Diplomatic Challenges in the

South China Sea

Emeritus Professor Carlyle A. Thayer

Presentation to Contemporary Challenges in Diplomacy
Asia-Pacific College of Diplomacy
The Australian National University
Canberra, October 11, 2018
 Outline

1. Introduction
2. United Nations Convention on the Law
of the Sea (UNCLOS)
3. Claimants
4. Overview of Diplomatic Efforts
5. The Philippines Claims Against China
 Outline

6. Arbitral Tribunal and Award

7. Militarisation of Artificial Islands
8. U.S. Freedom of Navigation and
Overflight
9. Conclusion - Single Draft South China
Sea Code of Conduct Negotiating Text
1. Introduction

2nd busiest waterway

US $5 trillion in goods
Geographical Features
Shipping Routes
Same
density
line for
LNG
trade
flows
 2. UNCLOS
• Constitution of the World’s Oceans
• Does not deal with sovereignty
• Maritime zones & features (next slide)
• Sovereign jurisdiction over resources
• Semi-enclosed Sea
– Duty to Cooperate
– Protect marine environment
• Provisional arrangements of a practical nature
• Dispute settlement (discussed below)
 UNCLOS
Land dominates the sea
Maritime Zones
• Baselines
• Internal waters
• Territorial Sea
• Contiguous Zone
• Exclusive Economic
Zone (EEZ)
• Continental Shelf
• High Seas
• International waters
What about land features – LTE,
rocks and islands?
3. Claimants:
• China
• Taiwan
• Vietnam
• Philippines
• Malaysia
• Brunei
• [Indonesia]
 China’s
9-dash line
• Historic rights
• Four sha
• Pratas Ils.
• Paracel Ils.
• Spratly Ils.
and
• Macclesfield
Bank
 4. Overview of Diplomatic Efforts

• July 1992 ASEAN issues 1st statement on SCS

– China-Vietnam clash near Vanguard Bank
– ASEAN calls on parties to exercise restraint
• Mar. 1995 ASEAN issues 2nd statement on SCS
– China occupies Mischief Reef
– ASEAN expresses serious concern, refrain from
destabilisation
• Mar. 2000 ASEAN and China exchange draft
Codes of Conduct
 Declaration on Conduct of Parties in
the South China Sea (DOC )
• 5. The Parties undertake to exercise self-
restraint in the conduct of activities that
would complicate or escalate disputes and
affect peace and stability including, among
others, refraining from action of inhabiting on
the presently uninhabited islands, reefs,
shoals, cays, and other features and to handle
their differences in a constructive manner.
– November 2002 (non-binding political statement)
 Cooperative Activities Under the DOC
• a. marine environmental protection;
• b. marine scientific research;
• c. safety of navigation and communication at
sea;
• d. search and rescue operation; and
• e. combating transnational crime, including
but not limited to trafficking in illicit drugs,
piracy and armed robbery at sea, and illegal
traffic in arms.
 Declaration on Conduct of Parties in
the South China Sea (DOC)
• 10. The Parties concerned reaffirm that
the adoption of a code of conduct in the
South China Sea would further promote
peace and stability in the region and
agree to work, on the basis of consensus,
towards the eventual attainment of this
objective.
– November 2002
 Implementing the DOC

• 12/2004 Terms of Reference Joint Working

Group (JWG) to Implement the DOC
• 7/2011 Guidelines to Implement the DOC
• 1/2012 four Expert Committees
– Marine scientific research
– Environmental protection
– Search and rescue
– Transnational crime
 Implementing the DOC

• 7/2012 Proposed Elements of Regional COC

– Senior Officials Meeting (SOM) commence
• 7/2012 45th ASEAN Ministerial Meeting
Retreat - debacle
– Indonesia’s Foreign Minister 6-Point Principles
• 1/2013 Philippines files claim under UNCLOS
• 9/2013 1st JWG consultations Implement DOC
• 8/2017 Framework for COC adopted
 5. Philippines Claims Against China,
January 2013
• China has made excessive maritime claims
• Determine legal status of islands, rocks and
low tide elevations and submerged banks
occupied by China (next slide)
• China is interfering with Philippines’ lawful
rights within and beyond its EEZ and
continental shelf
• Declare 9-dash line illegal in international law
 Philippines Claims Against China
Entitlements
Low Tide Elevations Italics = Rocks
• Mischief Reef • Johnson South Reef
• Subi Reef • Cuarteron Reef
• Gaven Reef • Fiery Cross Reef
• Hughes Reef (+ • Scarborough Shoal
McKennan Reef) • Chinese activities in the
• Second Thomas Shoal Philippines’ EEZ
Scarborough Shoal Incident 2012
 6. Arbitral Tribunal and Award
Established 29 Oct 2015 Concluded 12 July 2016
Appointed by the President
of the International
Tribunal on the Law of the
Sea (ITLOS) from a panel
nominated by state parties
to UNCLOS

