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Thayer ASEAN Discusses Code of Conduct in South China Sea

Thayer ASEAN Discusses Code of Conduct in South China Sea

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Published by Carlyle Alan Thayer
An appraisal of whether ASEAN discusions on a Code of Conduct in the South China Sea would contribute to a resolution of the standoff at Scarborough Shoal between China and the Philippines.
An appraisal of whether ASEAN discusions on a Code of Conduct in the South China Sea would contribute to a resolution of the standoff at Scarborough Shoal between China and the Philippines.

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Categories:Types, Research, Law
Published by: Carlyle Alan Thayer on May 24, 2012
Copyright:Attribution Non-commercial

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01/09/2013

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Background Briefing:ASEAN Discusses Code of Conduct in South China SeaCarlyle A. ThayerMay 23, 2012
[client name deleted]Delegations from ASEAN countries met today in Phnom Penh to work on a Code of Conduct (and there will be more closed meetings throughout the week).My questions to you are: As ships from China and the Philippines are still facing eachother at the Scarborough Shoal as of this writing, how important is it that ASEANmembers are meeting? Is it a positive sign that could ease tensions, or should theyhave acted faster to resolve this dispute?ANSWER: The dispute between China and the Philippines is a matter of sovereigntyover territory
 –
the rocks in Scarborough Shoal. The Code of Conduct undernegotiation is a follow on to the Declaration on Conduct of Parties in the South ChinaSea (DOC), agreed in November 2002, and the Guidelines to Implement the DOC,signed in July 2011.Scarborough Shoal consists of a number of reefs and rocks. Only five rocks are abovewater at high tide. China calls Scarborough Shoal an island. International law makes adistinction between an island and a rock. An island is naturally formed and cansupport human habitation or has an economic function. Islands are entitled to a 200nautical mile Exclusive Economic Zone (EEZ). A state that controls an island hassovereign rights over the resources in the EEZ and the continental shelf.A rock is not an island. It must be above water at high tide. A rock is entitled to a 12nm territorial sea. A state has absolute jurisdiction over its territorial sea.The Philippines claims the shoal lies within
its Exclusive Economic Zone. EEZ’s reflect
the legal principle that the land dominates the sea. A state cannot claim sovereigntyover water but it can claim sovereignty over the land. EEZs are determined by a
country’s baseline drawn around its shores at l
ow tide. Sovereignty over land/islandis different from sovereign rights over the water (water column) seabed.Sovereignty disputes over land and islands can only be resolved by the two countriesconcerned. They can negotiate and reach a settlement. Or they can submit theirclaim to an international tribunal such as the International Court of Justice (ICJ) forbinding arbitration. China insists on bilateral negotiations, the Philippines refused.The Philippines wants China to agree to take the matter to the International Tribunalon Law of the Sea (ITLOS). This tribunal is set up under the United Nations
Thayer Consultancy
ABN # 65 648 097 123

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