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South China Sea dispute: Impact of recent development and prospect for the future

Being the most powerful State among the claimant countries, China has the decisive voice over the South China Sea dispute. China and ASEAN have reached the Declaration of the Conduct of Parties in the South China Sea DOC) in 2002 when Beijing took a supple standpoint concerning the South China Sea dispute. However, from 2007 to 2008, Beijing began to have a more decisive access and once again the situation became tense.

By Dr. Trần Trường Thủy
Research Centre of the South China Sea, Diplomatic Academy of Vietnam

Synopsis

The paper reviews the development in the South China Sea in recent years, especially the situation in the last two years. The first part assesses the general policies of the claimant countries over the South China Sea, particularly China’s policy – the strongest country which has the decisive voice over the South China Sea dispute as well as keeping the key for any arrangement that could be taken into consideration. The second part analyzes the developments in the South China Sea in 2011, particularly focuses on a series of new tensions in the first half of the year and the efforts to water down the situation in the year-end months. The third part appraises the future of the DOC implementation and the prospect for the Code of Conduct (COC) with the aim of managing effectively the South China Sea situation.

China’s Policy on the South China Sea before and after the ASEAN Regional Forum (ARF) in Hanoi

Being the most powerful State among the claimant countries, China has the decisive voice over the South China Sea dispute. China and ASEAN have reached the Declaration of the Conduct of Parties in the South China Sea DOC) in 2002 when Beijing took a supple standpoint concerning the South China Sea dispute. However, from 2007 to 2008, Beijing began to have a more decisive access and once again the situation became tense.

China’s comprehensive policy in the South China Sea

To seize the right to the actual control over the South China Sea in accordance with the U-shaped claim, China has enhanced its considerable presence inside this line with the comprehensive access by expanding not only its military operation, but paramilitary and civilian activities in the region as well.

Militarily, China is intensifying its army building, particularly the modernization of its naval force with the construction of the naval base in Sanya (Hainan) that plays the role as a door to advance towards the South China Sea. To send a deterrence message to other claimants in the South China Sea, China has intensified the frequency and the degree of coordination by launching its naval exercises in the South China Sea. The most important event happened in July 2010 when the navy of the People’s Liberation Army (PLA) for the first time mobilized at least 12 modern warships from three fleets (the North Sea Fleet, the East Sea Fleet and the South Sea Fleet) to launch the large-scale joint naval exercises in the South China Sea. (1)

In terms of the paramilitary force, China has deployed in the South China Sea the patrol boats from different law enforcement forces. (2) In certain period of time, this country has unilaterally banned the fishing activities from May to August (imposed every year since 1999); the maritime law enforcement of China have many times seized the Vietnamese fishermen, confiscated their fishing boats and demanded the fines from USD 8,000 to USD 10,000 for the release of the Vietnamese fishermen. In early April 2010, China even announced its sending big fishing vessels to the Trường Sa (Sprealy) Archipellago to protect its fishing boats and it is increasing the number and advancing far to the South. This is the first time, China has done it, apart from its unilateral banning of fishing. (3) On June 23, 2010, the fishing vessel 311 of China had aimed its big machine gun at a vessel of Indonesia and threatened to attack this vessel when a Chinese fishing boat was seized by the Indonesian force in the area inside Indonesia’s exclusive economic zone in the Natuna Archipellago. (4)

On the diplomatic front, China’s consistent strategy of the South China Sea is to have only the bilateral negotiation with the smaller claimant countries and obstructed the efforts of multi-lateralizing and internationalizing the issue, especially any effort of interference on the US part. The Chinese Foreign Minister once warned that the multi-lateralization and internationalization of the South China Sea issue “will only worsen and make the settlement of the issue more difficult.” (5)

In terms of the energy exploitation in the South China Sea, in early summer of 2007, China threatened that a number of foreign oil and gas companies should stop their exploratory activities in the sea with their Vietnamese partner or they had to face the unpredictable consequences in their doing business with China. (6)

On the one hand, China lodged its protest against the energy exploiting activities in the areas inside the U-shaped line; on the other hand, it supported the idea of joint exploitation of the energy resources inside this line in the South China Sea. In principle, other claimants did not protest against the concept of joint exploitation; however, how to determine clearly the acceptable area for the joint exploitation project remained one of the hardest nuts to crack in putting the idea into reality. ASEAN claimant States will surely not accept any suggestions from China concerning the agreement to the joint exploitation inside the exclusive economic zones and continental shelves they had declared, the areas 500 nautical miles or even 700 nautical miles from Hainan Island. The ASEAN claimant countries were ready to cooperate with foreign partners, including Chinese partners, with one condition that their right to sovereignty must be respected. (7) As it is proved in the 2005 Agreement on the Joint Marine Seismic Survey in the South China Sea between the National Oil and Gas Groups of China, the Philippines and Vietnam, the Philippines had to postpone the extension of the agreement because of the domestic protest against the government’s concession of the Philippine sovereignty by allowing the area of the joint exploitation project to overlap the country’s exclusive economic zone.

