What the tribunal’s award is all about and what it means for the Chinese and neighbouring nations.

Geopolitics finds its roots in the oldest of times; being the cause of conflict for hunter-gather communities to the more modern civilised ones. While geopolitics in the late 17th and 18th century saw materialisation of a number of treaties and pacts to ensure prevention of power hegemony over the West, 21st century geopolitics materialises through different means altogether. An economically close knit front prevents global military powers from exercising policies that bring them in open confrontations with neighbouring nations. Imperialist means of direct annexation face serious consequences today; Russia’s annexation of Crimea the most recent example. A tumbling rouble and excruciating sanctions on exports has cost Russia billions of dollars since. After this, one would only be a fool to keep any territorial expansion aspirations. But the Hague tribunal’s decision last weeks brings in front of us yet another example of territorial dispute hidden under the shadows of sovereignty, history and culture.

The Republic of Philippines appealed to the Permanent Court of Arbitration, Hague (PCA) against China’s aggressive expansion strategy and territorial claims in the South China Sea. During the proceedings, Philippines presented a 15 point submission document and requested the tribunal to investigate the validity of those 15 points.

Despite the Chinese refusing to attend the proceedings of the tribunal, Annex VII provides that the “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” In addition to that, contrary to what China has to say about this case falling outside the jurisdiction of the tribunal, the tribunal states that both the states are parties to the Convention and hence its jurisdiction applies in the matter. The tribunal has also stated that it isn’t a case regarding national sovereignty and delimination of maritime zones, but a case about entitlements of maritime zones.

After frequent appearances made by Philippines and none by China, the tribunal issued an award under Annex VII of the UNCLOS. The tribunal’s award discusses China’s claim in the South China Sea. The award mainly discusses the following points:

  1. Role of historic rights and source of maritime entitlements in South China Sea;
  2. Status of certain maritime features and the maritime entitlements they are capable of generating;
  3. Lawfulness of certain actions by China that were alleged by the Philippines to violate the convention.

In fact, China’s refusal to take part in arbitration process points towards the very nature of the disputed area. China’s 9 dash line in the region exhibits the country’s control in almost 90% of the area encompassing a major chunk of the exclusive economic zone granted to Philippines under the UNCLOS. At the base of these Chinese claims are historical and cultural privileges that the country claims as a result of Chinese occupation of the area ranging back to hundreds of years.

Before we move on to the topic of what the decision was all about, I believe it is important to discuss the importance of the South China Sea and the reasons that are creating all the fuss. The South China Sea has become an area of economic importance. With almost half of the world cargo passing through the area, the area under dispute accounts for $4.5 trillion worth of goods and services. The area is excessively rich in hydrocarbons and contains large reserves of oil and natural gas making it a piece of territory that comes with economic and military advantages.

The Hague tribunal gave a decision and repudiated China’s claims. Below is a point by point explanation of the major decisions:

  1. Historical Claims of China: The tribunal has said that a number of fishermen of Chinese as well as other origins have used the area for economic purposes and that there is no evidence that China ever practiced exclusive control over the area.
  2. Status of Features: In order to a maritime feature (in its natural form) to be counted as territory and gain exclusive 12 nautical miles area it must remain above the water during high tides. The Tribunal concluded that certain reefs claimed by China have been heavily modified by land reclamation and therefore do not give the country an exclusive 12 nautical miles control.
  3. Exclusive Economic Zones: Islands that have or can sustain a stable community or economic life from resources from the island gain the right to a 200 nautical mile exclusive economic zone. However, the tribunal noticed that Spratly Islands are not capable of sustaining a stable community without external resources from China and therefore are not privileged to the entitlement of EEZ.

The tribunal considered all the factors above and gave the decision in favour of Philippines stating- since none of those prove China’s claim over, their expansion is an intrusion into Philippine sovereignty. Certain areas come exclusively under economic zone of Philippines.

It is imperative to discuss the repercussions of China’s decision to flaunt the award and how it affects global and neighbouring powers.

