The South China Sea Imbroglio and its Repercussions

The Chinese position of not recognising the award is a cause for serious worry, because it highlights total disregard to the international order

Issue: 3 / 2016By Rear Admiral Sushil Ramsay (Retd)Photo(s): By US Navy
The Indian Navy Shivalik class stealth frigate INS Satpura during the Rim of the Pacific 2016

While the genesis of disputes in the South China Sea (SCS) dates back to 1946 when China laid claim to almost the entire sea area by drawing the famous ‘Nine-dash Line’, the real imbroglio erupted during the past couple of decades with frequent disputes flaring up between the littoral countries. SCS comprises the Spratly Islands, the Paracels Islands and the Scarborough Shoals, all of which are under contest by several nations. Among these the mostly contested are the Spratly Islands with China, Taiwan, Vietnam, Philippines, Malaysia and Brunei staking sovereign claims over these features. During 1974, China wrested control of the Paracels from Vietnam which sprouted the conflicts which simmers even now. In 2012, China took aggressive stance by restricting access to the Scarborough Shoals to the Philippines. Although the Pratas Islands are under control of Taiwan, China continues to contest it. As an instrument for resolution of conflicting claims, during 2002 the Declaration on Code of Conduct (DOC) of Parties was signed. This DOC however has remained mostly ineffective.

The SCS is a busy international waterway, being one of the main arteries of the global economy and trade. More than $5 trillion of world trade ships pass through the SCS every year. The SCS is also resource rich, with numerous offshore oil and gas reserves in the area.

The Conflict Zone

The main hub of the conflict zone is Spratly Islands which consist of a number of coral reefs, low tide elevations and rocks. These features have a total natural land area of about 2 sq km though they are spread over a sea area of more than 4,25,000 sq km. Over the couple of decade extensive surveys by different agencies of the area have been carried out. Consequently, estimates reveal oil and gas reserves to the tune of 70 billion tonnes of which 60 per cent to 70 per cent being natural gas within the area. These revelations, however, have resulted into intense competition among the claimant countries to consolidate their positions by undertaking land reclamation on occupied features to develop the islands to house a variety of facilities. While Taiwan, Vietnam and the Philippines have been concentrating on island building, sheer magnitude of scale and volume of aggressive development activities of China in the recent past have attracted the maximum global attention. Estimates point to the reclamation of around 3,000 to 3,400 acres in the contested area.

The Case for Arbitration

In addition, from 2012 onwards China has resorted to a very aggressive stance in the SCS through regular and provocative manoeuvres by its maritime forces in the seas surrounding the Scarborough Shoals, which for a very long time claimed by the Philippines as part of its integral territory. The Philippines felt extremely disturbed by such unilateral and aggressive posturing by China without even employing the existing instrument of DOC for conflict resolution, if any. Deeply aggrieved by constant harassment by China, in 2013 the Philippines filed proceedings under Annex VII of the United Nations Convention of the Law of the Sea (UNCLOS) to settle its outstanding dispute with China. The main edifice of the Philippines bulwark stands on questioning the legal validity of ‘Nine-dash Line’ evolved by China to stake claims in the SCS. The main assertion of the Philippines in the petition was that China’s maritime map of the SCS was of formulated with dubious intention and therefore, the claims arising from it were in total violation of the law.

Indian Navy’s Maritime Military strategy therefore enshrines the promotion of multilateral operational interaction to enhance mutual confidence, increased interoperability and development of common understanding of procedures for maritime security and sharing the best practices with other navies of the region

Apart from determining the legal status of the features (islands, rocks, or low tide elevations), Philippines also challenged China’s island reclamation activities by urging the Court to reiterate the lawful position that land added to submerged and above-water line features cannot alter their basic legal status. This again was a complaint aimed at invalidating China’s massive reclamation activities in the South China Sea—a measure seen by many as a military tactic meant to shift the territorial status quo in the SCS by legitimatising China’s illegal occupation of features.

On the other hand, China’s aggressive posturing in the recent times has caused consternation among the international community. China has used the facilities that it has created on these features for positioning a variety of civilian and military installations, the latest being anti-aircraft missile batteries on Woody Island in the Paracels. China has also been intimidating military aircraft flying in the vicinity of its occupied features and has even hinted at establishing an Air Defence Identification Zone (ADIZ). This attitude has prompted the United States to re-start the ‘freedom of navigation patrols’ in October 2015 which continue till date. The US continues to maintain a strong naval presence with a Carrier Strike Group deployed in the area to deter such Chinese aggression.

