Liselotte Odgaard
Abstract
The article contrasts China’s interpretations of sovereignty within its so-called motherland in the South China Sea and far from China’s shores in the Arctic. The People’s Republic of China (PRC) has maintained a pre-modern definition of Chinese boundaries in the South China Sea as territorial and ocean frontiers with blurred boundaries to other political authorities. Frontiers were without permanent settlements, but nomads and fishermen recurringly used them within a Chinese imperial system of reciprocal socioeconomic responsibilities. The South China Sea forms part of this frontier where the PRC argues that national Chinese legislation applies. By contrast, far from China’s shores in the Arctic, where China is not the political centre, the PRC seeks to globalise the region, depicting it as a frontier with blurred boundaries of political authority. China recognises the sovereignty of Arctic states, but simultaneously applies standard interpretations of international law to legalise the presence of extra-regional states.
Introduction
In his book Contest for the South China Sea, Marwyn S. Samuels argues that until the mid-nineteenth century, when the Chinese empire had to succumb to Western naval power and the rise of the treaty port system and other Western maritime legal rules became globalised, China ruled people rather than space. Loyalty was to individuals, to the family and to the system, not to the area of the state (Samuels 1982, 51). This idea of ruling humans gave the Chinese empire a sense of sparsely populated frontiers with people who were partly seen as irrevocably barbarian and partly as inferior people that could be educated to become civilised. These racialist notions were not determined by genetics, but by the frontier environment in which they lived which engendered nomadic mobile ways of life (Perdue 2009, 254). Hence, the notion of frontiers of the Chinese empire is tied in with territory and space. However, they are not geographically defined boundaries with well-defined borders. Instead, borders are blurred and changeable owing to the nomadic and mobile lifestyle engendered by the environmental conditions of these places. Relations between frontier peoples and China were symbiotic. Frontier communities allied with Chinese rulers to obtain valuable goods such as textiles. Chinese rulers co-opted frontier peoples with subsidies in exchange for military aid. Hence, Chinese empires were multi-ethnic and combined agricultural and nomadic cultures in their ruling coalitions (Rawski 1996, 837).
Chinese claims to the South China Sea as historic Chinese territory are based on this notion of a frontier that was an important navigation route used by mobile peoples from the Chinese empire. Chinese authorities argue that they used the waters as fishing grounds and islands and reefs as seafarers’ refuge and sources of tortoises and guanos, sometimes settling on islands for years (China State Council Information Office (SCIO) 2016). A complex mixture of peoples was using this frontier area, just as was the case with territorial frontiers in other parts of the Chinese empire at different times. Indeed, Chinese rulers developed hybrid, eclectic forms of governance through interaction with the frontiers that were adjusted to the local context in which they functioned. According to modern Chinese rulers, in the South China Sea frontier peoples extracting the resources of the sea, islands and reefs without permanent settlements in the area formed part of political arrangements with Chinese rulers. This reading of the history of the South China Sea as a frontier area of the Chinese empire with blurred boundaries is used to justify that the sea is a historic part of China. Its status as Chinese is similar to the narrative applied to the vast northwestern plains which in pre-modern times were used by nomads and did not have agricultural settler populations.
In some ways, China’s concept of sovereignty is more akin to the concept of a sphere of influence. Rather than well-defined geographical boundaries, popular use of territory and maritime space is used as a basis for the recognition of special rights and obligations of the Chinese ruler over peoples and territory (Zala 2020). Sovereignty is an international concept in the Western understanding which clashes with China’s domestic concept of political authority. The Chinese government defines the status of the South China Sea as part of its motherland together with Taiwan, the Diaoyu/Senkaku Islands in the East China Sea and other alleged parts of the Chinese empire that was occupied by Western powers and Japan from the second half of the nineteenth century onwards. According to this narrative, the South China Sea, represented by a map with a nine-dash line running through the sea, was illegitimately taken away from China by means of force justified by Western legal arguments. According to China, these arguments are used retrospectively although Western concepts of law were not universally accepted at the time, but instead forced upon the Chinese empire by military means (Tang 1991; Yin 1988).
China’s historic South China Sea claim is tied in with its reading of the events of the mid-nineteenth to the mid-twentieth century, where the Western standard of civilisation was globalised by means of force. China demands rectification of the alleged wrong that the South China Sea was estranged from Chinese rule, on the grounds of legal arguments that were not recognised as valid in Asia at the time. China never lost entitlement to the South China Sea according to its understanding, and hence the area remains subject to domestic Chinese law rather than international law (Tang 1991; Yin 1988). Thus, China sees no paradox in its recognition of the law of the sea and its South China Sea policy. The law of the sea is not applicable within the borders the government defines as China’s motherland. China’s understanding of the international realm is quite to the contrary based on the concept of coexistence. Beyond the areas where China is sovereign, it acknowledges international law, including the sovereignty requirements of other states. However, China also uses international law to justify its presence in regions far from its shores (Odgaard 2012, 78–83).
