Debate: Galwan Is a Chapter in China’s Tireless Pursuit of ‘Lost’ Territory

Since the beginning of this decade, there is little in China’s approach towards its territorial disputes to suggest that China has a limited, rather than a maximalist, approach to recovering what it considers to be its lost territories.

Prem Shankar Jha’s piece in The Wire and the subsequent interview with Happymon Jacob on the Galwan standoff displayed a nuanced understanding of the India-China border issue but a troubling reading of China’s approach to territorial disputes.

Jha’s views do have the increasingly elusive quality of rising above party politics to define India’s national interest.

With regard to the Ladakh crisis he unequivocally identifies not rushing into war with China as India’s primary interest. Given that jingoism has hijacked policy and popular narratives, this suggestion is not misplaced.

However, the flaw in Jha’s perception of the situation is that he believes that:

(a) China has limited interests in Ladakh,
(b) it is India’s sole responsibility to create conditions for peace with China, and
(c) China’s asymmetric power leaves India with little military or diplomatic manoeuvrability in the present crisis.

While the last conclusion might be debatable, it leads to the wishful conclusion that once India recognises Chinese dominance as a fait accompli, then there is a real chance for a peaceful border in Ladakh. He advocates that India should appreciate China’s concerns in Ladakh vis-a-vis protection of the CPEC corridor that runs very close to rapidly developing Indian military infrastructure in the region.

Also read: Stalled China-Pakistan Economic Corridor Projects will be Revived

For China, CPEC opens up a dependable alternate route to gulf oil supplies incase the US blockades the China’s eastern seaboard in the South China Sea. Jha argues that if India gets comfortable with the CPEC running through the disputed territory and doesn’t harden its position on the ground especially in Daulat Beg Oldi, and then the border dispute in the eastern Ladakh will actually lose its significance for China. 

Jha’s assumptions of Chinese strategy are informed by an outdated understanding of Chinese foreign policy behaviour between 1980-2000 that prioritised stability as a primary objective in its relations with its neighbours and major powers. 

Since the beginning of this decade, there is, however, little in China’s approach towards its territorial disputes to suggest that China has a limited, rather than a maximalist approach to recovering what it considers to be its lost territories. Chinese approach in the South China Sea (SCS) is instructive in this regard.

In the SCS, China has moved in a span of 30 years from a declared policy of ‘shelving territorial disputes for joint development of marine resources’ to now claiming the entire SCS as its own sovereign territory, including the corresponding airspace. The trajectory of this approach is similar to India-China relations since the 1990s.

Also read: Reports on Chinese Behaviour Across LAC Are Exaggerated, Untrue: Lt Gen Narasimhan

Through the 1990s, China focused on economic growth, consistently followed a policy of ‘good neighbourliness’ putting territorial disputes on the back-burner. In the SCS, this translated to a low-intensity low-cost creeping occupation of marine features while increasing economic cooperation ASEAN nations.

In 2002, China and ASEAN signed the first SCS Code of Conduct (CoC) as non-binding agreement to manage maritime and territorial conflicts in the region. However, till today the CoC has not been scaled up to a binding agreement or produced a multi-lateral agreement on the geographical extent of territorial claims. Meanwhile, Chinese militarisation of the SCS has progressed apace and its territorial claims have expanded to include the entire sea.

Similarly, in the 1990s India and China concluded landmark agreements of 1993 and 1996 facilitated by the Chinese policy of avoiding conflict with neighbours. Since 1993, the major gain of the bilateral negotiations with China has been  the stability on the border and an exponentially improved but skewed economic relationship.

However, like in SCS, the long interlude of stability did not build trust to enable political negotiations on competing territorial claims. Despite several rounds of Special Representative talks and the working groups, India and China have not yet exchanged maps of the western and eastern sectors of the disputed border.

Now, it would seem that China has got a jump on India by pushing its claims in Galwan at the cost of the stability maintained on the border through carefully crafted CBMs.

Why has China risked decades of stable border management? 

Since the beginning of this decade, China’s approach towards territorial disputes has undergone a shift. China now seeks to alter the status quo to force a solution in China’s favour. This irredentism arises, not from specific calculations of particular disputes, but from a shift from the Dengist principle of ‘bide your time and hide your capabilities’ to the present assertive policy of ‘achieving national greatness’.

