Ashok Mahapatra
The United Nations Convention on the Law of the Sea (UNCLOS) defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. It replaced the quad-treaty 1958 Convention on the High Seas. This is by far the best codification of customary international law.
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During the UNCLOS negotiations, China was still finding its feet in the international theatre. At that time, the brief given to the Chinese delegation consisted of three principles: support anti-hegemony (i.e. be against US and USSR), support the Third World and protect the national interest. During the negotiations, China being grateful to the Third World for their support in deciding its membership in the United Nations put its national interest temporarily in the backburner.
Now, China sees itself as the big loser in UNCLOS due to its unfavourable geographic location. Earlier, China used to emphasise its advantage due to its long boundaries and coastlines as well as its large natural resources. Lately, it has realised that notwithstanding its approximately 18,000-km coastline, China’s geography inhibits it from achieving its maritime hegemony. As China’s coastline opens into four seas (the Bohai, Yellow, East China, and South China Seas) which are enclosed by island states and not oceans, China’s maritime space is inhibited due to lack of breadth. As a result, in accordance with the provisions of UNCLOS, China would have to share its maritime space with these littoral states. Among these, the South China Sea offers more space, but it is enclosed by nations with their own sovereignty claims in that maritime space.
Historically, Chinese maps gave little importance to the South China Sea. This changed in 2009 when China attached a map with the infamous nine-dash line in its submission to the UN, related to a dispute with Vietnam. They are so pedantic about this that, now, Chinese passports are emblazoned with a map with nine dashes through the South China Sea which further includes a tenth dash to include Taiwan. These dashes hug the coasts of other Southeast Asian nations more closely, giving China an even more expansive claim to the waterway. This is the heart of the South China Sea dispute and China claims almost 90 per cent of this area. Interestingly, the line runs almost 2000km from the Chinese mainland and within a few hundred kilometres of the Philippines, Malaysia, and Vietnam. In addition, China insists that it owns all land or features contained within the line through its vague “historical maritime rights”.
If, in today’s world, China’s claims are considered valid, then what prevents other countries including India (from Kalinga, Pallava and Chola times, or even earlier) from digging into history to do the same? This would result in utter chaos and anarchy.
While being a signatory to UNCLOS, China has never defined the legal meaning of the nine-dash line or what its “rights” are within the boundary. This ambiguity, probably intentionally, is to fool the ordinary Chinese people into believing that the line marks China’s maritime boundary. This is not surprising as China of today is well-known for its duplicity and deceit.
In 2013, the Philippines petitioned an international tribunal within the Permanent Court of Arbitration, in The Hague, to rule on the legality of China’s nine-dash line under UNCLOS. The tribunal ruled that China’s nine-dash line claim and accompanying claims to historic rights had no validity under international law. The tribunal also concluded that, China’s historic rights to resources in the waters of the South China Sea were extinguished as they were incompatible with the exclusive economic zones provided for in UNCLOS. In addition, the tribunal ruled that Chinese reclamation activities of building artificial islands were illegal under UNCLOS. Notwithstanding the ruling, China immediately clarified that it does not accept the result or legitimacy of the tribunal’s award and would continue its activities in South China Sea unhindered.
China’s negotiation of UNCLOS and its present implementation of the provisions thereof provide a good case study to understand its foreign policy making and its attitude toward international laws and treaties. In contrast, the United States which was the original architect, while not yet being a party to UNCLOS, has accepted and complies with nearly all the treaty’s provisions.
After abrogating term limits for a leader, President Xi Jinping at the National People’s Congress in 2018 outlined his vision for a rejuvenated China leading the world order as a superpower rivalling the United States by 2049. Here, one cannot help but recall Deng Xiaoping’s definition of a superpower as an imperialist country which everywhere subjects other countries to its aggression, interference, control, subversion, or plunder and strives for world hegemony. He also went on record at the United Nations in 1974: “If one day China should change her colour and turn into a superpower, if she too should play the tyrant in the world, and everywhere subject others to her bullying, aggression and exploitation, the people of the world should identify her as social-imperialism, expose it, oppose it and work together with the Chinese people to overthrow it.”
As China turns the script of ‘peaceful rise’ on its head, it has forced nations into strategic reversals. Vietnam and the Philippines have criticised China that the military drills in the South China Sea were a violation of sovereignty and could be detrimental to Beijing’s relationship with ASEAN. Considering the foregoing, the question that comes up is, how the world, and India in particular, will deal with this situation?
Bearing in mind that China has been acquiring various maritime assets around India popularly known as Garland of Pearls, the time has come for India to cooperate with the littoral states in the South China Sea and form its own Garland of Coalition to assist them reclaim their due maritime jurisdiction in accordance with established customary international law.
Furthermore, reciprocity is synonymous with diplomacy, where there always is a give-and-take. For far too long, India has towed the Chinese line relating to the ‘One China Policy’ without getting anything in return. It needs to be conveyed that if they expect India to accept the ‘One China Policy’, then it must reciprocate with ‘One India Policy’ –ie, accept POK and Gilgit Baltistan as an integral part of India and return the annexed area of Aksai Chin.
Finally, the world should unite in making China aware that there is space for peaceful coexistence but not submissive behaviour as a Middle Kingdom’s tributary and that it probably has bitten off more than it can chew.
The writer is retired director, Maritime Safety Division, International Maritime Organisation, United Nations.
