ASEAN’s interest when participating in resolving disputes in the East Sea

Among claimant states and parties of sovereignty in the East Sea, four ASEAN member countries including Viet Nam, the Philippines, Malaysia and Brunei are engaged in direct disputes in these waters. Other countries like Indonesia, Singapore, Thailand and Cambodia which are lying on the coastal areas of the East Sea share great strategic interests in economic, free trade, security, and national defense. Though Myanmar is not located in the rim of the East Sea, the latter is the most convenient maritime route for the country to develop its relations with Pacific rim countries. When the East-West economic corridor of the Greater Mekong Subregion becomes convenient, Myanmar’s interest will be multiplied. As a land-logged country, Laos has also had great interests in using the strategic advantage of the East Sea.

That is why, once disputes in the East Sea escalate, they will not only threaten national interests of ASEAN coastal countries, but also aggravate cooperation and development environment of the whole bloc, especially ASEAN’s relations with external partners. Southeast Asian countries, particularly claimants, willy-nilly, should spend more budgets on national defense. This is not only detrimental to stable investment environment for economic development, but also increases suspicion and worries on regional security.

Another issue of no less importance is ASEAN is striving to realize ASEAN Community with three pillars, including the ASEAN Political-Security Community (ASPC) by the end of 2015. Contents and methods to build the ASEAN Political-Security Community like “developing and sharing code of conduct” and cooperation, search and establishment of mechanisms to “prevent conflicts” in ASEAN and between ASEAN and external partners are identified in the 2004 Program of Action and the 2009 ASEAN Political-Security Community Blueprint. Thus, the involvement in resolving contradictions and creating mechanisms to consolidate trust and confidence and prevent conflicts in the East Sea are both responsibilities and interests of ASEAN.

Moreover, the participation in preventing conflicts in the East Sea also helps ASEAN maintain and strengthen its central role, driving force, connectivity and establishment of multilateral cooperation mechanisms in Asia-Pacific, particularly the role of ASEAN in the ASEAN Regional Forum (ARF), the East Asia Summit (EAS) and the ASEAN Defense Ministers’ Meeting-Plus (ADMM+). This heightens resistance of ASEAN and of each member country in face of increasing geopolitical pressure due to strategic competition among big powers in the region and at the same time raises attractiveness and efficiency of ASEAN and member countries in expanding cooperation with external partners, improving ASEAN position, strengthening ASEAN status as an indispensable factor in building an environment of peace as well as other multilateral cooperation mechanisms which are taking shape in Asia-Pacific region.

So, it is possible to say that ASEAN’s involvement in settling contradictions and preventing conflicts in the East Sea is both responsibility and strategic interests of this organization. This is also one of the tests to the realization of ASEAN Community including the ASEAN Political-Security Community.

The process of ASEAN’s participation in resolving sovereignty disputes in the East Sea

Sovereignty disputes in the East Sea are not a new problem as it was started since World War II and escalated during the Cold War. After its coming into being in 1967, ASEAN’s role in solving this problem was not high as at that time disputes in the East Sea were not a key concern, and far from a direct threat to the Association and member countries’ security. However, in face of the presence of Chinese navy for the first time in Truong Sa archipelago in late 1980s of the last century and United State’s withdrawal from Subic Bay Naval Base and Clark Air Base in the Philippines in the early 1990s as well as disputes in the East Sea during that period of time made ASEAN, particularly the Philippines worried. This was one of the reasons which prompted ASEAN to adopt “The 1992 ASEAN Declaration on the East Sea” (also called as the 1992 Manila Declaration). For the first time ASEAN adopted an official document on the East Sea, pointing out: “any adverse developments in the East Sea directly affect peace and stability in the region” and emphasized “the necessity to resolve all sovereignty and jurisdictional issues pertaining to the East Sea by peaceful means, without resorting to the use of force.” (1)