This article argues that China’s distinction between the legal regimes applicable at home and abroad explains its different understandings of legitimate sovereign entitlement. In the remainder of the article, I first analyse China’s concept of rule at home: how the boundaries of Chinese political authority are understood until the mid-nineteenth century and influence modern Chinese understandings of sovereignty in the South China Sea. Second, I analyse China’s concept of rule abroad: how China’s understanding of boundaries far from China’s shores develops from a coexistence concept of foreign relations as China was integrated into the international system in the twentieth century and influences modern Chinese understandings of the Arctic as a globalised region with blurred sovereignty boundaries and with the status of common property of mankind. Finally, I conclude by discussing the implications of China’s concepts of boundaries for its future policy on global order.
Boundaries in the Chinese empire and China’s understanding of sovereignty in the South China Sea
Marwyn S. Samuels’ seminal work on the South China Sea (Samuels 1982) argues that China’s area of rule was defined by human residence and use. Areas or places lacking in human use and organisation were regarded as being on the margins or simply off the map as zones beyond civilisation. In his interpretation, the concept of an ocean frontier was conterminous with the coastline of the state, and the extension of authority over the sea was limited primarily to anti-smuggling and anti-pirate campaigns along the coast.
Samuels notes that Chinese rulers had no concept of sovereignty in the sense of unlimited and indivisible rule by a state over a delimited territory and the people in it (Samuels 1982, 51).1 If interpreted through the lens of subsequent scholarship on sovereignty (Agnew 2018; Carlson 2011; Perdue 2009), Samuels’ observation reflects the insight that sovereignty is neither inherently territorial nor invariably state-based. Instead, sovereignty is made out of the circulation of power among a range of actors at dispersed sites rather than simply emanating outward from an original and commanding central point such as an abstracted ‘state’. These institutionalised practices change over time and space. Pre-modern Chinese rulers exercised imperial sovereignty through a mix of coercion and active consent which was based on city-hinterland connections and local socio-economic and cultural differences with long-established roots and a persisting ‘deconcentrated’ pattern of authority. These limitations on central state authority remained in the People’s Republic of China (Agnew 2018, 13–15, 47, 163). Samuels highlights the blurred boundaries of political authority arising from the notion of frontiers where barbarian and civilised ways of life meet and interact. Chinese rulers’ political authority gradually faded at these frontiers, waning at geographical points which changed over time as the interaction between frontier peoples and core peoples moved.
In debates about China’s understanding of world order, the concept of tianxia has been used to describe the Chinese all-under-heaven equivalent of sovereignty (Carlson 2011).2 In this system, states are not to be seen as independent entities that are parts of a union, but rather, as ‘sub-sets pertaining to a general set’ or ‘shares in a world of a company’ in which ‘the imperial center had served as the supervisor to recognize the political legitimacy of social institutions’ (Zhao Tingyang as quoted in Carlson 2011, 97).
Although the centre enjoyed limited advantages over the sub-states, there was no superpower to which the others had to succumb. Hence, the tianxia model moves beyond strict definitions of territorial borders. Tianxia is a system of hierarchical harmony enforced by the preponderance of power and social virtue anchored in China (Carlson 2011, 97, 101).
The Chinese rulers’ concept of territory and space was tied in with the peoples of the Chinese state and their establishment of places through human agency, whether they were civilised agricultural producers with stable settlements or barbarian nomadic traders with changeable settlements (Perdue 2009). When US diplomat John Russell Young asked why China does not define its territory, imperial commissioner Li Hongzhang answered that
‘[T]he limits of empire were well defined. There was China and there were the tributaries of China. These tributaries were self-governing, except in the fact that they owed the emperor allegiance; which was satisfied by acts of tribute and ceremony’ (Li Hongzhang quoted in Hayton 2020, 67).
Reciprocity is an important element in the Chinese understanding of how to manage political authority over peoples and the territory they inhabit. The people have a duty to obey the authority, and the authority is obliged to be beneficent toward the people (Suleski 2008, 260). A kind of covenant therefore exists between the ruler and the people. Its fulfilment gives rise to legitimate political authority. Respect for the covenant is not a question of producing a particular outcome, but rather of contributing to an ongoing process of balancing the divergent needs and demands of members of the Chinese state. The relationship between rulers and ruled has the contours of a system of authoritarianism with reciprocal socioeconomic responsibilities between authorities and peoples as the principal basis of legitimacy. These are based on the strength of personal contacts and the trustworthiness of the parties involved rather than transparency, fairness and accountability (Suleski 2008: 279). The boundaries of Chinese empire were defined by this reciprocal system of socio-economic give and take, and the oceans did play a role in this system as frontiers of the Chinese empire.
