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All eyes on South China Sea dispute verdict
The Permanent Court of Arbitration's ruling will be crucial as over 50% of India's trade with Asia passes through the waterway
New Delhi: An international tribunal is expected to rule on a bitter dispute between the Philippines and China over the South China Sea (SCS) this week that will have implications for many South-East Asian nations as well as India, given that more than 50% of Indian trade with Asia passes through the critical waterway.
The Permanent Court of Arbitration (PCA), based in the Hague in Netherlands, is to issue a ruling on Tuesday after the Philippines challenged China’s claim over much of the South China Sea in 2013. According to news reports, Manila lodged the suit against Beijing, saying that 17 years of negotiations had not yielded any results.
The judgement will come against the backdrop of frequent military brushes between China and the Philippines, Vietnam, Malaysia, Brunei and Taiwan.
The tensions have alarmed the US, which has key defence treaties with countries in the region. In a show of support last week, the US sent warships to patrol close to some of the reefs and islands claimed by China.
Origins of the dispute
At the root of the quarrel is China’s claim to almost all of the SCS—believed to hold untapped oil and gas reserves. According to various estimates, more than $5 trillion in trade passes through SCS each year, which also contains rich fishing grounds, besides being seen as the main passageway for oil from West Asia to China, Japan and South Korea.
The Chinese position is based on what it describes as “historical claims” based on a map from the 1940s that incorporates most the SCS within “the nine dash line”. Within the nine dash line lies key archipelagos—including the disputed Spratly and the Paracel islands—and various other features, including the Scarborough Shoal, a set of coral reefs near the Philippines.
According to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), that defines the rights and responsibilities of nations in their use of the world’s oceans, a country’s territorial waters stretch to a distance of 12 nautical miles from its territory, while its exclusive economic zone (EEZ), or area where it can carry out economic activities including fishing, stretches to a distance of 200 nautical miles.
In the case of inhabited islands claimed by a country, its territorial waters stretch 12 nautical miles from the islands and its EEZ up to 200 nautical miles.
In the case of the SCS, many of the islands at the centre of the dispute are uninhabited, which is what complicates the case. In recent years, China has been bolstering its arguments over the SCS with the construction of islands reclaimed from the sea housing airstrips and naval patrol vessels.
According to a South-East Asian diplomat based in New Delhi, who did not want to be identified, any dismissal of China’s reference to the nine dash line will be seen as a victory for the Philippines.
This will, in turn, strengthen the hands of other countries that have a dispute with China over the SCS. “China is a signatory to the UNCLOS, and we hope it will abide by the ruling,” said the diplomat.
China, on its part, has said it will not abide by the Hague tribunal verdict and has been holding military drills in the region ahead of the 12 July verdict, alarming its smaller neighbours. “An award from the tribunal that rejects some of China’s more dubious claims would provide support for the mainstream views of other states in the region,” Cecily Rose, assistant law professor of Public International Law at Leiden University in the Netherlands, told AFP news agency. “China is bound to comply with the award. But should it refuse to do so, the tribunal has no enforcement mechanism to which it can turn,” Rose said.
Srikanth Kondapalli, a professor of Chinese Studies at the Jawaharlal Nehru University in New Delhi, is of the view that the verdict would not be a “clear for or against” one. “China is a permanent member of the UN Security Council UNSC). They (the tribunal) will not pass judgement on a sitting UNSC member. The verdict will, I think, be on what constitutes sovereignty,” he said.
India’s interests
Since the early 1990s, India has been trying to forge closer links with the high-growth South-East Asian economies through increased trade and political contacts. India is constructing the Asian trilateral highway through Myanmar to connect with Thailand and beyond. Last year, Prime Minister Narendra Modi announced a $1 billion line of credit to promote projects that support physical and digital connectivity between India and South-East Asia. India’s trade with the Association of Southeast Nations (Asean) which includes Brunei, Cambodia, Indonesia, Laos Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam, is about $70 billion. India has been prospecting for energy in several blocks off the coast of Vietnam, much to the annoyance of China, given that the blocks are situated close to the nine dash line.
Beyond its economic interests, India has also been increasing its strategic profile in the region—sending warships to countries like Vietnam for port calls. India currently has four naval ships in the region that had taken part in trilateral naval exercises with Japan and the US. This is seen as fitting in with India’s rising regional and global profile—i.e. its ability to project power away from its shores. It is also seen by some analysts as an Indian response to increased Chinese presence in the Indian Ocean which India considers its backyard.
Not lost on Asean members was India’s acceptance of an UNCLOS tribunal verdict awarding Bangladesh 19,467 sq. km of 25,602 sq. km sea area of the Bay of Bengal in July 2014. Bangladesh went in for arbitration over the delimitation of maritime boundary under UNCLOS on 8 October 2009. The tribunal concluded its hearings on 18 December 2013 at The Hague. India’s acceptance of the verdict was highlighted by Modi as an example of maritime boundary conflict resolution in a speech to Asean members in November.
India’s position on the SCS has been supportive of the evolution of a code of conduct in the region—seen as in sync with Asean countries. India has also spoken up in favour of “freedom of navigation in international waters while maintaining that sovereignty issues must be resolved peacefully by the countries which are parties to the dispute in accordance with accepted principles of international law”, including the UNCLOS, said minister of state for external affairs, General (retd) V.K. Singh in a statement in Parliament in November.
Given this, a joint statement issued by Russia-India-China in April after a trilateral meeting in Moscow raised eyebrows in India, especially among Asean diplomats. The statement said Russia, India and China “are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected notably in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned.” The latter sentence was seen as mirroring China’s point of view and New Delhi’s acquiescence surprised many, considering that India and the US had on several previous occasions issued statements calling for the avoidance of “threat or use of force and pursue resolution of territorial and maritime disputes through all peaceful means, in accordance with universally recognized principles of international law, including the United Nations Convention on the Law of the Sea.”
An adverse verdict for China would at best “blacken its face”, given that the US is backing the Philippines but nothing more than that, said Kondapalli. “China can walk away and say international law or tribunal rulings do not apply to it,” he said.
In the case of India, the verdict could help it gain points with the global community, given that it accepted the verdict in favour of Bangladesh, he said.
It could also help New Delhi to increase its economic activity with the Asean, besides drawing support for its position on freedom of navigation as opposed to the territorial sea concept under which countries can bar ships—military and or commercial—from using its waters.
“China, Malaysia and Vietnam are generally seen to impose the territorial sea concept. The UNCLOS tribunal ruling could bring clarity to this situation wherein if a country has a problem with another, it can impose the territorial sea concept. This has implications for Indian trade as India’s rise is measured in terms of its economic growth,” Kondapalli said.
AFP contributed to this story.
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First Published:11 Jul 2016, 12:17 AM IST
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