📰 More sabre-rattling, more isolation
Chinese muscularity in the South China Sea is leading to a growing chorus of protest
•The Philippines invoked the dispute settlement mechanism of the UN Convention on the Law of the Sea (UNCLOS) in 2013 to test the legality of China’s ‘nine-dash line’ regarding the disputed Spratlys. In response, the Permanent Court of Arbitration (PCA) at The Hague decreed in its July 12, 2016 judgment that the line had “no legal basis.” China dismissed the judgment as “null and void.”
•The South China Sea (SCS) is important not just to its littoral countries. It has been a transit point for trade since early medieval times, contains abundantly rich fisheries, and is a repository of mineral deposits and hydrocarbon reserves.
The PCA verdict
•The PCA award undermined the Chinese claim. It held that none of the features of the Spratlys qualified them as islands, and there was no legal basis for China to claim historic rights and to the resources within the ‘nine-dash line’. The UNCLOS provides that islands must sustain habitation and the capacity for non-extractive economic activity. Reefs and shoals that are unable to do so are considered low-tide elevations.
•The award implied that China violated the Philippines Exclusive Economic Zone (EEZ). It noted that China had aggravated the situation by undertaking land reclamation and construction, and had harmed the environment and violated its obligation to preserve the ecosystem. China dismissed the award as “a political farce under the pretext of law.”
•Given the power equations, the Philippines did not press for enforcement of the award and acquiesced in the status quo. Not one country challenged China, which agreed to settle disputes bilaterally, and to continue work on a Code of Conduct with countries of the ASEAN.
•Given that their economic ties with China are deepening, it may appear that the ASEAN countries are bandwagoning with China. In reality, there is growing discontent. While avoiding military confrontation with China, they are seeking political insurance, strengthening their navies, and deepening their military relationships with the United States.
•Vietnam has added six Kilo-class, Russian-origin submarines to its navy. France, Germany and the Netherlands, respectively, have supplied Formidable-class stealth ships to Singapore, patrol boats to Brunei Darussalam, and corvettes to Indonesia. Japan is partially funding the upgradation of the Indonesian coast guard. Indonesia and the Philippines are in early stages of exploring procurement of the BrahMos missile from India. The other ASEAN countries that have shown interest are Thailand and Vietnam.
•Growing Chinese muscularity in the SCS is visible in the increased patrolling and live-fire exercising by Chinese naval vessels; ramming and sinking of fishing vessels of other claimant countries; renaming of SCS features; and building of runways, bunkers, and habitation for possible long-term stationing of personnel on the atolls claimed by China.
•Chinese exploration and drilling vessels compete aggressively with those of other littoral countries in the disputed waters. Petronas has been prospecting for oil in the Malaysian EEZ. A Chinese spokesperson claimed in early June that its own survey vessel in the same area was conducting “normal activities in waters under Chinese jurisdiction.”
•The festering regional resentment against China resulted in the unmuting of the ASEAN response to the growing Chinese footprint in the SCS at its 36th Summit on June 26, 2020.
•China might have overreached by showing its aggressive hand prematurely. There is a growing chorus of protest against China. Having Vietnam, Japan and the U.S. riled up about its actions is nothing new for China. The Philippines and the ASEAN beginning to protest is new, even if their criticism is restrained. This does China little credit, and points to its growing isolation.
•Indonesia protested to China about Chinese vessels trespassing into its waters close to the Nantua islands, towards the south of the SCS. The Philippines protested to China earlier this year about violations of Filipino sovereignty in the West Philippine Sea. It also wrote to the UN Secretary General (UNSG) in March disputing China’s claim of “historic rights in the South China Sea.” Two months later, Indonesia too wrote to the UNSG on this issue. It expressed support for compliance with international law, particularly the UNCLOS, as also for the PCA’s 2016 ruling.
•President Rodrigo Duterte said he had not followed up on the PCA judgment because the Philippines could not afford to fight China. Yet, when a Chinese firm bid to develop the Subic Bay, this was disallowed on the grounds that the use of archipelagic waters was exclusively reserved for Filipinos and that foreign investment regulations prohibited foreign equity for the utilisation of marine resources in archipelagic waters. Another recent decision, to extend the Visiting Forces Agreement with the U.S. for six months “in light of political and other developments in the region,” as expressed by the Philippines Foreign Secretary, is a strategic setback for China. Only this June, the Philippines commissioned a beaching ramp on the Pag-Asa Island. A Filipino C-130 landed on its runway, which is being repaired. The Philippines is about to induct its first missile-capable frigate, built in South Korea, into its navy.
