Thayer Consultancy Background Brief:

ABN # 65 648 097 123

South China Sea: Philippines
Weighs In, E3 Signals Future
Engagement
Carlyle A. Thayer
September 23, 2020
We request you assessment of two South China Sea-related developments – President
Duterte’s address to the United Nations General Assembly and the joint E3 submission
to the UN Secretariat.
Q1. On September 22, 2020, President Rodrigo Duterte raised the Philippines' 2016
legal victory against China at the UN General Assembly. How do you explain this move
by Duterte? Is it something unexpected?
ANSWER: When President Duterte came to office in 2016 he set aside the Arbitral
Tribunal Award in the case brought by the Philippines against China in the interests of
developing better ties with Beijing. Over the course of his presidency he has
occasionally equivocated such as in August 2019 when he raised the South China Sea
when he President Xi Jinping in Beijing.
Duterte’s address to the United Nations General Assembly broke new ground by his
forthright references to the Arbitral Tribunal Award of 2016. It was an unexpected
bombshell. Duterte affirmed the Philippines’ “commitment in the South China Sea in
accordance with UNCLOS and the 2016 Arbitral Tribunal Award.”
In the boldest assertion by a Filipino official, President Duterte proclaimed, “The
Award is now part of international law, beyond compromise and beyond the reach of
passing governments to dilute, diminish or abandon. We firmly reject attempts to
undermine it.”
President Duterte remarks to the UN were borne of increasing frustration by senior
government officials with continued Chinese intimidation and bullying of Filipino
fishermen and Philippine military ships and aircraft in the West Philippine Sea. There
was also Filipino frustration that their China-friendly policies had not resulted in the
delivery of promised massive Chinese investment in infrastructure. Finally, senior
Philippine leaders were emboldened by Secretary of State Mike Pompeo’s affirmation
that the 1951 Mutual Defense Treaty covered the South China Sea.
Q2. Since December 2019, a war of “Note Verbales” on the South China Sea has been
raging between China, Southeast Asian states, the U.S. and Australia. Now, on 16
September, the E3 (France, UK, Germany) submitted a Note Verbale to which China
responded on 18 September. Is there anything new in China’s position?
 2

ANSWER: China’s response to the joint E3 Note Verbale differed from China’s earlier
responses to Note Verbales submitted by Southeast Asian states, the U.S. and
Australia because the E3 states raised different legal issues. China’s response was also
sharper and more polemical in tone. For example, China now bluntly asserted that it
“opposes using UNCLOS as a political tool to attack other countries. UNCLOS does not
cover everything about the maritime order” and “[a]ny partial interpretation and
application of UNCLOS is unjust, illegal, and has an ulterior motive.” To drive its point
home, China bluntly declared that its “territorial sovereignty and maritime rights and
interests in the South China Sea… shall not be prejudiced under any circumstances by
the illegal awards of the South China Sea arbitration.”
China covered its mailed fist with a velvet glove by noting that UNCLOS “has
continuously developed and improved” since 1982 and China has been part of that
process, noting its participation in negotiations for an international instrument on the
conservation and sustainable use of marine biodiversity.
Additionally, China’s Note Verbale drew attention to China’s participation in “friendly
consultations” to resolve disputes, China’s support for the “full and effective
implementation of the Declaration on Conduct of Parties in the South China Sea,” and
consultations on the Code of Conduct in the South China Sea.
Q3. How do you assess the importance of the E3 Note Verbale?
ANSWER: The E3’s Note Verbale signals that three of the most important countries in
Europe, including two permanent members of the UN Security Council, have national
interests in engaging with countries in the Indo-Pacific to ensure Europe’s economic
future.
This year, both France and Germany published official papers on the importance of
the Indo-Pacific to a global rules-based order and their economic prosperity. The
South China Sea is the geostrategic heart of this maritime region due to the
importance of shipping lanes that support global supply chains linking Europe with the
major economies of the Indo-Pacific, including India, China and ASEAN. The same
factors weigh on the United Kingdom as it enters the post-Brexit era.

Suggested citation: Carlyle A. Thayer, “South China Sea: Philippines Weighs In, E3
Signals Future Engagement,” Thayer Consultancy Background Brief, September 23,
2020. All background briefs are posted on Scribd.com (search for Thayer). To remove
yourself from the mailing list type, UNSUBSCRIBE in the Subject heading and hit the
Reply key.

Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.