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DOC guideline and pressure from East Sea tension
Cooling the East Sea and the double-faced game
Principle 2, suggested by ASEAN, is appropriate to the principle of consensus in the ASEAN Charter 2007 and the DOC, which was signed by China and ASEAN in 2002. ASEAN state members want to have exchange within the block to reach a consensus before discussing with China. Article 2.2.b of the ASEAN Charter stipulates that ASEAN shares collective commitments and responsibility towards peace, stability and prosperity in the region. Article 2.2.g says that ASEAN strengthens consultation towards issues that seriously influences the block’s common interests.
Most of ASEAN members, which are claimants of sovereignty in the East Sea or not, have interests in the East Sea, including the rights of free navigation, transit, fishing, placing cables and pipes that are suitable to the UN Convention on the Law of the Sea 1982 (UNCLOS). All statements made at ASEAN Summits since 1992 mentioned the East Sea disputes.
On June 7, 2011, the Philippines officially put forward the initiative that calls ASEAN and related countries to turn the East Sea from a disputed zone into a zone of peace, freedom, friendship and cooperation. However, the initiative was not supported by China.
If China did not give any comment at the time the DOC was signed in 2002, at discussions on the guideline for implementing the DOC, China expressed its viewpoint that the DOC is the document signed between China and each ASEAN state member, not between China and ASEAN as a block.
At the ASEAN Region Forum 17th in Hanoi last year, China stated that its policy is not internationalizing and multi-lateralizing the East Sea disputes and solving the disputes on bilateral basis.
When all related sides need a political document to cool down the tension in the East Sea as the DOC guideline, seeking a compromise formula is compulsory. Principle 2 of the guideline (The parties to the DOC will continue to promote dialogue and consultations in accordance with the spirit of the DOC) is such a formula. ASEAN can understand “the parties” as China and ASEAN, while China can explain that “the parties” are China and ten ASEAN members and it can have separate negotiation with each country.
The biggest difficulty in defining the subject of the DOC and the working mechanism is not properly guided and it will affect the implementation of the DOC in the future. ASEAN may be satisfied with principle 8 (Progress of the implementation of the agreed activities and projects under the DOC shall be reported annually to the ASEAN-China Ministerial Meeting). However, this principle does not make change to the nature of principle 2. This is a legal weakness in implementing ASEAN’s consensus principle.
It is called the guideline document for implementing the DOC, but this document is actually the guideline for implementing projects under the DOC framework. Up to four out of the eight principles in the guideline has the word “projects” and most of the principles are related to projects.
Speaking at Bali, Indonesia, after the guideline document was approved, the Assistant to Chinese Foreign Minister, Liu Zhenmin, emphasized that China and ASEAN would completely and comprehensively implement the DOC and kick off activities of implementation through cooperation projects.
The implementation of the DOC has at least two goals at the same time: creating mutual trust among claimants and promoting the issuance of the Code of Conduct of the Parties in the East Sea (COC). In creating mutual trust, implementing cooperative projects is only a part. The major goal of the DOC is restricting acts that make tension in the East Sea.
The DOC does not concretize what are the acts that make the situation more complicated or enhance disputes in the East Sea, affecting peace and stability in the region. It only stipulates to not bring people to uninhabited islands or banks… in the East Sea.
After Chinese ship cut cables of Vietnamese ships Binh Minh 2 and Viking 02 and the Philippines accused of China’s harassment and intrusion into their continental shelf, the regional and international communities hope that the DOC guideline document will concretize what the DOC has not mentioned clearly. Regrettably, the guideline document mainly focuses on projects in non-traditional areas like sci-tech research, marine environmental protection, marine security, search and rescue and anti-organized crime.
The related parties still have the right to explain the DOC and the guideline document under their own understanding. As a result, only several days after the guideline document was approved, China and the Philippines quarreled when the People’s Daily, the mouthpiece of the Chinese Communist Party, on August 2, warned that some countries would have to pay penalty for wrong acts against China’s sovereignty, after the Philippine Star newspaper reported that Filipino sappers were about to complete the construction of the second building on an island in the East Sea. On August 1, China also warned the Philippines about the plan to explore at least two oil wells and to perform seismic surveillances in early 2012 in the area of the Reed Bank.
Like the DOC, the DOC guideline dodges the scale of implementation, even the scale of implementation for cooperative projects in the East Sea. Vietnam and ASEAN understand the scope of implementation includes Hoang Sa (Paracel) and Truong Sa (Spratly) Islands while according to China’s understanding, it includes only the Truong Sa. On May 7, 2009, through making public of the U-shaped map at the United Nations, China means the scope of disputes as the scope of implementation of the DOC, at least in the U-shaped line. Therefore, the disputed zone does not include Hoang Sa, which China already occupies.
Fixing the scope of implementation for each project is fine-tuned by principles 3, 4 and 6, in conditions that projects must be clear, approved through consensus and voluntary participation.
Under international law and practice, projects that are used as measures to build mutual-trust can be implemented in disputed areas, with clearly defined scope based on the agreement of related parties. At non-disputed areas, cooperative projects must obey the law of the host country.
At Bali, Indonesia in July 2011, Chinese Foreign Minister Yang Jiechi stated that the U-shaped line has been maintained since 1948. His Filipino counterpart, Albert del Rosario, said that China’s claims in the East Sea are huge that if its claims are met, the development of a COC in the East Sea is helpless. Vietnam and the Philippine’s oil and gas bidding in July-August 2011, in their continental shelf under the UNCLOS, have been warned by Beijing to “violate China’s sovereignty”.
