Background Briefing:
China’s Strategy Towards the
Arbitral Tribunal Findings
Carlyle A. Thayer
June 20, 2016
[client name deleted]
Q1. What will China say and do once the Permanent Court of Arbitration (PCA)
announces its final verdict, supposedly in favor of Philippines? What strategy will
China adopt in the South China Sea in the short, mid and long-term?
ANSWER: China will set in motion a propaganda campaign to denounce the PCA’s
ruling as illegal and announce that it will not comply with the Arbitral Tribunal’s
findings. In the short-term China will launch an international campaign to mobilize as
many supporters as possible to support China’s stance against compulsory dispute
settlement. China will approach Rodrigo Duterte the new president of the
Philippines to entice him into bilateral negotiations and thus attempt to undermine
the Arbitral Tribunal’s findings. China may even instigate a vote in the UN General
Assembly according to recent reports.
In the medium term China will continue to consolidate its civil infrastructure in the
South China Sea to demonstrate that it is in effective administrative control over the
Spratlys.
In the longer-term China will take steps to gradually increase the militarization of the
Spratlys. China will test the new U.S. Administration. In both the short and medium
term China will continue to do its best to keep ASEAN divided and to cow members
who would stand up to China.
Q2. Do you believe that there are 60 countries/states who agreed to support China’s
side upon the PCA’s final verdict as China recently claimed? Why?
ANSWER: The Center for Strategic and International Studies’ Asia Maritime
Transparency Initiative (AMTI) has opened a webpage that keeps track of China’s
claims of support against the actual public record of the countries that China claims
supports its position. China’s claim that it has received the support of 60 countries
for its South China Sea policy is highly questionable. The AMTI report identified 50
countries that appear to be on China’s list, of which eight have confirmed their
support, 39 have remained publicly silent or have issued vague statements, and
three have denied China’s claim of support (including Cambodia).
Q3. What should ASEAN do when the PCA announces its final verdict?
Thayer Consultancy
ABN # 65 648 097 123
2
ANSWER: ASEAN members are still trying to reach consensus on a joint statement to
be issued after the Arbitral Tribunal releases its findings. ASEAN must call on China to
respect this decision and comply with international law. UNCLOS states that the
decision of its tribunal must be carried out immediately and cannot be appealed.
ASEAN should mobilize the support of its dialogue partners as well as other
multilateral institutions such as the EU, Group of 7 etc. to support its position. And
ASEAN should strongly urge that there be no changes to the status quo and that the
findings of the Arbitral Tribunal should form the core of a Code of Conduct in the
South China Sea.
Suggested citation: Carlyle A. Thayer, “China’s Strategy Towards the Arbitral Tribunal
Findings,” Thayer Consultancy Background Brief, June 20, 2016. All background briefs
are posted on Scribd.com (search for Thayer). To remove yourself from the mailing
list type UNSUBSCRIBE in the Subject heading and hit the Reply key.
Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
Background Briefing:
China Actions in the South
China Sea Before and After the
Arbitral Tribunal Ruling
Carlyle A. Thayer
June 24, 2016
[client name deleted]
Q1. China has recently announced that 60 countries in the world have supported its
stance on South China Sea issues, protesting the upcoming ruling of the Permanent
Court of Arbitration (PCA), though many countries have objected to being listed by
China. Why did China announce the list of 60 countries?
ANSWER: It is not clear that China has officially released a list of sixty countries that
support its position on the South China Sea. Journalists have raised this number at
press conferences held by China’s Ministry of Foreign Affairs and the official
spokesperson has played coy in his/her answers to give the impression that as many
as sixty countries support China.
China is exercising double standards. It opposes the internationalization of the
South China Sea issue and routinely dismisses and criticizes statements of outside
powers. Now China is enlisting outside countries to support its position. The
difference between the two groups is that the former are countries that have a
direct interest in the safety and security of the South China Sea because they are
major maritime powers. The latter are largely African countries and some like
Lesotho are completely landlocked. China has also put words in some countries
mouths. In March, for example, Chinese Foreign Minister Wang Yi visited Brunei,
Laos and Cambodia and Chinese media claimed an important consensus had been
reached. At that time the Cambodian government spokesperson denied the Chinese
claim.