In contrast to the other littoral states of the South China Sea, China has centuries of written records to legitimise its reading of the sea as a frontier of the Chinese empire rather than a sea used by various peoples and kingdoms engaged in trading relationships (Hayton 2014, 17). China uses written records to substantiate that it has used the South China Sea as a trade route since as early as the second century BCE (The State Council 2016). During the Ming and Qing dynasties from 1368 to 1912, Chinese fishermen developed a relatively fixed naming system for the various islands and shoals in the South China Sea. According to the Chinese government, this behaviour indicates that the sea is a remote area in China’s geographical thinking that defined the boundaries of the Chinese empire (China SCIO 2016).
Chinese authorities argue that between the tenth and fifteenth centuries AD, the Chinese became increasingly aware of the usefulness of this area. Chinese mariners and fishermen used the islands and reefs to collect tortoises, fish and guano, and sailors used them as refuge from the sea. Navigational records are used by Chinese authorities to demonstrate growing knowledge as Chinese frontier peoples became increasingly accustomed to navigating the South China Sea: ‘Wanli Shitang [all South China Sea islands] … is tortuous as a long snake lying in the sea. Its veins can all be traced’ (Wang Dayuan as quoted in Ministry of Foreign Affairs of the People’s Republic of China 2004).
Although other Southeast Asian peoples used the South China Sea as shelter and extracted its resources, they were within the Chinese suzerainty system and as such subjects of the Chinese emperor according to the Chinese reading of history (Gao and Jia 2013, 113). For example, Annam, the precursor of Vietnam, used the South China Sea in much the same way as the Chinese. However, China held suzerainty over Annam until 1884, when China lost the Sino-French naval war over Annam (Hayton 2020, 43, 66–68). Annamite use was seen as frontier peoples of the Chinese empire contributing to creating value from the resources of the ocean frontier.
While China did possess advanced maritime technologies, it generally lacked nationwide adventurist convention and the competitive economy to support overseas expansion. Nor was China a naval power according to recent Chinese scholarship (Zhou 2021, 362). Not surprisingly, as foreign powers such as Britain, France, the Netherlands, the United States and Japan outside of China’s sphere of influence began using the South China Sea and conquered territory along its coasts, they pushed out China’s use of the area as an ocean frontier. The Europeans and Japan gained control over parts of the South China Sea by using a combination of force and Western legal sovereignty markers such as flags. The new powers in the South China Sea also began utilising the resources of the area (Hayton 2020, 38–74, 216–230). For example, from 1919 Britain made plans to collect and export goods such as turtle eggs and guano (Concessions 1919).
During the first Opium War of 1839 to 1842 between Britain and China which initiated Western imperialism in China, Chinese diplomats started to adopt Western conceptual and linguistic frameworks. Gradually, Chinese authorities learnt how to contribute to shaping international law, use it to project Chinese power, and to defend China from Western encroachments on its alleged legal rights. National sovereignty became a necessity to rebuild Chinese influence in the face of global Western power projection. According to Carrai, Chinese accounts expose the imperial nature of international law, and how it was imposed upon the empire through the unequal treaties, extraterritoriality, and legations. They also emphasise how the establishment of the PRC in 1949 finally ended the humiliations and placed China on a new trajectory, where China has gradually become a norm shaper. In Chinese interpretations of international law, the humiliations and pains suffered by China due to the encounters with imperialists in the so-called ‘Century of National Humiliation’ became a political device. Discrimination promoted a non-negotiable nationalism justifying China’s journey of redemption and resistance, embodied by the PRC under the leadership of the Chinese Communist Party (CCP). As China’s global power and influence have grown, Chinese authorities and scholars have undertaken a historical reconstruction of ancient Chinese international law which represents a new world picture, using the internal context of China’s pre-modern international system as a basis to establish a universalist worldview and public law (Carrai 2021, 237–240). Both China’s reading of Western international law, and its reconstruction of pre-modern Chinese law represent interpretations that are intended to promote the interests of China as defined by the CCP.
China’s claim to the South China Sea has not been clarified in public. However, the Chinese authorities have not publicly renounced the validity of the official Chinese map of the South China Sea, which contains a tongue-shaped, dashed boundary line that covers at least eighty per cent of the area (Odgaard 2015). The exact course of the dotted line has never been defined, but it generally follows the 200-meter isobath and is considered a traditional sea boundary by the Chinese (Dzurek 1996, 12). Chinese passports display a map with a nine-dash line through the South China Sea. China bases its claim on recognition that China discovered and used the area in ancient times (Roque Jr. 1997, 197–198). Maps and textbooks in public circulation are used to substantiate the historical waters claim that China has controlled the South China Sea for most of the time since the second century BCE until foreign powers encroached on Chinese boundaries by illegitimate means (Yin 1988, 4–5). Historical waters may be interpreted as waters where the people of a particular country have engaged in various activities for a long time, and on that basis, the waters have the status of internal waters or territorial sea (Dzurek 1996, 14). Beijing has also drawn attention to what it argues are instances of public recognition by other states of its title to the islands. For example, Chinese sources claim that North Vietnam stated in 1958 that it recognised and supported China’s declaration on its territorial waters (Memorandum 1977). Similarly, the Philippine government and the General Secretary of the Shanghai Cooperation Organization are also said to have issued statements supporting China’s position (Hua 2016; Liu 2019).
