1

ASEAN AND SELLEMENT OF DISPUTES IN THE EAST SEA IN NEW

CONTEXT A PERSONAL VIEW

Vo Minh Tap

Ph.D. Candidate, College of Social Sciences and Humanities,

Vietnam National University - Ho Chi Minh City

Email : tapminhs@gmail.com; Mobile : 0932020248

Proceedings of International Conference on East Sea Disputes (ICESDI 2014), Ton

Duc Thang University, pp.1-11. (ASEAN v gii quyt tranh chp Bin ng trong

bi cnh mi Mt quan im c nhn, Hi tho quc t Bin ng 2014, i hc

Tn c Thng, TP.HCM).

Since 2009, China has increasingly taken more decisive actions towards the East

Sea through channels, from diplomacy, military to economy, etc. in order to control

around 80% of the East Sea (South China Sea) area and it has recently deployed the

Haiyang Shiyou 981 rig into Vietnams territorial waters unilaterally, posing threat to

peace and security in the region. Until now, subjects (disputing parties, and countries

outside of the region) have forwarded many dynamic solutions to settle the East Sea

issue but the situation seems to be at a standstill This is really a hot and annoying

issue and it may not continue to wait and procrastinate anymore for ASEAN in general

and Vietnam in particular.

In the article, the author analyzes the new regional and international contexts,

which have affected disputes and conflicts in the East Sea since 2009; and summarizes

disputes over hot spots in the East Sea. As a result, the author proposes solutions in

order to settle disputes and conflicts in the East Sea from his personal view and

considers them as top long-term and fair solutions in the new situation.

1. Regional and world contexts (2009 2014)

Disputes and conflicts in the East Sea are considered one of the most

complicated, tense and multi-dimensional issues in the contemporary international

relations. This issue must be comprehensively considered from different angles, and

international aspects, or in other words, disputes and conflicts must be considered

logically from impacts and influences of the regional and international contexts.

mailto:tapminhs@gmail.com

2

Because, disputes and conflicts over the East Sea not only relate to disputing parties

but also affect geo-political interests and geo-strategic interests of countries dispute-

related countries1 and powerful countries outside of the region

2. Among disputing

parties, China is the main subject causing the current situation.

The 2008 2009 world economic crisis, derived from the U.S., made a

tremendous impact on the face of the world, the wave of the crisis pushed the world

economy recession unprecedentedly in history, which depleted the U.S. might and

destroyed European economy and destabilized developing economies, including

ASEAN region. Such consequences were followed by consecutive economic and

socio-political uncertainties such as the sovereign debt crisis in Europe and many other

countries, rising unemployment, unreduced social conflicts, and emerging terrorism.

All these things deepened the complexity, conflicts, opportunities and challenges in

countries.

It is worth saying that in the context that countries have been struggling with the

crisis, China which is the least affected by the crisis has risen more powerfully in

all aspects, especially economics and military. China has used its visible and invisible

hands in aspect of economics to promote economic activities, trade, aid, and

investment in many countries and regions in the world, especially its neighboring

countries (Cambodia, Laos, Vietnam, Thailand, and Singapore, etc), apart from two-

way potential benefits in terms of economics and politics, helping China go far in the

East Sea. The East Sea has really become Chinas strategic chessboard since 2009,

marking its promotion of intense disputes.

The Ukrainian crisis (the Ukrainian issue), which has happened since early

March 2014, has wounded a central part of European heart and has considerably

developed complicatedly. The issue intensifies tensions among the U.S, Europe and

1 Subjects (disputing parties in the East Sea include China, Taiwan, the Philippines, Brunei, Malaysia,

and Vietnam) (also known as 5 countries and 6 parties), Indonesia does not make territorial claim in

the East Sea. 2 Powerful countries such as the U.S., India, Russia and Australia, etc. have strategic interests in

disputed areas, including martime freedom and freedom of navigation and aviation, and military

activite (warships, intelligence activities, etc.)

