The

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

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

The Philippines Claim to the UNCLOS Arbitral Tribunal: Implications for Viet Nam Carlyle A. Thayer*
Introduction This paper considers the implications for Viet Nam of the Philippines decision to lodge a Notification and Statement of Claim with the United Nations (UN) to establish an Arbitral Tribunal to consider legal aspects of its dispute with China in the South China Sea (East Sea or Bien Dong). This paper begins with a brief overview of Chinas expansion into the South China Sea from 1974 until the mid-1990s. The paper then considers the special case of the Paracel Islands that China seized from Viet Nam and which remain a bilateral sovereignty dispute up to the present. Next, the paper discusses Chinese occupation of features in the South China Sea claimed by Viet Nam and the Philippines. Finally, the paper discusses the details of the Philippiness legal claim before the United Nations. The conclusions discuss the legal and political/diplomatic implications for Viet Nam as well as the prospects for a Code of Conduct for the South China Sea (COC). Paracel Islands In the mid-1950s the Peoples Republic of China (PRC) occupied the Amphitrite group (Nhom Tuyen Duc) in the eastern Paracel Islands (Quan Dao Hoang Sa). With this sole exception the PRC was not physically present elsewhere on features (islands or rocks) in the South China Sea from 1949-1973. As late as 1981, markers planted by the Nguyen Dynasty (1802-1945) were still observed by Vietnamese fishing in waters around the Paracel Islands. These markers were later destroyed by Chinese authorities.1 Since 1973 the PRC has embarked on a prolonged campaign to assert control over the South China Sea basing its claims to indisputable sovereignty and historical rights on
*

Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy, Canberra. Email: c.thayer@adfa.edu.au. Revised April 30, 2013.
1

Briefing by a Vietnamese fisherman, Ly Son Island, April 28, 2013.

those of its predecessor the Republic of China (ROC). In 2009 China officially tabled a map with the UN Commission on the Limits of the Continental Shelf containing nine- dash lines forming a u-shape enclosing approximately eighty percent of the South China Sea in its ambit claim. Chinas 2009 map was based on one previously issued by the ROC in 1947. New historical evidence seems to indicate that the 1947 map was drawn up by the ROCs Inspection Committee for Land and Water Maps in 1933. Because the Inspection Committee had never carried out and did not have the means to carry out a proper survey it copied existing British Admiralty maps and in doing so carried over cart Errors in the British maps (since corrected) were carried over and incorporated into ROC maps.2 China has never provided a legal clarification of its territorial claims in the South China Sea. Wu Shicun, president of Chinas National Institute for South China Sea Studies, for example, states, [t]he widely held view (in China) is that of a demarcation line for islands. That view holds that all islands lying within the cows tongue [Chinas nine-dash u-shaped line] belong to China, and that China has historical rights, including fishing rights, over the surrounding waters.3 In January 1974, Chinese naval forces engaged and defeated the armed forces of the Republic of Viet Nam (Viet Nam Cong Hoa) and occupied the Crescent groups (Dao Nguyet Thiem) of islands in the western Paracels. In March 1953, the PRC State Council officially established the Guangdong Province-Paracel-Spratly-Macclesfield Bank (Zhongsha) Authority as a county-level administrative unit headquartered on Woody Island (Phu Lam Dao) in the Amphitrite group of the Paracel Islands. In 1984 responsibility for this unit was passed to the Hainan Administrative Region that was upgraded to provincial status in April 1988. In September 1988 the PRC renamed the

Bill Hayton, How a non-existent island became Chinas southern most territory, South China Morning Post, February 9, 2013.
3

Interview with Nozomu Hayashi, Official says Beijing has historical rights over South China Sea, El Bee, January 26, 2012.

