thayer tensions in the south china sea abate after doc guidelines

8/3/2019 Thayer Tensions in the South China Sea Abate After DOC Guidelines

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Will the Guidelines to Implement theDOC Lessen Tensions in the South China

Sea?

An Assessment of Developments Before andAfter Their Adoption

Carlyle A. Thayer

Agreement on Basic Principles Guiding the Settlement of Sea IssuesBetween China snd Viet Nam, October 11, 2011

Paper to 3rd International Workshop on the South China Sea co-sponsored by the Vietnam Lawyers Association and the

Diplomatic Academy of Vietnam

Hanoi, Vietnam, November 3-5, 2011


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Will the Guidelines to Implement the DOC Lessen Tensions in the SouthChina Sea? An Assessment of Developments Before and After Their

Adoption

Carlyle A. Thayer*

Abstract: This paper looks at developments affecting security in the SouthChina Sea prior to and after the adoption of the Guidelines to Implement theDeclaration on Conduct in the South China Sea on July 20, 2011. The first part ofthe paper provides a comparative assessment of Chinas aggressiveassertiveness in relations with the Philippines and Vietnam and their responsesprior to the adoption of the Guidelines. The second part of the paper assessesthe significance of the Guidelines to Implement the DOC on security in the SouthChina Sea. Part three reviews developments after the Guidelines were adoptedwith a focus on Chinas bilateral relations with the Philippines and Vietnam andSino-Indian relations. The paper concludes by arguing that bilateral

arrangements between China and other claimant states is a necessary but notsufficient condition for maintaining security in the South China Sea as long asChina continues to assert indisputable sovereignty over the maritime area.

IntroductionThis paper reviews developments affecting the security of the South ChinaSea during 2011. The paper first discusses Chinese assertiveness in thefirst half of the year and contrasts this with developments in the secondhalf of the year after China and the ten members of the Association ofSoutheast Asian Nations (ASEAN) reached agreement on Guidelines toimplement the 2002 Declaration on Conduct of Parties in the South China

Sea (hereafter DOC Guidelines).

During the first half of 2011 China embarked on pattern of aggressivelyasserting its sovereignty claims in the South China Sea by targeting thecommercial operations of oil exploration ships in waters claimed by thePhilippines and Vietnam. Chinas actions not only raised regional tensionsbut also provoked the Philippines into making repeated diplomaticprotests, increasing its defence budget, lobbying regional states forpolitical support, and aligning more closely with the United States.Vietnam responded by calculated displays of resolve to defend nationalsovereignty, further its program of force modernisation, and stepped up

its defence cooperation with the US, India, Japan, the Philippines andother ASEAN states.

During the second half of the year, after the adoption of the DOCGuidelines, tensions over the South China Sea began to subside anddiplomacy took centre stage. China also initiated a round of high-level

*Carlyle A. Thayer is Emeritus Professor in the School of Humanities and Social Sciences,The University of New South Wales at the Australian Defence Force Academy, Canberra,ACT 2600 Australia. His research focuses on Southeast Asian regional security andforeign policy issues with a particular interest in Vietnam, ASEAN and the ASEANRegional Forum. Many of the authors current research papers may be located at

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diplomacy by hosting official visits by Philippines President BenignoAquino III and Nguyen Phu Trong, Secretary General of the VietnamCommunist Party. China and Vietnam reached a separate bilateralagreement on guidelines to settle maritime disputes during SecretaryGeneral Trongs visit.

This paper is organised into five parts. Part one discusses Chineseassertiveness directed at the Philippines and Vietnam in the first half ofthe year. Part two reviews the responses by the Philippines and Vietnamto Chinese assertiveness. Part three discusses the adoption of Guidelinesfor the Implementation of the DOC (Declaration on Conduct of Parties inthe South China Sea). Part four analyses diplomatic developmentsinvolving South China Sea claimant states after the adoption of the DOCGuidelines. Part five discusses the impact of security trends on theprospects for a resolution of territorial disputes in the South China Sea.

1. Chinese Assertiveness

During the first half of 2011, according to the Philippines Department ofForeign Affairs (DFA), Chinese ships and aircraft intruded into waters andair space claimed by the Philippines on no less than six (and possibly nineor more) occasions. The most serious incidents involved live firing by aPLAN guided missile frigate to intimidate Filipino fishing craft, threats byChinese vessels to rams a Filipino exploration vessel forcing it to suspendoperations in waters in Reed Bank, and the unloading of constructionmaterials in apparent violation of the 2002 Declaration on Conduct of

Parties in the South China Sea (DOC). Vietnam reported two seriousincidents in which Chinese ships reportedly cut the cables of twoexploration vessels carrying out seismic surveys (see Table 1).

In addition, China once again imposed its annual fishing ban and tookmeasures against Vietnamese fishing craft. Although Vietnamesefishermen vowed to defy the ban, the Vietnamese media reported thatmany fishermen remained in their home ports. During the period of theChinese fishing ban the Vietnamese state-controlled Vietnamese pressonly reported two major incidents (see Table 1). In 2011 Chineseauthorities reportedly adopted different tactics from their previous heavy-

handed approach. Chinese ships formed a cordon around the fishinggrounds near the Paracel Islands and turned back Vietnamese fishing craftafter confiscating their catches.

During the period of the Chinese fishing ban Vietnamese authorities inPhu Yen province reported the arrival of Chinese fishing boats inVietnamese waters in greater numbers than in the past. Chinese fishingcraft operating between Da Nang City and the Spratly Islands numberedbetween 120 and 150 and on occasion rose to 200.1

1 Chinese fishing boats violate Vietnam waters; govt mulls patrol boats, Thanh Nien

News, May 29, 2011 .

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2. Responses to Chinese Assertiveness

The Philippines

The Philippines responded to Chinese assertiveness in six major ways: Diplomatic protests including a formal note to the United Nations

Bilateral discussions with Chinese delegations

Reaffirmation of the Mutual Defense Treaty with the United States

Force modernization

Launching a new major diplomatic initiative

Lobbying ASEAN members for support

Table 1Reported Incidents Involving Chinese Ships Against Filipino and

Vietnamese Fishing Boats and Exploration Vessels, February-July 2011

Date

Incident

25/2 PLAN frigate fires at Filipino fishing boats operating in waters off Palawanprovince

2/3 Chinese ships force MV Veritas Voyager from seismic survey work in

Reed Bank

6/5 Chinese vessel spotted at Bombay Shoal

11/5 Two identified aircraft intrude into Philippines air space

11/5 Haikou Municipal government imposes unilateral fishing ban 16 May-1August

21/5 CMS and Salvage ship intrude into Southern Bank

24/5 PLAN/CMS ships unload construction materials on Iroquois Reef-AmyDouglas Bank

26/5 Three Chinese Maritime Surveillance ships accost exploration ship BinhMinh 2 and cut its seismic cable in Block 148 in Vietnams EEZ

29/5 Chinese boats, Fei Sheng No. 16 and Vessel No. B12549, reportedlyattempt to interfere in commercial activities ofViking II exploration shipin Block 136-03 near Vanguard Bank

31/5 Chinese boats, Fei Sheng No. 16 and Vessel No. B12549, reportedlyattempt to interfere in commercial activities of Viking II exploration shipin Block 136-03 near Vanguard Bank

9/6 Chinese ships reportedly cut seismic cables towed by Viking II in Block

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136-03 near Vanguard Bank

1/6 Chinese military vessels reported threaten to fire on a Vietnamesefishing boat in waters near Spratly Islands

30/6 Unreported alleged third attempt to cut cable of Vietnamese explorationship

5/7 Chinese warship dispatches speedboat with armed crew to boardVietnamese fishing craft. They alleged beat captain, threaten crew, seizefishing catch and force fishing craft to leave waters near the ParacelIslands

Diplomatic Protests.

The Philippines DFA responded to each of the major incidents through

diplomatic channels, including lodging diplomatic protests with theChinese Embassy. The Philippines also raised its concerns in public to afar greater extent than Vietnam, including providing the Filipino presswith detailed information on the content of diplomatic notes to theChinese Embassy.

On April 5, the Philippines raised the diplomatic stakes by submitting aletter to the United Nations formally restating its claim to sovereignty overthe Kalayaan Island Group (KIG), adjacent waters and geological featuresincluding relevant waters, seabed and subsoil.2 This action immediatelyprovoked a response by China. On April 14, China lodged a Note Verbale

with the United Nations, accusing the Philippines of infringing Chinesenational sovereignty by invading and occupying islands and reefs in theNansha [Spratly] Islands.3 In early June President Aquino revealed that thePhilippines was preparing to file a complaint to the United Nations inresponse to Chinese intrusions. According to Aquino, We are completingthe data on about six to seven instances since February. We will present itto [China] and then bring these to the appropriate body, which normally isthe United Nations.4

2 Philippine Mission to the United Nations, Letter to the Secretary General of the UnitedNations, 11-00494, No. 000228, New York, April 5, 2011; Agence France Presse,

Philippines protests Chinas Spratlys claim at UN, April 13, 2011; Jerry E. Esplanada,PH runs to UN to protest Chinas 9-dash line Spratlys claims, Philippine Daily Inquirer,April 15, 2011; and Tessa Jamandre, PHL protests Chinese map claiming SpratlyIslands, GMA News TV, April 13, 2011. The KIG contains nine geological features:Balagtas (Irving Reef), Kota (Loaita), Lawak (Nanshan), Likas (West York), Pag-asa(Thitu),, Panata (Lankiam), Parola (Northeast Cay), Patag Island (Flat Island is alsoconsidered a part of the Spratlys) and Rizal (Commodore Reef).

