In 2016, a series of developments in maritime-Asia drew international attention to the territorial disputes in the South China Sea, none more so than the Philippines vs. China Arbitration over maritime rights and jurisdiction in the littoral seas. On July 12, 2016, a tribunal at the Permanent Court of Arbitration (PCA) at Hague passed a landmark on the matter, ruling that Beijing’s claims of historic rights within the nine-dash line are without legal basis. It further concluded that Beijing’s activities within the Philippines’ two-hundred-nautical-mile exclusive economic zone (EEZ), such as illegal fishing and environmentally damaging artificial island constructions, constituted and infringement of Manila’s sovereign rights.
In many ways, China had only itself to blame for the debacle. Beijing’s first reaction to the Philippines’ legal appeal had been to ignore the matter altogether – as if not acknowledging the case would effectively delegitimise it. Given the high level of international interest in the affair, however, it was forced to make a course correction, issuing a position paper in December 2014 clarifying its official stance on the issue.<1> Unfortunately for Beijing, its contention that Manila had violated the United Nations Convention of the Law of the Sea (UNCLOS) by filing a petition on a matter of ‘sovereignty’ and ‘territorial jurisdiction’ failed to convince judges at the PCA, who ruled comprehensively in favour of the Philippines.<2>
Notwithstanding the maritime legalese surrounding the case, the technical nuances of the points raised reveal an underlying narrative. It is important to note that when Manila filed proceedings under Annex VII of the UNCLOS in July 2013, it was smart enough to invoke only those provisions that allow for compulsory arbitration. Fully aware that territorial disputes are beyond the remit of UNCLOS, the Philippines’ legal team dressed-up their case as one of historical rights and judicial clarifications on the applicability of UNCLOS provisions. This is significant because many of China’s operational moves in the region after the verdict reflect a sense of betrayal at being legally ambushed by a ‘lesser’, though legally stronger, opponent.<3>
At the heart of the Philippines’ submission were questions about the legal validity of China’s nine-dash line’ in the South China Sea. Manila framed its petition to seek a clarification from the court whether state rights and obligations in the waters, seabed, and maritime features of the SCS could be demarcated by something as arbitrary as a hand-drawn line on a chart. Simply put, Manila asserted that China’s maritime map of the SCS was of dubious provenance, and claims arising from it were an outright violation of the law.
China’s belatedly mounted legal defence was innately flawed. Beijing implausibly argued against the tribunal’s mandate to interpret the application of the UNCLOS; erroneously invoked Art 298, citing its voluntary opt-out of compulsory arbitration under the UNCLOS; and unconvincingly petitioned for the dismissal of the Philippines’ case, invoking the Declaration of the Conduct of Parties (DOC) in the South China Sea.<4> Nothing in the text of that agreement, the judges pointed out, imposed any obligation on a state to eschew legal remedies in pursuing a just redressal. Yet, until July 12, 2016 when the Tribunal passed its final judgment, few had believed that China would face such a humiliating loss. It came as a surprise that the tribunal ruled in favor of the Philippines on almost every count, unanimously rejecting nearly all of China’s maritime claims in the region.
The felicity with which the tribunal tackled legal technicalities deserves acknowledgment. The court rightly held that all the territories in the contested Spratly Islands are reefs or rocks, and not islands – an important distinction, as under UNCLOS, reefs cannot generate a claim to the surrounding waters or airspace, and rocks serve as the basis only for a maritime claim of 12 nautical miles. The judges’ classification of the features on the Spratlys as “less than Islands” negated the possibility of any being used to proffer claims of a 200-nautical-mile exclusive economic zone.
China’s real problem, it appears, is that the court’s ‘non-territorial’ judgment implicitly invalidates Beijing’s territorial claims in the South China Sea.<5> Before the verdict, Chinese leaders assumed that their South China Sea claims would eventually be recognised, because the features under Chinese control will, at some point in the future, be awarded the status of islands. Beijing believed that its “islands” in the Spratlys would legitimise its legal claim over territory enclosed within the nine-dash line, without having to resort to any form of overt aggression.
The tribunal declaration, however, that the Spratly features are only reefs or rocks, deflated Chinese claims. China’s outposts in the Spratly group are now rendered isolated enclaves floating in the Philippines’ exclusive economic zone—lying within 200 nautical miles of that country’s territory. This is one reason why Beijing has moved to quickly accept the Philippines’ suggestion for a maritime sanctuary around the Scarborough shoal and jointly exploit South China Sea resources elsewhere.<6>
If negating China’s historical claims was not enough, the court also found Beijing to be guilty of conducting illegal maritime activities inside the Philippines’ exclusive economic zone. Chinese vessels, the judges held, were not only fishing in unauthorised fashion, they were routinely engaged in dangerously manoeuvers by approaching Philippine boats too close, preventing them from fishing, and extracting oil within the zone. Turning its knife in an already aching wound, the tribunal then censured China for its construction of artificial islands in the region, which it determined had caused severe environmental damage and heightened geopolitical tensions.
