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Background Briefing: ASEAN Discusses Code of Conduct in South China Sea Carlyle A. Thayer May 23, 2012

[client name deleted] Delegations from ASEAN countries met today in Phnom Penh to work on a Code of Conduct (and there will be more closed meetings throughout the week). My questions to you are: As ships from China and the Philippines are still facing each other at the Scarborough Shoal as of this writing, how important is it that ASEAN members are meeting? Is it a positive sign that could ease tensions, or should they have acted faster to resolve this dispute? ANSWER: The dispute between China and the Philippines is a matter of sovereignty over territory the rocks in Scarborough Shoal. The Code of Conduct under negotiation is a follow on to the Declaration on Conduct of Parties in the South China Sea (DOC), agreed in November 2002, and the Guidelines to Implement the DOC, signed in July 2011. Scarborough Shoal consists of a number of reefs and rocks. Only five rocks are above water at high tide. China calls Scarborough Shoal an island. International law makes a distinction between an island and a rock. An island is naturally formed and can support human habitation or has an economic function. Islands are entitled to a 200 nautical mile Exclusive Economic Zone (EEZ). A state that controls an island has sovereign rights over the resources in the EEZ and the continental shelf. A rock is not an island. It must be above water at high tide. A rock is entitled to a 12 nm territorial sea. A state has absolute jurisdiction over its territorial sea. The Philippines claims the shoal lies within its Exclusive Economic Zone. EEZs reflect the legal principle that the land dominates the sea. A state cannot claim sovereignty over water but it can claim sovereignty over the land. EEZs are determined by a countrys baseline drawn around its shores at low tide. Sovereignty over land/island is different from sovereign rights over the water (water column) seabed. Sovereignty disputes over land and islands can only be resolved by the two countries concerned. They can negotiate and reach a settlement. Or they can submit their claim to an international tribunal such as the International Court of Justice (ICJ) for binding arbitration. China insists on bilateral negotiations, the Philippines refused. The Philippines wants China to agree to take the matter to the International Tribunal on Law of the Sea (ITLOS). This tribunal is set up under the United Nations

2 Convention on Law of the Sea (UNCLOS). It is not empowered to settle sovereignty disputes. It can adjudicate maritime jurisdiction. If China and the Philippines took their dispute to the ICJ and the court awarded sovereignty to the Philippines the matter would end. If the court awarded sovereignty to China, the dispute over maritime jurisdiction would remain. China would have sovereign rights over the rocks and their 12 nm territorial waters. The Philippines would have sovereign rights over its EEZ except for the territorial seas belonging to China. If the two still had a dispute over maritime jurisdiction they could take it to the ITLOS for resolution. So far so good. But when China and the Philippines acceded to the UNCLOS they both issued declarations exempting themselves from arbitration. All states were entitled to do this. All of the above legal discussion is aimed at underscoring that the discussions on the COC do not directly touch on the dispute between China and the Philippines. They are engaged in a non-violent standoff. The Philippines has dispatched two special envoys to China to promote better bilateral relations. Both China and the Philippines separately have declared a unilateral fishing ban in waters that includes those around Scarborough Shoal. Theoretically this means that fishing boats should have departed the area, thus removing one irritant and only civilian ships remain. It is important that ASEAN members are carrying forward their negotiations on a COC. But in April this year at the ASEAN Summit it was clear they were divided on at least two major points proposed by the Philippines. The Philippines proposed specifying which areas are in dispute and which areas are not in dispute. Those areas should be segregated. This would leave open the possibility of joint development in the areas under dispute. Secondly, the Philippines wants the draft COC to include the dispute mechanism contained in the UNCLOS, that is, the International Tribunal on Law of the Sea.

Suggested citation: Carlyle A. Thayer, ASEAN Discusses Code of Conduct in South China Sea, Thayer Consultancy Background Briefing, May 15, 2012.