A number of reasons help explain why China returns to its decisive access in the South China Sea in recent years. First of all, with its impressive economic growth in consecutive decades, China has accumulated its economic and military strength to a degree that allows this country to become more decisive in its treatment to the foreign parties, especially in and after the 2008-2009 global financial crises. Secondly, the relative stability in the relations between China and Taiwan in recent years has allowed China to shift its priorities, potentials and resources to other external issues, particularly the South China Sea issue. Thirdly, the rise of nationalism together with the ever bigger activities and role of the PLA as well as the ever constantly increasing competition between different interests groups within the internal affairs of China (the competition between the legal executive agencies, the energy groups and the coastal provinces) have complicated the process of planning and implementation of China’s policy on the South China Sea. Fourthly, the move of the other claimants in the South China Sea has also forced China to have its reaction; however, its reaction is very excessive. Fifthly, the shortage of an effective mechanism to control the dispute in the South China Sea, especially the adjustment of the parties’ treatment (including China) has created conditions for China to follow its decisive standpoint.

The way of getting suppler access after the ARF-17

China’s ever more decisiveness in the South China Sea in recent years has caused worries to the ASEAN States, thus creating opportunities to the US “to return” Asia. In 2010, for the first time in an informal meeting of the ASEAN Regional Forum (ARF), US Secretary of State Hillary Clinton made a long speech, high lighting the US standpoint in the South China Sea issue. The speech declares that the US has it national interests, among other things, to the free navigation and the right to get access to the common sea space in Asia and the respect of international law in the South China Sea. (8)

The US ever more increasing involvement in the South China Sea and the intensified cooperation between the US and the ASEAN States after the ARF-17 in July 2010 in Hanoi seem making influence on China’s calculations. Especially, Ms Clinton’s eloquent speech together with the response from a lot of other States at the ARF-17 had caused an internal debate in China about China’s wisdom of elevating the “South China Sea” to be “core interest”. Some military strategists and scholars held that the inclusion of the South China Sea into the national core interest group of China, at least in this stage, “is not a wise step”. They judged that this claim would “cause a nuisance and annoyance to the US” and possibly “cause the tension with China’s neighboring State.” (9)  They argued that being the biggest State in East Asia, China should be held responsible for reducing the differences and building the consensus in the region (10). The result is that on October 4, 2010, Assistant Foreign Minister Hu Zheng Yao declared that China was making its efforts to build a new security concept, in which China remained committed to playing “a constructive role” in addressing the regional and international issues, and at the same time, China would make efforts to resolve the existing maritime and territorial disputes by peaceful means through friendly negotiations with the neighboring countries. (11)

China’s supple tone in the diplomatic arena seems being correlative with this country’s moves in the South China Sea in a few year-end months of 2010. Before the ADMM+ meeting held in Hanoi in October 2010 and after a number of diplomatic protests from the Vietnamese side, China kept Vietnam informed that it would release the fishing boat and 9 fishermen held near the Hoàng Sa (Paracel) Archipelago over one month before. On August 17, US Deputy Assistant Defense Minister Mr. Robert Scher also mentioned in a press conference in Hanoi that the Pentagon did not see any of China’s “recent” intimidation to the international oil and gas companies operating in the South China Sea. (12)

A series of new tensions in the first half of 2011

However, China’s supple tone after the ARF-17 in Hanoi only reflects its tactical changes in the South China Sea issue. In the first half of 2011, China once again got tough access with its more decisive attitude.

The Incidents on the Sea

A number of incidents during this period of time highlighted China’s way of getting access by continuing its decisiveness in the South China Sea. The Aquino administration had lodged its protest against at least 6 of China’s provocative incidents during the year, including the Reed Bank incident, in which China infringed the waters inside the 200-nautical-mile exclusive economic zone of the Philippines. (13) Some other serious incidents reported by the Philippine army in June 2011, including a Chinese marine surveillance ship and a naval ship that were discovered having unloaded the building materials and erected the pillars in the adjacent areas of the Iroquois Bank and the Amy Douglas Bank – a Philippine-claimed submerged stone bank and inhabitation area which lies 230km to the Southwest of Palawan province. (14) If the report of the Philippine army is precise, it is clear that China has violated seriously the DOC 2002, particularly Article 5 of the DOC, in which it is clearly stated that “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 action inhabiting on the presently uninhabited islands, reefs, shoals, cays and other features and to handle their differences in a constructive manner.” (15)