The Center for Strategic and International Studies in Washington, D.C. is now hosting
a special report on the website of its Asia Maritime Transparency Initiative (AMTI)
that tracks where countries stand. As of June 24 the AMTI states, “we have identified
57 countries that appear to be included in China’s list of supporters. Of those, 8 have
publicly confirmed their support, 4 have denied Beijing’s claim of support and 45
have remained publicly silent or have issued statements that are considerably vaguer
than indicated by China. In contrast, 11 countries plus the European Union have said
that the arbitral award will be legally binding and have called on both China and the
Philippines to respect it.”
See: http://amti.csis.org/arbitration-support-tracker/
Thayer Consultancy
ABN # 65 648 097 123
2
Q2. China has reiterated that it does not care, will not accept the PCA’s ruling. But
China has recently persuaded many countries not to accept the ruling. What is the
motivation for China’s move? Is China concerned about the negative impact of the
ruling?
ANSWER: China is attempting to shape international opinion once the Arbitral
Tribunal makes its decision. China knows it will face immense international pressure
by important countries to respect the decision of the Arbitral Tribunal. China wants
to drown out criticism my leading a chorus of naysayers. China wants to give the
impression that the Arbitral Tribunal is illegal and is being used for political purposes
against China. China’s actions are consistent with its policy of “three warfares” -
psychological warfare, information warfare and legal warfare. China wants to
distract and divert world attention from a legally binding judicial decision that it is
obligated to carry out as a signatory to the United Nations Convention on the Law of
the Sea (UNCLOS).
Q3 Can you offer an assessment of the likely impact of the PCA’s ruling on China in
various fields, especially on China’s future policies and solutions to South China Sea
issues?
ANSWER: It is not possible to answer this question in a few words because of the
complexity of the legal issues and because the determination of the Arbitral Tribunal
is unprecedented, no other country has taken the legal path pursued by the
Philippines. The Arbitral Tribunal cannot and will not rule on questions of
sovereignty, that is who owns what island and what rock. The Arbitral Tribunal
cannot rule on maritime delimitation where maritime boundaries are disputed.
The Arbitral Tribunal will likely rule that the principle “the land dominates the sea” is
the sole basis for determining maritime entitlements to a territorial sea, contiguous
zone, Exclusive Economic Zone and a continental shelf. This will benefit Vietnam
because there are no disputed land features (islands or rocks) within its 200 nautical
mile (nm) Exclusive Economic Zone (EEZ).
The Arbitral Tribunal is likely to identify the nature of features in the South China Sea
and their maritime entitlements. These features include islands and rocks and low
tide elevations. Islands and rocks are entitled to a 12 nm territorial sea; islands are
also entitled to a 200 nm EEZ. Low tide elevations are not entitled to any maritime
zone. The Arbitral Tribunal is also likely to declare that artificial islands built on a low
tide elevation are not entitled to a maritime zone.
The Arbitral Tribunal is likely to determine that Scarborough Shoal is a rock.
The Arbitral Tribunal may also find that claims to “historic rights” of the type
advanced by China are not supported by UNCLOS.
The most difficult issue is whether the Arbitral Tribunal will rule on the status of Itu
Aba occupied by Taiwan. The Philippines claimed that all 49 land features in the
South China Sea, including Itu Aba, were not islands but either rocks or low tide
elevations. If Itu Aba was declared to be an island it would be entitled to a 200 nm
EEZ. This would overlap with land features occupied by Vietnam and the Philippines.
Vietnam and the Philippines would retain the right to fish within 12 nm of their
features but not outside their territorial sea without consent from Taiwan.
3
UNCLOS prohibits the Arbitral Tribunal from ruling on the actions of maritime law
enforcement agencies within EEZs. This could have the effect of no ruling on
complaints by the Philippines that its fishermen are prevented from fishing in the
South China Sea and that the Philippines’ military ships and aircraft are interfered
with in the South China Sea by both Chinese fishermen and Chinese Coast Guard
vessels.
Finally the Arbitral Tribunal is likely to rule on the responsibility of signatories to
UNCLOS to preserve and protect the marine environment. This could result in a
finding that China’s construction of artificial islands violates this obligation. What is
unknown is what measures the Arbitral Tribunal will require China to undertake to
protect and preserve the marine environment.
