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The “Notes Verbale Debate” on sovereignty in the South China Sea “reactivates” the PCA award

MalaysiaOn December 12th 2019, Malaysia submitted a new Note Verbale to the Commission on the Limits of Continental Shelf (CLCS) of the United Nations (UN) to assert its claim about extended continental shelf based on the final award issued by the Permanent Court of Arbitration (PCA) dated July 12th 2016. The PCA’s award concludes that China’s “nine-dash line” has no validity and no feature in the Spratly Islands generates any maritime entitlements. Through its Note Verbale on the extended continental shelf, Malaysia has sparked the “Notes Verbale Debate” among claimants in the South China Sea sovereignty dispute.

It is called the “Debate of Notes Verbale” because after the Malaysian submission of Note Verbale to the UN, the Philippines, China, Vietnam, and recently Indonesia followed suit, either to object the Malaysian and related nations’ claims or to protect their national sovereignty, or both. Some states even submitted two or three Notes Verbale. Some submitted theirs in response to others’. This has been the second “Debate of Note Verbale” on the South China Sea since the 2000s.

The first “Debate of Notes Verbale” occurred in 2009, which could be summarized as follows: Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982), May 13th 2019 was the deadline for states to make submissions with scientific evidence to the CLCS if seeing themselves having ample legal foundations and evidence to claim an extended continental shelf beyond 200 nm. For this reason, on May 6th 2009, Vietnam and Malaysia made a joint submission on their overlapping extended continental shelf in the southern area of the South China Sea. Furthermore, on May 7th 2009, Vietnam also made a submission on its extended continental shelf in the northern part of the South China Sea. On May 8th 2009, China’s Permanent Mission to the UN submitted its Note Verbale to oppose all the submissions of Vietnam and Malaysia. On August 4th 2009, the Philippine Permanent Mission to the UN also submitted its Note Verbale to make objection to Vietnam's and Malaysia’s joint submission. While the first “debate” remains unsettled, the second one has begun.

In response to Malaysian Note Verbale of December 12th 2019, China also sent its Note Verbale to CLCS on the same day in opposition. On March 6th and 26th 2020, the Philippines issued its Note Verbale in response to that of Malaysia and China. On March 23rd 2020, China issued another Note Verbale to respond to Malaysia and the Philippines. On March 30th 2020 and April 10th 2020 respectively, Vietnam issued three Notes Verbale to clarify its positions. On May 26th 2020, Indonesia issued its Note Verbale to oppose China’s. All states’ Notes Verbale adduced international legal foundations, UNCLOS 1982 and the PCA final award, in particular, to defend their positions on sovereignty. Let's examine these positions.

China’s Note Verbale dated March 23rd 2020 includes the following points:

First, Beijing asserts its “sovereignty” over the Spratly Islands (Nansha Qundao as called by China), Scarborough Shoal (Huangyan Dao), and their adjacent water, seabed, as well as subsoil thereof. China has “historic rights” in the South China Sea. Its sovereignty, other relevant rights, and jurisdiction are supported by “historical and legal evidence”.

Second, the so-called Kalayaan Island Group is part of the Spratly Islands, which has never been part of the Philippines’ territory. Since the 1970s, the Philippines has illegally occupied several maritime features. The Philippines can in no way adduce this illegal occupation to support its territorial claims.

Third, as part of the Spratly Islands, Scarborough Shoal is China’s inherent territory. China has exercised continuously and effectively its sovereignty and jurisdiction over Scarborough Shoal. The Philippines' territorial claim over Scarborough is utterly inconsistent with international law.

Fourth, the Arbitral Tribunal has no jurisdiction in the arbitration initiated by the Philippines against China because the dispute between two states is, in fact, a dispute over sovereignty, maritime delimitation, and exercise of jurisdiction. For this reason, the Tribunal has violated UNCLOS 1982. Subsequently, its conduct and award are unlawful and unjust. China neither partakes in the South China Sea arbitration nor accepts and recognizes the Tribunal’s award. It will never accept any actions and claims grounded in this award. China and the Philippines have reached consensus on setting aside the award and settling disputes between the two parties through consultation and bilateral negotiation.

Fifth, The Government of the People’s Republic of China requests that the CLCS not consider Malaysian submission concerning its extended continental shelf.

