Diplomatic Challenges in the

South China Sea

Emeritus Professor Carlyle A. Thayer

Presentation to Contemporary Challenges in Diplomacy
Asia-Pacific College of Diplomacy
The Australian National University
Canberra, October 13, 2017

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 Outline

1. Introduction
2. United Nations Convention on the Law
of the Sea (UNCLOS)
3. Claimants
4. Declaration on Conduct of Parties in
the South China Sea (DOC)
5. The Philippines Claims Against China

Four questions:

1. What is maritime dispute diplomacy? What are the main diplomatic processes and
structures of maritime dispute diplomacy?
2. What are the challenges political economic, security, legal and social for maritime
dispute diplomacy?
3. How are these challenges framed by which diplomatic actors, why and with what
effect now and possibly in the future?
4. Are there particular challenges for maritime dispute diplomacy in the Asia-Pacific
Region.

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 Outline

6. Arbitral Tribunal and Award

7. Militarisation of Artificial Islands
8. Framework on Code of Conduct
9. U.S. Freedom of Navigation
Operational Patrols (FONOP)
10. Conclusion

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 1. Introduction

The South China Sea is reportedly the second busiest sea way, with US 5 trillion in goods
carried through its waters each year.

The South China Sea is a crucial passageway between the Pacific and Indian Ocean for
commercial shippins as well as military ships and aircraft.

Maritime disputes involve not only claimant states but involve the interests of user
states such as the US, Japan, India and Australia.

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 Geographical Features

Scope of South China Sea could include all the way up to Taiwan, International
Hydrographic Organisation (has UN observer status).

South China Sea two major island archipelagoes Parcels (Woody Island) and Spratlys
plus Macclesfield bank and Pratas. No authoritative definition of which features are
included in Paracels or Spratlys. China seized western Paracels, Crescent group, in
January 1974.

The Pratas Islands, also known as the Dongsha Islands, are an atoll in the north of the
South China Sea consitsting of three islets about 340 km southeast
Hong Kong. Excluding their associated EEZ and territorial waters, the islets comprise
about 240 ha (590 acres), including 64 ha (160 acres) of lagoon area.[2] The islands are
claimed by the People's Republic of China, but are controlled by the Republic of China
(Taiwan) and organized as a national park. The main island of the groupPratas Island
is the largest of the South China Sea Islands.

The Zhongsha Islands are a collection of entirely submerged banks, seamounts, and
shoals in the South China Sea. The two major features of the area are the Macclesfield
Bank (Chinese: Zhngsh) and the Scarborough Shoal. The whole of the region is claimed
by the PRC and the ROC, and various bits of the western parts are claimed by the
Philippines

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Shipping Routes

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Same as for LNG China a net importer

Fisheries, sea bed resources

100,000 ships transit Straits of Malacca and Singapore annually

>25% of worlds traded goods pass through South China Sea
25% of all oil shipments carried by sea pass through Straits (11 million barrels or 1.7
mission cubic metres per day)
Worlds second busiest sea lines of communication
>1 trillion dollars of U.S. commerce
The South China Sea is a semi-enclosed maritime area that straddles the worlds second
most important sea lanes. Over 40,000 ships pass through the South China Sea each
year. These shipping lanes carry nearly half of global shipping and an estimated seventy
percent of crude oil imported from the Middle East and Africa to the major economies
of East Asia including China, Japan, South Korea and Taiwan. 10 million barrels of oil pass
through Malacca St. each year.

One-third of world shipping passes through SCS. Worlds second busiest sea lane. 50% of
world annual merchant fleet tonnage goes via three straits; Malacca, Lombok and
Sunda.

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Salience of the maritime domain. Hydrocarbon energy (oil and gas) in East Asia.

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9
 2. UNCLOS
Constitution of the Worlds Oceans
Does not deal with sovereignty
Maritime zones & features (next slide)
Sovereign jurisdiction over resources
Semi-enclosed Sea
Duty to Cooperate
Protect marine environment
Provisional arrangements of a practical nature
Dispute settlement

Maritime disputes involve both international legal processes (dispute settlement

mechanisms) and diplomacy involving claimant states and external powers. Thus both
legal and diplomatic processes take place on a bilateral and multilateral basis, and
involve states as well as multilateral regional organisations such as the Association of
Southeast Asian Studies (ASEAN).

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

Territorial sea sovereign jurisdiction and innocent passage.

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12
3. Claimants:
China
Taiwan
Vietnam
Philippines
Malaysia
Brunei
[Indonesia]

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 Chinas
9-dash line
Historic rights
Four sha
Pratas Ils.
Paracel Ils.
Spratly Ils.
and
Macclesfield
Bank

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 4. Declaration on Conduct of Parties in
the South China Sea (DOC) 2002
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.

