China-Vietnam agreement on ‘sea-related issues’

BANGKOK—The China-Vietnam agreement on the South China Sea territorial disputes made Wednesday this week signals a retreat from the 2002 China-Asean code of conduct. The Philippines has long insisted on a multilateral approach that would consolidate the negotiating position of otherwise isolated, individual states in Southeast Asia bargaining as it were with the largest and most powerful country in the region. The China-Vietnam pact regrettably buys precisely into the Chinese strategy of bilateralizing that dispute.

President Aquino has correctly rejected this and has announced plans to raise it with Vietnamese President Truong Tan Sang who is soon expected in Manila for a state visit. The irony is that President Gloria Macapagal-Arroyo actually signed one such bilateral seismic agreement with China in 2004, and it was only upon Vietnam’s supervening request to Arroyo that the following year Vietnam came on board belatedly. That agreement would eventually hit the headlines at the height of the ZTE-NBN scandal, namely, the controversial—and now scuttled—“Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea” among China, Vietnam and the Philippines.

President Aquino’s September 2011 state visit to China resulted in a broadly worded joint statement that referred to the Spratlys in this wise: “Both leaders exchanged views on the maritime disputes and agreed not to let the maritime disputes affect the broader picture of friendship and cooperation between the two countries.” It affirmed the fundamental position that the dispute be resolved under the 2002 China-Asean code of conduct.

In contrast, the China-Vietnam agreement of October 2011 results in more detailed commitments: twice-yearly meetings of “heads of government-level delegations” and a “hotline mechanism” to deal with “issues in a timely manner.” However, it does not refer at all to the 2002 China-Asean code of conduct to which both China and Vietnam are parties. (It cites a document that it calls the “Declaration on the Conduct of Parties in the East Sea,” but there is no mention whatsoever of the Asean.) The operational clause certainly makes sense but it is the symbolic omissions that are perplexing.

The operational mechanism is called for by the most recent military skirmish between China and Vietnam. In May this year, Vietnam claimed that Chinese boats deliberately rammed and cut a submerged cable towed by a ship for Vietnam’s state oil corporation. Vietnam claimed that the incident happened within its exclusive economic zone. China claimed otherwise, saying these were “invasive activities” that “undermined China’s interests and jurisdictional rights.” China blamed Hanoi for that episode, saying that armed Vietnamese boats were illegally chasing Chinese fishing boats out of the area, and that a fishing net accidentally snagged the research cable. Within the week, Vietnam held live-fire drills in the South China Sea. Vietnam claimed the nine- and six-hour drills were a routine annual training exercise that had nothing to do with the naval episode with China.

Reading between the lines is made even more difficult thrice over if those lines were written by diplomats who are lawyers and who are Asian. To start with, the agreement calls the dispute as generically as possible as “sea-related issues.” To think that barely four months ago, they were on the verge of shooting one another!

Next, take the following prefatory statement: “[i]n the spirit of fully respecting legal evidence regarding other relevant factors such as history.” One would normally assume that, on many issues, China would have history on its side, having in its possession maps dating back to the time, I suppose, when China had just invented paper. But the term “legal evidence” can also include documents from the colonial period of Vietnam when France secured its colonies’ borders through treaties with competing European powers.

Significantly and rather shrewdly, the agreement likewise aimed at “transitional and temporary measures that do not affect the stances and policies of the two sides,” and strategically would address “in succession … easy issues first and difficult issues later.” It would “boost cooperation … in less sensitive fields” and “enhance mutual trust … more difficult issues.” That should lay the legal groundwork for joint exploration agreements, but it’s all rather superfluous since the 2002 China-Asean code of conduct already covers such a possibility.

It is the symbolic omissions that are perplexing. It was in Hanoi itself last year in the Asean Regional Forum where US Secretary of State Hillary Clinton raised China’s hackles by stating that the South China Sea territorial dispute was a US “national interest.” She concluded: “We oppose the use or threat of force by any claimant.” During this year’s July meeting of the same Asean forum, it was reported that China and the Asean countries had actually agreed on the rules to implement their 2002 code of conduct. (Those rules have not been made public, and reports say that the draft rules remained too vague.)

If indeed the “easy issues first, difficult issues later” approach is as wise as it purports to be, China should have no hesitation agreeing to the same terms with the rest of the Asean as a group, exactly as it did in the 2002 code of conduct. Anything less is one step forward for China, two steps back for the Asean.

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