The Philippines Claim to the UNCLOS Arbitral Tribunal: Implications for Viet Nam

Carlyle A. Thayer Presentation to International Workshop on The Sovereignty Over Paracel and Spratly Archipelagoes Historical and Legal Aspects Sponsored by Pham Van Dong University Quang Ngai City, Vietnam. April 27-28, 2013

Chinas Expansionism

Chinas 2009 nine-dash Ushaped line laying claim to historic waters

Paracels

January 1974 China Seizes Crescent Group

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

Woody Island/Yongxing (China)

Spratly Islands

South Johnson Reef (left) and Fiery Cross Reef (below)

March 1988 China and Vietnam fought a naval engagement. China occupied South Johnson and Fiery Cross Reefs

Physical Occupation
Country Features Occupied

Vietnam Philippines China Malaysia Taiwan Brunei

21-26 8-10 7-8 5-7 1-2 0

China and the Philippines

Mischief Reef (China) 1995, 2005, 2012 Scarborough Shoal (Philippines))

China occupied Mischief Reef late 1994/early 1995

The Philippines Legal Action

UNCLOS settlement of disputes by peaceful means January 22, 2013 Notification and Statement of Claim Legal challenge to Chinas 9-dash line China rejects Philippine Claim

Arbitral Tribunal
China and Philippines subject to UNCLOS Article 287(3) Claim may be heard even if China refuses to attend proceedings Arbitral Tribunal
President of International Tribunal for the Law of the Sea appoints arbitrators Legal basis/jurisdiction

High Seas
Jurisdiction over resources in water column and sea bed

Innocent passage

Arbitral Tribunal
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

Arbitral Tribunal
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

Arbitral Tribunal
A. Reject the Philippiness claim as having no basis in international law B. Take up Claim and award all legal matters in favour of the Philippines C. Take up Claim and give a mixed award

Implications for Viet Nam

Option A least favourable
Undermine UNCLOS, entrench 9-dash line

Option B - best result

Nine-dash line would be illegal Islands, rocks and features clarified

Option C
Legality of baselines and occupied features would need to be clarified

Conclusion
Three objectives
Solidarity with the Philippines ASEAN unity Not harm relations with China

Paracel Islands remain a bilateral matter between Viet Nam and China Hindrance to ASEANs efforts to promote a Code of Conduct?