(Excerpts from the paper prepared for the 5th International Workshop: “The South China Sea: Cooperation for Regional Security and Development” organized by the Diplomatic Academy of Vietnam and Vietnam Lawyers Association in Hanoi, 10-12 November 2013)
Assoc. Prof. Ramses Amer and
Assoc. Prof. Nguyen Hong Thao
(Continued from issue 231-232)
Other bilateral initiatives
The most extensive bilateral talks are the ones between China and Vietnam since the full normalization of their relations in late 1991. In order to manage their territorial disputes China and Vietnam have initiated a system of talks and discussions which was both highly structured and extensive and from bottom to top it looked as follows: Expert-level talks; Government-level talks, i.e. Deputy/Vice-Minister; Foreign Minister-level talks, and, High-level talks, i.e. Presidents, Prime Ministers, and Secretary-Generals of the Chinese Communist Party (CCP) and the Communist Party of Vietnam (CPV).
Talks at the expert-level were initiated in October 1992. The talks at the government-level began in August 1993. The first achievement was the signing of an agreement on 19 October 1993 on the principles for handling the land border and Gulf of Tonkin disputes. It was further agreed to set up joint working groups at the expert-level to deal with the two issues. The joint working group on the Gulf of Tonkin met seventeen times from March 1994 to December 2000 when the Agreement on the Demarcation of Waters, Exclusive Economic Zones and Continental Shelves in the Gulf of Tonkin was signed. Talks at the expert-level on the disputes in the South China Sea proper, the so-called “sea issues”, were initiated in November 1995.
A delegation of the National Defense Ministry carries gifts to inhabitants and soldiers in Truong Sa (Spratly) district, Khanh Hoa province__Photo: The Duyet/VNA
In response to the periodic increases in the level of tensions during the period 2009-2011 relating to the disputes in the South China Sea, China and Vietnam reached an “Agreement on basic principles guiding the settlement of sea-related issues” in October 2011. The two countries have taken steps to implement the agreement in 2012 and 2013, for example “departmental level” talks on “demarcation of areas outside the mouth of” the Gulf of Tonkin have been initiated as have talks on “co-operation in less sensitive fields at sea”. High-level meetings in 2013 have highlighted the continued push for management of the South China Sea situation by the two countries. In connection with the official visit of China’s Prime Minister, Li Keqiang, to Vietnam on 13-15 October 2013 the two sides agreed to: “observe the common perception reached by leaders of the two Parties and States, and stringently implement ‘the agreement on basic principles guiding the settlement of sea issues between Viet Nam and China’.” The two sides were also:
“unanimous in efficiently employing the Government-level negotiation mechanism on Viet Nam-China boundary and territory and persistently seeking mutually acceptable fundamental and long-lasting solutions through negotiations and peaceful talks, and actively studying transitional solutions that do not affect each side’s stance and policy, which will include studies and discussions pertaining to cooperation for mutual development.”
Both sides also agreed to: “establish a working group in charge of cooperation for mutual development at sea as part of the Governmental Negotiation Team on Viet Nam-China Boundary and Territory.”
In addition it was agreed to: “intensify instructions to the existing consultation and negotiation mechanisms, boost the operation of the working group on the waters off the mouth of the Tonkin Gulf and the expert-level working group on cooperation on less sensitive issues at sea.”
In August 1995 bilateral talks between China and the Philippines following the Misschief Reef incident resulted in an eight point code of conduct in the Joint Statement of the Republic of Philippines and the People’s Republic of China (RP-PRC) Consultations on the South China Sea and on Other Areas of Cooperation. In 1997 another incident occurred between the two countries relating to Scarborough Shoal despite this incident the two countries moved ahead with a bilateral dialogue and consultation relating to maritime issues. This trend prevailed during the major part of the Presidency of Gloria Macapagal-Arroyo (2001-2010).
Following several incidents that caused increased tensions between the two countries in the South China Sea in particular relating to Scarborough Shoal in 2012, the Philippines “instituted arbitral proceedings” against China on 22 January 2013. This was done under Annex VII to UNCLOS “with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea.” On 19 February 2013, China presented a Note Verbale to the Philippines through its Embassy in Manila rejected and returned the Philippines’ Notification. The Permanent Court of Arbitration acts as Registry in the arbitration. Since China refuses to participate in the arbitral proceedings the initiative of the Philippines has become a unilateral one.
The Philippines argues that China’s “nine-dashed line” is not supported by UNCLOS. The Philippines asks the Arbitral Tribunal to rule also on the legal status of some certain insular formations in the South China Sea occupied by China such as Mischief Reef, McKennan Reef, Gaven Reef, Subi Reef, Scarborough Shoal, Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef.
In November 1995 bilateral talks between the Philippines and Vietnam resulted in a nine point code of conduct in the Joint Statement of the Fourth Annual Bilateral Consultations between the Philippines and Vietnam.
