External Affairs

In Rush to Comment, India Missed Unhelpful Implications of South China Sea Verdict

New Delhi rushed to bring China down a peg, forgetting to underscore the political basis of its own territorial and commercial interests in the region.

The USS Ronald Reagan transits the South China Sea. Credit: usnavy/Flickr, CC BY 2.0

The USS Ronald Reagan transits the South China Sea. Credit: usnavy/Flickr, CC BY 2.0

New Delhi: In issuing a boilerplate response to the recent South China Sea verdict of an international tribunal, the external affairs ministry’s statement on Tuesday may have overlooked some of India’s own potential concerns with the arbitral award.

South Block issued its statement within hours of the tribunal’s decision, even as seasoned lawyers were poring through the award’s 500 pages to analyse its implications. If the foreign ministry’s objective was to convey a subtle message that Beijing need not look to India for support, then it succeeded. But in its enthusiasm to settle a political score with China over its intransigent behaviour at the Nuclear Suppliers Group last month, the Indian response has not fully accounted for the legal and political implications of The Hague tribunal’s verdict.

“It is a matter of law, not politics,” said the Ministry of External Affairs spokesperson Vikas Swarup yesterday, explaining the Indian response to the South China Sea dispute. Were that the case, the foreign ministry would have made a careful distinction between this arbitral award and the larger dispute over the South China Sea, which is not confined to China and the Philippines. The MEA’s assertion that “India supports freedom of navigation and over flight, and unimpeded commerce” is a non-sequitur. Freedom of navigation was never a subject of contention in this case – even the arbitral tribunal has noted on record China’s “unequivocal” support for navigation and overflight rights in the South China Sea.

Manila’s limited point was that the navigation rights of Filipino fishermen and oil explorers in its Exclusive Economic Zone (EEZ) were being hindered by China’s activities. Even some Chinese documents, which the tribunal took cognisance of, acknowledge that the South China Sea islands claimed by Beijing are separated by the “high seas” from the mainland.

“Neither Party contests [that they are obliged to respect the rights and freedoms of other States under the Convention], and the Tribunal is therefore not persuaded that it is necessary or appropriate for it to make any further declaration.” [Paragraph 1201 of the award]

The Sir Creek dispute

In other words, the navigation and overflight rights which the MEA staunchly defended in its statement were never questioned before the tribunal. If New Delhi’s intention was to suggest that the arbitral verdict should not compel China or other parties to militarise the South China Sea and thereby limit rights in the high seas, this point could have been articulated clearly.

But it is the second part of the MEA’s statement that ignores India’s own interests at stake. By invoking the primacy of the United Nations Convention on the Law of the Sea (UNCLOS) with respect to this decision, is India implying that it will accept an international tribunal’s adjudication on the maritime boundary with Pakistan? This cuts against the core of India’s position on the Sir Creek boundary: that all disputes will be settled by an arbitral tribunal whose terms are “mutually agreed”, and in accordance with the general principles of the 1972 Simla Agreement.

Were Pakistan to drag India to the International Tribunal on the Law of the Sea (ITLOS) on the Sir Creek dispute citing India’s obligations under UNCLOS – as the Philippines did with China – New Delhi would likely wish to contend, as China did, that its lack of consent vitiates the tribunal’s jurisdiction. The MEA’s statement should therefore have acknowledged, or at the very least accounted for, the dangerous precedent that the Permanent Court of Arbitration has set through the South China Sea verdict.

India’s position on its maritime dispute with Pakistan makes the case that the Sir Creek issue and boundary settlement are two distinct matters. The maritime boundary between India and Pakistan, New Delhi asserts, can be settled in line with the principles of UNCLOS and international law. This would establish the EEZ rights of both littoral states. It is India’s view that the Sir Creek dispute, which involves an intractable land boundary, may be negotiated independently.

Pakistan, on the other hand, insists that the territorial lines drawn after settling Sir Creek will stand as the reference for the maritime boundaries as well, and as such, the issues are conjoined. The South China Sea verdict is a shot in the arm for Pakistan’s position, because an ITLOS tribunal could well agree and suggest that the EEZ rights of both states can only be identified after the Sir Creek dispute is resolved. The Hague tribunal made precisely this formulation. In the preliminary stage, it held that the sovereign rights of both parties could only be determined after examining China’s “historic rights” in the South China Sea. It held finally that any such rights Beijing held could not run contrary to UNCLOS provisions.

Even if an arbitral tribunal did not comment on the merits of Sir Creek, its linking the core dispute to the maritime boundary would be a setback for India. Alternatively, an ITLOS verdict could rule on the Sir Creek dispute in India’s favour – given that New Delhi has a strong case under the UNCLOS — but it would still give Pakistan a legitimate precedent to internationalise bilateral disputes between both countries. The PCA’s ruling on this count should offer India pause, not elicit its unqualified support.

Rushing to pull China down

If the potential implications of the South China Sea award have escaped the foreign ministry, so have the opportunities it presents. In this case, the PCA has snubbed China’s claim that the nine-dash-line, a product of politics and history, grants it legal rights over the South China Sea. A sharper response from the MEA would certainly acknowledged Beijing’s double-game on the South China Sea and its territorial dispute with India. While it steadfastly continues to oppose the McMahon Line and the agreement between the British and Tibetan representatives over the eastern sector, Beijing conveniently has no problems accepting that the nine-dash-line was based on a similar political understanding between United States and the Republic of China. If the assimilation of the ROC (Taiwan)’s position is acceptable to the Communist Party of China, why is an agreement between Tibet and British India so different? India’s claims to the disputed eastern sector are rooted in history, just as China says its claims in the South China Sea are.

Finally, the foreign ministry should also have hedged against India’s future prospects for oil and gas exploration in the South China Sea. While other Association of South East Asian Nations members are not likely to follow the Philippines into arbitration with China, such verdicts have the potential to upend existing contractual arrangements on both sides. New Delhi should take care to see that commercial agreements blessed by politics should not be affected by legal means.

The sheer complexity of Tuesday’s arbitral verdict indicates it will take weeks to fully comprehend its legal implications. Unsurprisingly, the ASEAN is not likely issue a joint statement, because the bloc realises that the South China Sea can only be solved through political channels. In its rush to bring China down a peg, New Delhi should not forget to underscore the political basis of its own territorial and commercial interests in the region.

Arun Mohan Sukumar is at the Observer Research Foundation, New Delhi.

  • Anand

    Mr.Arun mohan sukumaran,
    1914-1915 McMohan line is not just history, it is a legal document.
    Whereas nine dash line is a imaginary line drawn by an arrogant China overlapping with others’ EEZ.
    Normally your writings in ORF is perfect.
    Here it appears in the rush to criticise India, you have misinterpreted many.
    Plus, you are giving ammunition to the country of terrorists backed by China.
    Pls introspect.