3

Russia, especially the US-Russia relationship has turned the most tense and complex

since the second world war. It can be said that the political crisis in Europe has created

a big opportunity for China to take provocative actions in the East Sea. According to

two analysts - Ernest Bower and Gregory Poling, Beijing may be attempting to

substantially change the status quo because they feel that Washington is being

distracted by the developments in Ukraine. On the other hand, the above crisis has

made the China-Russia relations enter a stable period, become closer and developed

the most in the history of bilateral relationship because both China and Russia share

foreign strategic thinking.

The U.S. and its axis rotation strategy in Asia Pacific: After the

September 11, 2001 event, reality shows that the U.S. has declined in many aspects

whereas China has revived and developed strongly. The US, China factors and the

bilateral relationship have become main subjects in the world political life and

international order. The rising of China in aspects of economics, military

modernization; Chinas idea of dividing the East Sea into halves with the U.S.

(January 2008), putting the East Sea into its scope of core interests: Chinas

escalating actions in the East Sea and the South China Sea, China's establishment of

Air Defense Identification Zone (ADIZ) forced the U.S. to take steps in its policy

towards Asia Pacific. The U.S. carried out the axis rotation policy3 towards Asia

again, in which the East Sea is a test, aiming to make effort to re-balance its foreign

priorities and military forces and promote its role of being Asian-Pacific powerful

countries to cope with the rising of China, especially in military field.

The U.S. consecutive actions such as organizing visits of U.S. Secretary of State

and U.S. Minister of Defence, participation in regional organizations and forums in

recent time, especially U.S. Presidents visit to Asian countries (Japan, the Philippines

South Korea, and Malaysia) in late June 2014, marked re-engagement of the U.S. in

the region. Besides, the U.S. has built alliance and partnership system, creating its

potential control over China.

3 The U.S. started participating Treaty of Amity and Cooperation in Southeast Asia (TAC) (July 200()

and designed maritime freedom in the East Sea as part of its national interest (July 2010)

4

In that context, China has considered the U.S. as a challenge to its interests in the

region and seen that the U.S. takes actions to cope with China. All these things makes

China become more resolute and powerful in the South China Sea and the East Sea.

Political insecurity, social instability and terrorism in the Southeast Asian

region have occurred over the past decades, including in Thailand, Cambodia,

Myanmar, Indonesia, etc. The humanitarian crisis has happened for a long time. All

these things are really a chronic disease and a factor showing the complexity and the

crisis of political and social system in some regional countries. These countries must

focus on solving their internal issues, which contribute to reducing their position in

comparison with countries outside of the region, splitting and sowing division among

countries in the region and ASEAN. Having a thorough grasp of the socio-political

lives of Southeast Asian countries, China has sought to entice or separate these

countries to carry out its political and economic intentions beneficial to itself.

Obviously, the above uncertainties have created conditions for China to step up

aggression in the East Sea.

Rising China and its grand strategy from reform and opening up until now.

Though there are many different viewpoints on the rising of China, the world may be

unable to deny the current might of China. The economic growth combined with

internal crises has led to Chinas intense ambitions in the twenty-first century. Chinas

strategy in the twenty-first century is to make it become a powerful country in the

region, reach out to the world and surpass the U.S. China has been carrying out China-

styled global strategy in over the world. Phrases like Chinese century, Chinese

dream, and Chinese dragon, etc. reflect its ambitions. Chinas deployment of grand

military strategy, especially maritime navy potential and maritime power building4,

has shown the importance of the needs for adjusting itself to the worlds sea-related

competitive situation, for the rising, for maritime security and interests and for

4 China has for the first time put maritime power building into the document of its 18

th Party

Congress, showing Chinese leaders have attached much importance to maritime issues.

5

protecting the world peace5. Chinas aggressive actions from 2009 until now and its

deployment of the Haiyang Shiyou (Hai Duong) 981 oil rig into Vietnams exclusive

economic zones and continental shelf (since early May 2014) show Chinas intrigue.

As such, developments of the regional and international situation over the past

one decade, especially since early 2014, have made tremendous impacts on the

geopolitical face of the region and the world, especially Chinas actions in the East

Asian sea region, especially in the East Sea.

