Will the Guidelines to Implement the DOC Lessen Tensions in the South China Sea?

An Assessment of Developments Before and After Their Adoption

Carlyle A. Thayer

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

Paper to 3rd International Workshop on the South China Sea cosponsored by the Vietnam Lawyers Association and the Diplomatic Academy of Vietnam Hanoi, Vietnam, November 3-5, 2011

Will the Guidelines to Implement the DOC Lessen Tensions in the South China Sea? An Assessment of Developments Before and After Their Adoption Carlyle A. Thayer*
Abstract: This paper looks at developments affecting security in the South China Sea prior to and after the adoption of the Guidelines to Implement the Declaration on Conduct in the South China Sea on July 20, 2011. The first part of the paper provides a comparative assessment of Chinas aggressive assertiveness in relations with the Philippines and Vietnam and their responses prior to the adoption of the Guidelines. The second part of the paper assesses the significance of the Guidelines to Implement the DOC on security in the South China Sea. Part three reviews developments after the Guidelines were adopted with a focus on Chinas bilateral relations with the Philippines and Vietnam and Sino-Indian relations. The paper concludes by arguing that bilateral arrangements between China and other claimant states is a necessary but not sufficient condition for maintaining security in the South China Sea as long as China continues to assert indisputable sovereignty over the maritime area.

Introduction
This paper reviews developments affecting the security of the South China Sea during 2011. The paper first discusses Chinese assertiveness in the first half of the year and contrasts this with developments in the second half of the year after China and the ten members of the Association of Southeast Asian Nations (ASEAN) reached agreement on Guidelines to implement 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 aggressively asserting its sovereignty claims in the South China Sea by targeting the commercial operations of oil exploration ships in waters claimed by the Philippines and Vietnam. Chinas actions not only raised regional tensions but also provoked the Philippines into making repeated diplomatic protests, increasing its defence budget, lobbying regional states for political support, and aligning more closely with the United States. Vietnam responded by calculated displays of resolve to defend national sovereignty, further its program of force modernisation, and stepped up its defence cooperation with the US, India, Japan, the Philippines and other ASEAN states. During the second half of the year, after the adoption of the DOC Guidelines, tensions over the South China Sea began to subside and diplomacy 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 and foreign policy issues with a particular interest in Vietnam, ASEAN and the ASEAN Regional Forum. Many of the authors current research papers may be located at >www.scribed.com<. E-mail: c.thayer@adfa.edu.au.

diplomacy by hosting official visits by Philippines President Benigno Aquino III and Nguyen Phu Trong, Secretary General of the Vietnam Communist Party. China and Vietnam reached a separate bilateral agreement on guidelines to settle maritime disputes during Secretary General Trongs visit. This paper is organised into five parts. Part one discusses Chinese assertiveness directed at the Philippines and Vietnam in the first half of the year. Part two reviews the responses by the Philippines and Vietnam to Chinese assertiveness. Part three discusses the adoption of Guidelines for the Implementation of the DOC (Declaration on Conduct of Parties in the South China Sea). Part four analyses diplomatic developments involving South China Sea claimant states after the adoption of the DOC Guidelines. Part five discusses the impact of security trends on the prospects 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 of Foreign Affairs (DFA), Chinese ships and aircraft intruded into waters and air space claimed by the Philippines on no less than six (and possibly nine or more) occasions. The most serious incidents involved live firing by a PLAN guided missile frigate to intimidate Filipino fishing craft, threats by Chinese vessels to rams a Filipino exploration vessel forcing it to suspend operations in waters in Reed Bank, and the unloading of construction materials in apparent violation of the 2002 Declaration on Conduct of Parties in the South China Sea (DOC). Vietnam reported two serious incidents in which Chinese ships reportedly cut the cables of two exploration vessels carrying out seismic surveys (see Table 1). In addition, China once again imposed its annual fishing ban and took measures against Vietnamese fishing craft. Although Vietnamese fishermen vowed to defy the ban, the Vietnamese media reported that many fishermen remained in their home ports. During the period of the Chinese fishing ban the Vietnamese state-controlled Vietnamese press only reported two major incidents (see Table 1). In 2011 Chinese authorities reportedly adopted different tactics from their previous heavyhanded approach. Chinese ships formed a cordon around the fishing grounds near the Paracel Islands and turned back Vietnamese fishing craft after confiscating their catches. During the period of the Chinese fishing ban Vietnamese authorities in Phu Yen province reported the arrival of Chinese fishing boats in Vietnamese waters in greater numbers than in the past. Chinese fishing craft operating between Da Nang City and the Spratly Islands numbered between 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 .

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 1 Reported Incidents Involving Chinese Ships Against Filipino and Vietnamese Fishing Boats and Exploration Vessels, February-July 2011

Dat e
25/2 2/3 6/5 11/5 11/5 21/5 24/5 26/5 29/5

Incident
PLAN frigate fires at Filipino fishing boats operating in waters off Palawan province Chinese ships force MV Veritas Voyager from seismic survey work in Reed Bank Chinese vessel spotted at Bombay Shoal Two identified aircraft intrude into Philippines air space Haikou Municipal government imposes unilateral fishing ban 16 May-1 August CMS and Salvage ship intrude into Southern Bank PLAN/CMS ships unload construction materials on Iroquois Reef-Amy Douglas Bank Three Chinese Maritime Surveillance ships accost exploration ship Binh Minh 2 and cut its seismic cable in Block 148 in Vietnams EEZ Chinese boats, Fei Sheng No. 16 and Vessel No. B12549, reportedly attempt to interfere in commercial activities of Viking II exploration ship in Block 136-03 near Vanguard Bank Chinese boats, Fei Sheng No. 16 and Vessel No. B12549, reportedly attempt to interfere in commercial activities of Viking II exploration ship in Block 136-03 near Vanguard Bank Chinese ships reportedly cut seismic cables towed by Viking II in Block

31/5

9/6

136-03 near Vanguard Bank 1/6 30/6 5/7 Chinese military vessels reported threaten to fire on a Vietnamese fishing boat in waters near Spratly Islands Unreported alleged third attempt to cut cable of Vietnamese exploration ship Chinese warship dispatches speedboat with armed crew to board Vietnamese fishing craft. They alleged beat captain, threaten crew, seize fishing catch and force fishing craft to leave waters near the Paracel Islands

Diplomatic Protests.
The Philippines DFA responded to each of the major incidents through diplomatic channels, including lodging diplomatic protests with the Chinese Embassy. The Philippines also raised its concerns in public to a far greater extent than Vietnam, including providing the Filipino press with detailed information on the content of diplomatic notes to the Chinese Embassy. On April 5, the Philippines raised the diplomatic stakes by submitting a letter to the United Nations formally restating its claim to sovereignty over the Kalayaan Island Group (KIG), adjacent waters and geological features including relevant waters, seabed and subsoil.2 This action immediately provoked a response by China. On April 14, China lodged a Note Verbale with the United Nations, accusing the Philippines of infringing Chinese national sovereignty by invading and occupying islands and reefs in the Nansha [Spratly] Islands.3 In early June President Aquino revealed that the Philippines was preparing to file a complaint to the United Nations in response to Chinese intrusions. According to Aquino, We are completing the data on about six to seven instances since February. We will present it to [China] and then bring these to the appropriate body, which normally is the United Nations.4
2

Philippine Mission to the United Nations, Letter to the Secretary General of the United Nations, 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 Spratly Islands, 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 also considered a part of the Spratlys) and Rizal (Commodore Reef).
3

Teresa Cerojano, Beijing counters Manilas UN protest, says Philippines started to invade Spratlys in 1970s, Associated Press, April 19, 2011 and Tessa Jamandre, China fired 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.

