Thayer Consultancy Background Brief:

ABN # 65 648 097 123

Legal Manoeuvres and the South
China Sea in 2020
Carlyle A. Thayer
December 16, 2020

We request your assessment of legal developments related to the South China Sea in
2020 and what is likely to occur in 2021.
Q1. Please offer your assessment on the situation in the South China Sea where a
number of ASEAN countries and some Western countries have sent diplomatic notes
to the United Nations protesting China's U-shaped line in the South China Sea. These
countries call for compliance with the 2016 Award of the Arbitral Tribunal.
ANSWER: On 12 December 2019, Malaysia presented a Note Verbale to the
Commission on the Limits of the Continental Shelf (CLCS) making a preliminary
submission for an extended continental shelf in the South China Sea. Malaysia’s Note
Verbale was made “without prejudice” and thus left the door open for discussions
with Vietnam and the Philippines. But Malaysia closed the door on China by rejecting
the legal basis of its claims in the South China Sea.
Malaysia’s action precipitated a cascade of Note Verbales from the Philippines (6
March), Vietnam (30 March and 10 April), Indonesia (26 May), the United States (1
June), Australia (23 July), Malaysia (29 July), and a joint submission by France-
Germany-United Kingdom (16 September). China lodged a counter response to each
and every submission rejecting them. Vietnam and the Philippines also submitted
Notes Verbales commenting on Malaysia’s claim for an extended continental shelf.
Several common themes emerged from these diplomatic exchanges: an outright
rejection of China claims to historic rights and attempts to treat the “four shas”
(Dongsha, Xisha, Zhongsha and Nansha) as separate units by drawing straight
baselines around them, unequivocal support for United Nations Convention on the
Law of the Sea (UNCLOS) and an assertion that the classification of submerged
features (low tide elevations) cannot be changed by land building activities.
Under the CLCS’s rules and procedures, it cannot approve a claim for an extended
continental shelf if another state opposes it. China’s rejection of Malaysia’s
preliminary submission means that the matter is legally dead.
The Note Verbales by the United States, Australia and the joint submission by France-
Germany-United Kingdom were made to the Un Secretary General because none of
these states can claim an extended continental shelf in the South China Sea. In
addition, the U.S. is not a signatory to UNCLOS.
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On September 22, 2020, President Rodrigo Duterte addressed the United Nations
General Assembly. He affirmed the Philippines’ “commitment in the South China Sea
in accordance with UNCLOS and the 2016 Arbitral Tribunal Award.” 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.”
In sum, when the 2016 Arbitral Tribunal Award was issued, most claimant states
merely acknowledged the Award or remained silent. In 2020, as a result of Chinese
behaviour over the past four years, there has been a marked convergence of views by
littoral states in support of UNCLOS and the Award by the Arbitral Tribunal. China has
been left diplomatically isolated.
Q2. Do you forecast any sudden changes in the situation in the South China Sea next
year?
ANSWER: In 2021, the situation in the South China Sea is likely to reflect China’s
“business-as-usual” application of grey-zone tactics to assert its sovereignty and cow
littoral states into quiescence. The China Coast Guard, Maritime Militia and fishing
fleet will continue to maintain their presence in contested areas. If Vietnam or
Malaysia attempt to hire foreign oil survey vessels and resume exploration in waters
near Vanguard Bank and Red Orchid Bloc, or Luconia Shoals, respectively, China will
amass a flotilla and harass these operations.
Because of the COVID-19 pandemic, ASEAN members and China were not able to hold
face-to-face meetings of the ASEAN-China Joint Working Group to Implement the
Declaration on Conduct of Parties in the South China Sea (JWG-DOC), the key body
negotiating the Code of Conduct (COC) in the South China Sea. In August 2018, when
the Single Draft Code of Conduct in the South China Sea Negotiating Text was adopted,
it was announced that it would go through three readings. The first reading was held
in 2019 but no second reading was possible in 2020.
When the Single Draft Negotiating Text was announced, China unilaterally stated it
would take three years. Because of the suspension of JWG-DOC meetings in 2020,
many observers concluded that the three-year deadline was too ambitious. But China
has recently begun to apply pressure to complete the COC by 2021.
One wild card is whether or not Xi Jin-ping will stage a provocation to test the Biden
Administration before it settles into office as it is likely Senate Republicans will delay
or reject some of Biden’s nominations for Cabinet posts including the Secretary of
Defense.

Suggested citation: Carlyle A. Thayer, “Legal Manoeuvres and the South China Sea in
2020,” Thayer Consultancy Background Brief, December 16, 2020. All background
briefs are posted on Scribd.com (search for Thayer). To remove yourself from the
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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.
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