Hainan Administrative Region the Hainan Province-Paracel-Spratly-Macclesfield Bank Authority. On June 21, 2012 the thirteenth legislature (3rd session) of Viet Nams National Assembly formally adopted the Law of the Sea of Viet Nam (Luat Bien Viet Nam).4 This law covered Viet Nams baseline, internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf, islands, the Paracel and Spratly archipelagos and other archipelagos under the sovereignty, sovereign rights and jurisdiction of Viet Nam.5 The law took effect on January 1, 2013. Viet Nams Law of the Sea had been under consideration for several years.6 It was due to be adopted in 2011 as an assertion of Viet Nams legal claims under international law, including the United Nations Convention on Law of the Sea, at a time of rising tensions in the South China Sea. The law was withheld so as not to undermine the visit of party Secretary General Nguyen Phu Trong to China in October and the return visit to Viet Nam by Vice Premier Xi Jinping in December. Chinese Embassy officials were aware that Viet Nam was drafting the Law on the Sea and made representations urging Viet Nam not to proceed. When Chinese officials were duly informed that Viet Nam intended to proceed it came as no surprise. China prepared its response in advance. Chinas Vice Foreign Minister Zhang Zhijun immediately summoned Viet Nams Ambassador in Beijing, Nguyen Van Tho, to lodge a strong protest. At the same time, Chinas Foreign Ministry issued a statement quoting the vice minister as stating, Viet Nams Maritime Law, declaring sovereignty and jurisdiction over the Paracel and Spratly Islands, is a serious violation of Chinas territorial
4

Luat Bien Viet Nam, the official text in Viet Namese and an unofficial translation prepared by Viet Nams Ministry of Foreign Affairs may be found at: Carlyle A. Thayer, Viet Nam Law of the Sea, Thayer Consultancy Background Brief, August 5, 2012. http://www.scribd.com/doc/101998223/Thayer-Viet Nam- s-Law-on-the-Sea.
5 6

Luat Bien Viet Nam, Article 1.

It should be noted that in December 2009 the Standing Committee of Chinas National Peoples Congress passed a Law on Sea Island Protection to protect the marine eco-system and promote sustainable development. This law entrenched Chinas sovereignty claims and strengthened the role of the State Oceanic Administration in monitoring compliance.

sovereignty and called for an immediate correction. China expresses its resolute and vehement opposition.7 Viet Nams Ministry of Foreign Affairs responded by issuing a statement that declared it is regrettable that China reacted with unreasonable criticism against Viet Nams legitimate conduct.8 The statement drew attention to the fact that the Law of the Sea is the continuation of a number of provisions of Viet Nams existing laws. This is not a new matter Finally the statement reiterated Viet Nams policy of settling difference and disputes in the South China Sea by peaceful means on the basis of international laws, including UNCLOS and the 2002 Declaration on Conduct of Parties in the South China Sea (DOC). On June 22, 2012, the Foreign Affairs Committee of Chinas National Peoples Council approved a letter to be sent to its counterpart in Viet Nam, the Committee on Foreign Affairs of the National Assembly. The letter stated that Viet Nams Law on the Sea violates the consensus reached by both leaders, as well as the principles of the Declaration on Conduct of Parties in the South China Sea.9 Within hours of Viet Nam adopting its Law on the Sea, in a tit-for-tat response, Chinas State Council issued a statement raising the administrative status of Sansha city from county-level to prefecture level with continuing jurisdiction over the Paracel (Nansha) and Spratly (Xisha) and the Macclesfield Bank and surrounding waters.10 Sansha City is located on Woody (Yongxing) island and has a population of just over 1,000 and an area of 13 square kilometers. It has administrative responsibility over 2 million sq. km of sea. Both Viet Nam and the Philippines protested to China about the elevation of Sansha to prefecture level. Viet Nam lodged a protest with the Chinese Foreign Ministry claiming,
7

Jane Perlez, Viet Nam Law on Contested Islands Craws Chinas Ire, The New York Times, June 21, 2012 and Reuters, China says Viet Nam claims to islands nuli and void, June 21, 2012.
8

Statement of the Spokesman of the Ministry of Foreign Affairs of Viet Nam, June 21, 2012, Embassy of the Socialist Republic of Viet Nam in the Kingdom of Thailand, June 233, 2012.
9

Xinhua, China urges Viet Nam to correct erroneous maritime law, China Daily, June 22, 2012 Perlez, Viet Nam Law on Contested Islands Craws Chinas Ire.

