South China Sea: India, Japan Indicate Dispute Should Be Resolved Under UN Law

Looking beyond Asia, India and Japan have also raised the stakes by including Africa in their development strategy, implicitly setting up a rival to China’s One Belt, One Road.

Indian Prime Minister Narendra Modi (2nd L) and his Japanese counterpart Shinzo Abe (L). Credit: Reuters

Indian Prime Minister Narendra Modi (2nd L) and his Japanese counterpart Shinzo Abe (L). Credit: Reuters

New Delhi: Even as they cement their relationship with a much-delayed nuclear deal and building a parallel to China’s ‘OBOR’, India and Japan asserted on Friday that the South China Sea dispute should be resolved under the auspices of United Nations Convention on the Law of the Sea (UNCLOS) – a stand which will certainly elicit a sharp response from Beijing.

The comment on the South China Sea was included in the joint statement issued after the annual summit of Indian Prime Minister Narendra Modi with his host, Japanese Prime Minister Shinzo Abe in Tokyo on Friday, where they conducted a review of their “Special Strategic and Global Partnership”.

“Regarding the South China Sea, the two Prime Ministers stressed the importance of resolving the disputes by peaceful means, in accordance with universally recognised principles of international law including the UNCLOS,” said the document.

The difference in this year’s statement was not just the number of times UNCLOS was mentioned – four, compared to once last year. The contrast is also that in this year’s joint statement, UNCLOS is explicitly mentioned in the context of resolving the  South China Sea dispute. While it does not include a direct mention of the order of the Arbitral Tribunal, which adjudicated in favour of Philippines against China, the meaning is clear. Even if officials publicly point out that Arbitral Tribunal is not mentioned in the text, any reference to UNCLOS ‘principles’ is a negation of China’s position on the South China Sea, which is predicated on historical claims.

The two Prime Ministers reiterated their commitment to respecting freedom of navigation and over flight, and unimpeded lawful commerce, based on the principles of international law, as reflected notably in the United Nations Convention on the Law of the Sea (UNCLOS). In this context, they urged all parties to resolve disputes through peaceful means without resorting to threat or use of force and exercise self-restraint in the conduct of activities, and avoid unilateral actions that raise tensions. As the leaders of the State Parties to the UNCLOS, the two Prime Ministers reiterated their view that all parties should show utmost respect to the UNCLOS, which establishes the international legal order of the seas and oceans. Regarding the South China Sea, the two Prime Ministers stressed the importance of resolving the disputes by peaceful means, in accordance with universally recognised principles of international law including the UNCLOS. [2016 India-Japan joint statement]

Last year, UNCLOS was only mentioned once in the entire document – and it was a rather generic phrase about the importance of the UN convention, with the phrase, South China Sea not even featuring in the same sentence.

Expressing their commitment to the principles of sovereign equality of all states as well as respect for their territorial integrity, they affirmed closer cooperation in safeguarding the global commons in maritime, space and cyber domains. They underscored the importance of international law including the United Nations Convention on the Law of the Sea (UNCLOS) and peaceful resolution of disputes without use or threat of use of force; freedom of navigation and overflight and unimpeded lawful commerce in international waters. [2015 India-Japan joint statement]

A day before the Indo-Japan summit, Chinese foreign ministry spokesperson Lu Kang had implicitly cautioned against referring to South China Sea as it would lead to instability. “You asked about issues that Prime Minister Modi is likely to discuss with his Japanese counterpart, as we said before, we are happy to see neighbouring countries develop normal bilateral relations. We hope that while doing this, they can also respect the legitimate concerns of other countries especially those in the region and do more things conducive to regional peace and stability,” he said.

The Chinese are, for obvious reasons, sensitive about any reference to the South China Sea by any third party; especially Japan.  In September, when Japan had indicated that it would step up its activity in the disputed waters, the Chinese defence ministry spokesperson warned that Tokyo was “playing with fire”.

