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Vietnam and the Code ofConduct for the South ChinaSeaNguyen Hong ThaoPublished online: 29 Oct 2010.

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Ocean Development & International Law, 32:105–130, 2001Copyright ã 2001 Taylor & Francis0090-8320/01 $12.00 + .00

Vietnam and the Code of Conductfor the South China Sea

NGUYEN HONG THAO

Faculty of LawUniversity of HanoiHanoi, Vietnam

This article portrays and characterizes the Vietnamese position toward the settle-ment of the island disputes in the South China Sea. The situation in the South ChinaSea has become more complicated since 1988 when China made its steps toward theSpratlys. After analyzing the situation in the South China Sea, the author empha-sizes the need to have a code of conduct for this disputed area.

Keywords Law of the Sea, South China Sea disputes, code of conduct, Vietnam

Introduction

In March 2000 negotiations between ASEAN and China for a new code of conduct inthe South China Sea were conducted in a tense atmosphere. China and the Philippinesaccused each other of infractions respecting the sovereignty of Scarborough shoal whenChinese fishing ships were driven away by the Philippines navy.1 This clash occurred atthe moment when the Philippines was conducting a regular military exercise with theUnited States. These two countries had just renewed their treaty on mutual defense.China was warned against possible military exercises and patrols in this area.2

China and three member countries of ASEAN, Vietnam, the Philippines, and Ma-laysia, have claimed all or a large part of the Spratly island area. Another memberof ASEAN, Brunei, has certain interests in the Spratly area. There is another conflict,over the Paracel islands, between Vietnam and China. In addition, Taiwan has claimsto the Paracels and Spratlys. Conflicts over these islands located in the middle of theSouth China Sea have almost become ordinary events. Can we prevent these conflictsfrom escalating into a war that would affect the peace, security, and stability of theregion? What is the future of the code of conduct? The answer to these questionsdepends on the attitudes of the concerned countries, including Vietnam. The Viet-namese effort in building a code of conduct for the conflict area will be described in thisarticle.

Received 21 August 2000; accepted 12 November 2000.Address correspondence to Nguyen Hong Thao, 103 Quan Thanh, Hanoi, Vietnam. E-mail:

hongthao22@hotmail.com or vinh@cori.ac.vn

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106 N. H. Thao

The Need for a Code of Conduct

The Situation in the South China Sea

Since 1974 the Paracel islands have been occupied by China. After the infamous 14March 1988 naval skirmish between China and Vietnam in the Spratly area, China man-aged to get a foothold in the Spratly islands as well. The situation in the South ChinaSea became more tense. Claimant parties have reacted by increasing their occupationareas.

On 25 February 1992, China passed a Law on the Territorial Sea and ContiguousZone,3 which asserted its ownership over the Paracel and Spratly archipelagoes and mostof the South China Sea. In this law, China reserves the right to use force to impose itssovereignty over the islands as well as its claimed territorial seas. In May 1992, Chinasigned an agreement with a small American company named Crestone Energy Corpora-tion for oil and gas exploration and exploitation in the area of Tu Chinh bank located onthe continental shelf of Vietnam. On 5 May 1992, a spokesperson of Vietnam’s ForeignMinistry emphasized that the Tu Chinh area “lies fully” within Vietnam’s exclusiveeconomic zone (EEZ) and continental shelf and that this area is not part of the disputedarea. On 10 May, a spokesperson of China’s Foreign Ministry reacted negatively bysaying that “The Blue Dragon sea area belongs to the adjacent waters of the Nanshaislands” and that the exploration contract signed by Vietnam and American MobilOil Company in the Blue Dragon oil field was “illegal.”4 Vietnam again stated that theareas of Tu Chinh and Thanh Long (Blue Dragon) were located within Vietnam’s EEZand continental shelf and were thus entirely under Vietnam’s sovereignty. It was as-serted that Vietnam has “the sovereign right to explore and exploit natural resources inthese areas which are in no way related” to the Spratlys archipelago or its adjacentwaters.”5

On 15 May 1996, China took a new step forward by unilaterally drawing straightbaselines (from which the breadth of territorial sea is measured) around the Paracelislands. China’s establishment of these baselines around the Paracel (Hoang Sa) archi-pelago seriously violates the territorial integrity of Vietnam.6 Putting aside the issue ofterritorial sovereignty, China’s drawing of the baselines for the Hoang Sa archipelago isnot in conformity with the provisions of the 1982 United Nations Convention on theLaw of the Sea (UNCLOS). China has applied the method of drawing baselines forarchipelagic states to establish baselines for an offshore archipelago of a continentalstate, which is unacceptable within international law. The Chinese action has led toprotests not only from Vietnam, whose interests are directly affected, but also from theUnited States, Japan, Indonesia, the Philippines, and others. These countries appear tobe worried that China may apply this straight baseline method to the Spratly islands andthus cause further complications for a dispute that is already not simple.

Since 1995, China and the Philippines have been involved in a conflict over VanhKhan (Mischief Reef) in the eastern part of the Spratly archipelago, 135 nautical milesfrom Palawan. The conflict has been extended to Scarborough shoal. The Philippinesfiled a strong protest with China, accusing it of sending armed naval ships and cargovessels to Mischief Reef to strengthen Chinese structures in the area, which Manila saysis within Philippine territory. China said the structures were shelters for fishers anddismissed the Philippine accusations. It also said it was within its rights to reinforce thestructures, saying they had been damaged by exposure to the elements.7 In 1998–1999,the Philippines proposed to China to remove the constructions or transfer them to Phil-ippines’ management and proposed that the two countries could use them in common

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Vietnam and the Code of Conduct for the South China Sea 107

for civilian purposes.8 However, these propositions were rejected by China. Accept-ing that “these constructions should be used for civilian purposes,” China said thatthe construction work had not been completed and that time was not ripe for commonutilization. 9

On 2 March 1998, according to the China News Agency, a satellite receiving sta-tion was established on Woody Island (in the Paracel archipelago) designed to “extendthe security set of China more than 300 km to the south of Hainan Island” and “to helpChina in repressing crimes involving arms and drug trafficking as well as smuggling inthe South China Sea.”10 Telecommunication facilities have also been set up on somefeatures in the Spratly and Paracel islands.11 In April 1998, China launched a project tomake Woody Island a tourist base for Hainan province. On 26 June 1998, China passedthe Law on the Exclusive Economic Zone (EEZ) and Continental Shelf. The interpreta-tion of Articles 4 and 14 of this law shows that the historic right claimed by China willcover the EEZ and continental shelf of other countries such as Japan, Vietnam, thePhilippines, Malaysia, Brunei, and Indonesia, and will inevitably cause conflicts.12

From 1 June to 31 July 1999, a prohibition on fishing in the South China Sea waslaunched by China. This prohibition was renewed in 2000.13 The prohibitions on fishingcan be understood as measures to extend Chinese influence by asserting that Chinacontrols its fishers’ activity in all waters of the South China Sea, even those areas underthe jurisdiction of other South China Sea coastal countries. The unilateral prohibitionson fishing in the disputed area constitute a new challenge and call for a reaction fromthe other countries in the region. In August 2000, the Peoples Republic of China (PRC)Garrison on Fierg Cross erected a market to commemorate the PRC move into the Spratlyscommenced in 1988.14

In June 1999, Malaysia, which occupies Erika and Investigator Reefs in the Spratlyarea,15 launched an advertisement campaign for tourism on the occupied sites. On 28June 1999, Vietnam sent a diplomatic note to Malaysia accusing it of firing on Vietnam-ese fishing boats passing through the area. In October 1999, the Philippines strength-ened their forces and air survey capability respecting the Spratly area. Vietnam protestedto Manila respecting low-flying Philippines military aircraft over Vietnamese island po-sitions in the Spratlys, which had resulted in the forces stationed there firing warningshots.16 According to Senator Rodolfo Biazon, President of the Security and DefenseCommittee of the Philippines Parliament, the action by the Philippine pilot was provoca-tive and the Vietnamese forces were not guilty when they fired warning shots towardthe aircraft flying 120 feet above their heads.17

In 1995 Vietnam accused “Taiwan of firing on Vietnamese transport ships that camenear the largest of the Spratlys.”18 On 31 December 1998, a new Taiwanese law on thebaselines was passed. The Spratly archipelago was officially included in the administra-tive map of Taiwan.19

The claimant states in the South China Sea have taken numerous actions that havecomplicated the tense situation: using military force, occupying and fortifying rocks,creating structures and markers, creating scientific research stations of sorts, setting upmarkers, incorporating rocks into nearby provinces, publicizing maps showing their re-spective claims and releasing “historical documents” to back up these claims, allowingtourists and journalists to visit the rocks, granting concessions to oil companies, arrest-ing fishermen, and creating a “tourist resort” complete with hotel and airstrip.20

The situation became so strained and complicated that it created a need for specificmechanisms to restrain any military actions that could escalate and involve the countriesin hostilities.

