VietNamNet Bridge - "Set aside disputes and pursue joint development" is mentioned by a number of international scholars as a temporary measure to control the tension in the East Sea in the short and medium term, while waiting for the parties to negotiate the Code of Conduct in the East Sea (COC).
Due to concern about the ability that China uses the trap "joint development" to strengthen the basis for its U-shaped claims, scholars believe that the key factor is that prior to join the agreement on joint development, related parties must agree that the development does not mean giving up sovereignty claims of each country, and neither side is allowed to act unilaterally to change the status quo of the disputed area as defined in the UN Convention on the Law of the Sea 1982 (UNCLOS).
VietNamNet recognizes the policy recommendations of a number of scholars at the International Conference on control of tensions in the East Sea, held by the Center for Strategic and International Studies (CSIS) in Washington DC in June.
Leonardo Bernard, Center for International Law, National University of Singapore:
The UNCLOS has articles referring to joint development agreement (JDA), under which the UNCLOS encourages nations involving in maritime boundary disputes to arrange joint development agreements in the disputed areas. This may be a legal basis for cooperation and development agreement in the East Sea.
The first important premise for the JDA is to put aside disputes to join the JDA. At first glance it seems to be quite easy to put aside disputes, but in fact it requires great political will of the parties involved. For the East Sea, the stances of the countries participating in the dispute make it extremely difficult for putting aside disputes.
There are countries that claim the entire East Sea so it is difficult for them to come back and participate in the JDA, especially in the context of rising nationalism as well as the complexity of the political environment of each country.
To pave the way for the JDA, each country can start by saying that in this area, we have claims but we also recognize that other countries also have claims here. However, we have a solid legal basis for our claims while other countries do not have such strong legal basis. The recognition of the claims of other countries in this area does not mean that the country abandons its claims. However, to do that it requires a lot of political will.
In addition, it is particularly important that the country should educate its citizens to understand that joining the JDA or acknowledge that other countries also have sovereignty claims does not means giving up their national sovereignty in that area.
This leads to the second important factor of the JDA - "putting aside disputes" but the countries maintain their basic stance and their sovereignty claims. This is the term that all countries involved in the East Sea dispute should agree before joining the JDA. And of course, when one agrees to participate in the JDA, it must refrain. It is also defined in the UNCLOS that nations have to maintain the status quo and no country is allowed to act unilaterally to change the status quo of the disputed area.
The final important factor is how to identify the potential areas for joint development? Some scholars suggested that prior to joining the JDA, involved countries need to clarify their claims. It is true that if the countries can clarify their claims, the determination of the areas for joint development cooperation will become much easier. However, from the move of China, we understand that they will not clear their U-shaped claims. But that does not mean that the JDA gets a complete standstill.
Even if the parties do not clarify their claims, there is still the opportunity to identify the possible areas for development cooperation. For example, the Scarborough shoal is the place where only the Philippines and China make claims. As a Chinese scholar said, before the clashes last year, the two countries' fishermen had still caught fish their peacefully. So why we not return to the status quo before the incident without asking China to clarify its nine-dotted line or Philippines to clarify its claims there. Why we cannot put aside disputes, sit down and discuss joint exploration of fish in this area?
I think both sides can fully achieve such a deal without sacrificing claims or clarify their claims. Similarly to the area around the Paracel Islands – the disputed area between Vietnam and China. This is a very sensitive area. China does not want to mention Paracel Islands and Vietnam is also very sensitive to this issue. But I think that quite likely that the two countries can cooperate for joint development in this disputed area because the two sides had cooperation agreement in fisheries development in the Tonkin Gulf.
Bonnie Glaser, Senior Advisor on Asia, CSIS:
Before joining any JDA, the related parties need clearly define the concepts such as the "status quo." Acting Assistant Secretary of State Joseph Yun pointed out the U.S. position on this issue: No party may have any unilateral action to change the status quo. I agree with this view but sometimes the status quo concept is not clear. For example, when the Philippines reinforces its presence in a number of islands which they has possessed since 1995, China said that that was the unilateral action to change the status quo. I do not support any side in this thing, but I'd say that there is no clear concept so the parties can make discretionary interpretation.