ASEANs Statements on South China Sea 1992 and 1995. Discussed COC March 2000
exchanged drafts. November 2002 drew up DOC a political non-binding document.
4. The Parties concerned undertake to resolve their territorial and jurisdictional disputes
by peaceful means, without resorting to the threat or use of force, through friendly
consultations and negotiations by sovereign states directly concerned, in accordance
with universally recognized principles of international law, including the 1982 UN
Convention on the Law of the Sea;
The DOC is a non-binding political statement adopted by ten ASEAN states and China.
Guidelines to implement the DOC were adopted in 2013 and now involve consultations
on the DOC that China insists must be fully implemented before proceeding to a COC.
ASEAN would like both processes to taken place in parallel and that the C?OC be legally
binding as a treaty. China seeks a COC that is not legally binding.
Challenges ASEAN wanted to meet first as a group and then discuss with China, China
insists that all are equal and that there should be no prior consultations by ASEAN
members. In other words the dispute is between the parties directly concerned. More
later.At present two mechanisms operate: ASEAN-China SOM and ASEAN-China Joint
working Group to Implement the Guidelines on the DOC.
Operating in parallel is a separate challenge by the Philippines to take its dispute to
international arbitration.

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 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.

UNCLOS requirement to cooperate in semi-enclosed sea. Areas of cooperation from

UNCLOS

6. Pending a comprehensive and durable settlement of the disputes, the Parties

concerned may explore or undertake cooperative activities. Not one cooperative activity
has been approved. Only four joint working groups have been set up; working group for
C has not been set up.

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 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.

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 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 Philippines lawful
rights within and beyond its EEZ and
continental shelf
Declare 9-dash line illegal in international law

Came after 2012 when stand off at Scarborough Shoal resulted in China assuming de
facto control.

No prior consultation with ASEAN members

Determine legal status of islands, rocks and low tide elevations and submerged banks
occupied by China
Are these features capable of generating a maritime zone greater than 12 nm?
China has made excessive maritime zones
Features part of Philippine continental shelf

Philippines argues China is interfering with its lawful rights within and beyond its EEZ and
continental shelf
Call on China to desist from:
Occupation and activities on features
Interfering with Philippine fishermen
Stop exploiting resources in EEZ and CS
Interference with Freedom of Navigation

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 Scarborough Shoal (Rock)

China has invested the shoal but no yet begun construction. US claims survey work was
carried out recently. Chinese sources claim they will develop it like the otherAIs.

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 Philippines Claims Against China
Entitlements
Low Tide Elevations Italics = Rocks
Mischief Reef Johnson South Reef
Subi Reef Cuarteron Reef
Gaven Reef Fiery Cross Reef
Hughes Reef (+ Scarborough Shoal
McKennan Reef) Chinese activities in the
Second Thomas Shoal Philippines EEZ

Status of 9-dash line

Interference with fishermen and military ships and aircrft
Environmental damage
Itu Aba

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 6. 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

They are (from left) Judge Jean-Pierre Cot, Judge Stanislaw Pawlak, Judge Thomas A.
Mensah (President), Judge Rdiger Wolfrum, Professor Alfred H. A. Soons.

ruled that it has immediate jurisdiction over seven out of 15 issues raised against China
by the Philippines, which is asking the tribunal to declare Beijings sweeping claims over
the disputed areas in the South China Sea illegal and excessive.

In its ruling on Oct. 29, the Permanent Court of Arbitration in The Hague said its
jurisdiction with respect to seven other issues, or submissions in arbitration parlance,
by the Philippines remain pending and will need to be considered in conjunction with
the merits.

On July 7, 2015, case hearings began with the Philippines asking the Permanent Court of
Arbitration at The Hague to invalidate China's claims. The hearings were also attended
by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam.

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 UNCLOS Compulsory Dispute
Procedures Binding Decisions
All state parties to UNCLOS are free to choose
one or more of four means to settle disputes:
International Tribunal for the Law of the Sea (ITLOS),
Hamburg
International Court of Justice, The Hague
Arbitral Tribunal
Special Arbitral Tribunal
Where the parties have not designated the
means for dispute settlement = Arbitral Tribunal

Please note there is no mention of the Permanent Court of Arbitration. In cases where
the parties have not designated the means for dispute settlement, as in the case of the
Philippines-v-China, then the default means is the Arbitral Tribunal. The Arbitral Tribunal
is in fact an ad hoc body. Its members are chosen from a list of judges nominated by
their respective countries. The Arbitral Tribunal is not a permanent body like ITLOS or
the International Court of Justice which are headquartered in Hamburg and The Hague,
respectively. Once an Arbitral Tribunal issues an Award it disbands.