India has complex motivations in being more visible in the region, where a certain section of southeast Asian nations would prefer a more assertive New Delhi to balance the overwhelming presence of Beijing.

“As countries with an inclusive outlook, we have agreed to cooperate closely to promote connectivity, infrastructure and capacity-building in the regions that occupy the inter-linked waters of the Indo-Pacific,” Modi said in his media statement after discussions on Friday evening.

Describing the Indo-Pacific region as the “key driver for the prosperity of the world”, the two leaders said that the core values were “democracy, peace, the rule of law, tolerance, and respect for the environment in realising pluralistic and inclusive growth of the region”. Both prime ministers then shared notes on their respective policies for the region: India’s ‘Act East’ initiative and Japan’s ‘Free and Open Indo-Pacific Strategy’.

Underlining the intent of the two Asian powers, the statement reminded that Japan’s presence in the Malabar naval exercise “underscored the convergence in our strategic interests in the broad expanse of the waters of the Indo-Pacific”.

Military might, however, is not the only mechanism by which Japan is looking to stand up to China

Over the last decade, China has steadily become one of the biggest donors of development aid in South East Asia. No-strings attached Chinese aid to countries like Cambodia and Laos has been one of the reasons for the division between ASEAN members on how to tackle the South China Sea dispute.

Delving deep into its pockets, Japan has been sponsoring a network of development projects in South East Asia – and it wants India to pool in and join the effort. Abe has proposed a new initiative combining “human, financial and technological resources” to build up connectivity in South East Asia, including through Japanese Overseas Development Assistance projects.

OBOR rival

India’s development aid strategy for ASEAN has been relatively modest. While New Delhi is constructing major infrastructure projects in Myanmar, its major connectivity initiative in the extended Southeast Asian neighbourhood has been limited to involvement in ADB-sponsored Asian Highway Project.

Going beyond Asia, India and Japan have raised the stakes by including Africa in their development strategy, implicitly setting up a rival to China’s One Belt, One Road. “They further stressed that improving connectivity between Asia and Africa, through realising a free and open Indo-Pacific region, is vital to achieving prosperity of the entire region. They decided to seek synergy between India’s “Act East” Policy and Japan’s “Expanded Partnership for Quality Infrastructure (EPQI),” said the joint statement.

Japan has set aside $700 billion over five years to finance infrastructure projects across the world under the EPQI initiative, which was unveiled at the G7 summit this year.

Significantly, the joint statement enshrined the interests of the two countries to jointly develop Iran’s port of Chabahar, which will provide an alternate sea route to land-locked Afghanistan instead of depending on Pakistani ports. “The two Prime Ministers welcomed the prospects of cooperation between the two countries for promoting peace and prosperity in South Asia and neighbouring region, such as Iran and Afghanistan, through both bilateral and trilateral cooperation, inter-alia, in the development of infrastructure and connectivity for Chabahar. They directed their officials to expeditiously work out details for such cooperation”.

Of course, when the two leaders met, the election of US businessman, Donald J Trump on Nov 9 as the next President will certainly have occupied their mind. This is especially true, as Trump has threatened to have a more transactional relation with close allies like Japan, which could impact the regional balance of power in Asia.

Quick off the mark, Abe has already got an appointment to meet with Trump in New York on January 17, which will make him one of the first world leaders to speak with US president-elect after the historic polls.

Elusive nuclear deal clinched

The other big takeaway from the meeting was the signing of the ‘Agreement Cooperation in Peaceful Uses of Nuclear Energy‘, which was the first such pact that Japan has inked with a non-signatory to the Nuclear Non-Proliferation Treaty.

In his statement, Modi framed the achievement as a ‘clean energy’ victory and specifically acknowledged the “special significance that such an agreement has for Japan”, as the only country which has been victim of a nuclear war. The negotiations started six years ago, but had been derailed due to the Fukushima nuclear disaster, which re-fuelled Japan’s non-proliferation concerns.