2. The East Sea: The most potential hot spot of the twenty-first century

Disputes and conflicts in the East Sea (herein after referred to as called the East

Sea issue) is a complex issue, especially in the Spratly (Truong Sa) islands and the

Paracel (Hoang Sa) islands, because the issue is related to many aspects such as

sovereignty, security, military, economy, politics, diplomacy; and the internationally

political lives such as countries, parties, bilateral relations, multilateral relations and

international relations; and the living space of coastal countries, geopolitical space of

big countries; maritime freedom and safety, maritime environment; peace, stability,

and cooperation and development in the East Sea.

The East Sea has become hot news and hot spot relating to three main aspects:

firstly, territorial sovereignty in islands; secondly, delimitation among overlapped

territorial waters and continental shelves; thirdly, maritime freedom and security.

Therefore, the issue is considered the worlds most complicated sovereignty disputes

over islands and conflicts of interests, which may be able to result in potential and

intense disputes.

Indeed, disputes over the East Sea, which are complicated and hot issues and

strategic chessboard of big countries in the twenty-first century, are shown in the

following status quoes:

a. Countries are directly related to disputes among different territorial

sovereignty claims on islands and archipelagoes in the East Seas, besides factors such

5 (2013), , http://www.ddsjcn.com/13-12/13-12-8.htm

6

as complicated laws, histories, and culture. That countries alongside the East Sea have

in turn claimed their territorial waters to the 1982 United Nations Convention on

the Law of the Sea has made the problem of settling disputes over the East Sea become

further complicated and unsolved.

b. The disputes over the East Sea seems to be new and security and military

issues. China built and carried out maritime strategy, modernized naval forces,

designated the East Sea as a core interest, harassed the U.S.navy ship (March 2009)

and has continued naval confrontations with the U.S. since 2010, which demonstrated

the complexity in security, military and maritime freedom in the East Sea. The

confrontation between the U.S. and China relating a clash of Chinas core interest and

U.S. national interest is one of reasons why the East Sea has become a disputed hot

spot in the region. Moreover, the internationalization of oil and gas exploitation, the

control and exploitation of energy resources in the East Sea has made the East Sea

become an international issue.

c. The East Sea is a strategically competitive chessboard among big countries.

Though in reality the East Sea is not located in strategic centers of such big countries

as Japan, India, Russia and Australia, ect., their involvement in the East Sea has made

the East Sea issue become more and more complicated. Besides the U.S, and China,

the above countries have taken steps to develop strategic interests in the East Sea.

India called East Asian countries and the East Sea a part of its Look East policy,

connecting with region to make it into its string of pearls. Japan has carried out its

southward policy, deployed military to the south, established strategic partnership with

the Philippines and provided warships and increased its military presence in the West

Philippine Sea. Meanwhile, Russia has paid more and more attention to the East Sea

situation and meddled in the situation with the Russian style as its new eastward

policy. In addition, the involvement of big countries in the East Sea and the

internationalization of the East Sea issue have created a new face with many interests,

adding more levers for countries directly related to disputes over the East Sea to

improve their geo-strategic roles through protecting national sovereignty over islands

and sea, and engaging in settling disputes and conflicts in the East Sea.

7

Finally, China has deployed the HD-981 oil rig unilaterally and moved the

second oil rig to Vietnams exclusive economic zone and continental shelf (from May

02, 2014 until now), used more than 150 ships (including fishing ships, civilian ships,

military ships, law enforcement ships, and aircrafts, etc.) to protect the 981 oil rig, and

at the same time, rammed into and fired water cannons at Vietnamese vessels, beaten

and robbed Vietnamese fishermen of their properties, etc. in order to set up its

sovereignty over the East Sea and implement the so-called nine-dash line illegally,

turn the East Sea into its core interests and express its determination to assert claims in

the East Sea. Chinas the above actions violated the 1982 United Nations

Convention on the Law of the Sea, and Vietnams sovereignty, jurisdiction over its

two Spratly and Paracel archipelagoes and territorial waters, went against the spirit of

the Declaration on the Conduct of Parties in the East Sea (DOC) signed by ASEAN

and China was unwilling to pursue the common aim of Vietnamese and Chinese high-

ranking leaders to maintain peace, stability and in order not to complicate or expand

disputes over the East Sea. As such, China made the East Sea situation more intense

and the possibility of an intense and aggressive clash between China and Vietnam is

probable, which will lead to long-term consequences for the region and the world.