Despite the clarity brought by the verdict to many contentious issues, it did not plug all loopholes. Its biggest inadequacy is the lack of an honorable face-saver for Beijing.<7> China was perhaps aware that the court would pass an adverse ruling, but was still taken aback by the severity of the final verdict. Expectedly, it provoked an immediate response from the PLAN that moves to expand its operational presence in the South China Sea. Within days of the judgment, Beijing upped the tempo of its reclamation activities and began creating military infrastructure on islands under its control in the SCS. If the international community had any doubts, China made it clear that there is no provision in international law to enforce a UN court’s binding judgment.
Since then, Chinese military and non-military vessels have regularly undertaken activities to strengthen their de facto control of the area. Far from being pushed into adopting a more conciliatory approach, Beijing has doubled down on a strategy of "passive assertiveness" – methodically expanding its regional military footprint while avoiding risky manoeuvres that could trigger an accidental clash. Besides stepping up its fortification of military outposts in the Spratly Islands in open defiance of the tribunal's ruling, China has constructed reinforced aircraft hangars on Subi, Mischief and Fiery Cross Reefs. These new facilities have potential military usage and expand the PLA’s power projection capability in the South China Sea. In combination with the first, Beijing has moved to mobilise its massive coastguard fleet to mark its presence and intimidate non-Chinese fishermen in Southeast and East Asia, in the process substantially raising the risk of an inadvertent clash.
The PLAN’s South China Sea patrols and exercises since the ruling have consolidated China’s wider strategic footprint without adopting unnecessarily provocative military postures. Rather than establishing an air defence identification zone – which would have been hard to enforce – Beijing initiated a new program of "air combat patrols", flying nuclear-capable H-6K bombers and Su-30 fighters over disputed island features in an intimidating display of its airpower and resolve.<8> Worryingly, China’s joint maritime exercises with friendly navies incorporated "island-seizing drills" and anti-submarine warfare.
Meanwhile, despite undertaking multiple FONOPS in the South China Sea since the verdict, the US seems to be at a loss of options in tackling China’s provocations. Despite warning from the Obama administration and President-elect Donald Trump, Beijing has refused to mend its ways. In December 2016, a Chinese boat confiscated a US underwater drone in the waters off the Philippines, challenging US operational primacy in the SCS.<9> The UUV was returned days later, but Beijing showed how it was taking unkindly to intrusive US maritime operations, as well as unconsidered remarks by Trump and his transition team.
In effect, Beijing has managed to shift the burden of escalation onto the US and its allies, who must now decide how much provocation is enough to cross the threshold of tolerance. With the Chinese Supreme Court’s recognition of a "clear legal basis for China to safeguard maritime order, marine safety and interests and to “exercise integrated management over the country's jurisdictional seas", US analysts and policymakers know Beijing could soon come up with a domestic law to tighten its control over the South China Sea.<10> If China declares base lines around the Spratlys, it will set the proverbial cat out among the pigeons.
A passive bystander through much of the dispute’s recent history, India took a measured stand in the wake of the UN tribunal’s verdict. New Delhi issued a statement that urged all parties to show utmost respect for the UNCLOS, and the international legal order of the seas and oceans.<11> The statement indicated India’s recognition of the legitimacy of the Permanent Court of Arbitration (PCA), but more importantly, it illustrated New Delhi’s willingness to acknowledge the need for all affected parties to uphold the verdict.
While New Delhi’s choice of words seemed motivated by the need to appear balanced, China insisted on interpreting India’s stand as being in support of its position. The Chinese media noted that New Delhi’s signing of the Russia-India-China joint statement was an affirmation of the need for all parties involved in the maritime disputes to settle matters through dialogue rather than seeking legal recourse.