Since the mid-2000, veteran foreign policy officials like Ambassador Wu Jianmin associated with the Dengist policy of building partnerships with neighbouring countries were seen in China as obstructing China’s rise. China now viewed itself  not as rising but as returning power, i.e., returning to claim its rightful place at the top of the regional and global hierarchy.

This shift is initially perceptible in Hu Jintao’s 2004 ‘New Historic Missions of the PLA’ that envisaged consolidating China’s  threatened territories from a position of strength. Under Xi Jinping, both policy and public opinion is visibly in favour of a muscular approach with use of force in territorial disputes not just a legitimate but preferred option. 

Here, China has all but abandoned its pursuit of the image of a responsible power that it sought till the last decade, except in defence of the global capitalist system. In this decade China has already altered the ground situation SCS, East China Sea and most recently in Hong Kong

Also read: The Contentious International Waltz Over the South China Sea

 In the SCS, since 2012, China has adopted highly visible incremental actions, often in the teeth of regional and US displeasure, to enforce its expanded claims. In 2012, China established Sansha city on Woody Island in the Paracel archipelago, claiming to nearly two million square kilometres of the SCS. Sansha, a brand new city of less than 2,000 people, is nearly 400 kms  away from Hainan, China’s southernmost province.

Aerial view of Yongxing Island (Woody Island), the seat of Sansha. Photo: Paul Spijkers – http://www.airliners.net/photo/-/-/1527330/L, GFDL, https://commons.wikimedia.org/w/index.php?curid=51928254

China now patrols the stretch between Hainan and Sansha as its customs territory. Sansha hosts China’s Maritime Milita entrusted with enforcing Chinese territorial claims within its nine-dashed line. Earlier this year, China upgraded Sansha to a prefecture level city further entrenching its claims.

Similarly, in Mischief Reef, off the coast of Philippines, China has created artificial islands by dredging the sea floor. These islands now have an air strip capable of landing fighter jets, advanced radars and SAMs.  It took China less than five years to create this capability.

The Google Maps pin, pointing to Mischief Reef.

China  is now in a formidable position to defend its sea lanes of communication through Malacca Straits and deny freedom of navigation to other littoral countries as well as the US ships in the region.

The Chinese push into Doklam and Galwan is a part of the same  access-denial strategy. Galwan may have local triggers of India’s increased military infrastructure in Ladakh but it is following a pre-determined playbook of aggressively  staking claims on the ground, raising the costs of conflict to unacceptable levels for its neighbours, to force a solution in China’s favour.

Jha seems quite unconcerned with the Chinese asserting hegemony over the South China Sea and makes no noticeable link between the Chinese approach in SCS and in the Himalayas, except to flag China’s anxieties.

He argues that India must not see Chinese actions in Galwan as aggression but as a strong signal of China’s displeasure with India’s recent policies, including developing a strategic partnership with the US.

I would argue Galwan is not only a signalling exercise. China has changed the ground situation. If a diplomatic solution is not forthcoming, India will be forced to recalibrate either its political position on the LAC or undertake a costly military response to restore status quo ante.

Jha disagrees with the dominant view that PM’s Modi’s June 19 statement has weakened India’s territorial claims in Ladakh. He instead calls it an accurate depiction of the ground reality as there is no mutual agreement on the border and only contending claims lines in a ‘grey zone’. 

Also read: Narendra Modi Didn’t Watch His Words on Chinese Intrusion So PMO ‘Censors’ Official Video

The Galwan incident, Jha asserts, took place in the disputed territory and not in Indian territory, therefore Modi’s statement that no one entered Indian territory is factually correct. This is a nuanced bit of sophistry, advancing a bad fact.

While the LAC is not mutually agreed upon, however that does not imply that there is no mutual operational understanding of where the LAC runs. If that were the case, the border management agreements of 1993, 1996, 2005 and 2013 would have been impossible to negotiate and implement. In fact one of the key component of these agreements is to resolve the competing claims of the LAC at specific points, which China has consistently refused to do.

Satellite view of the Galwan valley and Shyok river. Image: The Wire/Google Maps

With Galwan, China has unilaterally abandoned the political commitment to maintaining a stable border.  While the border was unresolved, mutual faith in a stable border did make cooperation possible between India and China despite the increasing frequency of incursions/incidents.

