Context: During the official visit of Foreign Minister of Philippines to India for Joint Commission on Bilateral Cooperation with India’s External Affairs Minister, India upgraded its position and explicitly called for abiding by the 2016 arbitration award by the Permanent Court of Arbitration under the UNCLOS. The arbitral award came on a petition by Philippines to the Permanent Court of Arbitration and ruled in favour of Philippines. China did not participate in the arbitration process neither does it recognise the legality of the Award.
What is the dispute regarding the South China Sea?
- South China Sea is a semi-enclosed sea in the western Pacific Ocean.
- Following countries share the littoral of South China Sea: China, Vietnam, Philippines, Malaysia, Indonesia, Brunei.
- China has been making claim over the vast majority of South China Sea on the basis of historic entitlements. China claims over an area known as Nine Dash Line, which is based on the drawing a EEZ around disputed islands over which China claims its fishermen went on fishing and hence, it’s sovereign territory.
- Name of the disputed islands are:
- Paracel Islands
- Scarborough Shoal
- Spratly Islands
- China wants to pursue one to one negotiations with countries of the littoral, where it thinks it can muscle through it demands due to vast asymmetric power difference between China and these countries.
Salient Features of the 2016 Arbitration Award
- No legal basis for China’s ‘Nine-Dash Line’ which is based on historic rights which China enjoyed during ancient times in South China Sea. According to the Award, UNCLOS defines the scope of maritime rights of littoral states in South China Sea.
- None of the land features claimed by China in the South China Sea (Spratly & Scarborough Shoal) are ‘islands’ for the purposes of UNCLOS. Since they are not islands, they cannot generate an exclusive economic zone and continental shelf. UNCLOS defines islands as ‘a naturally formed area of land, surrounded by water, which is above water at high tide’ and only islands have claim over territorial sea, contiguous land and 200 nautical miles of EEZ and continental shelf. On the other hand, a “rock” is a category of island which “cannot sustain human habitation or economic life of [its] own” and carries no entitlement to an EEZ or continental shelf.
- UNCLOS provides that any decision rendered by a court or Tribunal having jurisdiction is final and binding between the parties. Thus, China’s not adhering to the Award against it goes against liberal economic order and adherence to international law.
- China through its maritime surveillance vessels, promulgation of a fishing moratorium in South China Sea, and construction of artificial islands and installations, had interfered with the exercise of the Philippines’ sovereign rights in its EEZ and continental shelf with respect to fishing, oil exploration, and navigation;
- China failed to prevent exploitation of Philippines’ living resources by Chinese fishing vessels in the Philippines’ EEZ;
- China interfered with the traditional fishing activities of Philippine fishermen at Scarborough Shoal;
- China failed to protect and preserve the marine environment by tolerating and actively supporting Chinese fishermen in the harvesting of endangered species and the use of harmful fishing methods that damaged the fragile coral reef ecosystem in the South China Sea;
- China inflicted severe harm on the marine environment by constructing artificial islands and engaging in extensive land reclamation at seven reefs in the Spratly Islands; and
- China through the activities of its law enforcement vessels, created serious risk of collision and danger to Philippine vessels and personnel.
India’s evolving position on South China Sea
- In earlier statements, India called for peaceful resolution of disputes among the countries of South China Sea littoral.
- India called for freedom of navigation and overflight and unimpeded commerce based on international law in the South China Sea region.
- India has criticised unilateral use of force and abiding by principles of UNCLOS to amicably resolve the disputes between ASEAN countries of South China Sea Littoral and China.
The present joint statements is the first time India has officially asked parties to adhere to the Arbitral Award i.e., India is expressly siding with Philippines and against China on the South China dispute. The reasons for the same are:
- Changing policies in Philippines: Earlier, Philippines government under President Duterte tried to court China and put the issue of 2016 award on the backburner. However, present Philippines government under President Marcos Junior has taken the award more seriously and consider its ruling as final.
- Geopolitical changes: USA and Quad countries have been backing India to play a larger role in the dispute resolution of South China Sea. China’s increasing belligerence on India’s territorial borders of Ladakh and Arunachal have also compelled India to take a more confrontational stand against territorial claims of China elsewhere.
- Bolstering defence of Vietnam & Philippines: India has been selling weapons to Veitnam and Philippines, countries party to the South China Sea dispute against China to bolster their defences. India is considering to sell Brahmos missiles and Tejas airplanes to both Vietnam and Philippines. This will also boost indigenous defence industry and boost defence exports.
- India should focus on assisting ASEAN countries with all resources and technological knowhow to defend their territory. India has been a votary of ASEAN centrality while dealing with South China Sea dispute and this position should be continued.
- India should contribute and facilitate quick finalisation of Code of Conduct among the Littoral Parties of South China Sea, which will ensure long term peace and amity in the region.
- Ensure that South China Sea remains open for maritime shipping and overflight.