A “substantial portion” of the deal was finalised before last year’s summit, including Japan’s decision to accept India’s assurances given to the Nuclear Suppliers Group in 2008 on its voluntary moratorium on nuclear testing. India has now accepted, via a side understanding to the nuclear cooperation agreement, that any future nuclear test by it would lead to a termination of the agreement.

Teetering aircraft

However, there was no specific announcement over the sale of US-2i ShinMaywa amphibious search-and-rescue aircraft, over which negotiations have been rocky due to differences over pricing and technology transfer.

“Prime Minister Modi conveyed his appreciation for Japan’s readiness to provide its state of the art defence platforms such as US-2 amphibian aircraft. It symbolises the high degree of trust between the two countries and the distance that Japan and India have covered in advancing their bilateral defence exchanges,” said the joint statement.

Within India, Japan have been given unprecedented access to strategically sensitive areas like North-east to develop road connectivity projects, with an eye to its geographical proximity to China.

A new item was publicly added to Japan’s India portfolio on Friday, with the joint statement referring to initiating consultations to build “smart islands” by identifying technologies, infrastructure and development approaches. Bringing in Japan as the first foreign country to have a development presence in Indian islands of Andaman and Nicobar and Lakshwadeep would certainly have been done with an eye to counter China’s maritime outreach in the Indian Ocean.

In total, 10 agreements were signed at a ceremony following the talks, which includes cooperation in space, agriculture, education and textiles.

Some of the other noteworthy takeaways from today’s summit:

UN reforms: Both leaders publicly announced the setting up of a new coalition, ‘Group of Friends’ on reform of the United Nations Security Council. India and Japan have been the major driver for this new umbrella coalition of pro-reform groups like G-4, African Union and ACT. While all the groups have different reform models to lobby, the idea is to take forward the ‘process’ towards text-based negotiations.

Bullet Train: The two leaders welcomed setting up task force to draw up concrete roadmap for phased transfer of technology and “Make in India.” They stressed the critical importance in early complement of preliminary work on establishment of High Speed Railway Institute and development of its training programme. They also gave a target that the ground-breaking ceremony of Mumbai-Ahmedabad High Speed Railway had to be held in 2017. Incidentally, on Saturday, Modi and Abe will travel aboard together on the famed Shinkansen track to Kobe.

Investment: The summit further gave the political commitment requirement to implement the 1.5 trillion yen “Japan-India Make-in-India Special Finance Facility” of up to 1.5 trillion yen by Nippon Export and Investment Insurance and Japan Bank for International Cooperation to promote direct investment of Japanese companies in India. A Memorandum Of Understanding was also signed today between National Investment and Infrastructure Fund  and Japan Overseas Infrastructure Investment Corporation for Transport and Urban Development to explore funding for infrastructure projects in India.

Terrorism: The joint statement called on “all countries to effectively deal with trans-national terrorism emanating from their territory” and to implement the UNSC resolution 1267 designating terrorist entities. Using almost equivalent terms as India’s preferred phrase of ‘cross border terrorism’,  the joint statement was a signal to Islamabad to rein in listed terrorists like Jamaat-ud-Daawa supremo Hafeez Sayeed who freely takes part in rallies in the Pakistani capital. The two leaders also exhorted “countries to work towards eliminating terrorist safe havens and infrastructure, in disrupting terrorist networks and financing channels, and stopping cross-border movement of terrorists. “They also called for Pakistan to bring the perpetrators of terrorist attacks including those of November 2008 terrorist attack in Mumbai and 2016 terrorist attack in Pathankot to justice,” it added. Further, Indian and Japanese Prime Ministers expressed condolences to victims of the terror attack in Dhaka and Uri. Seven Japanese citizens and 1 Indian had among the 22 who died in terror attack in Dhaka’s Holey Artisan bakery on July 1. Japan’s commiseration over Uri terror attack would have been much appreciated in India, even though there was no statement of support for the ‘surgical strikes’. So far, only Russia and Germany have publicly backed the surgical strikes. On the flip side, there have been no major international criticism either.