Solution Pathways to the South China Sea Imbroglio
Some two years ago, in this very magazine I had published some thoughts on whether and why India needed to bother about events in the South China Sea. A month later, on 12 July 2016, came the much-awaited ruling from the Permanent Court of Arbitration (PCA) in The Hague, the Netherlands, on the complaint that had been filed by the Philippines in 2013, contesting the legality of China’s ‘Nine-dash Line’, colloquially termed the “Cow’s Tongue”, which encompassed over 90% of the South China Sea (SCS). China had claimed territorial jurisdiction over the 2 million-plus square kilometres enclosed by the Nine-dash Line, based upon its ‘historic’ possession of these waters and the land-features contained within it. Both before and after the ruling, China’s stand remained that it did not recognise the competence of the PCA in the matter and, as a consequence, Beijing was not obliged to abide by any ruling made by that court. The consistency of China’s view notwithstanding, the PCA did, indeed, rule on the subject-entirely in favour of the Philippines’ contention, dismissing all Chinese claims as illegal. By this time, however, the Philippine presidency had changed hands from Mr Benigno Aquino III (under whose regime the case had been presented before the PAC in 2013) to Mr Rodrigo Duterte (the current President of the Philippines). The ruthlessness of the anti-drug campaign President Duterte’s generated very vocal alarm from human-rights groups in America and these concerns were echoed by the Obama administration. This sent US-Philippines relations (which had been only recently-restored by Aquino III) spiralling downwards once again. Beijing, which had been economically punishing the Philippines by embargoing the latter’s major-exports of bananas to China, seized the opportunity to widen the rift between these estranged allies. President Duterte was invited to Beijing, accorded a red-carpet welcome, and the banana-embargo was lifted. Only a few months down the line, in November of 2016, Mr Donald Trump caused a huge upset by winning the US Presidential elections and sweeping into power with slew of radical promises that he claimed would make America great again. The USA withdrew from the Trans-Pacific Partnership (TPP) and US foreign policy statements in regard to Washington’s continued commitment to the geopolitical stability and security of the western Pacific rapidly became extremely confusing.
Several nation-states of the Indo-Pacific, particularly the ten constituent members of ASEAN, watched with increasing dismay as the Trump administration steadily ceded strategic space to China. Once again adroitly taking advantage of the USA’s lurch towards inward-looking isolationism, Beijing, in blatant defiance of the PAC ruling, accelerated its construction activities right across the SCS - from the Pratas Islands in the North, to the Paracel and Macclesfield group in the
centre-west and centre-east, respectively, and to the Spratly Islands in the South - artificially transforming coral reefs, shoals and sand-banks into full-fledged islands, complete with major runways and, occasionally, even surface-to air missiles, and populating these newly created islands with a mix of civilian, military, and maritime-militia personnel. Significantly, China stopped championing the ‘Nine-dash Line’, but instead, began to speak of the four ‘Sha’s or sandbanks, as shown in Figure 1.
If all this was not grave enough, President Xi Jin Ping took decisive control of China’s destiny and, consequent upon the decisions taken in October 2017 at the 19th Congress of the Communist Party of China, established himself as a
cult-figure of a stature very nearly rivalling that of Chairman Mao himself.
It is against this backdrop that this article refocuses attention upon the SCS, with three principal aims -
• to generate clarity in Indian minds as to the correct relationship between geopolitics, geoeconomics and geostrategy,
• to promote a better understanding of the much-touted ‘rules-based-order’ whose usage has become almost de rigueur amongst Delhi’s intellectual elite, and
• to examine possible solution-pathways within this troubled and deeply vexed sub-region of the Indo-Pacific.
It is a major conceptual error to place geopolitics, geoeconomics and geostrategy at the same hierarchical level. In progressing their respective geopolitics, each country sets out some geoeconomic objectives and some non-geoeconomic ones. It then seeks to seek to attain these objectives through a variety of ‘geostrategies’. Thus, China’, in seeking to attain its geoeconomic objectives, generates a set of geostrategies, one of which is the Belt-and-Road Initiative (BRI).
Likewise, India, in seeking to attain its own geoeconomic objectives, generates its own set of geostrategies, one of which is, for example, the International North-South Transport Corridor (INSTC). The establishment of cultural linkages and the promotion of people-to-people contact might well be examples of ‘non-geoeconomic objectives’. Thus, ‘geostrategy’ does not lie on the same hierarchical level as ‘geopolitics’ but needs to be positioned one level lower. One level lower than these ‘geostrategies’ are ‘assurance’ and ‘insurance’ mechanisms that are needed - the former to provide assurance that a given ‘geostrategy’ will, indeed, work, and the latter to provide for mitigating options should the ‘geostrategy’ threaten to unravel. Figure 2 offers a cogent depiction of the wrong and the right formulation of these.
