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China Continues to Challenge

a Rules-Based Order
in the South China Sea
Emeritus Professor Carlyle A. Thayer
Australian Institute of International Affairs (NSW)
The Glover Cottages, Sydney
August 8, 2017
Outline
1. Background
2. Negative Trend China threatens the
Philippines and Vietnam to halt oil exploration
3. Positive Trend China ASEAN consultations on
a Code of Conduct (COC)
4. Australia and Other Middle Powers
United Nations
Convention on the Law of the Sea (UNCLOS)
Constitution of the Worlds Oceans
Does not deal with sovereignty
Establishes maritime zones (next slides)
Sovereign jurisdiction over resources
Semi-enclosed Sea
Duty to Cooperate/protect the marine
environment
Dispute settlement (UNCLOS Annex VII)
Provisional arrangements of a practical nature
UNCLOS Annex VII Dispute Settlement
State parties to UNCLOS are free to choose one or more of
four means to settle disputes. These are:
International Tribunal for the Law of the Sea (ITLOS),
Hamburg
International Court of Justice (ICJ), The Hague
Arbitral Tribunal*
Special Arbitral Tribunal
*Where states have not designated a means of dispute settlement
the default is the Arbitral Tribunal (compulsory dispute
settlement)
UNCLOS
Land dominates the sea
Baselines (low tide)
Internal waters
Territorial Sea (12 nm)
Contiguous Zone
Exclusive Economic Zone (EEZ)
Continental Shelf
High Seas/International waters
Claimants:

China (H)
Taiwan (H)
Vietnam
Philippines
Malaysia
Brunei
[Indonesia]
Arbitral Tribunal
Established 29 Oct 2015 Concluded 12 July 2016
Appointed by the President
of the International Tribunal
on the Law of the Sea
(ITLOS) from a panel
nominated by state parties
to UNCLOS

UNCLOS provides provisions


when one of the parties
declines to participate
Arbitral Tribunal Award
"DECLARES that, as between the Philippines and China,
China's claims to historic rights, or other sovereign rights or
jurisdiction, with respect to the maritime areas of the South
China Sea encompassed by the relevant part of the 'nine-
dash line' are contrary to the Convention and without lawful
effect to the extent that they exceed the geographic and
substantive limits of China's maritime entitlements under
the Convention; and further DECLARES that the Convention
superseded any historic rights, or other sovereign rights or
jurisdiction, in excess of the limits imposed therein."
Findings of the Arbitral Tribunal:
The Philippines v China
1. UNCLOS comprehensively allocates rights in the
maritime domain
2. None of the land features in the Spratlys is an island
3. China in breach of flag state obligations related to
International Regulations for Preventing Collisions at
Sea (COLREGS)
4. China failed to protect marine environment
5. China aggravated and extended the dispute
Status of Features in the Spratlys

Rocks Low Tide Elevations*


Cuarteron Reef Gaven Reef (South)
Fiery Cross Reef Hughes Reef
Gaven Reef (North) Mischief Reef
Johnson Reef Second Thomas Shoal
Subi Reef
McKennan Reef
Scarborough Shoal *Not subject to appropriation
Low Tide Elevation
Low Tide
Elevation
Annex VII
Article 11 Finality of Award

The award shall be final and without appeal,


unless the parties to the dispute have agreed in
advance to an appellate procedure. It shall be
complied with by the parties to the dispute.*
*China and the Philippines
Arbitral Tribunal Award On Year Later

China refuses to comply


Philippines has set the
Award aside
ASEAN dares not
mention the Award
Dead in the Water
In Legal Limbo
China Continues to Militarise
Negative Trend
Chinas Reassertion of Its Historical Claims
President Duterte met with Xi Jinping in May and discussed
resumption of oil drilling in Recto Bank. Duterte quotes Xi, if you
force the issue, we'll go to war."
Senior Lieutenant General Fan Changlong, Vice Chairman of Chinas
Central Military Commission, visits Spain and Vietnam (June)
He asked Vietnam to stop drilling in block 136/03 in the Vanguard Bank
General Fan cancels friendly border defence exchange and leaves abruptly
Vietnam informed Repsol executives in July that China had
threatened to attack Vietnamese bases in the Spratly Islands if the
drilling did not stop. Vietnamese government officials directed
Repsol to leave the area.
Recto (Reed) Bank, Philippines
Block 118 Blue Whale
ExxonMobil

Block 128 ONGC


(India)