4. What does China expect the United States and other relevant countries to do after
the PCA announced its finding? What policies and measures will China take to
minimize the PCA ruling on the country?
ANSWER: The United States has certainly signaled that it may be prepared to use its
military forces to prevent China from commencing construction of an artificial island
on Scarborough Shoal. The U.S. has stationed ground attack and electronic warfare
aircraft in the Philippines. Two U.S. aircraft carrier task force groups are currently
sailing in the South China Sea. China is very cautious in dealing with the U.S. military
and is likely to avoid a direct confrontation. China, however, is a master at
confronting military power indirectly through fishermen, civilian law enforcement
ships and commercial vessels as Vietnam experienced during the stand-off over HD
981.
China will launch a number of political-diplomatic initiatives in addition to its
expected propaganda barrage. China will apply pressure on the new government in
the Philippines to enter into bilateral discussions. China will revive its proposal for
joint development. And China will point out that may issues remain in dispute after
the Arbitral Tribunal’s decision and press claimant states to enter into bilateral
discussions. China will attempt to undertake action to undermine any regional united
front by ASEAN and dialogue partners (US, Japan, South Korea, Australia, New
Zealand and India). China will play on ASEAN’s proclivity not to take sides.
China will also step up building civilian infrastructure on its artificial islands to
consolidate its control and lay the groundwork for asserting that its sovereignty
because it has effective occupation and administrative control of these features.
Suggested citation: Carlyle A. Thayer, “China Actions in the South China Sea Before
and After the Arbitral Tribunal Ruling,” Thayer Consultancy Background Brief, June
24, 2016. All background briefs are posted on Scribd.com (search for Thayer). To
remove yourself from the mailing list type UNSUBSCRIBE in the Subject heading and
hit the Reply key.
Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
4
Background Briefing:
South China Sea: Possible
Outcomes of the Arbitral
Tribunal
Carlyle A. Thayer
June 21, 2016
[client name deleted]
According to The Manila Times on June 15, the Permanent Court of Arbitration (PCA)
ruling on the South China Sea will be known on July 7. It seems that the ruling is
imminent.
Analysts had speculated a lot on the reactions of China and the Philippines, but not
enough on the reactions of Vietnam. We are preparing a report on “the way Hanoi
can react to the ruling”. We request your assessment of the following issues”
1/ What would be the possible scenarios created by the ruling?
ANSWER: In October last year the Arbitral Tribunal ruled that it has jurisdiction on
seven of the fifteen disputes submitted by the Philippines and it is now deciding
whether it has jurisdiction on the other disputes as it considers the merits of the
case.
By making its decision last year the Arbitral Tribunal made clear that both the
Philippines and China are signatories to UNCLOS and compulsory dispute settlement
forms an integral part of UNCLOS. Both states accepted this obligation when they
became a party to UNCLOS. And the Arbitral Tribunal ruled that it – not China or
another party – had the legal authority to decide if the Tribunal had jurisdiction over
disputes put before it. The Arbitral Tribunal further ruled that all signatories were
“not free to pick and choose the portions of the Convention [UNCLOS] they wish to
accept or reject.”
The Arbitral Tribunal could rule on four sets of issues: (1) the status and entitlements
under UNCLOS of the features occupied by China; (2) protection and preservation of
the marine environment at Scarborough Shoal and Mischief Reef; (3) interference
with Filipino fishermen and military aircraft and vessels; and (4) the legal status of
China’s “historic rights” and its nine dash line.
If the Arbitral Tribunal rules on the status of features in the South China Sea it will
declare that some are low tide elevations, some are rocks and some are islands. This
will be the most important outcome of this case. Low tide elevations are not entitled
to any maritime zone or airspace . Rocks and islands are entitled to a 12 nautical mile
territorial sea, additionally islands are entitled to a 200 nm exclusive economic zone.
Thayer Consultancy
ABN # 65 648 097 123
2
This determination will clarify the maritime zones each feature is entitled to and this
could be a step towards resolving overlapping claims.
If the Arbitral Tribunal rules that China has violated its responsibilities under UNCLOS
regarding protecting and preserving the marine environment around Scarborough
Shoal and Mischief Reef this would put China on the back foot and create a cause
célèbre for other states to criticize any further Chinese construction activities.
