Territorial Disputes-South China Sea

GS-Paper-2 Political science – GS Mains-UPSC

Context: In global geopolitics the efforts to control more territory have always been prominent. China’s mighty claims of sovereignty over the sea—and the sea’s estimated 11 billion barrels of untapped oil and 190 trillion cubic feet of natural gas—have other competing claimants Brunei, Indonesia, Malaysia, the Philippines, Taiwan, and Vietnam.

Background

In 1982, the UN Convention on the Law of the Sea was adopted and signed, formalising extended maritime resource claims in international law and six governments laid claim to the disputed Parcel and Spratly islands in the South China Sea.

Since then, there has been a creeping militarisation of the waters by nations seeking to secure extended maritime resource zones.

In 2009, Vietnam began reclaiming land around some of the 48 small islands it had occupied since the 1970s. In response, China began its much larger reclamations on submerged features it first began to occupy in the 1980s.

By 2016, these reclamations had resulted in three military-grade, mid-ocean airfields that sent shockwaves around the world, provoked in part by China breaking its own pledge not to militarise the islands.

International Law:

Under the Law of the Sea Convention, all states have a right to 200 nautical mile “exclusive economic zone” to exploit the resources of the sea and seabed, as measured from their land territories. Where these zones overlap, countries are obliged to negotiate with other claimants.

Three great challenges:

• The first is the countries claiming parts of the South China Sea cannot agree who owns the Paracel and Spratly islands. China asserts its sovereignty based on highly disputable evidence from ancient times, as well as more recent claims from 1902-’39. China’s larger claim to the waters within the u-shaped “nine-dash” line. This line, which skirts the Philippines, Malaysia, Indonesia, Brunei and Vietnam, was first drawn by the Nationalist government of China in 1947. Japan occupied the islands during the Second World War and later recognised the claim of the Republic of China, now Taiwan, in a 1952 peace treaty. Vietnam has equally credible evidence from the period before and during the Second World War.
• A second challenge in this conflict is Taiwan, which has been in dispute with China over sovereignty issues since 1949. This dispute has meant Taiwan is not formally recognised as a state by most countries and is therefore not a signatory to the Law of the Sea Convention, nor legally entitled to claim territory. But Taiwan occupies one of the islands.
• Third, there is a debate in international law and freedom of navigation. About the type of land territory that can generate rights to an exclusive economic zone. The Law of the Sea Convention mandates the land must be able to sustain human habitation. And in 2016, the international tribunal in The Hague found no islands in the Spratly group met this criterion.

Conflict and associated views:

• UNCLOS itself left unresolved some issues related to military activities, especially “innocent passage” by warships in territorial seas. Under the Law of the Sea Convention, a foreign warship can pass within the 12 nautical miles of another state as long as it takes a direct route and doesn’t conduct military operations.
• But states disagree on what constitutes innocent passage.
• Maritime powers like the United States, United Kingdom and Australia routinely conduct freedom of navigation operations –to challenge what Washington calls “attempts by coastal states to unlawfully restrict access to the seas.”
• The US has angered China by carrying out FONOPs within 12 nautical miles of the islands it claims in the South China Sea. These operations are not designed to challenge China’s claims to islands or resource zones. Rather, the purpose is to assert US rights to freedom of navigation.
• China opposes it because of its assertion that naval ships should not “operate” in other countries exclusive economic zones. Beijing, however, ignores the contradiction between this position and its own activities in the sea, where its naval ships regularly operate in the claimed EEZs of other states.
• For their part, the smaller states of the South China Sea are ambivalent about the dispute. They are certainly opposed to what they see as bullying from China on excessive maritime claims and would like to deny all its island claims. But they are also not keen on seeing the US go too far in its policy of intensifying military confrontation with China.
• Australia’s statement on the South China Sea was its strongest rejection yet of China’s claims to the waters. It did not represent a new position on the legal issues but marked a fresh determination to confront China over its unreasonable claims and its bullying behaviour in the maritime disputes.
• Australia has not been keen on following the high-profile freedom of navigation operations of the US – concerned it might provoke a response from China – but that position may be about to change.

Role of India in South China Sea Dispute

Under the ‘Look East’ policy’ India has been taking a higher position at the global high table- this was reflected in the joint statement issued in September 2014, by the Governments of the U.S. and India when Indian PM Narendra Modi, travelled to the U.S. The joint statement “urged the concerned parties to pursue resolution of their territorial and maritime disputes through all peaceful means, following universally recognized principles of international law, including the United Nations Convention on the Law of the Sea.”

• The joint statement also, “affirmed the importance of safeguarding maritime security and ensuring freedom of navigation and overflight throughout the region, especially in the South China Sea.”
• In the wake of the recent judgment by the Permanent Court of Arbitration, it is a good time for India to assert that it believes in global commons and freedom of navigation. India has rightfully not come out in ‘open’ support of the verdict from the tribunal, as any overt support to this verdict might run against India’s ambitions of securing membership into the NSG- where China’s support is needed.
• India has a legitimate commercial interest in the South China Sea (SCS) region. But India follows the policy of not involving itself in the disputes between sovereign nations.
• India has been concerned about the security of its trade flows and energy interests in the South China Sea. Vietnam has offered India seven oil blocks in its territory of the SCS- this move didn’t get down well with China. India has signed energy deals with Brunei too.

Steps that can be taken

Since the South China Sea Dispute has been affecting many territories, the concerned authorities need to come to a resolution to solve the dispute so that the economic growth of the countries is not affected. Also, it is important that the claimant nations do not escalate the issue, but work on arriving at a consensus through effective diplomacy.

Judicial verdicts on issues of contested sovereignty have had historical precedents of triggering a nationalist backlash. It is thus important to consider possible solutions to this dispute. Some measures are as under:

• To resolve the disputes peacefully, the claimants in the region should be willing to abandon their confrontational attitude, and instead, agree to find a middle path- even if this requires sacrificing certain portions of their claims.

• All claimants can perhaps limit their claim to the areas of 200 nautical miles of the Special Economic Zone following the United Nations Convention on the Law of the Sea (UNCLOS). Thus, by agreeing to such a proposal, the claimants can also reach an agreement to leave international waters for free navigation.

• Another possible solution would be for the parties concerned to establish common ownership of the disputed areas whereby all the revenues from the South China Sea are equitably shared among the littoral countries.

• Perhaps another possibility would be for the disputing countries to specifically lay out their claims and allow a neutral party to adjudicate based on the UNCLOS or any other relevant international laws.

China has put forward a bilateral negotiation point of view but it has not been accepted by the other countries. This is because the other countries believe that China because of its size may have an unsaid advantage in the distribution of the water body.

ASEAN has also been involved in solving the dispute but the decision has yet to be taken. But resolving the dispute has become important because it is affecting trade across the world and especially an issue for the US regarding security issues.

Cairn Energy wins arbitration award

• India has been ordered to return up to $1.4 billion to Cairn Energy PLC of the U.K. after an international arbitration overturned tax demanded retrospectively — an award the government indicated it may challenge.
• The three­member tribunal, which also comprised a nominee of the Indian government, unanimously ruled that India’s claim of 10,247 crore in past taxes over a 2006­07 internal reorganisation of Cairn’s India business was not a valid demand.
• India “failed to accord Cairn Energy’s investments fair and equitable treatment” under the bilateral investment protection pact it had with the U.K.
• The tribunal ordered the government to desist from seeking such a tax and return the value of shares it had sold, dividends seized and tax refunds withheld to recover the tax demand.
• The government was asked to compensate Cairn “for the total harm suffered,” together with interest and cost of arbitration.