In order for the Arbitral Tribunal to function it needs a registry (secretariat). In this case
the PCA was chosen as the registry. It offers a physical location for the hearings and a
staff to handle administrative matters. All statements and documents issued by the
Arbitral Tribunal are issued by the PCA on behalf of the Arbitral Tribunal. Despite the use
of the PCA letterhead, all documents are issued and signed by members of the Arbitral
Tribunal. The final Award by the Arbitral Tribunal was issued on PCA stationery but it
was signed by the five judges concerned. This has led to widespread confusion in media
reporting that is now pervasive among the academic community. No PCA judge
participated in the case The Philippines -v-China.

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 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

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 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."

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 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

Third, the Arbitral Tribunal found that Chinese law enforcement vessels breached Chinas
obligations under UNCLOS and the Convention on the International Regulations for
Preventing Collisions at Sea (1972) by creating a serious risk of collision and danger to
Philippine ships and personnel by their aggressive tactics, such as ramming. Further, the
Tribunal found that Chinas maritime law enforcement vessels violated the Philippines
sovereign rights by interfering with commercial oil exploration operations, imposing an
illegal moratorium on fishing, failing to prevent Chinese flagged vessels from fishing
illegally, and preventing Filipino fishermen from engaging in traditional fishing.
Fourth, the Arbitral Tribunal found that China failed to meet its obligations to protect
and preserve the maritime environment in the South China Sea. The Tribunal found that
Chinas construction of artificial islands caused severe, irreparable harm to the coral
reef ecosystem and China has not cooperated or coordinated with the other States
bordering the South China Sea concerning the protection and preservation of the marine
environment.
Fifth, the Arbitral Tribunal found that Chinas construction of artificial islands after the
Philippines lodged its claims in January 2013 aggravated and extended the legal dispute
over maritime entitlements and protection and preservation of the marine environment.

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Second Thomas Shoal (LTE)

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 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
McKennan Reef Subi Reef
Scarborough Shoal
*Not subject to appropriation

Both Mischief Reef and Second Thomas Shoal fell within the Philippines EEZ and there
was no overlap with the maritime entitlements of Chinese-occupied rocks. Therefore,
the Tribunal found that Chinas construction of structures and installations on Mischief
Reef was not authorized by the Philippines. In addition, the Tribunal found that
hydrocarbon rich Reed Bank was a submerged reef formation that fell within the
Philippines EEZ.

The Tribunal found that it did not have jurisdiction to decide on Philippine complaints
about Chinas investment (in a military sense) of Second Thomas Shoal where the
Philippines beached the BRP Sierra Madre in 1999 in order to stake out its sovereignty
claims. The Tribunal found that Chinese activities, such as interrupting supply to Second
Thomas Shoal were military activities and thus fell outside its purview.

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 Johnson South Reef (Rock)

land reclamation activities of China in five areas, namely Johnson South (Mabini) Reef,
Cuarteron (Calderon) Reef, Hughes (Kennan) Reef, Gaven (Burgos) Reef and Eldad
(Malvar) Reef.

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Note before and after. Not always clear what Chinese intentions are with construction
activity.

IISS: China began with construction of two-storey cement structure in 1990. Then added
a helipad and a pier. In early 2014 the reef accommodated 200 troops, coastal artillery,
DP-65 grenade launcher, naval HF radar antenna, and two ECM facilities. In May 2015
PLAN issued eight warnings to US Navy P8-! Poseidon aircraft. Philippine aircraft
regularly jammed.

IISS: Extensive reclamation on Fiery Cross began in August 2014. Its area has increased
eleven times to almost one square kilometre. It is double the size of Itu Aba occupied by
Taiwan, which was the largest islands in the South China Sea. June 2015, 3,000 m
runway nearly complete. Able to accommodate all aircraft in Chinas military inventory
including Y-20 heavy transport and J-10 and J-11 fighters. Runway could support forward
deployment of J-11 for patrols over the southern reaches of the SCS (deterrence and
warfighting options).

Fiery Cross Reef June-September 2015 With land reclamation complete here, attention
has turned to developing facilities on the island. Construction of buildings and the paving
of an airstrip are among the activities pictured below.

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 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

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 7. Militarization of Artificial Islands

To give a military To make preparations

character to for war

Dual civil-
military

Red Line?

Define militarization: ASEAN IISS, CSCAP, ARF ISM Maritime Security, other think tanks,
international conferences

Bilateral: China-US

Spectrum: stationing uninformed armed military personnel; bunkers, gun

emplacements, defensive naval guns; dual use docks, jetties, airstrips, radar and
communications equipment; SIGINT, long-rang radar, electronic warfare equipment,
armed Coast Guard vessels and fishing militia; warships, aerial reconnaissance with
SSMs or ASW missiles; amphibious forces and craft; self-propelled artillcer, AA Mi9ssiles,
SSMs, Cruise missiles, jet fighters, bomber.