UNCLOS provides
provisions when one of the
parties declines to
participate

Judge Stanislaw Pawlak

(Poland) assigned to
represent China’s case
 UNCLOS Compulsory Dispute
Procedures – Binding Decisions
• All state parties to UNCLOS are free to choose
one or more of four means to settle disputes:
– International Tribunal for the Law of the Sea (ITLOS),
Hamburg
– International Court of Justice, The Hague
– Arbitral Tribunal
– Special Arbitral Tribunal
• Where the parties have not designated the
means for dispute settlement default = Arbitral
Tribunal
 Arbitral Tribunal
• Does it have jurisdiction?
• Does the Philippines’ claim have legal merit?
• When one party does not appear the judges
are not to make any inferences
• Position Paper of the Government of the
People’s Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration
Initiated by the Republic of the Philippines
 Arbitral Tribunal Award
• "DECLARES that, as between the Philippines and
China, China's claims to historic rights, or other
sovereign rights or jurisdiction, with respect to the
maritime areas of the South China Sea
encompassed by the relevant part of the 'nine-
dash line' are contrary to the Convention and
without lawful effect to the extent that they
exceed the geographic and substantive limits of
China's maritime entitlements under the
Convention; and further DECLARES that the
Convention superseded any historic rights, or
other sovereign rights or jurisdiction, in excess of
the limits imposed therein."
 Findings of the Arbitral Tribunal:
The Philippines v China
1. UNCLOS comprehensively allocates rights in the
maritime domain
2. None of the land features in the Spratlys is an island
3. China in breach of flag state obligations related to
International Regulations for Preventing Collisions at
Sea (COLREGS)
4. China failed to protect marine environment
5. China aggravated and extended the dispute
 Status of Features in the Spratlys as
Determined by the Arbitral Tribunal
Rocks Low Tide Elevations*
• Cuarteron Reef • Gaven Reef (South)
• Fiery Cross Reef • Hughes Reef
• Gaven Reef (North)** • Mischief Reef
• Johnson Reef • Second Thomas Shoal
• Subi Reef
• McKennan Reef**
• Scarborough Shoal *Not subject to appropriation
• Itu Aba/Taiping ** Philippines claim LTE
 Annex VII Article 11
Finality of Award

• The award shall be final and without appeal,

unless the parties to the dispute have agreed in
advance to an appellate procedure. It shall be
complied with by the parties to the dispute.*
• *China and the Philippines
7. Militarization of Artificial Islands

To give a military To make preparations

character to… for war

Dual civil-
military

Red Line?
Recent Chinese Militarisation 2018
• Military Cargo Aircraft
– Xian Y-7 and Shaanxi Y-8
transport
• Mobile Electronic Jammers
– Mischief Reef
• Anti-ship Cruise Missiles
– YJ-62 anti-ship cruise missile
• Surface-to-Air Missiles
– HQ-9 long range active radar
homing
• Surface-to-Air Missiles,
Woody Island
• Nuclear capable bomber,
Woody Island
 8. U.S. Freedom of
Navigation and Overflighht
• Assert freedom of navigation and overflight rights
and freedoms worldwide under UNCLOS
– Freedom of Navigation Operational Patrols - FONOPS
• No acquiescence to unilateral acts
• Highlight UNCLOS navigation provisions to
protect maritime rights worldwide
• Triple track – diplomatic representations,
operational assertions and bi- and multi-lateral
consultations
 Chart 1. The U.S. Freedom of Navigation
by States and Number of years under
challenge, fiscal years 1991 - 2016

