South China Sea

Not a surprise

Print edition : August 19, 2016

A May 11, 2015, photograph showing land reclamation of Mischief Reef in the Spratly Islands in the South China Sea. The Tribunal set up by the Permanent Court of Arbitration has ruled that there is no legal basis for China's claiming rights to much of the South China Sea. Photo: Ritchie B. Tongo/AP

Protesters shout slogans against China at a gathering to mark the 28th anniversary of the Spratly Islands clashes between Vietnam and China, at a public park in Hanoi on March 14. Vietnam, which initially supported the nine-dash line claims of China, is now one of the vociferous critics of China's territorial claims in the region. Photo: KHAM/REUTERS

The verdict of the International Tribunal rejecting China’s claims hands a propaganda platform against the country to the United States and Japan.

Beijing was expecting an adverse ruling on the South China Sea from the Permanent Court of Arbitration, an International Tribunal at The Hague, and has taken the July 11 judgment on the dispute in its stride. Senior officials have said that the situation in the South China Sea should not be allowed to escalate. The Chinese government announced some months ago that it would ignore the Tribunal’s decision. It contended that the Tribunal had no jurisdiction over the case as the main dispute was over land in the form of islands and islets in the South China Sea. The Hague Tribunal ruled that the “nine-dash line” under which China had claimed the disputed areas in the South China Sea was a violation of the United Nations Convention on the Law of the Sea (UNCLOS). Though the Tribunal accepted that China had historically used the islands in the South China Sea, it ruled that China had never exercised exclusive authority over the waters. The judgment stated that there was “no legal basis for China to claim historic rights to resources” within the nine-dash line.

The Chinese Foreign Ministry issued a statement saying that it viewed the decision “as invalid and [that it] has no binding force”. The Philippines, which had taken China to the arbitration court in 2013, is a signatory to the UNCLOS, along with China. The Barack Obama administration pressured the Philippines in 2013 to approach the U.N. Court at The Hague. Interestingly, the United States is not a signatory to the UNCLOS treaty. In 1986, it ignored the International Court of Justice (ICJ) ruling that the Reagan administration’s mining of Nicaragua’s main port was an illegal act. All the same, the U.S. instigated the government of Benigno Aquino II to approach the UNCLOS court at The Hague. The Obama administration helped the Philippine government prepare its case in the arbitration court.

Philippines may not want confrontation

The newly elected Philippine President, Rodrigo Duterte, is against the confrontational style of politics that was practised by his predecessor against China at the behest of the Obama administration. Before being sworn in as President, Duterte said that he would govern his country as a “leftist” President and that his primary focus would be on the economy. He talked about getting China’s help for infrastructural development. He is unlikely to fully follow the script that the U.S. prepared for the Philippines as part of its strategic military pivot to the East. During the election campaign, he also expressed his objection to a permanent U.S. military presence in the Philippines. Aquino had signed a military agreement that gave the U.S. renewed military basing facilities in the Philippines. The two countries are also signatories to a Mutual Defence Treaty, which requires the U.S. to help the Philippines if its armed forces come under attack.

The Philippine government has welcomed the Tribunal verdict, but it has also sent out strong signals that it will prefer to arrive at a negotiated settlement on the dispute with China. Duterte announced that he was planning to send a former President, Fidel Ramos, to Beijing to explore possibilities of holding talks on the South China Sea dispute. When Ramos was President, the two countries had enjoyed good relations. However, at this juncture, the Philippine government is insisting that the UNCLOS judgment should be the basis for negotiations. Prominent Philippine politicians are threatening to impeach Duterte if he “compromises on Philippine sovereignty”. The Chinese position is that the talks should proceed “outside, or in disregard of” The Hague ruling. China has warned that the two countries might be heading for a confrontation if Manila insists on invoking the UNCLOS ruling. Washington wants Manila to take a confrontational stance. U.S. Secretary of Defence Ashton Carter called up the Defence Minister of Philippines, Delfin Lorenzana, after the verdict to discuss more ways to “deepen and enhance defence cooperation”.