In 1992, China passed a law stipulating that foreign military vessels could only pass through China’s territorial waters if granted Chinese approval (Order No. 55 1992). Because numerous islands and reefs, including the Paracel and Spratly groups, are defined as Chinese territory in national legislation, the 1992 legislation explicitly established China’s intention, at least in principle, to assert its alleged historical rights to the South China Sea.
China has used force to assert its claims several times. China established control over the Paracel Islands to the north of the Spratlys in 1974 through a series of battles with South Vietnam. China had not necessarily anticipated the need to use force when it moved to expand its physical presence in the South China Sea, but it was clearly prepared to return fire in case of resistance (Austin 1998, 73–77). In 1988, when a united Vietnam had lost the support of the Soviet Union, China fought another battle with Vietnam in the Spratlys, which resulted in approximately seventy Vietnamese casualties and China’s effective control of features that were also claimed by Vietnam (Yahuda 1996, 178–180). During the past decade, China has often used grey-zone operations, staying below the threshold of armed conflict. Paramilitary forces from the People’s Armed Forces’ Maritime Militia use low-intensity maritime rights protection struggles to push other countries, such as the Philippines, Malaysia, and Indonesia, out of areas in the South China Sea (Ericsson and Martinson 2019).
China’s efforts to occupy features in the South China Sea reflect its long-standing strategy of active defence, a term used by Mao Zedong to describe the Red Army’s revolutionary war. Active defence describes a situation where the aggressor, in China’s view, is the side that takes action that violates another country’s sovereignty at the strategic level. It does not necessarily require shots to have been fired or forces to have occupied another’s territory. China sees itself as justified morally to retaliate. China’s response would be characterised as counterattack and may include activities aimed at driving the enemy away, attacks on his forces in the air or at sea, or attacks on his foreign bases or homeland. This is described as a post-emptive strike in recent national defence strategies (Xiao 2020, 28, 31; The State Council 2015).
China’s efforts to occupy territorial features in the South China Sea from the 1970s onwards is an attempt to turn the principle of Western international law—that sovereignty is derived from effective control over a prolonged period—to its advantage. The heart of China’s claim is the historical argument. However, historical references are accompanied by actions that aim to change the meaning of effective control recognised as a universal principle after the Second World War. China makes extensive use of land reclamation enabling it to occupy features and turn them into artificial islands. In the Chinese view, these actions entitle it to twelve nautical mile territorial sea zones and 200 nautical mile exclusive economic zones (EEZ) measured from the islands. Land reclamations are not recognised as a legitimate means of turning reefs and submerged features into islands unless performed by coastal states carrying out land reclamation within their EEZs. However, as time passes these features are likely to be recognised as islands (Thayer 2015). With these measures of claiming territorial sea and EEZs, China diverts from the standard interpretations of international law applying to land reclamation and islands. Since China views the South China Sea as its historic lake, it sees itself as entitled to undertake land reclamation in areas which are defined as high seas by most other states.
Alongside the historical rights argument, China also attempts to reinterpret the rights and obligations of coastal and other states within their EEZs. Within its EEZ, China demands that the military vessels and aircraft of other states notify China before entering its EEZ. Since approximately thirty states are pursuing the same interpretation of rights and obligations within their EEZs, the rights of foreign countries’ military vessels and aircraft in EEZs have become a grey zone in international law (Türk 2015). However, the boundaries of China’s EEZ are not comprehensible, since China has not clarified which features in the South China Sea it claims as Chinese islands entitling it to an EEZ. Consequently, it is not clear where in the South China Sea China considers itself entitled to intercept military vessels and aircraft that have not notified China of their passage. This willingness to leave other countries in the dark about how China interprets their rights and obligations encourages other countries to prepare themselves for the worst when navigating the South China Sea.
To support the historical sovereign right of China in the South China Sea, Chinese international jurists point to the value of the ancient relationship between China and its neighbouring countries and Chinese sovereign activities in the sea. In this reading, the South China Sea has generally been a calm area of sea since ancient times. It provided a fertile fishing ground for local fishermen from China and other littoral states, and a smooth route of navigation for regional nations and the international community (Jia 2015). This tranquillity was disturbed by a scramble for physical occupation of insular features in the South China Sea by littoral states. Chinese sovereign rights to the sea are grounded in the belief that the history of tributary relationships in the pre-modern tianxia system between China and tributary countries is a valuable source for establishing legal rights and obligations (Liu 2019; Gao and Jia 2013).
The Chinese government argues that although other countries took control of parts of the territory and maritime space of the South China Sea, this happened by unlawful means of force and the use of Western legal concepts that had not been recognised as international law with global legitimacy at the time (Tang 1991). Suzuki (2009) has traced the history of the establishment of the treaty port system in the nineteenth century. He shows how Chinese rulers were forced to accept that Western law applied to delimited parts of China, replacing the Chinese legal order and facilitating that Chinese elites viewed the extension of international law to Asia in a coercive light. The research demonstrates that Western law had not yet obtained status as universally applicable standards endorsed by the Chinese leadership (Suzuki 2009, 56–88).
