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Vietnam Promotes ASEAN’s Role in Resolving the South China Sea Dispute

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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

Dr Vo Xuan Vinh is Deputy Director General of Institute for Southeast Asian Studies, Vietnam Academy of Social Sciences, Hanoi. He is the author of books, monographs, chapters and research papers on issues of geopolitics, maritime security, politics and international relations in Southeast Asia, and India’s Look East/Act East Policy. His latest book: Pankaj K Jha and Vo Xuan Vinh (2020). India, Vietnam and the Indo-Pacific: Expanding Horizons. London: Routledge.

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Southeast Asia

50 Years of Clear Skies and Diplomatic Ties

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Authors: Harsh Mahaseth and Archisha Tiwari*

The late Prime Minister of Vietnam Pham Van Dong had remarked in 1980 that the relationship between India and Vietnam was “as clear as a cloudless sky”, and now that the two countries celebrate 50th anniversary of the establishment of diplomatic ties it can be safely assumed that the statement has stood the test of time. Lok Sabha Speaker Om Birla paid an official visit to Vietnam on the invitation from National Assembly Chairman Vuong Dinh Hu from 19th April to 21st April 2022 following Prime Minister Narendra Modi’s phone call with Nguyen Phu Trong, General Secretary of the Communist Party of Vietnam on 15th April 2022. There is a constant reiteration of Vietnam’s role in India’s Act East Policy and its Indo-Pacific Vision which is cemented by bilateral relations in all fields including but not limited to economy, trade, defence and tourism.

History

From ‘Bilateral Relations’ to ‘Strategic Partnership’ to now a ‘Comprehensive Strategic Partnership’ the two countries have always shared close diplomatic ties which is a result of their shared experience of struggle for liberation from foreign rule and national struggle for independence. Despite having different political systems, there has been numerous high level diplomatic visits and India has time and again played a key role in Vietnam whether it was supporting its independence from France and its unification or it’s commitment to provide assistance in advancing Vietnam’s defence in the present decade.

India launched its Act East Policy in the year 2014 where it rightfully recognized the need for economic, strategic and cultural relations with South East Asian countries in the field of connectivity, trade, culture, defence and people-to-people contact. Vietnam is a very vital and strategic partner for India and as commented by Ambassador Pham Sanh Chu, India has become one of Vietnam’s top three partners as a comprehensive strategy partner along with Russia and China, but India and Vietnam’s diplomatic relations are stronger.

India’s Indo-Pacific Vision is positive and inclusive of and nations in its geography and beyond who have a stake in it. ASEAN centrality and unity is an important element of the vision. This is as per the remarks delivered by Saurabh Kumar, Secretary(East), Ministry of External Affairs of the Government of India. Vietnam yet again plays a key role in the region and in India’s vision especially with respect to the area of South China Sea that is currently a contested area with China blatantly violating United Nations Convention on the Law of the Sea and hereby going against India’s vision for the region that aligns with Vietnam’s.

Phone Talks

The telephonic conversation between Prime Minister Narendra Modi and Party General Secretary Nguyen Phu Trong turned out to be very fruitful wherein the Prime Minister requested for greater facilitation of market access for India’s pharma and agri-products in Vietnam and highlighted the historical and civilization links between the two. There was an emphasis on the role of importance of international law when in context of both the current Ukrainian crisis and the situation in South China Sea.

Om Birla’s Visit

There couldn’t have been a more appropriate way to keep the celebratory spirit going than a visit of the Speaker of the Lok Sabha, which also marks the first official visit of India in Vietnam after the COVID-19 pandemic. SD Pradhan in his article aptly recognizes the significance of the meeting and convergence of two law making bodies and their heads who also serve as the representative of their citizens by default. It shows an intermingling of ideas and views of two countries with different political systems. Vuong Dinh Hue, the Chairman of the National Assembly of Vietnam visited India in December 2021 and gave out a three-level action plan: (1) Deepening relations of the two law making bodies. (2) Need for two sides to under one another’s socio-economic development policies and (3) Developing a system of comparing notes on international issues of common concern and to seek solutions to global issues. Om Birla’s visit is a step towards hastening and progressing the proposed plan. There were further considerations given to expansion in areas such as climate change and sustainable development, health care and digital economy. Reiterating the previous phone call and the Indo Pacific Vision, there was a discussion on defence and increase in maritime security with the acquisition of BrahMos by Vietnam being discussed. Dr. Rajaram Panda in his analysis of India-Vietnam comments on how Vietnam considers India a global power and supports India to play a greater role in a muti polar world based on standards of international law.

A very important part of Indian-Vietnam relations is the cooperation on economic policies and trade. India is the most important market for Vietnam accounting got 80% of Vietnam’s total trade with South Asian nations. Om Birla mentioned the desire to increase the bilateral trade to reach US $15 billion from the previous US $13.2 billion while admiring the growth of Vietnam on a variety of economic sectors.

