Professional Documents
Culture Documents
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
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