According to the Chinese political and academic establishment, China never lost entitlement to the South China Sea. Japan was the last foreign power that used force and Western legal instruments to occupy territory in the South China Sea. Following Japan’s defeat in the Second World War and its surrender of occupied territory, the sea should have been returned to Chinese sovereignty (Yin 1988). Nevertheless, the subsequent peace treaty failed to specify which states would be granted sovereignty over territory in the South China Sea, thereby creating the conditions for future jurisdictional disputes (Treaty of Peace 1951).
The Chinese narrative of the South China Sea as an inalienable part of the motherland is used to justify that China operates in the area as if it is within its jurisdiction. This approach is at odds with the other users of the sea, whether they are from Southeast Asia or from other regions. They operate on the grounds that it is international waters, except for a small part which is the territorial sea of littoral Southeast Asian states. China’s reading of the century where Chinese rulers succumbed to Western and Japanese power implies that Chinese historic concepts of law are seen as valid arguments demonstrating Chinese sovereignty. Beijing argues that although some features in the South China Sea are occupied by other countries, their legal status as part of China remains unaffected. The fact that China has not exercised effective control over the features for sustained periods of time is seen as irrelevant. Even if another claimant occupies territory, voluntary acquiescence from the former sovereign is required for the new occupant to claim sovereignty (Tang 1991, 249). It is Chinese generosity toward neighbouring states that allows them to occupy sovereign Chinese territory without having sought its permission.
China’s view that its domestic law is applicable in the South China Sea implies that it sees itself as entitled to patrol the area and intercept and refuse passage to vessels that in Beijing’s view violate its rights to resources and to deny transit. Hence, the growing tendency to manifest Chinese sovereignty over waters that other states do not recognise as legitimate Chinese territory or maritime space. The principal problem with China’s increasing willingness and ability to enforce its sovereignty in the South China Sea is that it occurs at China’s discretion. This means that any commercial, public, or naval vessel can be intercepted at any time on the grounds that it violates China’s sovereign rights to resources and to refuse passage in Chinese waters. China is increasingly using coercion to consolidate its alleged rights to resources and to deny passage in the South China Sea, although China’s alleged rights have not been endorsed by the international community.
Beijing’s self-proclaimed discretionary right to intervene engenders uncertainty in the international system because it questions China’s willingness to take into account the interests of other states, which see all, or at least most of the sea, as international waters. The Sino-centric legal perspective inherent in China’s behaviour appears to be sovereign rights to territory and maritime space based on historical claims as defined by the strongest power and exercised at its discretion. This suggests that China applies a highly unpredictable ad hoc kind of legal order with blurred boundaries which fails to clarify when other nations are operating in China’s definition of its domestic sovereign area and when they are operating in international waters. The insistence on China’s right to enforce blurred sovereignty boundaries not recognised by the international community makes China’s concept of sovereignty in the areas lost to Western powers and Japan from the mid-nineteenth to the mid-twentieth century unprecedented in modern international law (Franckx and Benatar 2012; Hayton 2020, 214–239).
China’s emerging claim to Okinawa in southern Japan is a good example of how the boundaries of the Chinese motherland changes gradually. In 2013, an international audience began to take seriously the fact that a growing number of Chinese officials and scholars had commenced a semi-official campaign in the news to challenge Japanese sovereignty over Okinawa. The basis for the claim appeared to be a combination of early history and the Cairo Declaration, which the United States, China, and the UK issued in 1943, to help prepare the post-war order in East Asia. In China’s view, Okinawa is Chinese territory because it was part of the tributary state the Ryukyu kingdom. In Beijing’s accounts, Japan stole the kingdom by invading it in 1609 and annexing it according to Western international law in 1879 (Xu 2005). China cites the Cairo Declaration which states that all the territories Japan has stolen from the Chinese shall be restored to the Republic of China. China argues that Japan accepted the declaration by surrendering in 1945 (Scoville 2013).
Taiwan is an example of territory that, after centuries as a dangerous frontier of wild aborigines and deadly diseases, was annexed in 1684 by the Qing empire, after the Sino-Dutch wars of 1661 to 1668 had left the island under control of Chinese warlords. It obtained provincial status in 1885 after the Sino-French war. In 1895, it was ceded to Japan, opening the door to Taiwan’s status as inalienable Chinese territory because from 1949, the Guomindang government on Taiwan de facto defied the political authority of the People’s Republic of China (PRC) (Andrade 2011; Hayton 2020, 184–213).