As far as the energy exploiting activities of the Philippines are concerned, on March 2, 2011, two Chinese patrol boats came and harassed aggressively a seismic survey ship working for the Forum Energy Company contracted with the Philippine government to conduct the exploration of a gas mine in the Reed Bank, 80 km west of Palawan. (16) Earlier, China had sent a number of diplomatic protests when the Philippines had awarded a service contract to the Forum Energy Company in the area that was included in the already expired Tripartite Agreement on the Joint Seismic Survey already signed by the national oil and gas companies of China, Vietnam and the Philippines in 2015. (17) The Forum Energy Company regarded the area in the contract stretching over 880,000 hectares inside the Reed Bank as lying outside the Trường Sa (Spratly) Archipellago. (18) After that Philippine Minister of Energy Angelo. T. Reyes explained that that area lay inside the Philippines’ 200 nautical mile exclusive economic zone and “if it lies inside the EEZ, the Philippine government has the right to conduct the exploration, exploitation and use of the natural resources and sign the agreement.” (19)

On May 26, 2011, another incident happened in the area only 80 nautical miles from the coast of the southern part of Central Vietnam, inside the exclusive economic zone of Vietnam. This time, three Chinese marine surveillance ships had approached closely and harassed Binh Minh 02 ship of Vietnam when the ship was conducting the oil and gas exploratory and survey activities in the South China Sea. These Chinese ships had after that cut the seismic survey cables of the Binh Minh 02 ship and warned the ship on encroaching the territory of China. (20) However, the Foreign Ministry Spokesman of Vietnam declared in a press conference on May 29, 2010 that the area the Binh Minh 02 ship conducted its survey activities lay completely inside the exclusive economic zone and the 200 nautical mile continental shelf of Vietnam and 622 nautical miles away from Hainan Island of China. Ms Nguyễn Phương Nga, Foreign Minister Spokeswoman of Vietnam, declared “the actions have been planned in a very systematic way from the Chinese side with the efforts of turning the undisputed areas into the disputed areas.” (22)

It is not clear whether these cable cutting incidents had been carried out in accordance with a premeditate plan in Beijing or it is only the actions started by the marine law enforcement forces at the local level of China. In a sideline meeting on June 3, 2011 of the Shangri-La Dialogue in Singapore, Chinese Defense Minister Liang Guanglie committed again with his neighbor that China would not create any threat and Vietnamese Defense Minister Phùng Quang Thanh also stressed that such a cable cutting incident on May 26, 2011 should not be repeated. Based on the development of the incident, it seems that possibly the Defense Ministry of China had nothing to do with the process of making a decision on the aforesaid incident.

On the part of the Chinese Foreign Ministry, during this time, it had reserved a lot of time and efforts to prepare for the ARF-18 and other meetings with its ASEAN counterparts in Indonesia in July 2011. That is why, logically, the Chinese Foreign Ministry should have avoided making any incidents that could have led to the scenario of the ARF-17 in Hanoi in 2010, where China had been completely isolated as far as the diplomatic aspect is concerned”

Diplomatic protest note and the explanation of the claims

In face of the challenges created from China’s ever increasing actions inside the nine-dashed line, the Philippines decided to lodge its protest against China’s claim in the United Nations. On April 5, 2011, the Philippines sent a diplomatic note to the Commission on the Limits of the Continental Shelf (CLCS) to protest against the nine-dashed line of China. (25) After Vietnam, Malaysia and Indonesia, (26) the Philippines refuted the historical basis (if any) of the nine-dashed line of China. The note pointed out that China’s claim over the area outside the “geological entity” in the Kalayan island group and the “contiguous waters” is groundless in accordance with international law, especially with the 1982 UN Convention on the Law of the Sea (UNCLOS) and “as for these areas, sovereignty, the right to sovereignty and the jurisdiction…. belong to the coastal states or the suitable archipelago states.” The limit of the “contiguous” waters relating to the “geological entity” is determined in accordance with the clauses of the UNCLOS, especially Article 121 stipulates in detail the regulation on islands (27) In response, China sent a note to the CLCS on April 14, accusing the Philippines of “invasion” and “occupation” of a number of islands and shoals of “China’s Nansha archipelago” China’s note also declared that “in accordance with the relevant clauses of UNCLOS 1982, as well as the Law on the Territorial Water and the Contiguous Areas of the People’s Republic of China (1992) and the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China (1998), the Nansha archipelago of China completely enjoys the regulation on the territorial waters, the exclusive economic zone and the continental shelf.” (28) Vietnam protested it by sending a diplomatic note to the CLCS to reaffirm its sovereignty over the Hoàng Sa (Paracel) archipelago and the Trường Sa (Spratly) archipelago. (29)

