The

Impact of the Arbitral Tribunal Award on

Peace and Security in the South China Sea
Area and the World
Emeritus Professor Carlyle A. Thayer
Presenta>on to Geneva Seminar
South China Sea Disputes Award of the Arbitral Tribunal
Cons>tuted Under Annex VII of the United Na>ons Conven>on on
the Law of the Sea and Its Implementa>on
sponsored by the Geneva Associa>on
Centre Interna>onal de Conference
Geneve, December 6, 2016

Overview
1.
2.
3.
4.

Introduc>on (theory and drivers)

Review of the Arbitral Tribunals Award
Implica>ons for the South China Sea Area
Implica>ons for the Interna>onal
Community
5. Conclusion

1a. Introduc>on

Theore>cal Framework
Hedley Bull, The Anarchical Society: A Study of
Order in World Poli7cs (1977)
Global poli>cal system weak world
government, no monopoly on use of force
Balance of Power
Society of States

The Anarchical Society

when a group of states, conscious of
certain common interests and common
values, form a society [and] conceive
themselves to be bound by a common set
of rules in their rela>ons with one another,
and share in the working of common
ins>tu>ons.

World Order and

the Global Poli>cal System
Balance of
Power
Great
Powers

War

Interna>onal
Law

Diplomacy

UN Conven>on on Law of the Sea

A Cons>tu>on for the worlds Oceans
Does not address sovereignty claims

Focus on sovereign jurisdic>on

Territorial Sea
Exclusive Economic Zones/Con>nental Shelf
Archipelagic state
Islands/rocks/features/low >de eleva>ons

Compulsory dispute sedlement mechanism

1b. Main Drivers Behind Chinas

Asser>veness and Militarisa>on
Na>onalism
Fisheries
Hydrocarbons
Geo-strategic Impera>ves

Chinese Na>onalism
Elite na>onalism
Great Dream of
Na>onal Revitalisa>on
Great na>onal
rejuvena>on
Mass na>onalism
an>-Japanese
Chauvinism aggressive
patrio>sm/impunity
Hac>vism

Chinas Posi>on Paper

on the South China Sea (2014)
Chinese ac>vi>es in the South China Sea
date back to over 2,000 years ago. China
was the rst country to discover, name,
explore and exploit the resources of the
South China Sea Islands and the rst to
con>nuously exercise sovereign powers
over them.

Fisheries

Hydrocarbons

Oil Reserves

Chinas Na>onal Mobile Territory

HYSY 981

Geo-Strategic Impera>ves
U.S. Rebalancing is Containment
Counter-interven>on strategy
Protec>on of Sea Lines of
Communica>on
Power Projec>on
Naval Bases Hainan and Woody Islands
Ar>cial Islands forward opera>ng bases

United States
Rebalancing is
Containment of
China

Chinas Counter-IntervenCon Strategy

Put U.S. Forces in
Western Pacic at Risk

Protec>on of Major Sea Lanes

Power Projec>on Naval Bases

Woody Island, Paracels

Sansha raised
to prefecturelevel city in July
2012 with
continuing
responsibility
over Paracel
Islands,
Macclesfield
Bank and the
Spratly Islands

Chinas 9-
doded U-
shaped line
laying claim to
historic
waters (62-80
% of the South
China Sea)

Land Reclama>on 1970-2015

China is not just catching up
Land Area
China
5 other
claimants

Mischief Reef (LTE)

China cannot claim sovereignty on ar>cial islands built on a low >de eleva>on.

Low Tide Eleva>on

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Low Tide ElevaCon

being built behind those for fighters at the south end of the airstrip, and will presumably be connected to the runway
by an additional taxiway.

Low Tide
Eleva>on

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Rock

hangars and one large hangar are being constructed toward the southern end of the runway.

Rock

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Chinas ArCcial Islands Not Land ReclamaCon

(https://3scsd23qbzvh2huoxy4223ti-wpengine.netdna-ssl.com/wp-content/uploads/2016/08/FieryCr

Each aireld can support 25 jet

ghters (J-11s and Su-30s) and 3-4
H-6 bombers and H-6U refueling
tanker, Y-8 transport aircram, and
KJ200 Airborne Warning and Control
System plane. Largest hangars can
accommodate the Y-20 and Il-76
transport planes, Il-78 refueling
tanker, and KJ-2000 surveillance Build It and They Will Come | Asia Maritime Transparency Initiative
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content/uploads/2016/08/FieryCross_7_21_16_Hangar_2.jp
content/uploads

https://amti.csis.org/build-it-and-they-will-come/

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2. Review of the
Arbitral Tribunals Award
Historical Perspec>ve
1982 III Conference of Law of the Sea
China played an ac>ve role
Incorpora>on of historic rights rejected
Compulsory dispute sedlement included
Package deal you cant pick and choose

Compulsory Dispute Sedlement

Annex VII
Ar>cle 287 Choice of Procedure
Interna>onal Tribunal for the Law of the
Sea
Interna>onal Court of Jus>ce
Arbitral Tribunal
Special Arbitral Tribunal
Arbitral Tribunal most ac>ve mechanism

Findings of the Arbitral Tribunal:

The Philippines v China
1. UNCLOS comprehensively allocates rights in
the mari>me domain
2. None of land features in the Spratlys is an
island
3. China in breach of ag state obliga>ons
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 ElevaCons

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

Taiwan - Itu Aba/Taiping

Compulsory Arbitra>on
Annex VII
Ar>cle 11 Finality of Award
The award shall be nal and without
appeal, unless the par>es to the dispute
have agreed in advance to an appellate
procedure. It shall be complied with by
the par>es to the dispute.