3. ASEAN and settlement of disputes over the East Sea

As discussed above, dispute issues are extremely complicated and muti-

dimensional, requiring parties to be in full possession of their senses and have creative

and public strategies. In the new regional and world contexts, the strategic values of

the East Sea have made China more resolute to seize the sea area so that it triggered

off disputes over the East Sea, making the status quo of the issue become more intense

and complicated. China did not really respect the right sense while moral code of a big

country and Chinese nationalism rose more powerfully than ever.

It doesnt mean that small countries (in dispute with China), other countries in

the ASEAN block and countries outside the block accept to cede territories to China,

they have to improve justice in the international relations to cope with a stubborn and

rigid China instead. The development histories of the world and the region and

countries show that its necessary to promote nationalism, not to arrive at a

8

compromise and make concessions. Similarly, coping with China in the East Sea,

countries need to take tough measures and select clauses of international law to benefit

themselves and court the international communitys support and interpretation.

In the process of monitoring and research, we found that the complexity of the

issue became higher and higher, with solutions to disputes being given in many

forums, conferences and seminars, etc. at national and international levels and being

deployed in many different countries. However, solutions are only solutions and they

may be sometimes done, done in a limited level or may not be done. Therefore, as for

the global complex issue, it is necessary to deploy and promote proposals, research

and discussion in order to bring about feasible choices in short-term, medium-term and

long-term scope of countries but here in the article, we consider scope of ASEAN a

leading organization in the Southeast Asian region.

(1) ASEAN needs to strengthen dialogue, confidence building; and make it

clear about viewpoints, policies, consensus, and goodwill; and promote

cooperation in the region.

Building confidence is a foundation for ASEANs sustainable development.

ASEAN in the 1960s, 1970s, and 1980s did not reach appropriate developmental

position because of limited confidence among countries, especially the groups of five

countries (Thailand, the Philippines, Indonesia, Malaysia and Singapore) in relations

with a group of three countries (Laos, Vietnam and Cambodia), the lesson about the

necessity to develop the intra-ASEAN block, increase ASEANs position in the

international stage, promote developmental cooperation among regional countries

brought ASEAN members closer together. However, the East Sea issue turns

complicated, difficult to resolve among ASEAN countries, between some ASEAN

members and China. Therefore, ASEAN foreign ministers released the 1992 ASEAN

Declaration Manila Declaration, providing 5 principles toward the East Sea issue6 in

order to ensure regional peace and security. However, the declaration was not as

6 ASEAN Declaration On The South China Sea, Manila, Philippines, 22/7/1992, see:

www.aseansec.org/1196.htm.

http://www.aseansec.org/1196.htm

9

effective as expected when China used its tactics at the Mischief Reef (Vanh Khan) in

1995. The 29th

ASEAN Ministerial Meeting held in Jakarta, Indonesia in July 1996

raised concerns amid tensions in the East Sea and endorsed the idea of concluding a

regional code of conduct in the East Sea in order to create foundation for long-term

stability of the region and strengthen mutual understanding among claimants.

By 2002, the Declaration on the Conduct of Parties in the East Sea (DOC) was

approved by ASEAN members and China on November 04, 2012 at the 8th

ASEAN

Summit in Phnom Penh, Cambodia, marking a breakthrough step in ASEAN-China

relations. The declaration stated that parties concerned were pledged to intensifying

efforts in the spirit of cooperation and mutual understanding in order to implement

some solutions to build confidence and trust among parties while awaiting peaceful

solutions for territorial disputes, and jurisdiction.

