Diplomatic Challenges in the

South China Sea

Emeritus Professor Carlyle A. Thayer
Presentation to Master of Diplomacy
Asia-Pacific College of Diplomacy
The Australian National University
Canberra, May 10, 2016

Outline
1. Introduction
2. United Nations Convention on the Law
of the Sea (UNCLOS)
3. Claimant States
4. Declaration on Conduct of Parties in
the South China Sea (DOC)

Outline
5. The Philippines Claims Against China
6. Arbitral Tribunal
7. U.S. Freedom of Navigation
Operational Patrols (FONOP)
8. Conclusion

1. Introduction

Geographical Features

Shipping Routes

2. UNCLOS

Constitution of the Worlds Oceans

Does not deal with sovereignty
Maritime zones (TS, EEZ, CS, HS) & features
Sovereign jurisdiction
Semi-enclosed Sea
Duty to Cooperate
Provisional arrangements of a practical nature
Dispute settlement (consent of parties)

UNCLOS
Land dominates the
sea
Baselines
Internal waters
Territorial Sea
Contiguous Zone
Exclusive Economic
Zone (EEZ)
Continental Shelf
High Seas
International waters

3. Claimant
States:
China/Taiw
an (H)
Vietnam
Philippines
Malaysia
Brunei
[Indonesia]

Chinas
Nine-dash
line
Historic
rights

Chinas Position Paper

on the South China Sea (2014)
Chinese activities in the South China Sea
date back to over 2,000 years ago. China
was the first country to discover, name,
explore and exploit the resources of the
South China Sea Islands and the first to
continuously exercise sovereign powers
over them

4. Declaration on Conduct of Parties in

the South China Sea (DOC)
5. The Parties undertake to exercise selfrestraint 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.

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.

5. Philippines Claim 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
China is interfering with its 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

Mischief Reef
Subi Reef
Gaven Reef
Hughes Reef (+
McKennan Reef)
Second Thomas Shoal

Italics = Rocks
Johnson South Reef
Cuarteron Reef
Fiery Cross Reef
Scarborough Shoal
Chinese activities in the
Philippines EEZ

Mischief Reef (LTE)

Subi Reef (LTE)

Gaven Reef (LTE)

Gaven Reefs (Chinese: Nanxun Jiao and

Xinan Jiao , Vietnamese: Ga Ven and "
Lc", Tagalog: Burgos) Tizard Bank, Spratly Islands

Hughes Reef
(LTE)
Chinese: ;
Dngmn jio,
Vietnamese:
T Ngha

Second Thomas Shoal (LTE)

Johnson South Reef (Rock)

Cuarteron Reef (Rock)

Scarborough Shoal (Rock)

6. Arbitral Tribunal 29/10/15

Permanent Court of Arbitration

Arbitral Tribunal
Does it have jurisdiction?
Does the Philippines claim have legal merit?
Tribunal can hear a case even if one party
refuses to attend
Position Paper of the Government of the
Peoples Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration
Initiated by the Republic of the Philippines

7. U.S. Freedom of Navigation

Operational Patrols (FONOP)

Conclusion
ASEAN-China Consultations on a DOC (and
COC)
Foolish consistency or Holy Grail?
Are CBMs related to real issues at stake?

Construction of Artificial Islands - status

Changing facts on the ground

U.S. FONOP
Solution or source of provocation?

Conclusion
Chinas Dual Track Approach
Negotiations by parties directly concerned
China-ASEAN manage South China Ses

Chinas 4 Points (Brunei, Cambodia, Laos)

Outside powers should not interfere

Decision by the Arbitral Tribunal

Must be immediately implemented
No right of appeal

Conclusion
Chinas pre-emption and rejection
UNCLOS does not contain powers of
enforcement
How should the international community
respond?
What are legal and diplomatic options?
What are Australias interests?

Diplomatic Challenges in the

South China Sea
Emeritus Professor Carlyle A. Thayer
Presentation to Master of Diplomacy
Asia-Pacific College of Diplomacy
The Australian National University
Canberra, May 10, 2016