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108 N. H. Thao

There are various potential conflicts in the South China Sea. Some of them arebilateral, others are multilateral in nature. Complicated issues arise not only for the coun-tries involved in the disputes but also for other countries in the region, as well as for theregion as such. The interests and interference of nonregional states can lead to evenfurther complications. Beyond disputes over sovereignty, there are disputes on maritimedelimitation and other legal matters such as marine scientific research, marine protec-tion, antipiracy and antismuggling. As long as the disputes over sovereignty to rocksand islets have not been resolved, the other disputes cannot be settled completely. Coop-eration in some less sensitive fields can be carried out only when claimants have acertain confidence and accept a common conduct in the South China Sea.

Ali Alatas, Foreign Minister of Indonesia stated at the Ninth Workshop on Manag-ing Potential Conflicts in the South China Sea, held in Indonesia on 1 December 1998:

Recent events in the South China Sea have once again clearly demonstratedthe need for more Confidence-Building Measures (CBM) between and amongthe South China Sea claimants. We are also trying to promote adoption of acode of conduct that stipulates what things they need to do and what theyshould avoid doing.21

The situation demands a reduction in hostilities and improved confidence through co-operation in the building of a code of conduct for the countries of the South China Seawith the purpose of creating an atmosphere of security and stability in the region.22

Approaches to Dispute Resolution

The settlement of disputes by peaceful means is an international obligation, customaryand treaty, for all parties. At the ASEAN Regional Forum (ARF) meeting in July 1994,China committed itself to settling any dispute over the Spratly archipelago with Vietnamon the basis of peaceful negotiations. In 1995 China agreed to discuss with the ASEANcountries the dispute over the Spratly archipelago. China hosted a meeting on confi-dence-building measures in Beijing in March 1997. In July 1999, ASEAN and Chinaagreed to consider principles of a code of conduct for the South China Sea. It is time tofind a solution to hinder further complications of the situation.

The disputes in the South China Sea are territorial; they concern both sovereignty toislands and maritime delimitation. Maritime zones will be delimited definitively onlywhen the territorial sovereignty disputes over rocks and islets have been settled. Territo-rial conflicts are hard to solve, thus many approaches are being discussed with the goalof putting aside the question of sovereignty.

Approaches Based on the 1982 United Nations Convention on the Law of the Sea. Allthe claimants declare that they are ready to resolve the disputes in the South China Seaon the basis of international law, particularly the 1982 LOS Convention. China, Viet-nam, the Philippines, Malaysia, Brunei, Indonesia, Singapore, and Laos are parties tothe LOS Convention. Taiwan is not eligible to be a party. However, the Conventioncontains many customary international law rules that apply to Taiwan. The Conventionalso provides a mechanism for the settlement for maritime disputes, but the mechanismdoes not have automatic application to territorial disputes.23

One of the major uncertainties in the LOS Convention is the provision on islandstatus. Article 121 (3) says that “rocks which cannot sustain human habitation or economic

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Vietnam and the Code of Conduct for the South China Sea 109

life of their own shall not have an exclusive economic zone or continental shelf.”Claimants have different views on the application of Article 121 (3) to the features in theSouth China Sea. Some consider that the Spratly islets cannot generate an exclusiveeconomic zone or a continental shelf. Others suggest that some of the features in the regionthat are above water at high tide can generate more than just territorial waters.24 Theposition of China seems to be that all the features of the Paracels and Spratlys generateextended zones. Their claim on Tu Chinh bank must be based on this view. The Philip-pines and Malaysia would no doubt be pleased if rocks and islets had only a 12 nauticalmile territorial sea and the waters beyond 12 nautical miles were under the managementof adjacent countries; China and Vietnam would be less willing to yield their claims to thesewater areas after having continually reaffirmed their sovereignty to the extended waters.Although the islands cannot sustain human habitation or have an economic life of theirown, the 1982 LOS Convention cannot prevent states from extending their maritime zoneclaims to areas around rocks and islets to which they claim sovereignty.

The limitations of the law of the sea and international law are such that they willnot “provide a mechanism and framework for resolving the dispute.”25 However, the lawof the sea can serve as a point of departure.

Approaches Using a Tribunal or Agency. Southeast Asia is known as a region with atradition of nonadjudication. However, this tradition has undergone some importantchange. On 6 September 1994 Malaysia and Singapore agreed to submit their disputeover Batu Putih Island to the International Court of Justice (ICJ). In May 1998, Indone-sia and Malaysia brought to the ICJ their conflict over Sipadan Island and Ligitan Reef.However, for multilateral disputes such as the Spratlys dispute, the question is morecomplicated. First, matters can only be referred to the ICJ if all parties agree. At present,only the Philippines recognizes the Court’s compulsory jurisdiction but not for disputesregarding the Kalayaan Area.26 Recently, the Philippines expressed an intention to bringthe Spratly dispute before the United Nations. On 1 April 1999 China rejected the Phil-ippine proposition to submit their islands’ dispute to any agency or tribunal.27 Chinadeclared that the dispute should be settled through bilateral negotiations. Second, the ICJonly has jurisdiction to resolve legal disputes. However, a resolution of the disputesover the Paracels and Spratlys involves and must satisfy political, economic, social, andlegal concerns. Disputes over maritime delimitation could be brought to the Inter-national Tribunal for the Law of the Sea in Hamburg; however, without the mutualconsent of all parties, obstacles exist to using the Tribunal.

Relevance of the Antarctic System. A Treaty for the Spratly Area has been drafted by Dr.Mark J. Valencia using the Antarctic Treaty as a model.28 In response to the continuingpresence of Chinese fishers in the disputed area, in February 2000, Philippine DefenseMinister Oliver Mercado proposed a treaty that would proclaim the Spratly archipelago asa common fishing ground for all claimants. Such a Spratly Treaty could be built on themodel of the Antarctic Treaty, which declares that the Antarctic resources are commonfor exploration and exploitation.29 Though a well-intended proposal, it may not easilybe applied to the Spratlys. By contrast to the Spratlys, Antarctica is free from militaryoccupation. Can the claimants agree to withdraw their forces and demilitarize the Spratlyarea? What would then secure their claims? Asking the states to withdraw their troopsfrom the South China Sea islands would be a futile exercise in the absence of sometype of equitable trade-off.30 While the balance of fishing capacity is in favor of China,would the Philippine common fishing area proposition bring new equality?

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Joint Development Proposed by China. In August 1990, in Indonesia, Prime Minister LiPeng presented the idea of putting disputes aside and applying joint development. Hisslogan was rapidly adjusted to, “China’s sovereignty, putting disputes aside and havingjoint development,” and is propagandized broadly and noisily by China.31 In fact, thisproposal serves to legitimize the illogical sovereignty claim of the “nine dotted nationalboundary line” which encloses over 80% of the surface of the South China Sea.32 Itis apparent that “the sovereignty in the South China Sea belongs to China” is the premisefor all Chinese solutions, including joint development. The Chinese joint developmentformula has been described by Buszynski as foreign participation in the developmentand exploitation of Chinese resources lying on the continental shelves of other coun-tries.33 It should be noted that China has never proposed the exact scope of the jointdevelopment, or the area, form, content and governing mechanism for joint development.The policy of joint development proposed by China is not consistent but selective. Thejoint development proposal does not cover the Paracels that China has illegally annexedby force. Actually, the joint development idea aims at the areas that, in accordance withinternational law, are under the jurisdiction of other countries, such as the Tu Chinh areaof Vietnam or the Natuna area of Indonesia, but not at the Spratlys or Paracels.34

Sharing the Resources. In the book titled Sharing the Resources of the South China Seaby Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, several models are givenfor allocation of the Spratly area based on the original extent of claims, the coastalgeneral direction line lengths, and the position of occupied islands.35 These models en-courage parties to maintain their ultimate claims because the resources would be shareddepending on the extent of all claims. Some of the scenarios are built on the basis of the“nine dotted national boundary line” claimed by China and criticized by most states andscholars.36 Any express or unclear acceptance of the “nine dotted line” will be misunder-stood as a de facto recognition of the Chinese claim.

Condominium. The claimants could establish a South China Sea Institute for MarineResources Management (SCIMARE) or Spratly Authority for a condominium manage-ment of the area.37 Another idea, to establish MARICONSUL (Maritime ConsultativeCouncil for the South China Sea), was advocated at the Workshop on Managing Poten-tial Conflicts in the South China Sea in Bandung in 1991.38 These proposals are directedprimarily at management of resources and at putting aside the sovereignty question.They originated from the view that the cause for the disputes over the two island groupsis the assumed natural resources around them. In reality, the sovereignty disputes havebeen going on since the beginning of the 20th century and are not only over resourcesbut over strategic positions in the South China Sea. The disputes are caused by nationalsecurity concerns that would arise if the mainland coasts were exposed to attacks fromforeign naval bases in islands under foreign control. The sovereignty disputes havestirred up strong nationalist sentiments, as they so often do. Mark J. Valencia hassuccinctly stated:

The disputes are not primarily about oil but rather about the strategic signifi-cance of the islands and the sovereignty claims thereto. . . . It should also beremembered that the claimants are countries, not oil companies. Countriesmust and do think long-term and multi-dimensional, particularly when “ter-ritory” is involved. Thus, it is doubtful that the claimants would dampentheir disputes simply because the oil potential may be modest.39

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Vietnam and the Code of Conduct for the South China Sea 111

The disputes involve national pride and it is not easy to gauge the parties’ attitudes. Theabove-mentioned proposals are not realistic when distrust continues to exist among theparties. The different positions of the parties could perhaps be reconciled when con-fidence replaces clashes and the war of diplomatic note exchanges.

