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SYSTEM OF INTERNATIONAL DISPUTES IN EAST SEA (BIEN DONG): REAL SITUATION AND CHARACTERISTICS

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The international disputes in the East Sea have drawn the attention of Vietnamese and foreign scholars since the second half of the 1980s in the 20th century, especially after China seized seven underwater reefs in the Truong Sa archipelago (Spratly) in March 1998. Their studies follow three directions:

1./ From the perspective of history, geology and international law in which related parties aim to assert sovereignty over this sea and island area;

2./ From the perspective of international political security in which conflict possibility and risks to each nation, the region and international relations are studied;

3./ Mainly from the perspective of economics in which the East Sea’s economic potential in maritime transport and resources, especially oil are assessed.

The disputes are complicated since they involve many disputers and parties and take place in a strategic geographical area. This situation requires a comprehensive approach. Any solution should be based on this approach.

This article is intended to make further contributions to shedding light on the international disputes in the East Sea. It is hoped that it will be helpful to assessing the real situation, studying the impacts, forecasting the prospects and seeking solutions to these complicated and long-lasting disputes.

I. Real situation of international disputes in East Sea

Disputes are rooted in contradictions. The fact that the disputes in the East Sea have become complicated is due to the existing contradictions, their severity as well as their interlocking. The identification of related disputes, the parties’ concerns, the disputed issues and the degree of conflicts are of a great importance to solve the disputes.

This study is based on the nature of disputed issues. The disputed areas in the East Sea involve sovereignty, security and economy. Each area involves different parties. As a result, the degree of conflicts are uneven, the more important the disputed areas are, the more intense the conflicts will be. Moreover, each disputed area has its own characteristics, which requires different settlements. However the three areas are interconnected closely, thus systematizing the East Sea disputes. Followings are the disputes:

+ Territorial dispute. Among the disputes in the East Sea, the territorial dispute is the most complicated and difficult to settle because the disputed areas are diversified, ranging from territorial waters, islands, exclusive economic zones to continental shelves. Disputes over territorial waters and island are more complicated than those over exclusive economic zones as they closely link to sovereignty and territorial integrity. National sovereignty cannot be compromised, especially in East Asia, where strong nationalism and sovereignty consciousness are clearly felt. Moreover, the fact that territorial waters and islands are currently under the control of given contenders make concessions impossible. It is hard to give up what one has possessed.  

The matters become more complicated regarding the claimant concerned. These disputes involve most of the East Sea littoral countries. They include bilateral and multilateral disputes. The internationalization of the dispute settlements are firmly rejected by China. Seeking solutions to the disputes among the regional actors is not easy, due to historical mutual suspicions regarding China, the positivity of China putting pressure at negotiation table as well as to adverse elements in the relations between China and the other disputers. Among the claimants, Taiwan is a special case. It cannot join the negotiations as it has not been recognized as a state.  

Regarding territorial claims, Taiwan always takes China’s side. The two sides refrain from coordination but make use of each other. However, when tensions escalate in the Strait of Taiwan, the possibility that China launches a military attack to seize Ba Binh Island in Truong Sa archipelago occupied by Taiwan cannot be ruled out. Since in doing so, China can put pressure on Taiwan regarding the unification matter and at the same time strengthen China’s control of the East Sea. Moreover, the possibility of U.S. intervention and Taiwan responses in this area are much slimmer than U.S. and Taiwan possible reactions in case China go to war in the Taiwan Strait.  

Regarding dispute settlement mechanism, it is not easy to put in place a viable one. The Declaration on the Code of Conduct in the East Sea (DOC) is not effective enough while the Code of Conduct of Parties in the East Sea (COC) has not been shaped. In spite of the 1982 UN Convention on the Law of the Sea as a basis for dispute settlement, disputed parties give different interpretations so as to meet their respective interests and intensions. Other international mechanisms such as the International Tribunal is weak with poor international legal enforcement and can be easily monopolized by big powers.