IRAN
21
21
U.S. FONOPS Under
Obama Administration
18
OMAN 17
17
CAMBODIA 16
15
MALAYSIA 14
13
VIETNAM 12
11
BURMA/MYANMAR
8
11 No US Navy Ship Date Location
SUDAN 8
8 .
NICARAGUA 7
SOMALIA 6
7 1. USS Lassen October Subi Reef, Northeast
LIBERIA
6
6 (DDG-82) 27, 2015 Cay, Southwest Cay,
6
VENEZUELA 5
5
South Reef, and Sandy
MALTA 5
SRI LANKA 4
5 Cay
JAPAN
4
4 2. USS Curtis January Triton Island
4
ARGENTINA 4
4
Wilbur (DDG-54) 29, 2016
ALBANIA
3
4
3. USS William P. May 10, Fiery Cross Reef
THAILAND 3
SOUTH KOREA
3
3 Lawrence (DDG- 2016
3
SWEDEN 2
2
110)
SAUDI ARABIA 2
2 4. USS Decatur Oct 2016 Islands in the Paracel
MAURITANIA 2
CUBA
2
2
(DDG-73) archipelago
2
TUNISIA 1
1
PANAMA 1
1
KENYA 1
1
HAITI 1
1
CONGO 1
1
CAMEROON 1
1
ANGOLA 1
0 5 10 15 20 25
 1
USS Dewey May 24, Mischief Reef and
U.S. FONOPS 2
(DDG-105) 2017 other artificial islands

UNDER TRUMP USS Stethem Jul

(DDG-63) 2017
2, Triton Island

ADMINISTRATION, 3
USS John S. Aug 10, Mischief Reef
2017-2018 McCain (DDG- 2017
56)
4
USS Chafee Oct 10, Paracel Islands
(DDG-90) 2017
5
USS Hopper Jan 17, Scarborough Shoal
(DDG-70) 2018
6
USS Mustin March Mischief Reef
(DDG-89) 23, 2018
7
USS Higgins May 27, Tree, Woody, Triton
(DDG-76) and 2018 and Lincoln islands,
USS Antietam Paracels
(CG-54)
8
USS Decatur Sept 30, Gaven and Johnson
(DDG 31) 2018 Reefs
Continuous Bomber Presence Patrols
 9. Conclusion - Single Draft South China Sea
Code of Conduct Negotiating Text
• Aug 3, 2018 Adopted by the Foreign Ministers from
China and ASEAN members
– preambular provisions, general provisions and final clauses
= unified draft of 11 states’ views
– Does not address legal issues, boundaries, entitlements
– A living document
– Three readings (to complete text)
• Geographic Scope
• Dispute Settlement
• Legal Status
• Role of Outside/Third Parties
 Conclusion
• Status of UNCLOS
– Implications of non-compliance
– Indonesia and Laut Natuna Utara (North Natuna
Sea)
– International case law
– High seas
– Islands, rocks and low-tide elevations elsewhere
• Australia and rules-based order
– FONOPs with or without U.S.?
Diplomatic Challenges in the
South China Sea

Emeritus Professor Carlyle A. Thayer

Presentation to Contemporary Challenges in Diplomacy
Asia-Pacific College of Diplomacy
The Australian National University
Canberra, October 11, 2018
 32nd ASEAN Summit
April 25, 2017
1. ASEAN reaffirms “the importance of freedom of navigation and
overflight above the South China Sea.”
2. ASEAN underscores the importance of “the full and effective
implementation of the 2002 Declaration on the Conduct of Parties in the
South China Sea (DOC) in its entirely.”
3. ASEAN warmly welcomes “the improving cooperation between ASEAN
and China” specifically “the official commencement of the substantive
negotiation towards the early conclusion of an effective Code of Conduct
in the South China Sea (COC) on a mutually-agreed timeline.”
4. ASEAN also welcomes practical measures that could reduce tensions,
accidents, misunderstandings and miscalculation such as the successful
testing of the hotline between ASEAN members and China “to manage
emergencies in the South China Sea” and the operationalization of the
Code for Unplanned Encounters at Sea (CUES).
 32nd ASEAN Summit
5. ASEAN takes “note of the concerns expressed by some Leaders on
the land reclamations and activities in the area, that have eroded
trust and confidence, increased tensions and many undermine
peace, security and stability in the region.”
6. ASEAN “reaffirmed the need to enhance mutual trust and
confidence, exercise self-restraint in the conduct of activities and
avoid actions that may further complicate the situation and
pursue peaceful resolution of disputes in accordance with
international law, including the 1982 UNCLOS.”
7. ASEAN “emphasized the importance of non-militarisation and self-
restraint in the conduct of activities by claimants and all other
states, including those mentioned in the DOC that could further
complicate the situation and escalate tensions in the South China
Sea.”