Vietnamese Position on the Settlement of Disputes

Stretching out along the South China Sea and having borders with several countries,Vietnam is a country with numerous boundary disputes to be settled. In the north,Vietnam needs to resolve the questions of a land boundary and a maritime delimitationin the Gulf of Tonkin with China. In the south, Vietnam has disputes with Kampuchea,Thailand, Malaysia, and Indonesia. In the east, there is a conflict over the Paracels andSpratlys.

Vietnam holds the position that all disputes should be settled through peacefulmeans. Concerning this issue, Clause 7 of the 12 May 1977 Declaration of the SocialistRepublic of Vietnam (SRV) on the Territorial Sea, the Contiguous Zone, the EEZ andthe Continental Shelf of Vietnam clearly states: “The Government of the Socialist Re-public of Vietnam shall, together with the concerned countries through negotiations onthe basis of mutual respect of independence and sovereignty, in compliance with inter-national law and practices, resolve the issues relating to the maritime zones and thecontinental shelf of each side.”40

The Vietnamese position has been proven by practice. Vietnam and Malaysia con-cluded a Memorandum of Understanding of 5 June 1992 on applying a joint exploitationregime for their overlapping area in the Gulf of Thailand. A bilateral commercial arrange-ment was achieved by Petrovietnam and Petronas on 9 July 1992. Five years from theconclusion of this commercial arrangement, the first petroleum was extracted fromthe Bunga Kekwa field.41 On 9 August 1997, in Bangkok, an Agreement on the Delimi-tation of the EEZ and Continental Shelf between Vietnam and Thailand was signed, there-by putting an end to a dispute that had existed for more than a quarter of a century.42

On 30 December 1999, Vietnam overcame the biggest obstacle in its relationshipwith China through the Agreement on the land border.43 Moreover, the two sides agreedto settle the question of the Gulf of Tonkin in 2000. This was accomplished on 25December 2000 through the Agreement on the Delimitation of Territorial Seas, Exclu-sive Economic Zones and Continental Shelves in the Gulf of Tonkin (Bac Bo) and thebilateral Agreement on Fishing Cooperation in the Gulf of Tonkin (Bac Bo). For othercountries, such as Kampuchea and Indonesia, it can be seen that Vietnam has beenactively carrying out negotiations to settle existing disputes as quickly as possible.

In the relationship with China, even after having been attacked illegally by force inMarch 1988, Vietnam has persistently tried to find a peaceful solution. The diplomaticnotes of 17, 23, and 26 March and 25 April 1988 from the Ministry of Foreign Affairsof Vietnam to the Chinese Ministry of Foreign Affairs continually repeated the proposalof nonutilization of force and an opening of negotiations. The aspiration of settlingbilateral disputes through negotiations was expressed clearly in the Vietnam-China JointDeclarations of Leaders of the two countries on 10 November 1991, 4 December 1992,22 November 1994, and November 1995; by an official friendship visit by Prime Minis-ter Li Peng at the Eight National Congress of the Vietnam Communist Party (VCP) on28 June 1996; by Secretary-General of the VCP Do Muoi in July 1997; and by Prime-Minister of Phan Van Khai on 19 October 1998. Finally, Party General Secretaries LeKha Phieu and Jiang Zemin stated in the joint declaration of 25 February 1999:

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The two sides agree to place the primary issues foremost, show sympathyand compromise with each other, conduct fair, rational and friendly consul-tations, and taking into account international law and reality, try to satisfac-torily settle the outstanding territorial and border issues between the twocountries through peaceful negotiations. The two sides express their determi-nation to accelerate the process of negotiations and raise their working effi-ciency for concluding the treaty on the land border in 1999; to completesettlement of the maritime delineation of the Gulf of Tonkin in 2000; and tojoin efforts in making their common borderline one of peace, friendship andstability.44

The agreement on fundamental principles for settling the boundary and territorialdisputes between the PRC and SRV, signed in Hanoi on 19 October 1993, stipulated:

The two sides express their determination to accelerate the process of nego-tiations to settle sooner the boundary and territorial questions, both land andmaritime. Pending negotiations, the two sides have not carried out any activ-ity to complicate disputes, to use force or threaten by force. The two sidesagree to settle the boundary and territorial questions on the basis of recog-nized international law and practices.45

Finally, the Joint Vietnam-China statement for comprehensive cooperation of 25 De-cember 2000 said that:

The two sides agreed to maintain the existing negotiation mechanisms onmarine issues and to persist in seeking a fundamental and everlasting solu-tion acceptable to both sides through peaceful negotiations. Pending thatsolution, the two sides will, in the spirit of tackling easier issues beforedifficult ones, actively explore possibilities and measures for cooperating inenvironmental protection, meteorology, hydrology, disaster prevention andmitigation. At the same time, they will not take actions to complicate oraggravate disputes, nor will they resort to force or threat of force. They willconsult each other in a timely manner in case of disputes and adopt a cooland constructive attitude to handle them properly in order not to allow dis-putes to impede the normal development of bilateral ties.

In the relationship with the Philippines, the two sides have agreed on these basic points:

1. The territories of the Republic of the Philippines and the SRV are not allowedto use a third party as the base of hostile acts against the other country.

2. The Republic of the Philippines and the SRV do not resort to force for settlingany dispute; the unique way to a solution is negotiations.

3. The Republic of the Philippines and the SRV are friends forever.46

On 29 March 1990, Vietnam and the Philippines exchanged views in Manila aboutextending bilateral political and economic exchanges, as well as measures for reinforc-ing security, stability, and peace in the region.47

The Joint Statement on the Fourth Annual Bilateral Consultations between the SRVand the Republic of the Philippines in November 1995 reaffirmed that the two sides

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Vietnam and the Code of Conduct for the South China Sea 113

“shall settle all disputes relating to the Spratlys through peaceful negotiations in thespirit of friendship, equality, mutual understanding and respect.”48

In September 1983, when the troops of Malaysia landed on Swallow Rock, Viet-nam and Malaysia agreed to settle their claims over islands, islets, and shoals in theSouth China Sea through negotiations.49

Regarding the settlement of the disputes in the South China Sea, the position ofVietnam has been consistent:

Vietnam has full historical evidence and legal grounds to prove its indisput-able sovereignty over Hoang Sa and Truong Sa archipelagoes. Vietnam holdsthe consistent view that a fundamental and long-term solution to disputes inthis area should be reached through bilateral and multilateral negotiationsamong parties directly concerned. While actively accelerating negotiationsfor such a solution, all related parties should exercise self-restraint, refrainfrom taking any action that may further complicate the situation, from usingforce or threatening to use force, and fully respect international law, espe-cially the 1982 UNCLOS.50

Since 1988, Vietnam has stood ready and willing to solve the maritime disputeswith its neighboring states through peaceful negotiations on the basis of observance ofinternational law in order to achieve an equitable solution for the involved sides andthus contribute to the preservation of peace, stability, and development in each countryand in the region at large. Moreover, Vietnam has been willing to implement measuresto build trust and confidence, to exercise self-restraint, to avoid occupation of presentlyunoccupied islands and other features, and to negotiate respecting the status quo. All ofthese are premises for a code of conduct in the South China Sea. In this spirit, Vietnamhas supported the 1992 ASEAN Manila Declaration on the South China Sea. In Novem-ber 1995, Vietnam signed a document with the Philippines containing eight principlesof code of conduct, which incorporates a firm mutual commitment of both states topromoting bilateral and multilateral efforts to find a long-term solution to the variousdisputes in the South China Sea.

The Code of Conduct in the South China Seaand the Vietnamese Position

The Development of the Code of Conduct

A code of conduct with confidence-building measures (CBMs) must be a first step tobuilding the ground for the cooperation and peaceful settlement of disputes in the future.A step-by-step approach is more easily accepted than an imposed one. Two main issuesfor the code of conduct are the vital importance of nonexpansion of existing militarypresence in the disputed areas and the need for more transparency and more contactbetween local military and administrative authorities in the disputed areas.

