Thayer Consultancy Background Briefing:

ABN # 65 648 097 123

South China Sea: Submissions to
the Commission on the Limits of
Continental Shelf
Carlyle A. Thayer
April 9, 2020
On March 30, Vietnam sent a diplomatic note to the Commission on the Limits of the
Continental Shelf that protested China’s sovereignty claims over the South China Sea
inter alia on the basis of ‘historic rights’. What does Vietnam’s diplomatic note mean
and what should Vietnam do in this situation?
Q1: Some observers say that Vietnam’s diplomatic note is just another diplomatic
protest that will have no impact on disputes in the South China Sea. What is your
assessment about this viewpoint?
ANSWER: In diplomatic protocol we are talking about a note verbale, a diplomatic
communication that is unsigned and written in the third person. It falls between an
aid-memoire at the lower end of the scale and a note at the upper end of the scale. It
is not a diplomatic protest per se.
Under the Rules of Procedure of the UN Commission on the Limits of the Continental
Shelf (CLCS) the Commission may receive a submission from a state party to extend its
continental shelf beyond 200 nautical miles. However, if another states objects the
CLCS cannot take any further action. The states parties concerned must resolve the
dispute themselves.
China’s action in submitting a note verbale on 12 December 2019 negated Malaysia’s
submission to claim an extended continental shelf lodged earlier on the same day
Vietnam’s note verbale of 30 March 2020 was made in response to China’s note
verbale a week earlier. If Vietnam had not filed a note verbale China could later argue
that Vietnam had acquiesced to China’s claim to sovereignty over the entire South
China Sea. This would weaken Vietnam’s case in any future legal proceedings against
China.
So, in the sense that your question implies, this exchange of notes verbales will not
result inany alteration in the status quo. But it will put on record Vietnam’s objections
to the claims by China.
Q2: Is appears this is the first time Vietnam has officially mentioned Article 121 (3) of
the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Vietnam’s note
verbale clarifies Vietnam’s position on the baselines issue of features in the Spratly
and Paracel island. What is your assessment? What implications does this have for
Vietnam’s future efforts?
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ANSWER: On 12 July 2016 a spokesperson for Vietnam’s Ministry of Foreign Affairs

stated, ‘Viet Nam welcomes the fact that, on 12 July 2016, the Tribunal issued its
Award in the arbitration between the Philippines and China’. While no specific
reference was made to UNCLOS Article 121(3) at that time, Article 121(3) was the
centre-piece of the Arbitral Tribunal’s Award in the case brought by the Philippines
against China.
In other words, the Arbitral Tribunal declared that there are no features in the Spratlys
that are islands in the legal sense of the term and therefore all high-tide land features
are rocks. Rocks are not entitled to a continental shelf or exclusive economic zone.
The Arbitral Tribunal also ruled that it was not legal to draw baselines from the outer
most features of the Spratlys to create an archipelago. It also dismissed China’s claim
to ‘historic rights’.
The Arbitral Tribunal did not rule on features in the Paracels but the precedent has
been set. The United States continually challenges China’s excessive base lines around
the Paracels through its freedom of navigation operational patrols.
Because UNCLOS does not contain any mechanism for enforcement, the status quo
will remain in the South China Sea. In other words, ‘might makes right’.
Q3: As can be seen from the public record, Vietnam protested against China’s
diplomatic notes written in response to notes verbales submitted to the CLCS by the
Philippines and Malaysia. Some observers argue that this is a sign of ‘unity’ among
ASEAN claimants. What is your assessment. In case such ‘united front’ emerges, what
are the implications for a Code of Conduct in the South China Sea?
ANSWER: Malaysia’s note verbale of 12 December 2019 repeatedly asserted it was a
partial submission and made ‘without prejudice to the question of delimitation of the
continental shelf between States with opposite or adjacent coasts’ and ‘without
prejudice to the position of States which are parties to a land or maritime dispute’.
This leaves open the possibility that Malaysia, the Philippines and Vietnam can delimit
overlapping areas to resolve their disputes. The Philippines and Vietnam are now ‘on
the same sheet of music’ with respect to the Award by the Arbitral Tribunal against
China. A united stance by these three countries would serve to isolate China politically
but would not alter the status quo ‘on the ground’.
The current Single Draft South China Sea Code of Conduct Negotiating Text does not
define the maritime area to be covered. This will be a difficult if not insurmountable
obstacle to final agreement on a legally binding COC.
Q4: What should Vietnam do next to protect its interests in the South China Sea? Do
you think Vietnam will file a lawsuit against China?
ANSWER: In order to protect its legal interests, Vietnam must continue to protest
against any action by China that violates Vietnam’s sovereignty and sovereign
jurisdiction in the Paracels and Spratly islands. This is necessary to provide a legal
paper trail to demonstrate consistency over a long period of time.
In 2014 and again in 2019, Vietnamese officials indicated in public statements that
taking legal action against China was still on the table. Vietnam can follow the example
of the Philippines and make a legal claim against China. As long as Vietnam keeps its
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case focused on legal entitlements it would surely win its case. However, UNCLOS has
no enforcement mechanism and China would refuse to comply
Vietnam will need to gain the support of other claimant states and Indonesia, and
hopefully – but unlikely – all other ASEAN member states in order to take legal action
against China. Such a coalition would attract support from major outside powers who
would have a legal basis for pushing back against China. This possibility was scuttled
when Philippine President Rodrigo Duterte decided to ‘set aside’ the Arbitral
Tribunal’s Award.
The Philippines note verable of 6 March 2020, in response to China, specifically
mentions the Arbitral Tribunal Award. This is a positive development but only time will
tell if Duterte stays the course or chooses to continue to set aside the award in order
to bandwagon with China.

Suggested citation: Carlyle A. Thayer, “South China Sea: Submissions to the

Commission on the Limits of Continental Shelf,” Thayer Consultancy Background Brief,
April 9, 2020. All background briefs are posted on Scribd.com (search for Thayer). To
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