For example, before the pandemic hit, the environment ministers of eight Himalayan nations, including India and China were scheduled to meet in Kathmandu to discuss a concerted approach to environmental governance of the Himalayas. That is clearly not a possibility anymore, till trust is restored on the heights.

Also read: Don’t Blame Modi for ‘No Intrusion’ Claim, Blame Him for Dramatic Shift in China Policy

Unfortunately, the most detrimental impact of this crisis will be on the fragile Himalayan ecology already reeling under militarisation on both sides of the border. Lamentably, Chinese actions have ensured that an Indian response hardening its defences all along the LAC, leading to further militarisation. Again, this is the same trajectory that we observe in the SCS, with Chinese dredging causing destabilisation of the seabed ecology followed by increased deployment and military activity by littoral nations. 

Jha’s arguments are based on his long held view that the 1962 war was provoked by India’s ill-advised forward policy.  He is right in suggesting that since the 1962 debacle, political and popular narratives of Chinese betrayal have clouded Indian perceptions often demonising Chinese actions across the board without much appreciation for context.

He fears that the June 15 Galwan incident should not become another chapter in this history leading to an unnecessary clash.

However, one must also not be clouded by expectation of pacifist/limited behaviour from China that is increasingly comfortable with deploying military force both internally and externally.

In the past 70 years, PRC has occupied Tibet and is now posing a major threat to choking off the water resources of South Asia through its dam projects. India is not merely defending a territory where ‘not a blade of grass grows’ but its ability to be a governing partner in the Himalayas. 

Sonika Gupta is associate professor, IITM China Studies Centre.

China Is Building Military Facilities in Disputed South China Sea

According to the Asia Maritime Transparency Initiative, satellite images show facilities being built on the Spratly Islands, contrary to China’s denial.

According to the Asia Maritime Transparency Initiative, satellite images show facilities being built on the Spratly Islands, contrary to China’s denial.

Construction is shown on Fiery Cross Reef, in the Spratly Islands, the disputed South China Sea in this June 16, 2017 satellite image released by CSIS Asia Maritime Transparency Initiative at the Center for Strategic and International Studies (CSIS) to Reuters on June 29, 2017. Credit: Reuters/CSIS/AMTI DigitalGlobe

Washington: China has built new military facilities on islands in the South China Sea, a US think tank reported on Thursday, a move that could raise tensions with Washington, which has accused Beijing of militarising the vital waterway.

The Asia Maritime Transparency Initiative (AMTI), part of Washington’s Center for Strategic and International Studies, said new satellite images show missile shelters and radar and communications facilities being built on the Fiery Cross, Mischief and Subi Reefs in the Spratly Islands.

The United States has criticized China’s build-up of military facilities on the artificial islands and is concerned they could be used to restrict free movement through the South China Sea, an important trade route.

Last month, a US Navy warship sailed within 12 nautical miles of Mischief Reef in a so-called freedom of navigation operation, the first such challenge to Beijing’s claim to most of the waterway since US President Donald Trump took office.

Construction is shown on Mischief Reef, in the Spratly Islands, the disputed South China Sea in this June 19, 2017 satellite image released by CSIS Asia Maritime Transparency Initiative at the Center for Strategic and International Studies (CSIS) to Reuters on June 29, 2017. Credit: Reuters/DigitalGlobe

China has denied US charges that it is militarising the sea, which also is claimed by Brunei, Malaysia, the Philippines, Taiwan and Vietnam.

Trump has sought China’s help in reining in North Korea’s nuclear and missile programs, and tension between Washington and Beijing over military installations in the South China Sea could complicate those efforts.

China has built four new missile shelters on Fiery Cross Reef to go with the eight already on the artificial island, AMTI said. Mischief and Subi each have eight shelters, the think tank said in a previous report.

In February, Reuters reported that China had nearly finished building structures to house long-range surface-to-air missiles on the three islands.

On Mischief Reef, a very large antennae array is being installed that presumably boosts Beijing’s ability to monitor the surroundings, the think tank said, adding that the installation should be of concern to the Philippines due to its proximity to an area claimed by Manila.

A large dome recently was installed on Fiery Cross and another is under construction, indicating a sizeable communications or radar system, AMTI said. Two more domes are being built at Mischief Reef, it said.

A smaller dome has been installed near the missile shelters on Mischief, “indicating that it could be connected to radars for any missile systems that might be housed there,” AMTI said.