There was a discussion on the partnership in the energy sector with the hopes of renewal of the ONGC Videsh Limited contract for another 15 years. Not only that on a more cultural level, Om Birla also while meeting the Party Secretary Nguyen Van Nen, highlighted the common civilization heritage. The cultural ties are also evident when the topic of tourism was brought up and discussed with an agreement to enhance cooperation in tourism. Speaking of tourism, after the suspension of direct flights between New Delhi and Hanoi in light of the pandemic, the air connectivity was impacted but Birla’s visit restored the connectivity.

Way Forward

Currently the two countries are implementing the 2021-2023 Action Program that aims to implement all the agreements and discussions that took place in the official meets and telephonic conversations. The relationship is a long standing one with deep understanding of each other’s needs and a mutual sense of respect. With a pending invite for the Prime Minister Narendra Modi and policies that expand years, the sky continues to be as clear as it was in 1980.

*Archisha Tiwari is a Research Assistant at the Nehginpao Kipgen Center for Southeast Asian Studies, and a law student at Jindal Global Law School, O.P. Jindal Global University, India. 

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Myanmar: Crimes against humanity committed systematically

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Crimes against humanity continue to be systematically committed in Myanmar, with ongoing conflicts severely impacting women and children, according to a UN report released on Tuesday.

The evidence gathered to date by the Independent Investigative Mechanism for Myanmar (IIMM), which is outlined in its Annual Report, indicates that sexual and gender-based crimes, including rape and other forms of sexual violence, and crimes against children have been perpetrated by members of the security forces and armed groups.

Crimes against women and children are amongst the gravest international crimes, but they are also historically underreported and under-investigated,” said Nicholas Koumjian, Head of the Mechanism.

Deep dive collection

Since starting operations three years ago, IIMM has collected more than three million pieces of information from almost 200 sources, according to the report.

These include interview statements, documentation, videos, photographs, geospatial imagery and social media material.

The report reveals that children in Myanmar have been tortured, conscripted and arbitrarily detained, including as proxies for their parents.

“Our team has dedicated expertise to ensure targeted outreach and investigations so that these crimes can ultimately be prosecuted,” said Mr. Koumjian.

‘Widespread’ violations

According to the publication, “there are ample indications that since the military takeover in February 2021, crimes have been committed in Myanmar on a scale and in a manner that constitutes a widespread and systematic attack against a civilian population” and the nature of potential criminality is also expanding.

This includes the execution by Myanmar’s military of four people on 25 July 2022, which was carried out after the report was prepared.

Perpetrators of these crimes need to know that they cannot continue to act with impunity. We are collecting and preserving the evidence so that they will one day be held to account,” said Mr. Koumjian.

Rohingya

This latest analysis was released just two weeks before the five-year commemoration of clearance operations that resulted in the displacement of nearly one million Rohingya people.

The Rohingyas have faced decades of systematic discrimination, Statelessness and targeted violence in Myanmar’s Rakhine State. Violent attacks in 2017 triggered an estimated 745,000 Rohingya, including more than 400,000 children, to flee to Bangladesh.

Most of the Rohingya who were deported or forcibly displaced at that time are still in camps for refugees or internally displaced persons.

“While the Rohingya consistently express their desire for a safe and dignified return to Myanmar, this will be very difficult to achieve unless there is accountability for the atrocities committed against them, including through prosecutions of the individuals most responsible for those crimes,” Mr. Koumjian explained.

“The continued plight of the Rohingya and the continuing violence in Myanmar illustrate the important role of the Mechanism to facilitate justice and accountability and help deter further atrocities.”

Dedicated work

Meanwhile, with the consent of its information sources, IIMM is sharing relevant evidence to support international justice proceedings currently underway at the International Court of Justice (ICJ) and International Criminal Court (ICC).

The Mechanism was created by the UN Human Rights Council in 2018 to collect and analyse evidence of the most serious international crimes and other violations of international law committed in Myanmar since 2011.

It aims to facilitate justice and accountability by preserving and organizing evidence and preparing case files for use in future prosecutions of those responsible in national, regional and international courts.

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Will Evolving Relation Between Arakan Army and NUG lead To Any Political Change in Myanmar?

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photo: Wikipedia

On May 18, Myanmar’s Civilian National Unity Government (NUG) held an online meeting with the Arakan Army in the Rakhine (Arakan) state. Arakan Army Chief Major General Tuan Mrat Naing and his Deputy Brigadier General Neo Tun Aung spoke for about two hours with Foreign Minister Jin Mar Aung of the shadow government’s coalition relations committee and Democratic leader Wu Min Ko Ning. The NUG is believed to have taken the initiative in an effort to engage with armed groups that could help bring down Myanmar’s military regime. Basically, the current situation in Myanmar and the activities of the shadow government were discussed. This sudden alliance of NUG with the Arakan Army leads to the question: Is the political situation in Myanmar taking a new turn?

