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Home Conferences & Seminars Second International Workshop, November 2010 Recent Development In The South China Sea: From Declaration To Code Of Conduct, By Tran Truong Thuy

Recent Development In The South China Sea: From Declaration To Code Of Conduct, By Tran Truong Thuy

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Abstract: This paper focuses on recent developments in the South China Sea since the signing of the Declaration on the Conduct of Parties in the South China Sea (DOC) between ASEAN and China in 2002. As the most powerful country in the region, China sets the tone for the disputess in the South China Sea…

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After Beijing adopted a more accommodating stance in the South China Sea disputes, a DOC was reached. The DOC was signed to provide the foundation for long-term stability in the area and foster understanding among countries concerned. However, recent developments in the South China Sea arguably affirmed the limits of the DOC in preventing the occurrence of tensions, incidents, and skirmishes in the region. As Beijing adopted a harder approach, tensions have arisen in the South China Sea, and opportunities have been created for United States to intervene into the issues and strengthen their position in the region. In recent months, Beijing has voiced a softer tone on the issues to assure neighboring countries and to gain back the partly damaged image in the region. Therefore, it is high time for China and ASEAN to fully implement the DOC and Beijing should accept a binding regional Code of Conduct, which would ensure smaller parties from being intimidated and make them more confident to proceed with the cooperative activities in the South China Sea, thus preventing others from interfering into the issue.

 

The Declaration on the Conduct of Parties in the South China Sea

Prior to the DOC, the Treaty of Amity and Cooperation in Southeast Asia (TAC) and the Treaty on the Southeast Asia Nuclear Weapon-Free Zone concluded in 1976 and 1995 respectively were the main legal instruments governing behaviours of the parties concerned in the South China Sea. The fundamental principles guiding the contracting parties in the TAC include the settlement of differences by peaceful means, non-resort to the threat or use of force and the promotion of effective cooperation among the parties concerned.[3]

ASEAN members first adopted their common stance on the South China Sea dispute in the ASEAN Declaration on the South China Sea signed in Manila in 1992 after China passed the Law on the Territorial Sea on 25 February 1992 stipulating China’s absolute sovereignty over both the Paracels and the Spratly islands. The Declaration called on the parties concerned to settle the dispute by peaceful means, to exercise restraint and cooperate in applying the principles enshrined in the TAC as a basis for establishing a code of international conduct over the South China Sea.[4]

Bilaterally, China and the Philippines reached an agreement on an eight-point Code of Conduct in their Joint Statement on Consultations on the South China Sea and other Areas of Cooperation in August 1995. The fourth annual bilateral consultative dialogue between Vietnam and the Philippines also produced a nine-point Code of Conduct in October 1995.[5]

After the Mischief Reef incident in 1995, ASEAN sought initiatives that could prevent existing disputes from escalating into conflicts. The idea of a regional Code of Conduct (COC) was officially endorsed at the 29th ASEAN Ministerial Meeting (Jakarta, 21-27 July 1996) in the hope that it would provide the foundation for long-term stability in the area and foster understanding among countries concerned.[6]

Although a binding code of conduct had been considered the primary goal, after almost 5 years of negotiations ASEAN and China only reached a political document. On 4 November 2002 in Phnompenh, ASEAN and the People’s Republic of China signed the Declaration on the Conduct of Parties in the South China Sea (DOC).

The DOC is composed of three main elements, namely the basic norms governing state-to-state relations and dispute settlement, confidence-building measures, and cooperation activities.

Point 4 underlines the duties of the parties concerned to resolve their territorial disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea. Concrete measures are listed in point 5 in which the parties concerned undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from inhabiting the currently uninhabited islands, reefs, shoals, cays, and other features.

Regarding second component of DOC - confidence-building measures, in point 2, the parties are committed to exploring ways for building trust and confidence on the basis of equality and mutual respect. Point 7 in the DOC underlines the need for the parties concerned to continue their consultations and dialogues concerning relevant issues, including respecting the Declaration, to promote good neighbourliness and transparency and establish harmony, mutual understanding and cooperation.

Concerning cooperative activities, pending a comprehensive and durable settlement of the disputes, the DOC states five areas for the parties concerned may explore and undertake, including: a) marine environmental protection; b) marine scientific research; c) safety of marine navigation and communication; d) marine search and rescue; and e) combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms. These areas, which are considered of less sensitivity, can help the parties concerned build mutual trust and confidence.

The DOC was signed as a step toward the adoption of a more binding COC which defines the rights and responsibility of the parties concerned to further promote peace, stability and development in the region.