In 1995, after the Mischief Reef incident, ASEAN continuously issued statements or joint communiqués on this issue. The Joint Communiqué of ASEAN Foreign Ministers in March 1995 stressed: “We call on all sides to exercise restraint in the conduct of activities that would cause regional instability and threats to peace and security in the East Sea,” and at the same time ASEAN “especially calls for an early solution to issues caused by recent developments in Mischief Reef.” (2) These contents were also stated in the Joint Communiqué of the 28th ASEAN Foreign Ministers’ Meeting organized in Brunei in July 1995 and particularly the Joint Declaration of the 5th ASEAN Summit organized in Bangkok, Thailand in December 1995. The Joint Declaration emphasized: “ASEAN will take early and peaceful measures for disputes in the East Sea and will continue to look for measures and means to prevent conflicts and promote cooperation in the East Sea.” The Congress of the United States in March 1995 issued a declaration, underscoring freedom of movement in the East Sea and considering it “US national interests.” ASEAN’s solidarity and joint efforts in 1995 and international developments brought about encouraging results. The 29th ASEAN Foreign Ministers’ Meeting organized in Jakarta, Indonesia in July 1996 expressed agreement to develop and approve the Code of Conduct in the East Sea. This initiative was reiterated in the 1998 Ha Noi Program of Action. Article 30 of the declaration stated that ASEAN stepped up efforts to resolve disputes in the East Sea by peaceful means, in line with international law. However, the drafting of the above-mentioned document could only start since 1999 when China agreed to join this process with its own draft. After almost 4 years of negotiation between ASEAN and China, ASEAN failed to achieve its initial goal of having a code of conduct. Instead, the Declaration on the Conduct of Parties in the East Sea (DOC) was adopted in November 2002 in Phnom Penh, Cambodia, with general 7-point political commitments without guidelines for the implementation of that Declaration. Nevertheless, the Declaration affirmed commitments of parties concerned in resolving disputes through peacefully means by mapping out trust and confidence-building measures and cooperation activities. (3)

In reality, the Declaration on Conduct of Parties in the East Sea is a political commitment and not legal binding. Thus it is not effective in preventing escalating conflicts in the East Sea. In face of the heating situation in these waters, (4) the ASEAN Foreign Ministers’ Meeting in Singapore in 2008 advanced a Joint Communiqué, “emphasizing the necessity to strengthen efforts to promote the implementation of the Declaration including early finalization of guidelines for implementation of the Declaration.” (5) This matter was reemphasized at the ASEAN Foreign Ministers' Meeting in Ha Noi in 2010. (6)

In 2011, when the East Sea situation became tense, ASEAN countries joined efforts with China to approve “Guidelines for the implementation of the Declaration on the Conduct of Parties in the East Sea.” Though the content of the 8-point declaration is general, not much different from the 2002 Declaration on the Conduct of Parties in the East Sea, it has contributed to “defuse” escalating tensions in the East Sea and maintain ASEAN intra-bloc challenged unity.

To promote the process of Code of Conduct building, since the end of June 2012, ASEAN completed “The ASEAN paper on key elements of the Code of Conduct” and submitted it to the 45th ASEAN Foreign Ministers’ Meeting organized in Phnom Penh. On 7 September 2012, ASEAN Foreign Ministers agreed on key elements of the Code of Conduct. However, the 45th ASEAN Foreign Ministers’ Meeting could not issue a Joint Communiqué on the East Sea issues. One week after the 45th ASEAN Foreign Ministers’ Meeting, with shuttle diplomatic efforts of Indonesia, ASEAN issued “The 6-Point Declaration on the East Sea” including the 3rd point mentioning “early conclusion of the Code of Conduct in the East Sea.” (7)

Not only developing the Declaration on the Conduct of Parties in the East Sea and working towards the Code of Conduct, ASEAN and member countries have also used dialogues, and bilateral and multilateral cooperation to promote the process of “institutionalization” of the above-mentioned mechanisms. First of all, ASEAN has taken advantage of the ASEAN Regional Forum to step up preventive diplomacy including the East Sea issue. Since the 17th ASEAN Regional Forum in 2010, participating countries, particularly ASEAN claimants and the United States have discussed East Sea sensitive disputes and searched for peaceful solutions for these waters. Member countries have laid stress on the need to fully implement the Declaration on the Conduct of Parties in the East Sea, and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and to conclude and approve the Code of Conduct.

In other forums like the East Asia Summit and the ASEAN Defense Ministers’ Meeting-Plus, ASEAN countries have discussed the East Sea issue and have won support for “internationalization” viewpoint, peaceful resolution of disputes and freedom of navigation in these waters. In the 16th ASEAN Regional Forum in 2009, less than half of the members supported the viewpoint of “internationalization” and “freedom of navigation” in the East Sea, but in the 17th and 18th ASEAN Regional Forums, the number was more than half. In the 19th ASEAN Regional Forum in 2012, 25 out of 28 participating countries mentioned the East Sea issue in their speeches.