China’s Note Verbale aims at opposing and rejecting sovereignty positions of both the Philippines and Malaysia, which discloses the repetition of China’s old and irrational arguments. On the one hand, Beijing complicates the problems by using miscellaneous concepts, such as, “historic rights”, “sovereignty”, “sovereign rights”, or “jurisdiction” and frequently mentioning “China’s abundant historical and legal evidence”. However, those are merely empty words as China has never submitted such evidence. Even the so-called Chinese top experts on the South China Sea, who have been struggling for decades, fail to provide any reliable evidence. Any proofs that may have been provided are not following international law. For instance, Scarborough is a sandbank. Thereby, it cannot be considered as an “island” according to Article 121 of UNCLOS 1982. Nevertheless, China persistently calls Scarborough an “island” to claim “sovereignty”, and “historic rights”, etc.

The PCA issued a historic award in 2016, contributing to the interpretation of Article 121 of UNCLOS 1982. Accordingly, the award has explicitly explained and concluded that there are no maritime features in the Spratlys Islands that fulfil the requirements to be considered as “island”. The award concomitantly rejects the so-called “historic rights” of China in waters within the South China Sea. Although Beijing perpetually interprets international law and UNCLOS 1982 at its discretion, it remains vociferously opposing the PCA’s award regardless of international fulmination.

On March 26th 2020, the Philippines joined in the “Debate of Notes Verbale” through its submission to the UN in response to Malaysia and China. In this Note Verbale, the Philippines stated three key points:

First, the Philippines asserts that China’s maritime claims are baseless under international law, including   UNCLOS 1982.

Second, Manila asserts its sovereignty and jurisdiction over a group of maritime features in the Spratly Islands and Scarborough Shoal, which are called Kalayaan Island Group and Bajo de Masinloc respectively by the Philippines.

Third, the Philippines adduces the PCA’s final award dated July 12th 2016 to explain the legal characteristics of maritime features in the Spratly Islands in accordance with Article 121 (3) of UNCLOS 1982. Manila re-articulates the overall spirit of the award: “All provisions under UNCLOS 1982 on waters of littoral states are superior to the historic rights, sovereign rights, and jurisdiction if exceeding UNCLOS 1982’s provisions”.

Overall, the Philippines’ Note Verbale reveals that even though its incumbent President Duterte is pretending to have “cosy and intimate relations” with Beijing and to “set aside” the PCA's award, Manila could not ignore this award in defending its sovereignty. The Philippines’ Note Verbale reveals superior legal power over the “words are but wind” of President Duterte.

Vietnam could not but jumped into this “Debate of Notes Verbale”. On March 30th 2020, Vietnam’s Permanent Mission to the UN submitted its Note Verbale in opposition to China’s arguments, which enunciated the country’s position:

(1) Vietnam opposes to all China's claims stated in its aforementioned Notes Verbale. These claims severely violate sovereignty, sovereign rights, and jurisdiction of Vietnam in the South China Sea.

(2) Vietnam has ample historical evidence and legal foundations to assert sovereignty over the Paracel Islands and the Spratly Islands, which is in accordance with international law.

(3) Vietnam has a sole legal foundation, which comprehensively and exhaustively defines the scope of the maritime entitlements between Vietnam and China. Accordingly, maritime entitlements of high-tide features in the Paracel and Spratly Islands shall be determined consistently with Article 121 (3) of UNCLOS 1982. Besides, groups of islands in the South China Sea, including the Parcel and Spratly Islands, do not generate the baseline drawn by connecting outermost points of their respective outermost features; low-tide elevations and submerged features shall be incapable of appropriation and generate no maritime entitlement. Vietnam raises its objection to any claims in the South China Sea that exceed the limits provided by UNCLOS 1982 including claims of “historic rights”, which have no legal effect.

(4) Vietnam’s consistent position on abovementioned issues has been asserted in different documents circulated at the UN and submitted to relevant international agencies.

Vietnam’s Permanent Mission to the UN requests that this Note Verbale be circulated to all 1982 UNCLOS’s state parties and UN member states.