It is very important to bear in mind that ‘military’ and other security structures fall within these ‘assurance’ and ‘insurance’ mechanisms and ought not to be attempted to be
force-fitted higher up the hierarchy. In order to provide for the sustenance of these assurance and insurance mechanisms at large distances, ‘bases’ abroad might well be an option that is chosen (although there are, of course, other options as well). In China’s case, actual or potential ‘bases’ such as, for example Djibouti or Jiwani or Gwadar, or Gadhoo island [Maldives], provide for the logistic sustenance of the aforementioned military/security mechanisms.
To summarise, China’s geopolitics are progressed through several geostrategies that have been evolved for the attainment of its geoeconomic objectives. One of these is the BRI. The forces of the PLA and other militia-forces constitute assurance and insurance mechanisms for this geostrategy. To sustain these assurance and insurance mechanisms at large distances from the homeland, China might well choose to develop military bases abroad.
A final point for this segment is that the prefix ‘geo’-as Australia’s Professor Andrew Phillips succinctly informs us - refers to a country’s ‘strategic geography’ (the core spatial assumptions underpinning her grand strategy). As such, every geopolitically defined ‘region’ is an artificial, manmade construct, whose defining-boundaries can be (and often are) different for different geopolitical players. This is as true of the ‘Indo-Pacific’ as it is of any other ‘region’. Thus, it is to be expected that different powers, such as the USA, India, Japan, China, Russia, Australia, etc., might well have different boundaries based on their respective geostrategic imperatives.
Rules-based Order and the Role of International Law
What exactly is meant by a ‘rules-based-order’ -an expression that has become almost a household one? Conventional wisdom seems to indicate that ‘open seas’ and the fundamental freedoms of navigation and fishing have always been the ‘rule’ - or at least the norm underpinning maritime engagement between nation-states. This, like so much of the rest of ‘conventional wisdom’ is a mishmash of facts and myths.
A perusal of the evolutionary developments that have led to today’s maritime ‘freedoms’ have evolved is extremely germane to an understanding of China’s position and the consequent examination of possible solution-pathways.
While contemporary law acknowledges this for the Teutonic-Nordic areas of the world and has amalgamated these laws into its fold, this acknowledgment has not been extended for maritime Asia. With a maritime historiography extending backwards in time over some three to five thousand years, Asian maritime norms and laws have simply been given the go-by, attracting neither scholarship nor respect. This is China’s first grouse and it is one that is difficult to argue against. The question that is sometimes asked is: why, during the nine long years that it took for the Third UNCLOS to formally negotiate the present law of the Sea, did China (or for that matter India or other Asian maritime powers of yore) not articulate this grouse?
Contrary to popular belief, sovereignty over the seas (mare clausum or ‘closed sea’)-and NOT its lack thereof (mare liberum or ‘free’-and-‘open’ seas) has been the historic norm. Indeed, legal issues relating to the ‘closed sea’ had been successfully wrestled-with, many hundreds of years before the seizure, in 1603, of the Santa Catarina, a richly-laden Portuguese Carrack, by three ships of the Dutch East India Company (the VereenigdeOostindische Compagnie, better known as the VOC) off Singapore. The furore that arose as a consequence of the 1603 seizure, of course, caused the VOC to commission the Dutch jurist, Hugo Grotius, to pen his now famous book “Mare Liberum”. Its formal contestation came some 25-30 years later, first by the Portuguese friar, Searfim de Freitas, and then by the English jurist, John Selden, whose own treatise, “Mare Clausum” is oft-quoted amongst maritime scholars. Even when two kingdoms shared a body of the sea, each wanted to have it as a ‘closed’ sea and were united only in their decision to certainly keep it ‘closed’ to any third party. In order for each of the two sovereigns to have a ‘closed’ sea within which he/she could exercise his/her complete sovereignty, they generally agreed to divide the waters roughly equally through a median line so that each could rule over “hacpartemedietatismari” [meaning “this part of half of the sea”], or, for Europe’s Nordic kingdoms, the “Mitt Haf”. This median-line principle is still used in contemporary maritime law to divide shared waters and many readers would be familiar with the thalweg /median-line principle used in the many attempts to settle the maritime boundary of the Territorial Sea between India and Pakistan relative to the Sir Creek. The unwillingness of European powers (sometimes called ‘Grotian’ powers after Hugo Grotius) to acknowledge the similar historical primacy of ‘closed seas’ in waters plied by the ancient Chinese, is another grouse that Beijing seems to have.
