As recorded on the official website of International Court of Justice:-
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.
It may not be out of place (though inconsequential to present case) that the timing of setting up the ICJ was important from US perspective. Although none of the historians and/or military strategists have ever suggested that birth of ICJ, for which USA was an ardent supporter had something to do with their intent to drop Atomic Weapons over Japan less than 60 days after the ICJ was set up. No American has either been blamed or tried for war crimes on this account. Indeed many, rather most pseudo-intellectuals will have different take on the issue.
That besides the fact remains that status of Permanent Court of Arbitration was openly challenged by the USA WHEN IT SET THE PRECEDENCE OF IGNORING ARBITRAL COURT RULING IN RESPECT OF NICARAGUA CASE IN EARLY 80’S. UNITED KINGDOM DID THE SAME IN CASE OF DISPUTE WITH MAURITIUS. The ruling directed USA and UK to agree to a THIRD PARTY mediation in resolving the issue. Quoting the utterances of the then Defence Secretary, Chairman of the Senate Committee and many other ‘responsible’ US leaders of both major parties would amplify US concern and respect for an international organization. Process of dilution of authority and/or demise of Permanent Court of Arbitration had begun. Incidentally USA resolved the issue with Nicaragua amicably mutually. UK is doing the same with Mauritius. Permanent Court of Arbitration is neither a UN organ or in any way affiliated with International Court of Justice at The Hague in spite of the fact that they are co-located in Peace Palace at Amsterdam. China is merely conforming to the legacy. President XI’s ‘threatening’ statement after the ICJ ruling is mentioned below:-
“The South China Sea Islands have been China’s territory SINCE ANCIENT TIMES.— Our sovereignty and maritime interests in the south China sea will never be influenced by the so-called arbitral ruling under any circumstances. We refuse to accept any claims or activities based on arbitral ruling. China is firmly dedicated to maintaining peace and stability in the south China sea and to resolving disputes through direct negotiations with relevant countries on the basis of respecting historical facts and in line with international law.”
Incidentally the utterances of Chinese President were not made during a press conference. They were made during his meeting with European Council President Donald Tusk and European commission president Jean-Claude Junker at Beijing. To add fuel to the fire Chinese foreign ministry spokes person Lu Kang added:-
“We hope they (the USA Japan and other countries pressing China to accept The Hague Ruling) can treat international law seriously, not like playing a game, and not to distort and selectively abuse international law to serve their hidden political aims.”
Liu Zhenmin, Vice Minister of Foreign Affairs said:- “If our security is being threatened, of course we have the right to demarcate a zone and China does not rule out the option of setting up an Air Defence Identification Zone (ADIZ). Other countries should not take this opportunity to threaten China or let it (south China Sea Issue) become the origin of war. China’s aim is to turn the South China Sea into a sea of peace, friendship and co-operation.”
However the most damning comments made by Liu Zhenmin was when he openly accused the FIVE JUDGE bench of the tribunal appointed by PCA FOR HAVING RECEIVED MONEY FROM PHILIPPINES. He further added that may be other countries too gave the money, although without naming anyone/any country.
Chinese ambassador in USA Cui Tiankai categorically stated that “we will not yield to any pressure, be it in form of military activity, media criticism or some self-claimed legal bodies.” Chinese authorities have categorically stated that the tribunal comprising of five judges, four Europeans and one Ghanian, who was the chairman (a long time resident of Europe) had any wisdom to understand the complexities of South China Seas waters.
After perusing the statements made by the highest authorities in China, should anyone have any doubts about Chinese intent and their utmost desire to create matching capabilities viz creation of artificial islands etc. Chinese activity to create artificial islands in South China Sea was too well known to everyone everywhere. Why then no questions were raised? Was the world waiting for ruling of the ICJ on Filipino issue?
Chinese national aims and military objectives in as far as South China Sea is concerned can be listed as:-
- China considers NINE DASH LINE drawn by themselves as the sole deciding factor with regard to demarcating China owned waters in South China Seas.
- China considers South China Seas as her sovereign territory.
- China will not allow/may not allow any military activity by any other nation in close proximity of its territory, which includes artificial islands.