•A complicating factor for China is Russia’s growing military and economic equities in the SCS. Russia and Vietnam have a defence cooperation relationship, which they are committed to strengthening. China has objected to Rosneft Vietnam BV prospecting within the Chinese defined ‘nine-dash line.’ Rosneft has also been invited by the Philippines to conduct oil prospecting in its EEZ.
India’s relevant options
•From India’s perspective, foreign and security policy in its larger neighbourhood covers the entire expanse of the Asia-Pacific and extends to the Persian Gulf and West Asia. India straddles, and is the fulcrum of, the region between the Suez and Shanghai, between West and East Asia, and between the Mediterranean and the SCS. The SCS carries merchandise to and from India. It follows that India has a stake in the SCS, just as China has in the Indian Ocean.
•India must continue to actively pursue its defence diplomacy outreach in the Indo-Pacific region: increase military training and conduct exercises and exchanges at a higher level of complexity, extend Humanitarian Assistance and Disaster Relief activities, share patrolling of the Malacca Strait with the littoral countries, etc. The Comprehensive Strategic Partnerships that India has concluded with Australia, Japan, Indonesia, the U.S., and Vietnam could be extended to Malaysia, the Philippines, Thailand, and Singapore.
•India must also buttress the military capacity of the tri-service Andaman and Nicobar Command. According to one of its early Commanders-in-Chief, Lt. Gen. Aditya Singh, the manner in which the 368 islands, have been neglected “can only be termed as criminal.” These have immense geo-strategic value, as they overlook Asia’s maritime strategic lifeline and the world’s most important global sea lane. In this time of turbulence, India cannot afford to continue undervaluing one of its biggest assets.
In the conventional escalation along the LAC, India cannot afford to ignore China’s expanding nuclear arsenal
•Despite domestic and external challenges, there is now growing evidence that the People’s Republic of China (PRC) continues to expand its nuclear arsenal, which is worrisome but at the same time, not be surprising. China is pursuing a planned modernisation of its nuclear arsenal because it fears the multi-layered missile defence capabilities of the United States. It is arming its missiles with Multiple Independently Targetable Re-entry Vehicles (MIRVs) capabilities to neutralise America’s missile shield. China’s DF-31As, which are road mobile Intercontinental Ballistic Missiles (ICBMs), are equipped with MIRVs and potent penetration aids.
Estimates and what it means
•The Peoples Liberation Army Rocket Force (PLARF) also fields a range of Medium Range Ballistic Missiles (MRBMs) and Short-Range Ballistic Missiles (SRBMs). The PRC’s ballistic missile tests in 2019 were the highest among the designated Nuclear Weapon States (NWS). China’s Lop Nur was the site of Chinese sub-critical testing since the PRC adopted a moratorium on hot testing in 1996, enabling China to miniaturise warheads and develop new designs that have been progressively integrated into its nuclear arsenal. The PRC also sits on a sizeable inventory of fissile material. China, according to the International Panel on Fissile Materials (IPFM) is estimated to possess 2.9+-0.6 metric tonnes of Weapons-grade Plutonium (WGP) compared to India’s is 0.6+-0.15 tonnes of WGP.
•China’s expansion is cause for concern because even as the U.S. and Russia are attempting to reduce the size of their respective arsenals, the PRC is on an expansionist mode. The Stockholm International Peace Research Institute (SIPRI) observes that China’s nuclear arsenal has risen from 290 warheads in 2019 to 320 warheads in 2020.
•This increase might not seem large relative to the size of the nuclear arsenal of the U.S. and Russia but it indicates a gradual shift toward a larger arsenal. This presents India with challenges because New Delhi has to contend with a nuclear-armed Pakistan as well. The Indian nuclear arsenal, according to the SIPRI, stands at roughly 150 nuclear warheads with the Pakistani slightly ahead with 160 warheads. The Chinese state mouthpiece, Global Times, has recently called for a 1,000-warhead nuclear arsenal, underlining the motivation of the PLA and the hard-line factions of the Communist Party of China (CPC) to match U.S. and Russian nuclear force levels.
•While these numbers are important, what is equally, if not more, consequential for New Delhi is what China’s nuclear modernisation and diversified nuclear capabilities are likely to do for conventional military escalation along the China-India boundary. The conventional military balance between Indian and Chinese forces along the Line of Actual Control (LAC) presents significant challenges for Indian decision-makers. Given the variegated and highly sophisticated nature of Chinese nuclear capabilities relative to India, they give Beijing considerable coercive leverage. Beijing could commit further aggression under the cover of its nuclear arsenal.