In the Chinese mindset, norms and principles that define the Chinese people and the physical space defined as Chinese, develop along national lines and are not susceptible to change from foreign influences that do not form part of the Chinese sphere of influence. This Sino-centric worldview distinguishes between the values and norms associated with peoples and geographical areas that China defines as belonging to the Chinese motherland, and those outside the Chinese sphere. This view engenders rigid distinctions between peoples and areas that make Chinese expectations of international relations more amenable to a coexistence type of order rather than a Western international order characterised by integration and socialisation. In the following section, I investigate China’s concept of coexistence, which defines its understanding of sovereignty far from China’s shores, using the example of China’s sovereignty concept in the Arctic region to demonstrate its implications for China’s foreign relations.
Boundaries far from China and China’s understanding of sovereignty in the Arctic
Despite advanced maritime technology, Chinese empires only rarely ventured outside of Asia. Instead, China mainly used its maritime voyages to expand trade linkages and display Chinese naval prowess in Asia (Hayton 2014, 24–25). The naval expeditions were important economic voyages that involved interaction with other kingdoms and civilisations, which also led to the gradual expansion of the Chinese empire through the establishment of tributary relations with other rulers. The boundaries of Chinese empire waxed and waned within Asia as the fortune of Chinese rulers changed. The rare trips outside of the Asian hemisphere in the Indian Ocean were seen as meetings with other civilisations with distinct spheres of interest and separate systems of political authority. The geographical scope of the Chinese empire declined as Western and Japanese maritime power grew from the late eighteenth until the nineteenth century, when the Chinese empire was forced to obey Western law (Samuels 1982, 20–25).
Gerrit W. Gong (1984) has demonstrated how the Chinese understanding of civilisations far from China’s shores as distinct spheres of interests was challenged when China was forced into accepting that Western systems of governance defined the law in parts of China. As China navigated the so-called ‘Century of National Humiliation’ until the Second World War, it adopted insights into Western legal reasoning. China also built a system designed to interact with countries based on Western law. For example, in 1866, when France mounted an expedition against Korea, of which China was the traditional suzerain, China’s rulers handled communications with Korea according to the traditional forms of the tributary system. However, in dealing with France, and eventually with the other Western powers and Japan, the Chinese rulers used international legal reasoning of the West. They cited Western ideas such as blockade and the duties and rights of neutrals. China recognised that observance of Western legal principles, such as the sanctity of treaties, would not only remove the grievances which triggered Western punitive actions. Such observance would also limit Western activities in China to those specified in treaty provisions. As Chinese nationalism emerged in the twentieth century, the priority of restoring China’s territorial integrity and national sovereignty was espoused. China became one of the first countries to appeal to the Permanent International Court of Justice attached to the League of Nations for revision of unequal treaties. The process of abrogation of extraterritoriality was completed in 1943 (Gong 1984, 154–163).
Tsou and Halperin (1965) have shown that the PRC emerged in 1949 on the remnants of a Chinese system that saw the boundaries of authority relations of the Chinese empire in pre-mid-nineteenth-century terms both regarding geography and legal concepts. The PRC contrasted this pre-modern understanding of China with areas outside the Chinese hemisphere where Western concepts of law ruled. The CCP developed a revised version of a specific Chinese model of state-society relations that was applicable within the boundaries of China. Boundaries continued to be blurred and at the frontiers, the motherland gradually merged with the abroad.
Chairman Mao Zedong, who led the PRC from its establishment until his death in 1976, based his foreign policy on Lenin’s coexistence concept (Odgaard 2012, 35–38, 48–53). Coexistence entailed that capitalist and communist systems could exist side by side if the communists could exploit the differences between them. As foreign policy practice, coexistence reflected China’s need to establish relations with neighbouring states at a time when it still had to build domestic economic, social, and military strength. Mao argued that China must learn how to wage covert diplomatic struggles against the imperialists, engaging countries in Asia, Africa, and Latin America positioned in between the United States and the Soviet Union in efforts to undermine these great powers that collude and compete for hegemony (Tsou and Halperin 1965).
Premier Zhou Enlai launched Mao’s concept of coexistence in his address to the developing world at the 1955 summit of the Non-Aligned Movement in Bandung in Indonesia (Shao 1979). The launch of the Cultural Revolution in 1966 temporarily halted the PRC’s coexistence policy. However, on January 1, 1970, coexistence was reintroduced as the primary theme of Chinese foreign policy with the announcement of its willingness to establish or improve diplomatic relations with all countries, regardless of their social systems (Harding 1971). In 1982, the principles of mutual respect for sovereignty and territorial integrity, mutual nonaggression, non-interference in the internal affairs of others, equality and mutual benefit, and peaceful coexistence were written into the preamble of the Chinese constitution (The National People’s Congress of the People’s Republic of China 1982).