 

Implementation of DOC

To translate the provisions of DOC into concrete cooperation activities, in the Plan of Action to implement the joint declaration on ASEAN-China strategic partnership for peace and prosperity in 2003, which was formulated to serve as the “master plan” to deepen and broaden ASEAN-China relations and cooperation, among other things, ASEAN and China declared to pursue joint actions and measures to implement the DOC in an “effective way”.[7] The actions and measures include: (i) to convene regular ASEAN-China Senior Officials Meeting (SOM) on the realisation of the DOC to provide guidance for and review the implementation of the DOC, and (ii) to establish a working group to draw up the guidelines for the implementation of the DOC and to provide recommendations to the ASEAN-China SOM on policy and implementation issues.[8] The first ASEAN-China SOM on the implementation of the DOC in Kuala Lumpur, 7 December 2004 decided to set up a joint working group (JWG) to study and recommend confidence-building activities.[9] The ASEAN-China JWG is tasked to formulate recommendations on: a) guidelines and action plan for the implementation of the DOC; b) specific cooperative activities in the South China Sea, c) a register of experts and eminent persons who may provide technical inputs, non-binding and professional views or policy recommendations to the ASEAN-China JWG; and d) the convening of workshops, as the need arises.[10] At the first meeting of ASEAN-China JWG on DOC in Manila, August 4-5, 2005, ASEAN presented a draft of guidelines for discussion. This proposal consists of seven points:

1. The implementation of the DOC should be carried out in a step by step approach in line with the provisions of the DOC.

2. ASEAN will continue its current practice of consulting among themselves before meeting China.

3. The implementation of the DOC should be based on activities or projects clearly identified.

4. The participation in the activities or projects should be carried out on a voluntary basis.

5. Initial activities to be undertaken under the ambit of the DOC should be confident building measures.

6. The decision to implement concrete measures or activities of the DOC should be based on consensus among parties concerned and lead to the eventual realization of a COC.

7. In the implementation of the agreed projects under the DOC, the service of the experts and eminent persons if deemed necessary will be sort to provide specific inputs on the project concerned.

The main issue is point 2 of the guideline. According to ASEAN’s practice in dealing with Dialogue Partner, ASEAN wants to deal with China as a group and to “consult among themselves” before meeting with China, while China prefers consultations with “relevant parties”, not with ASEAN as a bloc. After 3 meetings of ASEAN-China JWG in 2005, 2006 and 2008, a consensus on paragraph 2 of the guideline has not been reached.

In January 2010, Vietnam took over the rotating chairmanship of ASEAN. At a press conference after summit meeting in Hanoi in April this year Prime Minister Nguyen Tan Dzung announced that ASEAN and Chinese officials had agreed to hold meetings to “discuss solutions to push the implementation of the DOC”.[11] In April 2010, at the meeting of the ASEAN-China joint working group in Ha Noi, both sides reaffirmed their commitment to full respect and realization of the Declaration on the Conduct of Parties (DOC) in the South China Sea.[12] But no real progress was made—parties merely came back to the starting point. The only positive results is that the parties agreed to meet again in December 2010 in China.

At the 43rd ASEAN Foreign Ministers Meeting in Hanoi on July 19–20, 2010, ASEAN Ministers ‘stressed the importance of maintaining peace and stability in the South China Sea,’ ‘reaffirmed the importance of the DOC,’ ‘underscored the need to intensify efforts to ensure the effective implementation of the Declaration,’ and ‘looked forward to the Regional Code of Conduct in the South China Sea (COC).’ ASEAN Ministers also tasked ASEAN Senior Officials to work closely with their Chinese counterparts to reconvene the ASEAN-China SOM on the DOC at “the earliest opportunity.”[13] In response, at the ASEAN-China Foreign Ministers Meeting, China’s Foreign Minister Yang Jiechi agreed to implement the DOC, but declared that an ASEAN-China SOM meeting on DOC will be held in an “appropriate time”.[14]

 

Recent Developments

The DOC was signed in the hope that it would provide the foundation for long-term stability in the area and foster understanding among the countries concerned. However, as stated by Nguyen Hong Thao, it is naïve to believe that because of the DOC, the parties have ceased undertaking activities that complicate the situation.[15] Tensions have occasionally arisen and claimants have continued to protest each other’s moves in the South China Sea.

 

Activities on the Islands

According to the DOC, the parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from any action of inhabiting the presently uninhabited islands, reefs, shoals, cays, and other features, and to handle their differences in a constructive manner. However, the Declaration does not clarify what kind of activities could be considered to complicate or escalate a dispute. Claimants have continued to construct structures in the disputed features in the South China Sea. Malaysia used soil to raise the level of Swallow Reef in order to construct an airstrip and other resort facilities. In November 2003, the Philippines’ naval forces discovered markers erected by China on some uninhabited features of Spratly.[16] In addition, Taiwan erected ‘a simple bird-watching stand’ in 2004 and constructed a runway on the disputed island of Itu Aba in 2006.[17] In December 2006, China plated new markers on the Paracel Island, which Vietnam protested, calling their construction “invalid.”[18] In December 2007, China established the city of Sansha for administrating the Paracel and Spratly Islands (and the submerged reef of Macclesfield Bank), which triggered strong official protest from Vietnam as well as anti-China demonstrations in Hanoi and Ho Chi Minh City. In January 2010, Hanoi condemned China’s decision to establish local governing bodies in the Paracel Islands and develop the islands’s tourism industry as a violation of Vietnamese sovereignty.[19] Later, China passed the “2010-20 Grand Plan for Construction and Development for the International Tourism Island of Hainan,” under which the Spratly and Paracel Islands will be incorporated in a multi-purpose ocean complex, air and sea tourist routes bound for Paracel will be promoted, and registration for the right to use uninhabited islands will be encouraged. In June 2010, Vietnam Ministry of Foreign Affairs (MOFA) spokesperson condemned the Chinese plan as a violation of its sovereignty and contradictory to the spirit of DOC. She quoted provision five of the DOC: “The parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from any action of inhabiting the presently uninhabited islands, reefs, shoals, cays, and other features, and to handle their differences in a constructive manner.”[20]

