The verdict by the Permanent Court of Arbitration (PCA) rejecting China’s ownership claims to 80 percent of the South China Sea (an area almost the size of India) was greeted with much satisfaction and glee in New Delhi. This was the first time that the entire basis of China’s “historical claims” (for example, the “nine-dash line”) was ruled to be invalid under international law by an international tribunal. The ruling not only has important implications for countries with unresolved territorial disputes with China but also impinges on India’s relations with Japan, the United States, ASEAN countries, and the international order. Coming as it did close on the heels of Beijing’s successful blocking—citing legal procedures—of New Delhi’s bids to gain entry into the Nuclear Suppliers Group (NSG) and to have the Pakistani terrorist Masood Azhar banned by the United Nations Security Council (UNSC), the verdict was seen as a “damning indictment” of China’s flouting of the United Nations Convention on the Law of the Sea (UNCLOS) and Security Council resolutions against terrorism that Beijing had itself signed and supported.Chiding ChinaThe Indian government’s official reaction was prompt and measured, with the Ministry of External Affairs (MEA) issuing a statement on the day of the award that called on all parties to show the “utmost respect” for the UNCLOS. By stressing that “India supports freedom of navigation and over-flight, and unimpeded commerce, based on the principles of international law, as reflected notably in the UNCLOS,” the MEA statement was seen as chiding China. Emphasizing India’s specific national interest in the issue, it added: “States should resolve disputes through peaceful means without threat or use of force and exercise self-restraint in the conduct of activities that could complicate or escalate disputes affecting peace and stability.” The demand for “utmost respect,” the assertion of India’s vital interest in maintaining “freedom of navigation and overflight rights under UNCLOS” and aversion to “activities that complicate or escalate disputes”—all implied strong criticism of Beijing’s intention to reject the tribunal’s verdict and continue as before.As expected, China strongly condemned the verdict, declaring it null and void, and questioned the legality of the tribunal itself. Its response contrasted sharply with India’s graceful acceptance of a similar arbitration between it and Bangladesh two years ago, even though the verdict went in favor of its smaller neighbor. However, it was not India that reminded China and the world about the adverse maritime-delimitation arbitration it had accepted with Bangladesh but U.S. Assistant Secretary of Defense for East Asia Abraham Denmark. On the eve of the verdict, Denmark called on China to follow India’s example of resolving its maritime boundary dispute with Bangladesh by accepting the ruling of a tribunal appointed by the PCA. However, an enraged China vehemently denounced U.S. advice to follow India’s example claiming that there was “no comparison” between the two cases.At the same time, China’s desperation to dispel the widespread perception of its global isolation led state-run media and diplomats to make outlandish claims about the support of sixty countries, including India. China’s Charge d’Affaires to India, Liu Jinsong, insisted disingenuously that India’s position on the South China Sea was “quite similar” to China’s own, as India had signed a “common position” statement on the issue in April 2016 in Moscow. The Russia-India-China trilateral joint communiqué by three foreign ministers did resemble the language used by Chinese foreign ministry statements: It called for all disputes in the South China Sea (SCS) to “be addressed through negotiations and agreements between the parties concerned. In this regard, the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.” However, while Chinese officials deliberately highlighted the first sentence, Indian officialdom and media took comfort from the second sentence, which placed limits on the first. Apparently, faced with the challenge of balancing India’s interests between the Russia-India-China continental trilateral and the U.S.-Japan-India maritime trilateral, the “please-all” joint communiqué was an act of diplomatic tap-dancing by New Delhi. Despite Beijing’s claims of substantial global support, only ten countries—nearly all of them landlocked, poor, corrupt, and dependent on Chinese largesse—openly lent support to China’s stance that it was “complying with the international law by rejecting the illegal tribunal’s verdict.”Much to Beijing’s chagrin, a joint statement issued by Indian and Japanese Defense Ministers following the annual Indo-Japanese Defense Ministerial Meeting two days later on July 14 again urged parties to “show utmost respect for the UNCLOS” and expressed the two countries’ “concern over recent developments” (Chinese actions such as the landing of planes on artificial islands and the tirade against the tribunal judges, coupled with threats to declare an air defense identification zone over the SCS). The language closely resembled separate statements issued by India’s MEA and Japan’s Ministry of Foreign Affairs on July 12. It was the second time that a joint Indo-Japanese statement mentioned the SCS territorial disputes and brought into sharp focus the evolving geopolitical alignments in Asia. In December 2015, a joint statement by Indian Prime Minister Narendra Modi and Japanese Prime Minister Shinzo Abe had called all parties to “avoid unilateral actions” in the South China Sea “that could lead to tensions in the region.” Tokyo and New Delhi also agreed to deepen their overall military cooperation by setting up a Maritime Strategic Dialogue and conducting the India-U.S.