3 Teresa Cerojano, Beijing counters Manilas UN protest, says Philippines started toinvade Spratlys in 1970s, Associated Press, April 19, 2011 and Tessa Jamandre, Chinafired at Filipino fishermen in Jackson atoll, ABS-CBN News, June 3, 2011.

4 Johanna Paola Poblete, Philippines preparing issues for UN about China intrusions,Business World, June 2, 2011; Jim Gomez, Philippines plans new UN protest as China

denies aggressive acts in Spratly Islands, Associated Press, June 3, 2011; and Amita O.

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A review of public reporting on diplomatic exchanges between thePhilippines and China does not reveal a single instance where China tookthe Philippines protest seriously or even offered to look into or investigatethe matter. In all instances, China rejected out of hand diplomatic proteststendered by the Philippines. The facts contained in Filipino protests weredismissed as fabrications or the result of Chinese enforcement of theirlegal jurisdiction in Chinese waters. An exchange on notes in June isinstructive.

On June 4, the DFA lodged a protest with the Chinese Embassy over theincreasing presence and activities of Chinese vessels including navalassets in the West Philippines Sea. The note claimed, These actions ofChinese vessels hamper the normal and legitimate fishing activities of theFilipino fishermen in the area and undermines the peace and stability ofthe region.5 The Chinese Foreign Ministry responded three days later:

Chinese vessels were cruising and carrying out scientific studies in waters underChinas jurisdiction and their activities were in line with the law China asks thePhilippine side to stop harming Chinas sovereignty and maritime rights and interests,which leads to unilateral actions that expand and complicate South China Seadisputes. The Philippines should stop publishing irresponsible statements that do notmatch the facts.6

In July the Philippines stepped up their diplomatic campaign by proposingthat the Philippines and China take their territorial dispute to the UNsInternational Tribunal for the Law of the Sea for resolution. This proposalwas floated in Manila and then raised by Foreign Secretary Albert Del

Rosario in his discussions with Chinas Foreign Minister Yang Jiechi inBeijing.7

Bilateral Discussions. Filipino officials repeatedly raised theirconcerns about security tensions in the South China Sea in theirdiscussions with Chinese officials. Public reporting revealed, however thatthe Philippines was less confrontational in face-to-face meetings than inpublic statements. The visit by Chinas Defence Minister, General LiangGuanglie, is instructive. He paid an official visit to the Philippines fromMay 21-25 for talks with his counterpart Defense Secretary VoltaireGazmin. At the end of their discussions the two ministers issues a joint

Legaspi, Palace prepares Spratlys incursions report, GMA News TV, June 3, 2011.

5 Republic of the Philippines, Department of Foreign Affairs, Statement of theDepartment of Foreign Affairs On the Presence of Chinese Vessels In the West PhilippineSea (South China Sea), June 4, 2011.

6 Agence France-Presse, China says Philippines harming its maritime rights, ABS-CBNNews, June 7, 2011; Reuters, China scolds Philippines over disputed waters, June 8,2011; and Xinhua, Chinese DM Meets with Vietnamese Counterpart in Singapore, June4, 2011.

7 Bloomberg News, U.S. Joint Navy Drills Inappropriate: China, July 11, 2011.

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statement that declared:

both ministers expressed hope that the implementing guidelines of the 2002Declaration of Conduct would soon be finalized and agreed upon, that responsible

behavior of all parties in the South China Sea issue would help keep the area stablewhile all parties work for the peaceful resolution Both ministers recognized thatunilateral actions which could cause alarm should be avoided.8

When Defence Minister Liang met with President Aquino South China Seaissues were discussed in general but the latter refrained from directlyraising the Reed Bank incident and the reported intrusion of Chineseaircraft into Philippine air space.9 But President Aquino warned Liang thatmore maritime incidents in disputed areas of the South China Sea couldspark a regional arms race.10

Mutual Defense Treaty. Chinese assertiveness in waters claimed

by the Philippines immediately raised the question of whether or not the1951 Mutual Defense Treaty between the Philippines and the UnitedStates could be invoked in the event of conflict between China and thePhilippines. The Philippines sought a clear commitment by the UnitedStates while Washington sought to avoid entrapment. Article III of theMutual Security Treaty (Article III) only provided for consultations in theevent the territorial integrity, political independence or security of eitherof the Parties is threatened by external armed attack in the Pacific. In thecase of armed attack, Article IV declared the parties would act to meetthe common dangers in accordance with its constitutional processes.

Finally, Article V of the Mutual Defense Treaty stated an armed attack oneither of the Parties is deemed to include an armed attack on themetropolitan territory of either of the Parties, or on the island territoriesunder its jurisdiction in the Pacific or on its armed forces, public vessels oraircraft in the Pacific. The point needing clarification was whether islandterritories, such as the KIG, acquired after 1951 were included.

Whatever the technicalities of the Mutual Security Treaty, Chinese

8 ABS-CBN News, China, PH agree to hold regular talks on Spratlys, May 23, 2011;

Christine O. Avendano and Dona Z. Pazzibugan, Peaceful Spratlys resolutionreaffirmed, Philippines Daily Inquirer, May 24, 2011; Jim Gomez, China, Philippineswarn rivals on Spratlys, The China Post, May 24, 2011; Simone Orendain, Philippines,China Support Discussion on South China Sea, Voice of America News, May 24, 2011;and Jim Gomez, China, Philippines defense chiefs discuss Spratlys, Associated Press,June 4, 2011.

9 Willard Cheng, Philippines, China OK South China Sea dialogue, ABS-CBN News, May23, 2011.

10 Agence France-Presse, Philippines warns of arms race in South China Sea, May 24,2011 and William B. Depasupil, Philippines Warns of Arms Race in South China Sea,Manila Times, May 25, 2011.

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assertiveness directed at the Philippines served to draw Manila andWashington closer together as allies. On May 14, for example, on the eveof the visit by Chinas Defence Minister, President Aquino and severalmembers of his Cabinet flew out to the USS Carl Vinson aircraft carrier inthe South China Sea as it headed towards the Philippines. The aircraftcarrier and its escorts, the USS Bunker Hill, USS Shiloh and USS Gridley,were scheduled to make a routine port call and goodwill visit.11 The flyout by President Aquino was a highly visible and symbolic reaffirmation ofthe alliance relationship.

In June, it was reported that the Philippines Embassy in Washington was inthe market for excess defence equipment from the US under its ForeignMilitary Sales program.12 The Philippines also announced a new U.S.training program for its naval forces to enable them to better carry outtheir mission of providing security for oil exploration activities in WestPhilippines Sea.13 In August, the Philippines took delivery of the U.S. CoastGuard Cutter USCGC Hamilton and announced that it will patrol disputedwaters in the West Philippine Sea.14

Force Modernisation. In 2011, in response to developments in theSouth China Sea, the Philippines began drawing up a new defencestrategy focused on both internal security operations and externalterritorial defence. The Armed Forces of the Philippines (AFP) wereallocated US $183 million in funds from the Capability Upgrade Program topurchase two offshore fast patrol boats, long-range maritime aircraft,

surveillance and communication equipment including air defence andcoastal radars.15

On March 28th, AFP Chief of Staff General Eduardo Oban announced plansto upgrade Rancudo Air Field on Pag-Asa island.16 In May, a Philippine

11 Christine O. Avendano, Dona Pazzibugan and Jerome Aning, Palace sees no terrorbacklash against Aquino visit to ship, Philippine Daily Inquirer, May 16, 2011.

12 Michael Lim Ubac, Philippines shops for US military gear, Philippine Daily Inquirer,June 5, 2011.

13

Shirley Escalante, Philippines increase security for oil exploration, Australia NetworkNews, April 28, 2011.

14 Philippines set to deploy new patrol ship to Kalayaan Islands, Manila Bulletin, April14, 2011; Agence France-Presse, Philippines to boosts Spratly patrols, Channel NewsAsia, April 15, 2011; and Marichu A. Villanueva, Keeping Phl Navy afloat, The PhilippineStar, May 16, 2011.

15 Jon Grevatt, Philippines to invest USD183 million in defence of Spratly Islands,JanesDefence Weekly, March 30, 2011; Reuters, Philippines steps up presence in South ChinaSea, March 28, 2011; Associated Press, Philippines to bolster watch in disputedSpratlys, Bloomberg Businessweek, March 28, 2011; and China denies incursion intoWest Philippine Sea, The Philippine Star, June 3, 2011.

16 Jaime Laude, AFP to maintain presence in Spratlys, The Philippine Star, March 29,

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navy study recommended the acquisition of submarines as a deterrentagainst future potential conflicts.17 The Philippines also expects to takedelivery of two additional U.S. Coast Guard Cutters, three new Taiwan-manufactured Multi-Purpose Attack Craft and acquire six jet fighters.18 Theissue of force modernisation is addressed in part five below.

New Diplomatic Initiative. Also in response to Chineseassertiveness, President Aquino launched a new initiative calling for theSouth China Sea to become a Zone of Peace, Freedom, Friendship andCooperation (ZOPFF/C). Aquino explained , what is ours is ours, and withwhat is disputed, we can work towards joint cooperation.19 He directedthe Department of Foreign Affairs to promote the ZOPFF/C conceptthrough sustained consultations and dialogue.

