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ASEAN Kicks the South China Sea Dispute down the Road

by Joshua Kurlantzick
August 2, 2011

Anti-China protesters hold a Vietnamese flag (top) and a Chinese flag with an image of the pirate skull and crossbones (bottom) during a demonstration around Hoan Kiem lake in Hanoi July 24, 2011.

Anti-China protesters hold a Vietnamese flag (top) and a Chinese flag with an image of the pirate skull and crossbones (bottom) during a demonstration around Hoan Kiem lake in Hanoi July 24, 2011. (Peter Ng/Courtesy Reuters)

In the wake of the recent ASEAN Regional Forum in Bali, both Southeast Asian nations and China celebrated the drafting of an agreement between Southeast Asian states and China to resolve South China Sea disputes peacefully. As Voice of America reported, American officials also hailed the deal:

“U.S. officials are expressing relief over the accord, which they say should ease tensions between China and several ASEAN member states including U.S. defense treaty ally, the Philippines.”

Of course, any dampening of tensions in the South China Sea, where there has been one incident after the next in recent months, is welcome. The Philippines, Vietnam, and China had been ratcheting up tensions, and some Chinese analysts even began talking of a “limited war” with Vietnam to teach the country a lesson about claims in the Sea.

But they should not be celebrating this supposed deal so quickly. The new “deal” is really just a commitment and guidelines for all the countries attempt to work out rival claims, and it hardly guarantees that any of the nations are going to give up their demands over part of the Sea. The “deal” is vaguely worded, and mostly avoids overlapping territorial claims to focus instead on other issues like environmental protection. It contains no clauses on how the countries should deal with potential clashes on the waters between their navies, or even how their navies should communicate.

Certainly China, which has become increasingly aggressive in its demands over most of the Sea, appears unlikely, in the long run, to give up its territorial claims.  After all, China and the ASEAN member states signed a previous code of conduct on the Sea nearly a decade ago, and that hardly prevented Beijing from demanding almost the entire body of water.

Post a Comment 4 Comments

  • Posted by Termsak Chalermpalanupap

    What ASEAN Foreign Ministers and a Chinese special envoy (Mr Wang Yi)signed in Phnom Penh on 4 November 2002 is the “Declaration on the Conduct of Parties in the South China Sea” (DOC). Essentially it is a political framework for ASEAN and China to try to build mutual confidence in the South China Sea (SCS), and in disputed areas of the SCS in particular, while pending peaceful settlement among claimant States on their overlapping claims of jurisdiction and sovereignty.

    True the DOC doesn’t contain any specific provisions that can help prevent military incidents in the disputed areas in the SCS. But it does include provisions on “holding dialogues and exchanges of views between defense and military officials”; voluntary notificaiton of impending military exercises; and voluntary exchanging of relevant information (concerning military movements in the SCS). And one of the five areas of confidence-building measures is about safety and communication at sea.

    It should be pointed out that the DOC also contains, towards the end of its text in Paragraph 10 a mutual ASEAN-China understanding on the desirability of having a “code of conduct” for the SCS as well as an agreement to work towards the “code of conduct” based on consensus.

    What was agreed in Bali between ASEAN and China prior to the 18th ARF was the adoption of the Guidelines for the Implementation of the DOC. This will enable both sides to start implementing their DOC projects (there are 6 of them, 3 proposed by China, 3 by ASEAN).

    China has also proposed convening a workshop to discuss freedom and safety of navigation in the SCS.

    ASEAN will soon start its internal consutlations on desirable elements of the “code of conduct” and how to make it “more binding”. China’s stated position on this matter is that it will respond to the ASEAN call to start working on the “code of conduct” only when “conditions are ripe”. China wants to concentrate on imlementing DOC projects for the time being.

    ASEAN certainly doesn’t have the illusion that it can help settle the SCS disputes. ASEAN only wants to help maintain peace and stability in the SCS. The disputes will have to be handled primarily by the claimant States.

    China’s massive maritime claims in the SCS behind its famous 9 dot-and-dash line is difficult to justify under UNCLOS and is thus facing serious legal challenges.

