In October 2013 China’s Premier Le Keqiang made an important visit to Vietnam. Premier Li and his Vietnamese counterpart Prime Minister Nguyen Tan Dung discussed future cooperation across a wide number of areas and agreed to establish three working groups on on-shore cooperation, monetary cooperation and maritime cooperation. According to the Chinese news media a “breakthrough in bilateral cooperation” had taken place.
The current flare up in tensions in the South China Sea, provoked by China’s deployment of a mega rig in disputed waters, raises serious questions about the failure to create strategic trust between Beijing and Hanoi.
It should be recalled that bilateral relations between China and Vietnam have evolved substantially since they normalized relations in 1991. In 1999 the two countries successfully demarcated their land border and a year later they also reached agreement on delimiting the waters in the Gulf of Tonkin (Beibu Gulf).
In 2000, China and Vietnam codified their bilateral relations in a Joint Statement for Comprehensive Cooperation in the New Century. This document created the framework for long-term state-to-state relations. China also signed similar agreement with all other members of the Association of Southeast Asian Nations.
In 2006, Vietnam and China set up a Joint Steering Committee on Bilateral Cooperation at deputy prime ministerial level to coordinate all aspects of their relationship. This Joint Steering Committee has met regularly alternating its meetings between Beijing and Hanoi.
In June 2008, following a summit of party leaders in Beijing, bilateral relations were officially raised to that of strategic partners, and a year later this was upgraded to a comprehensive strategic partnership.
Territorial disputes in the South China Sea remained a major irritant in bilateral relations. In October 2011, in a major development, China and Vietnam signed an Agreement on Basic Principles Guiding the Settlement of Maritime-Related Issues in Beijing. Beijing and Hanoi committed themselves “to seek basic and long-standing solutions acceptable to both sides for sea-related disputes on the basis of international law” and to resolve their maritime disputes “through friendly talks and negotiations.”
Pending the settlement of their disputes, China and Vietnam agreed to “actively discuss transitional and temporary measures that do not affect the stances and policies of the two sides, including studies and discussions on cooperation for mutual development.” In sum, it appeared that Hanoi and Beijing has succeeded in compartmentalizing their maritime territorial disputes from their larger bilateral relationship.
In October 2013 Premier Li and Prime Minister Dung agreed to “stringently implement” the 2011 Agreement and pursue maritime cooperation following the principles of “step by step” and the “easy-first, difficult-later.” The two leaders also reaffirmed the role of the existing government-level mechanism on boundary and territory negotiations. They also reiterated the key point in the 2011 Agreement quoted above, to pursue “mutually acceptable fundamental solutions that do not affect each side’s stance and policy.”
With respect to their territorial disputes in the South China Sea the two leaders reaffirmed their existing agreement to implement the 2002 Declaration on Conduct of Parties in the South China Sea and “based on mutual consensus, both sides will do more for the adoption of a Code of Conduct” in the South China Sea. The two leaders also agreed “to exercise tight control of maritime disputes and not to make any move that can further complicate or expand disputes.” In this regard both sides vowed to make use of hot lines established between their ministries of foreign affairs and ministries of agriculture.
Two months after Premier Li’s visit, Vietnam and China held a plenary meeting of the government-level committee on border and territory issues. This meeting agreed to set up a Working Group to discuss cooperation for mutual development at sea with the first session scheduled for 2014.
Strategic trust may be characterized as a relationship that develops between two states that regularly interact overtime. This results in habits of consultation and greater predictability in the behavior of each side.
China’s decision to deploy a mega oilrig in waters forming part of Vietnam’s Exclusive Economic Zone (EEZ) was unexpected, provocative and, in my professional opinion, illegal, although there is substantial international dispute over this issue. Nevertheless, the actions undermined efforts to build strategic trust between China and Vietnam’s top leaders.
China’s actions were unexpected because there was no palpable provocation by Vietnam that would justify China’s actions. As the above discussion illustrates, the two sides had adopted principles and mechanisms to deal with the most sensitive issue in their bilateral relations.
China’s actions were provocative because this was the first time China had placed an oilrig in the EEZ of another state without its prior permission. Further, the oilrig was accompanied by an armada of People’s Liberation Army Navy warships, Coast Guard vessels and fishing boats. The size of the armada rapidly increased from fifty to over one hundred ships in a few days. China also dispatched military and other aircraft.
When Vietnam responded by sending out its much smaller Coast Guard vessels to confront the Chinese and order them out of Vietnam’s EEZ, China responded aggressively. Its larger ships deliberately rammed Vietnamese ships in an effort to inflict sufficient damage to cause them to retire. Chinese Coast Guard vessels deliberately targeted the radio communications antennae on Vietnamese ships with their high-powered water cannons. Finally, China took the wraps off the cannons and other weapons on their ships and deliberately aimed them at Vietnamese Coast Guard vessels that kept their armaments under cover.
At a minimum, this decision challenges international law. It is quite clear that both Vietnam and China have a legal right to establish EEZs under the United Nations Convention on the Law of the Sea (UNCLOS). It is also clear that these EEZs overlap. In cases like this, international law enjoins both parties to enter into provisional arrangements, refrain from the threat or use of force and not alter the status quo.
China does not recognize that it has a dispute with Vietnam. Official Chinese spokespersons initially claimed that the oilrig is within China’s “territorial waters,” but also state that the rig was 17 nautical miles from Triton Island, and territorial waters only cover 12 nautical miles from a country’s baseline.
On June 8, China’s Ministry of Foreign Affairs released an official statement amending its earlier claim regarding territorial waters and now stated the oilrig was within China’s contiguous waters. At the same time, the spokesman pointed out that the oilrig is some 170 nautical miles from Vietnam. Notably, China’s contiguous zone is a band of water extending from the outer edge of the territorial sea to up to 24 nautical miles, leading to the dispute in question.
According to UNCLOS, however, the sole purpose of the contiguous zone is to enable a coastal state to “exercise control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.”
Without taking sides on the merits of the dispute over sovereignty or sovereign jurisdiction, it is clear that China acted unilaterally in a premeditated assertion of its “sovereign rights.” When there is a dispute, the parties are required under UNCLOS to take provisional measures until it is settled and not to alter the status quo or use the threat or use of force.
Vietnam has adopted a very conciliatory posture. Vietnam has called in vain for the activation of its hot line with China and for China to receive a special envoy to discuss how to manage if not resolve current tensions. The first casualty of the present flare up is strategic trust between Hanoi and Beijing.
Carlyle A. Thayer is Emeritus Professor at The University of New South Wales at the Australian Defence Force Academy in Canberra.