The guideline document does not mention how to solve similar disputes, based on the UNCLOS or historical evidences? Obviously, it is uneasy to define the scope of implementation of projects under the DOC, even with the approval of a guideline document. Even if related parties reach consensus, the implementation of projects is not favorable because the implementation is on voluntary basis. It means that participants can withdraw from projects, if they want.
Principle 7 of the guideline aims to strengthen the specific resources for related projects. However, it does not make clear the nationality of experts involving in projects. Perhaps this principle shows concession of ASEAN and China’s standpoints on expanding cooperation among related parties from inside and outside the region.
A project associated with maritime security and marine environment projection needs the support from not only countries in the region, but also from those which are not in the region because many international sea lanes run through the East Sea. Unspecific regulations may cause constant discussion at expert level, hindering the implementation of projects. Both the DOC and the DOC guideline cannot solve disputes of the third forms in the East Sea, which began from the controversies between the US and China over the freedom of navigation, scientific surveillance through the ship “Impeccable” in March 2009, as well as discussion of China’s core interests and the US’ national interests before and after the ARF17 in Hanoi in July 2010.
The DOC does not have any principle on the supervisory mechanism and implementation of activities or projects under the DOC framework, except for principle 8 “Progress of the implementation of the agreed activities and projects under the DOC shall be reported annually to the ASEAN-China Ministerial Meeting.” It is understandable because the DOC is a non-binding document so the DOC guideline cannot address this. It is anticipated that the effectiveness of projects is not high because of the lack of an effective mechanism of supervision and promoting projects.
The DOC guideline only mentions the COC, the goal of the region and the world, in principle 6: “The decision to implement concrete measures or activities of the DOC should be based on consensus among parties concerned, and lead to the eventual realization of a Code of Conduct.”
If the guideline document was approved in 2005 or 2006, it would have helped quicken the development process of the COC and principle 1: “The implementation of the DOC should be carried out in a step-by-step approach in line with the provisions of the DOC”, is suitable.
As ASEAN is determined to approve the COC in 2012 in Phnom Penh, Cambodia, on the occasion of the 10th anniversary of the DOC, while Chinese Foreign Minister Yang Jiechi stated at Bali, Indonesia in July 2011, to honestly implement the DOC and only discuss the development of the COC with ripe conditions, the time for implementing the DOC guideline is very short--meaning that its effectiveness is poor.
May and June 2011 is seen as the tensest time in the East Sea since 1988. People may question “is it ripen enough to build the COC or not?” The Chinese Foreign Minister’s statement enhances the doubt of the approval of the COC next year.
The DOC guideline on the road from the DOC to the COC
The DOC guideline, with general principles, does not meet the international community’s expectation. It is even considered as a “cursory” agreement. However, in the context of “a poor peace is better than a good war”, that guideline meets the goals of related parties.
For China, the approval of the DOC guideline ensures: 1) not contrary to its two-no policy (no multi-lateralization, no internationalization); 2) showing the international community that China can lead ASEAN to “internally” solve the East Sea disputes; 3) confirming China’s role in settling disputes, which benefits China – only building the COC in ripe conditions; 4) calming internal conflicts between the warlike and peace-loving sides; 5) non-binding implementation of DOC’s projects and creating conditions to claim the implementation of “putting aside conflicts to exploring the East Sea together’ based on the cooperative spirit of the DOC.
The time that China chose to approve the DOC guideline was decided by many factors: 1) the regional and international situation changed – the East Sea Summit in November 2011 will be joined by the US, Russia and India, meaning that China’s exclusive position in the relations with ASEAN will no longer exist; 2) the change of the ASEAN Chairmanship from a claimant in the East Sea like Vietnam to Indonesia – which is especially interested in security in the East Sea to another country which is less interested in the East Sea in 2012; 3) the year 2012 will mark the 20th anniversary of relationships between China and ASEAN, but the two sides are both confused when disputes are out of control and mutual-trust is eroded. The two sides need new hallmarks to open a new period; 4) the Sino-US relations needs moderate signs because the US is challenging economic difficulties while China needs a stable environment to develop its carriers and suppress internal strikes.
For ASEAN, the approval of the DOC guideline is a political victory because it shows ASEAN’s ability to arrange regional disputes, particularly when ASEAN has to face not only the East Sea disputes but also the border disputes between Thailand-Cambodia and Myanmar issue.
ASEAN and China defused the biggest problem: sovereignty over disputed areas in the East Sea by approving the DOC guideline. It is a progress for ASEAN to draw China into the DOC though the final solution is not attained.
ASEAN also wants to have progress before its 45th anniversary in 2012. Though principle 2 in ASEAN’s draft DOC guideline is not approved, it does not affect ASEAN’s consensus and consulting principle. This is also the triumph of Indonesia as the ASEAN chairman. This is the good premises for building the COC, for bringing peace and stability to the East Sea. The DOC guideline is the foundation for the belief that the East Sea will cool down and the progress for negotiating COC can begin.
For the outsiders, the approval of the guideline shows the international opinion’s role in preventing China’s adventurous moves, creating precedence for other regions. Countries have a chance to show the need of solving marine disputes based on international law, particularly the UNCLOS: marine disputes must be settled based on claims from land features, not from imaginary drawing lines.
The international opinion is keen on praising the approval of the DOC guidelines rather than commenting the contents of that document. While China highlights it as a success, ASEAN sighs with relief, the worry of others about a possible clash in the East Sea is eased.
This is also the chance to evaluate China’s speeches and actions in recent time. The guideline document is the first step to implement the DOC by China and ASEAN as a block. That is a correct move.
However, the public has the rights to ask ASEAN and China to make quick moves to reach the COC. The two sides need to quickly reach agreement on three biggest issues: defining the disputed and undisputed areas, concretizing permitted and unallowed acts, the supervisory mechanism and the mechanism to solve disputes.
Viet Long
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