10

Chinas establishment of so-called Sansha City violated international law, seriously violating Viet Nam sovereignty over the Paracel and Spratly archipelagos. 11 The Philippines handed a Note Verbale on June 28 to Chinas Ambassador Ma Keqing.12 Immediately after the State Council announcement, the Hainan province legislature made preparations to hold elections to select Sansha Citys first peoples committee. The elections were held on July 21 and 45 deputies were selected to the municipal peoples congress. The creation of Sansha City was formally announced at ceremonies held July 24. On June 23, 2012, two days after the passage of Viet Nams Law on the Sea, Chinas state-owned China National Offshore Oil Company issued an invitation to foreign companies to bid for nine offshore open blocks for exploration and development.13 Although CNOOCs statement claimed that the waters were under the jurisdiction of the PRC, in fact they were located wholly with in the 200 nautical mile EEZ claimed by Viet Nam under the provisions of UNCLOS (but also to eastern side of Chinas u-shaped line).14 Luong Thanh Nghi, the official spokesperson for Viet Nams Ministry of Foreign Affairs, issued a formal protest on June 26. Nghi called CNOOCs offer illegal and a serious violation of Viet Nams sovereignty, jurisdictional rights and legitimate national interests.15 The next day the General Director of PetroViet Nam, Do Van Hau, held a
11

Agence France-Presse and Associated Press, Sansha: Chinas newest toehold in disputed sea, Philippine Daily Inquirer, July 26, 2012.
12

Michaela Del Calla, PHL hands Ma Keqing signed protest over Sansha City, GMA News, July 5, 2012 and Jim Gomez, Philippines protests Chinas establishment of a new city claiming entire South China Sea, Associated Press, July 5, 2012.
13

China National Offshore Oil Company, Press Center Notification of Open Blocks in Waters Under the Jurisdiction of the Peoples Republic of China, June 13, 2012. http://en.cnooc.com.cn/data/html/news/2012-06-23/english.322127.html,
14

CNOOC: Seeking Foreign Firms to Jointly Operate Nine Offshore Blocks, Dow Jones Newswires, June 25, 2012 and Marianne Brown, Tension Mounts Between Viet Nam, China, Voice of America, June 28, 2012.
15

Remark by Viet Namese Foreign Ministry Spokesman Luong Thanh Nghi on June 26, 2012, Ministry of Foreign Affairs, http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns120627053317/newsitem_print_preview and Song Yen Ling and Dao Dang Toan, Tensions rise as China offers blocks in waters offshore Viet Nam,

press conference. Hau pointed out these blocks lie deeply on the continental shelf of Viet Nam and overlap with Viet Nams blocks 128 to 132 and 145-156. Hau noted that foreign oil companies were currently operating in those blocks. Indias ONGC Videsh Limited was operating in block 128; Russias Gazprom was operating in blocks 129-133; ExxonMobile was operating in blocks 156-158, and Viet Nams PVEP (PetroViet Nam Exploration Production) was operating in blocks 148-149.16 According to Stephanie Kleine-Ahlbrandt, a Beijing-based analyst with the International Crisis Group, up to June 2012 CNOOC had been unable to obtain approval for exploration in these disputed waters. In her assessment, CNOOC received approval from Chinas top leadership for its actions and this raised tensions to a new level reflecting a change in Chinas policy.17 Laban Yu, an oil and gas analyst with Jeffries Hong Kong, Ltd. offered the view that CNOOCs bidding process had been commandeered by Chinas Ministry of Foreign Affairs to use for political posturing.18 Other analysts noted that CNOOC usually conducted its joint operations with foreign companies in relatively shallow water and its offer of leases in Viet Nams EEZ appeared politically motivated and designed to bolster Chinas territorial claims. 19 Other analysts noted that the location of the bids were more likely to contain gas than oil. Given the low price of natural gas in China, and the distance of these blocks from Chinas mainland, it would not be commercially feasible to construct pipelines. These analysts also concluded that CNOOCs bids were more about politics than about earnings.20

Platts.com News Feature, June 29, 2012. http://www.platts.com/newsfeature/2012/chinaViet Nam/index.
16 17

Viet Nam News Agency, PetroViet Nam protests Chinese companys intl oil bidding, June 27, 2012.

