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.
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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 disputerelated countries1 and powerful countries outside of the region2. 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 twoway 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
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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.)
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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.
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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)
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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 Chinastyled 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
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.
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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
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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.
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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 highranking 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 mutidimensional, 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
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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

ASEAN Declaration On The South China Sea, Manila, Philippines, 22/7/1992, see:
www.aseansec.org/1196.htm.
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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 ASEANChina 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
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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
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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,
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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.

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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.
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