is second only to Europe and the Asia-Pacific, which also increases the military risk of China's Indian Ocean energy routes. Third, the international situation is turbulent. Some supply countries in the offshore energy supply chain have relatively high political risks. Scholars have also put forward corresponding countermeasures and suggestions: First, the protection of offshore energy transportation channels and overseas oil and gas pipelines should be strengthened. On the basis of cooperation with the governments of the territories and countries along the route, the advantages of private overseas security companies are used to strengthen the security force. At the same time, use the construction achievements of China's South China Sea islands and reefs. The second is to broaden energy import channels and promote the diversification of energy imports. The third is to carry out oil security cooperation with major energy consuming countries in the Asia-Pacific region, including Japan and South Korea. The fourth is to avoid direct conflict with the United States and defuse its attempts to curb China's expansion of overseas oil trade. Fifth, increase the proportion of RMB as a means of settlement in the international oil and gas resource market, effectively reduce the proportion of US dollars and euros in the financial sector, and avoid systematic dependence on Western countries.

Fourth, attach importance to the role of fishing rights in rights protection in the South China Sea. Experts participating in the meeting pointed out that China should attach importance to the pursuit and maintenance of sea rights and fishing rights, and achieve the effect of declaring and exercising sea rights by strengthening the actual existence of fisheries. Scholars have analyzed the behavioral characteristics of claimant countries when maritime fishery conflicts occur. In practice, when the opposing country seizes Chinese fishermen and fishing boats on suspicion of illegal fishing, China usually adopts a moderate proposition. If the other party arrests fishermen on the grounds of "illegal entry", China will take a strong stand. Under special circumstances, fishermen suspected of illegal fishing were arrested by the other party. If China finds that it is inconsistent with the facts, it will take a strong position. Scholars suggest that in the special area at the junction of the two countries, the principle of good-neighborliness and friendship should be upheld and moderate propositions should be adopted. In sensitive areas, that is, areas involving China's sovereignty claims, it is appropriate to adopt a tough assertion. If there are casualties in any disputed waters, it should also take a strong position diplomatically.

(3) Construction of evidence chain for rights protection in the South China Sea

First, about the historical connotation of the dotted line in the South China Sea. Scholars at the meeting pointed out that the dotted line in the South China Sea is the geographical and spatial scope of historic rights and cannot be separated. China's claim of territorial sovereignty over islands and reefs in the South China Sea is mainly based on three aspects: First, official actions since modern times. It was mainly government actions such as the recovery of the Dongsha Islands and Lee Joon's cruise in the early 20th century. The second is China's official attitude, that is, the South China Sea Islands have been China's inherent territory since ancient times, which has several meanings: First, from the time of Vietnam, the Philippines, and Malaysia's independence, the behavior of the Republic of China government to draw the dotted line has a preemptive nature. Secondly, after World War II, the Chinese government sent officials to the South China Sea Islands to carry out reception activities in accordance with the Cairo Declaration and the Potsdam Proclamation. Finally, in the era of unclaimed land, activities such as discovery and naming in ancient China had the initial conditions of preoccupation. Since the "Eastward Spread of Western Law" in the 19th century, rights protection activities in the Republic of China have important legal significance, and evidence from the people, such as fishing villages, the naming of shipping routes, and the discovery of Genglubo, have made useful supplements.

Second, China's countermeasures. Western scholars try to deny China's long-term effective practice of Xinjiang governance, cut off the continuity of Chinese history, and exclude China's irrefutable historical basis from "international rules." In response to the behavior of Western countries and some claiming countries to play the historical card, the participating experts put forward China's countermeasures: First, it is clear that the dotted line is the right formed and continued by China's past dynasties of governance. The second is to clarify the difference between the two different systems of the East and the West. China's past dynasties have had ideas, policies and actions to expand and govern the frontier, but they are completely different from the "occupation" actions of Western colonists. China has formed a specific jurisdiction through the political vassal system, the economic tributary system, and the cultural Confucianism. Based on this management concept, the South China Sea has maintained a stable situation for a long period of time, which is fundamentally different from the way Western countries acquire territories by forcibly occupying colonies. The third is to clearly examine concepts such as sovereignty, historic rights, and sea power. On the one hand, China should not reject the research paradigm of international law, but should strengthen its research; on the other hand, China’s practice of maritime governance and its system of maritime governance before the introduction of modern international law into China should be included in the current vision of examining the South China Sea issue. Fourth, the so-called historical rights contest between China and the West on the South China Sea issue is essentially a collision between two systems and a contest between two discourse powers. It started as early as when Western powers eroded China's sovereignty and territory. We must pay attention to research paradigms and discourse power change. (Author: He Xianqing is an assistant researcher at the China South China Sea Research Institute)