The East Sea territorial disputes can be divided into two main categories. The first one includes those involving China. The second one represents those among some ASEAN countries. The division is based on the presence of the parties concerned and the scope of disputed areas as well as the complexity of the disputes. In the first category, the biggest, most complicated and hardest dispute is that between Vietnam and China. The disputed territorial area between the two countries is the largest one which includes the territorial waters, islands (including Hoang Sa and Truong Sa), the exclusive economic zone and the continental shelf beyond the exclusive economic zone. The sea dispute between the two countries is more complicated due to other bilateral issues. The dispute between the Philippines and China is less complicated than the one between China and Vietnam. The territorial disputed area is smaller and is limited within a part of Truong Sa islands, of the exclusive economic zone and the continental shelf. The territorial disputes between Malaysia and Brunei and China are at low level, claiming sovereignty over a small part of Truong Sa islands. In the second category, the level of disputes is also related to the scope of the disputed territorial area. The largest disputed area is the one between the Philippines and Vietnam, followed by the dispute between Malaysia and Brunei and the two above said countries. In addition, there are other disputes over the continental shelf or the exclusive economic zone among littoral countries. The disputes related to China are complicated and strained, especially the first two ones. Meanwhile, the disputes among ASEAN countries have been or are being solved the disputes here do not lead to tensions in their relations.  

Out of the above issues arise four points worth-noting. Firstly, regarding the disputes over islands and territorial waters, there exist tensions and compromise is hard to reach. Regarding the exclusive economic zone and the continental shelf beyond the exclusive economic zone compromise can be reached. So, there are different degrees of tensions over territorial disputes, which means there will be different solutions to different disputes. Secondly, compared to land territory, sea territory is the newly expanded with less emotional and national bonds, so there is more chance to reconciliation shows that it is possible to find settlement to maritime territorial disputes, including the one between China and Vietnam, which had reached agreement on land border in 2000. Thirdly, it seems that territorial claims by disputed parties, except Vietnam, have been pushed to the highest level. Thus territorial claims will not increase. Further, the highest demand in some countries. claims may be an .inflated price. for a bargain. It is possible that China.s nine-dashed claim is such an attempt. Fourthly, the fact that the East Sea territorial disputes among ASEAN members are being solved creates a precedent, generating experience and support for a peaceful solution of disputes between China and the other countries.  

+ Security conflict. This is the biggest and most complicated conflict in the international dispute system in the East Sea. In this connection, disputed features include both visible and invisible ones. The first one is territorial security of coastal countries in the East Sea. Territorial dispute is always understood as the violation of territorial integrity and sovereignty independence. It is a threat to a country.s security. This dispute comes from the entitlement to territory. Secondly, the disputes here also involve power. The occupation of strategic points and natural resources in the East Sea can bring about power advantages for any given country. So the power balance in the region will shift in favor of some but not others. Thirdly, the tensions in international relations in the region and increasing threats stem from the unsettled disputes in the East Sea. This threatens the stable environment for development, maritime security as well as damage the cooperation between the related countries. Fourthly, the disputes involve non-traditional security issues. The divisions in the East Sea also threaten environmental security and the security of fishermen in the coastal areas.  

The number of claimants also complicates the dispute, since all of them are faced with threats. However, the levels are different. China, with its stronger potential over ASEAN countries faces less territorial threats, while foreign threats to ASEAN countries are very high. This is the biggest security concern among ASEAN countries regarding the East Sea issue. Meanwhile the level of tensions among ASEAN countries is low since they can solve disputes in a peaceful manner.

Regarding security matter, China’s increasing power has posed great worries. With its strengths, China can arguably control the East Sea. Given China’s current development, regional power balance tends to be shifting in favor of China which will lead to further regional power imbalance. However, unlike ASEAN countries, China’s attempt to gain power in the East Sea derives not only from regional calculation but also from global calculation. China’s intention to monopolize the East Sea is seen as a threat to other powers outside the East Sea, including the US, Japan, Australia, India, Russia and the EU in terms of freedom of maritime navigation. So this conflict involves other actors who do not appear in the territorial dispute. Their involvement in the power dispute creates two conflicting trends. The first one is China’s efforts to increase its regional power in face of strong rivalry, and this will lead to more tensions, creating greater impacts on smaller countries. The second trend is the possibility of internationalizing the East Sea disputes in the seeking of solutions to the disputes.  