According to the DFA, the ZOPFF/C provides a framework for separating

the disputed territorial features that may be considered for collaborativeactivities from non-disputed waters in the West Philippines Sea inaccordance with international law in general and the United NationsConvention on Law of the Sea (UNCLOS) in particular.20 A disputed area,according to the DFA, could be turned into a Joint Cooperation Area forjoint development and the establishment of marine protected area forbiodiversity conservation. Areas not in dispute, such as Reed Bank thatlies on the Philippines continental shelf, can be developed exclusively bythe Philippines or with the assistance of foreign investors invited toparticipate in its development.

Lobbying ASEAN Members. In response to Chinese assertiveness,President Aquino embarked on an intense round of lobbying with ASEANstates to present a unified stance in discussions with China on guidelinesto implement the DOC, on a more binding Code of Conduct, and for hisZOPFF/C initiative. On March 8, President Aquino paid an official visit toIndonesia where he conferred with President Susilo Bambang Yudhoyono.Next, in early June, President Aquino continued his lobbying during anofficial visit to Brunei Darussalam for discussions with Sultan Hassanal

2011.

17 Katherine Evangelista, Philippines eye submarines to boost navy, Philippine DailyInquirer, May 17, 2001. The prospect of the Philippines acquiring submarines is highlyunlikely.

18 Reuters, Philippines says will spend $255 min on military helicopters, boats, April 13,2011 and Agence France Presse, Philippines hopes sea dispute with China should ease,September 3, 2011.

19 Albert F. Del Rosario, A Rules-Based Regime in The South China Sea By: Secretary ofForeign Affairs, Public Information Service Unit, June 7, 2011.

20 Amita O. Legaspi, Palace prepares Spratlys incursions report, GMA News TV, June 3,2011.

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Bolkiah.

President Aquino told the reporters covering his visit to Brunei: Wegovern ourselves there [Spratly Islands/KIG]. Instead of one country has a

bilateral agreement with China and the other has a different bilateralagreement with China. Lets come together as a body.21 Aquino alsorenewed his call for the immediate adoption of the implementingguidelines on the DOC.22 The following day a DFA spokesperson called fora more binding Code of Conduct of Parties in the South China Sea inorder to address territorial disputes.

Vietnam

Vietnam and China share a dense network of mechanisms that regulatetheir bilateral relationship based on a long-term cooperative framework

agreement signed between their ruling communist parties in 1999.

23

Vietnam, unlike the Philippines, is not a treaty ally of the United States.These two factors have served to shape Vietnamese responses to Chineseassertiveness in the South China Sea in 2011. Vietnam employed fourmajor means to manage security tensions:

Bilateral discussions

Public reaffirmations of sovereignty

Live-firing naval exercises

Special diplomatic envoys

Bilateral Discussions. During the first half of 2011, Vietnamattempted to manage growing security tensions in the South China Seathrough bilateral discussions with China. Vietnam hosted two importantChinese delegations and arranged for sideline talks between defenceministers at the Shangri-la Dialogue. These discussions were aimed atcompartmentalising the South China Sea dispute from spilling over andnegatively affecting the broad-based bilateral relationship. Morespecifically, these bilateral discussions were aimed at mutual assurancethat force would not be used to settle territorial disputes.

In April, Vietnam received Senior Lieutenant General Guo Boxiong, ViceChairman of Chinas Central Military Commission, who came at theinvitation of General Phung Quang Thanh, Minister of National Defence.

21 Johanna Paola D. Poblete, Philippines preparing issues for UN about Chinaintrusions,: Business World, June 2, 2011.

22 Adoption of territorial guidelines urged, Manila Bulletin, June 2, 2011.

23 Carlyle A. Thayer, Vietnam and Rising China: The Structural Dynamics of MatureAsymmetry, in Daljit Singh, ed., Southeast Asian Affairs 2010 (Singapore: Institute of

Southeast Asian Studies, 2010), 392-409.

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The main purpose of Guos visit was to plan for the next round of jointnaval patrols in the Gulf of Tonkin and to discuss expanding the scope offuture cooperative military activities.24 Guos visit took place prior to thefirst cable-cutting incident. Although the South China Sea was not aformal agenda item, South China Sea issues were raised when GeneralGuo was received by Prime Minister Nguyen Tan Dung. Dung, in anobvious message to leaders in Beijing, proposed the two sides talk andseek fundamental and long-lasting measures that both sides are able toaccept for the East Sea [South China Sea] issue25 Guos visit highlightsthat both sides were willing to compartmentalise territorial disputes fromthe larger relationship. For example, despite the tensions raised by thefirst cable-cutting incident on May 26the joint naval patrols took place asschedule and after which the Vietnamese naval ships made their secondport call in China.26

Immediately following General Guos visit, Vietnam hosted a bilateralmeeting of the heads of the government delegations on bordernegotiations (April 18-19).27 These discussions were held at deputyminister level. Chinas Foreign Ministry reported that the two viceministers pledged, to properly handle maritime disputes through friendlyconsultations and explore solutions with a positive and constructiveattitude.28 A Vietnamese spokesperson revealed that the two sidesagreed they will sign an agreement on the fundamental guidelines tosettle the maritime issues. It was also noted that negotiations were stillcontinuing and no date had been set to sign the agreement.29

The first high-level bilateral meetings after the May cable-cutting incident

24 Li Qiong, China, Vietnam Issue Joint Press Communiqu on CMC Vice Chairman GuoBoxiongs Visit to Vietnam, Xinhua, April 17, 2011.

25 Vietnam News Agency, Party Leaders Meeting with Chinese General, April 14, 2011.

26 The Chinese and Vietnamese navies conducted their eleventh routine joint patrol inthe Gulf of Tonkin from June 19-20. Margie Mason, Vietnam and China hold joint navalpatrol amid spat, Associated Press, June 21, 2011 and Agence France Presse, China,Vietnam hold joint sea patrols near disputed Spratlys, June 23, 2011. After the patrol

was concluded the Vietnamese ships paid a visit to Zhanjiang, Guangdong, Vietnamssecond ever port call to China. See: Vietnamese naval ships on friendly visit to China,Quan Doi Nhan Dan Online, June 22, 2011; China, Vietnam engage in Joint navalpatrols, Peoples DailyOnline, June 22, 2011; and Vietnamese naval ships wrap up visitto China, Quan Doi Nhan Dan Online,June 27, 2011.

27 Vietnam, China talk border-related issues, Vietnam News Agency, April 18, 2011.

28 Peoples Republic of China, Ministry of Foreign Affairs, Vietnamese Prime MinisterNguyen Tan Dung Meets with Chinese Vice Foreign Minister Zhang Zhijun, April 20,2011.

29 Deutsche Presse-Agentur, Vietnam and China pledge to settle South China Seadisputes, April 20, 2011 and Agence France Presse, Vietnam, China vow to work on

disputed sea pact, April 21, 2011.

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took place in June on the sidelines of the Shangri-la Dialogue. Prior to thismeeting, Vietnams Defence Minister Phung Quang Thanh raised SouthChina Sea issues in his plenary address. He spoke in detail about the legalbasis for activities at sea to facilitate cooperation for development anddeter actions that risk our common interests, regionally and nationally.30

Defence ministers Thanh and Liang Guanglie, met informally on thesidelines of the Singapore forum. Thanh expressed the concern ofVietnamese party and state leaders over what he termed a pressingincident, and then offered the conciliatory comment that Sometime,regrettable cases happen which are beyond the expectation of bothsides. Thanh concluded, We truly expect no repetition of similarincidents.31 Liang replied that China also did not want a similar incidentto occur in the future.32 Liang and his aides noted in particular that thePeoples Liberation Army was not involved in the incident. Four days latera second cable-cutting incident occurred involving Chinese civilianmaritime authorities.

Reaffirmations of Sovereignty. Chinas first cable-cuttingincident provoked an anti-China nationalist outcry in Vietnam on the partof students, intellectuals and retired official. On June 5 they conducted thefirst of a series of eleven anti-China public demonstrations over a twelve-week period. Also in early June, growing enmity between nationalists inChina and Vietnam spilled over into cyberspace. According to NguyenMinh Duc, director of the Bach Khoa Internetwork Security Centre, more

than two hundred Vietnamese websites were subject to cyber attacks.Among the sites affected were those of the ministries of Agriculture andRural Development and Foreign Affairs where hackers succeeded inposting Chinese flags and slogans.33

On June 9, Prime Minister Nguyen Tan Dung responded to the cablecutting incidents and growing domestic pressure by making an unusuallystrong statement in public in defence of national sovereignty. Dung said:We continue to affirm strongly and to manifest the strongestdetermination of all the Party, of all the people and of all the army inprotecting Vietnamese sovereignty in maritime zones of the country.

30 Phung Quang Thanh, Responding to New Maritime Security Threats, Presentation tothe 10th IISS Asian Security Summit the Shangri-La Dialogue, June 5, 2011.

31 East Sea incident a pressing issue: Vietnamese Defense Minister, Thanh Nien News,June 4, 2011.

32 Xinhua, Chinese DM Meets with Vietnamese Counterpart in Singapore, June 4, 2011.

33 Agence France Presse, Vietnam complains to China as sea tensions rise, June 9,2011 and Ian Timberlake, Vietnam to hold live-fire drill as China rift grows, June 10,

2011.