Coexistence as a foreign policy strategy has been designed to safeguard China against pressures from superior powers challenging Chinese interests (Shao 1979). During the Cold War, this meant carving out an independent position of influence between the United States and the Soviet Union. Coexistence is not intended to form a permanent governing principle of China’s foreign relations. Instead, the CCP leadership considers it an interim strategy applied until China has been restored to its former historical greatness as a full-blown economic, military, and political great power with a united motherland, as defined by China (Tsou and Halperin 1965, 82–83). Insofar as this aspiration has not been met, China maintains coexistence as its foreign policy guide that helps it advance the objective of restoring the motherland, while reassuring other states of its benevolent intentions to avoid too much resistance to its actions. To this end, China attempts to demonstrate a willingness to forgo short-term national interests and prioritise the common interests of states in peace and stability. Moreover, China’s foreign policy is adjusted to the power political realities of the regions in which it pursues its interests, which entails cooperating with powers based on other models of political authority. In regions where China does not have immediate ambitions to export its model for state-society relations, it applies a pragmatic policy towards powers with ideological foreign policy principles not supported by China, such as states subscribing to liberal principles of democracy and human rights (Odgaard 2012, 78).
China’s behaviour in the Arctic reflects coexistence at work in a region where other great powers dominate interaction patterns, and which is far from China’s shores. According to China, the Arctic is marked by rising geopolitical tensions between the big powers Russia and the United States. Furthermore, competing claims to territory and maritime space exist (Xiao 2015, 157, 160–161). Of these, the claims causing most controversy are those of Canada and Russia, which are based on Article 234 of the United Nations Law of the Sea (UNCLOS). Canada claims the Northwest Passage as its internal waters. Russia claims rights to administer the Northern Sea Route as an ice-covered area and also frequently refers to this route as internal waters (Fravel et al. 2021). Canada and Russia demand that other countries’ vessels notify them when entering these waters. Article 234 grants coastal nations the right to adopt and enforce non-discriminatory laws and regulations to reduce and prevent marine pollution in ice-covered areas of those countries’ EEZs. The notification requirement is contested by other states, including the United States. They see Canada and Russia’s interpretation of UNCLOS as unlawful attempts at effective control of shipping and the economic activities of other states (Schreiber 2019).
In 2018, China published its Polar Silk Road policy in a white paper on the Arctic. China describes itself as a near-Arctic state, indicating that China is a key stakeholder with long-term interests in participating in regional development and navigating the Arctic Sea routes (The State Council 2018; Xiao 2015, 157–159). China is engaged in resource extraction and the construction of hard and soft infrastructure (Odgaard 2020, 25–29). To nurture an image of a benevolent great power prioritising common interests, China has plugged into regional needs for climate and environmental science research (Editor 2017). Science contributions and its efforts to become an active participant in Arctic multilateral institutions such as the International Arctic Science Committee (IASC) and the Ny-Ålesund Science Managers Committee have allowed China to become an Arctic player with legitimate regional interests (Jakobson 2010). China differs from other extra-regional countries with an Arctic presence by pursuing both a closed territorially based framing of being a near-Arctic state and an open globally based framing of the Arctic as a maritime space whose environmental dynamics affect the entire planet (Bennett 2015).
To globalise the Arctic region and justify the long-term engagement of extra-regional states, China argues that the region is the common property of mankind, and that full play must be given to cooperation and exchanges with extraterritorial major powers and countries neighbouring the Arctic to allow for the safeguarding of national Arctic interests (Xiao 2015, 162). The Arctic is a new strategic frontier, according to a globalised China engaged in all the world’s regions (Andersson 2021). The Chinese political leadership and academic community define the Arctic as a region with blurred boundaries of sovereignty. International rules and standards are laggard, outdated or incomplete, engendering great power competition for regulatory power in addition to resources and influence (Yang 2017). China’s contribution to Arctic governance is the concept of a community of shared future for humankind. This translates into using peace, sovereignty, inclusiveness, and co-governance to transform the region into a new frontier for cooperation for all parties (Xinhua 2017).
China relies heavily on UNCLOS to ensure its ability to navigate the Arctic. The 2018 white paper on the Arctic states that ‘the management of Arctic shipping routes should be conducted in accordance with treaties including the UNCLOS and general international law, and the freedom of navigation enjoyed by all countries in accordance with the law and their rights to use Arctic shipping routes should be ensured’ (The State Council 2018). UNCLOS grants Chinese vessels the right to navigate through the EEZs and the international straits of Arctic coastal states. China’s emphasis on UNCLOS’ extensive provisions for passage for commercial vessels in the Arctic underscores the prominence of its economic interests compared to a military presence and the interconnectedness of China’s Arctic policy with global Chinese interests.
Chinese interpretations of international law on navigation can appear contradictory. UNCLOS ensures states the right to enjoy high seas freedoms beyond a state’s twelve nautical mile territorial sea, including within the EEZ (Peng and Wegge 2014, 298). In 1992, China’s National People’s Congress passed a law on the territorial sea and contiguous zone, which included a provision that ‘foreign military ships must obtain permission’ to enter China’s territorial sea (United Nations 1992). China reaffirmed this position in a declaration it submitted upon ratification of UNCLOS in 1996 (Peng and Wegge 2014, 293). This legal provision might possibly restrain the Chinese navy in the Arctic if and when it would seek innocent passage through the territorial seas of coastal Arctic states (Fravel et al. 2021). China views the 1992 law as outlining its approach to its own territorial sea, as codified in domestic legislation, and not as a general interpretation of the rights of coastal states in the territorial sea. Therefore, the restrictions on access to China’s territorial sea do not restrict China’s willingness to transit through the territorial seas of other states.