•Indeed, the PRC has already engaged in nuclear signalling with set piece videos, which have been doing the rounds on social media platforms. The message is clear to New Delhi from China’s leadership: we have presented you with a fait accompli; accept it and move on. Beijing is communicating that an escalatory response from New Delhi will incur punitive responses with China mounting aggressive military action at several points along the LAC. However, this time it will be more consequential, unlike the last in March-April when the Peoples Liberation Army (PLA) mounted a rapid tactical offensive to occupy small territory at Pangong Tso and caught the Indian Army by surprise. Notwithstanding efforts to de-escalate particularly at Patrolling Point 14 (PP-14) in the Galwan River Valley, Hot Springs and Gogra, Chinese ground units have consolidated their position in the Pangong Tso area and the entire stretch of the LAC. To be sure, India is doing the same, but the Fingers 4 to 8 in Pangong Tso, where the PLA is entrenched, is a serious potential flashpoint as the Indian Army is locked in an eyeball-to-eyeball confrontation against its Chinese adversary. It could become a staging ground for further PLA ingress, notwithstanding Indian defensive preparations, triggering hostilities that widen to the Karakoram and Arunachal Pradesh. The Chinese nuclear arsenal could serve as an instrument of coercion under which the PRC could press ahead with a limited aims war.
More challenges for India
•Consequently, Indian decision-makers need to be aware of the PLARF’s land-based missile forces. The PRC is believed to base a part of its nuclear arsenal in inland territories such as in the Far-Western Xinjiang Region, which is close to Aksai Chin. China’s land-based missiles are a primarily road mobile and could play a key role in any larger conventional offensive the PLA might mount against Indian forces along the LAC.
•Korla in Xinjiang is believed to host DF-26 IRBMs with a range of 4,000 kilometres, which can potentially strike targets across most of India. Their mobility gives them a high degree of survivability. The DF-26 IRBMs can be armed with either a conventional or nuclear warhead. Since the IRBMs could be either conventional or nuclear tipped, assessing Chinese trip-wires will make things tricky as the PLARF’s conventional and nuclear forces are likely to be embedded together, presenting challenges for both the Indian civilian and military leadership.
Be on guard
•Thus, conventional escalation between Chinese and Indian forces along the LAC must factor the role of nuclear weapons and their impact on military operations executed by the Indian Army and the Indian Air Force. India’s Strategic Forces Command (SFC) needs to be on a heightened state of alert to ward off Chinese nuclear threats and brinksmanship as well as geared to support India’s conventional forces.
•While escalation of the current stand-off between Indian and Chinese forces is not inevitable, it would be a terrible mistake on the part of the Indian government to ignore the possibility, because it might not come from New Delhi but Beijing.
•Whatever the outcome of the current crisis, New Delhi should start seriously assessing its extant nuclear doctrine and redouble efforts to get a robust triadic capability for deterrence.
📰 Police terror and the theatre of law
The Jayaraj-Benicks case shows that without proper rule of law, citizens are condemned to live in local tyrannies
•The murder of Jayaraj and Benicks at the hands of the local police in Sattankulam, Tamil Nadu has provoked national outrage. The bare bones of the incident are widely known. A small shopkeeper is picked up for a trivial offence, taken to the local police station. His son too is detained. Both are mercilessly thrashed. The hospital to which they are taken, admits that they have blood clots all over their body but gives false certificates of fitness. The magistrate remands them to judicial custody without examining their abused bodies, merely waving consent from far away. Within a couple of days, the two succumb to their grievous injuries.
State and the law
•What does this reveal about the nature of our state and the link between law and violence? The modern state emerged by gathering power dispersed among rivalrous, local strongmen and depositing it in a single set of inter-related institutions, now endowed with a monopoly of force and violence. These institutions were meant to function independently of the ruler — they do not belong to him, are not part of his personal estate. Instead, they work for the entire public.
•The Jayaraj-Benicks case makes us doubt if such a modern, impersonal state exists in India. It shows first that our political institutions, including the judicial machinery, are far from independent of the will of the rulers; rather, they work at their personal command. Second, local policemen think of themselves as sovereigns in their own little territory, executors of ‘laws’ they invent on the go. At the very least, they believe that they partake in sovereign power, protected by lawmakers sitting higher up. Indian society continues to consist of rival power groups, each with a ‘private’ police force at their mercy, coercing local populations to behave according to rules crafted at will. It is as if the entire country is splintered into little fiefdoms, each believing to have a monopoly of violence. Third, police brutality is a routine, banal feature of everyday life of the poor. The wanton actions of the police are woven into the fabric of daily social interactions. The police uniform plays a symbolic role expressing that anyone who dons it has power, prestige and the backing of the entire official apparatus. This social superiority sanctions extra-legal behaviour that often has the stamp of rampaging criminality. After all, nothing done by the Sattankulam police was by the rule book; everything from the first to the last violent moment was extra-legal. Far from safeguarding the legal from the illegal, the police embraced criminality. Jayaraj and Benicks appeared to be living not in a post-independent constitutional state but under a local police state wrought in the colonial or pre-colonial era.
