"VOX POPULI VOX DEI" Suara rakyat adalah suara Tuhan.
Portal UI

Will ASEAN member states united behind the South China Sea Arbitration award? By Aristyo Darmawan

Fakultas Hukum Universitas Indonesia > Berita > Will ASEAN member states united behind the South China Sea Arbitration award? By Aristyo Darmawan

On December 12th, 2019, Malaysia submitted a proposal to the Commission on the Limits of the Continental Shelf (CLCS) concerning the limits of its continental shelf beyond 200 nautical miles. The continental shelf submission lies from Malaysia’s baseline towards the South China Sea. The submission its accordance with article 76, paragraph 8 of the United Nations Convention on the Law of the Sea.

Malaysia submission to the CLCS has triggered a note-verbale from the concerned parties of the South China Sea Dispute. Nearly all concerned parties to the dispute sent their note-verbale to emphasize each of their state position towards the submission.

Countries that have submitted a note-verbale in responding to Malaysia’s submission are China, ThePhilippines, Vietnam, and Indonesia. Other than China, each state has similar positions invoking the PCA’s 2016 South China Sea arbitration ruling, emphasizing the importance of dispute resolution following international law.

China’s note-verbale to the United Nations

China was the first country to respond to Malaysia’s submission; on a note verbal to the United Nations Secretary-General CML/14/2019 dated 12 December 2019, China argued that Malaysia’s submission would seriously infringe China’s sovereignty, sovereign rights and jurisdiction in the South China Sea. The Chinese government, therefore, requests the Commission not to consider Malaysia’s submission in accordance with article 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of Continental Shelf.

As is commonly known, China made a unilateral claim over the islands in the South China Sea with the “Nine-dash line.” In their note-verbale again China emphasizes that they have the rights under a historical basis therefore China has sovereignty over the South China Sea. Even though the 2016 tribunal on the South China Sea ruled that China’s historical claim does not have any legal basis in international law.

Philippines note-verbale to the United Nations

On March 6th, 2020, The Philippines submit their note-verbale to the United Nations responding to the Chinas note-verbale. In the note-verbale, The Philippines argues that China’s positions inconsistent with international law, including the United Nations Convention on the Law of the Sea.

Moreover, the Philippines ’ note-verbale also invoked the 2016 South China Sea tribunal award against China which settled the issue of historic rights and maritime entitlements. The tribunal ruled that any claims based on historic rights, or other sovereign rights or jurisdiction that exceed the geographic and substantive limits of maritime entitlements under UNCLOS, without lawful effect.

Vietnam note-verbale to the United Nations

Following the Philippines note-verbale, On March 23rd, 2020, Vietnam also submits a note-verbale to the United Nations in responding to Malaysia’s extended continental shelf submission. Vietnam has a firm and consistent position in the dispute. In their note-verbale, there are at least four points that Vietnam emphasizes. First, Vietnam protest China’s claims as contained in the Chinas note verbale. Vietnam argued that it was a serious violation of Vietnam’s sovereignty, sovereign rights, and jurisdictions in the East China Sea (South China Sea).

Secondly, Vietnam argues that they have ample historical evidence and legal basis to assert its sovereignty over the Hoang Sa (Parcel Islands) and the Truong Sa (Spratly) Islands in accordance with international law. Thirdly, Vietnam reiterates that UNCLOS shall be the sole legal basis for any dispute between Vietnam and China. Therefore Vietnam against all arguments that not adhere to UNCLOS.

Even though Vietnam note-verbale has not explicitly cited the South China Sea tribunal award, Vietnam’s position has and always consistent with all documents that Vietnam has circulated at the United Nations and submitted to relevant international bodies.

Indonesia’s note-verbale to the United Nations

Earlier this month, Indonesia also submits a note-verbale to the United Nations, in regards to Malaysia’s extended continental shelf submission. In the note-verbale Indonesia submit to the UN, it is for the first time since the South China Sea tribunal ruling in 2016, Indonesia invokes the arbitration ruling in a formal submission to the United Nations. In the document, Indonesia invokes China’s Nine-dash line as illegal under international law.

Even though Indonesia is not a claimant in the South China Sea disputes, this is not the first time Indonesia object to China’s Nine-dash line and invoke the South China Sea tribunal award. Indonesia always has a firm position in objecting to the Nine-dash line. In 2016, after the tribunal ruling, there was an accident where a Chinese fishing vessel illegally fishing in the Indonesian exclusive economic zone, Indonesia sent a diplomatic protest to Beijing arguing the Nine-dash line illegal under international law.

A similar accident happened again earlier this year, where there was an escalation between Indonesia law enforcement with the illegal Chinese fishing vessels escorted by the Chinese coast guard entering the Indonesian exclusive economic zone in the North Natuna Sea where China consider it inside their Nine-dash line. Again Indonesia consistently objects China by sending a diplomatic note to Beijing and increases a military patrol in the area.

Does ASEAN member states stand behind the South China Sea arbitration award matters in International law?

Indeed, from the international law point of view, any member countries invoke the tribunal even in a formal note-verbale to the United Nations will not give any legal implications to the tribunal rulings. However, it could be argued that it could give influence and political pressure to any parties to the dispute to uphold international law.

Theoretically, the tribunal ruling will only bound to the parties of the tribunal, which are the Philippine and China, even though China did not participate in the tribunal. The tribunal ruling will not bound other claimant states in the disputes. 

Moreover, the tribunal also doesn’t have any binding precedent to any case after the ruling; it only might have an influential to the case after. However this article argues that if more claimant states of the dispute invoke the South China Sea arbitration ruling, at least it will give a political pressure to China to behave in accordance with international law, and further to avoid any unlawful act which might create a tension in the region 

Therefore, ASEAN member states, which mostly are parties to the South China Sea dispute, namely, Vietnam, Philippines, Malaysia, Brunei, have to firmly stand behind the tribunal award to assure that international law will be the only framework in resolving the dispute.

About the author

➖ Kampus UI Depok Jl. Prof. Mr. Djokosoetono, Kampus FHUI Gedung A Depok 16424, Jawa Barat Telepon (021) 7270003, 7863288 Faks (021) 7270052. E-mail: humas-fh@ui.ac.id & lawschool@ui.ac.id ... ➖ Kampus UI Salemba Gedung IASTH Lt. 2, Jl. Salemba Raya No.4, Jakarta 10430 Tel : (021) 31909008 Faks : (021) 39899148