“Beijing can now deploy military assets, including combat aircraft and mobile missile launchers, to the Spratly Islands at any time,” it said.

Philippines Wants Formal Talks with China After Maritime Dispute

Fidel Ramos, Philippines special envoy to China visited Hong Kong in an attempt to rekindle ties, signalling President Duterte willingness to engage with China.

Former Philippine President Fidel Ramos speaks to journalists during a trip to Hong Kong, China after the Hague court's ruling over the maritime dispute in South China Sea,

Former Philippine President Fidel Ramos speaks to journalists during a trip to Hong Kong, China after the Hague court’s ruling over the maritime dispute in South China Sea, August 9, 2016. Credit: Reuters/Tyrone Siu

Hong Kong: The Philippines special envoy to China, Fidel Ramos, said on Friday that Manila wants formal discussions with China to explore pathways to peace and cooperation after a meeting with former Chinese deputy foreign minister Fu Ying.

Ramos was speaking near the end of a trip to Hong Kong undertaken in an attempt to rekindle ties with China, which have been soured by a maritime dispute in the South China Sea.

In a statement signed by Ramos and Fu, they said their “informal discussions focused on the need to engage in further talks to build trust and confidence to reduce tensions to pave the way for overall cooperation.”

The statement added that China welcomes Ramos to visit Beijing at some point as the special envoy of Philippines President Rodrigo Duterte, who took office in June and has signalled a greater willingness to engage with China than his predecessor.

“It’s not really a breakthrough in a sense that there is no ice here in Hong Kong to break but the fish we eat… are cooked in delicious recipes,” Ramos told reporters, having earlier referred to his visit as a fishing expedition.

An arbitration court in the Hague ruled on July 12 that China had no historic title over the busy waterway and had breached the Philippines’ sovereign rights there. The decision infuriated Beijing, which dismissed the court’s authority to rule on the matter.

China claims almost the entire South China Sea, through which more than $5 trillion of trade moves annually. Brunei, Malaysia, the Philippines, Taiwan and Vietnam also have claims in the sea, believed to be rich in energy deposits.

The statement added that both Beijing and Manila would seek to promote fishing cooperation, marine preservation and tourism though it made no specific mention of the South China Sea or the ruling. No time frame was given for possible talks.

Ramos said neither side asserted their own sovereignty over disputed areas in the South China Sea such as the Scarborough Shoal and Mischief Reef.

“There was no discussion on that particular aspect except to mention equal fishing rights,” said Ramos.

The statement said the discussions were carried out in a private capacity, and Ramos said later other back channel discussions with China were underway.

China seized the Scarborough Shoal in 2012, denying Philippine fishermen access. This was among the factors that prompted Manila to seek arbitration.

Ramos was Philippines president from 1992 to 1998, when China occupied the submerged Mischief Reef.

(Reuters)

Philippines Rejects Bilateral Talks with Beijing Over South China Sea Dispute

Foreign minister Perfecto Yasay said Yi had proposed bilateral talks but only on issues “outside, or (in) disregard of, the arbitral ruling,” which he declined because it was not in the Philippines’ national interests.

Philippine Foreign Secretary Perfecto Yasay gives a brief statement regarding the tribunal ruling on the South China Sea during a news conference at the Department of Foreign Affairs headquarters in Pasay city, metro Manila, Philippines July 12. Credit: Reuters/Romeo Ranoco

Philippine foreign secretary Perfecto Yasay gives a brief statement regarding the tribunal ruling on the South China Sea during a news conference at the Department of Foreign Affairs headquarters in Pasay city, metro Manila, Philippines July 12. Credit: Reuters/Romeo Ranoco

Manila: The Philippines has turned down a Chinese proposal to start bilateral talks, its foreign minister said on July 19, because of Beijing’s pre-condition of not discussing a court ruling that nullified most of its South China Sea claims.

Perfecto Yasay said he had met his Chinese counterpart Wang Yi on the sidelines of a summit of Asian and European leaders on the weekend and after raising the topic of last week’s ruling, it became clear that was a no-go area.

China has angrily rejected the verdict by the Permanent Court of Arbitration and the initial case as illegal and farcical. It has repeatedly said it will not change its approach or its sovereignty claims in the South China Sea.