Within these ‘closed seas’, kings and princes were obliged to offer their own subjects protection from both, competition and predation. This protection was by way of firepower emanating from the land. Since the maximum range of
‘state-of-the-art’ shore-based cannon was three nautical miles, this was the limit to which protection could be give and became the width of the mare clausum or ‘territorial’ sea. This is not to say that ‘mare clausum’ existed as the sole principle governing the seas. It was merely the more common norm. ‘National’ jurisdiction and protective-obligations were acknowledged to be limited, and, beyond these limits, lay the ‘high seas’.
Over time, competing trade and fishing interests changed the mare clausum norms amongst European nations but it was not until the end of the 16th Century that the Law of Nations (Jus Gentium) was invoked, for the first time, in favour of mare liberum -the free or open sea. Over the next hundred years, while Europe was roiled in the clash between proponents of Mare Clausum and Mare Liberum, European seafaring nations - of which England is a typical example -seemed to have had no problem in upholding entirely contradictory positions, invoking mare clausum vis-à-vis close-coast fisheries-protection, and, simultaneously invoking the doctrine of mare liberum vis-à-vis competitive trade. Over time, these contradictions themselves became a norm and were gradually codified into contemporary international treaty-law. As one of the many compromises by means of which the third UNCLOS finally developed into the ‘Law of the Sea’, the maximum width of the territorial sea was extended from three to twelve nautical miles from a reference line known as the ‘baseline’. (See Figure 3):
With the establishment of the ‘Territorial Sea’, the concept of ‘freedom-of-the-seas’ was reduced to the ‘freedom-of-the-high-seas’. Importantly, even though the High Sea itself commences from seaward of the Exclusive Economic Zone (200/350 nm from the baseline), high-seas freedoms are applicable from the seaward limit of the Territorial Sea
(12 nm from the baseline). The UNCLOS has even provided an illustrative (though certainly not exhaustive) list of activities that constitute high-seas freedoms. These include, inter alia, the freedoms of navigation and overflight, of the laying of submarine cables and pipelines, as also other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, the conduct of scientific research, etc.
The creation of the Exclusive Economic Zone (EEZ), with a maximum width of 200 nm, is, once again, an element of the compromises and trade-offs that characterised the deliberations of the Third UNCLOS. It arose from concerns over the need to ensure the sustenance of fish stocks in offshore areas beyond the Territorial Sea. First documented by President Truman of the United States in 1945, these concerns were provided stridency and persistence by South American littorals such as Chile and Peru. The promulgation effectively shifted the ‘freedom of fishing’, which was, as has been mentioned earlier in this article, one of two fundamental freedoms of the sea (the other being the ‘freedom of navigation’) to beyond 200 nm from the baseline. Although sovereign jurisdiction does not extend to the EEZ, the State has exclusive rights to exploit living and non-living resources on the sea, under the sea, on the seabed and under the seabed. The freedom of navigation and overflight, and allied freedoms such as the laying of submarine cables and pipelines, the conduct of scientific research, etc., not withstanding, the answers to several questions remain shrouded in ambiguity. For example, is the EEZ a unique body of water distinct from the high seas, or, is it simply a body of water within the high seas to which some special regulations apply? What is the status of military activities?
What limitations exist in respect of ‘scientific research’ and by which agencies? Within the ‘military’ how are the USA’s warships (prefixed by the letters ‘USS’) and its part-civilian-and-part-navy-manned ships (prefixed by the letters ‘USNS’) to be regarded? How is the ‘high seas freedom’ of research to be reconciled with the ‘consent of the coastal state’ required under Article 246 of the Law of the Sea? These are questions that are germane to all maritime areas but they take on a special sense of urgency in the disputed waters of the SCS. Here, these ambiguities not only cause confusion and discord, but could very easily lead to strife, especially with the USA’s Freedom-of-Navigation Operations (FONOPs) attracting so much attention.
