Vol. XL No. 35 August 28, 2016

South China Sea: The UNCLOS Verdict

Yohannan Chemarapally

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 judgment on the dispute on July 11 in its stride. Senior officials have said that the situation in the South China Sea should not be allowed to escalate. The Chinese government had announced some months before that it would ignore the decision of the tribunal, saying that it had no jurisdiction over the case as the main dispute was over land in the form of islands and islets in the South China Seas. The Hague tribunal had ruled that the “nine-dash line” under which China has claimed the disputed areas in the South China Sea was a violation of the UN 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 Beijing had never exercised exclusive authority over the waters. The tribunal in its 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 was quick to issue a statement saying that it views the tribunal's decision “as invalid and 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. It was the Obama administration that had pressured the government of Philippines in 2013 to approach the UN Court at the Hague. Interestingly the United States is not a signatory to the UNCLOS treaty. In 1986, the United States had ignored the ruling of the International Court of Justice (ICJ). The Court had ruled that the Reagan administration's mining of Nicaragua's main port was an illegal act. All the same, Washington instigated the government of Benigno Aquino to approach the UNCLOS Court at the Hague. The Obama administration provided invaluable help to the Philippine government in preparing the case to be presented before the arbitration court.

Againt confrontation
The newly elected Philippine president, Rodrigo Duterte, is against the confrontational style of politics that was practiced by his predecessor against China at the behest of the Obama administration. Before being sworn in as president, Duterte had said that he would govern his country as a “leftist” president and that his primary focus would be on the economy. He had talked about getting China's help for infrastructural development. He is unlikely to fully follow the script that the Americans have prepared for the Philippines as part of its strategic military pivot to the East. Duterte has even spoken about his objections to a permanent American military presence in the Philippines on the election trail. Aquino had signed a military agreement with the Americans which gave them renewed military basing facilities in the Philippines. The two countries are also signatories to a Mutual Defense Treaty under which the United States is supposed to come to the aid of the Philippines if its armed forces come under attack.

The Philippine government while welcoming the verdict of the Hague tribunal has send out strong signals that it would prefer to arrive at a negotiated settlement with Beijing over the South China Sea dispute. Duterte had announced that he is planning to send a former Philippine president, Fidel Ramos, to Beijing to explore possibilities of a holding of talks on the South China Sea dispute. When Ramos was president, the two countries had enjoyed good relations. The Philippine government is however insisting at this juncture 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 could be heading for a confrontation, if Manila insists on invoking the UNCLOS ruling. Washington however wants Manila to take a confrontational stance on the issue. The US secretary of defense, Ashton Carter called up the defense minister of Philippines, Delfin Lorenzana, after the court verdict to discuss more ways to “deepen and enhance defense cooperation”.

All the other countries involved in the dispute with China, have welcomed the UNCLOS ruling with the notable exception of Taiwan. The other countries involved in the South China Sea dispute are Vietnam, Indonesia, Malaysia and Brunei. The Taiwanese president, Tsai Ing-wen, said that the UN tribunal's 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 China Sea can be traced to the map issued by the Nationalist Republic of China (ROC) government that was in power till 1949. The ROC had mapped 291 islands, reefs and banks in the South China Sea and put them under the nine dash line in 1947.  After its defeat in the hands of the Communists, the Nationalist government had transplanted itself  in Taiwan.  

Taiwan is among the closest military allies of the United States and Japan in the region. The Hague tribunal had 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 don't apply. Taiwan has been in control of the island since 1956. The spokesman for the China's foreign ministry 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 UN tribunal described the country as the “Taiwan Authority of China” in its judgment.

Other Southeast Asian nations not directly involved in the dispute preferred to mainly keep a discreet diplomatic silence. The Indian external affairs ministry was however quick in welcoming the ruling by the UNCLOS tribunal. In 2014, India had 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” dispute. New Delhi does not want UNCLOS to get involved in that dispute and instead 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 UN 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 supports the “freedom of navigation and overflight and unimpeded commerce, based on the principles of international law as reflected notably in UNCLOS”. The statement went on to add that “sea lanes of communication passing through the South China Sea are critical for peace, stability, prosperity and development”. $5 trillion in annual trade passes through the South China Sea, constituting 30 percent of the global marine trade.

Need for negotiated settlement
The Association of Southeast Asian Nations (ASEAN) has not issued a statement on the international court's ruling. The majority of the countries in the grouping want a negotiated settlement to the South China Sea dispute. For that matter, even those Southeast countries involved in the dispute are reluctant to drag the matter to the Hague. Hanoi had initially supported the nine dash line claims of China when Chairman Mao 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.
Beijing has been cautioning India for some time against joining the United States in politicising the South China Sea dispute. India's prompt official response to the South China Sea verdict, according to many observers, was prompted by the diplomatic fiasco at the Nuclear Suppliers Group (NSG) meet in Seoul in June. Delhi blames Beijing for its failure to enter the elite group.   

China has a great stake in ensuring freedom of navigation in the South China Sea as much of its energy imports are routed through the South China Sea. Beijing had reacted sharply to the statements by the United States and Japan that China should adhere to the decision by the UN tribunal and give up its territorial claims. Beijing is also of the view that other countries are harping 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 United States and its allies in the region is a pretext to raise military tensions. US naval ships have been conducting so called “freedom of navigation” near the islands claimed by China for some time now. A senior Chinese Naval official said that China will never allow anybody to sabotage the 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 Chinese official warned.

The biggest gainers of the South China Sea verdict are the United States 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 that they do not gang up with Washington in its grandiose plans to militarily and politically isolate their country. Recent statements from Beijing indicate that nine dash line is not all that sacrosanct as far as the Chinese government is concerned.