A number of commentators stressed that these new developments were regarded as China’s efforts to make clear its claims in accordance with the UNCLOS. (30) However, after its first cutting of Vietnam’s cable, it is possible that China had recognized that the efforts of making clear its claims in accordance with the UNCLOS would not meet the aspiration of this country. It is difficult for China to explain its actions because the area where the first cutting of cables lies in the West of any equidistant line between the inland part of Vietnam and the Hoàng Sa (Paracel) archipelago and the Trường Sa (Spratly) archipelago. That is why, China merely returned to its argument of the “historical right” in affirming its U-shaped claim, but this is completely not in conformity with the UNCLOS. In its comment at the ARF-18 in July 2011 in Indonesia, Chinese Foreign Minister Yang Jeichi for the first time declared that “the nine-dashed line was officially declared by the Chinese administration in 1948” and that “sovereignty, rights and claims in the South China Sea have been formed and developed in the process of long history” (31). On September 15, 2011, answering the questions put by the media circle about if China’s claims in the South China Sea had violated the UNCLOS or not, the Foreign Ministry Spokesman of China also said that “China’s sovereign, the right and claims relating to the South China Sea  have been formed in the process of long history” and “UNCLOS…. Does not limit or refute the right of a state already formed in history and frequently maintained.” (32)

The Philippines challenged China’s claim by proposing China to bring the issue to the International Tribunal for the Law of the Sea (ITLOS) but it did not receive any response from China. At the 44th ASEAN Ministerial Meeting (AMM) in July of the year, the Philippines brought forward its suggestion about a Zone of Peace, Freedom, Friendship and Cooperation in the South China Sea (ZOPFFC) with the “zoning” of the disputed areas in the South China Sea in order to separate these areas from the undisputed areas and “pave the way for effective and meaningful cooperation among the claimant states…. in the South China Sea.” (33) The ASEAN ministers had paid attention to this suggestion and transferred it to the following meeting of the ASEAN senior officials and the legal experts for mutual consideration.  On September 22-23 in Manila, the legal experts from the ASEAN countries, except for Laos and Cambodia, discussed this suggestion and agreed to study further on the legal, professional and political aspects of it together with the impacts of the ZOPFFC.

The Second half of 2011: Diplomatic negotiations Intensified

Bilateral negotiations

The consecutive cable cutting incidents in May and June of 2011 had led to the demonstrations against China in Hanoi and damaged the overall relations between Vietnam and China. To sooth the tension, on June 26, Vietnam sent Vice Foreign Minister Hồ Xuân Sơn as a special envoy to China to conduct the discussion with his counterpart Zhang Zhijun, and more importantly, to meet Dai Bingguo, member of the State Council of China. “The two sides have stressed the necessity of…. the settlement of the marine dispute between the two states through negotiation and friendly consultation; deployment of the effective measures and mutual coordination to maintain peace and stability in the South China Sea.” (34)

It should be noted here that even though Vietnam had taken an active part in the bilateral negotiation with China on the South China Sea issue, as Vietnam viewed it, there were still a lot of bilateral, multi-lateral and international problems in a series of problems regarding the South China Sea. On June 10 the Foreign Ministry Spokesman of Vietnam pointed out Vietnam’s viewpoint that “all the issues that are related only to the two countries such as the issues between Vietnam and China on the mouth of the Tonkin Gulf and the Hoàng Sa (Paracel) archipelago will be bilaterally resolved between the directly related countries. As for the issues that are related to other countries or other relevant parties, like the Trường Sa (Spratly) archipelago, they will be resolved among the relevant parties. As for the issues that are not only related to the coastal states of the South China Sea, but also to all the states outside the region, like security and safety of navigation and so on, they will be resolved with the participation of the relevant parties.” (35) The Vietnamese delegates had firmly kept this standpoint in 9 rounds of negotiation with China on the Agreement on the fundamental principles guiding the settlement of the marine issues, which was finally signed on October 11 during the China visit by General Secretary of the Communist Party of Vietnam Nguyễn Phú Trọng. According to this Agreement, Vietnam and China will “continue the negotiation and friendly consultation to resolve satisfactorily the marine issues”, and “negotiate the solutions of transitional and temporary character without making any influence on the standpoint and policy of the two sides” in accordance with international law, including the 1982 UNCLOS and the 2002 DOC. Worthy of note is that Article 3 of the Agreement clearly states that “as for the marine dispute between Vietnam and China, the two sides will resolve it through negotiation and friendly consultation”, and “as for the dispute relating to other states, it will be resolved through negotiation with other relevant parties”. The two sides also committed “to pushing ahead the delimitation of the territorial waters in the Tonkin Gulf and discussing actively on the cooperation in the joint exploitation in these waters. (36)

