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.

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Strife on the Global Commons

 This article is a summary of a presentation made by the author at the National Defence College (India) on 20 June 2014.  It was first published in the author’s monthly column on the Institute for Peace and Conflict Studies website on 14 July 2014 

By

Vice Admiral (retd) Vijay Shankar

Keywords: Global Commons, Mare Liberum, Mahan, UNCLOS, China’s Comprehensive Power, South and East China Sea

The run up to the Peloponnesian War (431-404 BC) was marked by a  debate held in Sparta amongst the Peloponnesian allies to  determine whether war against the aggressive seapower Athens and the maritime Delian League was to be waged. Leadership of the warlike alliance lay with the powerful yet reluctant Spartan king Archidamus, a man of both intelligence and moderation. He questioned “What sort of a war, then, are we going to fight? If we can neither defeat them at sea nor control the resources on which their navy depends, we shall do ourselves more harm than good.” To Archidamus, clearly, the inability to access and control the Global Commons of his era presaged defeat.

Global Commons is a term typically used to describe international, supranational, and global common pool resource domains. Global Commons include the earth’s shared resources, such as the oceans, the atmosphere, outer space and the Polar Regions. Cyberspace also meets the definition, but for our examination we shall focus on the hydrosphere. The parameters for enquiry necessarily include physical tangibles of Height, Width, Depth and the awkward intangible of human history.

Mahan in “The Influence of Seapower upon History” underscored three prescient perspectives relating to the Commons. First, competition for materials and markets is intrinsic to an ever trussed global system. Second, the collaborative nature of commerce on the one hand deters war, while on the other engenders friction. Third, the Global Commons require to be secured against disruption and rapacious exploitation.

Our understanding of the Commons must not suffer from any delusions that explicit and recognized conventions have evolved over the centuries. On the contrary, till the middle of the last century what passed for a principle was Hugo Grotius’ 1609 notion of Mare Liberum, freedom of the seas.The concept that the sea was international territory and all nations were free to use it. The free-for-all state of the Commons becomes evident in the fact of the seaward limit of national sovereignty being defined by the cannon-shot decree which would suggest that it was the ability to control that defined dominion. By the middle of the twentieth century the collapse of colonial empires and the birth of new nations set into motion a dynamic that demanded a change from cannon-shot rules and lawlessnessto equitability and responsibilities in the Commons along with demarcation of territorial and economic zones. The United Nations Convention on the Law of the Sea (UNCLOS I, II & III) met 1954 to 1982 to hammer out and define rights and responsibilities of nations in their use of the world’s oceans. The deliberations concluded in 1982 in and became functional in 1994. Recognizing that that the sea bed is the repository of vast and unguaged quantities of minerals, the Convention provided for a regime relating to minerals on the seabed outside any state’s territorial waters or Exclusive Economic Zone. It established an International Seabed Authority to regulate seabed mining and control distribution of royalties. To date it has been ratified by 165 nations. Significantly, the US Senate has snubbed the UNCLOS. What critically mars the compact is its imprecision, its illusory demand for the supranational and the absence of a structure to securethe Global Commons against disruption and rapacious exploitation.

The current distressed state of the Commons is discernable by the impact that globalization has had; strains of multi-polarity, anarchy of expectations and the increasing tensions between the demands for economic integration and the stresses of fractured politicaldivisions are symptoms. Nations are persistently confronted by the need to reconcile internal pressures with intrusive external impulses at a time when the efficacy of Power to bring on 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.

China’s rising comprehensive power has generated an internal impulse to military growth and unilateral intervention in its immediate neighbourhood in the South and East China Sea and its extended regions of economic interests. It has developed and put in place strategies that target the Commons to assure a favourable consequence to what it perceives to be a strategic competition for resources and control of the seaways that enable movement. The consequences of China activizing artifices such as the Anti-Access and Area Denial strategy and geo-political manoeuvres to establish the String of Pearls in the Indian Ocean Region evokes increasing shared anxieties and resistance by players in the same strategic milieu. Particularly at a time when the North Eastern Passage through the Arctic is emerging as receding ice cuts the Asia-Europe route via the Suez by half (from 23000 kms to 11500 kms) and technology opens the Antarctic to economic exploitation. The paradoxical effects of China’s contrivances are to undermine its own strategic standing, hasten counter balancing alignments and urging a global logic of cooperative politics over imperious strategies.