“They said if you will insist on the ruling, discussing it along those lines, then we might be headed for a confrontation,” Yasay said during an interview with the news channel of broadcaster ABS-CBN.

“But I really honestly feel that this is something they have to make on a public basis but I also sensed there was room for us to talk very quietly using backdoor channelling.”

Yasay said Yi had proposed bilateral talks but only on issues “outside, or (in) disregard of, the arbitral ruling,” which he declined because it was not in the Philippines’ national interests.

Yasay’s account of the meeting highlights the challenge ahead for the Philippines, a US ally, in getting China to comply with the decision which has ramped up tensions in the vital trade route.

The ruling laid out what maritime rights Manila had and where Beijing had violated its rights under international law, including its massive construction works on Mischief Reef.

Manila wanted to enforce the points of the complex ruling step-by-step but as a priority had asked China to let its fishermen go to the Scarborough Shoal without being harassed by its coastguard, Yasay said.

China‘s coastguard was preventing Filipino boats from fishing around the hotly contested Scarborough Shoal, fishermen and officials said on July 15, and China‘s air force has released pictures showing bombers recently flying over the area.

China claims most of the South China Sea, through which more than $5 trillion of trade moves annually. Brunei, Malaysia, the Philippines, Taiwan and Vietnam have rival claims.

Yasay said hoped the ruling would lead to other Southeast Asian countries issuing a joint statement, adding that it could help neighbours also locked in disputes with China.

“We are not yet engaged in bilateral talks with anyone,” he said. “But I would like to see how we can pursue certain provisional arrangements so that it would lead to opening of bilateral or multilateral engagements should that be necessary.”

(Reuters)

South China Sea Case: A Guide to the Verdict

The PCA ruling may be binding but territorial claims will continue to aggravate tensions in the area, with Beijing likely to ask whether continued adherence to UNCLOS is in its national interest.

The PCA ruling may be binding but territorial claims will continue to aggravate tensions in the area, with Beijing likely to ask whether continued adherence to UNCLOS is in its national interest.

Philippine Foreign Secretary Perfecto Yasay gives a brief statement regarding the tribunal ruling on the South China Sea during a news conference at the Department of Foreign Affairs headquarters in Manila. Credit: REUTERS/Romeo Ranoco

Philippine Foreign Secretary Perfecto Yasay gives a brief statement regarding the tribunal ruling on the South China Sea during a news conference at the Department of Foreign Affairs headquarters in Manila. Credit: REUTERS/Romeo Ranoco

The Hague: The tribunal constituted by the Permanent Court of Arbitration in The Hague to adjudicate the South China Dispute has decisively ruled in favour of the Philippines, stanching China’s objections on its jurisdiction to hear the matter.

The verdict, however, is expected to change very little on the ground. China has said the verdict’s award is “null and void and has no binding force. China neither accepts nor recognises it.”

Five significant conclusions emerge from the PCA’s 500-page verdict.

  1. Beijing has no legitimate claim to exercise “sovereign rights” within its nine-dash-line in the South China Sea.
  2. The maritime region around Mischief Reef and Second Thomas Shoal are within the Exclusive Economic Zone of the Philippines, granting it the sole right to exploitation of natural resources.
  3. China has a positive obligation not to impede Filipino fishing vessels from exercising their EEZ rights, and to prevent Chinese fishermen from exploiting the same resources.
  4. China’s island building activities and conduct in the Mischief Reef — not the Second Thomas Shoal — constitute a violation of its obligations under the UN Convention on the Law of the Sea (UNCLOS) to preserve the marine ecosystem and settle maritime disputes peacefully.
  5. The UN Convention on the Law of the Sea enjoys absolute primacy as the arbiter of maritime disputes.

These findings lead the way to four distinct geopolitical consequences for the South China Sea, and indeed, Asia.

  1. Since the PCA has made no pronouncement on the validity of the nine-dash-line, China will harden its sovereign claim to the territory under question.
  2. While Chinese law enforcement vessels must not impede the activity of Filipino fishing vessels in the EEZ, there is no bar on their continued (and even enhanced) presence in the area, because the PCA has not settled the maritime boundary.
  3. With a view to invoke Article 298 (1) (b) of UNCLOS, which exempts disputes over military activities from the remit of the tribunal, China will pursue the militarisation of Mischief Reef just as the Philippines has done with Second Thomas Shoal.
  4. To escape its obligations under UNCLOS, China may consider withdrawing from the convention citing its national interests in the South China Sea. As a corollary, the impact of UNCLOS decisions on a powerful maritime state like China will further discourage the United States from ratifying the law of the sea treaty.