A review of public reporting on diplomatic exchanges between the Philippines and China does not reveal a single instance where China took the Philippines protest seriously or even offered to look into or investigate the matter. In all instances, China rejected out of hand diplomatic protests tendered by the Philippines. The facts contained in Filipino protests were dismissed as fabrications or the result of Chinese enforcement of their legal jurisdiction in Chinese waters. An exchange on notes in June is instructive. On June 4, the DFA lodged a protest with the Chinese Embassy over the increasing presence and activities of Chinese vessels including naval assets in the West Philippines Sea. The note claimed, These actions of Chinese vessels hamper the normal and legitimate fishing activities of the Filipino fishermen in the area and undermines the peace and stability of the region.5 The Chinese Foreign Ministry responded three days later:
Chinese vessels were cruising and carrying out scientific studies in waters under Chinas jurisdiction and their activities were in line with the law China asks the Philippine side to stop harming Chinas sovereignty and maritime rights and interests, which leads to unilateral actions that expand and complicate South China Sea disputes. The Philippines should stop publishing irresponsible statements that do not match the facts.6

In July the Philippines stepped up their diplomatic campaign by proposing that the Philippines and China take their territorial dispute to the UNs International Tribunal for the Law of the Sea for resolution. This proposal was floated in Manila and then raised by Foreign Secretary Albert Del Rosario in his discussions with Chinas Foreign Minister Yang Jiechi in Beijing.7

Bilateral Discussions. Filipino officials repeatedly raised their

concerns about security tensions in the South China Sea in their discussions with Chinese officials. Public reporting revealed, however that the Philippines was less confrontational in face-to-face meetings than in public statements. The visit by Chinas Defence Minister, General Liang Guanglie, is instructive. He paid an official visit to the Philippines from May 21-25 for talks with his counterpart Defense Secretary Voltaire Gazmin. 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 the Department of Foreign Affairs On the Presence of Chinese Vessels In the West Philippine Sea (South China Sea), June 4, 2011.
6

Agence France-Presse, China says Philippines harming its maritime rights, ABS-CBN News, June 7, 2011; Reuters, China scolds Philippines over disputed waters, June 8, 2011; and Xinhua, Chinese DM Meets with Vietnamese Counterpart in Singapore, June 4, 2011.
7

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

statement that declared:

both ministers expressed hope that the implementing guidelines of the 2002 Declaration 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 stable while all parties work for the peaceful resolution Both ministers recognized that unilateral actions which could cause alarm should be avoided.8

When Defence Minister Liang met with President Aquino South China Sea issues were discussed in general but the latter refrained from directly raising the Reed Bank incident and the reported intrusion of Chinese aircraft into Philippine air space.9 But President Aquino warned Liang that more maritime incidents in disputed areas of the South China Sea could spark a regional arms race.10

Mutual Defense Treaty. Chinese assertiveness in waters claimed

by the Philippines immediately raised the question of whether or not the 1951 Mutual Defense Treaty between the Philippines and the United States could be invoked in the event of conflict between China and the Philippines. The Philippines sought a clear commitment by the United States while Washington sought to avoid entrapment. Article III of the Mutual Security Treaty (Article III) only provided for consultations in the event the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific. In the case of armed attack, Article IV declared the parties would act to meet the common dangers in accordance with its constitutional processes. Finally, Article V of the Mutual Defense Treaty stated an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific. The point needing clarification was whether island territories, 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 resolution reaffirmed, Philippines Daily Inquirer, May 24, 2011; Jim Gomez, China, Philippines warn 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, May 23, 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.

assertiveness directed at the Philippines served to draw Manila and Washington closer together as allies. On May 14, for example, on the eve of the visit by Chinas Defence Minister, President Aquino and several members of his Cabinet flew out to the USS Carl Vinson aircraft carrier in the South China Sea as it headed towards the Philippines. The aircraft carrier 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 fly out by President Aquino was a highly visible and symbolic reaffirmation of the alliance relationship. In June, it was reported that the Philippines Embassy in Washington was in the market for excess defence equipment from the US under its Foreign Military Sales program.12 The Philippines also announced a new U.S. training program for its naval forces to enable them to better carry out their mission of providing security for oil exploration activities in West Philippines Sea.13 In August, the Philippines took delivery of the U.S. Coast Guard Cutter USCGC Hamilton and announced that it will patrol disputed waters in the West Philippine Sea.14

Force Modernisation. In 2011, in response to developments in the

South China Sea, the Philippines began drawing up a new defence strategy focused on both internal security operations and external territorial defence. The Armed Forces of the Philippines (AFP) were allocated US $183 million in funds from the Capability Upgrade Program to purchase two offshore fast patrol boats, long-range maritime aircraft, surveillance and communication equipment including air defence and coastal radars.15 On March 28th, AFP Chief of Staff General Eduardo Oban announced plans to 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 terror backlash 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 Network News, April 28, 2011.
14

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

Jon Grevatt, Philippines to invest USD183 million in defence of Spratly Islands, Janes Defence Weekly, March 30, 2011; Reuters, Philippines steps up presence in South China Sea, March 28, 2011; Associated Press, Philippines to bolster watch in disputed Spratlys, Bloomberg Businessweek, March 28, 2011; and China denies incursion into West Philippine Sea, The Philippine Star, June 3, 2011.
16

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

10

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

New

Also in response to Chinese assertiveness, President Aquino launched a new initiative calling for the South China Sea to become a Zone of Peace, Freedom, Friendship and Cooperation (ZOPFF/C). Aquino explained , what is ours is ours, and with what is disputed, we can work towards joint cooperation.19 He directed the Department of Foreign Affairs to promote the ZOPFF/C concept through 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 collaborative activities from non-disputed waters in the West Philippines Sea in accordance with international law in general and the United Nations Convention on Law of the Sea (UNCLOS) in particular.20 A disputed area, according to the DFA, could be turned into a Joint Cooperation Area for joint development and the establishment of marine protected area for biodiversity conservation. Areas not in dispute, such as Reed Bank that lies on the Philippines continental shelf, can be developed exclusively by the Philippines or with the assistance of foreign investors invited to participate in its development.