The South China Sea issue was discussed by Chinese Chairman Hu Jintao and Philippine President during President Aquino III’s China visit on August 30 to September 3, 2011. According to the “Joint Declaration between the Philippines and China”, the two leaders “exchanged their viewpoints on the marine dispute and unanimously agreed not to let these disputes affect the larger framework on cooperation and friendship between the two countries”, reiterated the commitment of the two sides in resolving the disputes through the peaceful dialogue, maintaining peace, security and incessant stability in the region and an environment beneficial to the economic development. The two sides also reaffirmed their commitments in respecting and abiding by the Declaration on the Conduct of Parties in the South China Sea (DOC) between China and ASEAN in 2002. (37)

The regional forums

Similar to the situation prior to the ARF-17 held in Hanoi in 2010, the serious incidents happened in the South China Sea between China and Vietnam and between China and the Philippines had caused insecurity to the ASEAN states and the parties enjoying other interests in the region.  On July 18, 2011, the ASEAN foreign ministers reserved a lot of time to discuss on the efforts to resolve the disputes in the South China Sea at the conference. (38) They had also expressed “their deep worries” about the recent incidents in the South China Sea. (39) At the ARF-18 in Bali in July 2011, some foreign ministers expressed their worries about the situation. Especially, US Secretary of State Hilary Clinton said that the US was worried that the recent incidents in the South China Sea would threaten peace and stability and the claimant states in the South China Sea should contain themselves not to take any action that could complicate or escalate the dispute, affecting peace and stability. (40)

The regional and international diplomatic pressures seemed to reduce the moves of China in the later half of 2011. Even though China still continued to declare its unilateral ban on fishing in the area of Latitude 12° North of the South China Sea from May 16 to August 1, 2011, which Vietnam had opposed as a violation of Vietnam’s sovereignty, (41) there were not any report on any detaining of Vietnamese fishermen or confiscation of fishing boats of Vietnam like the previous years. Vietnam and the Philippines continued their oil and gas explorations in the areas inside the U-shaped line without meeting any harassments of China. China only limited its reactions by sending its diplomatic protest and deterrence on the media. In September, the Chinese Foreign Ministry Spokesman warned the Indian Oil and Gas group (ONGC) Videsh about its signing of any agreement with the Vietnamese companies on the oil and gas exploration in the South China Sea. (42) The Global Times wrote that all the measures could be taken to hinder the ONGC Videsh to conduct the survey projects in the South China Sea. (43) Of late, in a regular press briefing on October 31, 2011, when asked if China had any intention to request Exxon Mobil to withdraw its oil and gas contract with Vietnam or not after this company announced that it had discovered hydrocarbon in Lots 117, 118 and 119 off shore of Đà Nẵng, Chinese Foreign Minister Spokesman Hong Lei reaffirmed that “China has unarguable sovereignty over the Trường Sa (Spratly) archipelago and the contiguous waters.” (44)

This reconciliatory attitude was also reflected through the acceptance of the Guidance of the implementation of DOC between ASEAN and China after 9 years of negotiation.

The Guidance of the Implementation of DOC

On the negotiation on the South China Sea between ASEAN and China, after signing the DOC in 2002, ASEAN and China set up a Joint Working Group (JWG) to study and suggest the measures of confidence building in order to spur the DOC into implementation. (45) The ASEAN-China JWG is tasked to work out the principles, gather experts and organize the seminars focused on the South China Sea. (46)

At the JWG’s first meeting in Manila on August 4-5, 2005, ASEAN suggested a Guidance of the implementation of DOC with 7 points. At its second meeting held in Hainan, China on May 8 and 9, 2006, the two sides agreed to implement 6 cooperation projects in the less sensitive areas in the South China Sea, including the joint search and rescue exercises and a series of seminars to create favorable environment for exchanges and researches. (47) On the other hand, the 2nd Senior Officials Meeting (SOM) between ASEAN and China on the implementation of the DOC in May 2006 agreed to 6 other projects and suggested that these projects were regarded as the common initiatives of ASEAN and China.

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However, the main reason of differences between ASEAN and China in implementing the DOC is related to the second point in the guidance suggested by ASEAN. According to the ASEAN’s practices, the dialogues parties and the member countries wanted to discuss with one another first and then they would resolve the issue in the collective aspect with China; however China wanted to discuss only with the “relevant parties”, not with the whole ASEAN block. Moreover, China implied that the guidance was regarded as the principle to implement the “common cooperative activities already agreed in the DOC”, not to implement the entire declaration. China also refused to agree the organization of the ASEAN-China SOM on the implementation of the DOC by reasoning that SOM could not be held until the JWG could reach its unanimity of the guidance. (49) After five more meetings of the ASEAN-China JWG from 2005 to 2010, the guidance draft had been amended for 20 times, but the parties concerned were yet to reach unanimity of views on the issue.

