Background Briefing:South China Sea: UNCLOSArbitral Tribunal and RegionalVisit by China
s Foreign MinisterCarlyle A. ThayerMay 18, 2013
[client name deleted]We request your assessment of two recent developments in the South China Sea.1. The legal claim filed by the Philippines against China to the UN Arbitral Tribunal.ANSWER: The president of the International Tribunal on the Law of the Sea hasappointed a five member Arbitral Tribunal. The Tribunal must first decide on twoquestions: (1) does the Philippines have case under international law and (2) doesthe Tribunal have the authority to consider this matter? It is expected that theTribunal may be able to decide on these issues as early as July.If the Tribunal says no to either question the Philippines claim is over. This will be abig victory for China and China will become even more aggressive because it is notrestrained by international law.If the Tribunal rules in favour of the Philippines, it will proceed to hear the case. Thiscan take several years, up to four years by some estimates. During this time nothingwill restrain China from its current activities.The Arbitral Tribunal could find in favour of the Philippines on all matters. Or it couldgive a mixed decision, favouring the Philippines in some matters and China in others.Although the findings of the Arbitral Tribunal are final, without appeal and allsignatories to UNCLOS are bound to carry them out, there is no provision forenforcement. China could brazen it out, denounce the Tribunal, and continue itsaggressive behaviour.2. The current visit by China's foreign minister to four ASEAN countries - Thailand,Indonesia, Singapore, Brunei. What is China's intention?ANSWER:
China’s new foreign minister notably left out Vietnam and the Philippines.
The new minister, Wang Li, is an old China hand and he took advantage of thefavourable reaction to his appointment. Clearly the Chinese minister was attemptingto measur
e the degree of unity within ASEAN’s influential members. He had to visit
Brunei because it was Chair of ASEAN. He had to visit Indonesia because of itsimportance but also because of its proactive role in promoting a draft ASEAN Code of Conduct. The Indon
esian foreign minister has been publicly critical of China’s recent
actions so Wang Yi set out to mend fences.
Wang succeeded in getting Indonesia’s
support for an Eminent Persons Group to offer adsvice on the COC.
Wang Li’s visit to
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