Would a US-India cooperation break the legal stalemate in the South China Sea?

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Would a USIndia cooperation break the legal stalemate in the South China SeaA year after his presidential election, in November 2017, President Donald Trump made his first trip to five Asian countries and on his Twitter account, he expressed his honor of being present at the center of the Indo - Pacific region. Subsequently, in December 2017, the US announced the National Security Strategy (NSS), to be followed by the National Defense Strategy (NDS) in January 2018. Concurrently in 2018, the US changed the name of the Pacific Command to the Indo-Pacific Command, and also indicated that India is an important security partner of Washington. These moves have signaled the formation of the US vision of a “free and open” Indo-Pacific region that includes India and countries bordering the Indian Ocean. This region, as a matter of fact, is considered to be closely integrated geographically and politically with the rest of the Asia-Pacific. More importantly, the United States has now formally considered India as having a critical role to play in the US’ grand scheme in the Indo-Pacific. Would the US’ more comprehensive approach to the region which includes the strengthening of India's involvement and rebranding Washington’s Indo-Pacific Command possible help align both the US and India’s security interests, especially when China’s recent acts are seen as destabilizing regional order.

First, it is worth noting that the US-India bilateral ties have strengthened and improved, especially in security and defense. In July 2019, US Secretary of Defense Mark Esper told members of the Senate Armed Forces Committee that the overall goal of the US is to strengthen the long-term “strategic partnership” based on a strong defense cooperation with a capable Indian military forces in order to address common concerns in the region. What Mark Esper said is not without foundation as in the past few years, US-India bilateral defense trade increases significantly, of which the quantity and categories of defense equipment India imported from the US multiplied. The US has become India’s largest weapon supplier. At the same time, military exchanges are also pushed up with regular meetings of the US and Indian army staffs. The two sides are negotiating military cooperation agreements, of which two have already been signed. The positive developments in the US-India defense ties lead many to an early forecast the future US-India relations might become a formal alliance irrespective of India’s membership in the Non-Aligned Movement, past US support for Pakistan and India’s once reliance on Moscow’s advanced weaponry. It is unclear whether these forecasts would come true. However, as long as India continues to upgrade its relations with the US and Japan as well as maintains its posture as a reliable defense partner through a combination of arms trade with joint exercises with these two countries, the US-India relationship will surely continue to develop in a positive direction.

In another development, India has been actively cooperating with the Organization for Development Cooperation and Development (OECD) on labor contracts and investment projects, paving the way for closer economic ties between the US and India. Finally, it is worth highlighting the undeniably strong ties in the field of technology between the United States and India. According to recent statistics produced by US economic experts, up to 47% of the labor force in the US technology industry are Indians. These ties show the scale of a multifaceted relationship between the United States and India.

It is not surprising that India and the United States have strengthened their ties with each other in a world where globalization prevails. However, there is another fundamental reason that could explain an improved US-India relations, which is the “China” element, particularly since Beijing first announced its “Belt and Road Initiative” (BRI), China’s ambitions and its assertive steps to project power onto the “String of Pearls” in the Pacific and Indian Oceans. These developments have made India increasingly “insecure” at Beijing’s policies, fearing that Chinese investment in East Africa, Pakistan and Sri Lanka would put a strategic siege to India. Indian policymakers cannot help but worry about the country's ability to handle two wars with Pakistan and China, especially since these two have long held close military, economic and political ties. In the past, China once aided Pakistan to confront India. Today, Beijing is strengthening maritime cooperation with Pakistan and continues to hold joint military exercises. China is also a key supplier of defense equipments for the Pakistani military, including warships and sophisticated navigation systems. New Delhi said that the strategic alliance between Pakistan and China is a sign that Beijing is willing to “turn a blind eye” to Islamabad’s sponsoring of terrorist attacks as well as armed support to both the Pakistani Army and “jihad” groups in the Kashmir valley. The China-Pakistan Economic Corridor (CPEC), a key pillar in China's BRI with an estimated value of over US $ 50 billion, has long been a cause for India's concern about the risk of economic and military encirclement. In addition, the recent construction of Gwadar port by China Foreign Port Joint Stock Company would potentially serve as a commercial and military port under a 40-year lease agreement signed with the Pakistani Government. The presence of a Chinese naval base in New Delhi’s “backyard” will allow Beijing to interrupt India’s energy imports from the Persian Bay. Similarly, Sri Lanka’s recent decision to hand over the Hambantota port of over 4,000 square meters to a Chinese state-owned enterprise as a repayment of outstanding government loans has added to the concern of India being isolated and encircled not only by Pakistan.