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Dung also reaffirmed the incontestable maritime sovereignty of Vietnamtowards the two archipelagos, the Paracel and Spratlys.34 On the sameday, President Nguyen Minh Triet, visiting Co To island off Quang Ninhprovince near the China border, stated that Vietnam was determined toprotect its islands and we are ready to sacrifice everything to protectour homeland, our sea and island sovereignty.35

Live-Firing Naval Exercises. Vietnam has always been extremelycircumspect in its public commentary on relations with China. The publicstatements by Prime Minister Dung and President Triet were virtuallyunheard of. But no action was more calculated than Vietnamsunprecedented public announcement that it would be conducing live-firingnaval exercises. These live-fire drills may have been provoked by Chinasconduct of a massive naval exercise in the northern reaches of the South

China Sea earlier that month.On June 9, Vietnams Northern Maritime Safety Corporation announcedthat live firing exercises would be held on June 13in the waters near HonOng Island.36 Vietnams Foreign Ministry characterized these exercises asa routine annual training activity of the Vietnam navy in the area wherethe Vietnam navy regularly conducts training [activities] that areprogrammed and planned annually for units of the Vietnam PeoplesNavy.37

The first phase of the exercise involved coastal artillery, while the secondpart of the exercise involved missile corvettes firing their deck guns.Reportedly, anti-ship missiles were also fired from Sukhoi jet aircraft.38

Hon Ong Island is located approximately forty kilometres off Quang Namprovince in central Vietnam roughly opposite the Paracel Islands and atquite a distance from the two cable-cutting incidents. Vietnams live-fireexercises were most certainly conducted to signal Vietnams resolve todefend its commercial oil exploration activities against further Chinese

34 Agence France Presse, Vietnam PM says sea sovereignty incontestable, June 9,2011.

35 Deutche Presse-Agentur, Vietnams top leaders add fire to South China Sea dispute,

June 9, 2011.

36 Bao Dam An Toan Hang Hai Mien Bac [Northern Maritime Safety Corporation], Ve viecban dan that tren vung bien Quang Nam, So 107/TBHH-CT.BDATHHMB, June 9, 2011,http://www.vms-north.vn.

37 Margie Mason, Vietnam plans live-fire drill after China dispute, Associated Press,June 10, 2011; Agence France Presse, Vietnam to hold live-fire drill as China rift grows, June 10, 2011; John Ruwitch, Vietnam welcomes international help as sea disputeescalates, Reuters, June 11, 2011; and Deutsche Presse-Agentur, Navy official sayslive-fire drills well inside Vietnams territory, June 11, 2011.

38 Reported by a confidential Vietnamese military source to the author.

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interference.39

On the same day that the live-firing exercises were announced, PrimeMinister Dung underscored the seriousness of Vietnams resolve by

issuing a decree on military service that included provisions for theconscription of persons with special skills needed by the military.40

According to one analysis the decree served two purposes. First, itassuaged growing domestic pressure for the government to stiffen itsresponse to China. Second, it was a demonstration of resolve in responseto Chinese assertiveness.41

Special Diplomatic Envoys. In January 2011 the VietnamCommunist Party elected a new leadership at its eleventh nationalcongress. An indication of the importance of Vietnams bilateralrelationship with China was signalled when the new Secretary General,

Nguyen Phu Trong, dispatched special envoy Hoang Binh Quan to Beijing.Quan met with President and General Secretary of the ChineseCommunist Party, Hu Jintao, and briefed him on the outcome of thecongress. Quan also extended an invitation to Hu and other Chinese partyand state leaders to visit Vietnam. In return, Hu extended a reciprocalinvitation to Secretary General Trong to visit China.42

China had also extended a similar invitation to President Aquino after hisinauguration. Aquino repeatedly postponed his official visit reportedly dueto tensions over the South China Sea. In Vietnams case, Hanoi had tomake the first move and party Secretary General Trong followed PresidentAquino to Beijing in October. Trong, however, significantly made his firstoverseas visit as party leader to Laos.

After the second able-cutting incident, Vietnam dispatched its secondspecial envoy to China, deputy foreign minister Ho Xuan Son. Son helddiscussions with his counterpart Zhang Zhijun. Significantly, Son wasreceived by State Councillor Dai Bingguo.43 According to a joint pressrelease issued on June 25:

39 The Global Times, an English-language newspaper published by the ChineseCommunist Party, editorialized on June 11 that Vietnams conduct of a live-firing

exercises was the lowest form of nationalism to create a new enmity between thepeople of the two countries, quoted in Associated Press, Chinese Communist Partynewspaper cautions Vietnam, 11 June 11, 2011.

40 Deutsche Presse-Agentur, Decree on military call-up sparks online patriotism inVietnam, June 14, 2011 and Agence France-Presse, Vietnam signs military order amidtensions, June 15, 2011. The Decree also listed eight categories of exemptions.

41 BBC News Asia-Pacific, Vietnam bolsters military stance amid China marine row, June14, 2011.

42 Xinhua, Chinese president vows to further ties with Vietnam, February 18, 2011 andVoice of Vietnam News, Chinas Hu Jintao invites Nguyen Pho Trong, February 19,

2011.

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The two sides emphasized the necessity to actively implement the commonperceptions of the two countries leaders, peacefully solving the two countriesdisputes at sea through negotiation and friendly consultation; employing effectivemeasures and working together to maintain peace and stability in the East Sea [sic].

They also laid stress on the need to steer public opinions along the correct direction,avoiding comments and deeds that harm the friendship and trust of the people of thetwo countries.

The two sides agreed to speed up the tempo of negotiations so as to early sign anAgreement on basic principles guiding the settlement of sea issues betweenVietnam and China, and boost the implementation of the Declaration on Conduct ofParties in the East Sea (DOC) and follow-up activities so that substantial progress willsoon be achieved.44

3. Adoption of the DOC GuidelinesIn 2004, two years after negotiating the Declaration on Conduct of Parties

in the South China Sea, the ASEAN-China Senior Officials Meeting agreedto establish the ASEAN-China Joint Working Group (JWC) to Implement theDOC. The JWG held its first meeting in Manila in August 2005. The Termsof Reference for the Joint Working Group specified that the JWG was tomeet twice a year to formulate recommendations in four areas:

Guidelines and the action plan for the implementation of the DOC

Specific cooperative activities in the South China Sea

A register of experts and eminent persons who may provide

technical inputs, non-binding and professional views or policyrecommendations to the ASEAN-China JWG

The convening of workshops, as the need arises45

Table 2

Comparison of the Final DOC Guidelines with Text of Original Draft

Point

Final Wording (2011) Original Draft (2005)

43 Edward Wong, China and Vietnam Agree to Talks on South China Sea Dispute, TheNew York Times, June 26, 2011; Brian Spegele, China Announces Pact with Vietnam onDisputes Sea, The Wall Street Journal, June 26, 2011; Dan Martin, China, Vietnam vowto cool S. China Sea tensions, Agence France Presse, June 27, 2011; and Qin Zhongwei,China, Vietnam agree on talks to solve sea dispute, China Daily, June 27, 2011.

44 Socialist Republic of Vietnam, Ministry of Foreign Affairs, Viet Nam-China joint pressrelease, June 26, 2011. http://www.mofa.vn/en. Anti-China demonstrations continued inHanoi until August 21 when they were finally halted.

45 Association of Southeast Asian Nations, Terms of Reference of the ASEAN-China JointWorking Group on the Implementation of the Declaration on Conduct of Parties in the

South China Sea, December 7, 2004. Available at: http://www.asean.org/16886htm.

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1 The implementation of the DOCshould be carried out in a step-by-step approach in line with theprovisions of the DOC.

The implementation of the DOCshould be carried out in a step-by-step approach in line with theprovisions of the DOC.

2 The Parties to the DOC will continueto promote dialogue and consulta-tions in accordance with the spirit ofthe DOC.

ASEAN will continue its current practice of consulting amongthemselves before meeting withChina.

3 The implementation of activities orprojects as provided for in the DOCshould be clearly identified.

The implementation of the DOCshould be based on activities orprojects clearly indentified.

4 The participation in the activities orprojects should be carried out on avoluntary basis.

The participation in the activitiesor projects should be carried outon a voluntary basis.

5 Initial activities to be undertakenunder the ambit of the DOC shouldbe confidence-building measures.

Initial activities to be undertakenunder the ambit of the DOC shouldbe confidence-building measures.

6 The decision to implement concretemeasures or activities of the DOCshould be based on consensusamong parties concerned, and leadto the eventual realization of a Codeof Conduct.

The decision to implementconcrete measures or activities ofthe DOC should be based onconsensus among partiesconcerned and lead to theeventual realization of a COC.

7 In the implementation of the agreedprojects under the DOC, the servicesof the Experts and Eminent Persons,if deemed necessary, will be soughtto provide specific inputs on theprojects concerned.

In the implementation of theagreed projects under the DOC,the service of the experts andeminent persons if deemednecessary will be to providespecific inputs on the projectconcerned.

8 Progress of the implementation ofthe agreed activities and projectsunder the DOC shall be reportedannually to the ASEAN-ChinaMinisterial Meeting (PMC)

Not in original draft guidelines

The twice annual meeting of the ASEAN-China JWC was honoured in thebreach.