The ASEAN Declaration on the South China Sea of 1992 contends that all partiesare to apply the principles contained in the Treaty of Amity and Co-Operation in South-east Asia (TAC) as the basis for establishing a code of international conduct for theSouth China Sea. Two codes of conduct have been concluded between disputants: theJoint Statement Republic of the Philippines–PRC Consultations on the South China Seaand on Other Areas of Cooperation on August 1995,51 and the Joint Statement on the

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Fourth Annual Bilateral Consultations between the Philippines and Vietnam, November1995.52 In Kuamin, China, on 6 April 1999, an initiative to have an ASEAN-China codeof conduct was rejected by Beijing. For China it was seen as unnecessary to have anadditional agreement on the code of conduct for the South China Sea because of theJoint Statement of the Meeting of Heads of State/Government of the Member Statesof ASEAN and the President of the People’s Republic of China, Kuala Lumpur, 16December 1997, ASEAN-China Cooperation Toward The 21st Century, which is seenas sufficient to maintain stability in the South China Sea.53 However, these are generalpolitical declarations. The island disputes must be settled by more detailed actions.

China has slightly changed its position toward the issue of a code of conduct. Inprinciple, all the concerned parties have expressed their support for such a code.54 Itwould be ideal to encapsulate a code of conduct in treaty form such as the AntarcticTreaty as suggested by the Philippines and some scholars.55 However, the time andsituation are not yet ripe for such a treaty.

The code of conduct for the South China Sea is not intended to be a treaty involv-ing obligations, but is a way for the parties to show their desire for peaceful settlementof disputes. The disputes in the South China Sea demand preventive diplomacy in orderto restrain disputes and conflicts from escalating into armed confrontation. The base ofthis diplomacy is a cooperative spirit, constructed on certain principles of conduct. Theperiod when states declared their desire to settle disputes without doing anything toprevent conflicts has passed. However, the code of conduct should not be only a politi-cal proclamation. Existing documents have mentioned only the principle of peacefulsettlement for the South China Sea. The code of conduct must touch broader issuesconcerning the peace, stability, and security within the South China Sea. Thus, it coulddispose parties more favorably to more detailed commitments in the future. PhilippineForeign Minister D. Siazon noted in March 1999 that “The peace is not achieved byempty words. Confidence and trust should be achieved by detailed, clear and right ac-tions. These actions prove the parties’ commitment to peaceful settlement of disputesthrough CBM.”56

In March 1999, the ASEAN Regional Forum gave the Philippines and Vietnam thetask of drafting an ASEAN code of conduct.57 In May 1999, the Philippines transferredthe first draft of the ASEAN code of conduct to Vietnam. The Joint communiqué of the32nd ASEAN Ministerial Meeting in Singapore on 23–24 July 1999 recalled the ASEANForeign Ministers’ Agreement of 1996 to the idea of a regional code of conduct thatwould lay the foundation for long-term stability in the area and foster understandingamong claimant countries. At the meeting in Singapore, the 10 foreign ministers ofASEAN countries and 12 foreign ministers of dialogue countries agreed to build a codeof conduct.

The code of conduct prepared by the Philippines and Vietnam was based on ASEANdocuments such as the five principles of peaceful coexistence; the 1976 Treaty of Amityand Cooperation in South East Asia; the ASEAN Declaration on the South China Seaof 1992; the ASEAN-China Joint Statement of 16 December 1997; the Joint Statementbetween the Philippines and the PRC on the South China Sea and Other Areas of Co-operation of August 1995; the code of conduct agreed upon between Vietnam andthe Philippines in November 1995; and the Hanoi Plan of Action at the Sixth ASEANSummit 1998.

In November 1999, the draft of the ASEAN code of conduct submitted by thePhilippines and Vietnam was adopted unanimously by the ARF. The code expresses thecommon position of ASEAN for settling disputes in the South China Sea. It has some

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legal force not only for the ASEAN claimant countries but also for other member statessuch as Laos, Myanmar, and Thailand.

The code was sent to the Chinese. In March 2000, at Hua Hin, Thailand, the firstASEAN-China Consultations on the code of conduct in the South China Sea were held.Both sides agreed on the need to adopt a code of conduct as well as a number ofelements that should be included in the code. In the following meeting in Malaysia inMay 2000, the two sides exchanged views on the proposed code of conduct. The mostrecent meetings in Da Lian, China, in August 200058 and Hanoi in October 200059 re-sulted in some progress towards achieving a common code of conduct for the region.

Scope of Application of the Code of Conduct

Peace, security, stability, and cooperation in the South China Sea will be ensured onlywhen disputes no longer exist or they are under strict management with the active par-ticipation of the concerned parties. What is the scope of application of the code ofconduct? The whole South China Sea or only the disputed areas? In the South ChinaSea there are two principal areas of disputes: the Paracels and Spratlys.60 In ASEAN’sview, the code of conduct should be applied to both the Paracels and the Spratlys. ForChina, the scope of application of the code of conduct should be limited only to theSpratlys.

The application of the code of conduct to only the Spratlys would not excludereference to or implications for the Paracels. The United States and Indonesia have warnedof the possibility that China might use the same method of drawing an archipelagicbaseline in the Spratlys that it has applied to the Paracels.61 For Vietnam, the two archi-pelagoes belong to the country and any solution must be applied without any differencesbetween them. The Resolution on the Ratification of the 1982 UN Convention on theLaw of the Sea by the National Assembly of the Socialist Republic of Vietnam on 23June 1994 stated:

The National Assembly once again reaffirms Vietnam’s sovereignty over theHoang Sa and Truong Sa archipelagoes and advocates to settle territorialdisputes as well as other differences concerning the Bien Dong (East Sea)through peaceful negotiations in the spirit of equality, mutual understandingand respect, respect for international law, especially the 1982 UN Conven-tion on the Law of the Sea, and respect for the sovereign rights and jurisdic-tion of littoral countries over the exclusive economic zone and continentalshelf; while making efforts to accelerate negotiations for seeking fundamen-tal and permanent solutions, the parties concerned should maintain stabilityon the basis of status quo, refrain from any act that may further compoundthe situation and from the use of force or threat to use force.62

The code of conduct, however, is not applicable to the South China Sea in itstotality. Clearly, there are parts of the South China Sea that are beyond dispute. Inconformity with the 1982 LOS Convention they are maritime zones unquestionably un-der a coastal state’s national jurisdiction. It is necessary to define the physical area ofdispute to be covered by the code of conduct. Malaysia has proposed that the area to becovered by the code of conduct must be confined to the Spratlys and Paracels, which,after all, are central to the issue.63 For Indonesia, the scope of application of the codemust not serve as a pretext for extending the dispute to the Natuna area. Vietnam shares

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the same sentiment—it is necessary to distinguish the settlement of disputes over theParacels and Spratlys with the issue of defense of maritime areas and continental shelfunder the sovereignty, sovereign rights, and jurisdiction of Vietnam. The Tu Chinh andThanh Long bank areas are on the continental shelf of Vietnam as defined on the basisof the principles of the 1982 LOS Convention. They are not disputed areas. They do notbelong to the Paracels and Spratlys areas.64

Principles Introduced in the Code of Conduct

If the agreement of concerned parties to have a code of conduct is difficult to reach, theunification of principles introduced in the code of conduct is even more difficult toattain. Because the Philippines and Vietnam are coauthors of the ASEAN draft code ofconduct, it is easy to understand that the principles introduced in the code are based onthe principles that have arisen in the two bilateral codes of conduct between the Philip-pines, China, and Vietnam and as adjusted by the interests of the member states ofASEAN.

Peaceful Settlement of International Disputes. While the Philippines-China code of con-duct said that “The two sides agree to settle their bilateral disputes in accordance withthe recognized principles of international law, including the UN Convention on the Lawof the Sea” (para. 4), the Philippines-Vietnam code has a more detailed stipulation. Itreaffirms the content and spirit of the 1992 ASEAN Declaration on the South ChinaSea, which has been endorsed by many countries and organizations and serves as agood basis for the prevention of conflict, the maintenance of stability, and the promo-tion of cooperation in the area. The Philippines and Vietnam commit to settling alldisputes relating to the Spratlys through peaceful negotiations in the spirit of friendship,equality, mutual understanding, and respect (paragraph a) and on the basis of respect forinternational law, including the 1982 LOS Convention (paragraph b).

The principle of peaceful settlement of international disputes has the character of ajus cogens obligation. It has been expressed in Articles 2 and 33 of the Charter of theUnited Nations and in Resolution 2625 of the General Assembly of 1970. The obliga-tion to settle disputes through peaceful means is repeated by Article 279 of the 1982UNCLOS. This obligation has been confirmed by treaty and customary internationallaw.65 The 1992 ASEAN Declaration directs “all parties concerned to apply the prin-ciples contained in the Treaty of Amity and Co-operation (TAC) in Southeast Asia asthe basis for establishing a code of international conduct over the South China Sea.”Article 2 (paragraphs d and f) of the ASEAN Treaty of Amity directs the concernedparties to abide by the fundamental principle of settlement of differences or disputes bypeaceful means and effective cooperation among themselves. For regional disputes, aHigh Council should be created. The council is to be made up of a representative at theministerial level from each of the parties. The council is to recommend to parties to adispute appropriate means for settlement, that is, negotiation, good offices, mediation,inquiry, or conciliation. The council can also “constitute itself into a committee” ofmediation, inquiry, or conciliation.66 The treaty does not exclude any other peacefulmeans as envisaged by Article 33 of the Charter of the United Nations. The two proto-cols amending the Treaty of Amity adopted in 1987 and 1998 allow non–SoutheastAsian states to be represented in the High Council if they are parties who are directlyinvolved in disputes and their accession to the Treaty of Amity is consented to by allstates in Southeast Asia.67 With adjustments, the Council mechanism could be applicable

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for the settlement of disputes in the South China Sea where there are many claimantsinside and outside of the ASEAN.