The Philippines made two other submissions which were in direct clash with Chinese domestic interests. First plea was questioning Beijing’s ‘historic rights’, including fishing rights beyond the limits of its entitlements under UNCLOS. The other plea claimed that China has violated the convention by its hazardous practices of harvesting of endangered species and destruction of coral reefs, including areas within the Philippines’ EEZ, irreversibly damaging the regional marine environment.

The Verdict

The recent Award of the Permanent Court of Arbitration (PCA), in the case of The Republic of Philippines vs The People’s Republic of China, broadly, decided the following in response to the 15 submissions by the Philippines:

  • There was no legal basis for China to claim ‘historic’ rights to resources within the sea areas falling within the ‘Nine-dash Line’.
  • None of the Spratly Islands is capable of generating extended maritime zones nor can they generate the same collectively as a unit since they are basically rocks.
  • Certain sea areas are within the EEZ of Philippines and China had violated Philippines’ sovereign rights in its EEZ.
  • China’s recent large-scale land reclamation and construction of artificial islands in the Spratly Islands has caused severe harm to the coral reef environment.

Aftermath of the Verdict

China’s stand towards the arbitration has been one of defiance against the existing international order wherein it has refused to recognise the Arbitration and its Award. In fact, even before the verdict, China was found lobbying extensively to challenge it, if found contrary to its interests. Immediately after the verdict China declared the Award as null and void and reiterated it has no binding force. International reaction to the Award had been rather muted due to the existing tensions in the area and the necessity to avoid conflict. India has maintained its consistent position wherein it has called for all states to resolve respective disputes through peaceful means showing utmost respect for UNCLOS. However, the Chinese position of not recognising the Award is a cause for serious worry, because it highlights total disregard to the international order.

On the contrary, China warned its rivals not to turn the SCS into a “cradle of war”. Conversely, the strong and sweeping ruling by a UN-backed Tribunal in The Hague provided powerful diplomatic ammunition to the Philippines. However, China continues to insist on its historical rights over SCS and reminded the United States and other critical nations that in 2013 in the East China Sea, China had angered Japan, United States and its allies by establishing ADIZ. China also cautioned that depending upon the level of threat ADIZ could follow suit in SCS as well.

In a classic diplomatic manoeuvre, soon after the Award, China extended an olive branch to the new Philippine Government, by assuring that bilateral cooperation will be in their interest and that China aims to turn SCS into a sea of peace, friendship and cooperation. At the same time, China hoped that the new government would not use the arbitration results as a basis for future negotiations.

India’s Stand on SCS

The SCS is an important area of maritime interest for India with her seaborne trade to the extent of 55 per cent by volume passes through its sea lanes. India is also engaged in oil exploration through ONGC Videsh in the EEZ off Vietnam and has signed an energy deal also with Brunei within the contested area. India has always advocated for the unimpeded commerce within the global commons on the principles of ‘freedom of navigation’ and over flights, guaranteed under UNCLOS. India has good relations with the ASEAN countries who are embroiled in these disputes, especially Vietnam and the Philippines. India has always maintained a holistic stand on the issue of sovereignty, championing that the disputes should be resolved peacefully without the threat of use of force.

The take away for India from the imbroglio is to avoid unnecessary entanglement with China over SCS in the interest of creating a good atmosphere for the economic cooperation. The policy makers will have a challenge on their hands to draw right balance between shifting the focus from the geostrategic competition towards the economic cooperation with China!

What is in for Indian Navy

In consonance with the mandate of net security provider for the vital interests of the nation within the region, the Indian Navy’s overseas deployment has increased exponentially. Besides, independent forays, the Indian Navy has regularly engaged in multilateral annual exercises called Malabar with US Navy and Japanese Self-Defense Forces, Australia, etc. Over the years, the arena of Malabar exercises has extended from the Bay of Bengal to SCS, East China Sea, Sea of Japan, etc. Exercises in the Rim of the Pacific (RIMPAC), the largest international maritime warfare exercises, are conducted under the aegis of the US Navy’s Pacific Fleet. Indian Navy has been participating in RIMPAC from 2004 onwards as an ‘Observer’. INS Sahyadri participated in RIMPAC 2014 for the first time. Likewise, INS Satpura participated in RIMPAC 2016 which were conducted from June 30 to August 4, 2016. Interestingly, in April 2016, China was also invited to participate in RIMPAC 2016, despite the tension in SCS.

India has commitment to peace and prosperity for all within the Indo-Pacific region and elsewhere. Indian Navy’s Maritime Military strategy therefore enshrines the promotion of multilateral operational interaction to enhance mutual confidence, increased interoperability and development of common understanding of procedures for maritime security and sharing the best practices with other navies of the region.