The Arbitral Tribunal could rule that China was unlawfully interfering with the
traditional right of Filipino fishermen to fish in Philippine waters, particularly around
Scarborough Shoal, and also that China was unlawfully interfering with the transit of
Filipino naval ships and aircraft. This would provide a strong basis for the United
States and other states to back the Philippines.
Finally the Arbitral Tribunal could declare that China’s nine dash line has no basis in
international law. This involves a determination of China’s claim to “historic rights”
and whether or not such a claim was extinguished when China ratified UNCLOS
Vietnam would benefit the most because there are no disputed islands within its 200
nm EEZ and the ruling by the Arbitral Tribunal would eliminate overlapping areas
claimed by China.
2/ If the ruling is not in favour of the Philippines, what could Vietnam do?
ANSWER: The Arbitral Tribunal is unlikely to make any single ruling because a variety
of legal issues have been raised. These legal issues have been separated into areas
that the Arbitral Tribunal has decided it has jurisdiction and other issues that will be
decided on the merits of the case. Win, lose or draw the Philippines will have
demonstrated that all signatories to UNCLOS are bound by its compulsory dispute
settlement mechanisms.
The most important decision to affect the Philippines is whether the Arbitral Tribunal
will declare Itu Aba an island entitled to a 200 nm EEZ. This would create overlapping
maritime zones. The Tribunal has no jurisdiction over maritime law enforcement
activities related to fisheries or marine scientific research in these areas. China could
continue to harass Filipino and Vietnamese fishing vessels in this area even though
Itu Aba is occupied by Taiwan.
3/ In the case that the ruling is favorable to Manila, what would be the impact on
Vietnam?
ANSWER: Vietnam would come under pressure to bring its base lines into conformity
with international law such as the “pregnant lady” base line in the southeast east.
Vietnam would also come under pressure to declare which of its features are low
tide elevations, rocks or islands.
4/ How can Vietnam react as Hanoi and Manila have the same claims on many
features in the Spratlys?
ANSWER: Since Vietnam and the Philippines have overlapping claims to some of the
features, an Arbitral Tribunal ruling could have the effect of putting certain
Vietnamese features in the same category as Chinese occupied features. Both
countries would be bound by UNCLOS to enter into negotiations to resolve this
3
dispute or failing that to undertake “measures of a practical nature” to avoid
conflict.
5/ If the PCA says that Itu Aba is just a rock, not an island, do you think that Vietnam
will be in a difficult position?
ANSWER: Vietnam would benefit most if Itu Aba was declared a rock. There are no
disputed islands in Vietnam’s EEZ and Vietnam would be entitled to uncontested
sovereign jurisdiction over its EEZ.
If Itu Aba was a rock it would have a limited maritime zone (12 nm not 200 nm) and
thus reduce the maritime area in dispute Taiwan and other claimants.
6/ Do you think that Hanoi must review its own Law of the Sea to be in conformity
with the ruling?
ANSWER: Vietnam would have to review how it implements its own Law of the Sea
with respect to its obligations as a signatory to UNCLOS, such as bringing its own
base lines into accord with international law and not extending the jurisdiction
around low tide elevations. Depending on if the Arbitral Tribunal rules on military
activities in an EEZ, Vietnam may have to review its requirement for advance
notification for foreign vessels entering its EEZ.
7/ As some analysts had said, if the PCA ruling goes against China, it will likely
encourage other rival claimants to follow the example of the Philippines. Do you
think that Vietnam will take its claims to the PCA?
ANSWER: If China continues to disregard its requirements to comply with the
decisions of the Arbitral Tribunal and continues to harass Vietnamese fishermen and
supply vessels in the South China Sea, Vietnam and other states like Indonesia and
Malaysia could instigate legal proceedings. But such a decision will be made by each
state on the basis of domestic political considerations as well as relations with China.
In the past Vietnamese leaders have argued that taking legal action should be the
last resort. Chinese behavior after the Arbitral Tribunal’s decisions will be the
determining factor.
Suggested citation: Carlyle A. Thayer, “South China Sea: Possible Outcomes of the
Arbitral Tribunal,” Thayer Consultancy Background Brief, June 21, 2016. All
background briefs are posted on Scribd.com (search for Thayer). To remove yourself
from the mailing list type UNSUBSCRIBE in the Subject heading and hit the Reply key.
Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
China’s Strategy Towards the
Arbitral Tribunal Findings
Carlyle A. Thayer
June 20, 2016
[client name deleted]
Q1. What will China say and do once the Permanent Court of Arbitration (PCA)
announces its final verdict, supposedly in favor of Philippines? What strategy will
China adopt in the South China Sea in the short, mid and long-term?
ANSWER: China will set in motion a propaganda campaign to denounce the PCA’s
ruling as illegal and announce that it will not comply with the Arbitral Tribunal’s
findings. In the short-term China will launch an international campaign to mobilize as
many supporters as possible to support China’s stance against compulsory dispute
settlement. China will approach Rodrigo Duterte the new president of the
Philippines to entice him into bilateral negotiations and thus attempt to undermine
the Arbitral Tribunal’s findings. China may even instigate a vote in the UN General
Assembly according to recent reports.
In the medium term China will continue to consolidate its civil infrastructure in the
South China Sea to demonstrate that it is in effective administrative control over the
Spratlys.
In the longer-term China will take steps to gradually increase the militarization of the
Spratlys. China will test the new U.S. Administration. In both the short and medium
term China will continue to do its best to keep ASEAN divided and to cow members
who would stand up to China.
Q2. Do you believe that there are 60 countries/states who agreed to support China’s
side upon the PCA’s final verdict as China recently claimed? Why?
ANSWER: The Center for Strategic and International Studies’ Asia Maritime
Transparency Initiative (AMTI) has opened a webpage that keeps track of China’s
claims of support against the actual public record of the countries that China claims
supports its position. China’s claim that it has received the support of 60 countries
for its South China Sea policy is highly questionable. The AMTI report identified 50
countries that appear to be on China’s list, of which eight have confirmed their
support, 39 have remained publicly silent or have issued vague statements, and
three have denied China’s claim of support (including Cambodia).
Q3. What should ASEAN do when the PCA announces its final verdict?
Thayer Consultancy
ABN # 65 648 097 123
2
ANSWER: ASEAN members are still trying to reach consensus on a joint statement to
be issued after the Arbitral Tribunal releases its findings. ASEAN must call on China to
respect this decision and comply with international law. UNCLOS states that the
decision of its tribunal must be carried out immediately and cannot be appealed.
ASEAN should mobilize the support of its dialogue partners as well as other
multilateral institutions such as the EU, Group of 7 etc. to support its position. And
ASEAN should strongly urge that there be no changes to the status quo and that the
findings of the Arbitral Tribunal should form the core of a Code of Conduct in the
South China Sea.
Suggested citation: Carlyle A. Thayer, “China’s Strategy Towards the Arbitral Tribunal
Findings,” Thayer Consultancy Background Brief, June 20, 2016. All background briefs
are posted on Scribd.com (search for Thayer). To remove yourself from the mailing
list type UNSUBSCRIBE in the Subject heading and hit the Reply key.
Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
Background Briefing:
China Actions in the South
China Sea Before and After the
Arbitral Tribunal Ruling
Carlyle A. Thayer
June 24, 2016
[client name deleted]
Q1. China has recently announced that 60 countries in the world have supported its
stance on South China Sea issues, protesting the upcoming ruling of the Permanent
Court of Arbitration (PCA), though many countries have objected to being listed by
China. Why did China announce the list of 60 countries?
ANSWER: It is not clear that China has officially released a list of sixty countries that
support its position on the South China Sea. Journalists have raised this number at
press conferences held by China’s Ministry of Foreign Affairs and the official
spokesperson has played coy in his/her answers to give the impression that as many
as sixty countries support China.
China is exercising double standards. It opposes the internationalization of the
South China Sea issue and routinely dismisses and criticizes statements of outside
powers. Now China is enlisting outside countries to support its position. The
difference between the two groups is that the former are countries that have a
direct interest in the safety and security of the South China Sea because they are
major maritime powers. The latter are largely African countries and some like
Lesotho are completely landlocked. China has also put words in some countries
mouths. In March, for example, Chinese Foreign Minister Wang Yi visited Brunei,
Laos and Cambodia and Chinese media claimed an important consensus had been
reached. At that time the Cambodian government spokesperson denied the Chinese
claim.