ASEAN also tabled draft guidelines for discussion at the August 2005meeting. These guidelines made provision for ASEAN states to caucus firstprior to meeting with China. China objected and insisted that outstandingdisputes should be resolved by bilateral consultations among relevantparties and not with ASEAN as a group. Consequently, the JWG did notmake any progress for the next six years as China and ASEAN quibbledover the wording of at least twenty-one successive drafts.

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Recent Chinese assertiveness in advancing its sovereignty claims in theSouth China Sea provoked both a regional and international backlash.South China Sea disputes featured prominently in 2010 at the ASEANRegional Forum and at the inaugural ASEAN Defense Ministers MeetingPlus. China was isolated diplomatically and sought to limit further damageby agreeing to revive the moribund ASEAN-China Joint Working Group. The fifth meeting of the JWG was convened in Kunming, China inDecember 2010. The sixth JWG met in Medan, Indonesia in April 2011. Atboth meetings it became clear that progress was still hostage to Chinasinsistence that territorial and sovereignty claims could only be settledbilaterally by the states concerned.

In July 2011, ASEAN Senior Officials quietly dropped the offending text inpoint two of their original draft guidelines and offered a drasticallywatered down formulation to their ministers for approval. On July 20, theASEAN and Chinese foreign ministers finally approved The Guidelines forthe Implementation the DOC. These guidelines consisted of eight briefpoints preceded by a three-paragraph preamble.46

The preamble identified the DOC as a milestone document signedbetween the ASEAN Member States and China, underscoring that theDOC was not an agreement between ASEAN as a group and China.Second, the preamble stated that the effective implementation of theDOC will contribute to the deepening of the ASEAN-China StrategicPartnership for Peace and Prosperity. This was an inducement for Chinato take concrete action. Finally, the preamble noted that the Guidelinesare to guide the implementation of possible joint cooperative activities,measures and projects as provided for in the DOC. This formulationclearly indicates that the Guidelines are tentative and not binding.

Table 2 above sets out a comparison of the 2005 original draft and thefinal draft adopted in 2011. There are only two substantial points ofdifference. Point 2 in the original draft was substantially revised to meetChinese objectives. Prior ASEAN consultation was replaced with theweaker injunction to promote dialogue and consultations in accordancewith the spirit of the DOC. An eighth point was added specifying that

activities and projects undertaken under the DOC should be reported tothe ASEAN-China Ministerial Meeting.

Immediately after the Guidelines were adopted, the Philippines ForeignSecretary Albert Del Rosario noted that they would need more teeth tomake them effective. According to Del Rosario, The necessary elementsto make the guidelines succeed are still incomplete. Were looking for theparticipants to be honorable. Beyond that theres not much room for us to

46 Association of Southeast Asian Nations, The Guidelines for the Implementation of theDOC. http://www.asean.org/4979.htm. The DOC Guidelines were posted on the ASEANSecretariat web site under External Relations, China, Cooperation on the South China

Sea. They have since been removed.

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exact consequences for misbehavior.47

4. Diplomatic DevelopmentsAfter ASEAN and China adopted the DOC Guidelines, there was a

noticeable lowering of security tensions as claimants put their energiesinto diplomacy. This section highlights four major developments: high-level visits to Beijing by leaders from the Philippines and Vietnam; anagreement between China and Vietnam on the settlement on sea issues;the convocation of an ASEAN Legal Experts meeting to consider PresidentAquinos ZOPFF/C initiative; and defence-security dialogues andagreements on defence cooperation.

High-Level Visits to Beijing. After President Aquino assumed officehe received an invitation to pay an official state visit to China. The visitwas reportedly postponed on one or more occasions because of rising

tensions over territorial disputes in the South China Sea. When ASEAN andChina adopted the Guidelines on the DOC the way was now cleared forPresident Aquino to visit Beijing. He made his official visit from August 30to September 3 at the invitation of President Hu Jintao.

The joint statement issued at after their talks indicated that economicissues featured prominently. For example, Aquino reportedly garnered US$1.3 billion in new investments.48 The joint statement only madereference to the South China Sea at the bottom of the list of topicsdiscussed (point 15 of 17 points):

Both leaders exchanged views on the maritime disputes and agreed not to let themaritime disputes affect the broader picture of friendship and cooperation betweenthe two countries. The two leaders reiterated their commitment to addressing thedisputes through peaceful dialogue, to maintain continued regional peace, security,stability and an environment conducive to economic progress. Both leadersreaffirmed their commitments to respect and abide by the Declaration on theConduct of Parties in the South China Sea signed by China and the ASEAN membercountries in 2002.49

On Aquinos return to Manila he revealed that President Hu Jin-taosupported an implementing agreement for a South China Sea Code ofConduct. According to Aquino, this was very significant, because before it

was just a general statement of principles. Now theres a desire to really

47 Purple S. Romero, Asean, China adopt guidelines on Spratlys, Newsbreak, July 22,2011.

48 Aquino back from 5-day US visit, September 23, 2011 and Manolo B. Jara, Aquinobrings home $13b worth of China investments, The Gulf Today, September 5, 2011. Jarareported, Aquino said the Chinese goodies he brought home consisted of $1.28 billionworth of new investments, $3.8 billion in assured investments and $7.9 billion frombusinessmen who showed interest in investing in the Philippines.

49 Joint Statement of the Philippines and China, Beijing, September 1, 2011, reprinted

in Inquirer Global Nation, September 7, 2011.

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put in the implementing rules and regulations.50 Nevertheless, PresidentAquino continued to press for a multilateral South China Sea Code ofConduct and agreement on demarcating the precise maritime areas indispute.

Vietnams party Secretary General Nguyen Phu Trong made an officialvisit to China from October 11-15 to meet with General Secretary HuJintao and other high-ranking Chinese officials. Three major agreementswere signed: Cooperation Plan Between the Vietnam Communist Partyand the Chinese Communist Party (2011-15), Five-Year Economic-TradeCooperation Development Plan (2012-16) and an Agreement on BasicPrinciples Guiding the Settlement of Sea Issues Between Vietnam andChina (discussed below).51

Discussions between Hu Jintao and Nguyen Phu Trong focused mainly on

further steps to promote the China-Vietnam comprehensive strategicpartnership through continued high-level visits, enhanced party-to-partyties (exchanges of Central Committee commissions and workshops onideology), strengthening the role of the Joint Steering Committee inmanaging bilateral state-to-state relations, stepped up cooperationbetween the two militaries and law enforcement agencies, and otherareas of cooperation. A hot-line was inaugurated connecting high-levelleaders.

At the conclusion of their discussions they issued an eight-point JointStatement.52 Unlike the China-Philippines Joint Statement, the China-

Vietnam Joint Statement included a detailed reference to maritime issues.Both sides reaffirmed their commitment to the settlement of maritimeissues through friendly negotiations and to refrain from acts that cancomplicate or expand the disputes, prevent hostile forces from sabotagingthe relationship between the two parties and two countries, [and] dealwith emerging issues with a constructive attitude, preventing them fromaffecting relations between the two parties

Regarding defence cooperation the Joint Statement declared:

Fourthly, to promote in-depth cooperation between the two armies, increase contactbetween high-ranking army leaders of the two countries; continue to organise goodstrategic dialogues at deputy ministerial level; accelerate the establishment of adirect telephone line between the two defence ministries; increase cooperation in

50 China Wants Binding S. China Code: Aquino, Bloomberg News, August 31, 2011 andBarbara Mae Dacanay, China and Philippines agree to peace over South China Sea,Gulf News, September 2, 2011.

51 Three other agreements were also signed: education exchange (2011-15), protocol onamending the Road Transport Agreement, and an additional protocol to implement theRoad Transport Agreement.

52 Tuyen bo chung hai nuoc Viet Nam va Trung Quoc, Vietnam News Agency, October

15, 2011.

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personnel training and exchanges between junior officers; conduct trial joint patrolsalong the land border at a convenient time; continue to hold joint naval patrols in theGulf of Tonkin ; increase cooperation in such fields as mutual visits by the twocountries naval ships.53

Based on the Agreement on Basic Principles Guiding the Settlement ofSea Issues Between Vietnam and China the two leaders pledged to: speedup negotiations on demarcation of areas beyond the mouth of the Gulf ofTonkin and to discuss cooperation for mutual development (hop taccung phat trien) in such areas as marine environmental protection,marine scientific research, search and rescue at sea, oil and gasexploration and exploitation, and natural disaster prevention.

It is significant both the Philippines and Vietnam sought to balance theirrelations with China by dispatching their presidents to Japan and India,respectively.54 President Aquino paid a working visit to Japan fromSeptember 25-28, while Vietnams President Truong Tan Sangs officialvisit to India coincided with Secretary General Trongs trip to Beijing.