The current situation in Myanmar

After the military seized power in Myanmar, the anti-coup resistance group (PDF) and allies of their ethnic armed group have been fighting the junta for more than a year, with Kachin, Karen, Karenni, and Chin ethnic groups, in particular, supporting the PDF. Myanmar’s military has not been able to contain the opposition, despite unwarranted attacks, lawsuits, assassinations and arson. On the contrary, in many parts of the country, the administrative system has collapsed, while their troops are losing due to killing and fleeing in the face of resistance. Resistance groups have, however, also failed to oust the junta or drive it out of their area altogether resulting in neither side having any decisive win yet. On the contrary, around 600,000 people have been displaced since the coup due to the civil war. About 30,000 people have taken shelter in India and 6,000 in Thailand. Though Myanmar’s economic prospects have almost shattered, the military sustains as strongly as its former military rulers. The impact of Western sanctions is negligible as multinational companies from China, Russia, India, Japan, Thailand, and South Korea are doing their usual business. On the other hand, The NUG government is trying to launch its own administrative system in central Myanmar (especially Sagaing, Mandalay and Magway-centric) through its armed forces PDF.

Relations between the Arakan Army and the NUG

Following the coup, in April last year, Aung San Suu Kyi’s party, the National League for Democracy (NLD), formed the NUG as a shadow government with lawmakers and allies of ethnic minorities to challenge the junta’s legitimacy at home and abroad. With the promise of a federal democratic union, if military rule ends, the NUG is trying to build trust with ethnic armed groups (EAOs) to fight the military rule. In this effort, NUG is establishing relations with the Arakan Army. On May 15, NUG issued a statement on the occasion of Rakhine National Day and expressed its condolences to the people affected by the military and political conflict in Rakhine. It has also promised to work with relevant agencies to establish justice. The shadow government sent a message of greetings and worked together on April 10, the 13th anniversary of the founding of the Arakan Army.

However, Aung San Suu Kyi and her party’s relationship with the Arakan Army has not been good in the past. While came into power in 2015, the NLD-led government did not play a significant role in promoting democracy, human rights, and the autonomy of ethnic areas. Even having secured the largest number of seats in the Rakhine state, the NLD refused to allow the Arakan National Party (ANP) to elect a state chief minister. When war broke out in Arakan between the Arakan Army and the Myanmar army in 2018, the NLD clearly sided with the army, which angered the Rakhine people. The NLD administration at the time agreed to the world’s longest Internet shutdown in Rakhine State, branding the Arakan Army as a terrorist organization and canceling elections in large parts of Rakhine State. These steps by the Aung San Suu Kyi government further tempted the Arakan Army to transform its demand for autonomy into a struggle for liberation and independence.

Relations between the Arakan Army and the Military Junta

The post-coup civil war situation spread throughout Myanmar, but the Rakhine state was an exception. A ceasefire agreed upon between the Military and the Arakan Army in November 2020 has kept the region relatively calm ever since. The Arakan Army has discouraged mass protests against the coup, and the Rakhine state remains relatively peaceful while other parts of the country were engulfed in violence. As a result, while the military was busy suppressing resistance across the country to consolidate its power, the political wing of the Arakan Army, the United League of Arakan, established administrative control over two-thirds of the state (especially rural areas) and introduced its own tax system and judiciary. To ensure stability in Rakhine, the junta also, as part of its political and military strategy, withdrew the Internet blackout in Rakhine and withdrew the Arakan Army from the list of terrorist organizations after the coup, and released many political prisoners associated with it.

But, the Arakan Army’s recent reluctance to meet directly with junta chief Min Aung Hlaing and its currently evolving relational proximity to the NUG has made the military rethink its strategic and operational orientations toward the armed group to some extent, prompting the military to step up security in Rakhine and urge locals not to contact the Arakan Army. In response, the Arakan Army is also threatening the head of the Myanmar Army’s Western Command, accusing it of interfering in internal affairs. There have also been a few minor clashes between the two forces, such as an exchange of fire, signaling likely future disability.

Change on Course

Although the Arakan Army has not yet institutionalized a dream of independence of independent Arakan, they are committed to gaining autonomy. And the Arakan Army has an endless opportunity to gain international support by involving the Rohingya in gaining autonomy purposefully demonstrated by Arakan Army Chief General Tuan Mrat Naing while making positive comments in favor of Rohingya repatriation and civil rights to the Rohingya. NUG has already announced that it will return civil rights to the Rohingya, with the implicit intent of gaining international recognition. It has even supported the ongoing jurisdiction in the International Court of Justice on the ethnic cleansing campaign of the Myanmar army against the Rohingya.

The Myanmar army has been pursuing a policy of procrastination with respect to the Rohingya repatriation, effectively to gain the support of the Bamar tribe in line with its long-standing policy of feeding Buddhist Nationalism for political scores. However, the experience of the Bamar people being persecuted by the junta in the post-coup period has created an anti-military attitude in the Bamar tribe itself. Now the military is hanging the Rohingya repatriation issue as a trump card in the international arena though they have the potential for international sympathy by repatriating the Rohingya.

 If the Arakan Army changes its current silent stance in favor of the NUG, the landscape of Myanmar’s internal politics may change. Realizing that, NUG is trying to gain the support of the Arakan Army. Now evolving relational proximity between the Arakan Army and NUG will likely invigorate the already growing collective resistance further against the oppressive Junta regime. With the potential for further change in the already complex political landscape in Myanmar, now the question is:  How much will the military Junta change its current policy orientation, be it to the people’s democratic aspiration or rights to the Rohingya minorities?  

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