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 Mischief Reef July 2016

Low Tide Elevation

Mischief Reef July 22, 2016 LTE

Each of the three islets will soon have hangar space for 24 fighter-jets plus 3-4 larger
planes. The construction on Fiery Cross, Subi, and Mischief reefs follows a standard
blueprint. The smallest and most numerous
hangars are being built with four to six hangars per building. They can easily
accommodate any fighter-jet in the Peoples Liberation Army Air Force (PLAAF), including
the J-11 and Su-30. The second type of hangar is large enough for the H-6 bomber and
H-6U refueling tanker, Y-8 transport aircraft, and KJ200 Airborne Warning and Control
System plane. The largest of the hangars can accommodate the largest planes in the
PLAAF fleetthe Y-20 and Il-76 transport planes, Il-78 refueling tanker, and KJ-2000
surveillance aircraft. The rapid construction of reinforced hangars at all three features
indicates that this is likely to change. Each of the three islets will soon have hangar space
for 24 fighter-jets plus 3-4 larger planes.

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33
Subi Reef (LTE)

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35
36
Repsol Exploration & China 2017
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., 2017

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 8. Framework Code of Conduct
May 2017

One and a quarter page document

Dot points
1. Preambular provisions
2. General provisions
Objectives
Principles
3. Final Clauses

1. Preambular provisions: a. Bases of the COC b. Inter-connection and interaction between DOC
and COC c. Importance and aspirations
2. General provisions a. Objectives:
i. To establish a rules-based framework containing a set of norms to guide the
conduct of parties and promote maritime cooperation in the South China Sea;
ii. To promote mutual trust, cooperation and confidence, prevent incidents,
manage incidents should they occur, and create a favourable environment for
the peaceful settlement of the disputes;
iii. To ensure maritime security and safety and freedom of navigation and overflight.
b. Principles
i. Not an instrument to settle territorial disputes or maritime delimitation issues
ii. Commitment to the purposes and principles of the Charter of the United Nations, the
1982 United Nations Convention on the Law of the Sea (UNCLOS), the Treaty of Amity
and Cooperation in Southeast Asia (TAC), the Five Principles of Peaceful Coexistence, and
other universally recognized principles of international law
iii. Commitment to full and effective implementation of the DOC
iv. Respect for each others independence, sovereignty and territorial integrity in
accordance with international law, and the principle of non-interference in the internal
affairs of other states
3. Final Clauses
a. Encourage other countries to respect the principles contained in the COC
b. Necessary mechanisms for monitoring of implementation
c. Review of the COC d. Nature and e Entry into Force

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 9. U.S. Freedom of
Navigation Operational Patrols
Assert freedom of navigation and overflight
rights and freedoms worldwide under UNCLOS
No acquiescence to unilateral acts
Highlight UNCLOS navigation provisions to
protect maritime rights worldwide
Triple track diplomatic representations,
operational assertions and bi- & multi-lateral
consultations

Exercise and assert navigation and overflight rights and freedoms worldwide,
consistent with the balance of interests reflected in the Law of the Sea (LOS)
Convention.
Not acquiesce in unilateral acts by other states designed to restrict the rights and
freedoms of the international community in navigation and overflight and other high-
seas related uses
Highlight the navigation provisions of the LOS Convention to further the recognition
of the national need to protect maritime rights throughout the world.
Operate on a triple track involving diplomatic representations and operational
assertions by US military units along with bilateral and multilateral consultations with
other governments in an attempt to promote maritime stability and consistency with
international law.

U.S. Department of State

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 10. Conclusion
ASEAN-China Consultations on COC
Foolish consistency or Holy Grail?
Prerequisite full implement of the DOC
Are CBMs related to real issues at stake?
Legally binding, geographic scope
ASEAN Unity and Consensus
ASEAN Chair from Philippines to Singapore
Cambodia as spoiler

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

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 Conclusion
Oil Exploration by Philippines and Vietnam
Repsol case still pending
ExxonMobil-Vietnam, Reed Bank-Philippines
United States Northeast Asia First?
Freedom of Navigation Operational Patrols-FONOP
Presence & Continuous Bomber Presence patrols
Solution or source of provocation?
Role of other maritime powers

Other maritime powers:

Japan, India, Australia, Russia, France, UK

Trilateral and AUSMIN

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 Conclusion
Status of UNCLOS
Implications of non-compliance
Indonesia and Laut Natuna Utara
International case law
High seas
Islands, rocks and low-tide elevations elsewhere
Australia and rules-based order
FONOPs with or without US?

Chinas pre-emption and rejection of Award

UNCLOS does not contain powers of enforcement
How should the international community respond?
What are legal and diplomatic options?
What are Australias interests?

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Diplomatic Challenges in the
South China Sea

Emeritus Professor Carlyle A. Thayer

Presentation to Contemporary Challenges in Diplomacy
Asia-Pacific College of Diplomacy
The Australian National University
Canberra, October 13, 2017

43