Needless to say, all four consequences are potentially destabilising for the region.

The five judges who made up the arbitral tribunal at the PCA in the Philippines v China case (from left to right): udge Jean-Pierre Cot (France), Judge Stanislaw Pawlak (Poland), Judge Thomas A. Mensah (President) (Ghana), Judge Rüdiger Wolfrum (Germany), Professor Alfred H. A. Soons (Netherlands). Credit: PCA

The five judges who made up the arbitral tribunal at the PCA in the Philippines v China case (from left to right): udge Jean-Pierre Cot (France), Judge Stanislaw Pawlak (Poland), Judge Thomas A. Mensah (President) (Ghana), Judge Rüdiger Wolfrum (Germany), Professor Alfred H. A. Soons (Netherlands). Credit: PCA

Virtually all of the Philippines’s claims have been accepted by the arbitral tribunal in this dispute, but the verdict comes with an important rider. The tribunal has made it clear that “nothing in the award should be understood to imply a view on questions of land sovereignty”.

The decision of the tribunal was unanimous, and signed by all five arbitrators. Judge Thomas A. Mensah of Ghana, a leading practitioner of international maritime law, presided over the tribunal. His co-arbitrators included Judge Jean-Pierre Cot (France), Judge Stanislaw Pawlak (Poland), Professor Alfred H.A. Soons (the Netherlands) and Judge Rudiger Wolfrum (Germany). While Judge Wolfrum was appointed by the Philippines, the other four arbitrators were selected by the president of the International Tribunal on the Law of the Sea (ITLOS).  Interestingly, Judge Mensah was appointed as president of the arbitral tribunal after his predecessor M.C.W Pinto, a Sri Lankan jurist, chose to relinquish the post in 2013. MCW Pinto’s stepping down, it would seem, was not a matter of routine. Ahead of the ruling, Pinto suggested that the tribunal lacked the “vital element of consent” from China, which is the “basis of its jurisdiction.”

While the “historic rights” claimed by China have been found to have been extinguished by provisions of the UNCLOS, the legitimacy of the nine-dash-line is itself a matter of open debate. Beijing has been precluded from asserting the attendant rights of fishing and oil exploration in the South China Sea, but not against asserting territorial control over the islands within the nine-dash-line.

“This tribunal is not empowered to address the question of sovereignty […] over Spratly Islands and Scarborough Shoal,” it has ruled.

Instead, it has simply asserted that maritime features like the Mischief Reef and Second Thomas Shoal do not generate an EEZ or continental shelf by itself. Mischief Reef is occupied and controlled by China, a fact that is not going to change by virtue of this ruling.

South China Sea claims maop. Credit: wikimedia

South China Sea claims maop. Credit: wikimedia

Any attempt by China to impose a moratorium on fishing in Philippines’ EEZ violates its obligations under UNCLOS, the tribunal has held. In particular, the M/V Veritas Voyager incident – when Chinese surveillance patrols approached a Philippines oil exploration vessel and ordered it to leave the area – has been flagged by the PCA, suggesting that China has no mandate to stop or seize foreign vessels in the area. But the tribunal has unequivocally said that it cannot hold China in violation of UNCLOS merely on account of the “presence of Chinese law enforcement vessels” at both Mischief Reef and Second Thomas Shoal.

Is it realistic to believe that, after this verdict, Filipino fishermen and oil explorers will readily venture into an area heavily populated by Chinese patrols? The Philippines government could of course escort their vessels, but this would dramatically raise the possibility of an international incident. Similarly, the tribunal has imposed a positive obligation on China to prevent their fishermen from entering the Philippines EEZ. Is it likely that Chinese state vessels in the area will watch on while their fishermen are swatted away by Philippine patrols?

