‘There is a realization that the South China Sea issue requires a political framework, which can only be built through dialogue’. Photo Credit: AP
Foreign Ministers of India and Philippines met in the fifth meeting Philippines-India Joint Commission on Bilateral Cooperationin New Delhi on 29 June. Based on the shared interests of the two maritime Asian republics and nearly 75 years of diplomatic history, India’s External Affairs Minister, S. Jaishankar and the Foreign Affairs Secretary of the Philippines, Enrique Manalo, charted the way forward for a stronger bilateral partnership between Manila and Delhi in the 21st century.
south china sea issue
Decision to open Resident Defense Attaché Office in Manila; enhancing cooperation between the Coast Guards of the two countries; acquisition of naval assets by Manila under a concessional credit facility from Delhi; Expansion of training and joint exercises on maritime security and disaster responses, and launching of maritime dialogue are some examples of the growing strength of this maritime partnership. However, the most notable development was agreement on regional and multilateral issues, particularly on maritime highways such as the South China Sea. While India has reiterated its consistent position on abiding by international law including the United Nations Convention on the Law of the Sea (UNCLOS), its clarion call to respect the 2016 arbitration award on the South China Sea is a deviation from India’s previous position. From ‘Noted’ to ‘Adherence to the 2016 Arbitration Award’ there is a clear recognition of its validity.
The Philippines submitted an arbitration case to the Permanent Court of Arbitration (PCA) to settle disputes with China. Despite China’s formal withdrawal from the arbitration on 19 February 2013, the proceedings continued as scheduled under UNCLOS guidelines. Annex VII of UNCLOS states: “The absence of a party or the failure of a party to present its case shall not constitute a bar to the proceedings.” The PCA finally issued the award on July 12, 2016. The arbitration took into account maritime rights, the status of exclusive maritime features, historical rights and the legality of specific Chinese actions in the South China Sea, which Manila claimed were illegal. The decision of the Tribunal is “final and binding” in accordance with UNCLOS Article 296 and Article 11 of Annex VII.
The PCA denied China’s claim that it has historical rights over the South China Sea, and the unanimous decision was unexpectedly in favor of the Philippines. It further stated that any prior claims on resources located inside the “nine-dash line” were unfounded. The tribunal determined that development and land reclamation had fundamentally altered the reef, in violation of UNCLOS commitments. China has “caused irreparable damage to the marine environment” in addition to “destroying evidence of the natural state of facilities in the SCS”. [South China Sea],
The tribunal also found that “China has violated the Philippines by (a) interfering with the Philippines’ fishing and petroleum exploration, (b) building artificial islands, and (c) failing to prevent sovereign rights have been violated.” Chinese fishermen were prevented from fishing in the area. It said China had curtailed the traditional fishing rights of Filipino fishermen and that by physically obstructing Philippine vessels, Beijing raised a “serious risk of confrontation” at sea. Finally, it determined that China had no legal basis to claim historical rights over resources located in the maritime areas under the tribunal’s jurisdiction.
It is important to remember that the tribunal “did not rule that it was in principle illegal for China to carry out construction activities on the disputed islands under its possession”, and “there is nothing in the award to make it illegal for China”. Build military installations on the islands you occupy, except for Mischief Reef. But the tribunal emphasized that the dispute is driven by their fundamentally different interpretations of individual rights under UNCLOS in the South China Sea. What should be done in response to a China that is being stubborn and disobeying international law?
matter of communication
The South China Sea is an important maritime gateway and junction for shipping between the Pacific and Indian Oceans. Any conflict in the South China Sea, one of the world’s most important oceans in terms of geopolitics, economy and strategy, would be a threat to regional and global security. Since free and stable maritime zones are vital to global trade and economy, India and many other countries have an interest in the security of waterways passing through the region.
Despite the fact that the PCA has declared its decision, the ground reality has not changed, making it practically impossible to implement the decision. By reiterating the need for peaceful conflict resolution that fully respects legal and diplomatic channels and abides by the ruling, India has sent a strong message that the region seeks peace and respect for international law.
There is a realization that the South China Sea issue requires a political framework, which can only be built through dialogue. Leaders of the Association of Southeast Asian Nations (ASEAN) should try to find a political solution through “quiet diplomacy”, as there is little chance of resolving the issue through legal means. Progress towards building a “political framework” and a legally binding “code of conduct” rests heavily on the shoulders of ASEAN leaders. If ASEAN countries want to convey an important political message to China, greater mutual understanding is needed.
Rajeev Ranjan Chaturvedi is Associate Professor at Nalanda International University, Rajgir, Bihar. Views expressed are personal