By Bhaswati Mukherjee
In a powerful rebuke to China’s aggressive and militaristic push in the South China Sea, an international tribunal at the Permanent Court of Arbitration (PCA) at The Hague on July 12, 2016, rejected most of China’s claims of sovereignty in this zone. Earlier, China’s aggressive territorial push had resulted in turning this busy international trade route into one of the most volatile spots in the world.
The Tribunal’s ruling that there was no historical or legal basis for almost 90% China’s claims, demarcated by the “nine-dash line” (NDL) on Chinese maps, came as a surprise to the Chinese who had confidently expected a nuanced verdict. Chinese arrogance with regard to the case brought by the Philippines along with no compelling evidence, either historical or legal or based on the parameters laid down in United Nations Convention on the Law of the Sea (UNCLOS) to which it is a ‘State Party’, made for a very weak case. The Tribunal noted that the Chinese construction of artificial islands has caused “irreparable harm” to the marine environment, and has also threatened shipping, tourism as well as fishing and oil exploration there. With regard to the construction by China of a military airstrip and naval berths on an atoll named “Mischief Reef,” the Tribunal noted that this was within Philippines territorial waters in accordance with UNCLOS.
In a case resembling David versus Goliath, it was tiny Philippines who had the courage in January 2013 to challenge mighty China after the Chinese took over control of the Scarborough Shoal (SS). According to the Philippines, the shoal falls within its 200 nautical mile Exclusive Economic Zone (EEZ), in accordance with UNCLOS. Arguing before the PCA, Philippines Secretary of Foreign Affairs, Albert F. Del Rosario, on July 7, 2015, noted the equalizing power of international law. He said “no provision of UNCLOS is as vital to achieving this critical objective than Part XV on dispute resolution which allows the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power, that law triumphs over force and that right prevails over might”. The Philippines argument that China had exploited the living and non-living resources in areas beyond UNCLOS limits, while forcibly preventing other coastal state from exploiting resources within their EEZ, was a powerful argument which influenced the Tribunal. So also was the assertion by Philippines that any recognition of China’s “historic rights conflict fundamentally with the very character of UNCLOS”.
Predictably, the initial public response of the Chinese authorities was to try to safeguard and assuage domestic public opinion which had been given to understand that China has historical claims, backed by ancient maps, to virtually the entire South China Sea. President Xi Jinping has made defence of historic maritime claims a central part of the governing Communist Party narrative that he has restored China to domestic, and even, global greatness. Any challenge to that narrative is seen in Beijing as a challenge to the Party’s rule. In reality, therefore, the ruling which has been predictably and angrily rejected by China is a huge personal setback to Chinese President Xi. It is being speculated that the fall out of the Tribunal decision will negatively impact the One Belt One Road (OBOR) project.
The response of the Philippines has been both dignified and restrained, with the reiteration that Philippines was committed to “pursue the peaceful resolution and management of disputes”. Philippines will now have to negotiate a face saver with China, since the Tribunal’s award cannot be forcibly implemented on the ground. Vietnam has also endorsed the decision of the Tribunal. Malaysia and Indonesia have been more circumspect and have called for full respect of diplomatic and legal processes enshrined in international law, especially UNCLOS. There is speculation that China will try to pressure weaker states in ASEAN to support its position on this issue. Experts on international law are of the view that the most positive outcome would be if China would come to the negotiating table for a final settlement. No one, realistically, expects China to vacate or dismantle the artificial islands it has built. The ruling may ensure that further militarization does not take place and that bilateral arrangements are made with affected states like Philippines to reduce tensions in the region.
There have been discussions on whether India could have issued a more muscular or more supportive statement of the Tribunal’s decision, given our important stakes in the region. China has always underlined that India should respect international law and many had thought that it was time to pay back in the same coin to the Chinese. This would have been an appropriate occasion for India to underline it has always accepted arbitration under UNCLOS, including the final settlement of overlapping claims with Bangladesh. In my view, the Indian statement “noting” the Tribunal’s award and urging all parties to show utmost respect for the UNCLOS, while understandable from a Ministry of External Affairs’ perspective, was weak and demonstrated our continuing desire to appease China.
ONGC’s Videsh Ltd. (OVL) has bought 100 percent stake for oil and gas exploration in Vietnam’s Block 128, which lies in an area claimed by China. OVL has been threatened on a few occasions by China that
its exploration activities violated China’s sovereignty. So far, these operations in which India has heavily invested are ongoing. India has not backed down. India should then have fully supported and endorsed the Tribunal’s award.
Indian policy of appeasement of China needs to be reviewed. Chinese defiance of international law in this manner, its bullying tactics with its smaller neighbours and its refusal to settle its boundary issue with India, underlines the ineffectiveness of the Indian policy of appeasement at any cost of this recalcitrant and aggressive neighbour. The closing arguments of the Philippines at the PCA when it stated that “if China can defy the limits placed by the Convention on its maritime entitlement in the South China Sea, then what value is there in the Convention for small states parties as regards their bigger, more powerful and better armed neighbours” should resonate in a world where the League of Nations collapsed after Italy invaded Ethiopia (then Abyssinia). Then came Chamberlain and the infamous Munich Pact which ignored Hitler’s invasion of an independent state and to buy peace at any cost. It only resulted in a more deadly war a few months later. Defiance of international law, we should remember, is a threat to international peace and security and to the established global order.
*Bhaswati Mukherjee is a former Indian Ambassador. She can be reached at: [email protected]
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