VietNamNet Bridge – Analyzing the situation in the East Sea, one will see that the key is not simply the relations between the week and strong, or the big and small countries.

East Sea: Why China’s ‘order’ is problematic? 

The East Sea disputes 

 
Current conflict management mechanisms

Institutionalization is generally understood as building laws and regulations to control behavior. Disclaiming force does not mean completely denying force, but trying to diminish it by more civilized mechanisms.

Institutionalization is the path for future because it not only provides all parties certain signals to anticipate the behavior of opponents, but also to help reduce transaction costs for cooperation activities.

Countries accept to restrict freedom in actions in order to exchange for long-term interests of a common management mechanism on improving management of natural resources, marine security, implementation of scientific research and more importantly at this moment – managing territorial and territorial water disputes.

In the past, the East Sea had two official mechanisms to solve conflicts by law. The first is the relative acceptance of participating parties in the United Nations Convention on the Law of the Sea 1982 (UNCLOS) and the Declaration on the Conduct of Parties in the East Sea (DOC) signed by China and ASEAN in November 2002.

The DOC is the tool to build mutual trust but it is non-binding document, so it is not very effective. The UNCLOS also faces problems since its deduction varies.

There are other unofficial institutions to control conflicts like the ASEAN Maritime Forum, which was set up under the ASEAN Regional Forum last year to administer marine issues in the Southeast Asian Sea. However, this mechanism is in its infancy and it depends on the interests of related countries to become an effective institution.

In an order ruled by law, three worrying things are: there are grey areas in law; there is law but related parties refuse to use law; and lack of an agency in charge of imposing sanction on rule violators.

Analyzing the weak points of current institutions to control conflicts in the East Sea, we see three worrying points.

The relative disadvantageous position of legal institutions and common regulations, specifically shown through a binding Code of Conduct (COC) in the East Sea and the different deduction of the UNCLOS among countries (mainly China), means the increase of the power trend. This de-phasing can be shortened once the COC is formed and written agreement on the understanding about and deduction of the UNCLOS.

Dialogues among related parties must be conducted to reach common understanding, basic principles of the law of the sea, especially the rights and duties in the exclusive economic zone (EEZ). Fundamental legal foundation for dialogues can be provided by the Guidance of marine transport and air transport in the EEZ and the Memorandum of understanding CSCAP No. 6 on the implementation of the law of the sea in Asia-Pacific region.

Power or institution?

The question is whether participating countries agree about a new legal order in the East Sea or not?

At present, the gap between the approach to the East Sea disputes of involving parties still exists and seems to extend. The difference reflects the balance of power (or the feeling of power) through two views, strong and week countries.

As a rising power in both economic and military aspects, China wants to create a new order, which benefits itself and is not costly.

For ASEAN, the combined power only has political and symbolic meaning. It wants to turn the East Sea disputes into multilateral issues, with the involvement of the international community.

The US, a superpower with outstanding naval strength, plays the role of an executive body, with three choices: 1) Maintaining its neutral position in territorial disputes but protesting China’s self-defining territorial waters which affects free navigation in the East Sea; 2) Holding the role of an offshore balancer by supporting weaker countries in the region to keep balance with the increase of power of its rising rivals; 3) Backing the establishment of a regional security mechanism to control hegemony.

Facing China’s challenging moves (the behaviors of Chinese patrol ships, its self-fixing of territorial waters or its self-deduction of the UNCLOS to serve its benefit), the US stands at the crossroad.

Recent signals from the Washington shows that the US administration has raised its voice to confirm its interests and long-term presence in Asia.

At the 10th Asia security region forum (Shangri-La dialogue 2011) in Singapore, American Secretary of Defense Robert Gates bet $100 that the US will maintain its strong presence in Asia in the next 5-10 years.

At the ASEAN Regional Forum (ARF) in Indonesia last month, the US Secretary of State continued to call for parties involving in the East Sea disputes to solve disputes by law and said that the US would play the role of promoting this process and recommend all related countries to define sovereignty by the UNCLOS. However, this superpower is facing financial and budgetary difficulties, which urges the US public to ask its government to give priority to internal affairs.

Based on their power, there is different between weak and strong countries in considering between power and institution. Strong countries use law to build orders to benefit themselves and partly accept to restrict their behaviors under the law in case their power reduces and to limit “action” costs if they have to use forces in every case.

Week countries accept law to pursue four goals: To create forums to express their viewpoints, attaching the legitimacy to their behavior if big countries unilaterally annual the rules, creating basis to anticipate or partly restrict the actions of stronger countries. Finally, institutions are not the magical mode to solve every matter but for weak countries, it is a minimal way to ensure disputes to be solved by law and regulations, not by weapons.

Situation in the East Sea

Analyzing the situation in the East Sea, one will see that the key is not simply the relations between the week and strong, the big and small countries. The US is still the number-one superpower but its power is partly reducing and it does not have direct conflicts of interest so maintaining the status quo is the possible choice.

The second-level powers like Japan, South Korea and Australia benefit from a stable order so they support solving the East Sea disputes multilaterally.

ASEAN countries need law rather than fist.

The ball is rolling to the side of China. If it believes that its strength can exceed Japan and the US, a new order must be set up. Which path will China follow: using forces or law?

In this situation, what does the international community need to do?

Nguyen Chinh Tam
The next story: Outside factor for setting up new order in the East Sea