- Sooner than later China will establish an ADIZ in south China sea around the artificially created islands.
- After the end of current Typhoon season, China may position long range surveillance radar and few SAM units.
- Thereafter China will invoke existing provisions contained in UNCLOS and claim the 200 nm boundary as its sovereign territory around the waters surrounding the artificial islands to be her EEZ.
Reaction of international community has ranged from deafening silence by major western nations to outright military jingoism by the USA. Seven US warships including aircraft carrier Ronald Reagan have been patrolling (are patrolling as on date) South China Sea and have sailed close to artificial Chinese islands. With near certainty it can be guessed/stated that USA is using the arbitration court ruling to her advantage in spite of being a non-signatory to UNCLOS, thereby making its permanent presence in South China Sea and continuing with rarely stated but often practiced US philosophy of attaining and maintaining regional hegemony around the globe. US presidential elections due on 08 November, 2016 might have also contributed to such decision by the present Democrat ruled US administration.
As usual Indian views have remained; the famously quoted “WAIT AND WATCH” policy. Merely stating that freedom of navigation though the south china sea should be respected and UNCLOS provisions be adhered to means nothing. We have not uttered a word about validity or otherwise of the NINE DASH LINE claimed by China. Although India had supported Philippine stance when the case was filed ( tacitly supporting Filipino claim that nine dash line did not have legal sanctity), for arbitration in 2013.
Before proceeding any further, background of China-Philipine stand off needs to be mentioned in brief. According to Chinese white paper the core issue relates to ‘supposed’ Philipino invasion and illegal occupation of NANSHA ISLANDS and REEFS. White paper further states that Chinese activity in South China Sea date back to more than 200 years and goes on to claim that Chinese were the first to discover, explored and inhabited the islands in surrounding waters. Trigger for Philipine to approach PCA for arbitration might have been forced occupation of Scarborough Shoal by Chinese in 2012.
China has also accused the former President of International Tribunal for the Law of Seas Mr Shunji Yanai, a Japanese, for manipulating the entire proceedings from,’behind the scene’. Notwithstanding Chinese allegations of incompetence of the tribunal and manipulations by a few, there appears to be at least one glaring error in the arbitration court’s judgement. The court has mentioned that TAIPING ISLAND is a ROCK, whereas the fact is that the island has an airstrip, a hospital and several other buildings. Taiwan, too, has contested tribunal’s award on the grounds that Taiping Island, which is a part of NANSHA ISLAND GROUP, has serious implications on her rights and has further added that Taiwan does not accept tribunal’s ruling.
International opinion of a large number of nations also contends that the issue ought to have been resolved mutually rather than going to arbitration court and/or seeking third party mediation. China’s main leverage emerges out of a declaration signed in 2002 jointly by China and other Southeast Asian nation to resolve mutual disputes through negotiations and consultations. Decision of the then Filipino President Aquino in 2013 to approach arbitration court is, therefore, viewed with contempt. In order to express her anger China declined to appear before the arbitration court.
Over the years China has built a reputation for honouring the treaties/declarations, she signs with other nations and/or international organizations. Notwithstanding the fact that China can be termed as the sole nuclear technology proliferator when she supplied nuclear expertise to Pakistan and North Korea in a clandestine manner. However in public domain Chinese stance was quite evident during the recent stand taken during the meeting of nuclear suppliers group members meeting in Vienna in respect of India joining the Nuclear Suppliers Group, wherein Chinese contended that a non NPT signatory cannot join the NSG. Our muted response to arbitration court judgement in favour of Philippine is, perhaps, to avoid embarrassing the Asian giant, thus keeping the channel of Chinese support on NSG entry open. If that be so it would be a flawed argument on our part.
