Thayer The Philippines' Claim to the UNCLOS Arbitral Tribunal

7/30/2019 Thayer The Philippines' Claim to the UNCLOS Arbitral Tribunal

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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


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Chinas 2009nine-dash U-

shaped line

laying claim to

historic waters

Chinas Expansionism


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January 1974 China Seizes Crescent Group

Paracels


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Sansha raised

to prefecture-

level with

continuing

responsibility

over Paracel

Islands,

Macclesfield

Bank and the

Spratly Islands


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Woody Island/Yongxing (China)


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Spratly Islands


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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


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Physical Occupation

Country Features Occupied

Vietnam 21-26

Philippines 8-10

China 7-8

Malaysia 5-7

Taiwan 1-2

Brunei 0


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Mischief Reef (China) 1995, 2005, 2012

China occupied Mischief Reef late 1994/early 1995

Scarborough Shoal (Philippines))

China and the Philippines


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The Philippines Legal Action

UNCLOS settlement of disputes by

peaceful means

January 22, 2013 Notification andStatement of Claim

Legal challenge to Chinas 9-dash line

China rejects Philippine Claim


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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


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High Seas

Jurisdiction

over resources

in water

column andsea bed

Innocent

passage


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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


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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


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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


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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


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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?

Documents

Thayer The Philippines' Claim to the UNCLOS Arbitral Tribunal