On the issue of island construction and “land reclamation” by China, the PCA tribunal has gone for the jugular. Tuesday’s verdict chastises Beijing for its utter disregard for South China Sea’s rich marine ecology and the source of livelihood of fishermen in the region. Even so, it has relied on China’s own assertion that island building in the Mischief Reef is entirely dedicated for “civilian purposes”. Should activities in the said South China Sea islands relate to military conduct, the matter would be outside the remit of the arbitral tribunal (Article 298 (1)(b) of UNCLOS) — a fact it has been careful to note in the case of Second Thomas Shoal, currently occupied by Philippines. It is now entirely foreseeable that China will now attempt to militarise the “reclaimed islands”, with a view to keep compulsory dispute settlement out of the picture.

In an immediate reaction to the ruling, the United States said:

“When joining the Law of the Sea Convention, parties agree to the Convention’s compulsory dispute settlement process to resolve disputes… As provided in the convention, the tribunal’s decision is final and legally binding on both China and the Philippines.  The United States expresses its hope and expectation that both parties will comply with their obligations.”

We encourage claimants to clarify their maritime claims in accordance with international law — as reflected in the Law of the Sea Convention — and to work together to manage and resolve their disputes.  Such steps could provide the basis for further discussions aimed at narrowing the geographic scope of their maritime disputes, setting standards for behaviour in disputed areas, and ultimately resolving their underlying disputes free from coercion or the use or threat of force.

That the PCA ruling in the South China Sea dispute is binding on China is beyond doubt. But what exactly does it bind China to? China – whose foreign minister has described the arbitration as “a political farce staged under legal pretext” – has been asked to stop civilian activities in the EEZ that belongs to the Philippines, and stripped of all exploitation rights within a sizeable portion of the ‘nine-dash-line’. In reality, territorial claims will continue to aggravate tensions in the area, with Beijing likely pondering whether continued adherence to UNCLOS is in its national interest.

In fact the damaging economic consequences of the verdict — all international contracts that Chinese companies have signed for oil exploration will now have to be rescinded — will likely fuel Beijing’s hostile policies towards its maritime neighbours. The verdict from the Permanent Court of Arbitration is well-intentioned on paper, with a view to uphold the treaty rights of the Philippines. In practice, however, it is unlikely to mitigate the continued antagonism between major maritime players in the South China Sea.

Arun Mohan Sukumar is at the Observer Research Foundation, New Delhi. He is covering the South China Sea dispute at the Permanent Court of Arbitration in The Hague at the invitation of The Wire.

His earlier dispatches:

China, and Asia, Brace for Diplomatic Fallout from South China Sea Case

Beyond Claims, South China Sea is Battleground for US, Chinese Exceptionalism

 

China, and Asia, Brace for Diplomatic Fallout from South China Sea Case

One day to go for Hague tribunal verdict that will cause ripples across East Asia

One day to go for Hague tribunal verdict that will cause ripples across East Asia

South_China_Sea_claims_mapThe Hague: When the Permanent Court of Arbitration (PCA) delivers its verdict on the South China Sea dispute here tomorrow, it is likely to stay clear of three sensitive issues.

First, the tribunal will not rule on the validity or legality of the ‘nine-dash-line’ (shown in the map above as the solid red claim line) that has been invoked by China to assert its “sovereignty” over islands and other maritime features in the South China Sea. Second, the PCA will not assess whether new “islands” created by China through sand dredging and land reclamation since 2013 constitute sovereign territory. And third, the arbitral tribunal will make no attempt to delineate a maritime boundary that is acceptable to China and the Philippines.

Instead, the PCA on Tuesday will answer two narrow questions:

  • First, whether China has certain “historical rights” that grant it absolute entitlements in the South China Sea; and
  • Second, if maritime features in the sea like Mischief Reef, Fiery Cross Reef and Scarborough Shoal are “low-tide elevations” or “rocks” within the meaning of the UN Convention on the Law of Sea (UNCLOS).

The tribunal’s decision may not set headlines on fire, but it will force a legal imprimatur on the resolution of future South China Sea disputes, not just between China and the Philippines, but among all littoral states that have staked a claim to the islands in the region – including Malaysia, Brunei and the Philippines.

This is precisely the outcome that China wants to avoid, which explains why Beijing has made no formal representation before the arbitral tribunal since proceedings began in July 2013.

What Philippines wants

The Philippines government, led then by a belligerent president Benigno Aquino III, approached the Permanent Court of Arbitration in January 2013 with a simple request: uphold plainly Manila’s rights under UNCLOS with respect to its territorial sea, exclusive economic zone and continental shelf.