Thus, in face of increasing sovereignty claims of countries concerned, especially unilateral acts of China in the East Sea, from the 1990s of the last century, ASEAN countries have made collective efforts, creating mechanisms to contribute to prevent conflict escalation in these waters. In reality, mechanisms such as the 2002 Declaration on the Conduct of Parties in the East Sea and the 2011 Guidelines for the implementation of the Declaration on the Conduct of Parties in the East Sea, the 2012 ASEAN paper on key elements of Code of Conduct and other dialogue channels and multilateral security cooperation instruments such as the ASEAN Regional Forum, the East Asia Summit, the ASEAN Defense Ministers’ Meeting-Plus and so on, have contributed to building trust and confidence, promoting peaceful cooperation, and creating political and legal basis of the Code of Conduct.

ASEAN needs to be more determined and politically responsible

On 1 May 2014, with more than 80 armed and military vessels and airplanes, China positioned its rig Haiyang Shiyou 981 deep inside Viet Nam’s exclusive economic zone and continental shelf. ASEAN leaders attended the 24th ASEAN Summit in May 2014 in Myanmar held that China’s act was a danger, a violation of international law, a violation of the 1982 United Nations Convention on the Law of the Sea and a violation of the Declaration on the Conduct of Parties in the East Sea of which China is a signatory, seriously affecting maritime security and safety in the East Sea as well as regional peace and stability. (8) At this Summit, ASEAN leaders unanimously agreed that the Association should show common standpoint on the situation in the East Sea in time, urging all parties concerned to exercise self-restraint, resolve disputes by peaceful means without resorting to use of force, observance of international law and the 1982 United Nations Convention on the Law of the Sea, fully abiding by the Declaration on the Conduct of Parties in the East Sea and early concluding the Code of Conduct. The ASEAN Foreign Ministers’ Meeting also adopted a stand-alone Statement on a complicated situation threatening peace, and maritime security and safety in the East Sea. These developments demonstrated unity, unanimity, central role, proactivity and responsibility of ASEAN towards peace, stability and security in the East Sea in particular and in the region in general.

Outcomes of the 24th ASEAN Summit showed that Viet Nam have made active contribution, strengthening unity, upholding the leading role of ASEAN in issues pertaining to common interests of the bloc; together with ASEAN member countries maintaining consensus and common responsible voice in the East Sea issue. This is very important as it is the driving force for maintaining unity and unanimity of the Association is settling other complicated issues of ASEAN.

Nevertheless, more than ever before, ASEAN should be more politically determined and responsible to early develop a Code of Conduct, including strict and concrete legal stipulations. To achieve this goal, ASEAN should exert efforts to solve the following concrete issues:

First, ASEAN member countries and the entire ASEAN should strengthen and raise awareness, considering the participation in resolving disputes in the East Sea as big political responsibility and strategic interests of the Association. The connectivity of destiny of member countries and the confirmation of ASEAN’s values and stance as a community in the new context depend deeply on ASEAN’s effective settlement of regional contradictions and conflicts, in which conflict prevention and management in the East Sea is a trial of turning point towards the community development in the years to come.

Second, continue promptly together with China to negotiate on the Code of Conduct.

Third, ASEAN should be proactive and early expedite new initiatives to build institutions and new peaceful cooperation forms with positive impacts and support to the development and implementation of the Code of Conduct.

Fourth, ASEAN should continue to use different channels and resources, especially the East Asia Summit, the ASEAN Regional Forum, the ASEAN Defense Ministers’ Meeting-Plus and others to urge relating parties to sit at the negotiation table to find solutions for peace maintenance in the East Sea; in addition, communication on the East Sea issues should be strengthened among ASEAN countries in the strategic interests of the whole community and the region.

Fifth, ASEAN should adjust the principle of consensus when it comes to collective decision. This is a key and most important point for ASEAN to become a substantive community.