-Japan trilateral maritime exercise, Exercise Malabar, annually.The China-India Geopolitical RivalryThe growing Sino-Indian discord over the South China Sea adds to numerous stresses and strains in their bilateral relationship, still scarred by a border war of 1962 and unresolved territorial disputes in the Himalayas. With their growing economies and expanding geopolitical horizons, Asia’s giants now compete for forward presence and influence, especially as they scramble for energy resources. Since 2008, China has sent nearly two dozen naval expeditions to the Indian Ocean, ostensibly to counter piracy but implicitly to project power in the region. Given their unresolved disputes, China’s role as the largest arms supplier to India’s neighbors, and patrols by Chinese nuclear submarines in the Indian Ocean (which New Delhi considers its strategic backyard), India is understandably maneuvering for advantage in those spheres of influence that overlap with China. New Delhi has reached out to Asian neighbors but also to faraway countries in Beijing’s increasingly expansive shadow, most notably beleaguered Vietnam, the Philippines and Japan. India, much like Vietnam, has long perceived China as an irredentist and expansionist power. As noted strategic affairs analyst Brahma Chellaney observed recently, “China is not just aiming for uncontested control in the South China Sea; it is also working relentlessly to challenge the territorial status quo in the East China Sea and the Himalayas.” However, instead of launching “an old-fashioned invasion—an approach that could trigger a direct confrontation with the United States—China is creating new facts on the ground by confounding, bullying, and bribing adversaries.”Since 55 percent of India’s trade passes through the SCS, the Indian Navy has of late come to prioritize energy security and sea-lane protection. Since 2007, Beijing has been protesting a Vietnamese-Indian energy exploration project in the disputed waters of the South China Sea, and there have even been reports of Chinese warships confronting Indian naval vessels in the region. Ignoring Beijing’s warnings, India has publicly supported Vietnam and the Philippines, in particular in their disputes with Beijing, and continues to cooperate with Hanoi on hydrocarbon exploration in the South China Sea. In bilateral declarations with Manila, New Delhi has acknowledged the region as part of the West Philippines Sea and refused to endorse the Chinese discourse on the South China Sea. So India is clawing for influence, just as China is.As part of its “Act East” policy that dovetails with the “U.S. rebalance” and Japan’s “Proactive Contribution to Peace,” India has increased coordination, both military and diplomatic, with East and Southeast nations that also see China as a threat. New Delhi is currently negotiating the sale of the BrahMos cruise missile to Vietnam and frigates and patrol craft to the Philippines, while also forging military-to-military ties and economic and trade links with Indonesia, Malaysia, Thailand, and Singapore. At a time when ASEAN stands divided, India is placing itself at the center of regional relationships with Mongolia, Vietnam, the Philippines, Australia, Indonesia and Thailand as part of security architecture that would balance a rising China and enhance the safety and security of the global commons. In their high-level joint statements, both the United States and India have repeatedly declared their support for freedom of navigation and overflight, signaling that the Modi government is not shy about explicitly aligning U.S. and Indian strategic aims in the Indo-Pacific to counter China’s expansionist moves.For its part, China is increasingly uncomfortable with the prospect of India playing a greater role in the Indian and Pacific Oceans. Beijing disapproves of India’s joint naval exercises with the United States, Japan, Vietnam, and Singapore in the East and South China Seas. Beijing has let it be known that would not tolerate another maritime power operating in the South China Sea—which its officials have described as a “core interest” in relation to state sovereignty, territorial integrity, and national security, and thus inextricably linked to the Communist regime’s domestic legitimacy and survival. Control over the South China Sea is also vitally important to the success of Xi Jinping’s Maritime Silk Road strategy.Debating Gains, Costs and OptionsIndian policymakers and commentators often accuse China of double standards. They emphasize that the UNCLOS is not an “unequal treaty” imposed on Beijing by external powers. For years China participated as an equal in negotiating the UNCLOS and consented to the dispute-settlement procedures therein when it became a party to the treaty. What’s more, China makes full use of naval rights and freedoms under the UNCLOS in seas and oceans where it is not a littoral state yet seeks a major