Quoted in Ben Bland and Gwen Robinson, China-Viet Nam row hits energy groups, The Financial Times, June 27, 2012.
18 19

Bland and Robinson, China-Viet Nam row hits energy groups.

Wayne Ma and James Hookway, Viet Nam Spars With china Over Oil Plan, The Wall Street Journal, June 27, 2012.
20

Ma and James Hookway, Viet Nam Spars With china Over Oil Plan.

On July 19, 2012 Chinas Central Military Commission officially decided to establish a military command in Sansha City. The garrison was placed under the PLA Hainan provincial sub-command within the Guangzhou Military Command. The Sansha military garrison would assume responsibility for national defence mobilization, military operations and reserves. According to Defence Ministry spokesperson Geng Yansheng, China may set up local military command organs in the city [Sansha] according to relevant regulations.21 Senior Colonel Cai Xihong was appointed commander of the Sansha garrison and Senior Colonel Liao Chaoyi was named Political Commissar.22 In 1990 China constructed an airstrip on Woody island that can accommodate transport and fighter aircraft such as the Su-27 and Su-30MKKs. China has also built up the military infrastructure to include four aircraft hangars, fuel depots and naval docks capable of accommodating frigates and destroyers. Woody island also houses a signals intelligence (SIGINT) facility.23 The standing up of a military garrison on Woody Island, according to regional specialists, does not represent an attempt to build a base for forward deployment into the South China Sea. 24 In their view, the Sansha military garrison is merely an administrative response to the upgrading of Sansha to prefecture- level city. Military garrisons do not command PLA main force combat units, PLA Navy for PLA Air Force units. Spratly Islands With the exception of Itu Aba Island (Taiping Tao or Dao Ba Binh/Dao Thai Binh) occupied by the Republic of China (Taiwan) in the 1950s, the PRC did not have a physical presence in the Spratly Islands until the late 1980s. In March 1988, Chinese forces engaged naval forces of the Socialist Republic of Viet Nam and took control of Johnson
21

Xinhua, Chinese military may establish presence in Sansha: defense spokesperson, Ministry of National Defence of the Peoples Republic of China, June 28, 2012. http://eng.mod.gov.cn/Press/2012- 06/29/content_4381230.htm.
22 23 24

China steps up claims over worlds most disputed waters, National Post, July 27, 2012. J. Michael Cole, China Deploying Military Garrison; to South China Sea?, The Diplomat, July 23, 2012

Dennis J. Blasko and M. Taylor Fravel, Much Ado About The Sansha Garrison, The Diplomat, August 23, 2012.

South (Da Gac Ma) and Fiery Cross (Da Chu Thap) reefs. In late 1994/early 1995 China took control of unoccupied Mischief Reef (Panganiban or Da Van Khan) belonging to the Philippines. China has also occupied McKennan Reef (Chigua), Gaven Reef (Burgos) Subi Reef (Zamora), Johnson Reef (Da Gac Ma), Cuarteron Reef (Bai Chau Vien/Dao Chau Vien) and Fiery Cross Reef. During the early 1990s China and Viet Nam moved to take control of as many of the unoccupied features as they could. Table 1 below sets out the estimated number of features (islands and rocks) occupied (or with territorial markers) by each of the six claimant parties disputing jurisdiction in the South China Sea.

