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The Role of Arbitration in the


Settlement of Maritime Disputes in
the South China Sea
Emeritus Professor Carlyle A. Thayer
Presentation to
The International Conference on the Law of the Sea
Legal Issues Relating to Awards of the Arbitral Tribunal
Established Under Annex VII of UNCLOS 1982
organized by the Ho Chi Minh City University of Law
and the Vietnam Lawyers Association,
Reunification Palace, Ho Chi Minh City
July 23, 2016

Outline
1.
2.
3.
4.
5.
6.
7.
8.

Introduction
Historical Perspectives
Selection of Arbitrators
Findings of the Arbitral Tribunal: The Philippines
v China
The Status of Ba Binh (Itu Aba/Taiping)
Is the Arbitral Tribunal A Model for Other
Countries?
Should China withdraw from UNCLOS?
Conclusion

Introduction
Hedley Bulls Anarchical Society
System of states no world government
Balance of power

Society of states
Balance of power plus international law,
diplomacy, war and the central role of great
powers

United Nations Charter Articles 3, 4 and 33

Historical Perspectives
China rejects unilateral dispute settlement
mechanism in UNCLOS Annex VII
1982 III Conference of Law of the Sea
China played an active role
Incorporation of historic rights rejected
Compulsory dispute settlement included
Package deal youi cant pick and choose

Arbitral Tribunal most active mechanism

Selection of Arbitrators
Judges JeanPierre
Cot, Stanislaw
Pawlak, Thomas
A. Mensah
(President),
Rdiger
Wolfrum,
Professor Alfred
H. A. Soons (left
to right)

Selection of Arbitrators
Panel of judges
Process when both parties agree
Process when parties cannot agree
President of ITLOS appoints
China whispering campaign against Judge
Chris Pinto (married to a Filipina)
China attacks President Shunji Yanai because
he is a Japanese national

Findings of the Arbitral Tribunal:


The Philippines v China
1. UNCLOS comprehensively allocates rights in
the maritime domain
2. None of land features in the Spratlys is an
island
3. China in breach of flag state obligations
related to COLREGS
4. China failed to protect marine environment
5. China aggravated and extended the dispute

Status of Features in the Spratlys

Rocks
Cuarteron Reef
Fiery Cross Reef
Gaven Reef (North)
Johnson Reef
McKennan Reef
Scarborough Shoal

Low Tide Elevations


Gaven Reef (South)
Hughes Reef
Mischief Reef
Second Thomas
Shoal
Subi Reef

The Status of o Ba Bnh


(Itu Aba/Taiping)
Positions of the Philippines, China and Taiwan
considered and examined in detail
Language examined: cannot sustain, human
habitation, economic life of their own
Historical evidence: potable fresh water,
vegetation and biology, soil and agricultural
potential, presence of fishermen and
commercial operations

Is the Arbitral Tribunal A Model for Other


Countries Pros and Cons
China refuses to accept process, denigrates
the entire process
Let the dust settle wait and see
Littoral states benefit EEZs
Clarification of features: islands, rocks, low
tide elevations and maritime zones
Obligations of state parties to protect marine
environment and control illegal activities of
their state flagged vessels

Should China Withdraw from UNCLOS?


Nationalist knee jerk reaction to award of
Arbitral Tribunal
Issue has not risen onagenda of leading state
officials in China
China has benefitted from UNCLOS regime
Deep sea mining, maritime zones

If China withdrew it would be bound by


undertakings prior to withdrawal

Conclusion
Reactions by ASEAN members
Reactions by US, Australia and Japan
Award now part of international law
Compulsory dispute settlement reaffirmed

Historic rights within 9-dash line rejected


Implications for other maritime features?
Woody Island, Paracels, Okinotorishimna

Three Fronts - Diplomatic


Direct negotiations on historic rights
Beijing and Manila - Scarborough Shoal

Implement DOC
Environmental protection
Marine scientific research
Safety of navigation

COC incorporate Award of Arbitral Tribunal


Chinas South China Sea White Paper

Three Fronts - Political


The ball is in Chinas court
Catalogue and publicize violations of the Award by
Chinas Coast Guard and flagged fishing boats

Like-minded states tailored cost imposition


strategies and/or smart sanctions
ASEAN ISIS, CSCAP, other think tanks

Regional Multilateral Forums


East Asia Summit, ADMM Plus

Three Fronts: Military-Strategic


Combine with diplomatic and political
US leadership in concert with allies and
partners
Cooperation with China
Resistance to Chinas destabilizing behaviour
Freedom of Navigation Operational Patrols and over
flights

Work with Duterte Administration to protect


Philippines sovereign rights

The Role of Arbitration in the


Settlement of Maritime Disputes in
the South China Sea
Emeritus Professor Carlyle A. Thayer
Presentation to
The International Conference on the Law of the Sea
Legal Issues Relating to Awards of the Arbitral Tribunal
Established Under Annex VII of UNCLOS 1982
organized by the Ho Chi Minh City University of Law
and the Vietnam Lawyers Association,
Reunification Palace, Ho Chi Minh City
July 23, 2016

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