South China Sea: China’s Double Speak and Verdict at The Hague

By

Vice Admiral (retd) Vijay Shankar

When Premier Xi rubbished the 12 July 2016 verdict of the International Permanent Court of Arbitration at The Hague on China’s claims over most of the South China Sea, what exactly was meant? For no international justice system had thus far ever called China to order for its expansionist strategy.

What the Hague had in fact done was not only to uphold the case filed by the Philippines in 2013, after China seized a reef in the Scarborough Shoal; but also condemned China’s conduct in the South China Sea over construction of artificial islands and setting up military infrastructure. In an unequivocal rebuke, it found China’s expansive claim to sovereignty over the waters had no legal basis, historical or otherwise. The verdict gives motivation to the governments of Brunei, Indonesia, Malaysia, Vietnam and Taiwan to pursue their maritime disputes with Beijing in the Permanent Court of Arbitration (PCA). Small wonder then is Premier Xi’s fulmination.

The central issue before the PCA was the legality of China’s claim to waters within a, so called, “nine-dash line” that appears on official Chinese charts. It encircles 90 per cent of the South China Sea, an area of 1.9 million square kilometres approximately equal to the combined areas of Afghanistan, Pakistan and Myanmar put together. Philippines contention was that China’s claims were in violation of the United Nations Convention on the Law of the Sea (UNCLOS), which both China and the Philippines have ratified. In its decision, the tribunal said any historic rights to the sea that China claimed “were extinguished” by the treaty. And its failure to be a party to the deliberations in no way bars the proceedings. The UNCLOS lays out rules for drawing zones of control over the world’s oceans and seas based on coastal orientation. While the concept of Historic Waters means waters which are treated as internal waters where there is no right of innocent passage.

As far as the “nine-dash line” (originally eleven-dash) is concerned; following the surrender of Japan in 1945, China produced a proprietorship chart titled “Position of the South China Sea Islands” that showed an eleven-dash line around the islands. This map was published by the Republic of China government in February 1948. It did not hold onto this position after it fled to Taiwan. The Chinese Communist Party, however persisted with this cartographic notion, modifying the 11 to 9 dashes when in 1957, China ceded Bailongwei Island in the Gulf of Tonkin to North Vietnam.

Map: The Nine-Dash Line  Slide1

Source: BBC.CO.UK

The PCA concluded that China had never exercised exclusive authority over the waters and that several disputed rocks and reefs in the South China Sea were too small for China to claim control of economic activities in the waters around them. As a result, it found, China outside the law in as much as activities in Philippine waters are concerned. The tribunal cited China’s construction of artificial islands on the Mischief Reef and the Spratly archipelago as illegal in addition to the military facilities thereon which were all in Philippine waters.

The episode has besmirched the image of Xi Jinping, his politburo and indeed the credibility of the Communist Party of China (CPC). Tolose their legal case for sovereignty over waters that they have heavily invested in must come as a rude shock to their global aspirations. A complaisant response may set into motion the unravelling of the CPC’s internal hold on the state as defence of maritime claims is central to the Communist Party’s narrative. Any challenge to this account is seen in Beijing as a challenge to the Party’s rule. But the die has been cast; it remains to be seen how more regions and neighbours respond to China’s unlawful claims wherever it is perceived to exist. An indication of the regional response was Vietnam’s immediate endorsement of the tribunal’s decision.

Thus far China has responded sardonically with a typical Cold War propagandist style avowal “We do not claim an inch of land that does not belong to us, but we won’t give up any patch that is ours. The activities of the Chinese people in the South China Sea date back to over 2,000 years ago.” said the front-page in The People’s Daily, which ridiculed the tribunal as a “lackey of some outside forces” that would be remembered as a “laughingstock in human history.” Such dippy doublespeak has no place in contemporary geopolitics. For China to do nothing about the matter will be difficult in the extreme. It does not take a political pundit to note that some form of immediate coercive military manoeuvre in the South China Sea is in the offing. Also, it would hardly be realistic to expect China to scurry away to dismantle the military infrastructure it has so far set up; more likely it is their revisionist policies that would be reviewed.