Block 136-03 Repsol


(Spain)
Block 136-03 Repsol of Spain

Blue dots Vietnamese Fishing


Surveillance and Coast Guard
vessels

Red dots Chinese vessels

operations have been


suspended, Miguel Martinez
San Martin, Repsol S.A. CFO,
July 27
Positive Trend
China-ASEAN Consultations on a Code of Conduct
In 2016 China agreed to draft a Framework COC by mid-2017
Draft Framework Code of Conduct reached in May 2017
Approved by ASEAN Foreign Ministers August 6, 2017
Chinas Foreign Minister proposes three-step process
Officially adopting the Framework Code of Conduct at ASEAN + 1 Meeting
Holding consultations in late August to discuss modalities
Start formal talks in November
On condition: South China Sea is generally stable, no major disruption by
outside powers, we will consider at the leaders summit in November to
officially start the COC consultations
Joint Statement 50th ASEAN Ministerial
Meeting (South China Sea) August 6
191. took note of the concerns expressed by some Ministers on the
land reclamations and activities in the area,
192. importance of maintaining and promoting freedom of
navigation in and over - flight above the South China Sea
193. exercise self-restraint in the conduct of activities and avoid
actions that may further complicate the situationin accordance with
UNCLOS
194. the importance of non-militarisation and self-restraint in the
conduct of all activities by claimants and all other states, including
those mentioned in the DOC
Joint Statement 50th ASEAN Ministerial
Meeting (South China Sea) August 6
195. We underscored the importance of the full and effective
implementation of the DOC [Declaration on Conduct of Parties in the
South China Sea] in its entirety adoption of the framework of a Code
of Conduct in the South China Sea, which will facilitate the work for
the conclusion of an effective COC on a mutually-agreed timeline
our readiness to begin the substantive negotiation on the COC and
tasked our Senior Officials to start the negotiation on the COC with
China.
196. Pursuant to the full and effective implementation of the DOC in
its entirety, and pending the early adoption of an effective COC, we
stressed the importance of undertaking confidence building and
preventive measures
Effective Implementation
of the DOC includes:
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.
Joint Statement 50th ASEAN Ministerial
Meeting (South China Sea) August 6
197. We welcomed the successful testing of the MFA-to-MFA hotline
to manage maritime emergencies in the South China Sea. We looked
forward to the operationalisation of the joint statement on the
observance of the Code for Unplanned Encounters at Sea (CUES) in
the South China Sea. In our view, these are practical measures that
could reduce tensions, and the risks of accidents, misunderstandings
and miscalculation.
NOTE: CUES only covers military ships but not civilian ships such as
the Coast Guard and other law enforcement agencies.
Declaration on Conduct of Parties
in the South China Sea (DOC)
5. The Parties undertake to exercise self-
restraint 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.
Operationalize DOC Point 5
holding dialogues and exchange of views as appropriate between
their defense and military officials (implementation of CUES and de-
militarization)
ensuring just and humane treatment of all persons who are either in
danger or in distress (use of the agreed hot line);
notifying, on a voluntary basis, other Parties concerned of any
impending joint/combined military exercise; and
exchanging, on a voluntary basis, relevant information (environmental
impact statements related to so-called land reclamation and
military activities)
Operationalize DOC Point 6
marine environmental protection (environmental impact statements
and the reef ecosystem);
marine scientific research (preservation of the fish stock and
endangered species);
safety of navigation and communication at sea (extend CUES to
maritime law enforcement agencies such as the Coast Guard);
search and rescue operations; and
combating transnational crime, including but not limited to trafficking
in illicit drugs, piracy and armed robbery at sea, and illegal traffic in
arms (and illegal, unreported and unregulated fishing).
Australia & Other Middle Powers
Vital
commercial
and military
sea and air
lines of
communica-
tion pass
through the
South China
Sea
Policy Dilemmas for Middle Powers
China is Australias largest trading partner
Strategic uncertainty surrounds the Trump Administration about US
engagement in the region
How to uphold international law and Award by the Arbitral Tribunal
established under ANNEX VII of UNCLOS
It is part of international case law
It has universal applicability
How to support ASEAN unity on South China Sea issues
Wild cards: Duterte (Philippines) and Hun Sen (Cambodia)
Australia and Other Middle Powers
Working with Japan and India and other like-minded states
Joining U.S. freedom of navigation patrols?
US has not ratified UNCLOS, Australia and Japan have
Respond to Chinese interference by taking international legal action
Change declaratory polity from we take no sides in sovereignty
disputes to we recognize the Award of the Arbitral Tribunal and
support compliance with it by the parties concerned
Australia will not recognize claims to maritime jurisdiction ruled illegal
by the Arbitral Tribunal
Indonesia Laut Natuna Utara

Indonesia issues new official maps


Renamed northern waters North
Natuna Sea
Arbitral Tribunal Award invoked for
amending maritime border with
Palau
Tobi Island, Helen Reef and Merir
Islands assigned 12 nm territorial sea
Militarization Viewed as a Spectrum of Activities
Promote demilitarization in the South China Sea
To give a military To make preparations
character to for war

Dual civil-
military

Red Line?
7th Trilateral Strategic Dialogue
Ministerial Joint Statement, Aug 7, 2016
importance of upholding the rules-based order [and] called on all
states to respect freedom of navigation and overflight and other
internationally lawful uses of the seas, and reiterated that the three
countries will continue to fly, sail, and operate wherever international
law allows.
serious concerns over maritime disputes in the South China Sea
voiced their strong opposition to coercive unilateral actions that could
alter the status quo and increase tensions urged claimants to
refrain from land reclamation, construction of outposts, militarization
of disputed features, and undertaking unilateral actions that cause
permanent physical change to the marine environment in areas
pending delimitation.
7th Trilateral Strategic Dialogue
Ministerial Joint Statement, Aug 7, 2016
all claimants to make and clarify their maritime claims in accordance
with UNCLOS and to resolve disputes peacefully
called on China and the Philippines to abide by the Arbitral Tribunal's
2016 Award as it is final and legally binding on both parties. The
ministers noted the significance of the UNCLOS dispute settlement
regime
urged ASEAN member states and China to fully and effectively
implement the DOC.
urged ASEAN member states and China to ensure that the COC be
finalized in a timely manner, and that it be legally binding,
meaningful, effective, and consistent with international law.
China Continues to Challenge
a Rules-Based Order
in the South China Sea
Emeritus Professor Carlyle A. Thayer
Australian Institute of International Affairs (NSW)
The Glover Cottages, Sydney
August 8, 2017

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