To make efforts to have a diplomatic breakthrough before the ARF-18, the ASEAN spurred the process of completing the Guidance of implementing the DOC. On July 9, Indonesian President Bambang Yudhoyono urged the delegates to complete the Guidance between ASEAN and China. (50)

Finally, after 9 years of negotiation, ASEAN decided to annul two points in the suggested Guidance right before the convening of the AMM in July 2011 in Indonesia. On July 20, 2011, the SOM on the implementation of the DOC between ASEAN and China reached an agreement on the Guidance which was later approved at the following ASEAN-China Foreign Ministers Meeting. The Guidance aimed to “guide the implementation of the activities, measures and the possible joint cooperation projects” comprises 8 points:

1. The Implementation of DOC should be done in a way of getting access step by step in conformity with the terms of DOC.

2. The parties to DOC shall continue to accelerate dialogues and consultations in the spirit of DOC.

3. The implementation of activities or projects as provided in the DOC should be clearly defined.

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

5. The initial activities committed within DOC should be the measures of confidence building.

6. The decision on implementing the measures or the specific activities of DOC should be based on the consensus among the relevant parties with the final aim of advancing towards realizing the Code of Conduct (COC).

7. In the process of implementing projects agreed in accordance with DOC, when necessary, it will encourage the participation of experts and outstanding figures with a view to supplying the concrete resources to the relevant projects.

8. The process of implementing the activities and projects already agreed in DOC will be announced annually to the ASEAN-China Foreign Ministers Conference. (51)

In accordance with the ASEAN’s viewpoint, the persistence in Article 2 of the draft Guidance that “the ASEAN members will have mutual discussion before their meeting with China” was no longer necessary, because they were asked to do so in accordance with the ASEAN Charter which took effect from December 2008.  Article 41, clause 4 of the Charter points out: “In the conduct of external relations of ASEAN, Member States shall, on the basis of unity and solidarity, coordinate and endeavor to develop common position and pursue joint actions.” (52” On the other hand, the approval of the Guidance will consolidate the ASEAN’s political unity on the South China Sea issue and enhance the ASEAN’s prestige as the “central” helmsman in resolving the South China Sea disputes, which was partly influenced by the slow process of negotiation on the Guidance.

In accordance with China’s viewpoint, after being isolated diplomatically, Beijing found it necessary to placate the neighboring states and improve its partly damaged image in the region. Moreover, apart from DOC, with the signing other documents with ASEAN on the South China Sea issue, especially before the important ARF-18 on July 24, 2011, China could prove to the international community that ASEAN and China could be able to coordinate together to resolve the disputes and so, it is not necessary to have any interference from outside in the South China Sea issue.

The implementation of DOC and COC

After signing the Guidance on implementation of DOC, ASEAN and China had different viewpoints on the following steps to resolve the South China Sea issue. While ASEAN wanted to accelerate the process of forming the Code of Conduct of a more legal binding character, (53) China was not ready to join the negotiation on a new code because it could contain China’s activities in the South China Sea. Chinese Foreign Minister Yang Jiechi spoke at the ARF-18 in July in Indonesia that China was ready to discuss the formation of a code of conduct “when the condition is ripe.” (54) To delay the advance to have a code of conduct, China stressed the concentration on the cooperative activities in the South China Sea. At the ASEAN-China SOM in July on the implementation of DOC, the Chinese side suggested a series of initiatives for the cooperative activities within the DOC framework. These initiatives comprises the organization of a seminar on the freedom of navigation and the formation of three professional boards on the marine scientific research and environmental protection, the maritime safety and the search and rescue activities, the combat against the transnational crimes in the sea. In September, China suggested to convene the ASEAN-China SOM on the implementation of DOC in Taiyuan, Shanxi province on October 27-28, 2011 and the 7th ASEAN China JWG meeting on October 27, 2011 to discuss these initiatives. However, according to Barry Wain, ASEAN decided to seize the advantage and kept China informed that the ASEAN-China Senior Officials Meeting should delayed until the conclusion of the East Asian Summit in Indonesia in November; it means that this meeting could not be arranged until 2012. (55) ASEAN also decided that the first cooperative project in implementing DOC between ASEAN and China would be the search and rescue project initiated by the ASEAN side. Moreover, ASEAN decided to start drafting a code of conduct in the South China Sea and form an ad hoc ASEAN working group which would have the first meeting in October to discuss the fundamental contents of COC.