Furthermore, on April 10th 2020, Vietnam’s Permanent Mission to the UN submitted another two Notes Verbale numbered 24/HC-2020 and 25/HC-2020 to the UN, whose content is as follows:

First, “Vietnam notes that according to Article 76 (10) and Annex II of UNCLOS 1982, which both Vietnam and Malaysia are state parties, the operation of the CLCS shall not prejudice any matters concerning the delimitation of boundaries among states that have opposite or adjacent coasts”. This implies the CLCS’s role in preventing the Malaysian extended continental shelf (if being accepted and recognized) from exceeding Vietnam’s rights in sea boundaries delimitation between Vietnam and Malaysia, which has not yet been completed. Boundaries delimitation is a complex process, which is based on different provisions of International Law of the Sea, including UNCLOS 1982, international customs, case laws, and practices.

Second, “Vietnam reiterates the joint submission dated May 6th 2019 between Vietnam and Malaysia regarding the limits of the continental shelf beyond 200 nm from the baseline used to measure the breadth of the territorial water in the Southern water of the South China Sea; and its partial submission dated May 07th 2009 regarding the limits of the continental shelf beyond 200 nm from the baseline used to measure the breadth of the territorial water in the Northern water of the South China Sea. Vietnam reserves its rights to submit information concerning the limits of the continental shelf beyond 200 nm from the baseline used to measure the breadth of the territorial water in other water of the South China Sea”. This implies that the joint submission of Vietnam and Malaysia dated May 6th 2019 and Vietnam’s partial submission dated May 07th 2019 must remain in consideration even though there have been new legal developments after the 2016 PCA award. Moreover, Vietnam reserves its rights to submit relevant information, which means Vietnam will enjoy the rights to have additional requests for relevant matters concerning its extended continental shelf whenever Vietnam finds it is necessary to provide more information to protect its interests.

Third, “Vietnam reiterates its consistent position that Vietnam has ample historical evidence and legal foundations to assert its sovereignty over both the Paracel and the Spratly Islands in accordance with international law. Vietnam also has sovereignty, sovereign rights, and jurisdictions over its respective maritime zones in accordance with   UNCLOS 1982. This position of Vietnam has been enunciated in different documents circulated at the UN and submitted to other relevant international agencies”.

Two latter Notes Verbale of Vietnam explicitly targeted the other claimants besides China in the sovereignty dispute, which discloses that regarding sovereignty protection, Vietnam took its stance towards other states based on their claims instead of “painting every state with the same brush”. However, it does not “make concession” with any states concerning the protection of Vietnam’s sovereignty. Vietnam underscores not only its sovereignty over Paracel and Spratly Islands but also its rights to enjoy the benefits of maritime zones that it deserves under UNCLOS 1982 including internal water, territorial water, contiguous zones, exclusive economic zone (EEZ), and continental shelf.

In its Note Verbale dated May 26th 2020, Indonesia makes the following key points: (i) Indonesia is a non-claimant state in the South China Sea dispute; (2) Indonesia’s position on the rights to generate maritime entitlements of features on the sea, as enunciated in its 2010 Note Verbale and recognized by the PCA’s award dated July 12th 2016, is that no feature in the Spratly Islands generates EEZ or continental shelf; (iii) the “nine-dash line” map representing China’s historic rights claim is apparently lack of international legal foundations and seriously violates UNCLOS 1982. This position is also acknowledged by the PCA’s award dated July 12th 2016. Accordingly, all historic rights that China may retain over living and non-living resources are rejected due to the scope of the maritime zones determined under   UNCLOS 1982. As a state party of   UNCLOS 1982, Indonesia has persistently called for the adherence to international law, including   UNCLOS 1982. Indonesia asserts that it shall not abide by any claims violating international law, including UNCLOS 1982.

A look into the content of Notes Verbale submitted by Vietnam, Malaysia, the Philippines, and Indonesia, reveals that these states protect their sovereignty by not only relying on UNCLOS 1982 but also by adducing the PCA’s final award to reject all Chinese positions. This means after three years “being forgotten” because of the Philippines’ “unstable position”, the award has recently been reconsidered and “reactivated” to serve as a solid foundation against China. If any ASEAN member states that are concurrently a claimant in the South China Sea dispute, as well as the international community, are unanimous in adhering to the provisions of UNCLOS 1982 and the PCA’s final award to determine each state's sovereignty matters in the South China Sea, China’s ambition to “monopolize” the South China Sea will be hard to materialize. The “Debate of Notes Verbale” is one of the legitimate measures to reject anything that does not belong to China.

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