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Background Brief: Chinas Submission to UN Commission on the Limits of the Continental Shelf Carlyle A. Thayer September 18, 2012

[client name deleted] China is preparing a submission to the Commission on the Limits of the Continental Shelf for its claims to the East China Sea and the disputed Diaoyu/Senkaku islands. Given Chinas repeated insistence over the past year that UNCLOS is not an appropriate mechanism for claimants in the South China Sea to resolve sovereignty disputes, this seems to be a somewhat surprising move for them to be making. What do you make of it? Is this a departure from Chinas approach to these maritime disputes? And could it embolden the Philippines and Vietnam in their respective claims based on UNCLOS? ANSWER: In May 2009 China responded to the joint submission by Malaysia and Vietnam and a separate submission by Vietnam to the Commission on the Limits of the Continental Shelf (CLCS) by lodging a preliminary statement protesting these submissions. China for the first time officially tabled its nine-dash line u-shaped map. Chinas preliminary submission prior to the CLCS deadline means it can make a later submission. There are two separate issues involved here. The first is a claim to sovereignty, the second is a claim to sovereign jurisdiction. A sovereignty claim relates to ownership over land or a land feature (island, rock etc.). UNCLOS does not address sovereignty issues. Claims to sovereign jurisdiction are over the resources in the water, water column, sea bed and continental shelf surrounding a land feature, including an island or rock. China is mapping out its legal claim to sovereignty. China protested the joint Malaysia-Vietnam and separate Vietnamese submission to the CLCS for two reasons. First, under the rules of the CLCS if any submission is disputed no action can be taken. Second, the submissions by Malaysia and Vietnam would have extended their continental shelves into waters claimed by China. China actions with respect to the Senkaku/Diaoyu islands is a bit of gamesmanship and political posturing. China does not physically occupy the Senkaku islands. By drawing up base points and baselines and submitting them to the UN Secretary General, and by making a submission to the CLCS, China is engaging in the pretention that is holds sovereignty over the Senkakus.

2 In 2009 when China lodged its protest with the CLCS international legal experts were heartened by Chinas assertion that it claimed all the island, rocks and their adjacent waters lying within the u-shaped line. Heartened in the sense that Chinas assertion brought it more into line with international law than previously. In other words, China was claiming sovereignty over islands and rocks and sovereign jurisdiction over waters surrounding these features. This implied that China was not claiming all the water within the u-shaped line. The optimism of 2009 has faded with Chinas re-assertion of historic rights to all the waters and features within the ushaped line. The was particularly evident when the China National Offshore Oil Company issued leases for nine blocks all lying within Vietnams Exclusive Economic Zone but also within Chinas u-shaped line. China actions are a challenge to the status quo. Chinas defence doctrine includes legal warfare. No claimant to the East China Sea or South China Sea should be encouraged by Chinas actions. China is attempting to confuse the issues involved by manipulating international law to provide a basis for it to exercise jurisdiction through maritime law enforcement agencies. Chinas actions inflame the current situation and do not contribute to their peaceful settlement.

Suggested citation: Carlyle A. Thayer, Chinas Submission to UN Commission on the Limits of the Continental Shelf, Thayer Consultancy Background Brief, September 18, 2012. Thayer Consultancy Background Briefs are archived and may be accessed at: http://www.scribd.com/carlthayer.