Conclusion

Being the biggest and strongest nation in the region, China has got decisive influence on the development of the South China Sea dispute. After 2007, when Beijing changed its policy on the South China Sea and followed a more decisive access, thus increasing the tension. This brought opportunity to the US to intervene and consolidate its position in the region. In late 2010, Beijing had a more moderate voice on the South China Sea to appease the neighboring states and improve its partly damaged image in the region. However, China’s supple voice does not reflect its fundamental change in its overall policy. It is merely the tactics to handle the South China Sea issue. In the first half of 2011, China had a tougher access with a more decisive, even more aggressive attitude toward the South China Sea. In the second half of the year, the relevant parties enhanced the diplomatic negotiations to placate the dispute and treat the situation. In the near future, due to the lack of a feasible mechanism in resolving the disputes in the South China Sea, especially in adjusting the parties’ conducts, the South China Sea remains the potential outbreak point that could cause instability in the region or even could lead to a conflict – a scenario that will surely not bring about benefits to any claimant country or to any relevant party. To enhance cooperation and security in the region, China and ASEAN need to complete the regional Code of Conduct (COC) of legal binding character so as to be able to diminish the danger of threat to the relevant parties and allow them to have more self-confidence in conducting many more activities of cooperation in the South China Sea./.

Translated by Mạnh Chương

Notes:

1. “China’s three-point naval strategy”, Strategic comment, Volume 16, Comment 37 0 October 2010, the International Institute for Strategic Studies, http://www.iiss.org/publications/strategic-comments/past-issues/ volumes-16-2010/october/chinas-three-point-naval-strategy.

2. China has five marine law enforcement agencies: China Coast Guards; China Maritime Safety Department; China Marine Surveilance Force; Fisheries Law Enforcement of China and China General Department of Customs. For more details, see: Lyle J. Goldstein, Five Dragons Stirring up the Sea: Challenge and Opportunity in China’s Improving Maritime Enforcement Capabilities, US Naval War College, China Maritime Study 5, April 2010. http://www.usnwc.edu/Research….gaming/China-Maritime-Studies-Institute/Publications/documents/CMSI No.5 web 1. pdf.

3. Ian Storey, China’s “Charm Offensive” Loses Momentum in Southeast Asia, China Brief, Quốc Quyền: 10, No. 9, April 29, 2010. http://www.jamestown.org/single/?no_cache=1&tx_ttnews [tt_news]=363248&tx_ttnews [backPid]=7&cHash=897d20a7fa.

4. “China flexes muscles in South China Sea”, Mainichi Shimbun, July 27, 2010.

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

6. Scot Marciel, “Maritime Issues and Sovereignty Disputes in East Asia”, July 15, 2009. htpp://foreign.senate.gov.hearings/hearing/20090715_2/.

7. “Vietnam Signals It Wants ExxonMobil Deal Despite China Warning,” Agency France-Press, July 24, 2008,

http://afp.google.com/article/ALepM5heDDtUDkdvnfpdxG19IDdmaxA7aw

8. Comments at a News Conference, Hillary Rodham Clinton. US State Secretary, Hanoi, Vietnam, July 23, 2010.

http://www.state.gov/secretary/rm/ 2010/07/145095.htm

9. Li Hongmei, “Unwise to elevate “South China Sea” to be core interest?”

http://english.peopledaily.com.cn/90002/96417/7119874,html.

10. “Road map toward China’s maritime peace”,

http://opinion.globaltimes.cn/editorial/2010.07/556148.html.

11. China voices commitment to “constructive role” to address regional, international issue.

http://news.xinhuanet.com/english2010/china/2010-11/04/c_13591585.htm.

12. US Sees No ‘Recent’ China Pressure on Global Oil Companies in South Sea

http://www.bloomberg.com/news/2010-08-18/u-s-sees-no-recent–china-pressure-on-global-oil-companies-in-south-sea-html.

13. Philippines accuses China of ‘serious violation’ in South China Sea

http://globalnation.inquirer.net/3205/philippines-accuses-china-of-%E2%80%98serious-violations%E2%80%99-in-spratlys

14. Ibid

15. http://www.asean.org/13163.htm

16. “Philippine Oil Vessel Confronted by China, Spurring New Dispute”, World Street Journal, March 04, 2011.

http://online.wsj.com/article/SB10001424052748703300904576178161531819874.html

17. “Confirmation of New Contract Name and Clarification Regarding Press Speculation” Press Release, January 17, 2010.

http://www.forumenergyplc.com/news/confirmation-of-new-contract-name-and-clarification-regarding-press–speculation.aspx.

18. “Confirmation of New Contract Name and Clarification Regarding Press Speculation” Press Release, January 17, 2010.

http://www.forumenergyplc.com/news/confirmation-of-new-contract-name-and-clarification-regarding-press-speculation.aspx.

19. Amy R. Remo, “Spratly Deal with UK Firm within RP’s Economic Zone – Reyes” Philippine Daily Inquirer, February 21, 2010.

http://newsinfor.inquirer.net/breakingnews/nation/view/20100221-254558/Spratlys-deal-with-UK-firm-within-RPs-economic-zone….Reyes.

20. “Vietnam accuses China of threatening boat researching oil-drilling sites in South China Sea” AP on May 27, 2011.

http://www.google.com/hostednews/canadianpress/article/AlepM5hL8ujabJ4M4dgA94pptkculWv6W?docId=6972004.