Apart from the above actors, there are other actors in the East Sea disputes. They are the people who have business ties with the East Sea countries. They are worried about the disputes. escalation since this will threaten their diversified interests and beneficial relations with the region, in terms of maritime security and economics. Naturally, the ASEAN countries that have disputes with China suffer most as China is able to put various pressures.

In this category of conflict, the actors are affected by untraditional security issues with the same scope as those above. However, the conflicting interests are not so serious since they are not the fundamental ones. So the participation of outside countries in this conflict is limited.

All the conflicts cause different security impacts on littoral countries in the East Sea. The first two conflicts are the traditional ones, posing serious threats and concerns, and the solutions to which take time at higher level than the third and the fourth conflicts. They are not only hard to deal with but also tend to increase the disputes in the East Sea. The last two conflicts are not as deep as the first two in which the tendency of cooperation is more likely. Moreover, to prevent the intervention of outside powers, China is trying to make the second conflict less open and the third one less strained.  

However, there are some factors which can help to ease conflict. Firstly, the increasing trends of detente and cooperation are growing in the world. The trend demands countries to limit escalation and exercise restraints in accordance with international circumstances. Secondly, in East Asia there is a trend to increase cooperation with the participation of both China and ASEAN countries. This creates a closer cooperation and interdependence among East Asia countries, creating favorable conditions for dealing with disputes through peaceful solutions. Thirdly, claimant parties in the East Sea are pursuing developments; therefore, they do not want disputes in the East Sea to negatively affect their economic growths. Fourthly, the possibility of intervention by big countries, though not large, will create a certain restrain to China. Fifthly, in international relations, there are many ways to address security conflicts, such as confidence building, preventive diplomacy, conflict settlement mechanism and new functional economic cooperation. They bring hopes for preventing and minimizing security conflicts.  

+ Economic conflict. Economic conflicts are not so serious as the two above said conflicts. However they are more complicated and difficult to settle as they are linked to territorial disputes. The related disputed areas are mainly marine resources such as oil. Higher level of development needs a lager supply of oil. It’s oil that expands the disputed area, not only in the exclusive economic zones but also in the continental shelves beyond the exclusive economic zones. Noticeably, while territorial disputes and security disputes are seeing no progress; conflicts are worsening in the East Sea. The pushing up of economic disputes not only stems from economic benefit, but also step up territorial and security claims. As a result, economic benefits, especially oil, is making sovereignty disputes over territorial water, exclusive economic zones and continental shelves in the East Sea more complicated and hard to settle.  

In terms of level, oil dispute is much more severe than that in fishing. The severity stems from oil strategic importance and the higher demand for oil compared to seafood. Disputed areas involving oil potential are harder to settle. The bigger the oil potential, the more difficult the dispute. It is argued that “oil discovery could lead to a very dangerous situation”.(1)  

The conflict can be seen in the rivalry for the right to exploit natural resources in disputed areas. Therefore, most of East Sea littoral countries get involved in this. The most complicated dispute regarding economic benefit and oil is the dispute between Vietnam and China over wide disputed area including territorial waters and the islands inside the territorial waters. This is the place where oil potential in the East Sea has been shown, while the thirst for oil is increasing along with development. The second conflict is the tripartite conflict among China-the Philippines-Vietnam which is related to part of the Truong Sa and a nearby exclusive economic zone claimed by the Philippines. This conflict is tense, but not as tense as the above-said one. However, there exist some efforts for cooperation in this group. The third one is between China and the other claimant parties. This conflict is less tense, than the previous one due to smaller scale, less important and is hidden behind the Vietnam- China dispute. The fourth is among ASEAN countries, excluding Vietnam- Philippines dispute. In this conflict, most of the disputes have been settled or hardly create tensions in their relations.