3. Implica>ons for
the South China Sea Area

Mari>me claims considerably reduced

Award limited to China and the Philippines
No enforcement mechanism
Duterte Administra>on elected prior to Award
Compliance in state of suspended anima>on
Pressure on all claimants to bring claims into
line with interna>onal law

Response by the Claimant States to the

Award by the Arbitral Tribunal
General response by ASEAN states was
overwhelmingly low key, muted and in line
with recent ASEAN declaratory policy
Front Line Claimant States
Philippines exercise restraint and sobriety
milestone decision
Vietnam welcomes [the] Award [and] will
make a statement on the content of this Award

Has ASEANs Posi>on Been Strengthened?

Outcome of 2016 ASEAN and ASEAN related
mee>ngs unexpectedly generates a win-win
situa>on for concerned par>es
The Philippines has returned to the fold
ASEANs bargaining power has increased
Process of mending ASEAN-China rela>ons
has been renewed
Kavi Chongkidavorn, Senior Fellow ISIS Thailand

ASEAN Foreign Ministers Statement on

the Treaty of Amity and Coopera>on (TAC)
ASEAN Foreign Ministers 2016
TAC is a key code of conduct governing
rela>ons between states
All signatories outside the region should respect
and promote TAC
Explore a legally binding instrument building
upon the TAC for the wider region [emphasis
added]

49th ASEAN Ministerial Mee>ng

Joint Communiqu
2 peaceful resolu>on of disputes, including full respect
for legal and diploma7c process
South China Sea

174 serious concern took note of the concerns

expressed by some Ministers on the land reclama>ons and
escala>on of ac>vi>es in the area, which have eroded trust
and condence, increased tensions and may undermine
peace, security and stability in the region
177 importance of non-militarisa>on and self-restraint
in the conduct of all ac>vi>es, including land reclama>on
179 intensify eorts to achieve further substan>ve
progress on DOC, early conclusion of COC (outline and
>meline)

ASEAN-China Joint Statement

on the DOC
ASEAN and China commided themselves
to the full and eec>ve implementa>on of the DOC
in its en>rety and working substan>vely towards the
early adop>on of a Code of Conduct in the South
China Sea (COC) based on consensus
to exercise self-restraint in the conduct of ac>vi>es
that would exercise or escalate disputes and aect
peace and stability
refraining from ac>on of inhabi>ng on the presently
uninhabited islands [Scarborough Shoal?], reefs, shoals,
cays, and other features

ASEAN Joint Statement on

Peace, Security and Stability in the Region
Southeast Asia and its surroundings remain a peaceful,
stable and secure region;
Uphold the UN Charter, ASEAN Charter, TAC, ZOPFAN,
Declara>on of the East Asia Summit of the Principles for
Mutually Benecial Rela>ons; which shall serve as the basic
norms governing friendly rela>ons and coopera>on among
states;
rearm ASEANs common posi>on in the 49th AMM Joint
Communiqu
exercise self-restraint and refrain from ac>vi>es that might
raise tension in the region; and
enhance our unity, solidarity and centrality and call on
other states to respect ASEANs norms and principles

4. Implica>ons for
the Interna>onal Community
Clarica>on of island, rock, low->de eleva>on
has universal applica>on
Japans Okinotorishima, US Johnston Atoll

China v Major Mari>me Powers

U.S. Freedom of Naviga>on Opera>onal Patrols

Award part of interna>onal case law

Acquiescence plays into Chinas hand

5. Conclusion
Chinas rejec>on of UNCLOS compulsory
dispute sedlement mechanism has
undermined role of interna>onal law in
shaping global order
Realpoli7k, balance of power, major powers
will play greater role in regional order
Strategic rivalry could undermine ASEANs
centrality and regional autonomy

Dave Rowe, From the Gallery, The Australian Financial Review, July 14, 2016

The Impact of the Arbitral Tribunal Award on

Peace and Security in the South China Sea
Area and the World
Emeritus Professor Carlyle A. Thayer
Presenta>on to Geneva Seminar
South China Sea Disputes Award of the Arbitral Tribunal
Cons>tuted Under Annex VII of the United Na>ons Conven>on on
the Law of the Sea and Its Implementa>on
sponsored by the Geneva Associa>on
Centre Interna>onal de Conference
Geneve, December 6, 2016