Round The World

New Delhi, 27 July, 2016

South China Sea Imbroglio

BEIJING IN CHOPPY WATERS

By Amrita Banerjee

(School of International Studies, JNU, New Delhi)

After three years of nail-biting anticipation, the Philippines scored a historic legal victory against China in the South China Sea. An international tribunal handed Philippines a virtual clean sweep in a landmark case that could define not only the trajectory of the maritime disputes in the area but also the broader international order.

Notably, the five-member Permanent Court of Arbitration in the Hague unanimously ruled that China had no historic rights over the South China Sea and its claims to the waters within the so called ‘nine-dash line’ were in violation of the UN Convention on the Law of the Sea.

The Court also slammed China for damaging parts of the ecosystem in the Spratly islands --- a contested archipelago --- on account of overfishing and development of artificial islands. Recall, the case was brought to the Court in 2013 by Philippines, centreing on the Scarborough Shoal, but Beijing chose to boycott the proceedings.

To many legal experts surprise, the tribunal not only exercised jurisdiction on the most sensitive items of Philippines’ case but it also issued favourable judgment on the merits of almost all of the South-East Asian country’s arguments.

Despite a majority of Filipinos being ecstatic about this legal and moral judgment, the victory seems hollow as the verdict is legally binding but not necessarily enforceable, especially since China has declared it ‘null and void’. And Philippines lacks the capability to ensure compliance. 

Predictably, Chinese officials went into overdrive to rubbish the credibility of the Hague tribunal. Beijing also questioned the judges competence underscoring  that none were Asian and their understanding of the issues nuances were questionable.

Other Chinese media channels stressed that the entire episode was a cover for enforcing the US “Pivot of Asia” or Rebalance strategy, aimed at China’s containment. 

Nonetheless, the verdict is a huge setback for China. One, it provides a more robust legal pretext for the US, Japan, Australia and other like-minded naval powers to conduct extensive and multi-lateral freedom of navigation operations, which are aimed at challenging Beijing’s claims now flatly rejected by the arbitration body.

Two, the Philippines’ case sets a legal precedent for other South-East Asian countries such as Indonesia and Vietnam, which have threatened to take China to the court over their maritime disputes. Now, Beijing faces the prospect of a virtual class suit by its deeply estranged neighbours.

Three, if China refuses to abide by the verdict, it would openly be branded as an outlaw, thereby undermining its longstanding claim to regional leadership as a responsible power.

Four, Beijing’s double standards have been exposed as on one hand it rejected UNCLOS principles in its claims against Jakarta and on the other, it is expressly invoking the Convention’s provisions vis-à-vis its claims against Japan on the dispute surrounding the fuel-rich Senkaku Islands.

Coming as this does just a few months before China hosts the G20 meeting, the order is both an informal deadline for the necessary détente to begin and also a genuine opportunity for rapprochement between Chinese and other regional leaders.

Clearly, it is an indication that Beijing should begin the hard work of untangling the dangerous mess of overlapping territorial claims. More so as the setback at The Hague comes at a critical juncture in China’s bid to bolster its global economic status. This relates to its long-standing ambition to be accorded recognition as a market economy under the World Trade Organisation by 2016.

However, the European Parliament has voted overwhelmingly in a non-binding resolution to delay a decision in this regard. Against this backdrop, the Chinese leadership is unlikely to allow itself any distraction in the form of a long-drawn confrontation in its backyard.

Further, the ruling also draws attention to the glaring fact of non-ratification of UNCLOS by the U.S. Washington may now have to reconsider ratifying the Convention itself, especially if Beijing decides to withdraw from it and thus undermine support for a global rules based order.

Undeniably, the South China Sea, an important waterway, has emerged as the battle ground for different international players. Add to this, the ruling has brought about a geo-strategic ripple effect in a region which has for a long time been a hot zone for confrontational military manoeuvres.

Recently Taiwan dispatched a warship to the area and China retaliated by allowing two Chinese civilian aircrafts to land at two new airports on the reefs controlled by Beijing in the Spratly Islands and sinking Vietnamese fishing boats.

Earlier China had been creating artificial islands in this region and unilaterally set up an Air Defence Identification Zone (ADIZ) in the East China Sea in 2013. In recent months the US has also sailed a Nimitz-class aircraft carrier and guided missile destroyers into South China Sea. Beijing has threatened to counter-attack if American warships hold exercises in the region.

Importantly, China’s displeasure was also felt when it ended up calling the US and Japan ‘paper tigers’ and ‘eunuchs’ when they insisted Beijing honour and abide by the tribunal’s decision being a part of the UNCLOS. But Washington is using quiet diplomacy to persuade the Philippines, Indonesia, Vietnam and other Asian nations not to move aggressively and capitalize on an international court ruling.

India, conversely, made its stand clear that it did not favour or disfavour any party as such but believed that the verdict should be given ‘utmost respect’ as it aimed to establish the international legal order of the seas and oceans and use of the global commons.

Certainly, New Delhi and Beijing positions over the South China Sea ruling seem to have become another divergence in their relationship that has seen a growing strain recently, especially over India’s membership bid for the Nuclear Suppliers Group (NSG) as well as its push to have Jaish-e-Mohammad Chief Masood Azhar banned. 

Indisputably, China’s actions in the South China Sea are in contravention of international law which is a great leveller among sovereign nation states. However, whether bilateral territorial agreements would necessarily be consistent with UNCLOS, a rules-based order for the global commons of the open seas is an open question. 

Indeed, history bears witness to a more constructive play of diplomatic forces in similar high-stakes inter-state disputes. For instance, although Washington ignored a 1986 verdict of the International Court of Justice, concerted pressure led to the eventual end to US backing for Nicaraguan insurgents.

In sum, rich in resources and traversed by a quarter of global shipping, the South China Sea should be kept free of troubles as an estimated $5 trillion global trade passes every year. The need of the hour is to act rationally so that tensions do not escalate. 

In this case, while the decision in the South China Sea Arbitration is final and binding, there are no clear mechanisms for its implementation. Consequently, any resolution of the conflict has to come down to diplomacy and negotiation. ----- INFA  

(Copyright, India News and Feature Alliance)