The Center for Strategic and International Studies in Washington, D.C. is now hosting
a special report on the website of its Asia Maritime Transparency Initiative (AMTI)
that tracks where countries stand. As of June 24 the AMTI states, “we have identified
57 countries that appear to be included in China’s list of supporters. Of those, 8 have
publicly confirmed their support, 4 have denied Beijing’s claim of support and 45
have remained publicly silent or have issued statements that are considerably vaguer
than indicated by China. In contrast, 11 countries plus the European Union have said
that the arbitral award will be legally binding and have called on both China and the
Philippines to respect it.”
See: http://amti.csis.org/arbitration-support-tracker/
Thayer Consultancy
ABN # 65 648 097 123
2
Q2. China has reiterated that it does not care, will not accept the PCA’s ruling. But
China has recently persuaded many countries not to accept the ruling. What is the
motivation for China’s move? Is China concerned about the negative impact of the
ruling?
ANSWER: China is attempting to shape international opinion once the Arbitral
Tribunal makes its decision. China knows it will face immense international pressure
by important countries to respect the decision of the Arbitral Tribunal. China wants
to drown out criticism my leading a chorus of naysayers. China wants to give the
impression that the Arbitral Tribunal is illegal and is being used for political purposes
against China. China’s actions are consistent with its policy of “three warfares” -
psychological warfare, information warfare and legal warfare. China wants to
distract and divert world attention from a legally binding judicial decision that it is
obligated to carry out as a signatory to the United Nations Convention on the Law of
the Sea (UNCLOS).
Q3 Can you offer an assessment of the likely impact of the PCA’s ruling on China in
various fields, especially on China’s future policies and solutions to South China Sea
issues?
ANSWER: It is not possible to answer this question in a few words because of the
complexity of the legal issues and because the determination of the Arbitral Tribunal
is unprecedented, no other country has taken the legal path pursued by the
Philippines. The Arbitral Tribunal cannot and will not rule on questions of
sovereignty, that is who owns what island and what rock. The Arbitral Tribunal
cannot rule on maritime delimitation where maritime boundaries are disputed.
The Arbitral Tribunal will likely rule that the principle “the land dominates the sea” is
the sole basis for determining maritime entitlements to a territorial sea, contiguous
zone, Exclusive Economic Zone and a continental shelf. This will benefit Vietnam
because there are no disputed land features (islands or rocks) within its 200 nautical
mile (nm) Exclusive Economic Zone (EEZ).
The Arbitral Tribunal is likely to identify the nature of features in the South China Sea
and their maritime entitlements. These features include islands and rocks and low
tide elevations. Islands and rocks are entitled to a 12 nm territorial sea; islands are
also entitled to a 200 nm EEZ. Low tide elevations are not entitled to any maritime
zone. The Arbitral Tribunal is also likely to declare that artificial islands built on a low
tide elevation are not entitled to a maritime zone.
The Arbitral Tribunal is likely to determine that Scarborough Shoal is a rock.
The Arbitral Tribunal may also find that claims to “historic rights” of the type
advanced by China are not supported by UNCLOS.
The most difficult issue is whether the Arbitral Tribunal will rule on the status of Itu
Aba occupied by Taiwan. The Philippines claimed that all 49 land features in the
South China Sea, including Itu Aba, were not islands but either rocks or low tide
elevations. If Itu Aba was declared to be an island it would be entitled to a 200 nm
EEZ. This would overlap with land features occupied by Vietnam and the Philippines.
Vietnam and the Philippines would retain the right to fish within 12 nm of their
features but not outside their territorial sea without consent from Taiwan.
3
UNCLOS prohibits the Arbitral Tribunal from ruling on the actions of maritime law
enforcement agencies within EEZs. This could have the effect of no ruling on
complaints by the Philippines that its fishermen are prevented from fishing in the
South China Sea and that the Philippines’ military ships and aircraft are interfered
with in the South China Sea by both Chinese fishermen and Chinese Coast Guard
vessels.
Finally the Arbitral Tribunal is likely to rule on the responsibility of signatories to
UNCLOS to preserve and protect the marine environment. This could result in a
finding that China’s construction of artificial islands violates this obligation. What is
unknown is what measures the Arbitral Tribunal will require China to undertake to
protect and preserve the marine environment.