Towards the end of the Cultural Revolution, in 1976, China brought out a movie titled “Great Wall in the South China Sea,” it was not about the inward looking narrative of Chinese civilization but of “expansive conquests that would knit together all of South East Asia.” The Hague’s verdict has grievously injured the latter strategy. And if the free world is to rein in China’s bid to rewrite the rule books including the right to unimpeded passage in the South China Sea then, it would do well to convince her of the illegitimacy of her position. In the meantime Indian diplomacy should promote the littorals of the South China Sea to seek arbitration for their maritime disputes with China at The Hague.

There is a New Symphony at Play

By

Vice Admiral (retd.) Vijay Shankar

(This article was first published on the IPCS website on 22/06/2016)

Change, more often than not, is driven by circumstances rather than scholastic deliberation. As President Obama once put it, perhaps as an unintended barb to the legions of geo-political seers that stalk Massachusetts Avenue, Washington DC, “Change doesn’t come from Washington but comes to Washington.” So it was with Prime Minister Modi’s three-day state visit to the USA (6th June to 8th June 2016). Not only did the visit lay the foundation to several strategic goals mutual to both sides, but was also punctuated by symbolism that provides a basis for the future. When Modi suggested stepping out of the “shadows of hesitations of the past” he could not have stated in more unequivocal terms that India’s strategic orientation was now one that not only respected the status quo, but also would contribute towards ensuring that attempts to upset it would not go unchallenged. At the same time laying a floral wreath at Arlington Cemetery to the Tomb of the Unknowns (a first for an Indian PM), on the face of it, was a tribute to that one unquestioning instrument of state power who historically has laid down his all for a national cause. Underlying the salute was recognition of the role played by the military in binding and stabilizing an uncertain security milieu.

Two salients of his visit are particularly significant. Seemingly disparate, they share a geo-political outcome that aggregates to stability in world order. The first is measures to bring about strategic equilibrium in the Indo-Pacific and the second, India’s admission into the Nuclear Suppliers Group (NSG) as a step in support of stability in global nuclear politics and commerce.

Mahan in The Influence of Sea power upon History underscored several prescient perspectives relating to the Global Commons. His treatise submitted that competition for materials and markets is intrinsic to an ever trussed global system. Inferring that the nature of commerce on the one hand deters conflicts, while on the other engenders friction; the oceanic routes and ports of access had to be assured. And then he went on to advocate that the Commons require to be warranted against hegemony, disruption and rapacious exploitation. These perspectives today ring a reality whose significance has not entirely been lost on the Prime Minister.

Typically the Global Commons describe international and supranational resource domains. It includes the earth’s shared resources, such as the oceans, the atmosphere, outer space and the Polar Regions. Cyberspace also meets current discernment. It is hardly coincident that it is in these very domains that China has shown aggressive intent. PM Modi’s understanding of contemporary dynamics in the Commons and the need to balance out China’s objectives of hegemonic control through strategic security partnerships is adroit. The current distressed state of the Commons is marked by the impact that globalization has had: strains of multi-polarity, anarchy of expectations and increasing tensions between demands for economic integration and stresses of fractured political divisions are all symptoms. Nations are persistently confronted by the need to reconcile internal pressures with intrusive external impulses at a time when the efficacy of military power to bring on positive political outcomes is in question. While most nations have sought resolution and correctives within the framework of the existing international order, China emerges as an irony that has angled for and conspired to re-write the rule book. In this context the PM’s statement to Congress that it was only strong Indo-US ties that could anchor security in the Indo-Pacific Region left little to speculate what direction relations were taking and the extent of mutuality that was perceived in the Logistic Support Agreement being fleshed out. Not only is India preparing for strategic collaboration with the US, but is buttressing its posture in the Indo-Pacific through multilateral cooperation with ASEAN. All this must be seen as its intent to institutionalise its presence in the waters of the Indo-Pacific.

Critics, maintain that scripting an international security relationship with the US flies in the face of autonomy in global affairs. In response one only has to note the transformed conditions of world order of the day which is far removed from that which existed between the post-World War II era to the end of the Cold War. Uncertainties of events and their multi-faceted impact reflect the new substance of increased global interdependence in every field of endeavour. Whether these fields are in the economic, political or security domains, corollary imperatives are interlinked at the national, regional and international levels.