Paragraph 1 of the ASEAN code of conduct endorses peaceful settlement of dis-putes: it states that there is to be respect for sovereignty, equality, and mutual respectbetween states and noninterference in the internal affairs of each other in resolving dis-putes through peaceful means. These proposals are in accordance with the principles ofdiplomatic policy of ASEAN. The Vietnamese position contained in the Declaration of12 May 1977 and the Resolution on the Ratification of the 1982 UN Convention on theLaw of the Sea by the National Assembly of the Socialist Republic of Vietnam on 23June 1994 are in conformity with paragraph 1 of the ASEAN code of conduct.

Prohibition against Use of Force and Threats of Force. This is also a cardinal rule ofinternational treaty and customary law. While this principle is repeated in the bilateralcodes of conduct and the ASEAN code, the interpretation of what constitute “threats offorce” and “limit of defense” is still being debated. In the case of the nonexistence ofobjective control of force and of an imbalance of respective forces in the South ChinaSea, this principle would be effective only when claimants implement it by good faith.The situation in the South China Sea demands a more detailed definition of the principleof nonresort to the use of force and threats of force. It constitutes a start of a newprinciple born in the South China Sea—the principle of self-restraint.

Exercise of Self-Restraint. Self-restraint is a new principle adopted as part of the 1992ASEAN Declaration on the South China Sea. The declaration urges “all parties concernedto exercise restraint with the view to creating a positive climate for the eventual resolu-tion of all disputes.” The ASEAN-China Joint Statement of December 1997 emphasizesthat “In the interest of promoting peace and stability as well as enhancing mutual confi-dence in the region, the parties concerned agree to continue to exercise self-restraint andhandle relevant differences in a cool and constructive manner.” The principle of self-restraint has been proposed by Vietnam since 1988 in the form of a proposal to carry outnegotiations respecting the status quo of the dispute and the nonoccupation of unoc-cupied features. In the Philippines-Vietnam joint statement of 1988, the two sides agreedto adopt this principle by a commitment to avoid resorting to force for settling any dispute.

In May 1991, when Malaysia publicized the idea of promoting tourist developmenton the Swallow rock (Terembu Layang Layang) in the Spratlys, the Foreign Ministry ofVietnam stated:

Vietnam has repeated several times that the Hoang Sa and Truong Sa belongto the sovereignty of Vietnam. Vietnam has full historical evidence and legalgrounds to prove its indisputable sovereignty over Hoang Sa and Truong Saarchipelagoes. Meanwhile, from the complicated present situation in the areaof the two archipelagoes, for the peace, stability and cooperation in the re-gion, Vietnam holds the consistent view to resolve any disputes concerningthe two archipelagoes with concerned countries. Vietnam wishes that pend-ing settlement of disputes the concerned parties should avoid making thesituation to be more complicated.68

This principle is also spelled out in the Philippines-Vietnam code of conduct: “Whileendeavoring to promote negotiations for a fundamental and long-term solution to theSpratlys dispute, they (the two sides) shall exercise self-restraint, refrain from using

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force or threat of force, and desist from any act that would affect the friendship betweenthe two countries and the stability in the region” (paragraph c).

To exercise self-restraint has two meanings: maintaining the present status quo ofoccupied positions and avoiding actions that complicate the situation. On 20 April 1995the General Secretary of the VCP Do Muoi stated officially in Tokyo that “The Viet-namese position is to keep the present status quo for maintenance of peace and stabilityin the region and for searching a peaceful solution for dispute more than to use force orthreaten by force.”69

The status quo does not mean to do nothing. This may lead to conflict in the viewof some scholars.70 Rather, maintaining the status quo constitutes only a demand forstopping further occupation and annexation of territories in the Spratlys, which couldmake the region unstable. The status quo is a very persuasive CBM and a preconditionfor implementation of cooperation agreements, including an agreement on joint develop-ment. The status quo means not engaging in the use of force or threats of force. Newoccupation of nonoccupied features in the Spratlys could be regarded as disguised threatsof force. The presence of China on the Mischief Bank in 1995 and the expansion ofMalaysia on Erika and Investigator reefs in 1999 have been considered causes of newtension. While respecting the present status quo, the concerned parties may continue toaccelerate their efforts to seek solutions for disputes. Respecting the status quo is neces-sary to avoid tensions escalating into confrontation and threatening the positive achieve-ments in strengthening bilateral and multilateral cooperation.71

Accepting the existing status quo means that this principle should be applied notonly to the Spratlys but also to the Paracels. This impacts negatively on Vietnam, whichdoes not occupy any features in the Paracels. However, respecting status quo is notunderstood as a prejudice to the realization of long-term interests and legal sovereignty.In reaffirming its sovereignty over the two archipelagoes, Vietnam is ready to resolvethe disputes in order to ensure peace and stability for the whole region. The Vietnameseposition finds support in the ASEAN code of conduct. “The Parties concerned undertaketo refrain from action of inhabiting or erecting structures in presently uninhabited is-lands, reefs, shoals, cays and other features in the Disputed Area” (paragraph 2).

The spirit of the Philippines-Vietnam code of conduct was introduced also in para-graph 3 of the ASEAN code of conduct: “The Parties concerned undertake to exerciseself-restraint in the conduct of activities that affect peace and stability in the DisputedArea and to handle their differences in a constructive manner.” ASEAN countries andChina must intensify efforts to define what activities are not to be allowed in the dis-puted area. Such activities must include military exercises without prior consultation;72

the introduction or stationing of offensive long-range weapons and platforms (for in-stance, nuclear ships, missiles, attack submarines, naval combatants, fighter aircraft, etc.);encouraging fishers to go near occupied positions without prior consultation; low-flyingaircraft over occupied positions; and stopping and seizing other parties’ ships sailingoutside of the 12-mile area around occupied positions. However, the repairs of civilianstructures and facilities on occupied islands aimed at ensuring safety for those peopleworking there should be acceptable. Regarding the fact that in 1999 Vietnam was re-pairing a number of structures on two shoals in the Truong Sa archipelago, the spokes-woman of the Foreign Ministry of Vietnam said that it is a normal affair conducted byVietnam within its sovereignty and that this action fully conforms with international lawand reality.73

The self-restraint principle has not been warmly received by China. While acceptingthe concept of a Code of Conduct, the PRC has not accepted to cease occupation of new

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features in the disputed area. The Philippines have warned that without Chinese accep-tance of self-restraint, they will not accept any code of conduct.74

Search for and Adoption of CBMs. The code of conduct consists of principles to identifyactivities should not take place and to search for solutions for disputes. CBMs are thefirst steps in the direction of minimizing the possibilities of maritime conflicts. Thetwo bilateral codes of conduct, Philippines-China (paragraph 2) and Philippines-Vietnam(paragraph g), touch upon this principle. The Philippines-Vietnam code of conduct saysthat the parties concerned have the obligation of establishing CBMs not only on a bilat-eral basis but also on a multilateral basis. CBMs are subject to discussion in the frame-work of the ARF. Paragraph 4 of the ASEAN code of conduct directs the parties con-cerned to:

undertake to intensify efforts to find a comprehensive and durable solutionto the disputes over the Disputed Area. Without prejudice to existing claimsof sovereignty or jurisdiction, the Parties concerned undertake to seek ways,in the spirit of co-operation and understanding, to build trust and confidencebetween and among them, including:a. holding dialogues and exchanges of views as appropriate among defense

and military officials of the Parties concerned;b. informing voluntarily other Parties concerned of significant policies and

measures that affect the Disputed Area; andc. ensuring just and humane treatment of nationals of other Parties con-

cerned who are either in danger or in distress in the Disputed Area.

The CBMs mentioned in the ASEAN code of conduct are only preliminary. How-ever, they are important first steps in engendering cooperation and a consideration ofmore CBMs, such as those proposed by the Maritime Specialist Officials Meeting (MSOM)held in Honolulu on 5 November 1998.75

In reality, Vietnam and the Philippines intended to implement the first CBM be-tween soldiers stationed in the Spratlys. To reduce tension and military conflicts, on theoccasion of the Anniversary of the Vietnamese People’s Army, a joint exercise of searchand rescue and matches of volleyball and football were going to be organized on theThitu island occupied by the Philippines. For technical reasons, these initiatives werenot carried out, but, if they take place, they could mark a turning point in buildingconfidence among the parties concerned.