Not that Beijing has ever believed that India’s South China Sea stand matters. Days before the start of the G-20 meeting, Wang Yi, China’s Foreign Minister, held wide-ranging talks with Prime Minister Narendra Modi and External Affairs Minister Sushma Swaraj.<12> The agenda included a number of contentious bilateral issues – China’s perceived opposition to India’s membership to the Nuclear Security Group (NSG), Beijing’s opposition to UN sanctions on Jaish-e-Mohammed Chief, Masood Azhar, and the China-Pakistan Economic Corridor – but not the affairs of the South China Sea. That the visiting Chinese delegate had the South China Sea in mind all along was confirmed a day later, when the Chinese media hailed India for being “neutral on the South China Sea” – convinced that if the matter ever came up at the forthcoming G-20 summit, New Delhi would not take sides.<13>
For its part, India realises that too much interest in the affairs of the SCS has the potential to impact bilateral ties. Indeed, a week prior to Wang’s visit to India, the Global Times, a Chinese tabloid widely seen as the government’s mouthpiece, had warned New Delhi that its seemingly inimical posture on the South China Sea could damage bilateral ties. "Instead of unnecessary entanglements with China over the South China Sea debate during Wang's visit," an editorial in the newspaper had declared, "India must create a good atmosphere for economic cooperation, including the reduction of tariffs…amid the ongoing free trade talks."<14>
Regardless of Beijing’s deeply held beliefs, however, developments in the South China Sea do affect Indian interests. To begin with, Indian trade and economic imperatives in the Pacific are more pronounced than ever. Under the ‘Act East’ policy, trade with ASEAN and the far-eastern Pacific is expanding significantly. Consequently, Asia’s Eastern commons are increasingly becoming a vital facilitator of India’s economic development. With growing dependence on the Malacca Strait for the flow of goods and services, economics is increasingly a factor in India’s Pacific policy. The territorial conflicts in the SCS threaten the future trajectory of India’s economic development, creating an unacceptable impediment for regional trade and commerce.<15>
More importantly, India believes that the disputes in the Southeast Asian littorals are a litmus test for international maritime law. In the aftermath of the Hague Tribunal’s verdict on the South China Sea, New Delhi feels obligated to take a principled stand on the issue of freedom of navigation and commercial access as enshrined in the UNCLOS. Regardless of the guarantees being sought by Beijing from India about staying neutral on the SCS, New Delhi cannot be seen to be condoning an aggressive stand by China in the region.
For all of China’s concessions on offer, New Delhi has reason to continue viewing PLAN manoeuvres in the Indian Ocean Region (IOR) with suspicion. For one thing, Beijing still yet to explain its rapidly growing undersea presence in littoral South Asia. The flimsy pretext of anti-piracy operations to justify the deployment of Chinese submarines in the Indian Ocean makes many Indian maritime analysts believe that China is preparing for a larger strategic thrust in the Indian Ocean.<16>
An aggressive Chinese maritime posture in the South China Sea Chinese also has implications for the wider Asian commons – in particular the South Asian littorals, where Indian observers fear an increase in power asymmetries. For many Indian analysts, there is a clear correlation between aggressive Chinese patrolling in the SCS and its growing deployments in the Indian Ocean Region. China’s aggressive response to the UN Arbitral Tribunal’s verdict is interpreted by many in India as a broader strategy to project power in maritime-Asia.
What most worries Indian observers is the prospect of reclamation and militarisation of features under China’s possession. In particular, Indian analysts anticipate the deployment of Chinese missiles, fighters and surveillance equipment in its Spratly group of islands, allowing the PLAN effective control over the entire range of maritime operations in the SCS. As China’s maritime militias become more active in its near-seas, Indian watchers are anticipating an expansion of Chinese maritime activities in the IOR. Many fear a rise in non-grey hull activity in the Eastern Indian Ocean, where China’s distant water fishing fleet is already a significant presence.
Beijing’s blueprint for maritime operations in the Indian Ocean might involve the construction of multiple logistical facilities close within India sphere of influence. China’s 10-year agreement with Djibouti in 2015 for the setting up of a naval replenishment facility in the northern Obock region is widely seen by Indian experts as proof of the PLA Navy’s strategic ambitions in the IOR.
If regional watchers expect the tribunal’s verdict to bring a sense of closure in Southeast Asia, they could be disappointed. The judgment sets a significant legal precedent: the principles that guided the tribunal’s decision are now part of international law, and countries must embrace and reinforce them if they want others to uphold them in the future. But it does little to remedy China’s behaviour, or to prevent other regional countries from seeking legal recourse.
Since July 12, 2016, US President Barack Obama has repeatedly asked China to abide by the arbitral award, even warning Beijing that a violation of international “norms” would entail “consequences”.<17> However, while Washington has been firm in pronouncements, it has failed to prompt a stronger operational response from regional states. The Philippines, in particular, seems oblivious that it was the prime mover of legal proceedings against China. Rather than hold China to account, President Rodrigo Duterte appears keen to play “political footsie” with Beijing.<18> In the circumstances, it appears only the US and, to a lesser degree, Japan, are willing to confront China in the South China Sea.