role, such as in the Indian Ocean and the Arctic Sea, but it denies the same rights and freedoms to other countries closer to home in the East and South China seas.India’s old China hands also note a striking similarity between the tactics adopted by Beijing to extend its land frontiers in the Himalayas and those it uses to advance its maritime boundary in the South China Sea. Just as the People’s Liberation Army (PLA) periodically sends border patrols in the garb of villagers, yak graziers, and road-construction engineering teams to the Indo-Tibetan border to change the facts on the ground, coast guard, fishermen, and maritime militias have been dispatched to expand China’s maritime frontier in the South China Sea.Beijing engages in verbal trickery as well. Though from a legal standpoint, the usage of the nomenclature “South China Sea” does not amount to recognition of historical Chinese sovereignty, Chinese admirals and generals claim with a straight face that “the South China Sea, as the name indicates, is China’s sea” (Rear Admiral Yuan Yubai, Sep 2015), but “the Indian Ocean is not India’s ocean” (Captain Zhao Yi, Sep 2015; Gen Zhao Nanqi, 1993)—a particularly galling claim for New Delhi. Although Beijing claims about 80 percent of the South China Sea as its “historic waters” (and has now elevated this claim to a “core interest” akin with its claims on Taiwan and Tibet), China has, historically speaking, about as much right to claim the South China Sea for its exclusive use as Mexico has to claim the Gulf of Mexico, or Iran the Persian Gulf, or India the Indian Ocean. In other words, none at all.The continued reinterpretation of history to advance contemporary political, territorial, and maritime claims, coupled with the Communist leadership’s ability to turn “nationalistic eruptions” on and off like a tap during moments of tension with the United States, Japan, Vietnam, the Philippines, and India makes it difficult for Beijing to reassure neighbors that its “peaceful rise” is anything like peaceful. Though Chinese leaders and diplomats still chant the mantra of “peaceful rise,” their body language tells everyone to get out of their way.Against this backdrop, India could not have hoped for a better PCA ruling. The verdict is a welcome development for India’s burgeoning economic and strategic interests (especially oil exploration off Vietnam) as the tribunal declared the South China Sea to be international waters. Strategically, the ruling provides legal and diplomatic cover for increased Indian naval engagement (including freedom of navigation operations and joint exercises) with other Southeast Asian countries in the South China Sea. A clear victory for the Philippines is also a shot in the arm for other claimants like Malaysia, Indonesia, Vietnam, and Brunei should they choose to bring their cases to the PCA. Indian strategists believe that China’s attempts to split ASEAN would polarize the region resulting in “China versus the Rest.” The ruling should give India greater maneuverability to act as a balancing power or as a possible counterweight to China in the Indo-Pacific. Given China’s bases (Djibouti and Gwadar) and increasing naval forays in the Indian Ocean, the Indian Navy wants to stake out a presence in the South China Sea, mainly to counter China’s in the Indian Ocean. Not only that, the court ruling’s denunciation of Xi Jinping’s South China Sea policy raises questions about his judgement and leadership and could weaken Xi’s hold on power at the next Party congress. In addition, it could unravel Xi’s ambitious Maritime Silk Road through the Indian Ocean—another net gain for India.The tribunal’s award could be beneficial for India in other ways, too. China’s disregard for international law puts Beijing, which had earlier blockaded New Delhi’s NSG bid by citing the law, on the back foot. India, by contrast, stands on a higher moral ground for having obeyed the PCA’s award to Bangladesh on a similar issue. This development should bolster India’s case for NSG membership and undermine China’s efforts to rally countries like South Africa, Brazil, Ireland, and New Zealand against India in the next plenary meeting.More importantly, some Indian strategic analysts believe that the tribunal award, which demolished China’s historical claims regarding the “nine-dash line,” could also undermine China’s claims to Arunachal Pradesh. India, for one, has never bought Beijing’s historical argument on Tibet. If historical claims had any validity, then Mongolia could claim all of Asia simply because it once conquered the lands of the continent. The tribunal also concluded that, if China had historical rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the UNCLOS. If one were to apply the same logic to the Sino-Indian boundary dispute, the PCA verdict would seem to bolster India’s case vis-à-vis China. As one Indian China expert, Srikanth Kondapalli, points out: “In 1914, the Simla Conference, which resulted in the MacMahon Line, was initialed by Chen Yifan of the Nationalist government. While the document was not expanded into a treaty later (due to differences over the Sino-Tibetan boundary, not the Indo-Tibetan border), according to international law, initialing implies the freezing of negotiations.” So, Kondapalli argues against extending China’s historical argument “to cover Arunachal