FONOPS in the SCS have been highly politicised by a sensation-hungry media and a media-savvy public, which have in combination, transformed them into a ‘barometer’ of how committed the US is to towards the SCS and its littorals. The truth, however, is that:
• FONOPS are implemented solely in support of International Law
• FONOPS seek to send a message of non-acquiescence in ‘Excessive Maritime Claims’ that could place restrictions on the freedoms of navigation and overflight
• FONOPS are NOT primarily meant to demonstrate USA’s ‘deterrent-capability’ or ‘resolve’
• FONOPS are NOT designed to reassure allies of US support
• FONOPS are generally kept low-key, which is why they have seldom attracted much attention despite having been implemented diligently by the US Navy and the USCG, in close coordination with the US Department of State) for over a hundred years, as may be seen from Figure 4:
FONOPS are NOT the sole measure by which the ‘freedom-of-navigation’ is upheld Insofar as the SCS is concerned, as has already been stated, FONOPs undertaken here are frequently a cause of considerable concern. This concern is a result of two questions that are at the crux of the ‘South China Sea imbroglio’:
• Which land-features generate a ‘Territorial Sea’ and which ones generate a ‘Territorial Sea’ PLUS an ‘EEZ’?
• What constitutes ‘permissible’ or ‘lawful’ activities of other States within these zones?
The answers are to be found in the legal difference between ‘islands’ and rocks. According to Article 121 of the Law of the Sea (UNCLOS):
• An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
• Except as provided for in (3), the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
• Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
However, the foregoing stipulations leave many unanswered questions in their wake. Some of these are:
• How is “human habitation” to be defined?
• What constitutes sustaining “economic life”? If a lighthouse prevents merchantmen carrying merchandise goods from running aground, does that count as ‘economic life’?
• Are ‘human habitation’ and ‘economic life’ independent of each other or are they to only be considered together?
• What about “rocks” that are ‘extended’ artificially? Can they become “islands”?
• What about “islands” that can sustain human habitation or economic activity but are low tide structures?
• What about islands that eventually disappear?
China is often accused - and with good reason - for attempting to obfuscate the differences between rocks and islands, so as to gain exclusive rights over the resultant EEZ should the island be internationally accepted. Yet, in finessing this stipulation, China is certainly not the only power that is driven by national pride and the desire to exert political influence to transform ‘rocks’ into ‘islands’. Japan’s Okinotorishima Atoll is a case in point. The Okinotorishima atoll covers an area of 8 km2 in the Pacific Ocean and is uninhabited. However, to corroborate its claim to an EEZ around the feature, the Japanese government has encased part of the atoll in concrete, grafted corals to prevent erosion, and, erected a research station. Figure 5 is illustrative in this regard.
Japan has also renamed three uninhabited islets in the Nagasaki Prefecture whose names include the Japanese term for “rock” (“iwa”) in order to preclude challenges to their status as islands.
However, while the legality of Japan’s actions are certainly questionable, they do not justify China’s transformation of reefs into islands, because of the inadmissibility of a legal defence based on the fallacy of “Tu Quoque” (meaning “You also did it”). In other words, one does not justify the other.
It is absorbing to note the different solution pathways that each of the main protagonists within the South China Sea imbroglio offers the others. Figure 6 schematically depicts these solution-pathways.
And yet, all of the foregoing still begs the question, “What are India’s interests in terms of the SCS imbroglio?”
There are, in fact, two clear answers. The first one has to do with trade and is the major driver for our own repeated espousal of the freedom-of-navigation within an internationally accepted rules-based order. The fact is that over 25% of India’s overseas merchandise trade - i.e., 190 Bn US$ worth of Indian exports and imports - flows through the South China Sea, not counting our trade with Thailand, Malaysia, Indonesia, or Singapore. The second lies in the fact that it is highly unlikely that Xi Jin Ping orchestrated the 19th Congress of the Communist Party of China such that he could appoint himself as the President (Emperor?) of China - possibly for life - merely so that China could become the pre-eminent power in the South China Sea! As the engine of China’s economic growth demands ever greater resources of raw materials and petroleum-based energy, the bulk of China’s imports of these resources must be drawn either from within the Indian Ocean Region (IOR), or must flow through the IOR, since it is seaborne transit of goods that offers the most cost-effective movement in terms of volume, time and space. It is here that China must be pre-eminent and must be acknowledged as being so. It is here that China must compete for pre-eminence with India. For Beijing, its SCS-to-IOR strategic movement represents a critical facet of the real-world manifestation of the ancient Chinese game of strategy, weiqi (pronounced way-shi). In the opening stages of the game, players typically establish well-fortified positions in one or another corner of the board. This is what China is doing in the South China Sea. The game is afoot and in the initial jockeying for spatial and temporal advantage, India must keep a seaman’s eye upon events as they unfold in this area of the Indo-Pacific, if it is to compete with any degree of geopolitical competence.