In bilateral discussions on regional security, defense officials from both the United States and India agreed that China’s direct investment in South Asia and many other regions such as the North Pole, South Pacific, Africa and South America is quite a source of concern. At the Shangri-La Dialogue 2018, when discussing the South China Sea issue, Indian Prime Minister Narendra Modi called for the building of a free, open and inclusive Indo-Pacific region as well as a rules-based order. The statement was a clear hint to China’s moves in the South China Sea by building artificial islands and weakening the influences of regional organizations such as the Association of Southeast Asian Nations (ASEAN), ASEAN Regional Forum (ARF) as well as Beijing’s efforts to project its power in the Andaman Sea. Nevertheless, despite the nascent bilateral trade and investment relations between the United States and India, they might still find mutual interests to complement each other to counter current China’s BRI investments. Both Washington and New Delhi consider BRI to be Beijing’s ill-intended programs going against the goodwill underlying foreign direct investment (FDI) activities.

The question is from the above-said developments in US-India relations, what these two countries should do to break the current legal stalemate in the South China Sea.

India is a neutral party with an interest in promoting a rules-based order in the South China Sea, as well as in maintaining its reputation of a power as India used to apply the United Nations Convention on the Law of the Sea (UNCLOS) to resolve disputes with Bangladesh in the Bay of Bengal. Therefore, as part of its broader Indo-Pacific strategy, the US may ask India to offer its good offices for efforts to formulate a treaty on a rules-based regional order in the South China Sea. The following types of treaty could be taken into account:

The first type will be a plan to set aside territorial claims and facilitate mutual development. Such a treaty will promote sustainable development in the South China Sea, wherein signatory parties shall include China and the key claimants in the South China Sea, starting from the Spratly Islands. Mediation for such plan will help India gain praises from the international community and increase its reputation across the region. Currently, the Sino-India bilateral trade is increasing and has reached an historic high of US$ 84.4 billion in 2017. Given the importance of this economic relationship, the US may need to encourage India to convince China that a joint development plan would significantly bolster its status in the region and open up more economic opportunities for China in the long run.

The second type that Washington and New Delhi could propose to Beijing is the employment of confidence-building measures (CBM) in a multilateral framework to reduce tension and pave the way for a rules-based regional order. In the South China Sea context, CBM may include an advance notice of large-scale military exercises, less exaggeration of the freedom of navigation in return for demilitarization and elimination of offensive weapons that have been placed in the South China Sea. The promotion of confidence building on a strategic level between China and countries in the “Quad”, i.e. the US, Japan, India and Australia, is likely to be feasible as all five countries hold military operations in the South China Sea and have a common interest in reducing tension in the region. Such CBMs might also facilitate the said joint development arrangements and enhance common understanding of the various rights and interests in UNCLOS. A CBM agreement with the participation the “Quad” would also signal that key players in the Indo- Pacific are committed to the goal of requesting China to act in line with the widely recognized norms of international law, particularly the UNCLOS. It also means that the major powers participating in the implementation of the CBM will reassure Beijing that maritime operations in the South China Sea will be predictable and harmless and not threatening this country. The proposal to develop CBM should be carefully calculated to ascertain that this measure does not undermine maritime and aviation rights in UNCLOS. Even with the involvement of “Quad”, it must be ensured that all key players are committed to a rules-based order at sea which safeguards stability and security in the region.

The prospects of any type of treaty will depend on many factors, of which the following must include: 1/ Washington’s ability to win New Delhi’s support. If the two agree on the goals and policies, then the question is how to send Beijing a clear signal that it needs to adjust policies in the South China Sea in order to protect and maintain bilateral trade relations. 2/ The engagement of the “Quad" in joint restoration of order in the South China Sea. If both India and the United States could convince other countries to participate, it will pave the way for a comprehensive joint development arrangement or an effective Code of Conduct in the South China Sea.

The United States has always considered it as an Asia-Pacific nation with close interests, particularly commercial and military in the region, hence the maintenance of freedom of navigation and overflight in all oceans, including the South China Sea. From the Indian perspective, it has an interest in keeping Indian Ocean away from the uncertainties of South China Sea that could spread out and impair its Act East policy as well. Therefore, both the United States and India should join hands in considering the above proposals as a solution to the legal stalemate in the South China Sea today.