Reports on the run-up to the plenary session of the Nuclear Suppliers Group (NSG) held at Seoul on 24 June 2016 suggest that the US and Russia along with 36 other member countries (total 48) have expressed support for India’s admission to the Group largely as a result of 3 considerations: India’s clean track record of non-proliferation; American, Russian along with majority support; and the lure of commercial gain. But China is resisting admission on the basis of a curious principle – that before any decision is taken about India’s membership, the NSG needs to agree on equitable and non-discriminatory criteria for membership of those countries that are nuclear weapon states (for “those countries” read Pakistan), but are not signatories of the Non-Proliferation Treaty (NPT). China argues that if any exception to the conditions for admission is to be made, then it should apply equally to both India and Pakistan. As a counter argument, accession to the NPT is not a criterion for membership — France was not a member of the NPT until 1992 though it was a founder member of the NSG in 1975. On the second rule condition — a good non-proliferation record; India has a better history than some of the NSG members. Particularly China, given membership in 2004, has debatably the most dubious proliferation record whether it is their dealings with Pakistan or North Korea. For that matter, equating the Indian and Pakistani applications for membership, as China has done, is disingenuous. Pakistan, while gloating that it has “successfully” blocked India’s bid to gain membership of the NSG, has not made a case worth examining. The United States in the meantime has apparently divulged some pretty damning information that entities of the Pakistan Atomic Energy Commission have continued to be in violation of UN sanctions as they supply restricted items and equipment with a direct bearing on the production of nuclear weapons to North Korea. China has been in the know of this information all along and may have been party to this fresh case of clandestine proliferation. So now the question that begs to be asked is, with what credibility does China obstruct India’s entry?! India has never had a state sponsored AQ Khan nuclear black-market network extending from Libya to North Korea nor sold nuclear technology to third parties nor been a persistent proliferator of nuclear technology. For China to have overlooked all this including the fact that, as Modi put it to the US Congress, all global terrorism is “incubated” in India’s neighbourhood (meaning Pakistan); must speak of China’s own veracity within the group.

What are the stakes involved? For India, the logical sequel to the Indo-US civil nuclear agreement of 2008 and the concomitant NSG waiver followed by entry into the Missile Technology Control Regime is membership of the NSG; for this will not only give total legitimacy to India’s nuclear aspirations but also, by entering the larger nuclear establishment, it will substantially contribute towards global nuclear stability. It also provides regulated and unimpeded access to technology. However, has China’s stonewalling worked? Given the circumstances that China finds itself in, clearly, not for long.  Also, New Delhi has thrown the gauntlet to China in a manner that most states are hesitant to in recent times; it’s flanking bid to gain entry to the NSG despite China, is suggesting new terms for global nuclear politics. The good news is that she carries the weight of more than 38 members in support including all major players. The initiation of an informal consultative process chaired by the outgoing chairperson of the NSG (who was actively involved in promoting India’s case) to continue examination of India’s basis for admission and the US continued advancement of the case are indicative of things to come.

In the event, India did not gain entry into the NSG during the June plenary. However, the robust thrust on the issue underscores a critical refrain: that the long-held perceptions of Indian foreign policy being ineffectual, non-aligned, placatory and unable to shape geo-political events are a thing of the past. That India will gain entry into the NSG, with the support it has garnered, is a foregone conclusion if not now, most certainly in the immediate future. If there are delays, it is solely due to China’s obstinacy, which is double edged, for it exposes to the world that China has no intention of accommodating Indian aspirations in favour of promoting ‘questionable’ interests and remains indifferent to the idea of mutuality. In this context, one must not so easily forget the lessons of the lead-in to the Sino-Indian war of 1962. The Indian plea in 1960 to arrive at a border agreement amicably based on all that India had done to gain China’s communist government legitimacy despite invasion of Tibet and Korea, fell on (Prime Minister Chou En-lai’s) deaf ears. If there is one lesson to be learned from China’s machinations, it is that the Politburo respects power and has scant respect for history or for any rule book that is not self-serving. Events in the South China Sea, making chattels of sea lines of communication and points of ingress of trade, brooking no competition where access to resources is concerned are all a continuum of its unrelenting march to strategic control; and this march cannot but look askance at the emerging challenge of India’s endeavours. For India’s foreign policy establishment, this must be seen as a fortuitous setting to find itself in provided it continuously questions China for its autocratic ways, its territorial thirst, its nuclear proliferatory dealings with Pakistan and North Korea, its disregard for the hazards of global terror and critically the legitimacy of its leadership. It is only then that India can proactively be a factor in global outcomes. Moves to stage a lateral entry into the NSG, securing Indo-US partnership in the interest of bringing about a strategic equilibrium in the Indo-Pacific and gaining membership to the MTCR are all symptomatic that India’s foreign policy and posture have come of age.