4. What does China expect the United States and other relevant countries to do after
the PCA announced its finding? What policies and measures will China take to
minimize the PCA ruling on the country?
ANSWER: The United States has certainly signaled that it may be prepared to use its
military forces to prevent China from commencing construction of an artificial island
on Scarborough Shoal. The U.S. has stationed ground attack and electronic warfare
aircraft in the Philippines. Two U.S. aircraft carrier task force groups are currently
sailing in the South China Sea. China is very cautious in dealing with the U.S. military
and is likely to avoid a direct confrontation. China, however, is a master at
confronting military power indirectly through fishermen, civilian law enforcement
ships and commercial vessels as Vietnam experienced during the stand-off over HD
981.
China will launch a number of political-diplomatic initiatives in addition to its
expected propaganda barrage. China will apply pressure on the new government in
the Philippines to enter into bilateral discussions. China will revive its proposal for
joint development. And China will point out that may issues remain in dispute after
the Arbitral Tribunal’s decision and press claimant states to enter into bilateral
discussions. China will attempt to undertake action to undermine any regional united
front by ASEAN and dialogue partners (US, Japan, South Korea, Australia, New
Zealand and India). China will play on ASEAN’s proclivity not to take sides.
China will also step up building civilian infrastructure on its artificial islands to
consolidate its control and lay the groundwork for asserting that its sovereignty
because it has effective occupation and administrative control of these features.
Suggested citation: Carlyle A. Thayer, “China Actions in the South China Sea Before
and After the Arbitral Tribunal Ruling,” Thayer Consultancy Background Brief, June
24, 2016. All background briefs are posted on Scribd.com (search for Thayer). To
remove yourself from the mailing list type UNSUBSCRIBE in the Subject heading and
hit the Reply key.
Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
4
Background Briefing:
South China Sea: Possible
Outcomes of the Arbitral
Tribunal
Carlyle A. Thayer
June 21, 2016
[client name deleted]
According to The Manila Times on June 15, the Permanent Court of Arbitration (PCA)
ruling on the South China Sea will be known on July 7. It seems that the ruling is
imminent.
Analysts had speculated a lot on the reactions of China and the Philippines, but not
enough on the reactions of Vietnam. We are preparing a report on “the way Hanoi
can react to the ruling”. We request your assessment of the following issues”
1/ What would be the possible scenarios created by the ruling?
ANSWER: In October last year the Arbitral Tribunal ruled that it has jurisdiction on
seven of the fifteen disputes submitted by the Philippines and it is now deciding
whether it has jurisdiction on the other disputes as it considers the merits of the
case.
By making its decision last year the Arbitral Tribunal made clear that both the
Philippines and China are signatories to UNCLOS and compulsory dispute settlement
forms an integral part of UNCLOS. Both states accepted this obligation when they
became a party to UNCLOS. And the Arbitral Tribunal ruled that it – not China or
another party – had the legal authority to decide if the Tribunal had jurisdiction over
disputes put before it. The Arbitral Tribunal further ruled that all signatories were
“not free to pick and choose the portions of the Convention [UNCLOS] they wish to
accept or reject.”
The Arbitral Tribunal could rule on four sets of issues: (1) the status and entitlements
under UNCLOS of the features occupied by China; (2) protection and preservation of
the marine environment at Scarborough Shoal and Mischief Reef; (3) interference
with Filipino fishermen and military aircraft and vessels; and (4) the legal status of
China’s “historic rights” and its nine dash line.
If the Arbitral Tribunal rules on the status of features in the South China Sea it will
declare that some are low tide elevations, some are rocks and some are islands. This
will be the most important outcome of this case. Low tide elevations are not entitled
to any maritime zone or airspace . Rocks and islands are entitled to a 12 nautical mile
territorial sea, additionally islands are entitled to a 200 nm exclusive economic zone.
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This determination will clarify the maritime zones each feature is entitled to and this
could be a step towards resolving overlapping claims.
If the Arbitral Tribunal rules that China has violated its responsibilities under UNCLOS
regarding protecting and preserving the marine environment around Scarborough
Shoal and Mischief Reef this would put China on the back foot and create a cause
célèbre for other states to criticize any further Chinese construction activities.