President Aquino and Prime Minister Yoshihiko Noda welcomed theadoption of the DOC Guidelines and expressed their hope for the earlyformulation of a legally-binding Code of Conduct (COC) that is consistentwith established international law. With respect to maritime security theJapan=Philippines Joint Statement declared:

The two leaders confirmed that the South China Sea is vital, as it connects the worldand the Asia Pacific region, and that peace and stability therein is of common interest

to the international community. As leaders of countries sharing sea lines ofcommunication, they also confirmed that freedom of navigation, unimpededcommerce, and compliance with established international law including the UNCLOSand the peaceful settlement of disputes serve the interest of the two countries andthe whole region. They share the recognition that these same interests should also beadvanced and protected in the South China Sea.55

In 2007 Vietnam and India raised their bilateral relations to that of astrategic partnership. President Truong Tan Sangs visit to India wasdesigned to further that relationship in a number of areas. But the timingof two high-level Vietnamese visits to China and India clearly signalledthat Vietnam sought to maintain equilibrium in its external relations. The

final Joint Statement, when compared with the wording Japan-Philippine Joint Statement, was completely anodyne in its treatment of territorialdisputes in the South China Sea. Point 14 stated:

53 Tuyen bo chung hai nuoc Viet Nam va Trung Quoc, Vietnam News Agency, October15, 2011, point 4(iv).

54 On the Philippines, see: Amando Doronila, Aquinos balance of power diplomacy overSpratlys, Philippine Daily Inquirer, October 3, 2011.

55 Japan-Philippines Joint Statement on the Comprehensive Promotion of the StrategicPartnership between Neighboring Countries Connected by Special Bonds of Friendship,

September, 27, 2011.

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The two sides stressed the importance of maintaining peace, stability and of ensuringthe safety, security and freedom of navigation in the high seas. The two sides agreedthat disputes in the East Sea/South China Sea should be settled through peacefulnegotiations, without resorting to the threat or use of force by the parties concerned,in accordance with universally recognized principles of international law, includingthe 1982 United Nations Convention on the Law of the Sea and the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea.56

The Joint Statement, however, did make provision for stepping upcooperation in the field of capacity building, technical assistance andinformation sharing between their respective agencies for ensuringsecurity of sea-lanes (Point 15).

China-Vietnam Agreement on Settlement of Sea Issues. Inearly 2010 China and Vietnam initiated bilateral discussions on borderissues with the aim of reaching agreement on a set of fundamental

guiding principles as a framework for settling maritime issues. Vietnamand China agreed to bilateral discussions on maters that did not affectthird parties, such as the waters at the mouth of the Gulf of Tonkin.Vietnam and China, however, differed on the question of multilateralnegotiations. According to Vietnam:

Issues that are related to other countries and parties like the Spratly Islands cannotbe settled by Vietnam and China, they require the participation of other concernedparties. For issues that are not only related to countries that border the East Sea suchas maritime safety and security, they must be negotiated and settled by all countriesthat share this common interest.57

At the conclusion of the seventh round on August 1, 2011, a Vietnamesespokesperson noted that the two sides reached preliminary consensus onsome principles and that the eighth round of discussion would be heldlater in the year.58

Before the eighth round was held China and Vietnam convened the fifthannual meeting of their bilateral Joint Steering Committee in Hanoi onSeptember 6. China was represented by State Councillor Dai Bingguo whomet with his counter-part Deputy Prime Minister Nguyen Thien Nhan. TheJoint Steering Committee oversees all aspects of their bilateral relations.The two interlocutors, inter alia, discussed conflicting territorial claims in

the South China Sea. According to the final communiqu:

56 Republic of India Ministry of External Affairs, Joint Statement on the occasion of thevisit of the President of Vietnam, October 12, 2011, http://meaindia.nnic.in/mystart.php?id=190018387. Accessed October 14, 2011.

57 Socialist Republic of Vietnam, Ministry of Foreign Affairs, Answer from VietnamMinistry of Foreign Affairs Spokesperson Nguyen Phuong Nga to Questions by GregTorode South China Morning Post, December 2010. Torode kindly provided a copy ofthis document to the author.

58 Vietnam, China agree to resolve sea dispute through peaceful means, Vietnam News

Agency, August 3, 2011.

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They will accelerate the process of negotiations and seek fundamental and long-term solutions acceptable to both sides. They agree to strengthen negotiations onthe marine issues and sign the agreement on the basic principles guiding thesettlement of marine issues between China and Vietnam at an early date. Theywill boost the implementation of the Declaration on the Conduct of Parties in theSouth China Sea and follow-up work and try to achieve substantial progresssoon59.

China and Vietnam were good at their word and, as noted above, thedeputy ministers of the two countries signed the Agreement on BasicPrinciples Guiding the Settlement of Sea Issues Between Vietnam andChina on October 11.60 The agreement committed both parties to seekmutually acceptable fundamental and lasting solutions to sea-relateddisputes. In the meantime, the two sides shall actively discussprovisional and temporary measures without affecting each sidespositions and policies, including the active consideration and discussion

on cooperation for mutual development [hop tac cung phat trien]Specifically, the two parties would spend up negotiations to demarcatethe waters forming the mouth of the Gulf of Tonkin and actively discusscooperation for mutual development in these waters (emphasis added).The Agreement also specified if the disputes involve other countries, theconsultations shall include all other parties concerned.

ASEAN Legal Experts. In July, at the 44th ASEAN Ministerial Meeting,the Foreign Secretary of the Philippines presented his counterparts with aproposal for an agreement on a Zone of Peace, Freedom, Friendship andCooperation in the South China Sea. The ministers took note of thisproposal and referred it to a meeting of ASEAN Senior Officials and legalexperts for consideration.61 In preparation for this meeting, the PhilippinesDFA drew up a proposal to create enclaves for disputed maritimeterritory in the South China Sea in order to separate these areas fromnon-disputed maritime territory. According to the DFA proposal,(E)nclaving will literally operationalize the shelving of territorial disputesand pave the way for effective and meaningful cooperation among theclaimant countries in the West Philippine Sea (or) South China Sea.62

59 Peoples Republic of China, Ministry of Foreign Affairs, Joint Press Release of the 5thMeeting of China-Vietnam Steering Committee for Bilateral Cooperation, September 8,2011. http://www.fmprc.gov.cn/eng/zxxx/t857247.htm.

60 Thoa thuan ve nhung nguyen tac co ban chi dao giai quyet van de tren bien giuanuoc CHXHCN Viet Nam va nuoc CHND Trung Hoa, Vietnam News Agency, October 12,2011.

61 Bea Cupin, ASEAN, China agree to heed guidelines covering Spratlys, GMA News, July 20, 2011 and Brian Padden, ASEAN Maritime Specialists Discuss Guidelines toResolve S. China Sea Dispute, Voice of America, September 22, 2011.

62 DFA to propose enclaving of disputed areas in South China Sea, GMA News,September 21, 2011 and VP Binay pushes for DFA proposal on Spratlys, GMA New,

September 22, 2011.

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A meeting of the ASEAN Maritime Legal Experts was held in Manila fromSeptember 22-23. This meeting was part of an attempt by the Philippinesto form a united front vis--vis China.63 With the exception of Cambodiaand Laos, all other ASEAN states were represented. This meeting heldextensive discussions on the Philippines ZOPFF/C initiative and resolvedto forward this proposal to the next ASEAN Senior Officials Meeting for itsconsideration. According to Foreign Affairs Secretary Del Rosario, For theDOC to be effective, an actionable framework for joint cooperation in theWest Philippine Sea, such [as] ZOPFF/C, is considered as an imperative.64

The ASEAN Senior Officials are expected to make a recommendation totheir ministers prior to the convening of the 19th ASEAN Summit in Bali inNovember.

Defence Dialogues and Defence Cooperation Agreements.Vietnam has long-standing defence dialogues with the United States,China, India and Japan. In recent years maritime security issues ingeneral, and disputes in the South China Sea in particular, have featuredprominently. In Vietnams case it seems clear that Hanoi uses its defencedialogues with the US, Japan and India to hedge against Chineseassertiveness.

Vietnam and the United States. Vietnam conducts two dialogueswith the United States. The first is a Political, Security and Defensedialogue conducted between the State Department and the Ministry ofForeign Affairs at deputy minister level. The second and more recent

dialogue, the Defense Policy Dialogue, is conducted between theDepartment of Defense and the Ministry of National Defence at deputyminister level. The section below discusses each of these dialogue as wellas major developments in bilateral defence cooperation in the second halfof 2011.

On June 17, the United States and Vietnam held their 4 th Political, Securityand Defense Dialogue at vice ministerial level. The agenda for thismeeting included non-proliferation, counter-terrorism, counter-narcotics,POW-MIA accounting, Agent Orange (dioxin) issues, humanitarianassistance and disaster relief, and other areas of defense and security

cooperation, including peacekeeping and maritime security.65

The MediaNote issued at the end of the talks contained four paragraphs, the most

63 Agence France-Presse, Philippines says it is making headway on sea row, September23, 2011 and Jim Gomez, Associated Press, Philippines launches regional meeting todiscuss disputed area, The China Post, September 23, 2011.

64 ASEAN Experts Meet endorses PHL proposal on South China Sea, GMA News,September 24, 2011.

65 U.S.-Vietnam Political, Security, and Defense Dialogue, and Fourth U.S-VietnamPolitical Security, and Defense Dialogue, U.S. Department of State, Office of the

Spokesperson, Media Note, Washington, D.C., June 17, 2011.

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extensive of which dealt with the South China Sea. The Media Note stated:

Delegates from both sides discussed recent developments in the South China Sea.The two sides acknowledged that the maintenance of peace, stability, safety, and

freedom of navigation in the South China Sea is in the common interests of theinternational community and that all territorial disputes in the South China Seashould be resolved through a collaborative diplomatic process without coercion or theuse of force. The two sides noted territorial and accompanying maritime claimsshould be in conformity with recognized principles of international law, including theUN Convention on the Law of the Sea of 1982. The two sides reaffirmed theimportance of the 2002 ASEAN-China Declaration on Conduct of Parties in the SouthChina Sea and encouraged the parties to reach agreement on a full code of conduct.The U.S. side reiterated that troubling incidents in recent months do not foster peaceand stability within the region, and raise concerns about maritime security, especiallywith regard to freedom on navigation, unimpeded economic development andcommerce under lawful conditions, and respect for international law.66

The following month Vietnam and the United States conducted navalexchange activities in the port of Da Nang. These activities included acommunity relations project (medical and dental services), and training insearch and rescue, damage control, and dive and salvage.67 No formalnaval exercises (i.e. combat training) were conducted.