Every year, China continues to send research vessels to conduct maritime research programs in areas adjacent to the coast of other countries in the South China Sea.[21] In July 2007, the Chinese Navy dispatched one warship in the southern part of the South China Sea in order to compel Vietnam to stop its hydrographic campaign for gathering the data needed to determine the extension of its continental shelf.

Occasionally, China conducted firing exercises in a disputed area of the South China Sea, the most recent living drill conducted immediately after ARF meeting in Hanoi in July 2010.

 

China’s unilateral fishing ban

China has annually unilaterally declared its fishing ban in the South China Sea for two months, June and July, which had been applied since 1999. In 2006 and 2007, there were several press reports of incidents of Vietnamese fishermen being killed or wounded by Chinese patrol vessels and gunboats. Over 2009, Chinese forces have repeatedly detained Vietnamese fishing boats near the Paracel Islands, which both countries claim, and have demanded a fine of $10,000 for the release of the fishermen.[22] To enforce its jurisdictional claims in the South China Sea, Beijing announced in early April 2010 the dispatch of two large fishery patrol vessels to the Spratly Islands to protect Chinese fishing vessels, the first time it has done so outside the period of its unilateral fishing ban in the sea that usually takes place between May and August.[23]

 

Tensions over energy developments

After the signing of the DOC, tensions over energy developments have continued to occur. China and ASEAN states have actively involved international companies to exploit the energy reserves of their claims in order to fulfill the need of their rapid economic growth. Occasionally, when international energy companies undertake exploration in zones awarded by one country but claimed by another country, especially within the U-shaped claim line of China, activity has been halted by diplomatic protest and even naval intervention.

In November 2004, China sent the research vessel Nanhai 215 with oil drilling platform Kantan 3 to an area about 2 nautical miles east of the median line between the coasts of Vietnam and China’s Hainan Island. Vietnam’s MOFA spokesman made a protest and requested China to “refrain from complicating the situation” and not to move the Kantan 3 oil drilling platform to the area, claiming that it “lies entirely within the exclusive economic zone and continental shelf of Vietnam.”[24]

In October 2004, China’s Foreign Ministry spokeswoman protested Vietnam just a day after the announcement of the discovery of oil by a partnership of companies comprising Petronas Carigali Overseas of Malaysia, American Technology Inc. Petroleum (ATI), Singapore Petroleum Co., and PetroVietnam’s Petroleum Investment and Development Co. (PID) in the 14,000-square-kilometer area of Blocks 102 and 106 in the Yen Tu field, about 70 kilometers east of Vietnam’s Hai Phong seaport.[25] Starting in the summer of 2007, China told a number of foreign oil and gas firms to stop exploration work with Vietnamese partners in the South China Sea or face unspecified consequences in their business dealings with China.[26] In April 2007, China’s Foreign Ministry spokesman protested Vietnam’s concession and cooperation with British Petroleum to build a gas pipeline near the southern coast of Vietnam that China considered “adjacent maritime zones” of the Spratly Islands.[27] China readily slipped back into its legally dubious historic claim to most of the South China Sea and the nationalist rhetoric that accompanies it.[28] Foreign Ministry spokesperson Qin Gang said, “any unilateral action taken by any other country in these waters constitutes an infringement into China’s sovereignty, territorial rights and jurisdiction.”[29] Vietnam reaffirmed that the area covered by its project with BP is located in Vietnam’s EEZ and continental shelf. All conducted activities are in conformity with international law and practices, particularly UNCLOS and the spirit of DOC.[30] In the spring of 2007, under Chinese pressure, BP stopped its exploitation activities on the gas fields of Moc Tinh and Hai Thach on continental shelf of Vietnam. In 2008, there were many press reports that U.S. energy company Exxon Mobil had been threatened by China. From 2007 to 2010, China has also frequently protested other exploration activities conducted by international energy companies, including BP in bloc 117; PGS (Norway) in bloc 122; Chevron (US) in bloc 122; Pogo (US) in bloc 124; ONGC (India) in bloc 127; Indemisu (Japan) in bloc 04-3; CoconoPhilips (US) in bloc 133; Pearl Energy (UK) in bloc 06-1; Knoc (South Korea) in bloc 11-4; and Gazprom (Russia) in blocs 111 and 113.[31] A spokesperson from Vietnam’s MOFA confirmed that in the case of Exxon Mobile, “these (awarded blocs) are totally under the sovereignty right of Vietnam and in line with the 1982 UN Convention on the Law of the Sea,” and “Vietnam will ensure all the legitimate interests of foreign investors when they operate in Vietnam.” Vietnam “welcome[s] and shall facilitate all cooperation with foreign partners, including Chinese investors operating in Vietnam, on the basis of full respect for our sovereignty.”[32]