Taiwan against ruling

All the other countries involved in the dispute with China—Vietnam, Indonesia, Malaysia and Brunei—have welcomed the UNCLOS ruling, with the notable exception of Taiwan. Taiwanese President Tsai Ing-wen said that the judgment had “gravely harmed” Taiwan’s rights in the South China Sea. The nine-dash line that Beijing invokes to claim sovereignty over much of the South China Sea can be traced to the map issued by the Nationalist Republic of China (ROC) government, which was in power until 1949. The ROC mapped 291 islands, reefs and banks in the South China Sea and put them under the nine-dash line in 1947. After its defeat at the hands of the Communists, the nationalist government transplanted itself in Taiwan.

Taiwan is among the closest military allies of the U.S. and Japan in the region. The Tribunal ruled that Itu Aba, the largest piece of land in the South China Sea, was not an island as claimed by Taiwan and therefore Exclusive Economic Zones (EEZ) laws did not apply. Taiwan has been in control of the island since 1956. China’s Foreign Ministry spokesman said Chinese people “across the straits” are duty bound to “preserve the ancestral land of the Chinese people”. China considers Taiwan a breakaway province. Taiwan, for that matter, is recognised as an independent nation only by a handful of countries. The U.N. Tribunal described the country as the “Taiwan Authority of China” in its judgment.

South-East Asian nations not directly involved in the dispute preferred to keep a diplomatic silence, but the Indian External Affairs Ministry was quick to welcome the ruling. In 2014, India accepted a decision by the same court in a comparatively small maritime dispute with neighbouring Bangladesh in the Bay of Bengal. But India has been taking a tougher stance on the maritime dispute with Pakistan on the “Sir Creek” issue. New Delhi does not want UNCLOS to get involved in that dispute and wants the issue to be resolved in accordance with a mutually agreed arbitral process and the general principles of the Shimla Agreement. Pakistan could cite The Hague Tribunal’s judgment on the South China Sea as a precedent and drag India to the U.N. Tribunal. The Exclusive Economic Zone of India and Pakistan in that area of the Arabian Sea can only be positively defined after the Sir Creek dispute is resolved.

The statement released by the Indian External Affairs Ministry implicitly welcomed The Hague Tribunal judgment saying that it supported the “freedom of navigation and overflight and unimpeded commerce, based on the principles of international law as reflected notably in UNCLOS”. It added that “sea lanes of communication passing through the South China Sea are critical for peace, stability, prosperity and development”. An estimated $5 trillion in annual trade passes through the South China Sea, constituting 30 per cent of the global marine trade.

The Association of Southeast Asian Nations (ASEAN) has not issued any statement on the ruling. The majority of the countries in the grouping want a negotiated settlement. Even the countries involved in the dispute have been reluctant to drag the matter to The Hague. Vietnam initially supported the nine-dash line claims of China when Chairman Mao Zedong reiterated the ROC claim in 1958. Vietnam has since backtracked and has become one of the most vociferous critics of China’s territorial claims in the region.

China has been cautioning India for some time against joining the U.S. in politicising the South China Sea dispute. India’s prompt official response to the verdict, according to many observers, was prompted by the diplomatic fiasco at the Nuclear Suppliers Group (NSG) meet in Seoul in June. New Delhi blames Beijing for its failure to enter the elite group.

China has a huge stake in ensuring freedom of navigation in the South China Sea as much of its energy imports are routed through it. The country had reacted sharply to statements by the U.S. and Japan that China should adhere to the decision by the U.N. Tribunal. Beijing is also upset that other countries back Washington’s line that it is impeding freedom of navigation and overflights. The Chinese side has been consistently claiming that the “freedom of navigation” issue being raised by the U.S. and its allies in the region is a pretext to raise military tensions. U.S. naval ships have been conducting so-called “freedom of navigation” operations near the islands claimed by China for some time now. A senior Chinese naval official said that China would never allow anybody to sabotage its freedom of navigation in the South China Sea. “But China consistently opposes so-called military freedom of navigation in the South China Sea, and it could even play out in a disastrous way,” the official warned.

The biggest gainers of the South China Sea verdict are the U.S. and Japan. It has handed them a propaganda platform to paint China as a country that disregards international laws and has no respect for the rights of its neighbours. China, on its part, will try to convince the countries with which it has disputes in the South China Sea that it will be more than willing to settle them, provided they do not gang up with the U.S. in its plans to militarily and politically isolate China. Recent statements from Beijing indicate that the nine-dash line is not all that sacrosanct as far as the Chinese government is concerned.

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