China needs to think hard about the consequences of a UN Tribunal’s verdict in favour of Philippines last month, as also the prospects for long term damage to its reputation if it continued ignoring the judgment blatantly. This was the central message of a presentation made by Dr. Manoj Joshi at a round table discussion organised at Observer Research Foundation on July 20, 2016 as part of a Maritime Policy Initiative to discuss the Tribunal Court’s rejection of China’s historical claims in the South China Sea.
Chaired by Mr. Ranjit Kalha, former ambassador, the session covered diverse aspects of the South China Sea disputes, including historical background, political evolution and recent intensification of the conflicts. The working paper of Dr. Joshi, a Distinguished Fellow at ORF, focussed on both legal and structural aspects of the conflicts in the SCS, but gave particular emphasis to the geopolitics driving the maritime competition.
Despite having only two habitable islands — the Woody (Yongxing) and the Taiping (Itu Aba) — the South China Sea, Dr. Joshi brought out, turned into a conflict zone in the 1980s, with the arrival of the UNCLOS and advances made in seabed mining. In February 1992, when China issued a Law On Territorial Sea And Contiguous Zones that reaffirmed “its sovereignty over all its archipelagos and islands” namely the Diaoyu (Senkaku), Penghu, Dongsha (Pratas), Xisha (Paracel), Zhongsha (Maccleisfield Bank and Scarborough Shoal) and the Nansha (Spratlys) islands, the situation took a turn for the worst. Since then, the issue has bedevilled peace in the region, even though it has never led to full-fledged military confrontation.
As Dr. Joshi saw it, the real trigger for the arbitration was the Chinese capture of Scarborough shoal, which prompted Philippines to take the matter before an international tribunal. China protested, even questioning the tribunal’s jurisdiction, but found its objections turned down by the judges. The tribunal ruled that under Article 288(4) of the UNCLOS, it was empowered to determine if a dispute exists, and that the “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”
The court ruled that China’s claims over the waters enclosed by the ‘Nine-Dash Line’ were illegal under the United Nations Convention on the Law of the Sea (UNCLOS). Not only did China have no historic rights to resources, the judges held that Beijing had aggravated the dispute by building an artificial island on Mischief Reef, besides violating the Philippines’s sovereign rights within its Exclusive Economic Zone (EEZ).
More interesting, Dr. Joshi noted was the parallel stream of conflict between US and China, each having a different interpretation of the UNCLOS and the rights its provides the coastal state with. Ironically, while the US has not ratified the UNCLOS, it has a clear sense of the rights that it enjoys in the Southeast Asian littorals — a region China’s considered to be a strategic backyard. Needless to say, Beijing opposes such a move, insisting that foreign navies must obtain Beijing’s prior approval for the passage of its warships through China’s near waters.
In his comments to Dr. Joshi’s working paper, Commander Abhijit Singh, Senior Fellow and head of Maritime Policy Initiative at ORF, highlighted three ways in which territorial disputes could be addressed: through a prism of history, the lens of international law, and in a balance of power framework. Even though the legal remedy seemed most appropriate, he noted that the nuances of the judicial process were more significant. For instance, China’s ‘civilian activities’ on the Mischief Reef had hurt its own case. Under Article 298 of the UNCLOS, the court indicted Beijing for massive reclamation, but did not pass judgement on Philippines activity on Second Thomas shoal, as military activities are outside the ambit of the Tribunal’s mandate.
To make matters more complicated, China’s naval presence within the nine-dash line was held to be valid if it did not interfere with Philippines commercial activity in its EEZ. This means that China’s maritime surveillance agencies as well as naval and coast guard ships can well be present in the sea.
An aggrieved China, Singh observed, was likely to resort to a measure of gradual escalation of activities. In a process of gradual escalation, he noted the first would probably be the employment of combat air patrols and combat navigation patrols. The second action could be an attempt to reclaim the Scarborough Shoal, a subject of great sensitivity to the US as well as Philippines. Finally, Singh highlighted the possibility of the imposition of ADIZ — a challenging proposition, by all accounts, especially since China did not have a contiguous coast around the Spratlys and intended securing a highly congested air-space. Therefore, if an ADIZ did come about, he noted, it would be a symbolic move.
Commenting on the issues, James Kraska, a Professor at the US Naval War College, sought to evaluate the various arguments through a political lens. The significance of the judgement, he brought out, lay in the successful setting-aside of politics and the cold application of law to facts. The implication of the judgement, for both China and the world, is that law is not a political tool. The key to understanding its import was to decipher the implications of the court’s pronouncements about the status of the features and maritime entitlement to land territory.
As Kraska saw it, the Tribunal converged at conclusions on four different points. First, it invalidated the nine dash line as it stands in contradiction to the basic principles of international law or the UNCLOS. Second, the features in the region were declared incapable of sustaining human as well as economic life and therefore were not entitled to an EEZ. Third, the Tribunal had not only opposed China’s claims in the SCS, but also, the manner in which the country executes its claims. The court has found China guilty of violating a number of regulations under UNCLOS namely Article 92 and Article 94 on flag state responsibility. Further, China was also guilty of violating Article 192 and Article 194 that refer to destruction of environment, fossils and massive reef complexes. Fourth, the tribunal has held China accountable for exacerbating the dispute. Notwithstanding the court’s indictment of China’s activities within the nine-dotted line, however, Kraska held that the real issue was China’s unwillingness to fully appreciate the concept of universal application of laws.
The Q&A session witnessed a spirited discussion on significant dimensions of the dispute — notably, India’s stand on the matter. It was brought out by participants that in criticising China, many in New Delhi did not appreciate its own legal stand on the dispute with Pakistan on Sir Creek where India has refused any arbitration by an international tribunal. Others observed China’s need to dominate the littorals that would ensure it would never abide by the court’s verdict. Many, however, also believed the judgement had caused considerable damage to China’s reputation and soft-power, creating an imperative for Beijing to seek a peaceful and diplomatic solution. The discussions, however, clearly brought out India’s stakes in the South China Sea — why it was important for New Delhi to protect its material and geopolitical stakes in East Asia, and how Chinese consolidation of claims in the SCS could have an adverse impact on India’s political and military leverage in the Indian Ocean.
This report is prepared by Shaheli Das, Junior Fellow, Observer Research Foundation, New Delhi.