In 2009, China also objected to the Philippines’s drilling in the Reed Bank area, about 60 miles (100 kilometers) west of Palawan, which may contain 3.4 trillion cubic feet of gas and 450 million barrels of oil.[33] Malaysia and Brunei also disputed about the development of a gas field in an area where their claims overlap. Identical blocs were awarded to different companies: Malaysia awarded exploration rights to Murphy Oil, while Brunei awarded similar rights to Royal Dutch Shell and Total.[34]

On the Chinese side, in 2007 Beijing opened the concession and invited bids for 22 petroleum blocks in the South China Sea in areas up to 1000 miles from Hainan.[35] Recent activities occurred in May 2010 when China sent the seismic survey vessel M/V Western Spirit to conduct seismic studies in the waters off Tri Ton island of Paracel group, in area overlapping with Vietnam’s oil and gas exploration blocks 141, 142 and 143. At the same time, China carried out ground leveling activities on Tri Ton island in preparation for construction. On August 5th the Vietnamese government formally protested and demanded an immediate cessation of activities.

 

Outer Limit of Continental Shelf Submissions and Its Implications

Tensions over resources on South China Sea continental shelf also were not unrelated with developments in the South China Sea in the last 2-3 years relating to the deadline 13th May 2009. The deadline May 13, 2009 was set by a subsequent agreement of the State Parties to the UNCLOS for states to lodge claims extending their continental shelves beyond the 200 nautical mile limit to The United Nations Commission on the Limits of the Continental Shelf (CLCS).

On May 6, 2009, Malaysia and Vietnam submitted a joint proposal to the CLCS in respect to an area seabed in the southern South China Sea located seaward of their 200 nautical miles EEZ limits.[36] On the following day, Vietnam made a separate submission in relation to northern parts of the South China Sea.[37] China immediately protested both submissions as a violation of its sovereignty and called on the UN commission to reject it. After almost three months, on August 4, 2009, the Philippines also protested submissions to CLCS made by Vietnam and Malaysia. Vietnam and Malaysia immediately protested the notes by the Philippines and China.

China also made a submission of preliminary information to the CLCS relating to the East China Sea. Chinese preliminary information included the statement that China reserved the right to make submissions on the outer limits of the continental shelf that extends beyond 200 nautical miles in “other sea areas.”[38] This statement possibly referred to areas in the South China Sea.

The Philippines also made a partial submission to the CLCS for areas of outer continental shelf seaward of its 200 nautical miles EEZ limit in the Benham Rise region in the Philippine Sea. The Philippines, however, reserved the right to make additional submissions for unspecified “other areas at a future time.”[39]

The developments around the submissions of relevant countries to CLCS created several implications for the situation in the South China Sea in general, and for cooperative development of energy resources in particular.

The submissions to the CLCS by Malaysia and Vietnam arguably clarified the borders of their claims of continental shelf from the mainland. Furthermore, it seems that Vietnam and Malaysia do not consider any features in the Spratly Islands (and the Paracel Islands in the case of Vietnamese submission) as islands, as defined in Article 121 of UNCLOS. If any of the South China Sea islands is capable of generating EEZ and continental shelf rights, there is no area of outer continental shelf beyond 200 nautical miles for submission to CLCS.[40] The fact that Vietnam did not make any comments on the contract between the Filipino government and Forum Energy in the area within the Reed Bank basin reconfirmed Vietnam’s aforementioned consideration.

If this clarification of Malaysia and Vietnam’s claims regarding the disputed islands would be adopted by all the South China Sea parties, it would significantly simplify the dispute overall by substantially narrowing the maritime claims associated with the disputed islands.[41] There would be an entire area in the central part of the South China Sea, which could be described as ‘the continental shelf doughnut’ combined by the outer limits of continental shelf from the nearest island or mainland of surrounding South China Sea countries, which is open for cooperative developing maritime resources.

This simplified and dispute-solution-oriented interpretation of Vietnam and Malaysia about ‘regime of features’ of Spratly was shared by other surrounding South China Sea countries but not by China. In the note protesting the submissions of Vietnam and Malaysia to CLCS, China asserted its “indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.”[42] Attached to the note was a map showing China’s U-shaped claims to virtually the entire South China Sea. This possibly means that China uses an alternative claim, beside its historical claim, based on an EEZ and continental shelf from islets of Spratly that it also claims.