ASEAN claimant states, first of all, should clarify sovereign territory and legal status of waters, continental shelf and islands; (9) hence to reach criteria to identify their sovereign territory, sovereign rights and jurisdiction on the waters, continental shelf and offshore islands on the basis of the 1982 United Nations Convention on the Law of the Sea and respect for historical truth. ASEAN non-claimant states should support ASEAN claimants’ standpoints and claims as agreed.

ASEAN countries should strive to internationalize the East Sea issue, including through the International Tribunal for the Law of the Sea (ITLOS). Quite a few disputes over waters in the world which had not been resolved through negotiations were put to the International Tribunal for the Law of the Sea for legal arbitration, hence sustainable stability. This is also one of the measures for settlement of disputes through peaceful means of a sovereign country; at the same time prevention of possible internal differences which can affect solidarity and unanimity of the Association.

Participating in solving disputes in the East Sea is also a manifestation of countries’ responsibility to realizing ASEAN Community including the ASEAN Political-Security Community in 2015; more importantly it is also a self-protection measure before unexpected regional geopolitical changes.

Over the past two decades, ASEAN has made untiring efforts for “institutionalization” the East Sea issues. Developments of sovereignty disputes in the East Sea during the past period have helped some ASEAN countries gain experiences in resolving these issues. ASEAN should make decisive policies and appropriate political actions to accelerate the process of developing the Code of Conduct.

As an ASEAN claimant, Viet Nam should complete legal documents on waters and island sovereignty to express its viewpoints when necessary. At the same time, we should continue to resolutely protest against the China's “Nine-Dash Line” claim as well as acts of violation of Viet Nam’s exclusive economic zone and continental shelf; be clever in issues relating to Viet Nam’s waters and island sovereignty; seek ways to resolve contradictions and disputes by peaceful means on the basis of international law and be determined not to let conflict occur; capitalize on support of countries, world public and Chinese scholars; and heighten vigilance against hostile forces’ making use of the event to instigate extreme nationalism.

The strong statement of Prime Minister Nguyen Tan Dung at the 24th ASEAN Summit in Myanmar demonstrated clearly the Vietnamese people’s desire and determination to protect sovereignty over its waters and islands, and safeguard friendship between the peoples of Viet Nam and China. It is: “Viet Nam always attaches special importance to and spares no effort to preserve and strengthen good friendly relations with China. It is always Viet Nam's sincere desire to work with China for the settlement of disputes via peaceful means on the basis of the international law, equality and mutual respect in the interest of the two countries' people and that of peace and stability in the region and the world. However, national territory is sacred, and Viet Nam vehemently denounces acts of infringement and will resolutely protect our national sovereignty and legitimate interests in conformity with the international law.”

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(1) 1992 ASEAN Statement on the East Sea

(2) 1995 Joint Communiqué of ASEAN Foreign Ministers’ Meeting

(3) The 7-Point Declaration of Conduct of Parties in the East Sea, including prominently the parties reaffirming their commitments to the implementation of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and resolving disputes by peaceful means without carrying acts to complicate the situation

(4) Since 2004, China unilaterally issued prohibition of fishing in the territorial waters of several Southeast Asian countries and has conducted a number of military maneuvers in the East Sea. Especially, on 3 July 2007, Chinese National People’s Congress approved the establishment of the Tam Sa city - an administrative city at district level, including the Hoang Sa, Trung Sa and Truong Sa archipelagoes

(5) The Joint Communiqué of the 41th ASEAN Foreign Ministers’ Meeting

(6) The Joint Communiqué of the 43rd ASEAN Foreign Ministers’ Meeting

(7) The statement on 6-Point Principles on the East Sea includes: 1. The full implementation of the 2002 Declaration on the Conduct of Parties in the East Sea 2. The 2011 Guidelines for the Implementation of the Declaration on the Conduct of Parties in the East Sea; 3. The early conclusion of a Regional Code of Conduct in the East Sea; 4. The full respect of the universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS); 5. The continued exercise of self-restraint and non-use of force by all parties; and 6. The peaceful resolution of disputes, in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS)

(8) Deputy Foreign Minister, Minister of Foreign Affairs Pham Binh Minh answered an interview on the outcomes of the 24th ASEAN Summit

(9) These countries need to reach agreement on joint measuring to identify which islands can be considered exclusive economic zone and continental shelf and which islands are rock islands with no life. In reality, more than 120 islands are considered rock islands entitled only to a 12 nautical miles territorial sea