Table 1 Occupation of Features in the South China Sea

In 1992 China awarded the Crestone Oil Company a lease in waters that fell within Viet Nams continental shelf. In 1994, Chinese forces harassed the Vietnamese oil-drilling rig, the Tam Dao, operating in waters around Vanguard Bank (Bai Tu Chinh). In 2011, Chinese civilian maritime enforcement ships began to aggressively harass foreign oil exploration vessels operating in waters claimed by Viet Nam and the Philippines. This resulted in two well-publicized cable-cutting incidents in Viet Nams Exclusive Economic Zone (EEZ). A third cable cutting incident took place in late 2012. Most recently, Chinese maritime enforcement ships annexed the Philippines Scarborough Shoal (Bajo de

10

Masinloc) by erecting a barrier across the mouth of the shoal and by maintaining the permanent deployment of a superior force of maritime enforcement ships. In 2011, Chinese civilian maritime enforcement ships began to aggressively harass foreign oil exploration vessels operating in waters claimed by Viet Nam and the Philippines. This resulted in two well-publicized cable-cutting incidents in Viet Nams Exclusive Economic Zone (EEZ). A third cable cutting incident took place in late 2012. Most recently, Chinese maritime enforcement ships annexed the Philippines Scarborough Shoal by erecting a barrier across the mouth of the shoal and by maintaining the permanent deployment of a superior force of maritime enforcement ships. Chinas occupation of Scarborough Shoal was the last straw and led to the Philippines taking unilateral legal action before the UN. The Philippines and the Arbitral Tribunal UNCLOS Part XV requires states to settle their disputes by peaceful means and to exchange views towards this end. The Philippines argues that it has continually exchanged views with China since 1995 when China occupied Mischief Reef. The Philippines Notification and Statement of Claim concludes, over the past 17 years of such exchanges of views, all possibilities of a negotiated settlement have been explored and exhausted. On January 22, 2013 the Philippines therefore brought the matter before the UN.25 On January 22 Ma Keqing, the Chinese Ambassador to the Philippines, was summoned to the Department of Foreign Affairs in Manila and handed a Note Verbale informing her that the Philippines was initiating a legal challenge to bring China before an Arbitral Tribunal under the terms of the United Nations Convention on Law of the Sea (UNCLOS).26
25

Statement by Secretary of Foreign Affairs Albert del Rosario on the UNCLOS Arbitral Proceedings against China to Achieve a Peaceful and Durable Solution to the Dispute in the WPS, January 22, 2013.
26

Department of Foreign Affairs, Republic of the Philippines, covering letter No. 13-0211 to The Embassy of the Peoples Republic of China, Manila, January 22, 2013 attaching Francis H. Jardeleza, Solicitor General, Republic of the Philippines, Notification and Statement of Claim, January 22, 2013.

11

The Note Verbale contained the official text of the Notification and Statement of Claim submitted to the UN by the Philippines. This document outlined the Philippine challenge to the validity of Chinas nine-dash line claim to the South China Sea. The Philippines also called on China to desist from unlawful activities that violate the sovereign rights and jurisdiction of the Philippines. Under UNCLOS China had thirty days to respond by notifying its nominee to the Arbitral Tribunal. On February 19, Ambassador Ma met with officials at the Department of Foreign Affairs and returned the Philippines Notification and Statement of Claim, thus rejecting it. A Chinese Foreign Ministry spokesman in Beijing stated that the Philippines Statement of Claim was historically and legally incorrect and contained unacceptable accusations against China.27 Under UNCLOS Article 287, a state is free to choose one or more of four binding arbitration measures: International Tribunal for the Law of the Sea (ITLOS), International Court of Justice, Arbitral Tribunal, and a Special Arbitral Tribunal. If parties to a dispute failed to issue a formal declaration specifying their choice of arbitration, under UNCLOS Article 287(3) they shall be deemed to have accepted arbitration in accordance with Annex VII. Because neither China nor the Philippines ever issued a formal declaration specifying their choice, their dispute became subject to arbitration by an Arbitral Tribunal. Every state that ratifies UNCLOS is entitled to nominate four arbitrators to a list maintained by the UN Secretary General. An Arbitral Tribunal is generally composed of five persons drawn from this list. Each party to a dispute is entitled to make one nomination and to jointly agree on the other three members including the chairman.28
27

Associated Press, China rejects Philippine effort at UN mediation over South China Sea territorial dispute, The Washington Post, February 20, 2013 and China rejects Philippines submission on S China Sea, China.org.cn, February 21, 2013;
28