Cooperation. As parties to the 1982 LOS Convention, the claimant states are obliged tocooperate in implementing certain maritime activities. As a principle of international lawand present in the ASEAN Treaty of Amity, the principle of cooperation cannot be leftout of any code of conduct. This principle is expressed in both the Philippines-Chinacode and the Philippines-Vietnam code. In the latter, Vietnam and the Philippinescommit themselves to:

promote suitable forms of bilateral and multilateral co-operation in the fieldsof marine environment protection, safety of navigation, marine scientificresearch, meteorological data, disaster mitigation and control, search andrescue operations, prevention of piracy, and maritime pollution control (para-graph d).

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Moreover, the two sides agree to cooperate in the protection and conservation ofmarine living resources in the Spratlys in accordance with the relevant provisions of the1982 LOS Convention (paragraph e). They support a gradual and progressive process,based on certain targets and benchmarks, aimed at closer cooperation in the Spratly areaand the eventual settlement of the dispute. Such cooperation is not to prejudice existingsovereignty claims (paragraph h).

In addition to being the principal initiators of the ASEAN code of conduct, thePhilippines and Vietnam are also the first countries to take steps toward implementationof cooperation. A mixed Philippines-Vietnam scientific survey was carried out success-fully in the Spratlys in May 1996. A similar survey was carried out at the end of May2000. At the second Workshop on Managing Potential Conflicts in the South China Seaheld in Bandung in July 1991, the Vietnamese delegate suggested that “the states in theregion should co-operate as much as possible in conducting marine scientific researches,particularly on those natural phenomena that may have relevance to the protection of theenvironment and the ecology as well as the conservation and development of the naturalresources.” 76

Paragraph 5 of the ASEAN code of conduct has repeated the spirit of the above:

Without prejudice to existing claims of sovereignty or jurisdiction, the Par-ties concerned may explore or undertake activities in the Disputed Area.These may include the following:

a. marine environmental protection;b. marine scientific research;c. safety of navigation and communication;d. search and rescue operations; ande. combating transnational crime, including, but not limited to, trafficking

in illicit drugs, piracy and armed robbery at sea, and illegal traffic inarms.

However, prior to actual implementation of bilateral and multilateral co-op-eration, their modalities, scope and locations should be agreed upon by claimantcountries.

Consultation. The principle of consultation is the continuation of the tradition of ASEAN.Article 9 of the Amity Treaty requires the contracting parties to maintain regular con-tacts and consultation with one another on international and regional matters with aview to coordinating their views, actions, and policies. As members of ASEAN, thePhilippines and Vietnam introduced this principle in their code of conduct: “The twoparties shall continue to promote dialogues and consultations and confidence buildingmeasures” (paragraph g). The ASEAN code of conduct encourages the parties to con-duct consultations and dialogues concerning the disputed area through modalities to beagreed upon by them, including regular consultations on the observance of the code ofconduct (paragraphs 4a, b; 6).

Respect for the Freedom of International Air and Maritime Navigation. The Philippines-China (paragraph 8) and the Philippines-Vietnam (paragraph f) codes of conduct ex-pressed respect for the freedom of maritime navigation and air traffic in the disputedarea in conformity with the principles and practice of international law. The implemen-tation of this principle is an obligation toward the international community for all coastal

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states who are members of the 1982 LOS Convention. In spite of its absence from theASEAN code of conduct, the respect for the freedom of maritime navigation in and airtraffic over the South China Sea is repeated in the preamble of the code.

Beyond the above main principles, the ASEAN code encourages other countriesand international organizations to subscribe to the principles contained therein.

Conclusion

It is important that ASEAN and other concerned parties adopt a regional code of con-duct for the South China Sea as early as possible. Through its active participation indrafting the code and its activities, Vietnam has shown its consistent position toward thesettlement of disputes in the South China Sea. This was expressed in the speech ofDeputy Prime Minister and Minister of Foreign Affairs Nguyen Manh Cam on 17 Janu-ary 2000 at a meeting celebrating the 50th anniversary of the establishment of relationswith foreign countries:

[I]n the 21st century, Vietnam will continue its foreign policy of indepen-dence, self-reliance, multilateralization of co-operation of international rela-tions, developing its relations with other countries, promoting comprehen-sive co-operation, both bilaterally and multilaterally. These relations will bedeveloped on the principle of respecting each other’s independence, sover-eignty and territorial integrity, and non-interference in each other’s internalaffairs, equality, mutual benefit, and settlement of outstanding problems andconflicts through peaceful negotiations.77

Notes

1. Vietnam News Agency (VNA), Hong Kong, February 2, 2000.2. Associated Press (AP) Manila, February 20, 2000.3. “Law of the People’s Republic of China on the Territorial Sea and Contiguous Zone,”

reprinted in International Journal of Marine and Coastal Law, Vol. 8 (1993): 158–161.4. Agence Française de Presse, Hong Kong, May 13, 1994.5. Statement of the spokesperson of the Foreign Ministry of the Socialist Republic of

Vietnam on April 20,1994, BBC/SWB/FE/2027/B3-4, 21 June 1994 reprinted in Thao NguyenHong, Le Vietnam face aux problèmes de l’extension maritime dans la mer de Chine méridionale,(Paris: Septentrion Presses Universitaires, 1997), annex 10, pp. 848–849. See also: Brice M.Clagett, “Competing Claims of Vietnam and China in the Vanguard Bank and the Blue DragonAreas of the South China Sea,” Oil & Gas Law and Taxation Review, Vol. 13, issues 1, 2(1995): 375.

6. Vietnam News, June 16, 1996.7. ANTARA/Reuters , November 9, 1998.8. Interview with Vice Minister of Foreign Affairs of the Philippines, M. Baya, on 25

March, 1999. Agence Française de Presse, Manila, Philippines.9. See VNA, Hong Kong, November 12, 1998; Radio de France Internationale, November

13, 1998; Kyodo, Tokyo, November 14, 1998; Voice of America, January 11 and 12, 1999; AP,Manila, March 21, 1999 and personal communication from the Vietnamese Embassy in Manila,March 25, 1999.

10. Agence de Française Presse, Beijing, March 2, 1998 and VNA, Hanoi, March 5, 1998.11. VNA, Tokyo, February 9, 1998 and VNA, Beijing, September 28, 2000.12. Nguyen Hong Thao, “China’s Maritime Moves Raise Neighbours’ Hackles,” in Vietnam

Law & Legal Forum, July 1998, Vol. 4, no. 47: 23–25.

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13. VNA, Beijing, May 31, 2000.14. Chinese Ocean Newspaper, August 15, 2000.15. Air photographs showed by the Philippines demonstrate that some constructions such as

a helicopter pad, radar stations, and two-stage houses had been built on those reefs. Radio deFrance Internationale, July 23, 1999.

16. VNA, Tokyo, October 15, 1999.17. Vietnam News, November 1, 1999.18. Philip Shenon, “Rival Claims to Island Chain Bring Edginess to Asia’s Rim,” New York

Times, April 5, 1995.19. VNA, Tokyo, December 31, 1998.20. Barry Hart Dubner, “The Spratly Rocks Dispute—A Rockapelago Defies Norms of In-

ternational Law,” Temple International and Comparative Law Journal, Vol. 9 (1995): 304–305.21. ANTARA, National News, December 1, 1998.22. In the joint China-Philippines statement, in May 2000, on the framework for bilateral

co-operation, section 9 said: “The two sides commit themselves to the maintenance of peace andstability in the South China Sea. They agreed to promoted a peaceful settlement of disputesthrough bilateral friendly consultations and negotiations in accordance with universally-recognisedprinciples of international law, including the 1982 United Nations Convention on the Law of theSea. They reaffirm their adherence to the 1995 joint statement between the two countries on theSouth China Sea and agree not to take actions that might complicate or escalate the situation. Thetwo sides expressed their determination to follow through the work of the China-PhilippinesWorking Group on Confidence Building Measures to enhance peace and stability in the region.They reiterate that they will contribute positively towards the formulation and adoption of theregional Code of Conduct in the South China Sea,” BBC/FE/3843:G/3.

23. See Article 298(a) of the 1982 LOS Convention.24. J. M. Van Dyke and D. L. Bennett, “Islands and the Delimitation of Ocean Space in the

South China Sea,” Ocean Yearbook, Vol. 10 (1993): 54, propose a 12-mile territorial sea forrocks in the Spratlys islands. See also J. M. Van Dyke and Robert A. Brooks, “UninhabitedIslands: Their Impact on the Ownership of the Ocean’s Resources,” Ocean Development & Inter-national Law, Vol. 12 (1983): 265.

25. Lee G. Cordner, “The Spratly Islands Dispute and the Law of the Sea,” Ocean Develop-ment & International Law, Vol. 25, (1994): 71.

26. This is the name of that part of the Spratly archipelago claimed by the Philippines.27. Reuteurs, Beijing, April 1, 1999 and VNA, Hong Kong, April 1, 1999.28. Mark J. Valencia, Malaysia and the Law of the Sea (Kuala Lumpur: ISIS, Malaysia,

1992).29. AP, Manila, February 20, 2000.30. B.A. Hamzah, “The Prospects for Solving Territorial Problems in the Spratlys: The

Need to Manage Contentious Issues,” in Marine Policy, Maritime Security and Ocean Diplomacyin the Asia-Pacific, Honolulu: East West Center Studies Series 37, (1995): 89.

