Legal Implications of the South China Sea Award for Maritime Southeast Asia

Tara Davenport*

I. Introduction Southeast Asia, consisting of the ten Member States of the Association of Southeast Asian Nations (ASEAN),1 has always been a uniquely maritime region. Indeed, its maritime nature has been characterised as the ‘first and primary unifying factor of Southeast Asia’.2 Nine out of the ten ASEAN States are coastal States,3 with the Philippines and Indonesia being the world’s largest archipelagic States. From the 1960s, newly independent Southeast Asian States, free of their colonial heritage, wishing to have control over their ocean resources and bolstered by ongoing negotiations of the Third UN Conference on the Law of the Sea, began to make maritime claims in the waters adjacent to their coasts.4 However, the congested coastal geography characterised by the presence of ‘gulfs that penetrate deeply into the mainland, a multitude of large and small islands and wide and narrow [continental] margins’,5 meant that nearly all Southeast Asian waters were enclosed in overlapping claims of territorial seas, exclusive economic zones (EEZs) and/or continental shelves.6 These overlaps have generated ‘disputes, and even conflicts, that would not have arisen in a diffuse region such as the Southwest and Central Pacific Ocean’.7 Further, such disputes have been exacerbated by territorial sovereignty disputes over small islands.8 Despite these challenges, Southeast Asia has been described as the ‘scene of very active and innovative ocean boundary

* Researcher at the Centre for International Law and Doctoral Candidate at Yale Law School. Special Thanks to Robert Beckman, Youna Lyons and Captain J Ashley Roach for discussions on several of the issues raised in this article. All mistakes are the author’s own. 1 The ten Member States are Brunei, Cambodia, Indonesia, Malaysia, Myanmar, Laos, the Philippines, Singapore, Thailand and Vietnam. 2 Chia Lin Sien (ed), Southeast Asia Transformed: A Geography of Change (Institute for Southeast Asian Studies, 2003), 1. 3 Laos is the only land-locked State. 4 See Table 2 on ‘Relevant Maritime Jurisdictional Zones Declared by the Southeast Asian Coastal States,’ in Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in Southeast Asia (Oxford University Press, 1987) 11. 5 Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (Martinus Nijhoff Publishers, 2nd ed, 2005), 429. 6 Sam Bateman et al, ‘Good Order at Sea in Southeast Asia’ (RSIS Policy Paper, April 2009) 8. 7 Douglas Johnston and Mark Valencia, Pacific Ocean Boundary Problems: Status and Solutions (Martinus Nijhoff Publishers, 1991) 50. 8 Ibid 51.

65 66 Australian Year Book of International Law Vol 34 diplomacy’,9 and a significant number of maritime boundary delimitation agreements have been concluded.10 A persistent source of tension and conflict in Southeast Asia is the complex sovereignty and maritime disputes that exist in the South China Sea. The South China Sea, the largest sea in Southeast Asia, is critically important to Southeast Asian States. Six ASEAN States border the South China Sea: the four Southeast Asian Claimants (Brunei, Malaysia, the Philippines and Vietnam) and two non- Claimants (Singapore and Indonesia). The South China Sea hosts a series of Sea Lines of Communication (SLOCS) between the Indian and Pacific Oceans that are economically and strategically important to Southeast Asia, as well as the economies of Northeast Asia, the United States and Europe.11 It is also said to contain a considerable amount of oil and gas resources, as well as extensive fisheries, much of which falls within the EEZs of Southeast Asian States.12 Thus, the South China Sea disputes, which involve the four Southeast Asian Claimants and its bigger, more powerful neighbour China, not only pose a risk to the effective exploitation and conservation of resources but also to regional peace and security. China’s increasing assertiveness in areas which fell within the EEZs of Southeast Asian States, particularly in relation to Scarborough Shoal, prompted the Philippines’ initiation of arbitral proceedings under Annex VII of the UN Convention of the Law of the Sea (UNCLOS) on 22 January 2013 (the Tribunal).13 The South China Sea Arbitration has significant implications, not only for the Philippines but also for the other Southeast Asian Claimant States, as well as the non-Claimant Southeast Asian States, particularly those which border the South China Sea.14 To this end, this Article will examine these implications for the Southeast Asian Claimants with regard to (1) sovereignty, rights and jurisdiction over features; and (2) maritime entitlement in the South China Sea. The Article will then discuss the implications of the Merits Award for the coastal States bordering the South China Sea. Before examining these implications in detail, it is important to discuss two related factors which could arguably minimize the importance of the Merits Award for Southeast Asia. First, it could be argued that China has already made it clear that it does not intend to comply with the Merits Award15 and thus it is merely a paper

9 Ibid 66. 10 See generally Tara Davenport, ‘Southeast Asian Approaches to Maritime Boundaries’ (2014) 4 Asian Journal of International Law 309. 11 Bateman et al, above n 6, 11. 12 See Clive Schofield, ‘What’s at Stake in the South China Sea? Geographical and Geopolitical Considerations,’ in Robert Beckman et al (eds), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (Edward Elgar, 2013) 11, 34–46. 13 Opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 14 South China Sea Arbitration (Philippines v China) (Award) (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) (‘Merits Award’). 15 See, eg, Ministry of Foreign Affairs of the People’s Republic of China, ‘Award of the South China Sea Arbitration Initiated by Philippines’ (Statement, 12 July 2016) .