Pradesh, which can, at best be described as a semi-legal case.” The international tribunal would concur: law trumps history.Many Indian strategic analysts, still smarting from China’s obstructionist posture in international forums, want Beijing to stew in its own juice, and favor their government’s adoption of a tit-for-tat policy. Just as non-proliferation rules cannot be bent for New Delhi, they maintain, UNCLOS rules must not be bent for Beijing. The PCA ruling “establishes international legal order of seas and oceans and all parties must respect it.” For them, China’s rejection of the verdict is all the more galling when compared with India’s acceptance of an adverse UNCLOS ruling on the disputed maritime boundary issue with Bangladesh.Most believe that Xi’s China values territorial gains more than reputation costs. China’s growing economic strength, military might, and hyper-nationalism at home are spurring actions abroad that bring it into increasingly dangerous conflicts. For example, former Indian National Security Adviser S. S. Menon does not see the Chinese “backing down” any time soon and expects its “aggressive expansionism in the near future” to continue. In that case, Beijing’s belligerence would usher in the formation of a U.S.-led maritime coalition to maintain freedom of navigation and overflight in the Pacific.On the other hand, some of India’s China experts and former diplomats stress the need to dial down tensions, help China find the middle path through diplomacy and negotiation, and enable Beijing to step back and uphold the rules-based system. China-watcher Kondapalli wants his country “to pursue a policy of mediation between China and the Southeast Asian countries for regional security.” Others caution against unnecessarily antagonizing or provoking China. Says former Foreign Secretary Kanwal Sibal: “China’s land threat to India and the strengthening of the China-Pakistan axis are much more serious for us than its maritime claims.” For retired Commodore C. Uday Bhaskar, an angry or petulant China that turns its back on mediation or international arbitration, and lashes out at its weaker neighbors is not a desirable outcome. He thinks that “India has more to lose than gain by ratcheting up tensions especially at a time when the Chinese could be probably be feeling hemmed in and isolated,” because “India after all does have vital interests in maintaining a peaceful and stable relationship with China given the extent of trade links, disparity in economic standing, existing border disputes, etc.” Having said that, nearly everyone wonders if the region’s future will be defined by adherence to international laws and norms or whether it will be determined by money and might.Alternative FuturesThe Hague ruling marks a definitive moment in the evolution of maritime law and Asia’s geopolitical order. The court case is over, but the dispute is not. The South China Sea, through which more than $5.3 trillion of maritime trade passes each year, is now the arena of a geopolitical poker game that will determine the future of regional order: Pax Sinica or Pax Americana. Washington seems as determined to preserve the U.S.-led liberal international order as Beijing is to change and modify it.The PCA ruling forces China to decide what kind of a power it aspires to be—one that upholds existing laws and norms or one that flouts them in naked pursuit of power, territory, and hegemony. Whether a major power becomes a great power or not is also determined by the reactions or acquiescence of others. The support of Gambia, Sudan, Pakistan, Laos, or Cambodia will definitely not make China a great power. So, the choice is clear: Beijing can either dial down tensions or double down on its disputes. China’s choices will shape Asia’s future. Should Beijing adopt a moderate foreign policy course and re-commit itself to international law and norms, the Asian security environment will improve. All Asian countries want to benefit from economic ties with China, but none want the return of a Sino-centric tributary order.Faced with an aggressive China, Asia’s major maritime and democratic powers—India, Japan, and Australia—will work in a more synchronized manner in a quadrilateral grouping with the United States. They will be backed by middle powers (South Korea, Vietnam, the Philippines, Malaysia, and Indonesia) which are increasingly worried about Chinese maritime behavior. They will cooperate closely with each other to promote and defend a rules-based order that does not advantage big and powerful nations at the expense of small and weak states. Over time, various bilateral, trilateral (such as Japan-Vietnam-the Philippines, the United States-Japan-India, Australia-Indonesia-India, India-Japan-Vietnam), and informal multilateral efforts to constrain China could coalesce into a maritime coalition or the “Indo-Pacific Maritime Partnership” (an “Asian NATO” by another name). If the Chinese dragon is seen as running rampant in lands and seas around India, a weak Indian tilt toward the United States would turn into a firm alignment against China.
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Published on: July 22, 2016
South China Sea ChangeIndia’s Response to the South China Sea Verdict
The ruling couldn’t have been better for New Delhi, but where India goes next depends on China’s response.