21. Press conference on China’s marine surveillance ship cutting cables of the survey ship of PetroVietnam.

http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns110530220030#1JLxTTgwpAy2.

22. Vietnamese Foreign Ministry Spokeswoman Nguyễn Phương Nga at the Press Conference on June 9, 2011.

http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns1106110100618#kyKoHINekSr9.

23. “Vietnam Defense Minister Meets with Chinese Counterpart” QĐND, June 4, 2011.

http://www.qdnh.vn/qdndsite/en.US/75/72/183/161/163/150182/Dafault.aspx.

24. http://www.iiss.org/conferences/the-shangri-la-dialogue/shangri-la-

dialogue-2011/.

25.http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf.

26. A series of the first diplomatic protest notes in 2009 and 2010.

27. Ibid.

28.http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm.33_09/chn_2011_re_phl_e.pdf.

29.http://www.un.org/depts/loc/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf.

30. Robert Beckman, Islands or Rocks? Evolving Dispute in South China Sea. (RSIS Commentary 75/2011).

http://www.rsis.edu.sg/publications/Perspective/RSIS0752011.pdf.

31http://www.fmprc.gov.cn/zxxx/t842183.htm.

32http://www.fmprc.gov.cn/xwfw/s860126.htm.

33. “DFA to propose ‘enclaving’ of disputed areas in South China Sea”

http://www.gmanews.tv/stody/233028/nation/dfa-to-pospone-enclaving-of-disputed-areas-in-south-china-sea.

34. “Vietnam-China Joint Press Release”, on June 26, 2011.

http://www.nhandan.com.vn/cmlink/nhandan-online/homepage/politics/external-relations/vietnam-china-joint-press-release-301599#7Avedd04sN9T.

35.http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns110611180531#Ogf5HtOp8JJs.

36. “VN-China basic principles on settlementof sea issues”

http://en.vietnamplus.vn/Home/VNChina-basic-principles-on-settlement-of-sea-issues/201110/21524.vnplus.

37. “Joint statement of the Philippines and China”.

http://globalnation.inquirer.net/11819/joint-statement-of-the-philippines-and-china.

38. “ASEAN Foreign Ministers Discuss South China Sea Dispute”

http://www.voanews.com/english/news/asia/ASEAN-Foreign-Ministers-Discuss-South-China-Sea-Dispute-125816578.html.

39. Joint Communiqué of 44th ASEAN Foreign Ministers Meeting. Bali.

http://www.asean.org/documents/JC44thAMM19JUL2011.pdf.

40. “The South China Sea”, Ms Hillary Rodham Clinton’s Press Declaration, July 22, 2011.

http://www.state.gov/secrretary/rm/2011/07/168989.htm.

41. “Chinese unilateral fishing ban in the East Sea is a violation of Vietnamese sovereignty”

http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns110516112044#Q9866xMQkrnn.

42.http://www.fmprc.gov.cn/eng/xwfw/s2510/t860126.htm.

43. Jason Miks, “India’s South China Sea Warning”.

http://the-diplomat.com/china-power/2011/09/18/indias-south-china-sea-warning/.

44. “China again warns foreign oil firms on South China Sea exploration”

http://www.reuters.com/article/2011/10/31/china-vietnam-exxon-idUSL4E7LV0QM20111031.

45. “ASEAN-China Senior Officials Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea” ASEAN, Press Release, December 7, 2004.

http://www.aseansec.org/16888.htm.

46. “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.

47. “Report on the Second Meeting of the ASEAN-China Joint Working Group” (Hainan, China, February 8-9, 2006).

48. “Report on the Second ASEAN-China Senior Officials Meeting on the Implementation of the DOC” (Siem Reap, Cambodia, May 2006)

49. An interview with ASEAN officials.

50. “ASEAN Foreign Ministers Discuss South China Sea Dispute”

http://www.voanews.com/english/news/asia/ASEAN-Foreign-Ministers-Discuss-South-China-Sea-Dispute-125816578.html.

51. “Guidelines for the Implementation of the DOC”

http://www.asean.org/documents/20185-DOC.pdf.

52. ASEAN Charter, Singapore, November 20, 2007.

http://www.asean.org/publications/ASEAN-Charter.pdf.

53. “ASEAN wants faster process on COC.

http://www.thejakartapost.com/news/2011/05/09/asean-wants-faster–process.coc.html.

54.http://www.fmprc.gov.cn/eng/zxxx/t842183.htm.

55. Bary Wain, the report at the South China Sea Forum in Manila, October 17, 2011:

http://carlospromulo.org/wp-content/upload/2009/12/Barry-Wain-pdf.

Source: http://www.vietnam.vn/south-china-sea-dispute-impact-of-recent-development-and-prospect-for-the-future-c1068n20130325110806007.htm

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