The Philippines nominated Rudiger Wolfrum, a German law professor and former president of the International Tribunal for the Law of the Sea. ITLOS President, Judge Shunji Yanai, appointed Polish judge Stanislaw Pawlak to represent China after China failed to nominate by the set deadline. China vs Philippines: Stanislaw Pawlak appointed judge for ITLOS, China Daily Forum, March 26, 2013l

12

Annex VII makes provisions for cases when a state fails to nominate its arbitrator within the thirty-day period. After Chinas rejection the Philippines has two weeks to request the President of ITLOS to make the necessary appointments of arbitrators from the approved list. The President has thirty days to make the necessary appointments. When the Arbitral Tribunal is set up it determines its own procedures. Decisions are made by majority vote. The Arbitral Tribunal may hear the claim made by the Philippines even if China refuses to take part. Under Annex VII, Article 9: If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law. The Arbitral Tribunal is required to confine its award to the subject-matter of the dispute and the award shall be final and without appeal It shall be complied with by the parties to the dispute. UNCLOS, however, does not contain any provisions for enforcement. UNCLOS Part XV requires states to settle their disputes by peaceful means and to exchange views towards this end. The Philippines argues that it has continually exchanged views with China since 1995 when China occupied Mischief Reef. The Philippines Statement of Claim concludes, over the past 17 years of such exchanges of views, all possibilities of a negotiated settlement have been explored and exhausted. In August 2006, China made a declaration of optional exceptions exempting itself from compulsory dispute procedures related to sea boundary delimitation (territorial sea, EEZ and continental shelf), military and law enforcement activities, and disputes involving the Security Council exercising its functions under the UN Charter. The Philippines was careful in its Notification and Statement of Claim to state it was not seeking arbitration over sovereignty disputes to islands or delimitation of maritime boundaries that China

13

had excluded from arbitral jurisdiction. The Philippines claimed that its maritime disputes with China were about the interpretation and application by States Parties of their obligations under the UNCLOS and therefore could be submitted for resolution. What awards are the Philippines seeking from the Arbitral Tribunal? First, the Philippines sought an award that declared that the maritime areas claimed by China and the Philippines in the South China Sea are those established by UNCLOS and consisted of territorial sea, contiguous zone, EEZ and continental shelf. On this basis, the Philippines requested the Arbitral Tribunal declare that Chinas nine-dash line ambit claim to the South China Sea was inconsistent with UNCLOS and invalid. Further, the Philippines requested that the Arbitral Tribunal require China to bring its domestic legislation into conformity with UNCLOS. Second, the Philippines requested the Arbitral Tribunal to determine the legal status of features (islands, low tide elevations and submerged banks) in the South China Sea claimed by China and the Philippines and whether these features were capable of generating an entitlement of a maritime zone greater than twelve nautical miles. The Philippines specifically listed Mischief Reef, McKennan Reef, Gaven Reef, Subi Reef, Johnson Reef, Cuarteron Reef (Bai Chau Vien/Dao Chau Vien), and Fiery Cross Reef and argued China claimed excessive maritime zones on the basis that these features were islands. The Philippines claimed these features were submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippines continental shelf, or the international seabed. Under UNCLOS islands are entitled to a 200 nautical mile EEZ and rocks to a 12 nm territorial sea. Third, the Philippines argued that China interfered with the lawful exercise of the Philippines rights within and beyond its EEZ and continental shelf in contravention of UNCLOS. The Philippines requested the Arbitral Tribunal require China to desist from (1) its occupation of and activities on the features listed above, (2) interfering with Philippines vessels exploiting the living resources in waters adjacent to Scarborough Shoal and Johnson Reef, (3) exploiting the living and non-living resources within the

14

Philippines EEZ and continental shelf and (4) interfering in the Philippines freedom of navigation within and beyond the 200 nautical miles of the Philippines baselines. According to an American legal specialist China has four choices:
First, China still has an opportunity to change its position and litigate the issues, or at least to litigate whether the Arbitral Panel has jurisdiction over any of the Philippine claims Chinas second option and perhaps the most likely is to continue to refrain from participating and to hope for a favorable outcome. If China loses the case, it could declare the process void and ignore its results Third, China may believe its best option is to try to isolate and coerce the Philippines into dropping the arbitration Finally, given the risks and ramifications of each of these options, Beijing may decide to engage in 29 quiet negotiations with Manila to withdraw the case.

