India’s response to the award of the tribunal at the Permanent Court of Arbitration regarding the South China Sea dispute was both unusually robust and fundamentally cautious. India took a reasonably strong stand in its public statements. But China’s actions since the judgment show that India needs to take a stronger line if it wants to achieve its objectives. Given the importance of the principles at stake, it would be in India’s best interests to take a more forward-looking and forward-leaning approach to the South China Sea dispute.
On July 12, shortly after the award was announced, India’s Ministry of External Affairs issued a short but clear statement in which it reiterated its support for “freedom of navigation and overflight, and unimpeded commerce, based on the principles of international law,” and urged “all parties to show utmost respect for the UNCLOS [UN Convention on the Law of the Sea], which establishes the international legal order of the seas and oceans.” This language was familiar from prior official statements such as the June 2016 U.S.-India Joint Statement. Seven weeks later, however, Foreign Secretary S. Jaishankar went much further in his remarks at the Indian Ocean Conference in Singapore. Secretary Jaishankar not only urged “all parties to show utmost respect for the UNCLOS” but also noted that “the authority of [the] Annex VII Tribunal and its awards is recognized in Part XV of the UNCLOS itself”—an implicit statement of support for the binding nature of the award. The statement stopped short, however, of explicitly calling on China to respect the judgment, something only a select group of nations has done.
India’s first response was not a disappointment. For one thing, the statement walked back India’s unfortunate involvement in a joint Indo-Sino-Russian communique that was very close to China’s position. Furthermore, its language implied solidarity with nations like Japan and the United States that have played a leading role in the dispute. Furthermore, India is generally reluctant to stake out an aggressive position on foreign policy issues outside its neighborhood. By this measure, the initial statement was bold, and Secretary Jaishankar’s decision to push India’s position a little further forward was icing on the cake.
From another perspective, however, the response fell short. International tribunals, lacking an enforcement arm, often rely on mechanisms like shame and ostracism to give their judgments weight. This makes clear messaging by supportive nations a priority. But India’s first statement was vague enough to allow China to claim that India supported its position—a claim that, while clearly false, required relatively complex explanations to disprove. Secretary Jaishankar’s statement in early September came after world attention had already moved away from the South China Sea verdict and was buried in a longer speech.
Furthermore, events in the four months since the award was announced show that China has only hit pause on its previous approach in the South China Sea. Having successfully avoided the full weight of international condemnation, it is pursuing a course of ambiguous partial compliance while working to win support from ASEAN and European nations individually. Should India someday wish to take a stronger stand on the issue, it may find that it has little diplomatic room for maneuver.
But why should India take a stronger stance? What would it gain by pursuing a harder line on the South China Sea, thereby risking an increase in tensions with China? Domestic critics of the Indian government’s approach seem to believe that there is not much at stake for India in the South China Sea and that the risks of confrontation outweigh the gains. Srinath Raghavan, for instance, accuses India of ignoring China’s legitimate concerns about U.S. naval activity in the South China Sea, rejects the prospect that China would ever cut off shipping in the area, and recommends that India “reassure” China of its position in order to lessen bilateral tensions.
Supporting the tribunal is not a boondoggle into which the United States is dragging India, at the expense of its relations with China. The principles the award vindicated, which go far beyond simple freedom of navigation, may not seem particularly critical now, but they could one day prove crucial for India. This is especially so given that, while India is currently the undisputed power in its maritime neighborhood, China is building closer relationships with many of India’s neighbors and might one day back a challenge to the status quo there.
The tribunal found that:
- The UNCLOS system of territorial waters, exclusive economic zones, and continental shelves supersedes any claims based on “historical rights.” By rejecting the nine-dash line, the tribunal enshrined the principle that states cannot set the boundaries of their fishing grounds based on the maximum historical extent of their fishing industry. The same principle would rule out a future Chinese claim to fishing rights in the Andaman Islands or a Sri Lankan claim to fishing rights in southern Indian waters.
- Rocks can’t be turned into islands and used as the basis for altering maritime baselines. Land reclamation activities aren’t currently taking place in the Indian Ocean, although China’s work at the Coco Islands comes close. What if Pakistan chose to build out a sandbar south of Karachi in an attempt to alter the orientation of the Indo-Pakistani maritime border?
- Law enforcement vessels should act rationally and safely and avoid causing harm to vessels and citizens of other countries. China’s heavily armed coast guard has been its primary mechanism for enforcing its claims in the South China Sea, and most stand-offs in the South and East China seas involve law-enforcement vessels, not navies. Again, this is a tactic that could easily spread to the Indian Ocean.
Finally, as Secretary Jaishankar said, the tribunal is an official body constituted under UNCLOS to interpret and apply the provisions of the treaty. Thus the award is itself an important artifact of the rule of law in international maritime issues, and respecting the judgment sets a useful precedent in future disputes, even if such disputes involve principles that are not yet on India’s radar.
The stakes for India in the South China Sea dispute are clear, if not yet pressing. India’s government seems to perceive this. But given China’s economic, diplomatic, and military might, a strategy of issuing a few carefully worded statements will not help India ensure that the rules of the road for maritime Asia are set in the Pacific, before Delhi finds its own interests challenged in the Indian Ocean.