UNCLOS – the international treaty governing maritime matters – grants countries a 200 nautical mile exclusive economic zone, even though a state’s territorial waters extend only as far as 12 nautical miles.

In other words, the Philippines sought to affirm its sovereign economic rights on any maritime feature in South China Sea that extended upto 200 miles from its shores. To support this claim, Manila argued that the Spratly Islands (which China refers to as the ‘Nansha Islands’) and other assorted reefs and shoals in the area — which are occupied by China, the Philippines, Taiwan, Malaysia and Vietnam — are merely rocks or low-tide features that do not confer any sovereign rights to the occupying state. The governance of marine resources and the exploitation of oil and gas reserves in the South China Sea, the Philippines insisted, must be based on the clear rules set by the UN Convention on the Law of the Sea.

This may seem like an innocuous claim, but its political significance cannot be overstated. Should the tribunal use the provisions of UNCLOS to adjudicate the South China Seas dispute, it will deal a fatal blow to China’s “nine dash line”. The “nine dash line”, claimed officially by China as its outer maritime boundary in the area since 1947, has no basis in the UN regime. It was an eminently political product, with little clarity in Beijing’s policy statements on what the “line” actually signified.

The Chinese position

Unsurprisingly, the Chinese government has claimed that this is a dispute over territorial sovereignty, which the Permanent Court of Arbitration has no remit to examine. If the maritime boundaries in the South China Sea themselves have not been determined, this argument goes, how can an arbitral tribunal identify the Philippines’ Exclusive Economic Zone?

Beijing has also insisted that the “unilateral” conduct of the Philippines in pushing for “compulsory dispute settlement” is barred by several bilateral agreements on the South China Sea. Since the sovereign rights over marine resources in the sea were never negotiated between both parties, the dispute should be heard by a third party after all political options are exhausted, China has asserted.

Though UNCLOS envisages several methods of dispute resolution, most disputes between parties have been handled by the PCA.

To protest the “encroachment” of its mandate by the PCA, China has refused to participate in the arbitration. Between July and November 2015, the PCA held seven hearings on the jurisdiction and merits of the case, sending the Chinese Embassy in The Hague a daily transcript of the proceedings. In response to the arbitration, China’s foreign ministry put out two position papers highlighting its claims.

Clash of law and geopolitics 

In October 2015, however, the tribunal dismissed China’s position that it lacked the jurisdiction to adjudicate the matter, stating that the dispute is centrally about the “interpretation of provisions” in UNCLOS.

Should UNCLOS become the touchstone for distributing maritime rights and responsibilities in the South China Sea, any discussion about the nine-dash-line would be rendered academic. What the Philippines would lack in political clout to demolish, it would accomplish by legal means. This scenario looks increasingly likely: in May 2016, China’s vice foreign minister Liu Zhenmin told a US media delegation that “the award will probably be in the Philippines favour”. Beijing has also made it amply clear that it will not accept the July 12 ruling.

The Philippines, under a new president who does not share his predecessor’s affection for the United States, has realised the folly of escalating a political dispute with China by legal means.

Days before the verdict, President Rodrigo Duterte sought “direct talks with China as soon as possible”. The PCA’s verdict may be a setback for Beijing but it will irreparably set back relations between both parties, with serious consequences for the stability of the region. In the process of staking its claim, the Philippines may have already risked ties with Taiwan, which is concerned that the tribunal’s verdict may bear adversely on the legal character of the Itu Aba island in the Spratlys, under its control.

As former diplomat Dai Bingguo highlighted during his recent visit to Washington D.C., it was the United States under General Douglas MacArthur that helped the (then) Republic of China reclaim the Nansha Islands after World War Two. If political exigency drove the US to support China then, it is now nudging the Philippines towards a confrontation with Beijing that Manila cannot afford.

In the aftermath of the pronouncement, India too would do well to maintain a careful distance from the arbitral ruling — this is a dispute characterised by strong legal claims on both sides, but brought to a head prematurely by the geopolitical churn in Asia. It would be unwise for New Delhi to be caught in its currents.

Arun Mohan Sukumar is at the Observer Research Foundation, New Delhi. He is covering the South China Sea dispute at the Permanent Court of Arbitration in The Hague at the invitation of The Wire.

See also:

Beyond Claims, South China Sea is Battleground for US, Chinese Exceptionalism