Time to corner China on South China Sea: India is right to speak up

India rightly has taken a clear position that all disputes in the South China Sea should be resolved peacefully through negotiations, and the rule of law must prevail to maintain a free and open Indo-Pacific. India for a long time was largely silent over the maritime disputes in the South China Sea. However, as Indian economies grow and its interests in the larger Indo-Pacific region keep rising, India has a right to watch developments and raise concerns as and when needed. Instability and disorder in the South China Sea would surely affect the Indian economy as well. More than fifty per cent of Indian trade passes through the South China Sea. China thus has no business telling India to stay out of issues in the South China Sea.

China boldly rejects the 2016 International Arbitration Tribunal’s ruling on its claim of sovereignty over an area marked by its declaration of a nine-dash-line as illegal and calls the decision “wastepaper”. While the Tribunal’s award says that the Chinese claims of its rights over a large chunk of the waters of the South China Sea have no basis under the United Nations Convention on the Law of the Sea (UNCLOS), Beijing calls this “illegal and invalid”. Who gives the legal authority to China to declare the decision of an International Arbitration Tribunal under the UNCLOS (United Nations Convention on the Law of the Sea) illegal?

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Significantly, the arbitration case was initiated by the Republic of the Philippines against the People’s Republic of China in 2013 under Annex VII of the United Nations Convention on the Law of the Sea. And China happens to be one of the first countries to sign the UNCLOS in 1982 and ratify it in 1996. It is noteworthy that if China had decided to be a party to this case and put forth its own arguments and historical records before the five arbitrators with the Permanent Court of Arbitration serving as the registry, the ruling could have been a little different. But China preferred not to nominate an arbitrator, unlike the Philippines. The arbitrators examined extensive evidence on maritime features, territorial claims and other allegations and gave their rulings, and China promptly declared the ruling “null and void”.

China opted to use its naval muscle and economic prowess and assert its version of historical records to stake its claims of sovereignty over the disputed islands of the South China Sea and preferred to bypass the legal provisions of a treaty on the laws of the sea that it willingly signed and ratified. The international community was by and large reticent over the ruling of the International Tribunal in 2016, even though the Philippines celebrated its legal victory for some time. Most major powers kept busy in making trade and investment ties with China and spoke little about the victory of the Philippines. China, on the other hand, persistently resorted to “grey zone” warfare to assert its control over the South China Sea. It adopted non-kinetic and salami-slicing strategies to expand its presence and harass smaller neighbours, such as the Philippines, and refused to resolve the disputes of sovereignty over islands, reefs and shoals through collective negotiations among the disputants, such as Indonesia, Vietnam, Malaysia, the Philippines, Brunei and Taiwan.

Ironically, the ASEAN member countries, who have been seeking a code of conduct for the regional navies in the South China Sea themselves, do not have a consensus stand on the sovereignty issue. This has further strengthened the Chinese behaviour. Five of the six countries that have disputes with China on the sovereignty issues in the South China Sea are members of ASEAN, yet they have not been able to evolve a common stand. Moreover, the most dominant navy in the Indo-Pacific is that of the United States of America. Japan, South Korea, and Australia are its strategic allies, and a host of other countries rely upon the traditional security commitment of the United States. Despite this, no power has been able to effectively challenge the militarisation of the islands in the South China Sea by China. Numerous naval exercises are periodically conducted by the Filipino and the US navies, sometimes along with that of the Japanese navy, yet these have been ineffective in preventing the grey-zone warfare by the Chinese navy.

Times have, however, changed, and the geopolitical scene of oceans and seas has assumed very complex characters. This explains why China has cried foul soon after fourteen countries recently upheld the validity of the 2016 ruling of the International Tribunal on the South China Sea and why China has reacted very strongly to observation by these countries and the European Union after ten years of the tribunal’s ruling.

First of all, the impact of the ongoing Iran war and Tehran’s weaponisation of the Strait of Hormuz has sounded an alarm bell around the world. If one country were to aspire to control a strait that provides a passage for energy and other trade in goods, what will be the consequences for the global political economy? The international community cannot accept a fee for using the Strait for commercial purposes, be it a superpower like the United States or a littoral state, such as Iran.

Secondly, the war in Ukraine that was largely confined to land has spread to the Black Sea and Sea of Azov. As in the case of Iran, Ukraine, a relatively weaker power, has successfully begun to confront Russia. What is more important to notice is the vulnerability of waterways during regional conflicts that can have serious adverse impacts on international trade and commerce.

In the case of the South China Sea, a water way that accounts for almost one-third of global trade and has the potential to disrupt the economies of a large number of countries cannot be allowed to be controlled by any single power. The reason as to why fourteen countries issued a joint statement on the eve of the tenth anniversary of the 2016 ruling of the International Tribunal to emphasise the need for upholding freedom of navigation and the rule of law is the rising global concerns over leveraging waterways by an extra-regional power or a littoral state.

China has leveraged its economic power to bribe or pressurise smaller countries to withdraw their recognition of Taiwan. It has used its economic influence to prevent ASEAN unity from taking a consensus stand on South China Sea disputes. China may try again to use its influence to silence countries from raising the issue of the South China Sea or make them back China’s position.

But the open joint statement of fourteen countries from the three continents – Asia, Europe and the Americas – on the need for freedom of navigation in the South China Sea appears to have cornered China. The number of countries that would endorse keeping the South China Sea open for free movement of goods and services and people will rise in the future. Openly defying international law and particularly rules of law under UNCLOS will be more and more costly for China.

(The writer is founder chairperson, Kalinga Institute of Indo-Pacific Studies, and Editor, India Quarterly. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect Firstpost’s views.)