The area is truly the ‘ring of fire’ when it comes to its military importance. It has come to become the crux of military display in the east due to ideological and economic reasons as discussed before. The only way China can exhume itself from the acts of the second world war is to display its strength in the South China Sea. Its shenanigans in the area are a replica of the American policy in the Carribean; a clear cut brutal power play against countries such as Cuba and Nicaragua which were much smaller economically and militarily.

Since the cultural revolution, China has undergone a massive change. Its high military and infrastructure spending since the late 80s has turned it into a global power, placing the state in level with US. It has become imperative for the country to dominate in the East and weigh the scale with American military dominance in the West. In order to do so, China must overshadow major eastern players: Japan, Russia and India and complying with the tribunals decision only points towards one thing for China: that it still cannot do flaunt its massive military and economic strength and that it has to succumb to American power. Gaining control over the South China Sea delineates its military power.

In fact, Chinese media has been playing very hard to convince its citizens that the country’s expansionist policy in the South China Sea is justified by all means. The media stated that- “The activities of the Chinese people in the South China Sea date back to over 2,000 years ago. China is the first to have discovered, named, and explored and exploited Nanhai Zhudao and relevant waters, and the first to have exercised sovereignty and jurisdiction over them continuously, peacefully and effectively, thus establishing territorial sovereignty and relevant rights and interests in the South China Sea.” The media has also been playing with emotions igniting the territorial dispute as another one of Japan’s atrocious acts; just like the many committed during the second world war.

The US adopted its ‘pivot to Asia’ policy in the mid 90s in a bid to keep of check on increasing Chinese and North Korean military power. Military tension has increased exponentially since US’ involvement in the region due to heavy mobilisation of some of its major aircraft carriers. China’s open dismissal of the tribunal award is only bound to increase the joint military exercises that US conducts with protesting countries of Japan, Philippines, South Korea. US has already placed two aircraft carriers in the disputed region claiming that it has the right to do so  under ‘freedom of navigation operations’.

The United States is replicating its Caribbean policy in which it targeted countries such as Cuba, Nicaragua, and Colombia for regional dominance and economic exploitation. In all of the countries mentioned above, US invaded the countries through mercenaries and toppled governments claiming that the countries were a threat to American sovereignty and peace. George H.W. Bush administration sent an army of 26,000 to Panama on Dec 20, 1989 in the name of “protecting American lives there from political instability.” However, China is no Colombia or Nicaragua and the Americans know it well. Plus, US intervention extends beyond the mere economic benefits to ideological differences and global dominance. It is important to note that more than 60 countries and international organizations, as well as over 130 foreign political parties and groups, have voiced support for China’s principled position in the South China Sea far outnumbering those who back the assertions of the US backed Philippines.

The Chinese, still, have to think before they act. This is the first time that China has been brought before an international court and has been accused of serious crimes such as destroying coral reefs and infringing on Indonesia’s exclusive economic zone. As an aspiring superpower, China cannot come across as a bully just yet. It needs to gather support from countries around the world and openly criticizing and abnegating the Hague verdict will do everything but make neighbours feel comfortable.

The situation has brought forward some questions for India. There is much reason to believe that India will remain a passive participant in the South China Sea. India’s military forces are currently occupied with a number of internal and border conflicts. In addition to that, India does not gain anything directly by investing time and resources in the South China Sea.

Another reason why India is not opposing China openly by participating in US military exercises is ‘freedom of navigation operations’. US has positioned its aircraft carriers under the freedom of navigation operations; a policy which India does not preach and currently supports. India, while signing UNCLOS, made the declaration: ‘The Government of the Republic of India understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State’. India’s expanding navy signal towards the country’s increasing naval forces. If it supports US today, it will have a tough time overpowering foreign navy forces in Indian waters under the freedom of navigation operations. Joining the US in demonstrating freedom of military navigation could turn controversial for India in the future.

Even though China has abnegated the tribunal’s award it will not go ignored. It has become an excruciatingly valid and legal document for the Chinese. This award is certainly to see a number of rounds in upcoming negotiations between the countries and be cause of of much pain for the Chinese.