Regarding the position of the Philippines, during the process of preparing the submissions on the outer limit of continental shelf, the Philippines passed the Archipelagic Baselines bill on March 10, 2009, which revised the existing straight baselines and brought them into conformity with the rules for archipelagic baselines set out in the UNCLOS. Under the new law, the disputed Kalayan islands group and Scarborough Shoal remain part of Filipino territory but under a “regime of islands.”[43] In August 2009, in notes protesting both the submission by Vietnam and the joint submission by Vietnam and Malaysia to CLCS, the Philippines did not refer to any possible continental shelf generated from the disputed Kalayan islands, but that “the submission for extended continental shelf by Vietnam lays claim on areas that are disputed because they overlap with those of the Philippines,”[44] (extended continental shelf beyond the 200 nautical mile limit from archipelagic baseline[45]) and joint submission for extended continental shelf by Vietnam and Malaysia lays claim on areas that are disputed not only because they overlap with that of the Philippines, but also because of the controversy arising from the territorial claims of some of the islands in the area including North Borneo.”[46] Arguably, it means that the Philippines do not consider any features in the Spratly Islands as an island, as provided in Article 121 of UNCLOS. Therefore, these features are incapable for generating EEZ and continental shelf rights.

Concerning the Indonesian position, in a note circulated in the UN on July 8, 2010, to protest nine-dotted-lines-map attached to China’s aforementioned note, Indonesia stated that “those remote or very small features in the South China Sea do not deserve exclusive economic zone or continental shelf of their own,” and “the so called nine-dotted-lines-map…clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982.”[47]

Brunei also seems to share the view of other concerned countries in ASEAN. In preliminary information concerning the outer limits of its continental shelf, submitted to CLCS on May 12, 2009, Brunei stated that the country has made significant progress towards preparation of a full submission, but it can only provide the full submission after the date of May 13, 2009. “Brunei’s full submission to the Commission will show that the edge of the continental margin, lying at the transition between the Dangerous Grounds and the deep ocean floor of the South China Sea, is situated beyond 200 nautical miles from the baselines from which Brunei’s territorial sea is measured.”[48] It possibly means that Brunei will fix the outer limit of extended continental shelf beyond 200 nautical miles from the baseline of land territory without taking consideration of claimed islands in the Spratly Islands.

 

China’s “Core National Interest”

The most significant development in the South China Sea is that in March 2010, senior Chinese officials told U.S. high-ranking visitors that China had put the South China Sea into its “core national interest” category of non-negotiable territorial claims—in the same level as Taiwan and Tibet.[49] It possibly means that Chinese authority has to defend its newly categorized national interest in the South China Sea by all costs, including the use of force. An editorial headlined “American shadow over South China Sea” in the Global Times, a newspaper viewed as a mouthpiece of China’s Communist Party, stated that “China will never waive its right to protect its core interest with military means.”[50] If this position is adopted officially by Beijing, it clearly goes against spirit and text of the DOC.

These developments reaffirmed the limits of the agreed documents, including the DOC, in preventing the occurrence of tensions, incidents, and skirmishes in the South China Sea.

Several factors contributed to explain why China has come back to an assertive approach in the South China Sea in recent years. First, China for decades of impeccable continuous economic growth has accumulated its power, economically and militarily, to the level that makes it become more self-confident and assertive in external behaviors, especially during and after the world financial crisis. Second, stabilizing the relations between China-Taiwan has diverted Chinese priorities, capability and resources to other issues, notably the South China Sea issue. Third, rising nationalism and increasing role and activities of PLA and competition of interest groups (law enforcement agencies, energy corporations) have complicated the process of policy formulation and policy implementation of China toward the South China Sea issue. Fourth, actions taken by other claimants forced China to react and China overly reacted. Fifth, the lack of workable mechanism in managing the disputes in the South China Sea, especially in regulating the conduct of parties, including China.

 

ASEAN’s Concern, US Involvement and China’s Softened Tone ?

 

At the 17th Asian Regional Forum (ARF) on July 23, thirteen foreign ministers (including five from ASEAN countries) brought up the South China Sea issue and supported the ASEAN-China DOC. For the first time in an official meeting at this level, U.S. Secretary of State, Mrs. Hillary Clinton, delivered a long statement on US position on the South China Sea issues:

The United States, like every nation, has a national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China Sea. We share these interests not only with ASEAN members or ASEAN Regional Forum participants, but with other maritime nations and the broader international community.

The United States supports a collaborative diplomatic process by all claimants for resolving the various territorial disputes without coercion. We oppose the use or threat of force by any claimant. While the United States does not take sides on the competing territorial disputes over land features in the South China Sea, we believe claimants should pursue their territorial claims and accompanying rights to maritime space in accordance with the UN convention on the law of the sea. Consistent with customary international law, legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.