Other U.S.-Vietnam defence cooperation activities included the signing anagreement on military medicine partnership on August 1, the first formalmilitary cooperation agreement between the two countries.68 On August 5,Vice Admiral Scott Buskirk, Commander of the US 7 th Fleet visited Hanoifor discussions with Lt. General Tran Quang Khue, Deputy Chief of Staff.69

On August 13, the USS George Washington aircraft carrier hosted a fly outby Vietnamese officials as it transited in the South China Sea. 70 On August16, the USNS Richard E. Byrdmade a precedent setting visit to Cam RanhBay for a week of routine maintenance and repairs. This was the thirdoccasion that Vietnamese shipyards had provided maintenance servicesfor US Military Sealift Command ships.71

66 U.S.-Vietnam Political, Security, and Defense Dialogue, U.S. Department of State,Office of the Spokesperson, Media Note, Washington, D.C., June 17, 2011.

67

U.S. Consulate General in Ho Chi Minh City, Public Affairs Section, Press Advisory, July1, 2011 and Agence France Presse, US Navy says no S. China link to Vietnam visit, June24, 2011.

68 U.S., Vietnam Establish Formal Military Medical partnership, U.S. Navy Bureau ofMedicine and Surgery Public Affairs, August 3, 2011; Agence France-Presse, US,Vietnam start first military relationship, August 2, 2011 and Vietnam, US set formilitary medical partnership, Thanh Nien News, August 2, 2011.

69 US 7th Fleet Commander visits Vietnam, Peoples Army Newspaper Online, August 6,2011.

70 Jacob D. Moore, USS George Washington Welcomes aboard Vietnamese Visitors,

Commander U.S. 7th Fleet homepage, August 1, 2011.

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On September 19, the US and Vietnam held their 2nd Defence PolicyDialogue in Washington. D.C. The US was represented by DeputyAssistant Secretary of Defence Robert Scher, while Vietnam wasrepresented by Deputy Minister of National Defence, Lt. Gen. Nguyen ChiVinh. The two signed a Memorandum of Understanding on defencecooperation that included the establishment of a high-level dialoguemechanism between the two defence ministries, maritime security, searchand rescue, studying UN peacekeeping and humanitarian assistance anddisaster relief.72 Finally, on August 24, Senator Jim Webb revealed that theUS Defense Department was examining the possibility of lifting legalrestriction on the sale of military technology to Vietnam.73

Vietnam and China. On August 28, China and Vietnam held their 2ndDefence-Security Strategic Dialogue at deputy minister level in Beijing.74

Lt. General Ma Xiaotian, Vice Chairman of the PLA General Staff hosted hisVietnamese counterpart, Lt. General Nguyen Chi Vinh, Deputy Minister ofNational Defence. The two generals agreed to step up the exchange ofmilitary delegations, open a hot line between the two defence ministries,and expand military training. Lt. General Ma noted that the sovereigntydispute in the South China Sea was the most difficult and sensitive issuein bilateral relations. Lt. General Vinh responded by stating Vietnamsreadiness to cooperate for mutual development with China in reallydisputed areas in accord with international law and the mutual interest ofboth sides. General Vinh also stressed that there were three closelyrelated aspects to the East Sea issue: the declaration of sovereignty by

concerned countries, solving issues related to the ties between Vietnamand China, and solving issues at multilateral forums.75

Vietnam-India. On September 14, India and Vietnam held their 6th

Security Dialogue at deputy minister level in Hanoi. India was representedby Defence Secretary Shashi Kant Sharma, while Vietnam wasrepresented by Deputy Minister of National Defence, Lt. General Nguyen

71 MSC Ship: First USN Ship to Visit Vietnam Port in 38 years, MarineLink.com, August23, 2011.

72

VN, US hold second defence policy dialogue, VietNamNet, September 20, 2011;Second Viet Nam-US defense policy dialogue yields good results, Vietnam NewsAgency, September 20, 2011; and Vietnam, US ink deal to boost defense ties, ThanhNien News, September 22, 2011.

73 U.S. May Sell Military Technology to Vietnam, Senator Says, Bloomberg News,August 24, 2011.

74 Technically this was the fifth dialogue that was upgraded to deputy ministerial levelafter its third meeting. This took place after Vietnam and the US commenced theirDefence Policy Dialogue.

75 Vietnam, China hold second defence, security dialogue, Vietnam News Agency,

August 31, 2011.

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Chi Vinh. During discussions it was agreed that the two sides wouldincrease the exchange of delegations, information, training andinformation technology. They also discussed establishing a mechanism tofurther cooperation in naval, air force, infantry and defence industrymatters.76 Media reports suggested that India was considering aVietnamese request for training naval crews to operate Kilo-classsubmarines.77 General Vinh returned to India in October with thedelegation that accompanied President Sang. Vinh again met withDefence Secretary Sharma who reaffirmed Indias willingness to assistVietnam in military training, human resource development andinformation exchange. 78

Vietnam and Japan. On October 24, the Defence Ministers of Japanand Vietnam signed a Memorandum of Understanding on theenhancement of defence cooperation. The MOU includes provisions forregular defence talks at deputy minister level, mutual ministerial visits,and exchanges between the Japan Self-Defense Force and the VietnamPeoples Army. According to Japanese officials, the two ministersdiscussed maritime incidents involving Chinas obstruction of maritimeactivities. The MOU was designed in part to keep in check Chinasgrowing assertiveness in he South China Sea and East China Sea.79

Philippines and the United States. The Philippines and the UnitedStates conduct their defence consultations through two bilateralmechanisms known as the Mutual Defense Board, set up under the Mutual

Defense Treaty, and Security Exchange Board. These boards hold annualback-to-back meetings. The Mutual Defense Board is co-chaired by theCommander of the US Pacific Command and the AFP Chief of Staff andfocuses mainly on conventional defense issues. The Security ExchangeBoard in a liaison and consultative body that focuses on non-traditionalsecurity issues including maritime security and safety. The 52nd meetingof the Mutual Defense Board and 5th meeting of the Security ExchangeBoard were held in Hawaii from August 15-16. Among the issuesreportedly discussed were mutual defence, maritime security (includingequipment sales), counter-terrorism, cyber security and disasterresponse.

In June-July, the Philippine and the United States conducted their annual

76 6th Vietnamese-Indian Strategic Dialogue at deputy ministerial level held in Ha Noi,Vietnam News Agency, September 14, 2011.

77 India, Vietnam to increase defence, security cooperation, Indo-Asian News Service,September 16, 2011.

78 VN, India vow to step up defence, financial ties, Peoples Army Newspaper Online,October 14, 2011.

79 Kyodo, Japan, Vietam sign memo on defense cooperation enhancement, Mainichi,

October 25, 2011.

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Cooperation Afloat Readiness and Training (CARAT) over eleven days inwaters off Puerto Princesa, Palawan province. This exercise involvedmaritime interdiction, patrol operations and live-firing.80 The Philippinesand the United States conducted another series of joint military exercisesfrom October 17-28. These exercises, involving 3,000 marines, wereconducted in a number of locations bordering the South China Seaincluding near Scarborough Shoal (opposite Zambales province) and westof Palawan province. The latter included an amphibious raid to secure abeachhead. Other aspects of the joint exercises included live-firing,medical missions and civic action projects.81

Philippines and Japan. As a result of Chinese assertiveness in 2011,the Philippines sought support from Japan and Vietnam in addition to itstreaty ally, the United States. In September, during President Aquinosvisit to Tokyo, he and Prime Minister Noda agreed to strengthen maritimesecurity ties by holding frequent high-level defence discussions and bystepping up cooperation between their Coast Guards and defence-relatedauthorities. Prime Minister Noda agreed to increase the involvement ofJapans Coast Guard in training their Filipino counterparts.82

Philippines and Vietnam. During 2011, the Philippines sought toshore up its defence relations with Vietnam on the basis of a DefenceCooperation Agreement signed in October 2010. In September, GeneralOban, AFP Chief of Staff, visited Hanoi for talks his counterpart, Lt.General Do Ba Ty. The two Chiefs of Staff agreed to step up the exchange

of delegations and intelligence, establish a hot line, and cooperate in seapatrols and search and rescue.83 These matters were the subject ofdiscussion at the 6th ministerial session of the Vietnam-PhilippinesCooperation Committee that met in Hanoi on October 7.84 The two foreignministers agreed to step up negotiations on an agreement of informationsharing, increased liaison between their navies, and setting up a hotlinebetween the Vietnam Maritime Police and the Philippines Coast Guard.The ministers also took note of progress made by the seventh meeting ofthe joint working group on sea and ocean issues and the convocation of

80 Al Labita, US hesitates on Philippines arms,Asiatimes.com, July 2, 2011.

81 Associated Press, US, Philippines marines begin drills near Spratlys, October 17,2011; PHL-US Marine training will not affect Spratlys issues official, GMA News,October 17, 2011; and Associated Press, US, Filipino marines hold combat drill nearSouth China Sea shoal disputed by Beijing, Manila, The Washington Post, October 24,2011.