Joint Submission to the Commission on Outer Limits of the Continental Shelf
On 6 May 2009 Malaysia and Vietnam made a joint submission to the Commission on the Limits of the Continental Shelf (CLCS) relating to their extended continental shelves in a defined area in the South of the South China Sea. The Joint Submission by Malaysia and Vietnam constitutes a negotiated agreement between the two countries and this is a positive bilateral effort in conflict management.
Malaysia and Vietnam maintained the position that the joint submission would not prejudice matters relating to the delimitation of boundaries between States with opposite or adjacent coasts in the South China Sea. Both China - on 7 May 2009 - and the Philippines - on 4 August 2009 - responded with official objections. China considered that the submission infringed upon its sovereignty, sovereign rights and jurisdiction in the South China Sea. Furthermore, China reiterated its claims in the South China Sea and attached a map including the “nine-dashed lines”. The Philippines considered that the joint submission encompasses areas that are disputed since they overlap with that of the Philippines. Furthermore, the Philippines referred to “the controversy arising from the territorial claims on some of the islands in the area including North Borneo”, i.e. the Kalayan Island Group (part of the Spratly archipelago) and the Sabah conflict with Malaysia.
In the Gulf of Thailand the initiation of trilateral talks between Vietnam, Malaysia and Thailand relating to an area of the Gulf of Thailand where the claims of the three countries overlap was made possible through the maritime boundary agreement between Vietnam and Thailand in 1997. Although the parties agree in principle on joint development in the overlapping area, the modalities for such a trilateral scheme have yet to be agreed upon.
On 14 March 2005 the Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea (JSMU) was signed between the national oil companies of China, the Philippines, and Vietnam - Chinese National Offshore Oil Company (CNOOC), Philippines National Oil Company (PNOC), and PETROVIETNAM. All activities in the Area had to be consulted between the concerned parties. The tripartite agreement related to seismic survey and research in a 143,000-square-kilometer area in the South China Sea, including parts of the disputed Spratly archipelago, for a period of three years up to 2008. The signing of the agreement “would not undermine the basic position held by the Government of each party on the South China Sea issue”. The parties expressed their “resolve to transform the South China Sea into an area of peace, stability, cooperation and development”. The cooperation undertaken by the three national oil companies was within the framework of marine scientific research and it did not include any arrangements relating to the exploitation of resources in the area.
Regional initiatives have centred on ASEAN. In 1992 it adopted the “ASEAN Declaration on the South China Sea”. The Declaration emphasizes the “necessity to resolve all sovereignty and jurisdictional issues pertaining to the South China Sea by peaceful means, without resort to force”. It urges “all parties concerned to exercise restraint with the view to creating a positive climate for the eventual resolution of all disputes.”
Following the Mischief Reef incident of 1995 between China and the Philippines, the Foreign Ministers of the ASEAN member-states issued a statement - “Recent Developments in the South China Sea” - contending that all parties must apply the principles contained in the Treaty of Amity and Co-operation in Southeast Asia (TAC) as the basis for establishing a code of conduct for the South China Sea for the purpose of creating an atmosphere of security and stability in the region.
The initial ASEAN-China dialogue relating to the South China Sea was primarily characterized by the search for mutually agreeable mechanisms to manage the situation in the South China Sea. The two sides set up the “ASEAN-China Working Group on the Regional Code of Conduct on the South China Sea”, which held its first meeting on 15 March 2000, and the issue was also addressed at various levels of the ASEAN-China Dialogue. After reconciling differences between ASEAN and China as well as within ASEAN, the ten member states of ASEAN and China signed the Declaration on the Conduct of the Parties in the South China Sea (DOC) in November 2002. In July 2011 ASEAN and China adopted the “Guidelines for the Implementation of the DOC”. There are also on-going discussions within ASEAN as well as between ASEAN and China relating to a possible Code of Conduct (COC) for the South China Sea, which are further positive steps.
The references made to the South China Sea situation by China’s Prime Minister, Li Keqiang, in his remarks at the 16th ASEAN-China Summit in Bandar Seri Begawan on 9 October 2013 are of considerable relevance in the process of implementing the DOC and in formulating a possibly COC, as displayed in the following:
“The Declaration on the Conduct of Parties in the South China Sea (DOC), as an important political agreement reached among China and ASEAN countries, constitutes the cornerstone for peace and stability in the South China Sea. Last month, the Senior Officials’ Meeting and Joint Working Group Meeting for the implementation of the DOC were successfully held in Suzhou, China. China will work with ASEAN countries to vigorously promote practical maritime cooperation in the process of full and effective implementation of the DOC. China will continue to have consultations with ASEAN countries on formulating a code of conduct in the South China Sea (COC) under the framework of implementing the DOC, and will work with ASEAN countries to advance the formulation process of the COC in an active and prudent manner under the principle of consensus building. A tranquil South China Sea is a blessing for all, while a turbulent one benefits no one. We need to work together to make it a sea of peace, friendship and cooperation.”