Another important issue is ASEAN should not let’s China isolate its members. From the personal perspective, I think that it was disappointing when ASEAN kept silent in the Scarborough Shoals incident last year because I think it has urged China to continue its similar behavior in other areas.
Even the initiative to use international arbitration to arbitrate disputes with China in the East Sea, that the Philippines is pursuing has so far only received the support of only one member of ASEAN, Vietnam and the two countries outside ASEAN - the U.S. and Japan.
If many countries support this effort, it will motivate related parties to attempt to resolve disputes before judgment is given. The support of many countries for this effort can also affect the way the Chinese approach and other countries involving in the disputes may consider pursuing similar cases. Vietnam could be a potential candidate but this country needs to strengthen its baselines.
I think China should consider ahead of time of the court ruling by defining is nine-dotted line consistent with international law. The result will be very negative for the region if the judgment of the court rejects the nine dotted line, but China ignores it and that raises concerns about whether a China that is getting stronger will behave under international law or not.
I want to mention the confidence-building and conflict-avoiding measures. The Declaration of the Conduct of the Parties in the East Sea (DOC) includes confidence-building measures such as informing related parties about military exercises and exchange of information between the parties. China continues to call for DOC implementation. Meanwhile, the COC is about to be negotiated it can take a long time to negotiate.
So I think DOC enforcement is not a bad idea. The DOC contains provisions relating to maritime cooperation such as cooperation to ensure safety of navigation and communication at sea. These issues so far have not been implemented effectively. We should create more opportunities for China and ASEAN to discuss further about these cooperation measures. Another area of potential cooperation is protection of marine resources and environmental, cooperation in scientific research, rescue and humanitarian relief.
One recommendation that I want to promote is the establishment of the South China Sea Coast Guard Forum which will focus on maritime security and legal issues.
In addition, the parties may consider establishing the East Sea Information Sharing Center to provide platform for sharing knowledge and raising awareness among the related parties. The center can also serve as a mechanism for enhancing transparency, such as when countries involved require gathering evidences of incidents at sea. These models have been applied here and there in the world and I think you can consider the application them in the specific circumstances in the East Sea.
Christian Le Miere, senior researcher of naval and maritime security, the Institute for International Strategic Studies (IISS):
First of all, I want to emphasize that the parties involved in the dispute in the East Sea should continue to clarify their claims. The clarification of claims in the East Sea is the responsibility of not only of China but also all related parties, although China makes claims over the entire East Sea. In my opinion, international law, particularly the UNCLOS 1982 is the foundation on which the countries make clear their sovereignty over the East Sea. If China does not want UNCLOS as the main tool to solve the East Sea dispute, they should not have signed this Convention.
On the solution of putting aside dispute and pursuing joint development, I think this might be a temporary option in the short and medium term to control the tension in the East Sea while waiting related sides to negotiate the COC. Although the East Sea dispute is extremely complex, with the participation of many countries in the region, we can still consider the experience of a number of treaties in history as the suggested models for the settlement of disputes in this area. For example, the collaborative model of some countries in Antarctica may suggest useful lessons for the countries involved in sovereignty disputes in the East Sea.
The Antarctica Council was founded 16 years ago by a number of countries to create favorable conditions for research and policy recommendations related to the South Pole. The council serves as a forum for discussion of common concerns to countries in the region, enables search for solutions to solve problems before they become serious rather than just coping with the situation when troubles arise.
There is no such a forum in the East Sea, while tensions often break out between the parties involving in the disputes. I think the countries involved in this can start with less controversial topics such as the protection of natural resources in the East Sea, before proceeding to joint exploitation. In addition, the regional countries can deploy joint search and rescue activities, programs to cope with natural disasters in order to promote cooperation and goodwill.
Setting aside disputes and pursuing joint development is an initiative proposed by China. China and the Philippines had many collaborative projects on oil and gas exploration in the disputed area. In 2005 there was a tripartite joint project on oil exploration among China - Vietnam - Philippines near the Spratlys Islands. The project expired in 2008 and was not renewed.
Since China claimed the nine-dotted line, other countries have proved to be more alert to the call on joint exploration by this country since they are afraid that Beijing may use the trap "setting aside disputes and pursuing joint development" to turn the undisputed areas into disputed areas, in order to implement its ambition of monopolizing the East Sea.
Noted by Vo Minh