31. Chen Degong, “Toward the Peaceful Settlement of the Nansha Islands Dispute: JointDevelopment and Regional Cooperation on Marine Affairs Among States Bordered on the SouthChina Sea” (paper presented at the International Boundaries Research Unit Conference on thePeaceful Management of Transboundary Resources, Durham, England, April 14–17, 1994).

32. Nguyen Hong Thao, “China’s ‘Nine Broken Line’ in the Bien Dong Sea (South ChinaSea) in the Light of International Law,” Vietnam News, May 18, 1997.

33. L. Buszynski, “ASEAN Security Dilemmas,” Survival, Vol. 34 (1994): 94.34. Nguyen Hong Thao, “The Spratly Islands Question Surfaces Again,” Vietnam News,

November 20, 1997.35. Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the

South China Sea (The Hague: Martinus Nijhoff, 1997).36. J. B. Blanche and J. D. Blanche, “Chinese Bureaucrats Draw the Line in South China

Sea,” Petroleum Economist (July 1995): 16–17; B. A. Hamzah, “Jurisdiction Issues and the Con-

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flicting Claims in the Spratlys,” Indonesian Quarterly, Vol. XVIII, no. 2 (1990): 144; Yann-HueiSong, “The Issue of Historic Waters in the South China Sea Territorial Sea Dispute,” ConferencePaper at the South China Sea Conference, American Enterprise Institute, September 7–9, 1994;and Zhiguo Gao, “The South China Sea: From Conflict to Cooperation?” Ocean Development &International Law, Vol. 25 (1994): 346.

37. Valencia et al., supra note 35, at 120.38. Hamzah, supra note 30, at 90.39. Mark J. Valencia, “Spratly Solution Still at Sea,” The Pacific Review, Vol. 6 (1993):

194.40. Reprinted in Thao Nguyen Hong, supra note 5, annex 10, pp. 848–849 and Kriangsak

Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in Southeast Asia (Singapore:Oxford University Press, 1987), annex IV.

41. Nguyen Hong Thao, “Joint development in the Gulf of Thailand,” Boundary and Secu-rity Bulletin, Vol. 7, no. 3 (Autumn 1999): 79–88.

42. Nguyen Hong Thao, “Thailand-Vietnamese boundary agreement,” Boundary and Secu-rity Bulletin, Vol. 5, no. 3 (Autumn 1997): 74–78.

43. Nguyen Hong Thao, “Vietnam-China Land Border Treaty—A Common Victory of TwoNations,” Vietnam Law & Legal Forum, Vol. 6, no. 65 (January 2000): 14–18

44. Nhan Dan Daily (Hanoi), February 28, 1999.45. Long Viet, “Vietnam-China Land Border Treaty—A Common Victory of Two Nations,”

Vietnam Law & Legal Forum, Vol. 6, No. 65, (January 2000): 14–15.46. The joint declaration of the two parties of 1988 during the delegation of the Defense

and Security Committee under the Lower Parliament of the Philippines visit to Hanoi. Nhan DanDaily (Hanoi), August 2, 1988.

47. AP du Vietnam, March 30, 1990.48. See Appendix 3.49. BBC, October 6, 1983.50. VNA, October 13, 1999.51. See Appendix 2.52. See Appendix 3.53. Radio de France Internationale, April 12, 1999.54. China’s Prime Minister Zhu Rongji speech at the meeting with Singapore Prime Minis-

ter Goh Chok Tong on 29 November 1999. Asian Wall Street Journal, November 30, 1999.55. Kriangsak Kittichaisaree, “Code of Conduct in International Law and Relations,” paper

presented at the Third Technical Working Group Meeting on Legal Matters in the South ChinaSea, held in Pattaya, Thailand, 12–16 October 1998.

56. VNA, March 31, 1999.57. AP Manila, July 14, 1999.58. Agence Française de Presse, Hanoi, October 11, 2000 and VNA, October 13, 2000.59. Agence Française de Presse, Manila, August 28, 2000.60. The Scarborough Reef dispute can be considered as a third area of dispute in the South

China Sea area.61. Limits in the Sea, No. 117 on 9 July 1996. Note of the Indonesian Foreign Ministry on

16 July 1996 (copy in possession of author).62. Nhan Dan Daily (Hanoi), June 24, 1994 and reprinted in Thao Nguyen Hong, supra

note 5, annex 9, pp. 845–846.63. Malaysian view in the negotiation on the ASEAN code of conduct in November 1999,

based on personal observation.64. See the Resolution on the Ratification of the 1982 UN Convention on the Law of the

Sea by the National Assembly of the Socialist Republic of Vietnam on June 23, 1994, supra note58.

65. ICJ Report of 1986, Military and Paramilitary Activities (Nicaragua/United States ofAmerica), paras. 290–291.

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66. See Ramses Amer, “Expanding ASEAN’s Conflict Management Framework in South-east Asia: The Border Dispute Dimension,” Asian Journal of Political Science, Vol. 6 (December1998): 37.

67. Ibid., 38–40.68. Memorandum of the Foreign Ministry of Vietnam, May 13, 1991.69. Agence Française de Presse Tokyo, April 20, 1995.70. Valencia et al., supra note 35, at 129.71. Ramses Amer, “The Territorial Disputes between China and Vietnam and Regional Sta-

bility,” Contemporary Southeast Asia, Vol. 19 (June 1997): 106–107.72. As reported by AP Manila, February 20 2000, China proposed to include in the ASEAN-

China code of conduct the prohibition of all military exercises and surveys in the disputed area ofthe South China Sea. It was reported that China was interested also in refraining from “takingcoercive measures, such as seizure, detention or arrest against fishing boats or other civilianvessels engaged in normal operation in the disputed areas, not against nationals of other countriesthereon. Just and humane treatment shall be guaranteed to these nationals.”

73. VNA, October 13, 1999.74. Agence Française de Presse, Manila, October 10, 2000.75. Some CBM proposals are as follows: high level exchange of visits, exchange of naval

personnel, exchange of visits by navy vessels, joint naval training programs, joint naval exercises,cooperation in surveillance arrangements, cooperation in antipiracy and antisea robbery opera-tions, cooperation between maritime training institutions, cooperation in maritime disasters, coop-eration in maritime search and rescue, maritime environment training and technology, cooperationin monitoring and assessment of the marine environment, joint exercises in preventing and com-bating oil spills, cooperation in conservation, exploration, and exploitation of marine resources,and cooperation in maritime scientific research.

76. Meetings, Vietnam paper on Marine Scientific Research and Marine Environmental Pro-tection presented at the Tenth Workshop on Managing Potential Conflicts in the South ChinaSea, Bogor, Indonesia, December 6–7, 1999: 5.

77. VNA, January 18, 2000.

We, the Foreign Ministers of the member countries of the Association of the SoutheastAsian Nations:

Recalling the historic, cultural, and social ties that bind our peoples as states adjacent tothe South China Sea.

Wishing to promote the spirit of kinship, friendship and harmony among our peopleswho share similar Asian traditions and heritage;

Desirous of further promoting conditions essential to greater economic cooperation andgrowth;

Recognizing that we are bound by similar ideals of mutual respect, freedom, sovereigntyand mutuality of interests;

Recognizing that South China Sea issues involve sensitive questions of sovereignty andjurisdiction of the parties directly concerned;

Appendix 1ASEAN Declaration on the South China Sea of 1992

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Vietnam and the Code of Conduct for the South China Sea 125

Conscious that any adverse developments in the South China Sea directly affect peaceand stability in the region;

Hereby we

1. Emphasize the necessity to resolve all sovereignty and jurisdictional issues pertainingto the South China area by peaceful means, without resort to force;

2. Urge all parties concerned to exercise restraint with the view to creating a positiveclimate for the eventual resolution of all disputes;

3. Resolve, without prejudicing the sovereignty and jurisdiction of countries having di-rect interests in the area, to explore the possibility of cooperation in the South ChinaSea relating to the safety of maritime navigation and communication, protection againstpollution of the marine environment, coordination of search and rescue operations,efforts towards combatting piracy and armed robbery as well as collaboration in thecampaign against illicit trafficking in drugs;

4. Commend all parties concerned to apply the principles contained in the Treaty ofAmity and Cooperation in Southeast Asia as the basis for establishing a code ofinternational conduct over the South China Sea;

5. Invite all parties concerned to subscribe to this Declaration of principles.

Signed in Manila, Philippines, this 22nd day of July, nineteen hundred and ninety-two.

Appendix 2Joint Statement of the RP-PRC Consultations on the South China Sea

and on Other Areas of Cooperation, 9–10 August 1995

Delegations from the Philippines and China met in Manila on 9–10 August 1995 forconsultations on the South China Sea and on other areas of cooperation.

