The South China Sea has emerged as the most significant hotspot and a potential flashpoint in the Asian region as a number of countries are jostling over a share of pie of the huge deposit of resources that lie beneath the ocean floor in their respective economic zones. While bulk of the claimant countries makes their case in areas that come within their exclusive economic zones, China claims its sovereignty in its entirety. The belligerence that China has displayed in asserting its claims has unnerved the smaller claimant nations. In this energy-rich strategic body of water, China’s territorial claims overlap in part with Vietnam, the Philippines, Malaysia, Brunei and Taiwan, and this is why the dispute assumes international proportion.
While Vietnam is the only country which seems prepared to take on China head-on if need be to defend its legitimate right, Philippines has resorted to legal recourse by approaching the International Tribunal at The Hague for arbitration. After exhausting all political and diplomatic avenues in its 17-years of negotiations to settle the dispute, Manila lodged the suit against China in early 2013. The issue now comes to the international limelight as the ruling is expected to be delivered by The Hague Court on 12 July.
Issues that are at stake are freedom of navigation in international waters, rules of law, demarcation of international maritime boundary and code of conduct in accordance with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), all of which have universal support by law-abiding nations world-over, with China being the only exception.
What Philippines contested at The Hague was China’s claim to an area shown on its maps as a nine-dash line stretching deep into the maritime heart of Southeast Asia, covering hundreds of disputed islands and reefs. Based on its claims on a vaguely defined ‘nine dash’ Chinese map dating back to the 1940s, China has rapidly turned reefs into artificial islands capable of hosting military planes, missiles and troops. The Philippines contend that the “nine-dash” line has no basis under international law and Beijing has no ‘historic’ claim to the ocean.
Pre-empting that the ruling shall go against it, China seems to have offered talks with the Philippines on their long-running territorial dispute, though China said earlier that it would ignore the verdict, knowing well that the tribunal does not have enforcing authority. Philippines contest China’s claims to the bulk of South China Sea, the energy-rich, strategic waters, through which $5 trillion in sea-borne trade passes every year. If the verdict goes against China and it ignores the ruling, it would represent a snub of the international legal order.
Beijing asserts that the court has no jurisdiction over the dispute and wants to address the issue bilaterally. It insists that it is simply exercising its ancient right to the entire South China Sea. It, therefore, wants to reject the arbitration case, whatever the ruling could be. According to the state-controlled China Daily, China proposed to the Philippines to negotiate that could cover “issues such as joint development and cooperation in scientific research if the new government puts the tribunal’s ruling aside before returning to the table for talks”. That seems to be the will-o-the-wisp as the Philippines is unlikely to yield to the Chinese proposal. China’s argument rest on the agreement reached between the two in 1995 wherein they agreed to settle disputes in the South China Sea “in a peaceful and friendly manner through consultations on the basis of equity and mutual respect”. Though both held many rounds of talks on the proper management of maritime disputes, they had no negotiations designed to settle the actual disputes in the South China Sea.
China claims that more than 40 countries back its position and support bilateral talks as the right way to resolve the dispute and not through international arbitration. This seems to be an over-exaggerated claim as there is no information in the public domain to testify China’s assertion. But, pre-empting a negative judgment, Chinese diplomats overseas went on an overdrive in an international PR effort to address journalists and conferences so that China’s position is heard. Chinese state-controlled media also has gone on an offensive to clarify to the world the basis of its claims.
As the ruling date drew nearer, China again demonstrated its belligerence and flexed its military muscle to scare other claimants by sealing off disputed islands for “military exercises” in waters between its southern most territory, Hainan Island, and the contested Paracel Islands, from 5 to 11 July, and also prohibited international shipping and aircraft from entering the waters during this time.
The US was not expected to remain oblivious to such developments. It has treaty obligations to defend its allies in the region when in trouble and in a show of strength sent warships close to some of the Chinese claimed reefs. Indeed, ever since the South China Sea row assumed international proportion amid mounting Chinese military activity, the US and others are engaged in “freedom of navigation” operations to demonstrate the sea’s status as an international waterway. In early July, the US sailed two of its enormous nuclear-powered aircraft carriers, and theirs accompanying warships, through the region in a close signal to Beijing.
The destroyers Stethem, Spruance and Momsen patrolled near Chinese features in the Spratlys archipelago and the Scarborough Shoal, near the Philippines. The destroyers operated within 14 to 20 nautical miles of the Chinese features. The USS Ronald Reagan and its escort ships were also patrolling the South China Sea. Pacific Fleet spokesman Lieutenant Clint Ramsden said the patrols were part of a “routine presence”. He said: “All of these patrols are conducted in accordance with international law and all are consistent with routine Pacific Fleet presence throughout the Western Pacific.”
If Beijing rejects the ruling, it would not only represent a rejection of the international legal order but a direct challenge to the US as China’s position and actions in developing islands and reefs for military as well as civilian purposes shall be seen a threat to stability. How the US responds to the new situation would be a test of its credibility as it is a dominant player in the region and security provider to its allies since World War II, which now seems challenged by an increasingly assertive China.
In order to prepare with the new situation post-verdict, many countries such as the UK, Australia, Japan and India joined the US in support by asserting the importance of freedom of navigation and respect for the rule of law. Besides, India, Japan and Australia sent patrol aircraft and ships to the chain of artificial islands China insists establish its territorial sovereignty over the sea. The deployment of aircrafts and warships by China, and also by the US, and other nations upholding rules of law has only fuelled to the tensions building up in the region. In June, Chinese fighter jets intercepted a US surveillance aircraft and indicated its displeasure at its presence. China also deployed combat aircraft and surface-to-air missiles to a new runway on Woody Island, the largest Chinese facility in the disputed Paracel Islands. Even Indonesia got into act by firing warning shots near Chinese fighting vessels that it claimed intruded into its territorial waters. So, the brinksmanship continues and no party is willing to yield space to the other, worsening the volatility by adding further fuel to the fire. The militarisation of the region has created such a conflict situation, which unless addressed by diplomacy, can undo all the economic successes the countries in the region have achieved.
