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Thayer Consultancy Background Briefing:

ABN # 65 648 097 123


Contending Submissions to the
Commission on the Limits of the
Continental Shelf
Carlyle A. Thayer
April 9, 2020
On 12 December 2019, Malaysia submitted to the Commission on the Limits of the
Continental Shelf, in accordance with Article 76, paragraph 8, of the Convention,
information on the limits of its continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured in the South China
Sea.
After that, China lodged two diplomat notes and the Philippines then submitted its
view on this issue. On 30 March, Vietnam also submitted a diplomat note in order to
express its views, especially to protest Chinese views.
What are the responses of the concerned parties? What is your assessment about
Vietnam’s actions? And what should Vietnam do now?
ANSWER: Vietnam had to respond to China’s reassertion of sovereignty over the
entire South China Sea in its note verbale to the UN Commission on the Limits of the
Continental Shelf (CLCS) dated 23 March 2020. If Vietnam kept silent China could later
argue that Vietnam had acquiesced to China’s claims. This would have undermined
any future legal challenge by Vietnam against China.
Further, by taking the position it did, Vietnam aligned it legal claims with the
Philippines whose note verbale issued on 6 March 2020 in response to China
specifically mentions the Award of the Arbitral Tribunal that heard the case against
China. Both agree that no land feature in the Spratlys is an island in legal terms and
therefore land features cannot claim a continental shelf or exclusive economic zone.
The both agree that China cannot draw straight baselines around the Spratlys to create
an archipelago.
When Malaysia submitted it partial submission for an extended continental shelf in
the northern Spratlys, the CLCS included this claim on its provisional agenda for its 53rd
session to be held in New York from 6 July to 21 August, 2021. No further action is
likely to be taken by the CLCS because its Rules of Procedure state it has no
competence (authority) in cases where there are disputes between states in
connection with the establishment of the outer limits of the continental shelf.
Responsibility for this matter rests with the state parties concerned.
The CLCS’ Rules of Procedure state that the Commission cannot consider land or
maritime disputes by state parties to UNCLOS.
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Malaysia’s partial submission declared that it ‘shall not be interpreted in any manner
whatsoever to prejudice or affect matters relating to the delimitation of maritime
boundaries in the South China Sea between States with opposite or adjacent coasts
and their position concerning land and maritime disputes’. This declaration leaves
open the possibility that Malaysia, the Philippines and Vietnam could negotiate and
agree to delimit their overlapping areas.
Malaysia’s ‘without prejudice’ declaration coupled with the convergence of the
positions by the Philippines and Vietnam with respect to the Arbitral Tribunal Award
against China, open the possibility of a common stance vis-à-vis China. This could
strengthen their negotiating position in concluding a legally binding Code of Conduct
in the South China Sea.
Major outside powers would have a firmer political and legal basis to push back
against China’s claims that are not supported by international law. Although China
would come under increased political-diplomatic pressure to modify its position there
is no indication that the actual status quo would be changed. China will continue to
act in defiance of international law in the South China Sea.

Suggested citation: Carlyle A. Thayer, “Contending Submissions to the Commission on


the Limits of the Continental Shelf ,” Thayer Consultancy Background Brief, April 9,
2020. All background briefs are posted on Scribd.com (search for Thayer). To remove
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