Part 3: Solutions for East Sea tensions

China’s long-term plot to capture the East Sea: Part 1

China’s long-term strategy to capture the East Sea - Part 2

A vessel of the China Coast Guard attacks a Vietnamese ship by water cannons, in Vietnam's waters.

The use of force or threat to use force is not an appropriate solution to "possess sovereignty" in the East Sea, as it is against international law, and destroys world and regional peace. Moreover, if a country occupies the East Sea in the field, its sovereignty will never be recognized by other countries. In this context, the parties involved can find some solutions as follows:

Using negotiation and dialogue: This is the best and most suitable measure for all parties. It may take time but the final results will help handle the disputes and conflicts well. The “model” is here: most recently – on May 23 - the Philippines and Indonesia signed the "Agreement on demarcation of the exclusive economic zone" for the Mindanao and Celebes, after 20 years of negotiations.

The “lower expression” of this measure is "setting aside disputes and pursuing joint development". In the world, many countries have made similar agreements in various forms and in various fields such as fishing, oil and gas exploitation: for example, the Agreement on joint exploitation between Japan - South Korea (1974) in overlapping waters; and the Agreement on joint development in overlapping waters in the East Timor Sea between Australia and Indonesia (1989).

China appears to be reluctant to show its willingness for this option. For example, this country did not respond to or even want to delay the process of developing a Code of Conduct in the East Sea (COC), which has higher legally binding nature than the Declaration on the Conduct of Parties in the East Sea (DOC).

For "setting aside disputes and pursuing joint development", since Deng Xiaoping’s time, China has in turn raised the idea with the Philippines, Indonesia, Singapore, Malaysia and Vietnam, but resolutely reserved a prerequisite condition, "sovereignty belongs to China", which is unacceptable.

For legal instruments, international laws are tools to help resolve disputes. Article 287 of the UN Convention on the Law of the Sea (UNCLOS) stipulates that when signing or ratifying the Convention or joining the Convention or at any time thereafter, to resolve disputes related to the interpretation or application of the Convention, state countries have freedom to choose, in the form of a written statement, of one or more of the following measures: 1. The International Court of Justice (ICJ) 2. The International Tribunal for the Law of the Sea (ITLOS) 3. An arbitration tribunal that is constituted in accordance with Annex VII of the Convention and 4. A special tribunal to resolve disputes in each individual area such as marine scientific research and fisheries and marine transportation that is constituted in accordance with Annex VII of the Convention. It is more common for disputes to go through the ICJ and ITLOS.

ICJ is the key judicial organ of the UN. According to the regulations of the ICJ, the final decision of 15 judges is final, without appeals, and is effective immediately. In case one party in the dispute that agreed to go to court does not observe the court’s judgment, the other party may request the UN Security Council to intervene to enforce the judgment. China is a permanent member of the UN Security Council with the right of veto, so lawsuits filed against this country in the ICJ will be in trouble.

Related to the East Sea, Indonesia, Singapore and Malaysia have put the issue of marine sovereignty to the ICJ and accepted the final decision of this court. In 2002, the ICJ decided to give sovereignty over the two islands of Pulau Ligitan and Pulau Sipadan to Malaysia in the dispute with Indonesia. In 2008, the ICJ gave sovereignty over Pedra Branca Island to Singapore, Middle Rock to Malaysia, and South Ledge to both countries based on territorial waters, after the two countries lodged claims to the ICJ in 2003.

The ITLOS is a separate legal body, established under the UNCLOS to explain the terms and the application of the Convention. However, ITLOS does not have jurisdiction to resolve disputes over territory and borders, but only has jurisdiction to resolve disputes concerning the interpretation and application of the UNCLOS. The lawsuit against China at the ITLOS can only focus on the statement and action of Beijing’s "assertion of sovereignty" under the "nine-dotted line” or “U-shaped line" as the Philippines did in January 2012.

China's view on resolving disputes by the legal path is clear: They stated that they did not accept international adjudication, based on the reservation of Article 298 of the UNCLOS, under which it has the right to not accept any dispute resolution measures in accordance with the provisions of Article 287. When the Philippines filed a lawsuit against China to the ITLO, China did not accept the jurisdiction of the court, but the court still accepted the petition of the Philippines. The "price" that China has to pay for its behavior is its ugly image before the international community and its weakness in "justice and legality" regarding its claims in the East Sea.

Not really interested in settling disputes peacefully, in accordance with international law, China is determined to cling to the so-called “nine-dotted line” which has no legal value. What does China really want? "Occupying the East Sea" is its plot throughout. While waiting for the right time to realize this ambition, Beijing will conduct action to escalate tensions in the East Sea. Truth and morality will not allow China to occupy the East Sea because if it succeeds in the so-called "claiming back" of more than 3 million km2 of waters being "seized" by other countries, the world will have to witness the act of "misappropriating territory on the largest scale the world since World War II," according to Forbes Magazine.

Hoai Thanh