America’s options are to either raise the frequency of its freedom of navigation or conduct more aggressive footing regional patrols. Despite a resumption of FONOPS, there is little consensus among American policymakers that assertive USN patrols in the South China Sea will change Chinese behaviour. Yet, if Beijing crosses the “red-line” by reclaiming Scarborough, it is likely the US Navy will offer strong pushback.<19> Washington will be keen to leverage diplomacy in preventing tensions from rising. But it knows Beijing is unlikely to offer any guarantees that it will scale back its aggression in the South China Sea.
Even so, there are ways in which regional states could reinforce the recent ruling without militarily confronting China. The first is to encourage both China and the Philippines to abide by the UN court’s decision. Other claimants too must discuss ways in which the ruling affects their own position vis-à-vis the maritime disputes. All parties must desist from military activities and allow tensions to cool.
In the meantime, it is better to keep talking – for the solution to the problems in the SCS might actually lie in accelerated dialogue. Southeast Asian states must encourage Chinese officials to negotiate with other claimants in the South China Sea, and also make progress on a binding code of conduct (CoC) with ASEAN. A clear set of guidelines for maritime behaviour in the South China Sea could prove invaluable.
Not only would a CoC freeze the waterway’s political and territorial status quo, it would signal China’s willingness not to threaten the existing security order in the long term. Meanwhile, the US must make it clear to Beijing that the avenues for cooperation risk shut-down if China resorts to assertive moves, such as construction at Scarborough Shoal.
For India, it is important to display solidarity with Southeast Asian states to press for a peaceful solution to the SCS disputes. New Delhi must encourage both China and ASEAN to undertake greater confidence-building measures and to reduce the risk of an accidental clash. It is in nobody’s interest to see great-power conflict over the South China Sea.
New Delhi can assure China that it does have reasonable options available to it. With or without the UN court’s interventions, resolving the impasse in the South China Sea peacefully and legally would be in everyone’s interests.
Against this larger backdrop, the following chapters of this primer attempt to evaluate the prospects for peace and stability in the South China Sea. The contributors argue that even though the vexed nature of the dispute has prevented all sides from reaching a working consensus, the search for diplomatic solutions hasn’t ended. Undoubtedly, as Jeff Smith points outs, the only way in which the seriously contested issue of freedom of navigation (FON) in the SCS can be resolved is through greater diplomatic dialogue between the US and China. Yet, as Teng Jianqun suggests, there are many ways of interpreting navigational freedoms – each one meant to serve specific political agendas, and shaped by a uniquely nationalist historical perspective.
Meanwhile, the region’s middle powers remain concerned over the deteriorating security dynamic in the region. Richard Haydarian gives an excellent account of President Duturte’s refusal to side with the US, affecting his own unique ‘pivot’ towards China. The Philippines, he avers, is only following in the footsteps of other ASEAN countries that have all felt the need to adopt an ‘equi-balancing’ strategy towards the two great powers.
Ristian Supriyanto points to the need for greater confidence building measures in the SCS. While the adoption of a naval Code for Unplanned Encounters at Sea (CUES) as a crisis management mechanism counts as a positive move, he notes the absence of consensus in resolving the controversial uses of white-hull vessels and “maritime militias” in enforcing maritime claims. For Koh Swee Lean Collin, the balancing game in the SCS can have unintended consequences for all sides seeking to maximise gains. Closer diplomatic and economic links with China, he avers, doesn’t change the reality that regional states remain increasingly dependent on the US for their security. Ha Anh Tuan outlines Vietnam’s principal motivations in abstaining from public criticism of China. Making predictions about the SCS, he argues, is fraught with risk for Hanoi because future outcomes are likely to be dependent entirely on evolving variables. Finally, Satoru Nagao brings out Japan’s need for a special partnership with India in the regional maritime commons. As great-power politics becomes more intense in the South China Sea, he proposes a deeper India-Japan operational compact in the regional littorals.
Clearly, the old certainties that brought prosperity and stability to the Western Pacific for over three decades are under threat. The US-led security system undergirding Asia’s maritime strategic order is being dismantled. More disturbingly, the institutional edifice on which political confidence in the system was built is being decisively undermined. It is therefore time to have a reasoned discussion of the consequences of continuing instability in the South China Sea.
