PUBLISHED: SEPTEMBER 24, 2020 CSIS
On December 12, 2019, Malaysia made a partial submission to the UN Commission on the Limits of the Continental Shelf (CLCS) outlining the northern part of its purported extended continental shelf in the South China Sea. It set off a flurry of diplomatic notes from other claimants and interested parties. China lodged its objections the very same day. A few months later, the Philippines weighed in. Then China again followed by Vietnam and so on. The salvos have continued for nearly a year. To date, 12 countries have joined this back and forth via notes to the CLCS. This also coincided with a general review by Washington of the U.S. position on South China Sea claims. Secretary of State Mike Pompeo on July 13 clarified that the United States agrees with the merits of the 2016 decision in the Philippines’ arbitration case against China.
These diplomatic salvos are a crystallizing moment for the South China Sea disputes. Many parties have publicly clarified their positions on important legal issues. The only comparable shifts in public messaging around the legality of maritime claims in the South China Sea were in 2009-10 following the last round of submissions to the CLCS and 2016 after the arbitral award. In the first, countries weighed in on the validity of China’s nine-dash line and their own competing claims. In the second, states came under pressure to declare whether they supported the jurisdiction of the arbitral tribunal over China’s objections. In this latest episode, parties are finally addressing the merits of that award as well as some alternative legal theories that China has floated to explain its claims.
Nearly every state that has weighed in publicly over the last year has attacked some aspects of China’s claims. But there are still considerable differences in those opinions. Others have not gone as far as the Philippines and United States in dismissing Beijing’s arguments, though Indonesia and Vietnam have come close. The table below tracks what each country has said about important aspects of this debate. Each position is linked to an official statement by that country. Countries that have not taken a position on any of these questions, such as Brunei or Singapore, are not listed in the table. Vague statements in support of international law are not sufficient for inclusion in the table. AMTI will seek to keep this table constantly updated. If you think any countries or official statements are missing, please let us know by emailing AMTI@csis.org.
Positions on China’s South China Sea Claims
|Countries||China must comply with the 2016 arbitral ruling.||China’s claim to historic rights is illegal.||China illegally claims maritime zones from underwater features.||None of the Spratlys are islands entitled to an EEZ/continental shelf under UNCLOS Art. 121.3.||Offshore archipelagos cannot be enclosed by baselines or treated as a group to satisfy the conditions of Art. 121.3.||China’s claims to sovereignty over the Spratly Islands are illegal.|
1. “France, Germany and the United Kingdom also emphasise the specific and exhaustive conditions set forth in the Convention for the application of the regime of islands to naturally formed land features. Land building activities or other forms of artificial transformation cannot change the classification of a feature under UNCLOS.”
2. Immediately after the arbitral award, Indian officials cited New Delhi’s own experience as evidence that states should comply with rulings. The connection was intentionally hard to miss. “Like several ASEAN countries, India too has respected the decision of the International Tribunal to resolve maritime disputes with its neighbours peacefully.”
3. Indonesia hasn’t explicitly called on China to comply, but has repeatedly cited the ruling as confirming principles of international laws with which all states must comply. E.g. “Indonesia notes that its view…has been confirmed by the Award of 12 July 2016…Indonesia has consistently called for the full compliance toward international law, including UNCLOS 1982.”
4. Indonesian statements since at least 2009 have all strongly suggested that maritime claims from the Spratlys can only be made from each feature individually. Its recent note verbale indirectly references UNCLOS rules for drawing baselines to rocks/low-tide elevations if they are close to shore or part of an archipelagic state. Indonesia points out that neither condition applies to the Spratlys: “Allowing the use of uninhabited rocks, reefs and atolls isolated from the mainland and in the middle of the high sea as a basepoint to generate maritime space concerns the fundamental principles of the Convention and encroaches the legitimate interest of the global community.”
5. “Viet Nam reaffirms its consistent position regarding this arbitration as fully reflected in the Statement of the Ministry of Foreign Affairs of Viet Nam transmitted to the Tribunal on 05 December 2014.” That 2014 statement recognized the tribunal’s jurisdiction and the Philippines’ right to arbitration.
6. “The maritime entitlement of each high-tide feature in the Hoang Sa Islands and the Truong Sa Islands shall be determined in accordance with Article 121(3) of UNCLOS” In 2014, Vietnam’s statement to the Philippines v China arbitral tribunal agreed that none of the features occupied by China were islands under Art. 121.3 (though it didn’t touch on the status of other features).