Thayer Consultancy Background Brief:

ABN # 65 648 097 123

Carlyle A. Thayer
France, Germany and the
UK: On the Same Sheet of
Legal Music
September 18, 2020
We request your assessment of the September 16th Joint Note Verbale by the UK,
France and Germany regarding the South China Sea (here is the link:
https://www.un.org/Depts/los/clcs_new/submissions_files/mys_12_12_2019/2020_
09_16_GBR_NV_UN_001.pdf)
Q1. What is the significance of this move in the context of the "communication war"
following the submission by Malaysia HA 59/19 dated 12 December 2019 to the
Commission on the Limits of the Continental Shelf?
ANSWER: The 16 September joint Note Verbale on the South China Sea by France,
Germany and the United Kingdom to the United Nations Secretariat marks a major
development by the international community to reaffirm that the United Nations
Convention on the Law of the Sea (UNCLOS) is “the legal framework within which all
activities in the oceans and seas must be carried out.”
France, Germany and the United Kingdom are major powers in the European Union.
France and the UK are permanent members of the UN Security Council. France, in
particular, has substantial interests in the Indo-Pacific Region.
Q2. How can this move be linked to the (new) policies of the three European powers,
all of which have expressed desire to play bigger roles in the South China Sea and the
Indo-Pacific region? Is there any inference we can draw from the timing of this move?
ANSWER: France, Germany and the United Kingdom all recognize that the Indo-Pacific
Region will pay a more important role in global economic growth. At present, the Indo-
Pacific Region accounts for forty percent of global GDP, including the rapidly growing
economies of China, India and Vietnam. Europe and the Indo-Pacific are connected by
supply chains that traverse the Indian Ocean, South China Sea and Pacific Ocean.
This month both France and Germany released major policy documents on the
importance of the Indo-Pacific Region. France has seven overseas territories in the
Indian and Pacific Oceans whose Exclusive Economic Zones comprise nine million
square kilometres or nearly eighty-two percent of France’s total EEZ. France has
assessed that the Indo-Pacific Region “faces one of the deepest geostrategic
evolution, with potential direct consequences on the interests of France.”
Germany’s Foreign Minister has declared that Germany’s prosperity and geopolitical
influence “will depend on how we work together with the countries of the Indo-Pacific
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region” because that “is where the shape of the international rules-based order of
tomorrow will be decided.” France has made a similar assessment that it too should
support multilateral institutions.
France, Germany and the United Kingdom all rejected the basis of China’s claims in
the South China Sea and uphold “the freedom of the high seas, in particular the
freedom of navigation and overflight, and the right of innocent passage…”
Europe and the Indo-Pacific are connected by supply chains that traverse the Indian
Ocean, South China Sea and Pacific Ocean. France, Germany and the United Kingdom
each have a vital interest in the security of sea lines of communication that pass
through the South China Sea over which U.S. $3 trillion in goods pass each year.
These three states are serving notice to China that they will resist any attempt to
infringe on their legal entitlements.
Unlike the United States, France, Germany and the United Kingdom have all acceded
to UNCLOS and therefore are eligible to support any other state party to UNCLOS that
finds itself in a dispute with China over its entitlements under international law or take
legal action on their own if China should infringe on their interests.
France, Germany and the United Kingdom, treaty allies of the United States, are
responding to diplomatic pressure by the United States to stand up to the Chinese
Communist Party. But each has its own separate reasons to be concerned by Chinna’s
flouting of international norms, conventions and laws.
Q3. How will this development impact on China’s international reputation?
ANSWER: When the Philippines first took legal action against China in 2013, Beijing
launched a global propaganda campaign to denigrate the Arbitral Tribunal and to
drum up support for China’s position. Many states offered support to curry favour
with China.
Now the tide has turned. Malaysia’s Note Verbale of December 2019 has led to a
cascade of similar submissions by Indonesia, Vietnam, the Philippines, the United
States and Australia. These countries have now been joined by powerful and
influential European states who have made three important assertions: (1) they reject
straight baselines drawn around a group of features that is not in conformity with
UNCLOS, (2) the classification of low tide elevations rocks, and islands cannot be
altered by land building activities and (3) they reject China’s claims to historic rights.
China is has become diplomatically isolated on this issue.
Q4. One observer has said: "More of such diplomatic communications, whether done
unilaterally or jointly, would be most welcome". What do you think?
ANSWER: The greater involvement of France, Germany and the UK will be welcomed
by ASEAN and its members but not China. Germany, for example, has declared its
opposition to “might makes right.” France has committed itself to “contributing,
alongside our European partners, to stability through the development of multilateral
initiatives in the Indo-Pacific.”
This European initiative also represents a hedge against an uncertain American
leadership role in the future. An increased independent European presence also gives
ASEAN more options in managing China-United States tensions.
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Suggested citation: Carlyle A. Thayer, “France, Germany and the UK: On the Same
Sheet of Legal Music,” Thayer Consultancy Background Brief, September 18, 2020. All
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Thayer Consultancy provides political analysis of current regional security issues and
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