Author : Abhijit Singh

Expert Speak Raisina Debates
Published on Jul 26, 2016
Why India is right about its South China Sea stand

Winston Churchill once said that a lie goes halfway around the world before the truth has a chance to get its pants on. The same is true for half-truths and innuendo which always seem to have an edge over tame facts.

In the aftermath of the Permanent Court of Arbitration’s damning verdict against China on the South China Sea (SCS), there is criticism in some quarters that New Delhi’s official statement failed to account for key nuances while outlining its stand on the matter. Some Indian commentators suggested that South Block’s "hasty reaction" to the UN Tribunal’s ruling did deep disservice to New Delhi’s official stand on territorial disputes in its neighbourhood, creating a legal paradox that officials would find hard to defend in the future.

However, as this article explains, insinuations and half-truths only serve to distract attention from India’s larger interest in the Indo-Pacific region that New Delhi’s clear, though conservatively worded, statement on the PCA verdict did well to adequately highlight.

Some observers argue that India’s ‘stock’ response to the SCS verdict — emphasising freedom of navigation, over-flight and the rule of law — betrays a lack of understanding of its legal position on its border disputes. An article in The Wire said that not only did New Delhi’s statement on the South China Sea contradict its considered stand on Sir Creek — where India refuses international arbitration — it also failed to take advantage of inherent contradictions in Beijing’s legal position in the South China Sea policy and its stand on the border with India, where Chinese leaders reject the McMahon Line and a 1914 agreement between British and Tibetan representatives.

Though these arguments appear compelling outwardly, they fail the test of logical reasoning. A closer examination makes it clear that neither the maritime boundary delimitation issue with Pakistan nor India’s border-problems with China have any correlation with New Delhi’s position on the South China Sea.

On Sir Creek, the critics’ assessment that India’s insistence on mutual consultation and a solution in the spirit of the Shimla agreement is incompatible with New Delhi’s SCS statement is both legally and conceptually flawed. While Pakistan’s right to invoke international arbitration is recognised by the law, India cannot be denied a position which it believes leads to a just and equitable solution. What’s more important is Pakistan’s own reluctance to seek the legal remedy. Islamabad hesitates to act on its threat of international arbitration, because of an “opt-out” clause (Article 298) under Part XV of the UNCLOS, which entitles a state to refuse legal adjudication on a matter involving sea boundary delimitation. Needless to say, Pakistan knows that any attempt to elevate the Sir Creek issue to an international dispute will lead New Delhi to invoke the exclusion provision.

But there is also a cost consideration for Pakistan. In the absence of resources and stamina, Islamabad is ill placed to fight a long drawn battle in the court of arbitration. In the China vs. Philippines arbitration at The Hague, Manila spent a small fortune funding the legal process and even reportedly bore Beijing’s share of the arbitrator’s fees. Even if Pakistan takes India to the PCA on Sir Creek, it will find it hard to justify the expenses for a legal process that promises paltry gains. The process could deplete national willpower and state treasury well before the judges begin considering the merits of the case.

Pakistani officials privately acknowledge that the disputed patch of maritime territory in Sir Creek does not offer any immediate benefits — barring fishing rights — which Pakistani fishermen seem to already enjoy, even if at some risk from Indian law-enforcement agencies. The issue thus appears more symbolic than substantive for Pakistan, albeit one where Islamabad won’t cede an inch for political reasons, regardless of the utility of the maritime real estate in question.

Similarly, the argument that Indian support for the South China Sea ruling compromises New Delhi’s position on the McMahon Line appears too far-fetched to be taken seriously. Unlike the demarcating line between India and China that was defined in an agreement between the British and Tibetan representatives, the nine-dash-line was unilaterally declared by the ROC in 1947 as a basis for claiming nearly the entire South China Sea. Nothing about the South China Sea ruling bears remote resemblance to China’s territorial claims in Arunachal Pradesh.

Unsurprisingly, critics of India’s South China Sea statement make much of the tripartite meeting between India, China and Russia on  < class="aBn" tabindex="0" data-term="goog_951537668">< class="aQJ">April 18 this year, where New Delhi is said to have signed joint communiqué that supported China’s stand for a multilateral solution. The document released did not refer to the Philippines vs. China case pending before the Permanent Court of Arbitration, even though it did mention the UN Convention on the Law of the Sea (UNCLOS). The recognition of the Declaration on the Conduct of Parties in the South China Sea (DOC) in the RIC communiqué, critics say, takes away the right of involved parties to legal recourse under the UNCLOS.

This is again a distortion of the truth. The DOC like many other international agreements is a political pact and non-statutory in nature. Its provisions are meant to facilitate a peaceful and amicable resolution of disputes between China and ASEAN countries. Like any other political agreement, it does not require states to renounce their lawful rights of arbitration. While India must indeed share blame for allowing Beijing to spin the RIC communiqué to claim New Delhi’s support on the matter of the South China Sea, it isn’t guilty of adopting contradictory positions in the joint statement (recognising the DOC) and its South China Sea stand (emphasising peaceful dispute resolution under UNCLOS). Legal opinion is unanimous that Annexure VII of UNCLOS requires no political endorsement as the statute stands by itself and overrides multilateral agreements and their recommended means of dispute resolution.

The real question for Indian commentators is whether the relentless focus on the presumed dissonance that exists in the Indian political establishment on its border disputes undermines India’s wider interests in maritime Asia. The truth is that India’s position on the South China Sea is intimately linked to its Indo-Pacific interests and its dominant power status in the Indian Ocean. Not only must India support the arbitral tribunal’s findings as a means to safeguard its trade and energy interests in the Western Pacific, it must use the ruling to showcase its commitment to international maritime law. More importantly, India must be aware that a consolidation of Chinese maritime power in South East Asia has a direct bearing on the PLAN’s power projection plans in the Indian Ocean. From an Indian perspective, China’s growing military presence in the South China Sea has a destabilising effect on the wider Asian littorals, as it exacerbates existing power asymmetries. By taking a principled stand on the territorial disputes, India must contribute to the restoration of strategic equilibrium in the Indo-Pacific.

The endorsement of international law in the South China Sea dispute is a prerequisite for New Delhi to meet its growing maritime ambitions in Asia. But India must be careful not to pontificate to China the virtues of responsible international behaviour. However, the position adopted vis-à-vis the Arbitral Tribunal’s judgment deserves praise because it was calibrated to stress India’s concerns over freedom of navigation in the South China Sea, and yet neither preachy nor patronising towards China.

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Abhijit Singh

Abhijit Singh

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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