The year 2022 marks the 40th anniversary of the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). Vietnam was one of 117 countries signed the Convention on the first day. As a coastal state, Vietnam considers UNCLOS as an important legal document because it provides a comprehensive legal framework for ocean governance, and clearly sets out the limits on the territorial sea, contiguous zone, Exclusive Economic Zone (EEZ) and continental shelf. However, due to the fact that UNCLOS does not address disputes among states over sovereignty or disputes over maritime delimitation,[i] therefore protecting sovereignty and jurisdiction in the South China Sea (Vietnam calls the East Sea) through international court systems is less effective. Hence, one of Vietnam’s options to protect its sovereignty, sovereign rights and jurisdiction in the South China Sea is to internationalize the dispute through the Association of Southeast Asian Nations (ASEAN). After China used of force to invade the features managed by Vietnam in the Spratly Islands in 1988, ASEAN issued the Declaration on the South China Sea in 1992 which emphasizes the necessity to resolve all sovereignty and jurisdictional issues pertaining to the South China Sea by peaceful means, without resort to force, and urges all parties concerned to exercise restraint with the view to creating a positive climate for the eventual resolution of all disputes.
Since becoming a ASEAN member in 1995, Vietnam has actively worked with other countries in ASEAN to protect its sovereignty, sovereign rights and jurisdiction in the South China Sea. Firstly, Vietnam has made efforts to bring the South China Sea issue back in the Chairman Statements of the ASEAN Summits after a number of years the issue was “forgotten”. In fact, after ASEAN and China signed the Declaration on the Conduct of Parties in the East Sea (DOC) in 2002, the way of settling disputes in the South China Sea was not mentioned in the Chairman Statements of the Summits in some years later. Even in three ASEAN Summits of 2007, 2008, and 2009 respectively, the South China Sea issue was not mentioned in the Chairman’s statements. Most notably, the Chairman’s Statement of the 15th ASEAN Summit (October 2009) did not mention the South China Sea either, although before that China officially tabled its nine dash-line map to the UN Commission on the Limits of the Continental Shelf and claimed “historic rights” to a large part of the South China Sea which has been regarded as the prime source of tension in the South China Sea ever since.[ii] Faced with the challenge, as the rotation Chair of ASEAN in 2010, Vietnam actively persuaded and won the consensus of all member countries to include the South China Sea issue in the Chairman’s Statement of the Summit. The 2010 Hanoi Declaration emphasizes the principles of settling disputes through peaceful solutions, in accordance with widely recognized principles of international law including UNCLOS 1982 and relevant international laws. The statement also emphasizes the realization of the Code of Conduct (COC) in the South China Sea.
Secondly, Vietnam has actively built and proposed a common awareness among ASEAN member states on principles and methods of settling disputes in the South China Sea. The Singapore Declaration of the 4th ASEAN Summit in 1992 states that the workshops on the South China Sea held in Bali in 1990 and Bandung in 1991 were external and intra-ASEAN dialogues on ASEAN security cooperation. After China used force to occupy Mischief Reef in February 1995, the South China Sea issue was included in the Bangkok Summit Declaration released at the 5th ASEAN Summit held in December 1995, which emphasizes that “ASEAN shall seek an early, peaceful resolution of the South China Sea dispute and shall continue to explore ways and means to prevent conflict and enhance cooperation in the South China Sea consistent with the provisions of the TAC and the ASEAN Declaration on the South China Sea of 1992 as well as international law including the United Nations Convention on the Law of the Sea”. The Press Statement of the First Informal ASEAN Heads of Government Meeting mentioned of the South China Sea issue as the 1995 Bangkok Summit Declaration did. Unfortunately, the word “the South China Sea” did not appear in the Press Statement of the Second ASEAN Informal Meeting of Heads of State/Government of the Member States of ASEAN, held in Kuala Lumpur in December 1997. However, when Vietnam hosted the ASEAN Summit in 1998, there were new important points regarding the South China Sea issue. Instead of prioritizing a solution based on the TAC and ASEAN Declaration on the South China Sea in 1992, and international law was ranked last, the 1998 Hanoi Declaration underlines the importance of the international laws especially the 1982 UNLOCS by stating that “We shall promote efforts to settle disputes in the South China Sea by peaceful means in accordance with international law, including the 1982 United Nations Convention on the Law of the Sea, and in the spirit of the 1992 ASEAN Declaration on the South China Sea”. The Hanoi Declaration also called on all parties concerned to exercise restraint and to refrain from taking actions that are inimical to the peace, security and stability of Southeast Asia and the Asia-Pacific region. This spirit was further recognized in the 2010 ASEAN Chairman’s Statement when Vietnam assumed the ASEAN Chair. These principles and methods of maintain peace and stability in the South China Sea which was stated in the 1998 Hanoi Declaration have later become the core elements of the South China Sea issue in most of Chairman’s Statements of the subsequent ASEAN Summits.