The Arbitral Tribunal could rule that China was unlawfully interfering with the
traditional right of Filipino fishermen to fish in Philippine waters, particularly around
Scarborough Shoal, and also that China was unlawfully interfering with the transit of
Filipino naval ships and aircraft. This would provide a strong basis for the United
States and other states to back the Philippines.
Finally the Arbitral Tribunal could declare that China’s nine dash line has no basis in
international law. This involves a determination of China’s claim to “historic rights”
and whether or not such a claim was extinguished when China ratified UNCLOS
Vietnam would benefit the most because there are no disputed islands within its 200
nm EEZ and the ruling by the Arbitral Tribunal would eliminate overlapping areas
claimed by China.
2/ If the ruling is not in favour of the Philippines, what could Vietnam do?
ANSWER: The Arbitral Tribunal is unlikely to make any single ruling because a variety
of legal issues have been raised. These legal issues have been separated into areas
that the Arbitral Tribunal has decided it has jurisdiction and other issues that will be
decided on the merits of the case. Win, lose or draw the Philippines will have
demonstrated that all signatories to UNCLOS are bound by its compulsory dispute
settlement mechanisms.
The most important decision to affect the Philippines is whether the Arbitral Tribunal
will declare Itu Aba an island entitled to a 200 nm EEZ. This would create overlapping
maritime zones. The Tribunal has no jurisdiction over maritime law enforcement
activities related to fisheries or marine scientific research in these areas. China could
continue to harass Filipino and Vietnamese fishing vessels in this area even though
Itu Aba is occupied by Taiwan.
3/ In the case that the ruling is favorable to Manila, what would be the impact on
Vietnam?
ANSWER: Vietnam would come under pressure to bring its base lines into conformity
with international law such as the “pregnant lady” base line in the southeast east.
Vietnam would also come under pressure to declare which of its features are low
tide elevations, rocks or islands.
4/ How can Vietnam react as Hanoi and Manila have the same claims on many
features in the Spratlys?
ANSWER: Since Vietnam and the Philippines have overlapping claims to some of the
features, an Arbitral Tribunal ruling could have the effect of putting certain
Vietnamese features in the same category as Chinese occupied features. Both
countries would be bound by UNCLOS to enter into negotiations to resolve this
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dispute or failing that to undertake “measures of a practical nature” to avoid
conflict.
5/ If the PCA says that Itu Aba is just a rock, not an island, do you think that Vietnam
will be in a difficult position?
ANSWER: Vietnam would benefit most if Itu Aba was declared a rock. There are no
disputed islands in Vietnam’s EEZ and Vietnam would be entitled to uncontested
sovereign jurisdiction over its EEZ.
If Itu Aba was a rock it would have a limited maritime zone (12 nm not 200 nm) and
thus reduce the maritime area in dispute Taiwan and other claimants.
6/ Do you think that Hanoi must review its own Law of the Sea to be in conformity
with the ruling?
ANSWER: Vietnam would have to review how it implements its own Law of the Sea
with respect to its obligations as a signatory to UNCLOS, such as bringing its own
base lines into accord with international law and not extending the jurisdiction
around low tide elevations. Depending on if the Arbitral Tribunal rules on military
activities in an EEZ, Vietnam may have to review its requirement for advance
notification for foreign vessels entering its EEZ.
7/ As some analysts had said, if the PCA ruling goes against China, it will likely
encourage other rival claimants to follow the example of the Philippines. Do you
think that Vietnam will take its claims to the PCA?
ANSWER: If China continues to disregard its requirements to comply with the
decisions of the Arbitral Tribunal and continues to harass Vietnamese fishermen and
supply vessels in the South China Sea, Vietnam and other states like Indonesia and
Malaysia could instigate legal proceedings. But such a decision will be made by each
state on the basis of domestic political considerations as well as relations with China.
In the past Vietnamese leaders have argued that taking legal action should be the
last resort. Chinese behavior after the Arbitral Tribunal’s decisions will be the
determining factor.
Suggested citation: Carlyle A. Thayer, “South China Sea: Possible Outcomes of the
Arbitral Tribunal,” Thayer Consultancy Background Brief, June 21, 2016. All
background briefs are posted on Scribd.com (search for Thayer). To remove yourself
from the mailing list type UNSUBSCRIBE in the Subject heading and hit the Reply key.
Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
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