The U.S. supports the 2002 ASEAN-China declaration on the conduct of parties in the South China Sea. We encourage the parties to reach agreement on a full code of conduct. The U.S. is prepared to facilitate initiatives and confidence building measures consistent with the declaration. Because it is in the interest of all claimants and the broader international community for unimpeded commerce to proceed under lawful conditions. Respect for the interests of the international community and responsible efforts to address these unresolved claims and help create the conditions for resolution of the disputes and a lowering of regional tensions.[51] (emphasis added)

 

In response, China’s Foreign Minister Yang Jiechi highlighted the ability of the DOC to enhance mutual trust and to create favorable conditions and good atmosphere for final solution to the disputes. But he insisted that the South China Sea issues should not be internationalized, that the DOC should not be viewed as between China on one side and ASEAN on the other, and that disputes should be handled on a bilateral, not multilateral, basis. He also pointed out that there have been JWG consultations on DOC, and “when the conditions are ripe”, a SOM can also be held.[52] An article released immediately after ARF 17 in the website of Chinese Ministry of Foreign Affairs considered that Clinton’s remarks were in effect “an attack on China”.[53]

The intervention of the United States into the South China Sea and increased cooperation between US and ASEAN countries possibly exerted an influence on China’s calculations. China’s long-term strategy has been concentrating on preventing the South China Sea issue from being multilateralized and internationalized. In July, Chinese Foreign Ministry warned that turning the South China Sea dispute into an international or multilateral one will “only make matters worse and the resolution more difficult”.[54] In September 2010, China has also tried to prevent the ASEAN-US summit from discussing the South China Sea issues by voicing its opposition to the U.S. proposals on the South China Sea.

In China, the implications of Clinton’s statement and the ensuing responses of some other countries have created a debate over whether the claim is wise by elevating the “South China Sea” to be “China’s core interests”. In an article dated August 27th in People Daily, the official newspaper of China’s Communist Party, columnist Li Hongmei said that some Chinese military strategists and scholars believed that incorporating the South China Sea into the package of China’s core national interests is, at least currently, “not a wise move”. They stated that the claim would “upset and enrage the US” and could “strike a nerve with China’s neighboring countries”. The claim could “facilitate the US to bring its carrier close to the Chinese home and make the regional issue (South China Sea) international …to strengthen US leadership and its economic, military, and political presence in East Asia”. Some even recognized that “the claim is not in accordance with the international standard practice”.[55] On July 27th the Global Time suggested that “Clearly stating China’s intention (in the South China Sea) and easing the concerns of other countries remain a challenge for China in the future. As the largest country in the region, China has the responsibility to reduce divergence and build a consensus.”[56] The Global Times also asserted in an editorial in November 3rd that China “needs to consider holding back a little bit” on territorial issues (in the East China Sea and the South China Sea) if the country wants to ensure sound development in East Asia without allowing U.S. intervention in regional affairs. “What China needs to do is not simply to get tougher,”. “It should work toward a practical solution to end the disputes”. “If this is hard to achieve, China should at least try to avoid developing a situation that caters more to U.S. interests than to Asia’s.” The editorial said China has to acknowledge the fact that disputed islands “cannot be taken back in a short period of time.”[57]

Signaling increased efforts at maintaining peace in the region, in a press briefing in Manila at the end of September 2010, Chinese Ambassador to the Philippines Liu Jianchai said China and Southeast Asian countries have initiated discussions at the working level to draw up a code of conduct. “(China) is ready to work with the other parties concerned on this document” and now “open to different formulas and initiatives in preserving peace, prosperity and stability in this region”.[58]

At the forum of Asian defense ministers ADMM+ in Hanoi in October 2010, although the South China Sea issue was not in official agenda, representatives of seven nations raised the issue of how to guarantee maritime security for all countries surrounding South China Sea. US Defense Secretary Robert M. Gates reiterated Clinton’s comments in ARF in July 2010 that competing claims in the South China Sea should be “settled peacefully, without force or coercion, through collaborative diplomatic processes, and in keeping with customary international law”. He said that “The US has a national interest in freedom of navigation; in unimpeded economic development and commerce; and in respect for international law”.[59] Contrast to Yang Jiechi’ reactions at ARF 17, the Chinese defense minister, Liang Guanglie, called for “mutual trust” throughout the region. He said neighbors needed not fear his nation’s military. “China pursues a defense policy that is defensive in nature”. “China’s defense development is not aimed to challenge or threaten anyone, but to ensure its security and promote international and regional peace and stability”. He did not describe the South China Sea as a region of “core interests”.[60]

According to the Plan of Action to Implement the Joint Declaration on ASEAN-China Strategic Partnership for Peace and Prosperity (2011-2015) released after the ASEAN-China Summit in November 2010 in Hanoi, China committed to work with ASEAN “push forward the full and effective implementation of the DOC in the South China Sea” and “toward the eventual conclusion …of a code of conduct in the South China Sea”.[61]

In November 4, Chinese Assistant Foreign Minister Hu Zhengyue said China is making efforts to establish a new security concept that China remains committed to playing “a constructive role” to address important regional and international issues, including to peacefully resolve disputes on territorial and marine rights through friendly negotiations with neighboring countries.[62]

Chinese softer tone in diplomatic front seemingly corresponds partly with activities taken by China on the sea in recent time. Just before ADMM Plus Meeting in Hanoi in October, after a number of diplomatic protests from Vietnam’s side, China informed Vietnam that it would unconditionally release the trawler and nine fishermen detained near Paracel islands more than a month before. In 17th August, U.S. Deputy Assistant Secretary of Defense Robert Scher said in a press conference in Hanoi that the Pentagon had not seen any “recent” Chinese intimidation of global oil and gas companies operating in the South China Sea.[63]