China may already be pursuing option three. Southeast Asian diplomatic sources have revealed that Beijing is putting diplomatic pressure on ASEAN states to lobby the Philippines to drop its legal action with the UN in return for restarting talks on the COC.30 According to Philippine officials it could take up to three or four years for the Arbitral Tribunal to reach a decision. During this time China could further consolidate and expand its presence in waters claimed by the Philippines. Conclusion: Legal and Political/Diplomatic Implications What are the implications for Viet Nam of the Philippines bringing its jurisdictional dispute with China to the United Nations? On the legal side, the Arbitral Tribunal could (a) reject the Philippines claim outright as having no basis in international law or rule that it has no jurisdiction in the matter; (b) take up the Philippine claim and give an award in favour of the Philippines on all legal matters raised; or (c) take up the Philippine claims and award some of the issues in Chinas favour, some of the issues in the Philippines favour and decline to act on some of the legal issues raised. Option B is the best result for Viet Nam because the legal basis for Chinas nine-dash line claim would be undermined if not invalidated in international law. This would serve to
29

Peter Dutton, The Sino-Philippine Maritime Row: International Arbitration and the South China Sea, East and South China Sea Bulletin [Center for a New American Security], No. 10, March 15, 2013, 6-7.
30

Based on off-the-record discussions held on March 12-13, 2013.

15

restrain if not prevent China from interfering with oil production and exploration activities in Viet Nams EEZ and continental shelf. The legal classification of islands, rock and other features in the South China Sea would provide the basis for demarcating overlapping maritime jurisdiction under UNCLOS. This would serve to restrain Chinese maritime enforcement ships from operating outside their jurisdiction. Option A is least favourable for Viet Nam because it would undermine the role of UNCLOS in settling maritime jurisdictional disputes. China could be expected to be even more assertive in pressing its claims in the South China Sea. Options B and C could challenge the legal basis for Viet Nams current baselines and claims to low tide elevations in the South China Sea. Viet Nams southeastern baselines known as the pregnant lady are viewed by many legal specialists as excessive and not in accord with international law. With respect to islands, rocks and other features, Viet Nam would have to clarify the status of the features it presently occupies for the purposes of determining maritime jurisdiction. What are the political/diplomatic implications for Viet Nam? Viet Nam must pursue three potentially contradictory political-diplomatic objectives at the same time: show a measure of solidarity with the Philippines, work for ASEAN unity on a Code of Conduct, and ensure its relations with China remain on an even keel. Viet Nam will face difficulties in showing solidarity with the Philippines because of the likely negative consequences for China-Viet Nam relations. Yet failure to show a measure of solidarity with the Philippines may encourage China to isolate the Philippines and further consolidate its presence in the East Sea. Since the Philippines case focuses solely on the Spratly Islands any award by the Arbitral Tribunal will have no major impact on Viet Nams sovereignty dispute with China over the Paracels. This matter can only be settled by direct negotiations by the parties concerned. Finally, what are the implications for ASEANs efforts to negotiate a Code of Conduct with China? The unilateral action by the Philippines to lodge a legal claim with the UN, made without prior consultation with ASEAN members, has raised uncertainty about

16

ASEANs efforts to restart discussions with China on a Code of Conduct.31 Diplomatic sources in Southeast Asia reported in March 2013 that the Philippine actions have breathed all the life out of the COC process.32 One think tank recently concluded that, Manilas strategy might actually have strengthened Beijings hand: its move has undermined ASESAN unity and risks negatively impacting efforts to establish a Code of Conduct.33 Despite these negative assessments there are some hopeful straws in the wind that ASEAN is renewing its efforts to engage China in discussions on a Code of Conduct.34 In January 2013, after the ASEAN Chair passed from Cambodia to Brunei, for example, Brunei and ASEANs new Secretary General, Le Luong Minh, both pledged to give priority to reviving discussions on the COC.35 Bruneis Sultan raised the COC issue with President Xi Jinping when they met on the sidelines of the Boao Forum in April. Sources report that Brunei has set October 2013 as a target date for completion.36 Secretary General Minh asked Indonesias President Susilo Bambang Yudhoyono for his assistance in addressing the South China Sea dispute. 37 Thailand, as ASEANs designated
31