Diplomatic

Initiative.

Lobbying ASEAN Members. In response to Chinese assertiveness,

President Aquino embarked on an intense round of lobbying with ASEAN states to present a unified stance in discussions with China on guidelines to implement the DOC, on a more binding Code of Conduct, and for his ZOPFF/C initiative. On March 8, President Aquino paid an official visit to Indonesia where he conferred with President Susilo Bambang Yudhoyono. Next, in early June, President Aquino continued his lobbying during an official visit to Brunei Darussalam for discussions with Sultan Hassanal
2011.
17

Katherine Evangelista, Philippines eye submarines to boost navy, Philippine Daily Inquirer, May 17, 2001. The prospect of the Philippines acquiring submarines is highly unlikely.
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 of Foreign Affairs, Public Information Service Unit, June 7, 2011.
20

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

11

Bolkiah. President Aquino told the reporters covering his visit to Brunei: We govern ourselves there [Spratly Islands/KIG]. Instead of one country has a bilateral agreement with China and the other has a different bilateral agreement with China. Lets come together as a body.21 Aquino also renewed his call for the immediate adoption of the implementing guidelines on the DOC.22 The following day a DFA spokesperson called for a more binding Code of Conduct of Parties in the South China Sea in order to address territorial disputes.

Vietnam
Vietnam and China share a dense network of mechanisms that regulate their 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 Chinese assertiveness in the South China Sea in 2011. Vietnam employed four major 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, Vietnam

attempted to manage growing security tensions in the South China Sea through bilateral discussions with China. Vietnam hosted two important Chinese delegations and arranged for sideline talks between defence ministers at the Shangri-la Dialogue. These discussions were aimed at compartmentalising the South China Sea dispute from spilling over and negatively affecting the broad-based bilateral relationship. More specifically, these bilateral discussions were aimed at mutual assurance that force would not be used to settle territorial disputes. In April, Vietnam received Senior Lieutenant General Guo Boxiong, Vice Chairman of Chinas Central Military Commission, who came at the invitation of General Phung Quang Thanh, Minister of National Defence.
21

Johanna Paola D. Poblete, Philippines preparing issues for UN about China intrusions,: Business World, June 2, 2011.
22 23

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

Carlyle A. Thayer, Vietnam and Rising China: The Structural Dynamics of Mature Asymmetry, in Daljit Singh, ed., Southeast Asian Affairs 2010 (Singapore: Institute of Southeast Asian Studies, 2010), 392-409.

12

The main purpose of Guos visit was to plan for the next round of joint naval patrols in the Gulf of Tonkin and to discuss expanding the scope of future cooperative military activities.24 Guos visit took place prior to the first cable-cutting incident. Although the South China Sea was not a formal agenda item, South China Sea issues were raised when General Guo was received by Prime Minister Nguyen Tan Dung. Dung, in an obvious message to leaders in Beijing, proposed the two sides talk and seek fundamental and long-lasting measures that both sides are able to accept for the East Sea [South China Sea] issue25 Guos visit highlights that both sides were willing to compartmentalise territorial disputes from the larger relationship. For example, despite the tensions raised by the first cable-cutting incident on May 26 the joint naval patrols took place as schedule and after which the Vietnamese naval ships made their second port call in China.26 Immediately following General Guos visit, Vietnam hosted a bilateral meeting of the heads of the government delegations on border negotiations (April 18-19).27 These discussions were held at deputy minister level. Chinas Foreign Ministry reported that the two vice ministers pledged, to properly handle maritime disputes through friendly consultations and explore solutions with a positive and constructive attitude.28 A Vietnamese spokesperson revealed that the two sides agreed they will sign an agreement on the fundamental guidelines to settle the maritime issues. It was also noted that negotiations were still continuing 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 Guo Boxiongs Visit to Vietnam, Xinhua, April 17, 2011.
25 26

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

The Chinese and Vietnamese navies conducted their eleventh routine joint patrol in the Gulf of Tonkin from June 19-20. Margie Mason, Vietnam and China hold joint naval patrol 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, Vietnams second 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 naval patrols, Peoples Daily Online, June 22, 2011; and Vietnamese naval ships wrap up visit to China, Quan Doi Nhan Dan Online, June 27, 2011.
27 28

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

Peoples Republic of China, Ministry of Foreign Affairs, Vietnamese Prime Minister Nguyen 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 Sea disputes, April 20, 2011 and Agence France Presse, Vietnam, China vow to work on disputed sea pact, April 21, 2011.

13

took place in June on the sidelines of the Shangri-la Dialogue. Prior to this meeting, Vietnams Defence Minister Phung Quang Thanh raised South China Sea issues in his plenary address. He spoke in detail about the legal basis for activities at sea to facilitate cooperation for development and deter actions that risk our common interests, regionally and nationally.30 Defence ministers Thanh and Liang Guanglie, met informally on the sidelines of the Singapore forum. Thanh expressed the concern of Vietnamese party and state leaders over what he termed a pressing incident, and then offered the conciliatory comment that Sometime, regrettable cases happen which are beyond the expectation of both sides. Thanh concluded, We truly expect no repetition of similar incidents.31 Liang replied that China also did not want a similar incident to occur in the future.32 Liang and his aides noted in particular that the Peoples Liberation Army was not involved in the incident. Four days later a second cable-cutting incident occurred involving Chinese civilian maritime authorities.

Reaffirmations

Chinas first cable-cutting incident provoked an anti-China nationalist outcry in Vietnam on the part of students, intellectuals and retired official. On June 5 they conducted the first of a series of eleven anti-China public demonstrations over a twelveweek period. Also in early June, growing enmity between nationalists in China and Vietnam spilled over into cyberspace. According to Nguyen Minh 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 and Rural Development and Foreign Affairs where hackers succeeded in posting Chinese flags and slogans.33 On June 9, Prime Minister Nguyen Tan Dung responded to the cable cutting incidents and growing domestic pressure by making an unusually strong statement in public in defence of national sovereignty. Dung said: We continue to affirm strongly and to manifest the strongest determination of all the Party, of all the people and of all the army in protecting Vietnamese sovereignty in maritime zones of the country.
30

of

Sovereignty.

Phung Quang Thanh, Responding to New Maritime Security Threats, Presentation to the 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 33

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

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.

14

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

Live-Firing Naval Exercises. Vietnam has always been extremely

circumspect in its public commentary on relations with China. The public statements by Prime Minister Dung and President Triet were virtually unheard of. But no action was more calculated than Vietnams unprecedented public announcement that it would be conducing live-firing naval exercises. These live-fire drills may have been provoked by Chinas conduct 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 announced that live firing exercises would be held on June 13 in the waters near Hon Ong Island.36 Vietnams Foreign Ministry characterized these exercises as a routine annual training activity of the Vietnam navy in the area where the Vietnam navy regularly conducts training [activities] that are programmed and planned annually for units of the Vietnam Peoples Navy.37 The first phase of the exercise involved coastal artillery, while the second part 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 Nam province in central Vietnam roughly opposite the Paracel Islands and at quite a distance from the two cable-cutting incidents. Vietnams live-fire exercises were most certainly conducted to signal Vietnams resolve to defend 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 viec ban 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 dispute escalates, Reuters, June 11, 2011; and Deutsche Presse-Agentur, Navy official says live-fire drills well inside Vietnams territory, June 11, 2011.
38

Reported by a confidential Vietnamese military source to the author.

15

interference.39 On the same day that the live-firing exercises were announced, Prime Minister Dung underscored the seriousness of Vietnams resolve by issuing a decree on military service that included provisions for the conscription of persons with special skills needed by the military.40 According to one analysis the decree served two purposes. First, it assuaged growing domestic pressure for the government to stiffen its response to China. Second, it was a demonstration of resolve in response to Chinese assertiveness.41

Special

Diplomatic Envoys. In January 2011 the Vietnam Communist Party elected a new leadership at its eleventh national congress. An indication of the importance of Vietnams bilateral relationship 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 Chinese Communist Party, Hu Jintao, and briefed him on the outcome of the congress. Quan also extended an invitation to Hu and other Chinese party and state leaders to visit Vietnam. In return, Hu extended a reciprocal invitation to Secretary General Trong to visit China.42
China had also extended a similar invitation to President Aquino after his inauguration. Aquino repeatedly postponed his official visit reportedly due to tensions over the South China Sea. In Vietnams case, Hanoi had to make the first move and party Secretary General Trong followed President Aquino to Beijing in October. Trong, however, significantly made his first overseas visit as party leader to Laos. After the second able-cutting incident, Vietnam dispatched its second special envoy to China, deputy foreign minister Ho Xuan Son. Son held discussions with his counterpart Zhang Zhijun. Significantly, Son was received by State Councillor Dai Bingguo.43 According to a joint press release issued on June 25:
39

The Global Times, an English-language newspaper published by the Chinese Communist 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 the people of the two countries, quoted in Associated Press, Chinese Communist Party newspaper cautions Vietnam, 11 June 11, 2011.
40

Deutsche Presse-Agentur, Decree on military call-up sparks online patriotism in Vietnam, June 14, 2011 and Agence France-Presse, Vietnam signs military order amid tensions, June 15, 2011. The Decree also listed eight categories of exemptions.
41

BBC News Asia-Pacific, Vietnam bolsters military stance amid China marine row, June 14, 2011.
42

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

16

The two sides emphasized the necessity to actively implement the common perceptions of the two countries leaders, peacefully solving the two countries disputes at sea through negotiation and friendly consultation; employing effective measures 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 the two countries. The two sides agreed to speed up the tempo of negotiations so as to early sign an Agreement on basic principles guiding the settlement of sea issues between Vietnam and China, and boost the implementation of the Declaration on Conduct of Parties in the East Sea (DOC) and follow-up activities so that substantial progress will soon be achieved.44

3. Adoption of the DOC Guidelines

In 2004, two years after negotiating the Declaration on Conduct of Parties in the South China Sea, the ASEAN-China Senior Officials Meeting agreed to establish the ASEAN-China Joint Working Group (JWC) to Implement the DOC. The JWG held its first meeting in Manila in August 2005. The Terms of Reference for the Joint Working Group specified that the JWG was to meet 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 policy recommendations 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

Poi nt
43

Final Wording (2011)

Original Draft (2005)

Edward Wong, China and Vietnam Agree to Talks on South China Sea Dispute, The New York Times, June 26, 2011; Brian Spegele, China Announces Pact with Vietnam on Disputes Sea, The Wall Street Journal, June 26, 2011; Dan Martin, China, Vietnam vow to 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 press release, June 26, 2011. http://www.mofa.vn/en. Anti-China demonstrations continued in Hanoi until August 21 when they were finally halted.
45

Association of Southeast Asian Nations, Terms of Reference of the ASEAN-China Joint Working 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.

17

The implementation of the DOC should be carried out in a step-bystep approach in line with the provisions of the DOC. The Parties to the DOC will continue to promote dialogue and consultations in accordance with the spirit of the DOC. The implementation of activities or projects as provided for in the DOC should be clearly identified. The participation in the activities or projects should be carried out on a voluntary basis. Initial activities to be undertaken under the ambit of the DOC should be confidence-building measures. 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. In the implementation of the agreed projects under the DOC, the services of the Experts and Eminent Persons, if deemed necessary, will be sought to provide specific inputs on the projects concerned. Progress of the implementation of the agreed activities and projects under the DOC shall be reported annually to the ASEAN-China Ministerial Meeting (PMC)

The implementation of the DOC should be carried out in a step-bystep approach in line with the provisions of the DOC. ASEAN will continue its current practice of consulting among themselves before meeting with China. The implementation of the DOC should be based on activities or projects clearly indentified. The participation in the activities or projects should be carried out on a voluntary basis. Initial activities to be undertaken under the ambit of the DOC should be confidence-building measures. 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 COC. In the implementation of the agreed projects under the DOC, the service of the experts and eminent persons if deemed necessary will be to provide specific inputs on the project concerned. Not in original draft guidelines

The twice annual meeting of the ASEAN-China JWC was honoured in the breach. ASEAN also tabled draft guidelines for discussion at the August 2005 meeting. These guidelines made provision for ASEAN states to caucus first prior to meeting with China. China objected and insisted that outstanding disputes should be resolved by bilateral consultations among relevant parties and not with ASEAN as a group. Consequently, the JWG did not make any progress for the next six years as China and ASEAN quibbled over the wording of at least twenty-one successive drafts.

18

Recent Chinese assertiveness in advancing its sovereignty claims in the South China Sea provoked both a regional and international backlash. South China Sea disputes featured prominently in 2010 at the ASEAN Regional Forum and at the inaugural ASEAN Defense Ministers Meeting Plus. China was isolated diplomatically and sought to limit further damage by agreeing to revive the moribund ASEAN-China Joint Working Group. The fifth meeting of the JWG was convened in Kunming, China in December 2010. The sixth JWG met in Medan, Indonesia in April 2011. At both meetings it became clear that progress was still hostage to Chinas insistence that territorial and sovereignty claims could only be settled bilaterally by the states concerned. In July 2011, ASEAN Senior Officials quietly dropped the offending text in point two of their original draft guidelines and offered a drastically watered down formulation to their ministers for approval. On July 20, the ASEAN and Chinese foreign ministers finally approved The Guidelines for the Implementation the DOC. These guidelines consisted of eight brief points preceded by a three-paragraph preamble.46 The preamble identified the DOC as a milestone document signed between the ASEAN Member States and China, underscoring that the DOC was not an agreement between ASEAN as a group and China. Second, the preamble stated that the effective implementation of the DOC will contribute to the deepening of the ASEAN-China Strategic Partnership for Peace and Prosperity. This was an inducement for China to take concrete action. Finally, the preamble noted that the Guidelines are to guide the implementation of possible joint cooperative activities, measures and projects as provided for in the DOC. This formulation clearly indicates that the Guidelines are tentative and not binding. Table 2 above sets out a comparison of the 2005 original draft and the final draft adopted in 2011. There are only two substantial points of difference. Point 2 in the original draft was substantially revised to meet Chinese objectives. Prior ASEAN consultation was replaced with the weaker injunction to promote dialogue and consultations in accordance with the spirit of the DOC. An eighth point was added specifying that activities and projects undertaken under the DOC should be reported to the ASEAN-China Ministerial Meeting. Immediately after the Guidelines were adopted, the Philippines Foreign Secretary Albert Del Rosario noted that they would need more teeth to make them effective. According to Del Rosario, The necessary elements to make the guidelines succeed are still incomplete. Were looking for the participants to be honorable. Beyond that theres not much room for us to
46

Association of Southeast Asian Nations, The Guidelines for the Implementation of the DOC. http://www.asean.org/4979.htm. The DOC Guidelines were posted on the ASEAN Secretariat web site under External Relations, China, Cooperation on the South China Sea. They have since been removed.

19

exact consequences for misbehavior.47

4. Diplomatic Developments
After ASEAN and China adopted the DOC Guidelines, there was a noticeable lowering of security tensions as claimants put their energies into diplomacy. This section highlights four major developments: highlevel visits to Beijing by leaders from the Philippines and Vietnam; an agreement between China and Vietnam on the settlement on sea issues; the convocation of an ASEAN Legal Experts meeting to consider President Aquinos ZOPFF/C initiative; and defence-security dialogues and agreements on defence cooperation.

High-Level Visits to Beijing. After President Aquino assumed office

he received an invitation to pay an official state visit to China. The visit was reportedly postponed on one or more occasions because of rising tensions over territorial disputes in the South China Sea. When ASEAN and China adopted the Guidelines on the DOC the way was now cleared for President Aquino to visit Beijing. He made his official visit from August 30 to September 3 at the invitation of President Hu Jintao. The joint statement issued at after their talks indicated that economic issues featured prominently. For example, Aquino reportedly garnered US $1.3 billion in new investments.48 The joint statement only made reference to the South China Sea at the bottom of the list of topics discussed (point 15 of 17 points):
Both leaders exchanged views on the maritime disputes and agreed not to let the maritime disputes affect the broader picture of friendship and cooperation between the two countries. The two leaders reiterated their commitment to addressing the disputes through peaceful dialogue, to maintain continued regional peace, security, stability and an environment conducive to economic progress. Both leaders reaffirmed their commitments to respect and abide by the Declaration on the Conduct of Parties in the South China Sea signed by China and the ASEAN member countries in 2002.49

On Aquinos return to Manila he revealed that President Hu Jin-tao supported an implementing agreement for a South China Sea Code of Conduct. 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, Aquino brings home $13b worth of China investments, The Gulf Today, September 5, 2011. Jara reported, Aquino said the Chinese goodies he brought home consisted of $1.28 billion worth of new investments, $3.8 billion in assured investments and $7.9 billion from businessmen 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.

20

put in the implementing rules and regulations.50 Nevertheless, President Aquino continued to press for a multilateral South China Sea Code of Conduct and agreement on demarcating the precise maritime areas in dispute. Vietnams party Secretary General Nguyen Phu Trong made an official visit to China from October 11-15 to meet with General Secretary Hu Jintao and other high-ranking Chinese officials. Three major agreements were signed: Cooperation Plan Between the Vietnam Communist Party and the Chinese Communist Party (2011-15), Five-Year Economic-Trade Cooperation Development Plan (2012-16) and an Agreement on Basic Principles Guiding the Settlement of Sea Issues Between Vietnam and China (discussed below).51 Discussions between Hu Jintao and Nguyen Phu Trong focused mainly on further steps to promote the China-Vietnam comprehensive strategic partnership through continued high-level visits, enhanced party-to-party ties (exchanges of Central Committee commissions and workshops on ideology), strengthening the role of the Joint Steering Committee in managing bilateral state-to-state relations, stepped up cooperation between the two militaries and law enforcement agencies, and other areas of cooperation. A hot-line was inaugurated connecting high-level leaders. At the conclusion of their discussions they issued an eight-point Joint Statement.52 Unlike the China-Philippines Joint Statement, the ChinaVietnam Joint Statement included a detailed reference to maritime issues. Both sides reaffirmed their commitment to the settlement of maritime issues through friendly negotiations and to refrain from acts that can complicate or expand the disputes, prevent hostile forces from sabotaging the relationship between the two parties and two countries, [and] deal with emerging issues with a constructive attitude, preventing them from affecting relations between the two parties Regarding defence cooperation the Joint Statement declared:
Fourthly, to promote in-depth cooperation between the two armies, increase contact between high-ranking army leaders of the two countries; continue to organise good strategic dialogues at deputy ministerial level; accelerate the establishment of a direct telephone line between the two defence ministries; increase cooperation in
50

China Wants Binding S. China Code: Aquino, Bloomberg News, August 31, 2011 and Barbara 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 on amending the Road Transport Agreement, and an additional protocol to implement the Road Transport Agreement.
52

Tuyen bo chung hai nuoc Viet Nam va Trung Quoc, Vietnam News Agency, October 15, 2011.

21

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

Based on the Agreement on Basic Principles Guiding the Settlement of Sea Issues Between Vietnam and China the two leaders pledged to: speed up negotiations on demarcation of areas beyond the mouth of the Gulf of Tonkin and to discuss cooperation for mutual development (hop tac cung phat trien) in such areas as marine environmental protection, marine scientific research, search and rescue at sea, oil and gas exploration and exploitation, and natural disaster prevention. It is significant both the Philippines and Vietnam sought to balance their relations with China by dispatching their presidents to Japan and India, respectively.54 President Aquino paid a working visit to Japan from September 25-28, while Vietnams President Truong Tan Sangs official visit to India coincided with Secretary General Trongs trip to Beijing. President Aquino and Prime Minister Yoshihiko Noda welcomed the adoption of the DOC Guidelines and expressed their hope for the early formulation of a legally-binding Code of Conduct (COC) that is consistent with established international law. With respect to maritime security the Japan=Philippines Joint Statement declared:
The two leaders confirmed that the South China Sea is vital, as it connects the world and 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 of communication, they also confirmed that freedom of navigation, unimpeded commerce, and compliance with established international law including the UNCLOS and the peaceful settlement of disputes serve the interest of the two countries and the whole region. They share the recognition that these same interests should also be advanced and protected in the South China Sea.55

In 2007 Vietnam and India raised their bilateral relations to that of a strategic partnership. President Truong Tan Sangs visit to India was designed to further that relationship in a number of areas. But the timing of two high-level Vietnamese visits to China and India clearly signalled that 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 territorial disputes in the South China Sea. Point 14 stated:
53

Tuyen bo chung hai nuoc Viet Nam va Trung Quoc, Vietnam News Agency, October 15, 2011, point 4(iv).
54

On the Philippines, see: Amando Doronila, Aquinos balance of power diplomacy over Spratlys, Philippine Daily Inquirer, October 3, 2011.
55

Japan-Philippines Joint Statement on the Comprehensive Promotion of the Strategic Partnership between Neighboring Countries Connected by Special Bonds of Friendship, September, 27, 2011.

22

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

The Joint Statement, however, did make provision for stepping up cooperation in the field of capacity building, technical assistance and information sharing between their respective agencies for ensuring security of sea-lanes (Point 15).

China-Vietnam Agreement on Settlement of Sea Issues. In

early 2010 China and Vietnam initiated bilateral discussions on border issues with the aim of reaching agreement on a set of fundamental guiding principles as a framework for settling maritime issues. Vietnam and China agreed to bilateral discussions on maters that did not affect third parties, such as the waters at the mouth of the Gulf of Tonkin. Vietnam and China, however, differed on the question of multilateral negotiations. According to Vietnam:
Issues that are related to other countries and parties like the Spratly Islands cannot be settled by Vietnam and China, they require the participation of other concerned parties. For issues that are not only related to countries that border the East Sea such as maritime safety and security, they must be negotiated and settled by all countries that share this common interest.57

At the conclusion of the seventh round on August 1, 2011, a Vietnamese spokesperson noted that the two sides reached preliminary consensus on some principles and that the eighth round of discussion would be held later in the year.58 Before the eighth round was held China and Vietnam convened the fifth annual meeting of their bilateral Joint Steering Committee in Hanoi on September 6. China was represented by State Councillor Dai Bingguo who met with his counter-part Deputy Prime Minister Nguyen Thien Nhan. The Joint 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 the visit 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 Vietnam Ministry of Foreign Affairs Spokesperson Nguyen Phuong Nga to Questions by Greg Torode South China Morning Post, December 2010. Torode kindly provided a copy of this document to the author.
58

Vietnam, China agree to resolve sea dispute through peaceful means, Vietnam News Agency, August 3, 2011.

23

They will accelerate the process of negotiations and seek fundamental and longterm solutions acceptable to both sides. They agree to strengthen negotiations on the marine issues and sign the agreement on the basic principles guiding the settlement of marine issues between China and Vietnam at an early date. They will boost the implementation of the Declaration on the Conduct of Parties in the South China Sea and follow-up work and try to achieve substantial progress soon59.

China and Vietnam were good at their word and, as noted above, the deputy ministers of the two countries signed the Agreement on Basic Principles Guiding the Settlement of Sea Issues Between Vietnam and China on October 11.60 The agreement committed both parties to seek mutually acceptable fundamental and lasting solutions to sea-related disputes. In the meantime, the two sides shall actively discuss provisional and temporary measures without affecting each sides positions 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 demarcate the waters forming the mouth of the Gulf of Tonkin and actively discuss cooperation for mutual development in these waters (emphasis added). The Agreement also specified if the disputes involve other countries, the consultations 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 a proposal for an agreement on a Zone of Peace, Freedom, Friendship and Cooperation in the South China Sea. The ministers took note of this proposal and referred it to a meeting of ASEAN Senior Officials and legal experts for consideration.61 In preparation for this meeting, the Philippines DFA drew up a proposal to create enclaves for disputed maritime territory in the South China Sea in order to separate these areas from non-disputed maritime territory. According to the DFA proposal, (E)nclaving will literally operationalize the shelving of territorial disputes and pave the way for effective and meaningful cooperation among the claimant 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 5th Meeting 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 giua nuoc 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 to Resolve 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.

24

A meeting of the ASEAN Maritime Legal Experts was held in Manila from September 22-23. This meeting was part of an attempt by the Philippines to form a united front vis--vis China.63 With the exception of Cambodia and Laos, all other ASEAN states were represented. This meeting held extensive discussions on the Philippines ZOPFF/C initiative and resolved to forward this proposal to the next ASEAN Senior Officials Meeting for its consideration. According to Foreign Affairs Secretary Del Rosario, For the DOC to be effective, an actionable framework for joint cooperation in the West Philippine Sea, such [as] ZOPFF/C, is considered as an imperative. 64 The ASEAN Senior Officials are expected to make a recommendation to their ministers prior to the convening of the 19th ASEAN Summit in Bali in November.

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 in general, and disputes in the South China Sea in particular, have featured prominently. In Vietnams case it seems clear that Hanoi uses its defence dialogues with the US, Japan and India to hedge against Chinese assertiveness.

Vietnam and the United States. Vietnam conducts two dialogues

with the United States. The first is a Political, Security and Defense dialogue conducted between the State Department and the Ministry of Foreign Affairs at deputy minister level. The second and more recent dialogue, the Defense Policy Dialogue, is conducted between the Department of Defense and the Ministry of National Defence at deputy minister level. The section below discusses each of these dialogue as well as major developments in bilateral defence cooperation in the second half of 2011. On June 17, the United States and Vietnam held their 4th Political, Security and Defense Dialogue at vice ministerial level. The agenda for this meeting included non-proliferation, counter-terrorism, counter-narcotics, POW-MIA accounting, Agent Orange (dioxin) issues, humanitarian assistance and disaster relief, and other areas of defense and security cooperation, including peacekeeping and maritime security.65 The Media Note 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, September 23, 2011 and Jim Gomez, Associated Press, Philippines launches regional meeting to discuss 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-Vietnam Political Security, and Defense Dialogue, U.S. Department of State, Office of the Spokesperson, Media Note, Washington, D.C., June 17, 2011.

25

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 the international community and that all territorial disputes in the South China Sea should be resolved through a collaborative diplomatic process without coercion or the use of force. The two sides noted territorial and accompanying maritime claims should be in conformity with recognized principles of international law, including the UN Convention on the Law of the Sea of 1982. The two sides reaffirmed the importance of the 2002 ASEAN-China Declaration on Conduct of Parties in the South China 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 peace and stability within the region, and raise concerns about maritime security, especially with regard to freedom on navigation, unimpeded economic development and commerce under lawful conditions, and respect for international law.66

The following month Vietnam and the United States conducted naval exchange activities in the port of Da Nang. These activities included a community relations project (medical and dental services), and training in search and rescue, damage control, and dive and salvage.67 No formal naval exercises (i.e. combat training) were conducted. Other U.S.-Vietnam defence cooperation activities included the signing an agreement on military medicine partnership on August 1, the first formal military cooperation agreement between the two countries.68 On August 5, Vice Admiral Scott Buskirk, Commander of the US 7th Fleet visited Hanoi for discussions with Lt. General Tran Quang Khue, Deputy Chief of Staff.69 On August 13, the USS George Washington aircraft carrier hosted a fly out by Vietnamese officials as it transited in the South China Sea. 70 On August 16, the USNS Richard E. Byrd made a precedent setting visit to Cam Ranh Bay for a week of routine maintenance and repairs. This was the third occasion that Vietnamese shipyards had provided maintenance services for 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, July 1, 2011 and Agence France Presse, US Navy says no S. China link to Vietnam visit, June 24, 2011.
68

U.S., Vietnam Establish Formal Military Medical partnership, U.S. Navy Bureau of Medicine and Surgery Public Affairs, August 3, 2011; Agence France-Presse, US, Vietnam start first military relationship, August 2, 2011 and Vietnam, US set for military 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.

26

On September 19, the US and Vietnam held their 2 nd Defence Policy Dialogue in Washington. D.C. The US was represented by Deputy Assistant Secretary of Defence Robert Scher, while Vietnam was represented by Deputy Minister of National Defence, Lt. Gen. Nguyen Chi Vinh. The two signed a Memorandum of Understanding on defence cooperation that included the establishment of a high-level dialogue mechanism between the two defence ministries, maritime security, search and rescue, studying UN peacekeeping and humanitarian assistance and disaster relief.72 Finally, on August 24, Senator Jim Webb revealed that the US Defense Department was examining the possibility of lifting legal restriction on the sale of military technology to Vietnam.73

Vietnam and China. On August 28, China and Vietnam held their 2nd
Defence-Security Strategic Dialogue at deputy minister level in Beijing.74 Lt. General Ma Xiaotian, Vice Chairman of the PLA General Staff hosted his Vietnamese counterpart, Lt. General Nguyen Chi Vinh, Deputy Minister of National Defence. The two generals agreed to step up the exchange of military delegations, open a hot line between the two defence ministries, and expand military training. Lt. General Ma noted that the sovereignty dispute in the South China Sea was the most difficult and sensitive issue in bilateral relations. Lt. General Vinh responded by stating Vietnams readiness to cooperate for mutual development with China in really disputed areas in accord with international law and the mutual interest of both sides. General Vinh also stressed that there were three closely related aspects to the East Sea issue: the declaration of sovereignty by concerned countries, solving issues related to the ties between Vietnam and 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 represented by Defence Secretary Shashi Kant Sharma, while Vietnam was represented by Deputy Minister of National Defence, Lt. General Nguyen
71

MSC Ship: First USN Ship to Visit Vietnam Port in 38 years, MarineLink.com, August 23, 2011.
72

VN, US hold second defence policy dialogue, VietNamNet, September 20, 2011; Second Viet Nam-US defense policy dialogue yields good results, Vietnam News Agency, September 20, 2011; and Vietnam, US ink deal to boost defense ties, Thanh Nien 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 level after its third meeting. This took place after Vietnam and the US commenced their Defence Policy Dialogue.
75

Vietnam, China hold second defence, security dialogue, Vietnam News Agency, August 31, 2011.

27

Chi Vinh. During discussions it was agreed that the two sides would increase the exchange of delegations, information, training and information technology. They also discussed establishing a mechanism to further cooperation in naval, air force, infantry and defence industry matters.76 Media reports suggested that India was considering a Vietnamese request for training naval crews to operate Kilo-class submarines.77 General Vinh returned to India in October with the delegation that accompanied President Sang. Vinh again met with Defence Secretary Sharma who reaffirmed Indias willingness to assist Vietnam in military training, human resource development and information exchange. 78

Vietnam and Japan. On October 24, the Defence Ministers of Japan

and Vietnam signed a Memorandum of Understanding on the enhancement of defence cooperation. The MOU includes provisions for regular defence talks at deputy minister level, mutual ministerial visits, and exchanges between the Japan Self-Defense Force and the Vietnam Peoples Army. According to Japanese officials, the two ministers discussed maritime incidents involving Chinas obstruction of maritime activities. The MOU was designed in part to keep in check Chinas growing assertiveness in he South China Sea and East China Sea.79

Philippines and the United States. The Philippines and the United
States conduct their defence consultations through two bilateral mechanisms known as the Mutual Defense Board, set up under the Mutual Defense Treaty, and Security Exchange Board. These boards hold annual back-to-back meetings. The Mutual Defense Board is co-chaired by the Commander of the US Pacific Command and the AFP Chief of Staff and focuses mainly on conventional defense issues. The Security Exchange Board in a liaison and consultative body that focuses on non-traditional security issues including maritime security and safety. The 52nd meeting of the Mutual Defense Board and 5th meeting of the Security Exchange Board were held in Hawaii from August 15-16. Among the issues reportedly discussed were mutual defence, maritime security (including equipment sales), counter-terrorism, cyber security and disaster response. 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.

28

Cooperation Afloat Readiness and Training (CARAT) over eleven days in waters off Puerto Princesa, Palawan province. This exercise involved maritime interdiction, patrol operations and live-firing.80 The Philippines and the United States conducted another series of joint military exercises from October 17-28. These exercises, involving 3,000 marines, were conducted in a number of locations bordering the South China Sea including near Scarborough Shoal (opposite Zambales province) and west of Palawan province. The latter included an amphibious raid to secure a beachhead. 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 its treaty ally, the United States. In September, during President Aquinos visit to Tokyo, he and Prime Minister Noda agreed to strengthen maritime security ties by holding frequent high-level defence discussions and by stepping up cooperation between their Coast Guards and defence-related authorities. Prime Minister Noda agreed to increase the involvement of Japans Coast Guard in training their Filipino counterparts.82

Philippines and Vietnam. During 2011, the Philippines sought to

shore up its defence relations with Vietnam on the basis of a Defence Cooperation Agreement signed in October 2010. In September, General Oban, 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 sea patrols and search and rescue.83 These matters were the subject of discussion at the 6th ministerial session of the Vietnam-Philippines Cooperation Committee that met in Hanoi on October 7.84 The two foreign ministers agreed to step up negotiations on an agreement of information sharing, increased liaison between their navies, and setting up a hotline between the Vietnam Maritime Police and the Philippines Coast Guard. The ministers also took note of progress made by the seventh meeting of the joint working group on sea and ocean issues and the convocation of
80 81

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

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 near South 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, The Wall Street Journal, September 28, 2011.
83 84

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

The sixth session of the Viet Nam-Philippines Bilateral Cooperation Committee in Hanoi n Oct. 7, Vietnam News Agency, October 7, 2011.

29

the inaugural meeting of the joint committee on sea and ocean at deputy foreign 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 the Philippines Coast Guard and the Vietnam Maritime Police to strengthen the rules of maritime law enforcement in each others waters.85 The agreement also included provision for a hotline. A Memorandum of Understanding was signed between the two navies to enhance mutual cooperation 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 full implementation of the DOC in disputed areas. President Sang voiced his support for the Philippines ZPOFF/C initiative.86 President Aquino also called for Vietnamese investment in oil and gas and President Sang indicated his willingness to consider the matter.87

5. Security Trends Impacting on the Resolution of Territorial Disputes

In order for the DOC Guidelines - and the China-Vietnam Agreement on Basic Principles Regarding Sea Disputes - to be implemented each signatory must demonstrate good faith and the political will to adhere to the letter and spirit of these agreements. Progress in confidence building measures and self-restraint under the DOC, it is hoped, will promote the norms 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 if not undermine current diplomatic efforts to turn the South China Sea into a Zone of Peace, Freedom, Friendship and Cooperation if they are not managed properly. These trends are: 1. Increased efforts to explore and produce oil and gas reserves in contested areas of the South China Sea by all claimant states will exacerbate tensions. This was most recently indicated by Chinas recent protests over Vietnams award of oil exploration blocks to Indias ONGCVL. Further, Chinas construction of a mega oil exploration rig and its placement in the South China Sea with possible armed escorts has already 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 News Service, October 27, 2011.
86

Agence France-Presse, Vietnam backs Philippine sea peace zone plan, October 27 2011.
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 more frequent incidents involving fishing craft and oil exploration vessels operating in waters claimed by Vietnam and the Philippines. 3. Military force modernization has and will continue to result in the introduction of increased numbers of warships equipped with new technologies and weapons systems. The proliferation of submarine procurements is potentially destabilizing. In sum, regional sea lanes are becoming more crowded, contested and vulnerable to armed strife.88 Chinas rapid military modernization, coupled with assertive behaviour in the South China Sea, has already led several Southeast Asian states to undertake force modernization programs of their own aimed at developing 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 fund of Pesos 331 billion. The Philippines Congress failed to follow through and the AFP was starved of funds. The Aquino Administration addressed this neglect by allocating P11 billion in 2011 to support the militarys upgrade program. Of this figure P8 billion will come from the proceeds of the Malampaya natural gas project and the remaining P3 billion will come from the AFPs current modernisation funds.89 Starting in 2012, the government will implement a five-year modernization program totalling P40 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 be allocated to top up the defence budget.90 These funds were earmarked for the purchase a naval patrol vessel, six helicopters and other military equipment in order to secure the Malampaya Natural Gas and Power Project located in disputed waters off the coast of Palawan. The former US Coast Guard Weather Endurance Cutter, rechristened Gregario del Pilar, will operate from Palawan in Western Command with the mission of protecting the Philippines EEZ. The ship will be fitted with more modern radar systems and consideration is being given to equip it with anti-ship missiles. At present Philippines officials have floated a wish list of new equipment including: coastal radar, long-range patrol aircraft, strategic sea lift vessels, off-shore patrol boats, naval helicopters, air defence radar, six jet
88

Rory Medcalf and Raoul Heinrichs, Crisis and Confidence: Major Powers and Maritime Security 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 robust program of modernizing its armed forces. In 2011 it took delivery of four Su-30MK2 multi-role jet fighters, two Gephard guided missile frigates, its second Bastion land-based anti-ship ballistic missile system and two Svetlyak class Patrol Boats.92 In October, during President Sangs visit to India, the local media reported that India was prepared to sell Vietnam its BrahMos supersonic cruise missile.93 That same month, while on a tour of the Netherlands, Prime Minister Nguyen Tan Dung expressed interest in purchasing two to four Sigma-class corvettes.94 Vietnam currently had on order sixteen more Su-30MK2 jet fighters and will take delivery of six conventional Kilo-class submarines in 2014.95 In addition, in October Vietnam officially launched its first indigenously built gunship.96 Vietnams purchase of Kilo-class submarines is part of a regional trend in naval modernisation. China has the largest submarine fleet (more than sixty) and most extensive plans to expand its numbers including the Type 095 nuclear attack submarine (SSN) and Type 094 (JIN-class) nuclearpowered ballistic missile submarine (SSBN). China is expected to base both attack and ballistic missile submarines at Yulin Naval Base on Hainan Island. Indonesia, the first country in Southeast Asia to acquire submarines, is now considering replacing them with newer South Korean models. Singapore has upgraded its fleet to include two Archer-class submarines, while Malaysia has acquired two Scorpene-class submarines. Both the Singaporean and Malaysian submarines are equipped with Air Independent Propulsion systems. Brunei has taken delivery of high-speed Patrol 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, Hai quan Viet Nam nhan tau chien Nga, August 24, 2011; Russia delivers second coastal missile system to Vietnam, Interfax-AVN military news agency, October 11, 2011; and BBC, 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 and Robert Johnson, India is Preparing To Sell BahMos Supersonic Cruise Missiles to Vietnam, Business Insider, September 20, 2011.
94 95 96

BBC, VN dam phan mua 4 tau chien cua Ha Lan, October 18, 2011. Russia to supply Vietnam six submarines in 2014, Thanh Nien News, July 3, 2011. 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 many Southeast Asian states as contributing positively to regional stability. However, US re-engagement will provoke rivalry if not hostility in its relations with China. China is likely to view new US basing arrangement in Australia to secure Indo-Pacific SLOCs and the placement of US littoral combat ships in Singapore as an attempt to contain Chinese influence and power in the region 5. Japan and India are now playing increased roles in regional security in response to Chinese assertiveness. As with the United States, the enhanced involvement by Japan and India will be welcomed by many regional states but not by China. This is particularly the case if trilateral cooperation between the US, Japan and India gains traction or morphs into quadrilateral cooperation involving Australia. 6. The development of new regional security architecture the ASEAN Defence Ministers Plus process and the enlargement of the East Asia Summit holds the promise of moderating major power involvement in Southeast Asia. However, the capacity of regional multilateral institutions to deliver the security goods is dependent not only on the ability of ASEAN to maintain its unity and cohesion as the central driving force but also on the willingness of the major powers to play constructive roles. Any of the five trends discussed above could result in heightened security tensions in the region in which realpolitik can be expected to trump legal regimes. In such circumstances the DOC Guidelines would be insufficient on their own to manage let along lessen security tensions arising from disputes over the South China Sea.