However, this conflict has been somewhat controlled thanks to the following reasons. Firstly, like in security matter, the trend of economic cooperation in the world and economic integration in East Asia are important factors that help settle economic disputes. It is worth noting that East Asia countries have joined the ASEAN+3 cooperation framework on energy security. The trends make the settlement of economic conflict more feasible than security dispute. Secondly, in term of lost-benefit consideration, which is common in the foreign policies of regional countries, continuous disputes over economic resources in the East Sea will bring nothing but losses in many areas, not only economics. Cooperation, brings them, not all, but at least some benefits in economics as well as positive impacts on other fields. Thirdly, disputes over economic benefits are not as sensitive to national sovereignty and nationalism as territorial and security issues. As a result, it is easier to settle the disputes; at least, the possibility of settlement of economic disputes on the basis of the win-win solution will face less domestic opposition. Fourthly, this disputed area has most precedents of successful settlement compared to territorial and security issues of the regional countries. In terms of economic matters, China has settled the East China Sea dispute with Japan while Vietnam and other ASEAN countries, including Malaysia, Indonesia, Thailand and Cambodia have basically settled economic disputes in overlapping areas.  

II. Some characteristics of the East Sea international disputes

Each dispute has its own characteristics. Dispute resolutions will be likely if dispute.s characteristics are due it considered. Beside specifying disputes, studying the characteristics of disputes is also necessary in order to deal with the complicated disputes. There is no common solution for every dispute because each dispute has its own characteristics. In our opinion, the East Sea international dispute system has some outstanding characteristics:

+ The dispute system in the East Sea includes three main conflicts, concerning territory, economics and security as mentioned above. They have close links with close inter-actions, creating the East Sea conflict system. Territorial disputes create a basis determining the other two. While security conflict makes the territorial conflict more severe and economic conflict harder to be settled. Economic conflict complicates both territorial and security disputes so dealing with one conflict cannot be separated from another conflict. So any solution must take into account overall interest of claimant parties. Separate settlement can be applied to each conflict but has to be put in the overall picture and any settlement should be seen as a step in a long process toward the fundamental settlement of disputes in the East Sea.

+ All the three conflict groups are difficult to settle. They all involve the primary interests of each nation, which is hard to be harmonized. Territorial dispute is the most difficult as it implies the zero sum game. The conflict only involve the direct claimant parties, thus the outside factors do not provide much help to the settlement. Security conflict is hard to settle, too, but it is not as hard as the previous one, as there is a possibility of reciprocity. As this conflict has wider influence, effects from outside can be positive some. Economic conflict has quite a large scale but lower severity than the two above said conflicts so solutions are more likely to reduce tensions and break the deadlock. In economic dispute the possibility of cooperation should be considered so as to find solutions to the above two conflicts.

+ The East Sea disputes are complicated ones. Their complexity is due to the diversity of disputed matters, claimant parties and different confrontations in each type of dispute. It is even higher due to historical and psychological factors: the regional historical long-lasting conflicts and divides, the strong sovereignty sense and nationalism, the bigger tradition of fighting than cooperation, the historical hostility and national prejudice, the dislikes and mutual suspicious have deepened the conflicts. The characteristic requires the inclusion of these factors in dispute settlement. However, this situation does not exist all time at the same level in each pair of relationship. This means there should be different approaches to different actions and to which actors. broad approaches should be taken in both state to state and people to people channels.

+ The East Sea disputes involve both interests and settlement resolution. It is certainly that the key disputed interest is sovereignty, but there exist some other interests. Vietnam obviously has persuasive legal and historical evidences of its sovereignty over the East Sea. However, only these evidences are not enough. Interests of other countries should be considered. These interests are quite different and contradict each other. Furthermore, there exist disagreements in the concepts of settlement. Of the two issues, interest dispute is the basic one and cause disagreements in settlement methods. However, there are different interests defined on different levels of disputes, but there are some common interests. At the same time, there are similarities in dispute settlement among disputed parties. This creates two suggestions for solutions. The first one involves looking for solutions but give priority to less complicated disputed interests. The second one is based on common interests and common views on settlement methods as the principle to maintain dialogues.  