By drawing the NINE DASH line unilaterally Chinese aim to claim nearly 80% of the South China Sea waters, may be more. Chinese are unwilling to discuss their illegal seizure of Scarborough Shoal from Philippines in 2012. Perhaps this action acted as a catalyst and the then Aquino government in Philippines opted to approach PCA. Chinese geologists are working overtime to find out what lies beneath these waters. It is widely believed that huge gas and oil reserves might be found in these waters. Thus by controlling these waters China might, at least potentially, hold on to reserve of hundreds of million barrels of oil and trillions of cubic feet of natural gas. One estimate puts oil reserves of around 213 billion barrels of oil. US Geological survey in 1993-94 arrived at a more conservative figure of only 28 billion barrels. At this stage it cannot be predicted/forecasted whether oil and gas extraction will be economically feasible. From Indian point of view our interests lie in the region contiguous to South China Sea since ONGC Videsh is already involved in exploration on three sites in Vietnam (Block nos 06.1, 127 and 128). For academic interest only; ONGC Videsh is currently involved in 16 projects across 14 countries.
Surprising it may seem but, but Chinese people have reacted extremely adversely to tribunal court judgment against China. Ruling was issued at 5 PM (local time at Amsterdam) on 12th July. Sino Welbo (akin to our twitter) received over ONE BILLION HITS in a 24 hour span. Sentiments expressed were that Chinese territorial integrity and sovereignty do not fall under the jurisdiction of an international tribunal such as PCA. International community, too, has expressed its concern over the PCA judgment, including Filipino authorities of yester-years. In fact few top ranking Filipino officials have categorically stated that the decision of Aquino government to approach PCA was wrong and have said that the issue must be addressed with China directly setting aside the PCA ruling.
Contention of Manila have been questioned because Manila failed to follow the dictum “Pacta sunt sarvada” in Latin. Translated into English it means “ Agreements must be kept/respected”. Manila failed to adhere to 2002 agreement and initiated the case unilaterally. Chinese view remains that unilateral initiation of arbitration case is a clear violation and third party mediation rule under the provisions contained in UNCLOS do not apply.
US contention of freedom of navigation and overflight ( a term we have copied verbatim while issuing the statement) can be challenged on the grounds that so far there has not been a single incident wherein Chinese have in any way interfered/challenged such rights of any nation. US stance might as well be towards attaining greater hegemony in South China Sea region. Strongest Navy of the world can and will go anywhere it likes. It might appear to be ‘humour in uniform’ but the fact is that USA is not a signatory to UNCLOS.
Norms of principles of natural justice are tilted in favour of China. You cannot take up a matter for arbitration unless both/all parties join the process. US concern/involvement, nearly 7-8000 km from its shores cannot stand the scrutiny of responsible international behavior. In any case even if the judgement of tribunal were to be considered as fair, the moot point remains; “ Are there any norms/processes/enforcement mechanism for implementing the decisions of the tribunal?”
Chinese claims to NANHAI ZHUDAO ( South China Sea Islands) dates back to over 2000 years as per their claim. Chinese further assert that way back in 1948 China had published a map of the region clearly demarcating the NINE DASH LINE . Incidentally these islands were illegally occupied by the Japanese during second world war. China also claims that international community (without mentioning the names of nations) has recognized sovereign rights of China over these islands because many encyclopedias, maps and year books show these as Chinese territory. China has published a detailed map of the region clearly defining the Philippine territory, which dates back to 1905 clearly showing that Huangyan and Nansha group of islands have never been a part of Philippine, which lie in areas east of 118 degree East.
Trouble between China and Philippines has been brewing since early 70,s. Incidents involving capture of Chinese fisherman, destruction of Chinese survey markers etc were taking place regularly. A major military confrontation nearly took place when Phillipino military vessel deliberately ran aground at one of the Chinese held island Renai Jiao.
An extremely important precedence is in favour of China’s contention that PCA had no authority to entertain the arbitration case filed by Philipines in the first place. International Court of Justice had ruled in 1982 while adjudicating between Libya and Tunisia that “ Historic rights of waters are governed by customary international laws and not by UNCLOS”.
From the historical facts listed above it is quite evident that :-
Firstly, China will, under no circumstances accept the arbitration tribunal decision.
Secondly, nations around the South China Sea do not have the military muscle to threaten/challenge China.
Thirdly, by default South China Sea, a de-militarised region till recently, has become a militarized region. Status is unlikely to change in foreseeable future.
Fourthly, Philippines has bitten more than it could chew, when the decision to approach the PCA was taken. Was it done under the influence/pressure of any external power (read USA)?