However, DOC itself can not solve disputes or control conflicts in the sea

because it only provides recommendable but non-binding principles. It has a definite

historical position in the process of settling disputes but does not create breakthrough

to solve disputes in the East Sea. China approved of DOC, aiming to step up ASEAN-

China relations in fields of economics and military. Though China reached 8-point

DOC after 9 years of negotiation (2011) and aimed at Code of Conduct (COC) in

the East Sea, the events occurring after the agreement such as Scarborought Shoal

Conflict, Chinese vessels cutting of cables of a Vietnamese vessel, Chinas

establishment of Sansha (Tam Sa) city and the latest actions which China has taken

against Vietnam and the Philippines as a strategic base in the East Sea to control the

sea have made the agreement become a temporary solution and fall into oblivion

quickly.

The results of discussions over the East Sea were clearly recognized through

ASEAN Summit chaired by Cambodia. For the first time after 45 years, ASEAN did

not reach a joint statement due to disagreement relating to disputes over the East Sea.

As a result, China implicitly succeeded in driving a wedge from ASEAN members.

Until now, the negotiations with China to come to COC have continued reaching

deadlock; COC has become a narrow path between ASEAN and China. The worlds

10

experts make positive evaluations about COC, saying that COC is a little solid and

lacks effective power and that COC only focuses more on symbol than on contents.

China seems to be careful and choose playing for time. Chinas growing tendency to

take more and more provocative actions in the East Sea to complicate the situation, the

prospects of settlement of disputes have become more difficult, especially when the

competition between the U.S. and China appeared, the ability and efforts to manage

disputes have turned more insolvable.

The 24th

ASEAN Summit (May 2014) issued a statement on the East Sea,

showing that ASEAN increasingly tightened its stance and there was a rare

consensus about disputed sovereignty over the sea. However, one issue that no party

has not mentioned yet, especially China, is ASEANs norm.

However, having a comprehensive and overall view on the ASEAN-China

relations in the settlement of disputes in the East Sea, ASEANs stance on the East Sea

issue has been deeply dominated, countries which are not claimants dont want to

worsen strategic partnership with China. Therefore, the above countries do not express

a clear-cut stance, even act in accordance with Chinas stance instead. Professor Carl

Thayer initially found out ASEAN countries viewpoints in order to see what countries

acknowledge allegiance to China and which countries confront with China in disputes

over the East Sea, and concluded that disputes over territories and territorial waters in

the East Sea might be the greatest challenge to ASEANs solidarity when the block

wanted to become a close-knit community. At an international conference on the East

Sea held in November 2011, Dr. Ian Storey said that the management and settlement

of conflicts in the East not only met with uncooperative attitude of China but also the

complexity of the intra-ASEAN block. With regard to COC, ASEAN seemed to

forward iconic commitments.

Obviously, ASEAN block does not express its stance on legal claims that parties

concerned have made. ASEAN countries also aim at common interests but lack

internal consistency, which contributes to weakening ASEANs abilities and creating

conditions for China to dominate over the East Sea. Due to the inconsistence of stance

11

and confidence in settlement and management of conflicts in the East Sea, the ability

to create positive sentiment to settle dispute is hard to implement.

As such, having no consensus has limited ability to act in the block. ASEAN

countries need to be clear in their viewpoints, policies, and agreements and to have

goodwill in the East Sea. Therefore, the consensus has become an urgent needs and

prerequisite to maintain ASEANs central role.

(2) ASEAN countries need to promote diplomatic activities and dialogues

with big countries outside the block, create a favorable international environment

for settlement of disputes and conflicts.

ASEAN plays a crucial role in settling the East Sea issue. Regional forums create

many good opportunities for discussion and seeking solutions to disputes and conflicts

in the East Sea. ASEAN block now has its voice in the international stage, and has

connected networks of international relations, and set up dialogue mechanism with

many big countries such as the U.S., Japan, and South Korea, etc., initiated and

chaired ASEAN Regional Forum (ARF), initiated the Asia-Europe Meeting (ASEM),

ASEAN + 3, ASEAN 10 + 3, etc. All these activities enable ASEAN to improve the

roles and contributions of countries to create a power structure in South East Asia in a

changeable balanced world to settle the East Sea.