However, it remains unclear whether China’s softer tone recently reflects a shifting in policy or just tactics in dealing with the South China Sea issue. The most recent development occurred on November 2, 2010, when the Marine Corps of the Chinese People’s Liberation Army staged a military drill in the disputed South China Sea massing 1,800 troops and more than 100 ships, submarines and aircraft for a live-fire display of a growing military power.[64] Li Jie, a Beijing-based naval expert, denied that it was a special signal, but he commented that China chose the South China Sea theater to show naval capacity and strength. Li said: “Some countries intervene in the South China Sea in recent years, jointly conducting military exercises with our neighboring countries, so it’s time for us to oppose these intervention with power politics”.[65]

 

Concluding remarks

As the most powerful country in the region, China sets the tone for the dispute in the South China Sea. After Beijing adopted a more accommodating stance in the South China Sea disputes, a DOC was reached. The DOC was signed to provide the foundation for long-term stability in the area and foster understanding among the countries concerned. However, recent developments in the South China Sea arguably affirmed the limits of the DOC in preventing the occurrence of tensions, incidents, and skirmishes in the region. Since 2007, as Beijing corrected its policy toward the South China Sea issue with more assertive approach, the situation was tense again. Opportunities have been created for United States to intervene into the issues and strengthen their position in the region.

In recent months, Beijing has voiced a softer tone on the issues to ensure neighboring countries and to gain back partly damaged image in the region. However, it is remain unclear whether this move reflects a strategic shift in Beijing’s policy or just tactics in dealing with the South China Sea issue. Therefore, it is high time now for China and ASEAN to successfully fully implement the DOC and Beijing should accept a binding regional Code of Conduct, which would ensure smaller parties from being intimidated and make them more confident to proceed with the cooperative activities in the South China Sea and by that way preventing others from interfering into the issue./.

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Author’s Biography

Tran Truong Thuy

Dr. Tran Truong Thuy is Research Fellow and Director of the Program for South China Sea Studies at the Diplomatic Academy of Vietnam (DAV). He is also Deputy Director of Center for Foreign Policy and Regional Studies at the DAV. Before joining the DAV, he worked at the Ministry of Foreign Affairs of Vietnam. Thuy was awarded Ph.D. in History of International Relations and Foreign Policy from the University of RUDN in Moscow, Russia in 2005 for dissertation on “Maritime Disputes in the South China Sea”. His research interests are in securities studies, maritime issues in Asia, and the international relations of Southeast Asia. He has written quite extensively on maritime issues and contributed several reports and policy recommendations on the South China Sea issues. He is co-author of Disputes in the South China Sea: History, Present and Prospects (Diplomatic Academy of Vietnam, 2009, in Vietnamese), and editor of The South China Sea: Cooperation for Regional Security and Development (Hanoi, Thegioi Publisher, 2010).

 



[1] Some parts of this paper draw on Tran Truong Thuy, “The Declaration on the Conduct of Parties in the South China Sea and Regional Cooperation”, paper delivered at “Cooperation in Dealing with Non-Traditional Security Issues in the South China Sea: Seeking More Effective Means”, National Institute for South China Sea Studies, Haikou, China, 20-22 May 2010 and Tran Truong Thuy, “Declaration on the Conduct of Parties in the South China Sea and Developing Maritime Resources”, paper presented at Developing Disputed Maritime Energy Resources in Asia, National Bureau of Asian Research-MacArthur Foundation, Ho Chi Minh City, Vietnam, 6-7 August 2010.

[2] dr. tran truong thuy is Research Fellow and Director of the Program for South China Sea Studies at the Diplomatic Academy of Vietnam (DAV). He is also Deputy Director of Center for Foreign Policy and Regional Studies at the DAV. Before joining the DAV, he worked at the Ministry of Foreign Affairs of Vietnam. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

[3] Treaty of Amity and Cooperation in Southeast Asia, Indonesia, 24 February 1976, www.aseansec.org/1217.htm

[4] ASEAN Declaration on the South China Sea, Manila, Philippines, 22 July 1992, .wwwaseansec.org/1196.htm

[5] Nguyen Hong Thao, ‘Vietnam and the Code of Conduct for the South China Sea’, Ocean Development and International Law, vol. 32, issues 1-2 (2001), pps 105-130.

[6] The idea of a COC was previously put forward in the 1992 ASEAN Declaration and the workshop series on managing potential conflicts in the South China Sea in 1991-2000.