Military capability enhancement in this region will be China’s primary aim. Recent military activity in South China Sea by US Navy and USAF aeroplanes will hasten this process. IN fact even Indian Navy has recently participated with US Navy and JSDF in a friendly naval exercise. While Chinese have not reacted publicly to such military presence, but anything even remotely challenging Chinese sovereignty is never considered a friendly act by the Chinese, however friendly it might appear to be. Comments about military capability, with specific reference to airlift and fighter operations from airfields on these reefs and artificial islands cannot be made at this stage due to non-availability of any information about runway strength since pavement classification number (PCN) has not been listed yet. But an honest guess would place these airfields incapable of handling a C-17 class transport aircraft and Su-27/30 class fighter aircraft in foreseeable future. Establishing a submarine base might be Chinese priority number one.
Comprehensive knowledge of historical background is absolutely essential to understand the complexities of territorial claims made by all nations around South China Sea. From Indian perspective, we could simply remain ‘neutral’ (read oblivious), as we have been through the years. Digital assessment of our military capability to interfere/influence in South China Sea at present simply does not exist. Nearly 5000 km from Indian shores only a ‘STRIKE CARRIER GROUP’ can be considered to be a genuine strike complement. The only carrier, yet to be operationalised fully, INS Vikramaditya is essentially an Air Defence Ship. MiG-29K, the only aircraft on the ship does not have the strike capability, both in terms of weapon load as well as radius of action even in hi-hi-hi profile.
Indian stance in foreseeable future, therefore, will remain muted since we do not have/will not have the military muscle to influence the issues in South China Sea region. Indeed we have a capability, though extremely limited in potential, in form of Su-30s. Technically a Su-30 can fly up-to South China Sea region and return to its launch base on east coast. But it would involve around 11 hours round trip with minimum three mid-air refueling. Every such mission would be like OP ELDORADO, the USAF mission over Libya in which F-111s flew all the way from US mainland and returned. But before resorting to overfly South China Sea region, can rather should we start sending fighter sweeps at least up to Malacca Straits, something we ought to have done the day mid air refuellers joined the IAF fleet. Lack of political will and military leadership foresight does not allow us to exploit the weapon platforms we have.
Of course one school of thought might question any Indian intent to interfere in South China Sea. But if we were to consider the economic postulates of our nation, we are present in a large number of third world countries for oil exploration. South China Sea will, almost certainly, offer numerous such opportunities to ONGC Videsh. But with current imbroglio, which has bolstered China’s determination to claim the ownership of nearly 80% of South China Sea region, there is no way Chinese authorities will allow any foreign company, Indian company in particular to get its moorings there. Irrespective of what the international community may think, South China Sea has become Sovereign Chinese territory and only those nations will be allowed to reap the harvest in South China Sea (if any), to whom the permission is granted by China, freedom of navigation philosophy through international waters notwithstanding. Perhaps the time is ripe for India to allow its military to leave her shores on military missions in addition to docking at foreign ports on peaceful and friendly missions. Merely having the capability without clearly defined intent is of little or no use. Marshal Lin Piao’s ( at one time he was believed to be Mao’s successor, later disgraced and went into oblivion) famous statement made nearly four decades back that “ Indian Ocean is not India’s Ocean” must be ringing in the ears of Chinese, when the nation claims that South China Sea is China’s sea.
As usual has the United States ‘messed’ it up yet again by using Philippine as the cover to arrive in the South China Sea? It may never be known but making a guess does not cost anything except from being proved wrong. There was absolutely no need for Philippine to approach the PCA (notwithstanding the Scarborough Shoal incident) keeping in view numerous bilateral and multi-lateral agreements between nations surrounding South China Sea. Settlement of territorial disputes through mutual consultations is an established norm in international diplomacy. Unwittingly Philippine has freed the ‘caged tiger’. Way back in 1986 during a meeting between the then Chinese strongman Deng Xiaoping and Philippine vice-president and foreign minister Jose P Laurel it was tacitly agreed to that all existing disputes will be resolved mutually. Current Filipino president Rodrigo Duterte has his task cut out, hopefully! UN and International Court of Justice have disassociated themselves from the ruling of Permanent Court of Arbitration faster that the 100 meter dash runner at Rio Olympics.