On Tuesday, the Permanent Court of Arbitration in The
Hague released its much-awaited ruling on a case brought by the Philippines
against China on the South China Sea disputes. The decision marks the most
high-profile development concerning the overlapping and intensifying
territorial disputes, which directly involve China, the Philippines, Vietnam,
Malaysia, Brunei, Indonesia, and Taiwan.
The future of the South China Sea has global
implications, as jurisdiction over a few seemingly minor islands legitimises
control over vast amounts of sea, which in turn enables access to valuable
mineral and fishing resources and denies warships from traversing waters through
which a significant amount of the world’s trade passes.
In recent months, lobbying over the disputes had reached
fever pitch, with China going on a global public affairs blitz to make its case
heard, including by briefing academic experts and journalists and taking out
full page advertisements in newspapers in India, the United States, Europe, and
elsewhere.
Despite these immense efforts, the Philippines had
constructed a clever legal case, invoking international law not for a judgement
on the legality of China’s territorial control, but instead to assess the
status of the islands claimed by China. Around islands, countries can claim
territorial sea and an exclusive economic zone (EEZ), where they can exercise
sole fishing, drilling, and resource rights. But that does not apply if the
feature is an uninhabitable rock or submerged during high tide. It was on this
simple, yet technical, issue that the legal case against China rested.
The court’s verdict has proved a resounding rebuttal to
China, essentially on four grounds.
First, the Court determined that almost all of the
Philippines’ complaints fell within its jurisdiction, despite Chinese arguments
that the South China Sea was a matter of territorial sovereignty, that Beijing
had not agreed to such international arbitration, and that military matters
fell outside the Court’s purview.
Second, the Court rubbished China’s claims to the South
China Sea on historical grounds, deeming them contrary to the United Nations
Convention on the Law of the Sea (UNCLOS), the bedrock of international
maritime law.
Third, it ruled that the islands claimed by China were in
some cases low-tide elevations, and thus within the Philippines’ EEZ, and in
other cases were rocks, incapable of “sustaining human habitation or economic
life” under natural circumstances. Despite China’s reclamation and construction
efforts, these were rocks, not islands. China was thus in violation of the
Philippines’ EEZ, and not the other way around.
Finally, and in conclusion, the court ruled clearly that
China had violated UNCLOS and other elements of international law by denying
the Philippines access to fishing and other maritime resources, by constructing
artificial islands, by disregarding environmental concerns, and by aggravating
and expanding the dispute while resolution proceedings were underway.
Why does this case matter so much? For the first time
since its rise as a global power, the People’s Republic of China finds itself
in flagrant violation of international law on an issue that it deems a “core
national interest,” and thus non-negotiable. There are now concerns that China
might respond by further aggravating tensions with the Philippines, its backer
the United States, or other regional actors directly or indirectly involved in
the South China Sea disputes. As a result, the uneasy consensus in Asia may
fracture, forcing various countries to take sides, either with China or against
it. This is a situation that India will have to monitor carefully.
But the South China Sea ruling matters to India for other
reasons as well. Much of India’s trade is maritime in nature, and the principle
of freedom of navigation and overflight are therefore crucial, particularly in
important commercial channels. As Tanvi
Madan of the Brookings Institution has pointed out, China’s handling of the
South China Sea dispute also serves as an indicator of how Beijing might
approach other disputes, including possibly with India. Furthermore, when it
comes to arbitration under international law, India has set a positive
precedent, having accepted international arbitration on the Indus Waters Treaty
and in its maritime dispute with Bangladesh, and respecting the result of the
latter even though it went largely against India.
These concerns may explain why several Indian leaders –
including Prime Minister Narendra Modi, External Affairs Minister Sushma
Swaraj, and Defence Minister Manohar Parrikar – have been making statements on
the South China Sea issue over the past few months and years. They have all
indicated their firm belief that maritime disputes should be resolved in
accordance with UNCLOS. Absent that, in the words of Parrikar, “all of us will
suffer, irrespective of whether we are big or small states.”