+ The East Sea disputes are both bilateral and multilateral. However, the territorial disputes occur more in bilateral relations than in the multilateral ones., as China intends to pursue that and ASEAN countries have not come to a united stance on coordination to deal with the problem. Another reason is the region has not developed a multilateral mechanism to face common threat, i.e. the territorial disputes of some countries in the region. Moreover, some big powers outside the region tend to avoid interference in territorial disputes which are not theirs. In general, territorial disputes are difficult to settle multilaterally (except the multi-sided disputes), but solutions to the economic and security disputes are possible thanks to the increase in mutual security and economic interdependence among regional countries. Therefore it is unnecessary to combine bilateral and multilateral settlements. Yet, multilateral settlement of security and economic issues should be promoted. Multilateral mechanism reached in security and economics in the East Sea and the developments in bilateral relations will create conditions for the settlement of territorial disputes. Besides, in territorial dispute settlement, disputed matters between two countries (Hoang Sa) can be dealt with bilaterally, while disputed matters among many countries (Truong Sa) should be settled multilaterally without any country being ignored or dropped out.

+ The East Sea disputes are interna tional ones when they occur among regional countries and embrace major scope of international relations. Besides, the disputes draw many powers in the world, thus the impacts are not limited to the East Asia. In other words, the actors include nations, regions and the world. However the international levels of the disputes are not the same in each conflict. The powers outside the region are interested in their respective security interests, oil and economic interests in the East Sea, while heading off the involvement in territorial disputes. So there can be the internationalization of dispute settlements in a number of selective issues and actors. It is impossible to pin hope on the internalization of all disputes in the East Sea. Yet, settlement methods must take into account international contexts and international laws.

+ The East Sea disputes are unbalanced. China - one side of the dispute is much stronger than other claimant parties. It means that the key for dispute settlement is in China’s hand rather than in other claimant countries. It also means that whether the disputes escalate or military violence is used depends on China, not on other parties. This means a longlasting solution must take into consideration China’s interests; however, there should be principles, roadmaps and the inviolable limits. In addition, it can be argued that in fact, China’s moves regarding the East Sea issues are affected by its internal and external relations as well as regional and international contexts. These are the factors either controlling or stimulating China.s moves in the disputes. In short, the East Sea dispute system is complicated and will continue for long. The disputes are big and deep, however, the prospect is not too pessimistic. There are factors for restraining the disputes and elements for harmonizing interests and limiting disputes. It means that managing and partial solutions are possible./.

Hoang Khac Nam*  

REFERENCES

The Ministry of Foreign Affairs, Hoang Sa, Truong Sa Islands and international laws, 1998.

Brice M. Clayget, Competing Claims of Vietnam and China in the Vanguard Bank and Blue Dragon Areas of the South China Sea, National Politics Publishing House, 1996.

Diplomatic Academy of Vietnam, Memoir of International Conferences on the East Sea: Strengthening cooperation for regional security and peace, Hanoi, Nov. 2009.

Monique Chemillier, Sovereignty over Paracel and Spratly Islands, National Politics Publishing House, 1998.

Party Central Committee for Ideology and Culture, Vietnam.s national sovereignty over Truong Sa and Hoang Sa islands, 2004.

NOTE

* Associate Professor, Dr. Hoang Khac Nam, Department of International Studies, College of Social Sciences and Humanities, Hanoi National University

1. Stetin Tonnesson, “Can it be possible to settle disputes of sovereignty and sea delimitations over islands in the East Sea”, “East Sea International Scientific Conference Memoir: Increasing cooperation for regional security and peace,” Hanoi, Nov. 27, 2009, p.40.

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