Greg Torode, Manilas lonely path over South China Sea, South China Morning Post, February 14, 2013 and Carlyle A. Thayer, China at Odds with U.N. Treaty, USNI News [US Naval Institute], March 11, 2013. http://news.usni.org/2013/03/11/china-at-odds-with-u-n-treaty#more-2251.
32

Based on off-the-record discussions held on March 12-13, 2013. For a pessimistic view on the prospects for a COC see: Ian Storey, Slipping Away? A South China Sea Code of Conduct Eludes Diplomatic Efforts, East and South China Seas Bulletin, no. 11, March 20, 2013.
33

Philippine legal move stirs South China Sea disputes, Strategic Comments (International Institute for Strategic Studies), vol. 19, April 2013.
34

For discussion on ASEANs most recent draft COC and a possible ASEAN Troika see: Mark Valencia, Navigating Differences: What the Zero Draft Code of Conduct for the South China Sea Says (and Doesnt Say), Global Asia, 8(1), Spring 2013, 72-78 and Michael A. McDevitt and Lew Stern, Viet Nam and the South China Sea, in Michael A. McDevitt, M. Taylor Fravel, Lewis M. Stern, The Long Littoral Project: South China Sea, CNA Strategic Studies, March 27, 2013, 61-74.
35

New ASEAN chair Brunei to seek South China Sea code of conduct, GMA News, 14 January 2013;New ASEAN chief seek to finalise Code of Conduct on South China Sea, Channel News Asia, 9 January 2013; Termsak Chalermpalanupap, Toward a code of conduct for the South China Sea, The Nation, 22 January 2013,
36 37

Philippine legal move stirs South China Sea Disputes.

Bagus BT Saragih, ASEAN chief pushes RI to act on South China Sea dispute, The Jakarta Post, April 9, 2013.

17

coordinator for dialogue relations with China, also pledged to take up the matter with Beijing.38 When the ASEAN foreign ministers met in Brunei on April 11, Indonesias Foreign Minister Marty Natalegawa was quoted as telling reporters that China had requested a special meeting to discuss progress on the Code of Conduct.39 No date was set for the meeting. Other sources report that China did not specifically request a meeting on the COC.40 Foreign Secretary del Rosario, who presented an explanation for his countrys actions in seeking an Arbitral Tribunal, reaffirmed his support for a legally binding COC.41 The ASEAN foreign ministers reiterated their support for a continuing dialogue with China on a South China Sea COC. ASEAN foreign ministers also approved a draft statement on the way forward on the COC drawn up by senior officials. This statement, reportedly, will be issued by the ASEAN heads of government at the 23rd ASEAN Summit to be held from April 24-15 in Brunei.42

38

No immediate solution for South China Sea dispute: Shanmugam, Channel News Asia, 14 January 2013; Thailand seeks talks on South China Sea, Bangkok Post, 15 January 2013; Sihasak seeks South China Sea parley, Bangkok Post, 25 January 2013 and Greg Torode, Manilas lonely path over South China Sea, South China Morning Post, 11 February 2013.
39

Agence France Presse, ASEAN, China to meet on maritime code of conduct, The Economic Times, April 11, 2013.
40 41

Private comments made to the author by a reputable journalist, April 17, 2013.

Del Rosario: UN arbitration on sea row upholds rule of law, The Philippines Star, April 11, 2013 and Pia Lee-Brago, Phl to Asean: We need legally binding sea code, The Philippine Star, April 12, 2013.
42

Agence France Presse, ASEAN, China to meet on maritime code of conduct, and Asean statement on sea claims up, Manila Standard Today, April 11, 2013. No date was set for the meeting.