Observing recent events the prolific poet and realist, Walt Whitman, would agree that “now that the orchestra have sufficiently tuned their instruments and the baton has given the signal to play” Modi’s addendum that it “was best that a new symphony be played” is most appropriate.

Barbarism and the Smell of Cordite

By

Vice Admiral (retd.) Vijay Shankar

(This article was first published on the IPCS website on 30/05/2016)

 Aggregation of power is never more apparent than when there is dramatic increase in state controlled power-activism. Equally impactful is the growing disregard for moral principles when power (political, corporate or military) is exercised. The wars and repression in Afghanistan, Iraq, Syria, Ukraine, Yemen, Sinkiang and Tibet are continuous reminders of the nexus between state policy and savagery on the field despite the messianic goal of delivering freedom to the “downtrodden.”

Historically, whether it was the Kremlin’s control over its satellites, Japan’s atrocities in Manchuria, fascist Italy’s carnage in North Africa, China’s subjugation of Tibet or Pakistan’s genocide in the erstwhile East Pakistan; the pattern of state policy unleashing barbarism is familiar. What is not fully recognized is the manner in which technology serves to intensify violence exponentially, on all sides. Unfortunately, the advance of science and technology in the last century and indeed over the epochs has not gone with any comparable advance in human understanding of conflict and how best to mitigate the physical gore of warfare. Instead, the increase of knowledge has repeatedly intruded to generate new forms of atrocities on scales that are unprecedented.

At the State level, the idea of killing machines controlled from great distances executing their missions with chilling precision with neither the palpability of a human in combat nor an ethical code of restraint is most unsettling. Experience from the ‘Drone War’ currently being waged in Syria, Afghanistan and Pakistan pre-sages the advent of far more lethal systems employing advanced hypersonic remotely operated weapons at hair trigger notice, bringing to the fore all of our techno-moral anxieties.  The recent testimony of Brandon Bryant, a former US pilot and ‘predator’ drone operator, at the UN and in the German Parliament leaves a slithering sense that screens and sensors have stolen from reality human feelings, replacing it with a one-sided dystopian view of conflict. The drone operator stated, “… And I watched him bleed out of his femoral artery. And (sic) he’s rolling on the ground, and I can—I imagined his last moments. I didn’t know what to feel. I just knew that I had ended something that I had no right to end.”

Bertrand Russell in his 1915 essay titled “The Ethics of War” suggested that the “fundamental facts in this, as in all ethical questions, are feelings.” However, contemporary mores of conflict gives first propriety to instant success with low or no casualty return. This places power in a position of primacy and in the process relegates ethics to abstraction. In its station is a self-ordained faultlessness of cause, making justification of killing a juridical issue played by the rules of the powerful. In the process, legitimizing the extermination of as many as modern armaments makes possible, becomes a foregone conclusion. Whatever became of “the smell of cordite?” Is all now simulacra?

