An expert in the South China Sea issue on an exclusive interview at the European Sting

Mrs Yan Yan, Deputy Director of the Research Center of Oceans Law and Policy in the National Institute for the South China Sea Studies (NISCSS)

Last Wednesday the European Sting took an interview in Brussels from an expert on the South China Sea. Our interviewee this time was Mrs Yan Yan, Deputy Director of the Research Center of Oceans Law and Policy in the National Institute for the South China Sea Studies (NISCSS) and a PhD candidate in the University of Hong Kong on public international law. The stimulating interview is presented below. The Sting’s questions are signalled as ES and Mrs Yan’s answers as YY.

ES: The Global Times, a Beijing-based newspaper, at the end of their editorial last week they posed the question: “Will U.S. Restrain ‘Provocative’ South China Sea Actions?”. The question was made post the conclusion of the eighth China-US Strategic & Economic Dialogue (S&ED) in Beijing, which took place last week as well. Thus, I would like to address the same question to you if I may: “Will U.S. restrain provocative south China sea actions”? and if yes, how do you think that can be accomplished? 

YY: With China and the US, on the one hand there is the competition there of the naval power. But I also see that the two countries are trying to reach a delicate balance in the region. In the Strategic and Economic dialogue (…), there are many ways to exchange views in a dialogue. In the year 2014, the two countries, made an agreement for the first time on two very important major concrete measures, the first one is the limitation on military activity and the second one is the rule of behaviour on encounters within the sea and air. And then in 2015, the two countries, the military departments, so the navy and the air force added to the negotiation and dialogue and reached two annexes of the rule of behaviour. And also the two countries conducted a joint military exercise together  in 2014. Also the two countries signed a multi-lateral agreement on encounters in the sea, which was conducted by 21 navy agencies in the world, where both China and the US are part to it.

I see that China and the US have doubts and suspicion to each other, but I also see that the two states are trying to understand each other, trying to avoid miscalculation and incidents, both at sea and in the air. I don’t think there will be a big incident or war between the two countries, because we enjoy the same interests in terms of safeguarding the peace of the South China Sea. It is the most important meaning of communication, it has the world’s largest exports going through.

ES: According to a recent interview that a former Filipino diplomat gave to CCTV and was published last week, Manila plays a significant role in intensifying tensions in the South China sea. Would you agree with that allegation?

YY: I think she means the arbitration initiative by the Philippines in 2013 to Arbitrational Tribunal. Honestly speaking, I think the arbitration’s move has some negative impact on the South China Sea issue. Especially the bilateral relationship between China and the Philippines. My first point is that China and the Philippines concluded several bilateral agreements on how to resolve a dispute. And then China feels that the Philippines is a betrayer of its own words by bringing China to court, so yes, that is the feeling. And then some of the ASEAN states believe, some of the ASEAN States like Viet Nam that stand by the Philippines, that it is their right to go to court, but maybe other nations of the ASEAN’s, they think that it is better to stay on the negotiation table with China like Cambodia and Laos (…). The arbitration splits the ASEAN (…) In this sense, I think she is correct.

ES: Chinese Ambassador to Britain Liu Xiaoming last week urged the Philippines to return to a negotiated solution and some countries from outside the region to “stop playing with fire.” How do you read on this one? Would you ever anticipate the possibility of a future hot episode evolving over the South China Sea issue?

YY: I do see the different anticipation of this arbitration. For China, we definitively think that the bilateral negotiation is the best way to solve this problem. Especially in maritime disputes. Actually, two weeks ago, I went to France and that the foreign minister of France is concerned over South China Sea and he is also worried that all the countries are saying bye bye international law, and international law is the way out of South China Sea etc. I am aware that many countries that have very powerful navy, they want to urge the legal evolution of the South China Sea issue. For international law scholars, there are different way of resolving a dispute. There are international dispute settlements like under the Art. 33 of the UN Charter,(…), there are a lot of ways to solve problems and they are all part of international law.

I do feel that when some government leaders say that international law is the way out, I do want to say that China thinks the same way too. And international law does not mean only UNCLOS. UNCLOS is an important treaty on the governments of the ocean, that is true. However, it is only one treaty in international law. International law can come from several sources ( e.g.treaties and conventions, international customs (…)  Negotiation is one way of international law resolution of a dispute. (…) I do feel that China is very much interested in the peaceful resolution of this South China Sea issue and also China hasn’t made unreasonable claims under international law- nothing ambiguous, well not to me.

ES: In the next weeks the whole world awaits the ruling by the Permanent Court of Arbitration over the arbitral proceedings that Philippines initiated against China back in 2013.At the same time we all know that China rejects the jurisdiction of the court. Do you think that China’s strategy on the matter is likely to change post the upcoming announcement of the ruling? What are the possible scenarios that could evolve for China in the coming months?

YY: China on many occasions stressed that it is not accepting the award regarding the missing tribunal’s jurisdiction in this case. People are awaiting the final award, the final award will come out end of the month/ early July. To me, it won’t affect China’s position on the South China Sea, because China very clearly stated that the tribunal has no jurisdiction. So therefore the award will not be legally binding, because it is not convincing. The first reason is that under the Art. 288, the tribunal can only have jurisdiction over the application/implementation of the UNCLOS. Well, the dispute between China and the Philippines, it is a territorial dispute which is out of the control of the tribunal. Secondly, some of the submissions of the Philippines, on the islands reefs in South China Sea, they want the tribunal to make a decision on specifics which are a problem of maritime limitations. Which had been excluded by China in the 2006 declaration, provided by the UNCLOS. So therefore I don’t think it will have much effect on China’s future activities in the South China Sea. Because, we believe, the results, no matter what it is legally wrong. And also China wanted the Philippines to come back to the negotiation table and we are open to bilateral talks, even after the award is out.

But another point, what I wanted to say is about the new president of the Philippines, Duterte, I think there will is and there be a difference when he takes office. He will take office June 30^th. There will be something I am very looking forward to. It is whatever the award comes out before he takes office or after (…). If it doesn’t come out before June 30^th, and the new president took office, actually, he can vanish the procedure.

ES: If the Arbitration Tribunal’s ruling is unfavorable to China, analysts fear that this could open the Pandora’s box in the South China Sea region, with other neighbour countries starting to challenge China in similar territorial disputes. Would you see that as a possible threat to China? If so, what would China do to tackle this?

YY: There is indeed the possibility that Vietnam will follow the Philippines going to the arbitrational tribunal against China. But whether this will happen, depends on how China and Vietnam handle the negotiations between each other. I personally don’t think it will happen in a very short time, because the two countries are still negotiating and exchanging views on the issue and are talking about a joint development in the area. I think the negotiation can finish. Besides Vietnam, I don’t think Malaysia and Brunei will go to court against China, because the relationship with them is even better.