Tha Hague ruling on South China sea - what does it mean for India?

The verdict of the Permanent Court of Arbitration in The Hague on July 12, 2016 in the case filed by The Philippines against China may prove to be a turning point in the long-festering multi-state maritime territorial disputes in the South China Sea.

Background

The Philippines, a claimant in the South China Sea maritime territorial dispute along with China, Vietnam, Malaysia and Brunei, and the unrecognized claimant Taiwan, moved the Court in January 2013 seeking arbitration on its 15-point submission (contentions against China). The submission can be classified in four major types:

•   China’s historic rights in the Sea and validity of its ‘nine-dash line’,
•   the status of features in the disputed waters,
•   the lawfulness of Chinese actions,
•   and the harm caused by China to the marine environment as well as its aggravation of the dispute.

Although the South China Sea region’s maritime territorial disputes are long-standing, The Philippines moved the Court only in January 2013. The immediate context of this move was China’s increased military and non-military activities in the region such as patrolling, military infrastructure building, and exploitation of mineral resources, and other civil and commercial activities.

China was not prepared for this smart move by The Philippines. It has all along favoured a resolution of the disputes on a bilateral basis, and shunned the route of international arbitration. Here, it should also be underlined that The Philippines did not approach the Court for settling the sovereignty issue per se. This needs to be highlighted because China refused to participate in the proceedings in any manner, contending that the Court had no jurisdiction on the sovereignty issue. However, the fact remains that legally the adjudication sought was not for settling the sovereignty issue.

The smartness of the move by The Philippines lay in the fact that by seeking a ruling under the United Nations Convention on the Law of the Sea (UNCLOS) on the legal questions and issues germane to the maritime territorial dispute in the South China Sea, Manila had pulled the rug from under China’s sovereign claims. The award is indeed a resounding legal victory for The Philippines. The verdict was largely along expected lines, perhaps more favourable to The Philippines and more detrimental to Chinese interests than predicted. The entire basis of Chinese claims on the South China Sea, the historical claims and the nine dash line, was ruled to be invalid under international law and UNCLOS.

The Court has given a decisive ruling in favour of The Philippines by upholding all the latter’s contentions, though there is no mechanism to enforce the judgment. Although, despite screaming media headlines, nothing of great optical value for the media is likely to happen immediately, the judgement is indeed a major development. In the short-term, in reaction to what is being widely perceived as “reputational damage” for it, China may adopt knee-jerk and aggressive posturing in the South China Sea. Vietnam had already accused China of sinking its boats a couple of days before the verdict.

Domestic political compulsions may also force the Chinese government to show a defiant face to the other claimants in the maritime territorial disputes in the South China Sea, and particularly to the US –– a security guarantor in the region for claimants such as The Philippines. In the medium to long-term, the ruling may even prove a turning point in the overlapping maritime disputes. It may compel introspection in China and make it take a more reasoned view of its claims in the medium term. China’s calls for bilateral negotiations may be indicative of such a possibility. However, whether the ruling will eventually pave the way for China’s climb-down or it will further complicate the situation needs to be monitored.

What does it mean for Indian?

India after all does have vital interests in maintaining a peaceful and stable relationship with China given the extent of trade links, disparity in economic standing, existing border dispute, etc. India has more to lose than gain by ratcheting up tensions especially at a time when the Chinese could be probably feeling hemmed in and isolated on the global stage by world-wide reactions to the award. The point that probably needed to be made has been made by the timely statement of the MEA.

This is not to say that India should not continue efforts to vigorously safe-guard its interests in that vital region. India is a growing economy with vital trade routes passing through the region. Thus freedom of navigation and over flight are of vital interest to India. There is a justified expectation of countries in the region that India as a benign emerging power without any direct regional stakes apart from trade interests should play its role in enhancing safety and security of the Global Commons. Close relations with the US, without being sucked into the trap of joint patrols or other such ideas, as well as with Japan and Australia are imperative. Malabar could continue to be conducted every year with increased scope and participation of the Australians too on a case by case basis in addition to the Japanese.

Links with the ASEAN countries both individually and collectively should also receive due attention. The supply of frigates to The Philippines, for which Garden Reach Shipyard, Kolkata, has been declared the lowest bidder in a tender involving global competitive bidding should be pursued. Supply of BrahMos and Varunastra to Vietnam should also be pursued. Closer military-to-military relations need to be fostered with Indonesia, Malaysia and Thailand. India has close economic and trade links with all these countries and enhancing military trade with them needs to be seen both in this context as well in the light of the focus on “Make in India” making Indian arms competitive globally.

The Permanent Court of Arbitration’s judgement and China’s subsequent actions could result in lesser support for and greater suspicion of China’s motives as it “breaks out” and reaches towards great power status. India needs to be alive to this and make use of this perception to advance its legitimate peaceful interests in the region.

By: Abhishek Sharma