82 Yore Koh, Tokyo and Manila Strengthen Defense Ties with an Eye Toward China, TheWall Street Journal, September 28, 2011.

83 VN, Philippines to boost military ties, Vietnam News Agency, September 29, 2011.

84 The sixth session of the Viet Nam-Philippines Bilateral Cooperation Committee in

Hanoi n Oct. 7, Vietnam News Agency, October 7, 2011.

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the inaugural meeting of the joint committee on sea and ocean at deputyforeign minister level in 2012.

President Truong Tan Sang made an official visit to the Philippines from

October 26-28. During the visit agreement was reached between thePhilippines Coast Guard and the Vietnam Maritime Police to strengthenthe rules of maritime law enforcement in each others waters.85 Theagreement also included provision for a hotline. A Memorandum ofUnderstanding was signed between the two navies to enhance mutualcooperation and the sharing information regarding search and rescue,natural disaster warning procedures and other maritime security issues.

At a joint press conference both presidents called for the fullimplementation of the DOC in disputed areas. President Sang voiced hissupport for the Philippines ZPOFF/C initiative.86 President Aquino also

called for Vietnamese investment in oil and gas and President Sangindicated his willingness to consider the matter.87

5. Security Trends Impacting on the Resolution of TerritorialDisputes

In order for the DOC Guidelines - and the China-Vietnam Agreement onBasic Principles Regarding Sea Disputes - to be implemented eachsignatory must demonstrate good faith and the political will to adhere tothe letter and spirit of these agreements. Progress in confidence buildingmeasures and self-restraint under the DOC, it is hoped, will promote thenorms that will reinforce legal regimes and restrain state behaviour.These positive trends could set the stage for a binding Code of Conduct.

This conclusion identifies six major trends that are likely to challenge ifnot undermine current diplomatic efforts to turn the South China Sea intoa Zone of Peace, Freedom, Friendship and Cooperation if they are notmanaged properly. These trends are:

1. Increased efforts to explore and produce oil and gas reserves incontested areas of the South China Sea by all claimant states willexacerbate tensions. This was most recently indicated by Chinas recentprotests over Vietnams award of oil exploration blocks to Indias ONGC-

VL. Further, Chinas construction of a mega oil exploration rig and itsplacement in the South China Sea with possible armed escorts hasalready raised concerns in the Philippines

2. The growth in the capacity of Chinese maritime enforcement agencies

85 Vietnam, Philippines strengthen ties between navies, coast guards, Vietnam NewsService, October 27, 2011.

86 Agence France-Presse, Vietnam backs Philippine sea peace zone plan, October 272011.

87 BBC, Philippines moi Viet Nam dau tu dau khi, October 28, 2011.

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to enforce Beijings jurisdiction in the South China Sea will result in morefrequent incidents involving fishing craft and oil exploration vesselsoperating in waters claimed by Vietnam and the Philippines.

3. Military force modernization has and will continue to result in theintroduction of increased numbers of warships equipped with newtechnologies and weapons systems. The proliferation of submarineprocurements is potentially destabilizing. In sum, regional sea lanes arebecoming more crowded, contested and vulnerable to armed strife.88

Chinas rapid military modernization, coupled with assertive behaviour inthe South China Sea, has already led several Southeast Asian states toundertake force modernization programs of their own aimed atdeveloping anti-access/area-denial capabilities directed against China.

In 1995 the Philippines passed into law The Armed Forces Modernization

Act with the aim of modernizing the AFP in fifteen years with a total fundof Pesos 331 billion. The Philippines Congress failed to follow through andthe AFP was starved of funds. The Aquino Administration addressed thisneglect by allocating P11 billion in 2011 to support the militarys upgradeprogram. Of this figure P8 billion will come from the proceeds of theMalampaya natural gas project and the remaining P3 billion will comefrom the AFPs current modernisation funds.89 Starting in 2012, thegovernment will implement a five-year modernization program totallingP40 billion (or P8 billion annually)

Significantly, immediately after Aquinos state visit to Beijing, the

President announced that 4.95 billion pesos (US $118 million) would beallocated to top up the defence budget.90 These funds were earmarked forthe purchase a naval patrol vessel, six helicopters and other militaryequipment in order to secure the Malampaya Natural Gas and PowerProject located in disputed waters off the coast of Palawan. The former USCoast Guard Weather Endurance Cutter, rechristened Gregario del Pilar,will operate from Palawan in Western Command with the mission ofprotecting the Philippines EEZ. The ship will be fitted with more modernradar systems and consideration is being given to equip it with anti-shipmissiles.

At present Philippines officials have floated a wish list of new equipmentincluding: coastal radar, long-range patrol aircraft, strategic sea liftvessels, off-shore patrol boats, naval helicopters, air defence radar, six jet

88 Rory Medcalf and Raoul Heinrichs, Crisis and Confidence: Major Powers and MaritimeSecurity in Indo-Pacific Asia (Sydney: Lowy Institute for International Policy, June 2011),3.

89 Alexis Romero, Submarine for Navy? Noy bares AFP shop list, The Philippine Star,August 24, 2011.

90 Agence France-Presse, Philippines Ups Spending To Guard South China Sea,

September 7, 2011.

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trainers, surface attack aircraft, anti-ship missiles, and a submarine.91

In contrast to the Philippines, Vietnam has embarked on a more robustprogram of modernizing its armed forces. In 2011 it took delivery of four

Su-30MK2 multi-role jet fighters, two Gephardguided missile frigates, itssecond Bastion land-based anti-ship ballistic missile system and twoSvetlyakclass Patrol Boats.92 In October, during President Sangs visit toIndia, the local media reported that India was prepared to sell Vietnam itsBrahMos supersonic cruise missile.93 That same month, while on a tour ofthe Netherlands, Prime Minister Nguyen Tan Dung expressed interest inpurchasing two to four Sigma-class corvettes.94 Vietnam currently had onorder sixteen more Su-30MK2 jet fighters and will take delivery of sixconventional Kilo-class submarines in 2014.95 In addition, in OctoberVietnam officially launched its first indigenously built gunship.96

Vietnams purchase of Kilo-class submarines is part of a regional trend innaval modernisation. China has the largest submarine fleet (more thansixty) and most extensive plans to expand its numbers including the Type095 nuclear attack submarine (SSN) and Type 094 (JIN-class) nuclear-powered ballistic missile submarine (SSBN). China is expected to baseboth attack and ballistic missile submarines at Yulin Naval Base on HainanIsland.

Indonesia, the first country in Southeast Asia to acquire submarines, isnow considering replacing them with newer South Korean models.Singapore has upgraded its fleet to include twoArcher-class submarines,while Malaysia has acquired two Scorpene-class submarines. Both theSingaporean and Malaysian submarines are equipped with AirIndependent Propulsion systems. Brunei has taken delivery of high-speedPatrol Boats armed with Exocet missiles.

91 Alexis Romero, Submarine for Navy? Noy bares AFP shop list, The Philippine Star,August 24, 2011.

92

Russia exports aircrat to Vietnam, The Voice of Russia, June 22, 2011; BBC, Haiquan Viet Nam nhan tau chien Nga, August 24, 2011; Russia delivers second coastalmissile system to Vietnam, Interfax-AVN military news agency, October 11, 2011; andBBC, Nga giao tiep hai tau tuan tra cho VN, October 25, 2011.

93 India to sell BrahMos missile to Vietnam, The Asian Age, September 20, 2011 andRobert Johnson, India is Preparing To Sell BahMos Supersonic Cruise Missiles toVietnam, Business Insider, September 20, 2011.

94 BBC, VN dam phan mua 4 tau chien cua Ha Lan, October 18, 2011.

95 Russia to supply Vietnam six submarines in 2014, Thanh Nien News, July 3, 2011.

96 BBC, Viet Nam tu dong tau chien, October 3, 2011.

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4. United States re-engagement in the Asia-Pacific is welcomed by manySoutheast Asian states as contributing positively to regionalstability. However, US re-engagement will provoke rivalry if nothostility in its relations with China. China is likely to view new USbasing arrangement in Australia to secure Indo-Pacific SLOCs andthe placement of US littoral combat ships in Singapore as anattempt to contain Chinese influence and power in the region

5. Japan and India are now playing increased roles in regional security inresponse to Chinese assertiveness. As with the United States, theenhanced involvement by Japan and India will be welcomed by manyregional states but not by China. This is particularly the case if trilateralcooperation between the US, Japan and India gains traction or morphs intoquadrilateral cooperation involving Australia.

6. The development of new regional security architecture the ASEANDefence Ministers Plus process and the enlargement of the East AsiaSummit holds the promise of moderating major power involvement inSoutheast Asia. However, the capacity of regional multilateral institutionsto deliver the security goods is dependent not only on the ability of ASEANto maintain its unity and cohesion as the central driving force but also onthe willingness of the major powers to play constructive roles.

Any of the five trends discussed above could result in heightened securitytensions in the region in which realpolitikcan be expected to trump legalregimes. In such circumstances the DOC Guidelines would be insufficient

on their own to manage let along lessen security tensions arising fromdisputes over the South China Sea.

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thayer tensions in the south china sea abate after doc guidelines

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