Law as performance
•Our society is meant to be governed by the rule of law implemented by a state above it, impartially arbitrating social disputes. In reality, it is an arena where everyone fights with all their might over material resources, power, status, ideas, and crucially, the control of the legal machinery. To get the law on your side brings enormous advantage, for once under control, it functions at your pleasure, largely to benefit you. But since democracy requires that the law work for everyone, a performance must be staged to sustain this myth, a make-believe world created for ordinary people that ‘all is well’. The performance of law courts is like theatre or a film that seduces spectators into a reality of its own making. On most occasions, the lower courts are seen to be doing something when in fact they get nothing legally substantive done. They operate but do not really function. The discourse of the rule of law too is often a handy rhetorical ploy. The action of remanding Jayaraj and Benicks to judicial custody exemplified an infirm, callous, judicial system designed to keep up the façade of the rule of law. The magistrate did not even care to properly perform the law.
•It is of course true that some committed police officers, such as the woman head constable, Revathy, work overtime to maintain the integrity of the force. And whenever people begin to seriously doubt its efficacy, it is, thanks to them, that the law is temporarily allowed to work as it should, impartially, for everyone. But, alas, this happens only until its image as a credible agency is restored. After that, it is once again business as usual.
•The proper functioning of the legal system then is the exception, the absence of rule of law and the lawlessness of local powers, the norm. Winners at the ballot box appear to earn the right to rule by arbitrary power. They control and regulate whole populations at their pleasure, exactly as the maharajas of yesteryears. Our democracy allows us to elect those to whom we haplessly submit for five years. Not true? Pure hyperbole? The jury on this question is still out.
Excessive force
•Undeniably, any system of law depends on the deployment of force. But its use must be consistent with the dignity of a person. Rule of law requires the presence of constraints on excesses. Excessive violence, for instance torture in pursuit of information and confession, is illegal in most decent societies. Yet Jayaraj and Benicks were victims of a surfeit of unwarranted violence. How does one explain this excessive use of force? Sadly, when a body is broken to bits, and the face disfigured, there is not much left to respect. To mutilate a body is to demean and humiliate it. Excessive violence is meant to convey that the life of the victim is truly worthless.
•Such humiliation is complete when the dismembered body is made public. The European thinker, Michel Foucault, has argued that torturous spectacles, common in Medieval ages, have given way to punishment in disciplinary institutions isolated from society. Yet, as we know, public lynchings have not disappeared in our own times. Indeed, residual elements of the public display of violence are evident even in the Jayaraj-Benicks case. Flogged in an enclosed public space, their bloodied bodies must have been brought to the hospital in full public glare, then taken to be shown to the public magistrate, and when declared dead, publicly handed over to the family.
•So, what began as an alleged minor offence turned into a grave crime as the body was slowly ripped apart. With each strike on the bodies by the iron rod, the enormity of their crime rose, the impunity of police action deepened and the warning to others grew louder. Most of all, these mutilated bodies demonstrated the heavy price of dissent.
The purpose of brutality
•In Thoothukudi, Tamil Nadu, surplus violence was inflicted with a distinct social and political purpose. In Saturday’s feature article (‘Ground Zero’ page, “When protectors turn perpetrators”, July 4, 2020), The Hindu reported that the day before detention, Jayaraj sympathetically went up to unpaid workers of a shop nearby, asking them to stand their ground, even as an abusive policeman had threatened to punish them if they did not disperse. Upon learning this, the police felt this openly challenged their authority, an act of aggression not just on the state but on their very person. From then on, their wrath knew no bounds. The Hindu also reported that illegal sand mining and the sale of illicit liquor are common in the area. It appears that any form of challenge to a police force that plays a key role in maintaining this corrupt and criminal order had to be dealt with swiftly, harshly. A crack in the system must not be allowed to open further, filled immediately. Authoritarian rule works by fear, brooking no deviation. Jayaraj and Benicks unwittingly made the mistake of questioning the command of the local tyrant. Coming from an ordinary person, how can such a challenge ever be brooked?
•The Jayaraj and Benicks case shows that without proper rule of law, we are all condemned to live in local tyrannies. How many more lives must we lose before its corrosive impact on our collective life — the loss of freedom and dignity — is acknowledged?