[7] Plan of Action to Implement the Joint Declaration on ASEAN-China Strategic Partnership for Peace and Prosperity. http://www.aseansec.org/16805.htm

[8] Plan of Action to Implement the Joint Declaration on ASEAN-China Strategic Partnership for Peace and Prosperity. http://www.aseansec.org/16805.htm

[9] ASEAN-China Senior Officials Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea, Kuala Lumpur, 7 December 2004. http://www.aseansec.org/16888.htm

[10] Terms of Reference of the ASEAN-China Joint Working Group on the Implementation of the Declaration on the Conduct of Parties in the South China Sea. http://www.aseansec.org/16885.htm

[14] Personal interview

[15] Nguyen Hong Thao, “The Declaration on the Conduct of Parties in the South China Sea: A Vietnamese perspective, 2002-2007,” In Security and International Politics, ed. Sam Bateman and Ralf Emmers, 2009, 211

[16] Ibid

[17] Ralf Emmers, Geopolitics and Maritime Territorial Disputes in East Asia, (London: Routledge, 2010), 74

[18] Ibid

[19] Statement by the Spokesperson of Ministry of Foreign Affairs of Vietnam on 4th January 2010. http://www.mofa.gov.vn/vi/tt_baochi/pbnfn/ns100104182947#KvsTE0ShBsOB

[20] Regular Press Briefing by Vietnam MOFA’s Spokesperson on 24th June, 2010. http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns100624185700#JVew0HAfgRkg

[21] Nguyen Hong Thao, Declaration on the Conduct, 211

[22] “Vietnam protests Chinese ship seizure”. Earth Time 30 Mar 2010, http://www.earthtimes.org/articles/show/316377,vietnam-protests-chinese-ship-seizure.html

[23] Ian Storey, China’s “Charm Offensive” Loses Momentum in Southeast Asia, China Brief Volume: 10 Issue: 9, April 29, 2010. http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=36324&tx_ttnews[backPid]=7&cHash=897d20a7fa

[24] Nguyen Hong Thao, Declaration on the Conduct, 211

[25] Tran Dinh Thanh Lam, “Vietnam oil find fuels China’s worries”, In Energy Bulletin, 26 October 2004, www.energybulletin.net/node/2838

[26] Scot Marciel, “Maritime Issues and Sovereignty Disputes in East Asia” Testimony before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign Relations, United States Senate, July 15, 2009. http://foreign.senate.gov/hearings/hearing/20090715_2/

[27] Ibid

[28] Mark Valencia, ‘Wither the South China Sea dispute?” (Paper presented at the Workshop “the South China Sea”, Hanoi, 2009).

[29] “China reiterates sovereignty over islands in South China Sea,” www.xinhuanet.com, 3 February 2007.

[31] Personal communications with Vietnam MOFA’s and PetroVietnam’s officials.

[32] Vietnam signals it wants ExxonMobil deal despite China warning. (AFP) – Jul 24, 2008. http://afp.google.com/article/ALeqM5heDDtUDkdvnfpdxGI91DdmaxA7aw

[33]Mark Valencia, ‘Wither the South China Sea dispute?”

[34] Leszek Buszynski, “The South China Sea: Avenues toward a Resolution of the Issue,” (Paper presented at the Workshop “the South China Sea”, Hanoi, 2009).

[35] Nguyen Hong Thao, Declaration on the Conduct, 212

[40] UNCLOS provides for two categories of feature under Article 121 governing the “regime of islands“: islands that are capable of generating the full suite of maritime zones, including the exclusive economic zone and the continental shelf, and “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

[41] Clive Schofield and Ian Storey, The South China Sea Dispute: Increasing Stakes and Rising Tensions, Jamestown Foundation Occasional Paper, November 2009, 23

[45] A Philippine official confirmed this consideration with author during private conversation in Manila in July 2010.

[51] Remarks at Press Availability, Hillary Rodham Clinton, Secretary of State, Hanoi, Vietnam, July 23, 2010. http://www.state.gov/secretary/rm/2010/07/145095.htm

[52] Foreign Minister Yang Jiechi Refutes Fallacies On the South China Sea Issue, http://www.fmprc.gov.cn/eng/zxxx/t719460.htm

[53] Ibid

[54] Ibid

[55] Li Hongmei,Unwise to elevate “South China Sea” to be core interest ?” http://english.peopledaily.com.cn/90002/96417/7119874.html

[56]Road map toward China's maritime peace”. http://opinion.globaltimes.cn/editorial/2010-07/556148.html

[57]Asia should not be bound by a few islands”. http://opinion.globaltimes.cn/editorial/2010-11/588915.html

“China should consider holding back on territory issues: paper.” http://mdn.mainichi.jp/mdnnews/international/news/20101104p2g00m0in021000c.html

[58] China, ASEAN states begin talks on 'code of conduct' for disputes. http://www.gmanews.tv/story/202363/china-asean-states-begin-talks-on-code-of-conduct-for-disputes

[59] Remarks by Secretary Gates at ASEAN Defense Ministers Meeting Plus

http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4700

 

[60] U.S. and China Soften Tone Over Disputed Seas, http://www.nytimes.com/2010/10/13/world/asia/13gates.html

[62] China voices commitment to “constructive role” to address regional, international issues. http://news.xinhuanet.com/english2010/china/2010-11/04/c_13591585.htm

[64] Chinese Marine Corps stages live-action drill in South China Sea. http://military.globaltimes.cn/china/2010-11/588894.html

[65] Ibid


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