This paper has displayed that considerable progress has been made in terms of both formal settlement of disputes and conflict resolution as well as in the broader management of disputes in the South China Sea and in particular in the Gulf of Tonkin and in the Gulf of Thailand. The settlement of maritime delimitation between two parties clearly is easier than the ones dealing with more than two parties. The settlement of maritime delimitation is also easier when the sovereignty over insular features is clearly defined. The direct negotiations are preferred model and approach of the Southeast Asian countries even though some cases have been brought to the international courts and tribunals.
Efforts have been made to resolve maritime disputes resulting in maritime delimitation agreements. It is notable that negotiated formal settlement of disputes has primarily taken place during two periods of time, first, a decade from the late 1960s to the late 1970s and second, in the post-Cold War era when almost Southeast Asian countries became the members of the UNCLOS and also UNCLOS came into effect in 1994. During the later period agreements have been reached between Thailand and Vietnam in 1997, between China and Vietnam in 2000, between Indonesia and Vietnam in 2003, and between Brunei and Malaysia in 2009. The ICJ has been invoked for settling two cases of ownership of insular features, i.e. between Indonesia and Malaysia (ruling in 2002) and between Malaysia and Singapore (ruling in 2008).
In terms of management of the unsettled dispute situations, some countries have agreed upon joint development schemes. This has allowed them to shelf the issue of maritime delimitation for the time being and to move ahead with the exploration of non-living resources, i.e. between Malaysia and Thailand and between Malaysia and Vietnam, respectively. The experiences of JDA in the Gulf of Thailand provide alternative models for JDA involving more than two parties. Thus far the inconclusive attempt among Thailand, Malaysia and Vietnam in the Gulf of Thailand indicates the difficulties regarding multilateral attempts at establishing joint development arrangements.
In the South China Sea, some relevant bilateral attempts can be noted. The expert-level talks between China and Vietnam relating to the South China Sea situation have been on-going since the mid-1990s. The South China Sea is also on the agenda for Government- and High-level talks between the two countries relating to their bilateral disputes. Other notable bilateral initiatives were between China and the Philippines leading to the 1995 agreement on bilateral code of conduct between the Philippines and China and between the Philippines and Vietnam leading to a bilateral code of conduct later the same year. In 2009 the joint submission by Malaysia and Vietnam to the CLCS relating to the outer limits of their continental shelves in a defined part of the South China Sea was positive in the context of the bilateral relationship, but it also generated objections from both China and the Philippines. This displays the complexities of the South China Sea situation. Trilaterally, the most interesting case thus far was the China-Philippine-Vietnam trilateral seismic survey between 2005 and 2008, which was not renewed due to the domestic situation in one of the parties.
The Philippines case against China needs to be addressed. As was noted above since China refuses to participate in the arbitral proceedings and consequently the initiative of the Philippines has become a unilateral one. In addition that case displays some differences compared to the two cases brought to ICJ. First, the legal organ to be addressed is a Tribunal created under the Appendix VII of UNCLOS and not the ICJ. Second, there is only one party to pursue the proceedings. Third, the request of Philippines is not focused on maritime delimitation and in addition it is not focused on sovereignty dispute over insular features.
Efforts have also been attempted at the regional level through the ASEAN-China Dialogue which led to the first regional document on the South China Sea in 2002, i.e. the DOC. It is generally acknowledged that peaceful management of the maritime disputes in the South China Sea is in the common interest of all claimants. The on-going efforts to both fully implement the DOC and to possibly agree on a “COC” are further positive developments.
Despite positive developments a number of bilateral disputes remain to be settled. Some multilateral disputes situations are also unsettled and the situation in and around the Spratly archipelago is considered the most serious from a regional perspective. Bilateral, trilateral efforts and also regional initiatives such as the ASEAN-China dialogue and the DOC are positive steps in terms of conflict management, but further efforts are needed including the on-going ASEAN-China dialogue on a possible “COC”.
In conclusion, the parties to the disputes in the South China Sea region have been making efforts to implement the principles and provisions provided both in the Charter of the United Nations as well as in UNCLOS by settling disputes through peaceful means. The formally settled disputed have been achieved through direct negotiations or through international jurisprudence. Conflict management approaches have also been initiated at different levels including at bilateral and at regional levels. These approaches aim to maintain peace and stability, to reduce the risk of incidents causing tension, to manage tension that might occur, and to create conducive conditions for the future peaceful settlement of the disputes.-
 PhD and Associate Professor in Peace and Conflict Research, is Associated Fellow, Institute for Security & Development Policy, Sweden (email@example.com ).
 PhD and Associate Professor in Law, Hanoi National University, Hanoi, Vietnam (firstname.lastname@example.org ).