As the security provider, the US has increased its own military presence in the region. It has lifted arms embargo on Vietnam, giving the choice to Vietnam to import arms to beef up its military. Talks are also on between India and Vietnam for the acquisition by Vietnam the supersonic cruise BrahMos missile produced in India by an Indo-Russian joint venture. The missile has a range of about 290 km and can be fired from land, sea and submarine. The acquisition of this lethal weapon by Vietnam shall bolster its military capability substantially. The US, on its part, has too increased its own military presence in the region and accelerated freedom-of-navigation patrols by warships and over-flights by US aircrafts, besides increasing defence aid to Southeast Asian countries. All these suggest that preparations are afoot for an imminent military conflict that no party would be willing to lose.
Role of ASEAN
The 10-member groupings, some of which have no direct stake in the South China Sea, need to show solidarity to address to this common challenge. In the face of China’s military might, no single member of the grouping has the wherewithal to face China. They need friends to support. Philippines might win at The Hague with a verdict in its favour but China is unlikely to yield easily. This means Philippines, Vietnam and other member states of the grouping with support from the US, Japan, India and Australia need to work together to seek means to speed up the peaceful settlement of the dispute and design institutional arrangement which could manage equitable distribution of the rich resources lying beneath the Ocean bed in the South China Sea region.
In the past, the ASEAN grouping have shown disunity on some critical issues but this time differences, if any, have to be set aside in order to address a bigger challenge. At time, the US has expressed frustration on this ASEAN disunity and has been pressing the Southeast Asian nations to forge a united front on the issue. Though Vietnam has strongly voiced its opposition to China’s assertion over the South China Sea, it followed the Philippines by making a submission to the panel on 1 July 2016, keeping the option of taking its own legal action at an appropriate time. For the moment, Vietnam expects a “fair and objective” ruling from the tribunal.
There have been responses to the court’s jurisdiction issue from elsewhere too. The positions of the G-7 and EU groupings are that the ruling must be binding, despite China’s objections. France has proposed the EU grouping that they take part in joint South China Sea patrols. Legal experts hold the view that the ruling is technically binding but there is no body that can enforce the ruling as per the UNCLOS. This gives China some leverage and makes it audacious to ignore objections from any quarter.
The appropriate strategy for China should to be to co-opt the contending parties in any cooperative mechanism with a view to address the issue. For the opponents, isolating China could be more dangerous than involving it. That would remain a challenge, however. On its side, China would be expected to rise above from its exclusive state-centric mentality to a more inclusive approach to dispute settlement strategy by joining other stakeholders on board to address to the common issue. After all, regional prosperity is in every one’s interests and equitable distribution of the region’s resources is the means to achieve this end.
How India is affected or is a stakeholder in this unfolding drama in the South China Sea? India does have economic stake in the South China Sea and oil drilling projects in two blocks in areas claimed by Vietnam. Its state-controlled ONGC is there in the area at the invitation of Vietnam and would have direct stake if its economic interests are affected by Chinese actions. India has a decade-old strategic partnership with Vietnam and its defence cooperation is increasing in recent times. India is likely to join in upholding Vietnam’s cause if Vietnam’s economic interests are violated and global rules are breached by another country.
India has repeatedly stated that territorial disputes in South China Sea should be resolved through peaceful means, according to the principles of international law. It has cited its own maritime resolution dispute vis-a-vis Bangladesh using UNCLOS. Delhi has also emphasised that unilateral move by any country is contrary to international rules. India has been advocating freedom of navigation and over flight in South China Sea as significant portion of India’s trade to the region passes through South China Sea. Delhi has upheld Vietnam’s economic rights in the South China Sea where it has invested in the hydrocarbon sector. As a rising economy, India’s sea-borne trade and larger economic interests would be severely and adversely impacted if any turbulence occurs in the South China Sea, and might draw other nations to the conflict as well.
How shall China react if the tribunal’s verdict goes negative? A negative verdict shall surely hurt Chinese pride and loss of face. Would China change style of conducting its diplomacy post-verdict period? There is no easy answer to this but China shall surely look for other means to conduct diplomacy while seeking to restore some of its lost pride. But if China becomes more belligerent following a negative verdict, it would have major ramifications for international order for years to come. Indirectly, China would be drawing East and Southeast Asia countries, some of which neutral at the moment, further closer to the US as they would seek protection from Chinese aggressive intent. Beijing even annoyed India by successfully blocking its NSG bid in Seoul, thereby contributing indirectly to strengthen further its strategic partnership with the US in the Indian Ocean Region and the Asia Pacific.
From its own assessment, China seems to be expecting an armed clash and preparing to face it. The state-run Global Times argued that China should speed up developing its military deterrence abilities around the South China Sea and be prepared itself for a military confrontation. While admitting that China is incapable at the moment to keep up with the US militarily, it argued that “let the U.S. pay a cost it cannot stand if it intervenes in the South China Sea dispute by force”. The US fears that The Hague court ruling could prompt China to declare an air defence identification zone (ADIZ), as it did over East China Sea in 2013.
From all accounts it appears that China could be an outlaw state unless it respects the outcome of the tribunal if it comes negative. China will come under increasing pressure from other rival claimants in the South China Sea. If China ignores the verdict and increases military presence in the disputed waters, the US and other stakeholders shall be forced to respond appropriately. In such a situation, a military confrontation would seem unpreventable putting a sizable global trade to disruption with debilitating economic consequences.