The real issue is the absence of an accepted and well complied rule book (notwithstanding the Geneva and Hague Conventions), opening the question as to why it is that right or wrong is determined solely on the power status of a nation thereby absolving states of the consequences of their actions. Clearly extrapolating a law and order approach internal to a state in matters of international relations is not only in transgression of the idea of sovereignty but brings with it the natural abhorrence of a super cop. Unfortunately, national interests, corporate fortunes, political insincerity and primordial prejudices besides the ideal propel international relations. The reality is that leadership is wedded to antiquated beliefs to make policy, while instruments to implement are driven by technologies that have long outpaced these beliefs (in terms of their destructive potential and the ability to generate an illusion that the very same beliefs can be clinically realised). This would also appear to be the strategic crisis of our times.

To advocate democracy by war as is being done today in Afghanistan, West Asia and elsewhere through recent history, is only to repeat, on a vast scale and with far more tragic results, the error of those who have sought it hitherto by covert means, the terrorist’s bomb or through ideological indoctrination. Contemporary geopolitics exemplifies the predicament.

Pacifists have long suggested that there is no reason why settlement of all disputes by the United Nations cannot be undertaken. Their plea that this great trial of our times has worked itself out towards only one conclusion and that is global disaster and suggested that “when the passions of hate and self-assertion have given place to compassion with the universal misery, nations will perhaps realize that they have fought in blindness and delusion, and that the way of mercy is the way of happiness for all” (Bertrand Russell). Actually, very little stands in the way of such romanticism other than nationalism, religion and the pride of leadership who wish to remain uncontrolled by anything higher than sovereign will. In truth, these are all formidable human traits; they are also at the root of violent struggles that trend towards a one sided faultlessness of cause. Brandon Bryant’s testimony was an articulation of the absence of ‘feelings’ that pushed morality out of the frame and ushered a dystopian vision of warfare.

Ethics in warfare is a complex and often intriguing subject. Killing, at the individual level has long been taboo with most civilizations; and yet when the scale of proportions is expanded to the state level, there appears historically an attempt to define just cause, just conduct and in more recent times a morality in post war settlement. The Christian tradition that exerted to propagate such a perspective saw for both ‘Jus ad bellum’ and ‘Jus in bello’ an awkward and often partisan arbiter, the Catholic Church. Yet, what perhaps provides a more elegant and convincing standpoint are the dialogues between Lord Krishna and the warrior prince Arjuna in the Indian epic Mahabharata. The discussions begin with the right to war and the criteria that make for a righteous one, the various gradations that postulated proportionality, just means and morality in the conduct of operations were central to the discourse while equality of combatants, their fair treatment and honour in war termination were of essence if victory were to be considered ethical. But then the problem has always been and remains: how, who or what will intercede on the side of the just? Particularly so when exceptional virtuosity is the right of the victor.

Not to labour the point, a quarter of a century ago on December 20, 1989, President George H.W. Bush launched Operation Just Cause, sending troops and combat aircrafts into Panama to execute a warrant of arrest against its leader Manuel Noriega (noisily condemned by the UN). A one-time CIA asset and close ally, he faced charges of drug trafficking. The country was invaded; its Dictator incarcerated, brought to trial and sentenced in the US. The operation set a trend for power activism in the 1990s and the first two decades of the new millennium. The dictum seemed to be a quick, surgical and internationally unsanctioned ‘in’ followed by regime change and a clean exit. Obviously the surgical ‘in’ was a point of view, it invariably left in its wake non-combatant casualties numbering in the thousands.

Before falling into the trap of reducing international relations and it’s sometimes sequel of conflict to a “morality melodrama,” it has to be recognised that humankind in its endeavour to come to grips with trans-national violence has arrived at a stage when the (general) use of force has been legally proscribed. But there remain conditions. And it is within these conditions of self-defence, right of intervention, pre-emptive protection of interests and indeed, the use of comprehensive force that nations bring to bear the weight of unbridled nationalism. It is also under these conditions that veto wielding Ayatollahs of the UN flourish. This then, is the rub, how can power be subsumed to a larger goal of collective accord? The short answer is that it cannot as long as the idea of nation states lies at the heart of the international system allowing states to internally promote centralization of power and externally present a Janus faced approach to moral principles.

Contemporary global order is unmistakably swayed by power, an expedient-slant to morality and a distinct readiness to use barbaric force as long as the smell of cordite remained sequestered. This perhaps is the lamentable ‘bulletin’ of the day.