Under UNCLOS, states cannot transit through another’s internal waters, even if only for the purpose of innocent passage. Hence, Canada and Russia require prior notification of passage through the Northwest Passage and the Northern Sea Route, respectively. So far, China has treated Canada and Russia alike, seeking permission for passage from both (Fife and Chase 2017). However, China’s emphasis on navigation in the white paper suggests it will be inclined to view these waters as international straits for the purpose of navigation, bringing China in closer alignment with the United States in these areas. This approach will allow China to prioritise the free passage for all ships, using the Northwest Passage and the Northern Sea Route as international straits.
China has tested US legal consistency with UNCLOS by sending navy vessels within twelve nautical miles of the Aleutian Islands off Alaska and bordering the southern edge of the Bering Strait without prior notification, in line with official US interpretations of UNCLOS. The US government responded by stating that the transit was legal and conducted in accordance with UNCLOS (LaGrone 2015). Since this incident, the United States has regularly performed innocent and non-innocent passage within twelve nautical miles of Chinese-occupied features in the South China Sea in violation of China’s view of its sovereign rights. Washington has refrained from authorising passage through the Qiongzhou Strait between Guangdong Province and Hainan Island, which is the geographical equivalent of the transit route of the Chinese navy vessels off the coast of Alaska, but which China defines as internal waters. China’s position on the Northwest Passage is complicated by its claim that the Qiongzhou Strait is internal waters and thus closed to international navigation without Chinese permission. The two waterways are geographically very similar. However, unlike the Northwest Passage, the Qiongzhou Strait ‘has rarely, if ever, been a matter of debate’ (Hong 2018). Should this change, China is likely to claim that the area is historically Chinese and hence that Chinese national legislation applies.
Conclusion: the implications of Chinese concepts of sovereignty for its policy on global order
China’s rise to great power is managed through a foreign policy of coexistence as the principal way to minimise the push-back from other powers against its growing influence and interests. The emergence of China as a great power committed to coexistence overseas is considered a means to the ultimate end of restoring the Chinese motherland. This end has remained stable for decades, and China has consistently, and openly, been committed to its fulfilment. Thus, the Chinese authorities have not altered their claim to sovereignty over the South China Sea. Chinese arguments have become more complex, and the language used to defend the claim has changed over the years, increasingly relying on modern concepts of international law such as the rights of coastal states in their EEZs and Western legal concepts such as effective control. Nevertheless, the claim of the PRC remains basically an historic claim, founded on the sea’s status as a frontier in the Chinese empire. Beijing is also frank about its commitment to use its growing economic and military capabilities to step up manifestations of its alleged right to jurisdiction in areas that it defines as constituting the Chinese motherland.
In China’s eyes, there is no dilemma between its use of international law to justify an expanding maritime presence across the world in new strategic frontiers such as the Arctic, and its refusal to adhere to the rights and obligations of international waters in the South China Sea, such as allowing the passage of military vessels without notification and the obligation to cooperate with other states on managing the fishing resources of the sea. In denying these rights, Chinese authorities refer to the sea’s historic status as Chinese, and as such, subject to national legislation. The period from the mid-nineteenth to the mid-twentieth century involved the use of illegal means of force to conquer territory and maritime space from China. Hence, China defines the status of the South China Sea as it was before the Western and Japanese occupations.
China’s leaders have throughout history projected domestic issues onto foreign policy, in the sense that issues of regime security define China’s core interests. For agencies of the state, the CCP’s hold on power is the central motive determining decisions and recommendations. The South China Sea, which is not recognised as sovereign Chinese space by most states, is a core interest because of its strategic importance for mainland China and for maritime transport, and due to its reserves of fish and energy resources (Hayton 2020, 215). It has been portrayed as a national identity issue to couple it to the security of the regime in its capacity as protector of the Chinese nation and the Chinese motherland (Odgaard 2012, 191–192). By contrast, the Arctic remains a peripheral region far from China’s shores. Here, China establishes a limited, but strategic presence based on the rights of extra-regional states in standard interpretations of international law.
The nationalist aspects of China’s policies played out in the South China Sea concern the identity of the state. As such, they are non-negotiable, both as aspirational objectives of protecting national unity and the Chinese motherland, and as Chinese privileges to use coercive and military means to protect its maritime claims. The rise of nationalism implies that China will only continue to apply coexistence in its foreign policy as long as this policy advances the unity and prosperity of the Chinese nation. If China’s power and influence continue to grow, the nationalist theme is likely to gain increasing prominence in China’s foreign policy.
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