    And lastly, China is a High Contracting Party to the 1976 Treaty of Amity and Cooperation in Southeast Asia (TAC). China, like all the other 27 High Contracting Parties (all the 10 ASEAN Member States and its Dialogue Partners and others), is legally obliged to refrain from the use or the threat to use force against any country in Southeast Asia. Waging a “limited war” to teach Viet Nam another lesson is against the TAC, against international law.

  • Posted by Ha Nguyen

    Surely the adoption of the Declaration of Conducts of Parties in the South China Sea in 2002 (the DOC) and the recent adoption of the Guidelines for the Implementation of the DOC are important efforts of the ASEAN countries and China to contain the escalation of tensions resulted from the territorial disputes in the South China Sea. But these two documents will be dead letters if ASEAN and China can not come to agreement on the delineation of the limit of disputed areas in the South China Sea. Most of the ASEAN countries believe that the disputed areas should be the limited marine areas around the land features of the disputed off-shore islands (the Paracels and the Spratlys, which should be determined in accordance with article 121 of the UNCLOS. China on the other hand tries to enforce its vast claim of the South China Sea based on the infamous 9- dotted line. If China continues to refuse to engage with the ASEAN countries to limit the disputed areas and insists that any activity undertaken by the ASEAN coastal states in the waters within such 9-dotted line violates the DOC, then China is actually blocking ASEAN countries legitimate rights to their marine areas in accordance with the UNCLOS and severely abusing the DOC to advance its territorial and maritime claims in the SCS.
    So the most important thing to do now is to reach an agreed delineation of the disputed areas in the SCS on the basis of the provisions of international law, in particular the UNCLOS.

  • Posted by pham van dong

    Thù tướng VN Phạm Vân Dồng tái thừa nhận HS TS là lãnh thồ cùa nưỡc CHND Trung Hoa. Giẫy trẵng mực đen đá ró ràng. Nhứng người này biều tình chống lại sấc lệnh cùa thù tưỡng họ sao ?

  • Posted by Chalamba

    China has an assertive nature and much more aggressive on the issue of South China Sea over the last two decades because Beijing does not want to loose their historical claims and sovereignty over these areas and natural resources. Earlier, the problem had started just after the peace treaty was signed by Japan in 1951 in San Francisco, renounced Japan’s claim on South China Sea and it did not mention any country’s claim or right over these areas, due to this many claimants come up with their historical evidences or international laws (UNCLOS, EEZ etc). Since then, China has started claiming these areas aggressively, as for example, in 1974, Beijing used military to make evicted the Veitnamese forces from Paracel Islands and later in 1988 over Spratly Islands in which 80 Veitnamese soldeirs deid and again in 1995, China occupied Mischeif or Meiji Reef. Very recently there was a strong protest over the cutting of the exploration cables of a Veitnamese vessel owned by state energy company “Petro Veitnam”. However, despite using harsh or hard strategy, China did not rejected the soft and multilateral negotiations for peaceful resolution of the conflict. Therefore, since the early 1990s, China has been involving in many peaceful developments for shelving or for reducing the tensions over the South China Sea. In 1992, China had signed “ASEAN Declaration” on the South China Sea, and again after ten years China signed the Declaration on the Conduct of Parties in the South China Sea in 2002, in which the favourable conditions for a peaceful and durable solution of differences and disputes are enhanced. Not only this, last year Beijing had signed an agreement for speedy implementation of “Code of Conduct” on the South China Sea. On top of this, Beijing involves and using many formal and informal frameworks for multilateral negotiations and consultations. China uses many mechanisms or frameworks like ASEAN Summit, ASEAN Ministerial Meetings (AMM), ASEAN Regional Forum as Track I mechanisms for peaceful solution of conflicts. Above all, China has a strong strategic interest in this area, so to keep this area secure or to render peace China participated Indonesian-sponsored informal Workshop on Managing Potential Conflicts in the South China Sea since 1990s. So, we can hope for the peaceful solution of this disputes despite having some assertive nature of China…

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