This essay originally appeared in Line in the waters.<1>Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, Ministry of Foreign Affairs, Republic of China July 12, 2014 http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml
<2> Julian Ku, It is Beijing’s fault that China lost big in the South China Sea ruling, The Quartz, July 17, 2016 http://qz.com/733012/it-is-beijings-fault-that-china-lost-big-in-the-south-china-sea-ruling/
<3> Abhijit Singh, End of Maritime Innocence, The Asia Times Online, July 10, 2016, http://www.atimes.com/article/end-of-maritime-innocence-the-china-vs-philippines-arbitration-saga//
<4> Jay Batongbacal, Arbitration 101: Philippines v. China, Asia Maritime Transparency Initiative, Jan 21, 2015 https://amti.csis.org/arbitration-101-philippines-v-china/
<5>Alex Linder, China swiftly rejects Hague Tribunal ruling against its South China Sea claims, The Shanghaiist, Jul 12, 2016 http://shanghaiist.com/2016/07/12/china_rejects_hague_ruling.php
<6> Philippines to Declare Marine Sanctuary in South China Sea, The New York Times, November 21, 2016 http://www.nytimes.com/2016/11/22/world/asia/philippines-rodrigo-duterte-scarborough-shoal-china.html?_r=0 Joint exploration in South China Sea legal, The Business Standard, January 5, 2017, http://www.business-standard.com/article/news-ians/joint-exploration-in-south-china-sea-legal-philippine-official-117010500978_1.html
<7> Mira Rapp-Hooper, Parting the South China Sea, Foreign Affairs, Sept / Oct 2016 https://www.foreignaffairs.com/articles/china/2016-07-22/parting-south-china-sea
<8> Brian Kalman, Escalation, Naval Deployments and Geopolitical Conflict in the South China Sea, Global Research, August 16, 2016, http://www.globalresearch.ca/escalation-naval-deployments-and-geopolitical-conflict-in-the-south-china-sea/5541122
<9> Chinese warship seizes US underwater drone in international waters, The Guardian, December 16, 2016, https://www.theguardian.com/world/2016/dec/16/china-seizes-us-underwater-drone-south-china-sea
<10> Amanda Macias, China's top court issued an 'ominous' message about the South China Sea, The Business Insider, August 4, 2016 http://www.businessinsider.in/Chinas-top-court-issued-an-ominous-message-about-the-South-China-Sea/articleshow/53532697.cms
<11> Jayanth Jacob, India for peaceful means to resolve South China Sea row, Hindustan Times, July 13, 2016 http://www.hindustantimes.com/india-news/south-china-sea-india-for-peaceful-means-to-resolve-row-pak-backs-beijing/story-eJ0MxK644YDSafF5C06COI.html
<12> Chinese Foreign Minister Wang Yi meets Narendra Modi, The Hindu, August 13, 2016 http://www.thehindu.com/news/national/chinese-foreign-minister-wang-yi-meets-narendra-modi/article8984735.ece
<13> Chinese media hails India for being 'neutral' over South China Sea, Daily News and Analysis, Aug 17, 2016 http://www.dnaindia.com/india/report-chinese-media-hails-india-for-being-neutral-over-south-china-sea-says-ties-developing-smoothly-2245998
<14> Hu Weijia, India should focus on preserving good economic ties with China, rather than on the South China Sea, The Global Times, August 8, 2016 http://www.globaltimes.cn/content/999240.shtml
<15> Abhijit Singh, Telling China like it is about the South China Sea, Observer Research Organisation Online, https://www.orfonline.org/expert-speaks/telling-china-like-it-is-about-the-south-china-sea/
<16> China Defends Its Submarines In Indian Ocean, NDTV, July 7, 2017 http://www.ndtv.com/world-news/china-defends-its-submarines-in-indian-ocean-says-they-are-legitimate-1429068
<17> Jason Miks, Obama: Consequences if China violates rules and norms, CNN, Sept 4, 2016 http://edition.cnn.com/2016/09/04/us/obama-china-response-zakaria-interview-miks/
<18>Andrew Brown, Rodrigo Duterte Throws a Grenade in Washington’s China Strategy, Wall Street Journal, Sept 7, 2016 http://www.wsj.com/articles/duterte-throws-a-grenade-in-washingtons-china-strategy-1473239479; The Real Reasons Rodrigo Duterte Flip-Flopped On South China Sea, Forbes, January 4, 2017 Disputes http://www.forbes.com/sites/panosmourdoukoutas/2017/01/04/the-real-reasons-rodrigo-duterte-flip-flopped-on-south-china-sea-disputes/#2baf2b8b6361
<19> Report: China May Cross Obama’s ‘Red Line,’ Reclaim Scarborough Shoal, Sputnik News, August 15, 2016 https://sputniknews.com/asia/20160815/1044267318/china-red-line-scarborough-obama.html
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A former naval officer Abhijit Singh Senior Fellow heads the Maritime Policy Initiative at ORF. A maritime professional with specialist and command experience in front-line ...
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