One fact is that the U.S. and other big countries (India, Russia, and Japan, etc.)

do not want China to impose hegemony on any big country or group of big countries

in an important international sea like the East Sea. The East Sea issue is a regional one

and depends on regional countries in regard to settlement of disputes. However, the

international community, which enjoys benefits from the settlement of disputes, will

be willing to cooperate with regional countries and find solutions.

Despite not being claimants in the East Sea, the U.S. and other countries enjoy

maritime freedom in the East Sea, at least 70% of commercial interests in the sea.

Some countries are afraid of threats from China while others have had histories of

long-standing and complicated disputes over territories and territorial waters with

China (including India, Japan, and Russia, etc.). The U.S. deployed its re-engagement

strategy in the East Sea and paid attention to its strategic allies in South East Asia,

12

sought alliances to protect its allies and take control over China, which clearly shows

the U.S. stance to assist regional countries (India, Japan, and Russia) in settling

disputes with China and deploying policies in the region.

In such favorable cases, ASEAN need to deploy dialogue and cooperation with

big countries, avoid conflicts, and create a peaceful and stable environment to settle

disputes. The consensus between ASEAN members and their partners through bilateral

and multilateral diplomatic channels will create pressure to isolate China. However,

not every country turns their back on China, they have need of China to develop

instead. In reality, China is in urgent need of ASEAN countries to develop and vice

versa, especially in fields and economics and commerce and surrounding peaceful

environment.

Therefore, ASEAN block need to use smart and clever diplomatic solutions, with

flexible strategies and rigid principles to cope with China. ASEAN countries and

international community should continue raise their voice in opposing Chinas

territorial claims and in ensuring the strict compliance with international law and peace

and stability in the region and the world, said Vietnamese Prime Minister Nguyen

Tan Dung.

(3) ASEAN block need to use the pressure of the international community to

require China to accept to bring disputes in the East Sea to global courts for trial

(the International Court of Justice -ICJ and International Tribunal for the Law of

the Sea - ITLOS)

Settling disputes in the East Sea between ASEAN and China can refer to the

following solutions: Firstly, diplomatic channels like bilateral diplomacy. However,

settling disputes by this solution does not totally bring about success because China

thinks that disputes in the East Sea is not related to ASEAN, the issue is only

connected between China and some countries in the ASEAN block. Therefore, all

bilateral diplomatic activities to solve the issue with China are almost unsuccessful.

Secondly, multilateral diplomacy means that the third party can be used as a mediator

to solve the issue. Thirdly, international law can be used to settle disputes.

13

The third solution is considered the most feasible in the current situation. Chinas

aggression in the East Sea totally runs counter to international law and is not

recognized by the world and international law. Chinas territorial claims and interests

in the East Sea are baseless. Parties will build files to take China to international court

to solve disputes and enlist the public opinion of the international community to isolate

China. This is the toughest, most complicated and long-lasting solution to China

because it is a powerful member of the U.N. and may refuse to participate and

implement the lawsuit.

The event that the Philippines brought China to U.N. tribunal is difficult to

predict results but many experts said that the event opens a new forward step

legalizing the East Sea, creating conditions for the use of international law to settle

disputes relating to series of key issues. This can be predictable. The lawsuit

contributes to facilitating deadlock and further seeking solutions for disputes and

conflicts relating to the East Sea.

Conclusion: Under the influence of regional and international contexts, disputes

in the East Sea are more and more complicated and unpredictable. The complexity of

the geopolitical and economic complexity of the region and the permanence of the

East Sea issue are creating new challenges for countries. The East Sea issue is a global

one and its complexity will lead to confusion and difficulties in seeking solutions to

disputes. The settlement of disputes is unsuccessful unless China adjusts its maritime

claims in accordance with the 1982 United Nations Convention on the Law of the Sea.

However, all should be included in the common goal: peace, stability and no conflicts

and there must be cooperation among countries.

: