Toward a freeze of five lighthouses in the South China Sea at ASEAN Regional Forum 2014 | Tuong Nguyen, SEAS Issues

09 August 2014

SEAS Issues/PARIS – According to the state-run China News Service, China’s Navigation Guarantee Center plans to build five lighthouses in the Paracels (including North Reef, Antelope Reef, Drummond Island, South Sand and Pyramid Rock). The plan has been announced as a response to the Triple Action Plan (TAP) of the Philippines and the joint stance of the Foreign ministers of Malaysia, the Philippines and Vietnam to freeze provocative and destabilizing acts in the South China Sea.

ASEAN Foreign Secretary in January 2014 at Bagan, Myanmar. Photo (C) AFP

The Chinese officials and experts said that “the lighthouse is a symbol of the country’s sovereignty in the islands”, and placing lighthouses will help boost the maritime navigation in the region because these reefs, islets are not on the detailed maps for civilian ships.

Yesterday, August 07, 2014, Vietnam’s Ministry of Foreign Affairs strongly criticised that the move is illegal under the routine formula: “Vietnam has  indisputable sovereignty over Hoang Sa and Truong Sa (Spratly) archipelagos. Therefore, all Chinese activities in the two groups of islands are null and void”.

Today, Chinese Foreign Minister Wang Yi rejects Philippines’s TAP and Chinese Foreign Ministry spokeswoman Hua Chunying defends China’s lighthouse plan: “China has long been building and maintaining lighthouses on its “inherent” islands and provides necessary measures relevant to international rules for navigational safety of vessels passing by.”

The US also call for a “freeze” on provocative acts, proposing that “when there are disagreements, the claimant states would decide among themselves what type of specific activities are considered provocative or out-of-bounds, offer to put a voluntary freeze on any such actions if other claimants would commit to do so likewise”.

This recent move in these small islets and reefs in Paracels occupied by force since 1974 by China and continuously claimed by Vietnam, shows Beijing’s ambition to assert its territorial claims in the disputed area. While the US hope that the Code of Conducts (COC) would be a particular topic of conversation at the upcoming ASEAN Regional Forum (ARF) on August 10 in Naypyidaw, the Philippines focus on their TAP to “freeze” China’s lighthouse plan.

Tuong Nguyen is a contributor at SEAS Issues and a free commentator on the South China Sea affairs on Global Post and Eurasia Review. The author would like to thank Thuy Linh Le and BDTP Group for the proof reading.

The views expressed are the author’s own.

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In the heart of the Vietnam China standoff at sea – Eunice Yoon | CNBC

14 July 2014


Eunice Yoon | CNBC - It’s not often you get a chance to see one of the most dangerous flashpoints in Asia.

We went on a boat to the South China Sea to check out the latest standoff between Vietnam and China.

Hanoi believes that the waters near the Paracel Islands are part of Vietnam’s own economic zone. The Chinese, who control the Paracels, claim the waters. To make their point, in May, Chinese state oil companyCNOOC put an oil rig in the disputed waters, sparking a tense standoff.

The Vietnamese government, which is on a PR offensive against Beijing, organized the trip for a handful of other journalists. We were told it would take about one week and require that we transfer boats.

We cast off from the port city of Da Nang with the Vietnamese coast guard,traveled overnight, and by morning got a glimpse of the conflict. When we got up to the deck, we saw a Chinese warship.

As we drew nearer to the rig we switched boats. Our hosts said a bigger boat would better outrun the numerous Chinese vessels they expected we would face.

After jumping into a dingy, we sped across the open ocean to CSB-8003 – a 1,600 ton vessel – ordered by the Vietnamese authorities to patrol the area near the rig.

There, I met the crew of CSB-8003 led by Captain Hung Nguyen Van.

Every day, Captain Hung and his some 30 crewmen attempt to get their vessel close to the rig – and remind the Chinese that Vietnam still claims these waters. I was told that day the Chinese ships outmanned Vietnam’s 110 to 5 though the odds didn’t seem to deter Captain Hung.

Getty Images

“The rig is clearly inside Vietnam’s waters, Vietnam’s exclusive economic zone, and Vietnam’s continental shelf,” he said.

We headed towards the rig.

The HD-981 oil drilling platform is one football field long, 40 stories high and is said to be worth $1 billion according to CNOOC.

The lookout warned us that eight Chinese ships were headed towards CSB-8003.

We were eight nautical miles – 15 kilometers – from the rig when a Chinese coast guard vessel blocked our path. Another charged towards us.

The Vietnamese coast guard vessel blasted its recorded broadcast in English, Chinese and Vietnamese, warning the Chinese to cease drilling activities and leave the disputed waters. The broadcast had the opposite effect, making the Vietnamese a target.

On the horizon, Chinese reinforcements moved in. We soon found ourselves surrounded and were forced to fall back.

Close call

The next day, we watched a ceremony where the crew salutes Vietnam in front of local reporters who will broadcast the event across the country. Vietnam is facing its worst confrontation with China since the two countries went to war in 1979. Their government wants its people to know that Vietnam is prepared to stand up to China.

Many countries with coastlines along the South China Sea fear that as China gets wealthier and more powerful, the fight will become more unequal. They worry China wants to dominate the sea, its rich fishing, shipping lanes and potential energy resources. So they are all willing players in the endless cat and mouse game at sea.

Minutes later, duty calls and our vessel headed back to the rig.

A Chinese coast guard boat came hurtling towards us. The Vietnamese counted that it was one of nine Chinese ships suddenly on our tail. It was agile and moving fast – ready to collide at any moment. It got about 100 meters behind us before drifting back the further we sped away.

The smaller fishing surveillance ships are particularly vulnerable to ramming and water cannons, I was told.

One of the crew members, Colonel Tran Van Hau, told me that in early June, the Chinese attacked a ship he was on.

“At first, there was only one Chinese ship chasing after us, then there were two more ships on both sides of our boat. One Chinese ship accelerated with very high speed and hit the right side of the back of our boat directly. Then it sped up again and kept ramming our boat leaving four holes,” he explained.

But, to the Chinese, there is no question who the aggressor is at sea.


The view from China

Only a short flight from Vietnam, I find people in China have a completely different view of the standoff.

On Hainan Island, Chinese fishing communities thrive. The southern island is a launch pad for seafarers and naval forces heading into the South China Sea.

Veteran maritime scholar Dr. Wu Shicun of the National Institute for South China Sea Studies took me into the archives to show me numerous maps including a collection with U-shaped lines – often referred to as a “nine-dash line” – which Beijing believes outlines China’s territory in the South China Sea.

Dr. Wu said this is why China feels it has the right to place its oil rig close to the Paracels Islands and why they’re so angry Vietnam’s vessels have rammed their ships, they claim, more than one thousand times.

“What China is doing is to react to the ramming activities conducted by the Vietnamese,” he said. “What China is doing is to protect our oil rig.”

Currently the Paracels are in Chinese hands. China gained full control after defeating what was then South Vietnam in a battle in 1974. However, Vietnam, now unified, still claims the islands. And both countries have competing evidence to support their arguments.

Wu said Beijing believes the current standoff is Hanoi’s attempt at a land grab – by seeking sympathy from an international community adjusting to a rising China.

“The fact is that China now is becoming an influential power,” he said. “So China has [its] own interest to safeguard.”

Beijing sounds in

Over in Beijing, one of the government’s top maritime authorities said China feels it’s the victim. In a rare interview, a senior China diplomat on maritime affairs, Yi Xianliang, told us, China has been taken aback by Vietnam.

Beijing blames the U.S. for stirring up trouble at sea with its pivot to Asia – by emboldening neighbors like the Philippines and Vietnam to stand up to China.

Yi says Washington isn’t playing by the rules of an honest broker.

“The U.S. would like to be coach for some countries. [On] the other side, the U.S. would like to be a referee or a judge and sometimes the U.S. [is] like a sportsman or a player. So this gives us some confusion,” Yi said.

The U.S. has called on China to remove the rig and for all countries to withdraw their drops and resolve the tensions diplomatically.

Yi insists China will keep the rig where it is but hopes to negotiate a peaceful settlement.

“Of course, we will not push our Vietnam friends in the corner because this is not China’s style,” Yi said.

(Original version is available at CNBC)

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European scholars reject China’s nine-dash line in East Sea – VOV

08 June 2014

(VOV) - About thirty European scholars attending a recent workshop in Norway refuted China’s groundless claim of the ‘nine-dash line’ or ‘U-shaped line’ in the East Sea, saying it cannot be used for sovereign negotiations.  

Meeting at the Norwegian Institute of International Affairs (NUPI) on June 5, delegates examined challenges to maritime security in East Asia, especially mounting tensions in the East and East China Seas that might cause conflicts in the region.

They also underlined the need to build confidence and strengthen maritime security cooperation in the Asia-Pacific region.

A representative of the Vietnamese Embassy updated the delegates on major developments in the East Sea and Vietnam’s initial steps towards settling the territorial dispute after China illegally stationed its drilling rig Haiyang Shiyou-981 deep inside Vietnam’s exclusive economic zone, and dispatched vessels, including warships, to intimidate and attack Vietnamese law enforcement boats.

The scholars expressed their deep concern about China’s unilateral action against international law in the East Sea, which they said is threatening security and safety of international navigation.

Professor Geoffrey Till from Defence Studies Department at King’s College London said China failed to respect and fully observe the 2002 ASEAN-China Declaration on the Conduct of Parties in the East Sea (DOC), that could lead to potential conflicts.

The delegates discussed China’s provocative actions in the East Sea, as well as their impact on security and stability in East Asia which has been the centrepiece of the world public for more than a month.

Professor Stein Tonnesson from the Peace Research Institute Oslo (PRIO) and other delegates shared the view that China should respect international law.

They called on China and other parties concerned to develop an effective mechanism for controlling potential conflicts in the East Sea and to sit at the negotiating table to handle disputes peacefully.

Support for Vietnam’s legal action

At a recent interview granted to Vietnam Television, European scholars supported Vietnam’s use of legal actions against China in accordance with international law.

Professor Bernard Insel from University of Brussels noted that the position where China is placing its oil rig is clearly inside Vietnam’s exclusive economic zone.

According to the professor, the issue is more complicated when China claims sovereignty in the rig area of Vietnam’s Hoang Sa (Paracel) archipelago that China used force to occupy illegally in 1974.

Professor Eric David from the Free University of Brussels stated that China’s actions are provocative, because it is aware that the waters where the oil rig is standing are part of Vietnamese territory.

Vietnam has the right to say that the Chinese move threatens its sovereignty, as well as global peace and security.

Besides Vietnam, he said the Philippines is also engaged in a similar territorial dispute with China, and the country has decided to bring China to the international arbitration court in the Hague.

Lawyer Eric Van Hooydong, an international legal expert, said if bilateral or multilateral negotiations collapse, Vietnam could sue China in the International Court of Justice or the International Tribunal for the Law of the Sea in Hamburg, Germany.

Vietnam should also seek another solution through arbitration mechanism, he suggested.


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File:Paracel Islands-CIA WFB Map-2.JPG

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Vietnamese scholars planning to send a letter to the UN on 40th year of Paracels battle* – by Tinh Le | SEASF, BDTP

11 January 2014

by Tinh Le - SEASFBDTP - The 19th of January this year marks the fortieth anniversary of the Chinese military intervention on the Paracel archipelago. Since 40 years, China occupied the whole archipelago.

However, following international law, Paracel archipelago is always under the sovereignty of Viet Nam. The Charter of the United Nations prohibits the acquisition of territory by force.

Viet Nam must always remind the world of this obvious breach of international law of China, always affirms its sovereignty on the archipelago, and urges Chinato accept the submission of the Paracel archipelago dispute to the arbitration of the International Court of Justice, the most appropriate organization to resolve territorial disputes between States.


File:Paracel Islands-CIA WFB Map-2.JPG

Position of the Battle of the Paracel Islands (C) CIA

That is the content of the letter we send to the United Nations, with the strong belief that a world of peace and justice exists only when each country respects international law.

The letter is written by two civil society activists striving for the justice for Viet Namand other small countries in the disputes on the South China Sea: Southeast-Asia Sea Research Foundation and the BDTP Group.

The letter is reviewed by world’s leading experts on international law, by senior civil activists, with all the seriousness and the highest caution.

Because we would like to bring the voices of Vietnamese and people loving justice around the world to the highest and most competent legal authorities of the world:

  • United Nations General Secretary
  • United Nations Rule of Law Unit
  • United Nations First Committee (Disarmament and International Security)
  • International Court of Justice

Let’s remind the world the flagrant violation of international law whenChinainvaded the Paracel archipelago in 1974. Let’s urgeChinato submit the dispute to the International Court of Justice.

Please join us in signing this letter: http://goo.gl/qagq5R

One voice may be small, but a million will change the world.


(*) Tinh Le is member of Southeast-Asia Sea Research Foundation and BDTP Group.  The orginal title submitted by Tinh Le: Press Release: “Letter sent to the United Nations on the 40th anniversary of Chinese military intervention on the Paracel archipelag”


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China imposes fishing curbs: New regulations imposed Jan. 1 limit all foreign vessels from fishing in a zone covering two-thirds of the South China Sea.

The Return of China’s Small-Stick Diplomacy in South China Sea – by James R. Holmes | The Diplomat

09 January 2014

by James R. Holmes | The Diplomat. With a new directive China has appointed itself the sheriff over most of the South China Sea. 

Associated Press reporter Christopher Bodeen chooses his words well in a story on China’s latest bid to rule offshore waters. Beijing, he writes, is augmenting its “police powers” in the South China Sea. That’s legalese for enforcing domestic law within certain lines inscribed on the map, or in this case nautical chart.

China imposes fishing curbs: New regulations imposed Jan. 1 limit all foreign vessels from fishing in a zone covering two-thirds of the South China Sea.

China imposes fishing curbs: New regulations imposed Jan. 1 limit all foreign vessels from fishing in a zone covering two-thirds of the South China Sea. Source: The Washington Free Beacon

The Hainan provincial legislature, that is, issued a directive last November requiring foreign fishermen to obtain permission before plying their trade within some two-thirds of the sea. Bill Gertz of the Washington Free Beacon supplies a map depicting the affected zone. It’s worth pointing out that the zone doesn’t span the entirewaterspace within the nine-dashed line, where Beijing asserts “indisputable sovereignty.”

A few quick thoughts as this story develops. One, regional and extraregional observers shouldn’t be too shocked at this turn of events. China’s claims to the South China Sea reach back decades. The map bearing the nine-dashed line, for instance, predates the founding of the People’s Republic of China. It may go back a century. Nor are these idle fancies. Chinese forces pummeled a South Vietnamese flotilla in the Paracels in 1974. Sporadic encounters with neighboring maritime forces — sometime violent, more often not — have continued to this day. (See Shoal, Scarborough.) Only the pace has quickened.

Henry Kissinger notes that custodians and beneficiaries of the status quo find it hard to believe that revolutionaries really want what they say they want. Memo to Manila, Hanoi & Co.: Beijing really wants what it says it wants.

Two, Bodeen’s police-powers terminology is apt. Lawyers define the police power as a twofold thing. It means enforcing order on national territory, in the usual sense of the word police. And it means helping provide for the health, welfare, and morals of the people. The new rules fall into the former category. China is trying to enforce its laws in waters and islands over which it asserts sovereignty, as though the question of sovereignty is a done deal. And it is using non-military assets, not the PLA, to punctuate its message that there are no legitimate challenges to Chinese jurisdiction.

This is what I’ve been calling “small-stick diplomacy” for the past couple of years. China’s small stick — the China Coast Guard and other law-enforcement instruments — outmatches Southeast Asian militaries by most measures. So why not police contested sea areas with inoffensive-seeming vessels while holding the big stick, the PLA, in reserve should things go wrong? If no one pushes back effectively, you create a new normal over time.

Three, in all likelihood Hainan lawmakers’ diktat presages no challenge to freedom of navigation, the stated U.S. interest in the region. Chinese spokesmen take pains to disavow any such challenge. But for them, navigation means navigation and nothing more. Barring foreign fishing vessels from select areas means compelling their home governments to accept Chinese domestic law in waters under dispute. And that’s the goal, isn’t it? In effect Beijing wants foreign shipping, private and publicly owned, to obey the same rules the law of the sea ordains for the 12-nautical-mile territorial sea. That’s the offshore belt where the coastal state’s laws and regulations apply with the same force they do ashore. This adds up to selective access denial. China, that is, will make the rules governing access to seas it deems its own — and others will comply.

But four, the South China Sea is a huge waterspace for any force to police. Bodeen estimates the area covered by the new rules at 1.35 million square miles. That’s five times the land area of Texas. And everything’s big in Texas, as denizens of that state will tell you (over and over again). Readers of these pixels are familiar with J. C. Wylie’s axiom that the man on the scene with a gun — Wylie’s metaphor for armed assets of various types — is the true guarantor of control over a given territory. Does China boast enough seagoing policemen to monitor what’s happening throughout two-thirds of the South China Sea, and shoo away or apprehend those who defy Chinese law? Color me skeptical.

Which means enforcement efforts may be scattershot, PLA assets may have to pick up the slack for law-enforcement services, or both. Deploying military assets to police supposedly sovereign islands and waters would crimp the narrative that China exercises indisputable sovereignty there. So would widespread disobedience.

It’s hard to envision Southeast Asian governments — heck, any government with a stake in the maritime order — accepting what Beijing is pushing. What if China passed a law and no one obeyed? We may see.

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Philippines South China Sea legal case against China gathers pace – by Greg Torode | Reuters

28 September 2013

by Greg Torode | Reuters - The Philippines’ legal challenge againstChina‘s claims in the South China Sea is gathering pace, emerging as a “proxy battle” over Beijing’s territorial reach.

Manila has assembled a crack international legal team to fight its unprecedented arbitration case under the United Nations’ Convention on the Law of the Sea – ignoring growing pressure from Beijing to scrap the action.

China’s claims and EEZ under UNCLOS. Source: China Daily Mail

Any result will be unenforceable, legal experts say, but will carry considerable moral and political weight.

The Philippines has invested a “huge amount of political capital in this legal gambit and it wants to ensure success regardless of the cost,” said security scholar Ian Storey of Singapore’s Institute of South East Asian Studies.

“If the Philippine team submits a less than convincing case…this would be very embarrassing for Manila and put it right back to square one in its dispute with China.

“Beijing would also be emboldened to pursue its claims even more assertively than it has been doing over the past few years.”

Beyond the legal questions, the case carries political and diplomatic risks and is being closely watched by Japan and Vietnam, locked in their own disputes with China over sea territory, officials from both countries say.

The United States, which is deepening military ties with the Philippines, a longstanding treaty ally, is also watching.

The legal battle mirrors tensions at sea, where China and the Philippines eye each other over rival occupations of the Scarborough and Second Thomas shoals.

Chinese vessels occupied Scarborough after a tense two-month standoff between rival vessels last year – a move some regional analysts have described as an effective annexation by Beijing.

The Philippines accused China of further encroachment when a naval frigate and two other ships steamed within five nautical miles of a dilapidated transport ship that Manila ran aground on Second Thomas Shoal in 1999 to mark its territory.

One Asian envoy from a non-claimant country said: “We are watching and worrying about an accident or miscalculation sparking an armed confrontation. So in some ways this growing legal fight looks like the proxy battle, you could say.”

Overlapping claims in the South China Sea – traversed by half the world’s shipping tonnage – are one of the region’s biggest flashpoints amid China’s military build-up and the U.S. strategic “pivot” back to Asia.

The claims of the Philippines, Vietnam, Malaysia and Brunei are bisected by China’s “nine-dash line” – the historic claim that reaches deep into the maritime heart of Southeast Asia.

European states, Russia, India and South Korea are also monitoring events, given the sea’s shipping lanes and potential oil and gas resources, diplomats and military officials say.


Frustrated by slow progress by the Association of South East Asian Nations in easing tensions and fearing its sovereignty was threatened, Philippines officials said they had no alternative.

Unable to contest actual sovereignty in international courts without China’s consent, Manila instead launched its arbitration in January – despite formal objections from Beijing.

Philippines Foreign Ministry spokesman Raul Hernandez told Reuters this week that Manila remained positive that the action would clarify the claims and entitlements of claimants to “benefit the region and the international community as a whole”.

Manila’s team is preparing arguments to show that the nine-dash line claim is invalid under of the Law of the Sea. They are also seeking clarifications of the territorial limits, under the law, of rocks and shoals such as Scarborough – all part of a bid to confirm the Philippines’ rights within its 200-nautical-mile exclusive economic zone.

Philippines’ lead counsel Paul Reichler, a Washington-based lawyer with Foley Hoag, told Reuters that his five-strong team included British law professors Philippe Sands and Alan Boyle as well as Bernard Oxman from the University of Miami’s law school.

Independent legal experts have described the team, managed by the Philippines’ Solicitor General Francis Jardeleza, as “formidable”, with deep experience of the arcane world of the Law of the Sea, a landmark document approved in the early 1980s.


China has refused to participate, saying the case has “no legal grounds”, and is widely expected to reject any outcome its does not agree with.

Foreign Ministry spokesman Hong Lei said China views the move as a breach of a 2002 declaration between China and ASEAN.

“The Philippines has illegally occupied the reefs and islands in the South China Sea that belong to China…China has consistently advocated for resolution to the dispute at hand through bilateral dialogue,” he said.

Behind the scenes, Chinese diplomats are telling the Philippines’ ASEAN peers that the case has no merit, according to diplomats from the 10-nation grouping.

Philippines Foreign Ministry officials said Beijing demanded that Manila scrap the case as a condition for a long-planned trip by President Benigno Aquino to a regional trade show in southern China this month. Chinese officials said no invitation was ever offered. The trip never happened.

The Philippines’ effort, however, was recently given a boost by a decision from an arbitration panel created to hear the case under the U.N.’s International Tribunal of the Law of the Sea.

The five international judges said the Philippines had until March 30, 2014 to produce written arguments about the case’s admissibility and merits. China is a member of the tribunal but has forgone its right to select one of the judges to the panel.

Maritime scholar Clive Schofield said the request for the Philippines to provide arguments was potentially favourable. It also meant the case might take less than the three to four years anticipated by Manila when it was launched in January.

“It suggests that the Philippines will be able to present its arguments on the merits of the case as soon as the jurisdictional hurdle is overcome…If I was sitting the Philippines’ chair right now I would be happier than sitting in China’s,” said Schofield, a professor at the University of Wollongong inAustralia.

Schofield described the panel as “irreproachable. These guys are at the very top of their game and I expect it would be very unlikely they would be swayed by political issues.”

He said that it appeared the panel would not be hostile to China even though it was not contesting the arbitration.

Ultimately, the Philippines was anticipating a “good return” on its investment, said Storey, the Singapore-based expert. A favourable ruling would give Manila confidence in developing oil and gas reserves in disputed areas such as the Reed Bank.

“Foreign energy companies would also feel more comfortable about investing in areas…that lie within the Philippines’ exclusive economic zone,” he said.

(Additional reporting by Rosemarie Francisco in Manila and Megha Rajagopalan in Beijing. Editing by Ron Popeski)

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France supports Vietnam’s policy of settling disputes in the South China Sea – by Editorial Board | Thanh Nien News

27 September 2013

by Editorial Board | Thanh Nien News - Vietnam and France upgraded their ties to a strategic partnership during Prime Minister Nguyen Tan Dung’s three-day visit to Paris which concluded Thursday,Vietnam News Agency reported.

Prime Minister Nguyen Tan Dung (L) with his French counterpart Jean-Marc Ayrault in Paris September 25, 2013 (Photo courtesy of Vietnam News Agency)

Dung and his French counterpart Jean-Marc Ayrault Wednesday signed a joint statement on the strategic partnership, which seeks to enhance cooperation in politics and diplomacy, defense and security, economy, trade and investment, culture, education and training, scientific research, and law and justice.

They also witnessed the signing of a series of deals in banking, healthcare, oil and gas, aviation, and transport.

During talks before the signing, Dung reiterated Vietnam’s policy of attaching importance to its relations with France, adding the strategic partnership is not a destination but a new starting point.

He sought favorable conditions for Vietnamese goods to enter the French market and asked France prioritize financial assistance for urban infrastructure, clean energy, vocational training, agriculture, biodiversity, and environmental protection in Vietnam.  

Ayrault said France would help Vietnam in boosting ties with the EU, especially economic and trade ties.

On the East Sea, internationally known as the South China Sea, the French side supported Vietnam’s policy of settling disputes through peaceful means on the basis of international law, including the 1982 United Nations Convention on the Law of the Sea, and strictly implementing the Declaration on the Conduct of Parties in the East Sea, and quickly creating a Code of Conduct in the East Sea.

Dung also met President Francois Hollande and the president of the Senate, Jean-Pierre Bel.

He received French Communist Party National Secretary Pierre Laurent and met with representatives of France’s leading companies.


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FILE - Adm. Samuel Locklear III, the U.S. Pacific Command commander, speaks to reporters at his headquarters in Camp H.M. Smith, Hawaii, July 25, 2012.

Cohen Calls for Arbitration of South China Sea Dispute – Jessica Seah | The Asian Lawyer

09 June 2013

by Jessica Seah | The Asian Lawyer - In a speech in Hong Kong last Thursday, pioneering China legal scholar Jerome Cohen said China was looking like a “bully” for rejecting international arbitration of its territorial dispute with the Philippines, according to aSouth China Morning Post report.

FILE - Adm. Samuel Locklear III, the U.S. Pacific Command commander, speaks to reporters at his headquarters in Camp H.M. Smith, Hawaii, July 25, 2012.
FILE – Adm. Samuel Locklear III, the U.S. Pacific Command commander, speaks to reporters at his headquarters in Camp H.M. Smith, Hawaii, July 25, 2012. (C) VOA)

The two countries both claim the Spratly Islands in the South China Sea, which are believed to hold rich oil and gas reserves. The Philippines has sought arbitration before a United Nations tribunal but China has insisted on a bilateral resolution.

“The leadership obviously took the view that damage is likely to be less, especially if it can coerce the Philippines into further compromise while arbitration is going on,” said Cohen, who is a New York University School of Law professor as well as of counsel at Paul, Weiss, Rifkind & Garrison, at a speech at Hong Kong University.

“This makes China look bad to the world community … Now it looks like a bully that rejects its legal obligation to settle a dispute under [the United Nations Convention on the Law of the Sea],” said Cohen. “How is it for any nation to say we’re so correct that we don’t have to go to the impartial tribunal we previously agreed on to hear our views validated?”

In April, the Chinese foreign ministry issued a Chinese language statement saying the Philippines “is trying to use this [arbitration claim] to negate China’s territorial sovereignty and attach a veneer of ‘legality’ to its illegal occupation of Chinese islands and reefs.” The statement said China would never agree to international arbitration.
“When you’re seen to be a violator of international law, you don’t win many votes from the world community,” Cohen said, and added that all “great powers” including the U.S .and China need to be reminded that they are “subject to international limits they sometimes don’t like.”

As a Harvard Law School professor in the 1960s and 1970s, Cohen advised the Nixon White House on its eventual diplomatic opening with China. He subsequently led the first foreign law office in China for Coudert Brothers and remains an active teacher and commentator on Chinese legal affairs.
Email: jseah@alm.com.
(Original version is available at The Asian Lawyer)

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Steady as she goes...

Who’s Bluffing Whom in the South China Sea? – by Khanh Vu Duc | Asia Sentinel

08 March 2013

The latitude for action on the part of all the parties is limited

The territorial and maritime disputes in the South China Sea continue to plague and jeopardize the peace and security of the region. These disputes are many, including the Senkaku/Diaoyu Islands, the Paracels, the Scarborough Shoal, and the Spratly Islands; and although these disputes have been long running since the end of the Second World War, the region’s history and its nations span centuries. There is and has been no shortage of conflict in the South China Sea.

Steady as she goes...

Steady as she goes…

Tensions have yet to dissipate from last year’s Scarborough Shoal standoffbetween China and the Philippines. Where Asean remains divided and incapable of bringing these disputes to an end, and a multilateral resolution is merely hypothetical, it appears increasingly likely that conflict, whether open war or, perhaps more probably, maritime skirmishes are on the horizon.

Yet, it may be that all of this talk of war is simply that: talk.

Opponents in Conflict
China is presently engaged in a series of disputes with several countries spanning the Western Pacific, among which include Japan, the Philippines, and Vietnam.

Japan and the Senkaku/Diaoyu Islands, however, may prove to be an unnecessary distraction for China’s aspirations in the Pacific. Japan is too close an ally of the US for Washington to ignore their request for assistance, never mind the very capable Japan Self-Defense Forces. As such, it is unlikely that the Senkaku/Diaoyu dispute will amount to more than a diplomatic fuss, something to be used to stoke the flames of nationalism in both countries.

The Philippines, similar to Japan, holds a mutual defense treaty with the US. In addition to the Spratly dispute, the Philippines are in dispute with China over the Scarborough Shoal, a collection of reefs, rocks, and small islands just off the coast of the country. Yet, unlike Japan, the Philippines do not have an equally sizeable and effective military to counter Chinese aggression, if necessary. As such, in the event of any conflict or war between the Philippines and China, Manila will be dependent on US assistance and support.

That said, it remains to be seen if the US would risk military confrontation with China, even given its treaty with the Philippines. Much will be dependent on the circumstances of the conflict and interpretation of the treaty by the White House. However, should Washington ignore the Philippine cry for help, it would jeopardize current and future US strategic partnerships, never mind the political fallout at home. The US has no desire to be lured into a conflict not of its making or choosing, but it also cannot risk violating its mutual defense treaty without harming the legitimacy of other defense agreements.

Unlike Japan and the Philippines, Vietnam does not hold a defense treaty with the US. Moreover, although Vietnam may share strategic partnerships with several nations, it is unlikely that they will go far in aiding Vietnam in the event of a conflict with China. In addition to the Spratlys dispute, Vietnam is also in dispute with China over the Paracels, seized by Chinese forces in 1974 from then-South Vietnam.

Vietnam remains isolated in the world, for its only “partner” has been China; however, should Hanoi cozy up too closely or compromise too much with Beijing, the government’s legitimacy would be called into question by its citizens, raising and/or confirming the suspicions of those who believe the government and Communist Party are puppets of China, and inflame nationalist sentiments.

In the event that China should seize one or several Vietnamese-occupied Spratly Islands, Hanoi cannot rely on foreign assistance. It cannot attack China, even if such an attack could be argued as self-defence; but it cannot also do nothing and allow the government to be seen as weak and ineffective by the Vietnamese people. The options are limited for Hanoi. To say they would be stuck between a rock and a hard place would be an understatement.

Nevertheless, it remains unlikely that any conflict between China and Japan, Philippines, or Vietnam will amount to more than saber rattling and harsh words. Even a “small” police action against the Philippines or Vietnam over the Spratly Islands, however successful for China, would have severe consequences. Any Chinese use of force would realize the fears of every state in the region. Moreover, Beijing’s hope for a peaceful rise would be immediately set back, if not ruined.

Presently, tensions are already running high; however, any clear displays of Chinese aggression would simply add fuel to the fire. Countries such as the Philippines and Vietnam would then be able to turn some of their neighbours—previously skeptical, if not cautious, about standing in opposition to China—and convince these states to protest openly. Any goodwill China possessed among some of these countries would evaporate as the Philippines and/or Vietnam make their case.

However, of all the scenarios of a conflict involving China, what can be certain is the potential for an immediate American intervention. While it is questionable that the US would directly intervene in any skirmish between nations, it is likely that Washington would use the conflict as an excuse for deploying a larger, if not more permanent, security force in Asia-Pacific. Although an increased American footprint would not be welcomed by all in the region, the US would prove to be an appropriate balance against China.

Conversely, China would find an increased American presence unacceptable and a nuisance. Of course, neither country is likely to find itself staring down the barrel of the other’s gun. China’s plans for the region would undoubtedly be under greater American scrutiny if Washington decides to allocate more assets to Asia-Pacific.

For the US, returning in force to Asia-Pacific would prove to be a costly endeavour, resources the country may or may not be able to muster. Yet, even if this is true, Washington’s calculations may determine that the security risk posed by China in the region outweighs whatever investment required by the US.

China’s dispute with Japan over the Senkaku/Diaoyu Island, however heated, will prove to be a peripheral issue with respect to China’s dispute with the several claimant states over the Spratlys. Ultimately, it is not improbable that China would seize one or several of the Spratlys under foreign control as a means to demonstrate its resolve in the disputes and the region; but to do so is to engage in unnecessary risk. The consequences stemming from such action are too great for Beijing to ignore.

Although it is unlikely that China’s neighbors would be able to mount more than a diplomatic protest, the fuss deriving from such an incident could prove more burdensome for China than it is willing to risk. The real consequence for China of any and all conflict in the region is and has always been an American intervention. As is, it would benefit Beijing to seek a peaceful, mutually agreed upon resolution, rather than brute force.

(Khanh Vu Duc is a Vietnamese-Canadian lawyer who researches on Vietnamese politics, international relations and international law. He is a frequent contributor to Asia Sentinel and BBC Vietnamese Service.)

(Original version is available at Asia Sentinel)

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Unhappy Neighbors – by Ngo Vinh Long | The Cairo Review

10 February 2013

by Ngo Vinh Long | The Cairo Review - Speaking to diplomats, businessmen and journalists at the British Foreign Office in November, President Susilo Bambang Yudhoyono of Indonesia emphasized the need for “norms and principles” in resolving disputes in the South China Sea. Why did PresidentYudhoyono, who was spending a week in London at the invitation of Queen Elizabeth II as the first leader to visit Britain during the year of her Diamond Jubilee, feel that he had to bring up the South China Sea disputes at such a time?


Chinese marines in the South China Sea, near Nansha Islands, April 10, 2010. Zha Chunming/ Xinhua Press/Corbis

After a member of the audience asked what Indonesia, the leading nation in the Association of Southeast Asian Nations (ASEAN) could do if China did not share his views, President Yudhoyono recalled what he had said to Chinese Premier Wen Jiabao at a summit conference in Bali and again to Chinese President Hu Jintao at a meeting in Beijing: without forward movement on a Code of Conduct (CoC) for the South China Sea, the whole region could “easily become a flashpoint.” He added that the two Chinese leaders had concurred with his assessment.

President Yudhoyono added, however, that he had become quite concerned after ASEAN foreign ministers failed to reach a CoC agreement at a meeting in Cambodia in July 2012. He did not mention the role played by China in getting the Cambodian government to sabotage the pact. He only said that since then, Indonesia has done its utmost to bring about a consensus among ASEAN nations on the issue. He also did not mention the fact that at an international conference on “Peace and Stability in the South China Sea and the Asia Pacific Region” held in Jakarta in September, most of the participants expressed pessimism as long as China continued to exert military and economic power in area within the U-shape line demarcating its self-declared zone of sovereignty.

The U-Shape Line

What is the U-shape line and why is it seen as such a threat to peace and stability in the South China Sea area and the Asia Pacific Region?

On May 7, 2009, the People’s Republic of China (PRC) officially submitted—in two separate letters—to the secretary general of the United Nations a map with a nine-dotted, U-shape line with the following identical words: “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.”

This was the first time China sent the map, without any coordinates, to an intergovernmental body, principally in response to the Vietnamese-Malayan joint submission and Vietnamese individual submission to the Commission on the Limits of the Continental Shelf (CLCS) of the United Nations. Under the 1982 Convention on the Law of the Sea (UNCLOS), the littoral states of Southeast Asia are entitled to an Exclusive Economic Zone (EEZ) in waters up to 200 nautical miles from their coastlines. In order for coastal states to expand the outer limit up to 350 nautical miles, they have to obtain approval from the CLCS.

The origin of the U-shape line can be traced to a map published by the Department of the Interior of the Republic of China (ROC) in 1946. The map included a U-shape line consisting of eleven intermittent dashes enclosing most of the South China Sea, supposedly because Chinese had discovered the area during the Han Dynasty. Even though the dashes in the Gulf of Tonkin were erased from the map presented to the UN in 2009, partly because a bilateral agreement between China and Vietnam on the demarcation of the area had been reached, the U-shape in the latest map still cut deeply into the EEZs of Vietnam, the Philippines, Malaysia, and Brunei.

Vietnam, Indonesia, and the Philippines responded with their own notes to the CLCS to reject China’s claim and its map. Vietnam’s note maintained that China’s claim as represented by the U-shape line “has no legal, historical, or factual basis, therefore is null and void.” Indonesia’s note said that the map “clearly lacks international legal basis” and is tantamount to upsetting the UNCLOS. The Philippines’ note said that China’s claim to most of the South China Sea “would have no basis under international law, specifically UNCLOS.”

Under UNCLOS, the South China Sea is divided into three areas:

—The 200 nautical mile EEZs stretching out from the coastal lines of Vietnam, Chinese Hainan Island/Province, the Philippines, Malaysia, and Brunei.

—The islands, islets, rocks, and reefs in the Paracels and the Spratlys. According to Article 121 of UNCLOS: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” And islands cannot have maritime space beyond twelve nautical miles.

—The international waters area outside of the EEZs, the Paracels, and the Spratlys. Many of the islands, islets, rocks, and reefs in the Spratlys are actually situated inside the EEZs of the Philippines, Malaysia and Brunei.

In 1974, China used force to take over the entire Paracels, which at that time was under the administration of the Republic of Vietnam (South Vietnam), killing at least fifty-three Vietnamese sailors. Again, in 1988, China took possession of the Johnson Reef in the Spratlys from the Vietnamese. Chinese gunboats sank Vietnamese transport ships supporting a landing party of Vietnamese soldiers, killing sixty-four Vietnamese soldiers and injuring many others. In 1995, China also took over the Mischief Reef, which is 150 miles west of the Palawan, the Philippines’s nearest land mass, and proceeded immediately with the construction of military structures on the reef.

It is seemingly based on these and other occupations that China claims “indisputable” sovereignty over all the island groupings in the South China Sea and uses them to justify attempts to control maritime space 200 nautical miles beyond them. For example, in response to an official protest by the Philippines following China’s assertive activities in the region, especially in the Spratlys (called the Nansha Islands by China), China sent a note to the United Nations on April 14, 2011, that asserted: “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zones, and Continental Shelf.”

In June 2012, China’s State Council announced the establishment of the City of Sansha (Three Sands), a prefectural-level city to be headquartered on Woody Island in the disputed Paracels, to directly administer “the Xisha, Nansha, Zhongsha Islands and their adjacent islets and waters.” Xisha (Western Sands), Nansha (Southern Sands), and Zhongsha (Middle Sands) are Chinese names of three disputed archipelagos—otherwise known as the Paracels, the Spratlys, and the Macclesfield Banks—respectively. On July 24, 2012, Sansha officially announced that it had established a prefectural government; and the Chinese People’s Liberation Army (PLA) also said that it would soon establish a military garrison there to serve as the command headquarters for military units operating in the South China Sea area. The headquarters of China’s Southern Fleet—the most powerful of China’s three naval fleets—and China’s entire marine force with some 20,000 soldiers, are presently stationed on Hainan Island, China’s southernmost province.

Many countries in Southeast Asia—among them the Philippines and Vietnam—protested China’s provocative actions, especially the establishment of the new military garrison. In August, the U.S. State Department issued a statement saying that the move risked raising tensions and was “counter to collaborative diplomatic efforts to resolve differences.” On the same day, the Chinese foreign ministry called in a senior U.S. diplomat to protest the State Department’s remarks. Chinese Foreign Ministry
Spokesman Qin Gang also issued a statement, which repeated China’s contention that it has absolute sovereignty over the sea and islands in the South China Sea, and so has the right to set up a city to administer the region. In September, the Chinese foreign minister, Yang Jiechi, declared flatly during a four-hour appearance with U.S. Secretary of State Hillary Clinton in the Great Hall of the People on Tiananmen Square that “China has sovereignty over the islands of the South China Sea and the adjacent waters. There is plentiful historical and jurisprudential evidence for that.”

Even if China could rightfully claim sovereignty over the disputed islands in the South China Sea and exclusive zones as well as continental shelf rights around them, this would still not justify the U-shape line given that it cuts deeply into the EEZs and undisputed territories of other countries. Thus, China’s actions raise the question of whether its real intention is to turn undisputed territories into disputed ones in order to flex its muscles and force other countries to yield to its demands, and not only in the South China Sea but also in other domains.

In 2011, for example, Chinese ships twice cut the cables of oil exploration vessels well within Vietnam’s EEZ and drove off an oil exploration vessel in Philippine waters. Then in late June 2012 China’s National Offshore Oil Corporation (CNOOC) issued nine exploration leases in blocks that fall entirely within Vietnam’s EEZ. CNOOC executives and officials at China’s Ministry of Land and Resources have given estimates that there are approximately 40 billion tons of oil equivalent in the South China Sea, most of which is believed to be natural gas. According to the U.S. Energy Information Administration, one Chinese estimate puts the sea’s gas reserves at 2,000 trillion cubic feet. That would be enough to meet China’s gas needs for more than 400 years based on 2011 consumption levels. According to a May 2012 statement by Zhong Hua, CNOOC chief financial officer, the company aims to produce 500 million barrels of oil equivalent a day from the deepwater of the South China Sea by 2020—up from nothing today.

Oil is but one factor in China’s strategy of roiling the troubled waters. Since 2009, China has also enforced an annual unilateral fishing ban in the South China Sea, confiscating fishing boats from other countries—mostly from Vietnam—as well as arresting and injuring many fishermen. In April 2012, when the Philippine navy prepared to arrest Chinese fishermen who were operating illegally in the Scarborough Shoal, China Marine Surveillance (CMS) vessels arrived on the scene and blocked the entrance to the lagoon thus preventing the arrest of the Chinese illegal fishing boats. During a two-month stand-off, China dispatched nearly one hundred fishing craft to occupy the shoal. In June, the Philippines announced that an agreement had been reached with China for a mutual withdrawal of ships. Later, however, Chinese ships returned and have maintained effective control of the shoal and the waters around it ever since. In addition to the occupation of the shoal, China also applied economic sanctions on the Philippines by banning the import of bananas and cancelling tourist charter flights.

China and Vietnam

For Vietnam, pressures from China have been multi-faceted and more heavy-handed than those applied on the Philippines and other countries in the region. And because of historical, ideological, geopolitical, economic, and cultural considerations, reactions from Vietnam have also been much more circumscribed compared to those from the Philippines. Here it is useful to consider some of the key periods in the history of Chinese-Vietnamese relations since the establishment of the Chinese Communist regime in 1949.

The Vietnamese resistance to the French colonial re-conquest of Vietnam after the Second World War had consistently been interpreted by the U.S. State Department as a case of “nationalist groundswell” under the leadership of Ho Chi Minh. But after the Communist victory in China, it came to be seen by top U.S. leaders as a Communist threat that had to be destroyed. Secretary of State Dean Acheson commented: “The question of whether Ho is as much a nationalist as a Communist is irrelevant.” Consequently, Acheson argued in 1949 that “no effort should be spared” to assure the success of a pro-French Vietnamese government. On the eve of the Korean War in March 1950, Acheson observed that French military success “depends, in the end, on overcoming [the] opposition of indigenous population” and that the U.S. must help the French protect Indochina from communist encroachment. Thereafter, the United States supplied the French with some 80 percent of the total cost of its colonial re-conquest.

In late 1950, Chinese economic and military aid also began to enter Vietnam. Though much more limited in scope than U.S. support for France, Chinese aid enabled China to increasingly exert influence and dictate demands on the anti-colonial front—the Vietnamese League for Independence, or Viet Minh—and provoke factional disputes among its leadership.

French military setbacks by the Viet Minh, such as the humiliating defeat at Dien Bien Phu in 1954, led to the Geneva Conference (held from May 8 to July 21 in that year) to provide France with a face-saving means of disengagement. On her part, France did not want anything more than a graceful exit from Indochina. But, after the United States attempted to sabotage the negotiations and create an opportunity for direct intervention in Vietnam, China and the Soviet Union forced the Hanoi delegation to make repeated and significant compromises so that a peaceful settlement could be concluded quickly. These powers were uneasy over the possibility that the United States might intervene massively, with consequences that would extend beyond Indochina. The Chinese and Russian leaders were also afraid that once the United States intervened, nuclear warfare that had begun in one corner of Asia would not be confined there. China’s leaders also wished to avoid giving the U.S. any pretext for introducing forces on her southern flank, especially after as many as one million Chinese “volunteers” had lost their lives in Korea.

As a result of the significant concessions made by Hanoi, the Geneva agreements on Vietnam were reached on July 20 and 21: the bilateral armistice agreement between France and the Viet Minh was signed on July 20, and the multilateral final declaration was signed by all participants—except the United States—the following day. Secretary of States John Foster Dulles had said however, two days before the signing of the agreement by the Democratic Republic of Vietnam (DRV) and France, that the United States “will not do anything to upset any reasonable accord sought by the French.” This promise was no doubt quite instrumental in encouraging the DRV delegation to make its final concessions in reaching the accords. Both accords spelled out in detail a temporary partition of the country, at the 17th Parallel, into “two military regroupment zones” with military forces of the Viet Minh regrouped to the north of those of the French to the south of the line. National elections under international supervision were to be held in two years to reunify the country.

Undersecretary of State Walter Bedell Smith, head of the American delegation, read an official unilateral declaration from the United States saying that it would not do anything to threaten the stipulations of the agreements and that it specifically endorsed the call for elections to reunify the country. In spite of the public promise, the United States immediately went about violating the agreements and promoted the country’s division into so-called “North Vietnam” and “South Vietnam” until 1975. The Second Indochina War fought over this decision would cost more than two million Vietnamese and 58,000 American lives. In a meeting with a group of U.S. scholars in 1971, Premier Zhou Enlai, the head of the Chinese delegation at Geneva, admitted that his “mistake and inexperience” at Geneva had contributed to the Vietnam tragedy.

In the meantime, however, China was able to use the northern half of Vietnam as a buffer zone to protect its territorial integrity from possible U.S. encroachments. Furthermore, in order to secure its “lips-and-teeth” relationship with the Hanoi leadership, China pushed its Maoist model on the northern regime with disastrous consequences for the economic, social, and political structures of the region. As a result, again, many innocent Vietnamese lives were lost.

The most grievous destruction during the mid-1950s was the land reform program carried out simultaneously with the rectification program applied against so-called rightists within the Vietnamese Workers Party and the state bureaucracy. Of course, this was done in the name of building socialism and creating a solid base for resisting imperialist aggression in the south. A report by the politburo to the tenth plenary session of the central committee of the party in October 1956 stated that thousands of lives had been lost as a result of the land reform program, and that “the land reform machine, in fact, became the institution that was placed both above the party and the government.”

The politburo report said that 2,876 village party branches or cells (out of 3,777) were subjected to the rectification program. These branches represented 150,000 out of the total of 178,000 party members. Of the party members who were forced to go through rectification, 84,000 (or 47.1 percent of the total number of party members) were purged. Many village party branches were summarily disbanded, and many good party members were arrested and executed.

The report went on to say that often the best village party branches and the best local cadres were the ones who were most severely punished. Many village party branches that made the biggest contributions during the resistance war against the French were regarded as reactionary and hence their party members and party secretaries were either jailed or killed. One of the aims of the rectification program was to replace party members with those with “property-less peasant background.” As a result, the percentage of members with this background in the village party branches rose to 97 percent.

The rectification program was also applied against sixty-six district party branches and seven provincial branches with similar damaging results. Yet, the land reform and rectification programs enabled China to exert increasing control over the economic, social, and political structures in the northern half of Vietnam. Partly because of their realization of China’s influence over Vietnam and of the China-Soviet split, President Richard M. Nixon and his national security advisor, Henry Kissinger, began to play the “China card” in the early 1970s to get China to apply pressures on Vietnam in favor of American objectives.

Nixon in China

In 1972, President Nixon undertook his historic trip to China, which to the Vietnamese conveyed the implication that the Vietnam question could be settled not via representatives of the Vietnamese people, but between these two great powers. In response to this, Nhan Dan (The People’s Daily), the central organ of the Vietnam Workers’ Party, wrote: “Nixon is heading in the wrong direction. The way out is open, yet he rushes headlong into a blind alley. The time when the great powers could decide the fate of small nations is past and gone.”

Although China was not able to force Vietnam to end the war on Washington’s terms, after the signing of the Paris agreement in late January of 1973 China began cutting all military aid and most economic aid to Hanoi while the United States gave the Saigon regime more than $1 billion a year from 1973 to 1975. After the fall of Saigon and the reunification of Vietnam in 1975, the United States immediately imposed the strictest possible trade embargo under the Trading with the Enemy Act.

Partly because Hanoi refused to heed China’s advice in sparing Saigon from a military takeover as suggested by France and some other countries, China lost face and decided to cut off all aid to Vietnam. Furthermore, while China began to mass several hundred thousand troops along Vietnam’s northern border, it increased both economic and military aid significantly to the Pol Pot regime in Cambodia, which also started to build up its forces along Vietnam’s southern border provinces. According to the scholar Damodar Sardesai, “between 1975 and 1978, China supplied Cambodia with 130-mm mortars, 107-mm bazookas, automatic rifles, transport vehicles, gasoline, and various small weapons, enough to equip thirty to forty regiments totaling about 200,000 troops… An estimated 10,000 Chinese military and technical personnel were sent to Cambodia to improve its military preparedness.” Beginning in January 1977, Khmer Rouge forces attacked civilian settlements in six out of seven of Vietnam’s border provinces. Khmer Rouge troops brutally murdered about 30,000 Vietnamese civilians during attacks in 1977 and 1978, and forced tens of thousands to flee the border provinces. Several hundred thousand Cambodian refugees also fled to Vietnam during those years.

It was during these two years that officials from Vietnam and the United States met to negotiate the normalization of relations between the two countries. In meetings between Assistant Secretary of State Richard Holbrooke and Vietnamese Foreign Minister Nguyen Co Thach at the United Nations headquarters in New York in 1978, the two agreed on normalization without any preconditions. According to Zbigniew Brzezinski’s memoirs, Secretary of State Cyrus Vance sent a report on the details of the agreement to President Jimmy Carter and recommended that normalization should proceed immediately after the Congressional elections in early November. But Brzezinski succeeded in persuading Carter against it.

Fearing that the negative position of the United States would encourage Cambodia and China to stage a pincer attack on Vietnam, in November 1978 Vietnam signed a treaty of friendship and mutual assistance with the Soviet Union. On December 15, the United States announced the normalization of relations with China. On December 25, Vietnam invaded Cambodia in order to preempt a pincer attack, publicly saying, however, that it went into Cambodia to save the Cambodian people from the genocidal Pol Pot regime. In January 1979 China’s top leader, Deng Xiaoping, visiting the United States, announced that China would “teach Vietnam a lesson,” and asked President Carter for “moral support” for the forthcoming Chinese punitive war against Vietnam.

In February 1979, with the blessing of the United States, China launched its invasion of Vietnam, laying waste to six northern provinces and killing an estimated 30,000 Vietnamese (Chinese sources have claimed from 60
70,000 Vietnamese were killed.) Brzezinski called this a “proxy war” against the Soviet Union and was satisfied that it imposed “major costs on [the Vietnamese], produced a great deal of devastation, and above all, showed the limits of their reliance on the Soviets.”

For the next ten years, China and the United States exerted maximum economic and diplomatic pressures on Vietnam. China rejected all proposals by Vietnam Foreign Minister Nguyen Co Thach for a peaceful settlement to the Cambodian conflict under the auspices of the United Nations. The Tiananmen Square crisis of 1989 and Vietnam’s withdrawal of all its troops from Cambodia by September of the same year should have led to favorable international support for such a settlement.

Then came the collapse of communism in Europe. Vietnamese General Secretary Nguyen Van Linh had gone to East Germany to attend the fortieth anniversary of the Democratic Republic of Germany in early October 1989 just before the Eastern European communist regimes began to collapse one after another. Vietnamese Communist officials rushed to reestablish relations with China at all cost in order to defend socialism under the leadership of China. Linh even went so far as apologizing to Chinese leaders for all the mistakes that Vietnam had made in its the relations with China, while proposing a solution to the Cambodian situation that only involved the remaining communist countries in the region (known as the “Red Solution”).

In 1991, Nguyen Co Thach, the foreign minister who had pushed for a multilateral settlement to the Cambodian conflict, was evicted from the Vietnamese central committee and politburo. Later that year, Vietnam signed the UN-sponsored settlement for Cambodia, which represented the positions of China and the United States. In 1992, China and Vietnam established full diplomatic relations and the policy of cooperating closely with China for ideological reasons and for regime maintenance has been reinforced ever since between top Chinese and Vietnamese leaders.

For example, a joint declaration between Vietnamese General Secretary Nong Duc Manh and Chinese President Hu Jintao in 2008 spelled out the details of “total and effective cooperation” between central committee organizations of the two parties to “promote the mechanisms between the agencies of foreign relations, defense, public security, national security, and to expand practical cooperation in the economic, trade, scientific, technological, cultural, educational and other fields.”

It is difficult to know the real extent of Chinese-Vietnamese cooperation. But even official information publicly given by the two countries has shown that Chinese penetration in many sectors has been quite deep and detrimental to Vietnam’s interests. For example, although bilateral trade between the two countries has increased rapidly since 2000, Vietnam’s trade deficits with China have also accumulated to unprecedented levels. In fact, Vietnam’s trade deficits in the last decade have been principally with China. In 2011, Chinese and Vietnamese governments reported in glowing terms expanding bilateral trade of some $40 billion. This represented a 30 percent increase over the 2010 figure of $27 billion. But Vietnam’s trade deficits with China also grew significantly to over $11 billion in 2009 and $14 billion in 2011. In the first seven months of 2012, Vietnam’s trade deficit with China was over $8 billion. According to both governments, this bilateral trade will increase to $60 billion in 2015 when the ASEAN-China trade agreement goes into effect. This is when Vietnam will have to discard trade barriers over almost all items imported from China.

China’s trade surplus with Vietnam will certainly grow significantly after this date. Already, there are three principal reasons for China’s rapid increase in trade surplus with Vietnam in the last decade: 1) most of Chinese exports to Vietnam are manufactured goods while most of its imports from Vietnam have been agricultural products and raw materials; 2) China subsidizes its producers, manufacturers, and traders at all levels and hence the cost of products exported to Vietnam have been much lower than the production costs of most items produced in Vietnam; 3) Chinese exporters resort to a wide variety of questionable means including outright bribery—which are often reported even in the highly-censored Vietnamese press—to penetrate the Vietnamese market.

Bribery has also enabled Chinese corporations to win most of the bids for significant projects in Vietnam. According to many estimates, more than 50 percent of the total value of the all the contracts during the last ten years have been won by Chinese companies. In particular Chinese companies have won 90 percent of all the contracts in the sectors of electricity, oil and gas, telecommunications, metallurgy, machine tools, and chemicals and 100 percent of all contracts in the mining sector. Many of the contracts are worth several billion dollars each.

Vietnamese press reports have also disclosed that Chinese companies, armed with insider information, often tendered bids lower than those by Vietnam or other foreign countries, in order the win contracts. But after they have won the contracts, the companies jack up prices to levels much higher even than those tendered by Western companies whose technology and equipment are much more modern. The Vietnamese Ministry of Science and Technology disclosed this year that many “turn-key” projects with outdated technology and equipment have been imported from 1,800 dismantled Chinese industrial plants. The ministry added that it has come up with a policy to limit this kind of practice.

It remains to be seen how the ministry will be able to minimize these problems that will certainly grow by leaps and bounds. According to current plans, government outlays for infrastructure alone will be $117 billion by 2025 and many Vietnamese have wondered aloud how much of this money will again end up in Chinese hands. In the meantime, however, implementation of the projects that are already under contract with Chinese companies have been mostly been prolonged because of all kinds of excuses, causing huge cost overruns that the Vietnamese side has had to pay. Completed projects also have to depend on these Chinese contractors for maintenance and spare parts. In addition, tens of thousands of Chinese workers have been brought to projects in Vietnam and have, according to frequent reports in the Vietnamese press, caused many security problems in the surrounding areas.

Partly as a result of the outlays for such projects, the Vietnamese government budget deficit increased 31 percent in 2007, increased 29 percent in 2008, and 46 percent in 2009. Government borrowing from China increased tenfold during those years. In 2009 alone, official borrowing from China was $1.4 billion. Worse, the bad debts to Vietnamese banks from state sectors are threatening a series of bank collapses. According to sources in the financial sector and reports by the International Monetary Fund (IMF), Asian Development Bank (ADB), and Vietnamese press, the 2011 figures for the overall debt of the state sector is $52.2 billion, about 43 percent of GDP. The state sector debts to Vietnamese banks run to $24.5 billion, 47 percent of which is considered bad debt.

Both the IMF and the ADB have issued warnings to Vietnam about the danger of the collapse of its banking system. The IMF also stated in September 2012 that it might have to provide bail-out supports for Vietnam. However, Prime Minister Nguyen Tien Dung announced after a meeting with Chinese Vice Premier Xi Jinping in September 2012 that “we will not have to resort to help from the IMF.” Sources close to the prime minister have gloated that this was a meeting between bosom friends and that Chinese leaders were prepared to loan the Vietnamese government $10 billion to shore up its banking system should the crisis worsen.

Cleaning up the Neighborhood

Reporting on the meeting between the Chinese vice premier and the Vietnamese prime minister on September 20, the official Chinese news agency Xinhua quoted Xi Jinping as saying that the South China Sea issue will have a negative impact on bilateral relations if not handled properly. The Xinhua report also disclosed that the two sides reaffirmed the agreement reached between President Hu Jintao and General Secretary Nguyen Phu Trong in mid-October of the previous year on “finding solutions to maritime disputes based on negotiations and dialogues.”

The Vietnam News Agency’s report of the same meeting quoted Dung as saying that “the two sides need to properly implement the general understandings of the top leaders of the two countries and seriously abide by the agreements on the fundamental principles directing efforts at solving maritime issues and disputes… through friendly negotiations based on international laws, especially the United Nations Convention on the Law of the Sea of 1982, as well as on the spirit of the Declaration of Conduct in order to move forward to an effective Code of Conduct (CoC).”

The Declaration on the Conduct of Parties in the South China Sea was signed in 2002 by ASEAN countries and China, and committed them to respect freedom of navigation and overflight in the South China Sea in accordance with international laws and UNCLOS, and to resolve their disputes through peaceful means without resorting to the threat or use of force. The parties must also exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability in the region. But the declaration was non-binding, thus enabling activities that have heightened tensions and instability for the entire region. Hence, in 2009 the ASEAN countries decided to come up the idea of the Code of Conduct to create a rules-based framework for managing and regulating the conduct of the parties in the South China Sea. The aim of the CoC is to dampen conflicts and manage disputes, not to solve them. Even so, China has put up obstacles to such an agreement, including providing aid and loans to some ASEAN countries in order to get them to sabotage such an agreement.

A gathering of ASEAN and Chinese officials to discuss the CoC was held in October 2012 in Pattaya, Thailand, to work out the final details of the document so that it could be presented to the ASEAN summit meeting in November for ratification. On October 31, Vietnamese Foreign Minister Pham Binh Minh stated that ASEAN countries had already reached a consensus of the basic points of a CoC. After the meeting in Pattaya, however, First Deputy Foreign Minister Nopadol Gunavibool of Thailand, the coordinator of meetings between ASEAN and China, said that he did not have much hope for the passage of a CoC at the ASEAN. Then the spokesperson of the Cambodian foreign ministry announced flatly on November 3 that the CoC would not be adopted in 2012.

Recently, China made further moves that alarmed its neighbors. Perhaps the most serious was the announcement in late November by Hainan Province, which administers China’s South China Sea claims, that starting January 1, 2013, Chinese police and coast guard will board ships entering what China considers its territory in the South China Sea. According to a report by Jane Perlez of the New York Times on December 1, the announcement was made by Wu Shicun, the director general of the foreign affairs office of Hainan Province. The article stated: “Mr. Wu said the new regulations applied to all of the hundreds of islands scattered across the sea, and their surrounding waters. That includes islands claimed by several other countries, including Vietnam and the Philippines… The Chinese foreign ministry said last week that China was within its rights to allow the coast guard to board vessels in the South China Sea.”

On January 22, Philippines Foreign Secretary Albert del Rosario told reporters that his country had exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of maritime disputes with China and that his government would take the South China Sea issue to an UNCLOS tribunal. That was a direct challenge to China, whose deputy foreign minister, Fu Yuing, had asked del Rosario not to internationalize their dispute by going to the United Nations, raising it with third parties including allies or holding high-profile press conferences.

China has annexed Scarborough Shoal by maintaining a continuous deployment of surveillance ships there. If the Philippines took no action, it would appear to be acquiescing to the enforcement of Chinese jurisdiction by its civilian surveillance ships. The Philippines is trying to get a ruling on international law on specific matters involving maritime jurisdiction under UNCLOS. The Philippines is making four claims: 1) China’s U-shape line is illegal under international law; 2) China has occupied and built structures on submerged banks, reefs and low-tide elevations in the South China Sea and illegally claims that these are Chinese islands under international law: 3) China has illegally interfered with the Philippines’ exercise of sovereign jurisdiction within legal maritime zones; and 4) the Philippines is seeking a judgment in international law on matters that China has not excluded from consideration in its 2006 declaration exempting itself from compulsory arbitration by UNCLOS.

Although the Philippines has chosen to focus on highly specific legal aspects in its case, any favorable ruling would not only undermine China’s U-shape claim but would also represent a breakthrough for a peaceful resolution to the maritime disputes in the region.

China’s stonewalling and resistance with respect to addressing South China Sea issues come from the confidence that in bilateral negotiations with each of the far less powerful ASEAN countries she can impose her will on them. Vietnam is the most vulnerable to China’s pressures in part because Vietnam has the longest coastline in the region and has had the most maritime territories taken over by force by China. Hence compromises by the Vietnamese government in the face of further Chinese assertiveness inside Vietnam’s EEZs and around the areas of disputed islands would certainly invite further pressures from China as well as strong reactions from Vietnamese citizens.

In 2007, protests against China’s arrest and maltreatment of Vietnamese fishermen erupted at the PRC’s embassy and consulates in Vietnam, but were quashed by the Vietnamese government. In 2011, after Chinese Maritime Administration ships cut the sonar cables of Vietnamese oil prospecting boats, protest rallies were staged again, in Hanoi and Ho Chi Minh City simultaneously, every Sunday for nearly two months. But arrests and violence against the protestors by security forces again put an end to the rallies.

In September, before going to Nanning to meet with Xi Jinping, Prime Minister Dung ordered a crackdown on blogs that have attacked his leadership and opposed China. Subsequently at least five bloggers were put on trial, resulting in jail terms of up to thirteen years. One of the bloggers had composed a song in which he urged the citizens to rise up against invaders and “cowards who sell the country.” On October 14, ten policemen stormed into the dorm room of the female student, Nguyen Phuong Uyen, at the Ho Chi Minh City Food and Technology University and put her in a jail in Long An province. An open letter for her release, signed by her classmates and addressed to President Truong Tan Sang, stated that she had been arrested because she had been suspected of participating in anti-China activities and joining anti-corruption campaigns.

The Vietnamese government’s repressive activities in the face of pressures from China have exacerbated tensions with its own citizens and eroded its legitimacy. Furthermore, these activities might have soiled the Vietnamese government’s image regionally and internationally and hence weakened its effectiveness in dealing with China’s increasing assertive activities in a region through which 60 percent of the entire global sea-borne trade moves each year.

In order to promote peace and stability in the region, all countries that utilize the South China Sea for trade and other reasons should unambiguously support efforts to settle the disputes.

A Proposal

In the interest of regional peace and global development, this writer made the following proposal based on UNCLOS’s definition of three South China Sea areas at an international conference attended by specialists and officials from most Asian countries, the United States, and many European nations. The conference, “The South China Sea: Cooperation for Regional Security and Development,” was held in Ho Chi Minh City in November. The main idea of the proposal is to open up areas for cooperation among all parties involved:

1. Reaffirm the EEZ of each individual country and negotiate all overlapping claims. Form an international consensus on getting China to abandon its U-shape line.

2. Rally international support to bring all disputed claims in the island areas (islands, islets, rocks, and so on) to an international court for judgment if solutions could not be agreed upon by the claimants. In the meantime, occupants of undisputed areas should be willing to declare publicly that no island should have more than twelve nautical miles of territorial waters around it.

3. In the international area beyond the EEZs and the territorial waters of the islands all resources extracted therein (such as oil, gas, seafood) should be divided to each country in the region, after extractive expenses have been deducted, according to a formula to be negotiated.

Ngo Vinh Long is a professor of history at the University of Maine, where he has taught for more than twenty-five years. He is also a research associate at Duy Tan University, Da Nang City, Vietnam. He has contributed to the Journal of Contemporary Asia, American Historical Review, and other publications. He is a frequent commentator on Asian affairs on the Vietnamese-language broadcasts of Radio France Internationale, the BBC, and Radio Free Asia.


(Original version is available at The Cairo Review)

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