A vessel in the area where China builds an artificial island at the Chau Vien (Cuarteron) Reef on October 4th, 2014. Photo: Asahi Shimbun

Last week 180 delegates from Asian and European countries discussed marine security at a conference themed “Marine security and development: International cooperation and European-Asian experience sharing” in Ha Long city, Quang Ninh province.

During the 2-day conference, delegates discussed ways to enhance cooperation in dealing with marine security issues and affirmed the need to foster cooperation, amidst the escalation of strategic competition between countries. They also talked about the upcoming ruling by the Permanent Court of Arbitration (PCA) on the "East Sea case" as well as the reaction of the parties involved.

On this issue, VietNamNet would like to introduce the following analysis.

China’s ignorance and use of "muscle"

Recently at the Shangri-La Dialogue 2016, US Defense Secretary Ash Carter acknowledged that the upcoming decision of the PCA about the East Sea case is an opportunity for China and the countries in the region to re-commit the principles of behavior, to show a new foreign policy, and to reduce conflict. The legal path and the other mechanism for resolving conflicts through peaceful negotiation and dialogue are the shortest way to promote security and to address the security issues globally, especially in Asia - Pacific.

Meanwhile, China's attitude to the upcoming verdict of the PCA is completely contrary. Also at Shangrila Dialogue, Admiral Sun Jianguo, deputy chief of general staff of the Chinese People’s Liberation Army, emphasized that China would not accept the decision made by PCA on the East Sea case.

“On the one hand, we have noticed that some countries apply international laws only when it is convenient. On the other hand, they support allies confronting China,” Sun said. “China firmly opposes such behavior…. We do not make trouble, but we have no fear of trouble."

The two statements represented entirely conflicting stances in approach to the East Sea dispute and they were watched very carefully by the international community.

This is the "sensitive" moment as the time for the PCA to make the decision on the East Sea case against China lodged by the Philippines is coming. Most of the delegates to the Shangri-La Dialogue 2016 paid attention to every move and of Beijing, such as rumors on the decision on the establishment of the ADIZ (Air Defense Identification Zone) in the East Sea as a response to the decision of the PCA.

These moves strengthen the trend that has been developed over the past three years: Since the Philippines promoted the legal process against China, this country has ignored it, focused on its "strength" - developing "muscles" to assert sovereignty in the field.

According to Prof. Carlyle A. Thayer (University of New South Wales, Australia) there are four main motives for China’s construction of artificial islands in the East Sea in recent times: rising nationalism, aquatic resources, mineral resources, and strategic geographical location.

He said that the favorable geopolitical position is the most important reason, because China is trying to deal with the rebalancing strategy of the Obama administration in the Asia - Pacific. Accordingly, China wants to assert sovereignty over the East Sea to ensure maritime communications and avoid the risk of interference from the south by the US Navy and Air Force in the future.

In contrast, the US strategy, as Dr. Patrick Cronin (American Institute for New Security Policy Studies) told the International Conference on the East Sea dispute at Yale University last May, includes five key elements, which are the catalyst and decisive determinants for the foreign policy of the United States in the East Sea in the coming time. They are: (1) closely linked with the re-balance policy in the Asia - Pacific region; (2) bilateral relationship between the US and China; (3) decisive role of the next president of the US on the US participation; (4) the strategy carried out comprehensively, not just limited to the political-diplomatic field, but also the economic, commercial areas and international law; (5) ensuring US interests in the region.

The choices of ASEAN

The choices of the two powers will force ASEAN to make its own choice. William Choong, a Shangri-La Dialogue Senior Fellow at the the International Institute for Strategic Studies, which organises the Shangri-La Dialogue, in his presentation at the Shangri-La Dialogue 2016, mentioned the response of ASEAN states before the PCA’s decision.

He said that if the ASEAN countries cannot release a joint statement supporting the PCA’s decision, China will become a hands-free in the East Sea issue. At that time China can claim the ADIZ in retaliation for the verdict of the PCA and the US patrol for freedom of navigation in the East Sea. It's one of the scripts that ASEAN countries should take into account when tensions escalate resulting in China’s "retaliation" on the economy and diplomacy.

On the other hand, the change of strategic environment is necessary for ASEAN to promote the protection of international law in the region.

Jeremy Lagelee, from the Faculty of Law, Georgetown University* raised a number of legal ideas that ASEAN should take into account after the PCA’s decision. The case between the Philippines and China also pointed out opportunities and challenges for ASEAN countries when choosing a bilateral solution.

Lagelee mentioned successful cases at the arbitration court when the case is beyond the bilateral framework, such as the collaboration between New Zealand and Australia to sue Japan on fishing in 1999, thereby encouraging ASEAN countries to find a common voice in the East Sea issue.

He suggested the new approach in the East Sea dispute resolution, such as the ability to expand to a third party (in order to protect freedom of navigation - FONOP), or non-state actors, in order to shift territorial disputes to judicial conflict resolution mechanisms, such as the law governing conflicts between enterprises - state, or the law protecting investors. Thereby, ASEAN on one side reaffirms its stance on the East Sea issue and on the other hand it is a way for the bloc to respond to the criticisms of the loss of its importance and role in regional security issues.

At the International Conference on East Sea disputes at Yale University in May, Dr. Ta Van Tai (Harvard University) said that Vietnam was and will always give priority to the legal path. Accordingly, the rights of Vietnam on the islands and archipelagos in the East Sea are entirely based on the legal practices in line with international law.

 In the exclusive economic zone (EEZ) and the continental shelf, the fishing rights, exploitation of natural resources, environmental issues and maritime traffic of Vietnam are ensured by the UN Convention on the Law of the Sea 1982 (UNCLOS) .

He also rejected the ADIZ set by China in the East Sea, because it is the right of self-defense that is only deployed on the legal territory of a country. In addition, Vietnam can be based on the oil rig crisis in 2014 to enrich the record of the case in the future, and it should seek further assistance from the International Court of Justice (ICJ), the Arbitration Court of the international Convention on the Law of the Sea, and the UN.