Thirdly, Vietnam has been making efforts to unite ASEAN in the South China Sea issue. After ASEAN Foreign Ministers’ Statement on the Current Developments in the South China Sea released in Myanmar in May 2014 as a grouping’s response to China’s placing of an oil-rig in the EEZ and continent shelf of Vietnam, ASEAN’s collective spirit has been somewhat affected, at least through the bloc’s Chairman’s Statement of the summits. Although still expressing the mutual position of all member states of ASEAN, phrases such as “some leaders”, “some ministers” have appeared instead of “We” in joint communiqué of Foreign Minister Meetings and Chairman’s Statements of ASEAN Summits thereafter when mentioning of the South China Sea issue. This reflected the challenges of the bloc’s solidarity. The 48th ASEAN Foreign Minister’s Communiqué (2015) states that “We took note of the serious concerns expressed by some Ministers on the land reclamations in the South China Sea, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the South China Sea”. In the same year, Chairman’s Statement of the 27th ASEAN Summit when mentioning of the South China Sea issue states that “We shared the concerns expressed by some Leaders on the increased presence of military assets and the possibility of further militarization of outposts in the South China Sea”. The same situation continued in the Chairmanships of Laos (2016), the Philippines (2017), Singapore (2018), and Thailand (2019).
However, things were different under the Chairmanship of Vietnam in 2020. By the 36th and 37th ASEAN Summit held virtually, ASEAN member states reached high consensus when the term ‘we’ was completely used when the South China Sea issue is mentioned in the Chairman’s Statements. The 36th Chairman’s’ Statement writes: “We discussed the situation in the South China Sea, during which concerns were expressed on the land reclamations, recent developments, activities and serious incidents, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region”. Unfortunately, under Brunei Darussalam’s ASEAN Chairmanship in 2021, the term “by some ASEAN Member States” appeared again when the statement mentioned of the situation in the South China Sea.
Fourthly, since the Permanent Court of Arbitration (PCA) issued a ruling on the case between the Philippines and China on the South China Sea issue in 2016, ASEAN Chairman’s Statements from 2017 to 2019 still urged to resolve the South China Sea dispute by peaceful means, consistent with international law, including UNCLOS 1982, but for various reasons, the determination of the legal status of features, sovereign rights and jurisdiction of countries in the South China Sea had been completely absent. However, under the Chairmanship of Vietnam in 2020, ASEAN as a grouping “reaffirmed that the 1982 UNCLOS is the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones, and the 1982 UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out”. In other words, through the 36th ASEAN Chairman’s Statement, ASEAN as a grouping has indirectly supported the 2016 ruling of the PCA.
Last but not least, on the negotiation to build COC has encountered obstacles and difficulties because ASEAN countries for their own interests have different views on the code’s dispute settlement mechanism. By the 35th ASEAN Summit in Thailand (2019), ASEAN member states could only agree to build an effective and substantive COC. Only to the 36th ASEAN Summit, under the chair of Vietnam, ASEAN has made great progress in that since ASEAN member countries openly supported for the early conclusion of an effective and substantive Code of Conduct in the South China Sea (COC) consistent with international law, including the 1982 UNCLOS.
In short, although ASEAN operates on the principle of consensus, it is clear that the ASEAN Chair Statements in recent years refer to principles and methods of dispute settlement based on international law or building COC consistent with international law, including UNCLOS. To date, ASEAN is only a regional grouping that the South China Sea has been internationalized. Therefore, Vietnam has always considered ASEAN as the most important regional mechanism for internationalizing the South China Sea issue in order to protect its legitimate interests in the sea.
[i] UNCLOS provides an effective mechanism for peaceful resolution of maritime disputes, Vietnam Law and Legal Forum, 10 May 2022, https://vietnamlawmagazine.vn/unclos-provides-an-effective-mechanism-for-peaceful-resolution-of-maritime-disputes-48566.html
[ii] UNCLOS provides an effective mechanism for peaceful resolution of maritime disputes, Vietnam Law and Legal Forum, 10 May 2022, https://vietnamlawmagazine.vn/unclos-provides-an-effective-mechanism-for-peaceful-resolution-of-maritime-disputes-48566.html