The consultations were held in an atmosphere of cordiality and in a frank and construc-tive manner. The two sides reiterated the importance they attach to their bilateral rela-tions. They recognized that the continued prosperity of their economies depends uponthe peace and stability of the region. They reaffirmed their commitment to regionalpeace, stability, and cooperation.

Frank discussions on Mischief Reef (“Meiji Reef”) were held. The two sides expressedtheir respective positions on the matter. They agreed to hold further consultations inorder to resolve their differences. On the South China Sea issue as a whole, they ex-changed views on the legal and historical bases of their respective positions.

Pending the resolution of the dispute, the two sides agreed to abide by the followingprinciples for a code of conduct in the area:

1. Territorial disputes between the two sides should not affect the normal developmentof their relations. Disputes shall be settled in a peaceful and friendly manner throughconsultations on the basis of equality and mutual respect.

2. Efforts must be undertaken to build confidence and trust between the two parties, toenhance an atmosphere of peace and stability in the region, and to refrain from usingforce or threat of force to resolve disputes.

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3. In the spirit of expanding common ground and narrowing differences, a gradual andprogressive process of cooperation shall be adopted with a view to eventually negoti-ating a settlement of the bilateral disputes.

4. The two sides agree to settle their bilateral disputes in accordance with the recog-nized principles of international law, including the UN Convention on the Law of theSea.

5. Both sides shall keep an open-minded attitude on the constructive initiatives andproposals of regional states to pursue multilateral cooperation in the South China Seaat the appropriate time.

6. The two sides agree to promote cooperation in fields such as protection of the marineenvironment, safety of navigation, prevention of piracy, marine scientific research,disaster mitigation and control, search and rescue operations, meteorology, and mari-time pollution control. They also agree that on some of the above mentioned issues,multilateral cooperation could eventually be conducted.

7. All parties concerned shall cooperate in the protection and conservation of the marineresources of the South China Sea.

8. Disputes shall be settled by the countries directly concerned without prejudice to thefreedom of navigation in the South China Sea.

In order to push the process forward, the two sides agreed to hold discussions amongexperts on legal issues and sustainable economic cooperation in the South China Sea.They agreed further that experts from the two countries shall hold consultations at amutually acceptable date in order to explore the possibilities of fisheries cooperation inthe disputed area.

The two sides agreed on the importance of bilateral cooperative activities as useful inand of themselves, and as confidence-building measures. They are dedicated to a prag-matic approach to cooperation.

In addition to the South China Sea issue, the two sides reviewed other fields of bilateralcooperation. They emphasized the usefulness of exchanging contacts at various levels instrengthening cooperation. They noted the successful conclusion of the 18th Philippines-China Joint Trade Committee Meeting. They looked forward to concluding negotiationson the avoidance of double taxation and fiscal evasion. They noted the ratification bythe Philippines side of the Bilateral Agreement on the Promotion and Mutual Protectionof Investments.

The talks ended with both sides satisfied that some progress had been made in terms ofsubstantially improving the atmosphere of relations and identifying and expanding areasof agreement by holding frank exchanges directly addressing contentious issues. Theypledged to continue consultations in the same constructive spirit.

Appendix 3Excerpt from the Joint Statement on the Fourth Annual BilateralConsultation between the Socialist Republic of Vietnam and the

Republic of the Philippines, Hanoi, 7th November 1995

7. On the territorial dispute in the South China Sea (Eastern Sea), they recalled theunderstanding between the leaders of the two countries on the peaceful settlement of

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Vietnam and the Code of Conduct for the South China Sea 127

such disputes. They reaffirmed the contents and spirit of the ASEAN Declaration on theSouth China Sea of 1992, which has been endorsed by many countries and organiza-tions around the world and serves as a good basis for the prevention of conflict, themaintenance of stability, and the promotion of cooperation in the area. The two sidescommitted themselves to promote bilateral and multilateral efforts in the search for afundamental and long-term solution to the disputes relating to sovereignty over the Spratlys.They acknowledged that the growth and development of their respective economies de-pend greatly on the sustained peace and stability in the region.

The two sides agreed on the following basic principles for a code of conduct in thecontested areas:

(a) They shall settle all disputes relating to the Spratlys through peaceful negotiationsin the spirit of friendship, equality, mutual understanding and respect.

(b) They shall solve their disputes on the basis of respect for international law, includ-ing the 1982 United Nations Convention on the Law of the Sea.

(c) While endeavoring to promote negotiations for a fundamental and long-term solu-tion to the Spratlys dispute, they shall exercise self-restraint, refrain from usingforce or threat of force, and desist from any act that would affect the friendshipbetween the two countries and the stability in the region.

(d) They shall promote suitable forms of bilateral and multilateral cooperation in thefields of marine environment protection, safety of navigation, marine scientific re-search, meteorological data, disaster mitigation and control, search and rescue op-erations, prevention of piracy, and maritime pollution control.

(e) They shall cooperate in the protection and conservation of marine living resourcesin the Spratlys in accordance with the relevant provisions of the 1982 United Na-tions Convention on the Law of the Sea.

(f) They affirm that shipping and air traffic in the area should be respected, in confor-mity with the principles and practice of international law.

(g) They shall continue dialogues and consultations on these principles, including waysof building confidence and trust between them, pending resolution of the disputes.They shall promote such dialogues, consultations and confidence-building measureson a multilateral as well as bilateral basis.

(h) They support a gradual and progressive process, based on certain targets and bench-marks, aimed at close cooperation in the Spratlys area and the eventual settlementof the dispute. Such cooperation shall not prejudice existing sovereignty claims.

(i) Other parties are encouraged to subscribe to the principles herein stated.

The two Delegations agreed to designate their respective experts to discuss concreteforms of cooperation in marine scientific research as an initial step towards implementa-tion of these principles. Future consultations will also consider specific confidence-buildingmeasures.

Appendix 4Regional Code of Conduct in the South China Sea

November 1999 (Adopted by the Members States of ASEAN)

The Heads of State/Government of the member states of ASEAN and the People’sRepublic of China

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Cognizant of the need to promote a peaceful, friendly and harmonious environment inthe South China Sea for the enhancement of peace, stability, economic growth and pros-perity in the region;

Committed to the spirit and principles of international law, the Charter of the UnitedNations, the 1982 U.N. Convention on the Law of the Sea, the Treaty of Amity andCooperation in the Southeast Asia, the Five Principles of Peaceful Coexistence, and theASEAN Declaration on the South China Sea;

Reaffirming respect for the freedom of navigation and air traffic in the South China Sea,as provided for by international law, including the 1982 U.N. Convention on the Law ofthe Sea; and

Wishing to further enhance the principles and objectives of the 1997 Joint Statement ofthe meeting of the Heads of State/Government of the member States of ASEAN andPresident of the People’s Republic of China,

Hereby adopt the following Code of Conduct in the disputed areas of the Spratlys andthe Paracels in the South China Sea, hereinafter referred to as the Disputed Area.

The Parties concerned undertake to resolve disputes relating to sovereignty or jurisdic-tion in the Disputed Area by peaceful means, without resort to the use of force or threatof the use of force, on the basis of respect for sovereignty, equality and mutual respectamong nations, and non-interference in each other’s internal affairs, consistent with therecognized principles of international law, including those in the 1982 U.N. Conventionon the Law of the Sea;

The Parties concerned undertake to refrain from action of inhabiting or erecting struc-tures in presently uninhabited islands, reefs, shoals, cays and other features in the Dis-puted Area;

The Parties concerned undertake to exercise self-restraint in the conduct of activities thataffect peace and stability in the Disputed Area and to handle their differences in aconstructive manner;

The Parties concerned undertake to intensify efforts to find a comprehensive and du-rable solution to the disputes over the Disputed Area. Without prejudice to existingclaims of sovereignty or jurisdiction, the Parties concerned undertake to seek ways, inthe spirit of co-operation and understanding, to build trust and confidence between andamong them, including:

(a) holding dialogues and exchanges of views as appropriate among defense and mili-tary officials of the Parties concerned;

(b) informing voluntarily other Parties concerned of significant policies and measuresthat affect the Disputed Area; and

(c) just and humane treatment of nationals of other Parties concerned who are either indanger or in distress in the Disputed Area.

Without prejudice to existing claims of sovereignty or jurisdiction, the Parties concernedmay explore or undertake activities in the Disputed Area. These may include the following:

(a) marine environmental protection;(b) marine scientific research;(c) safety of navigation and communication;

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Vietnam and the Code of Conduct for the South China Sea 129

(d) search and rescue operations; and(e) combating transnational crime, including, but not limited to, trafficking in illicit

drugs, piracy and armed robbery at sea, and illegal traffic in arms.

The modalities, scope and locations in respect of bilateral and multilateral cooperationshould be agreed upon by claimant countries prior to their actual implementation.

The Parties concerned undertake to conduct consultations and dialogues concerning theDisputed Area through modalities to be agreed by them, including regular consultationson the observance of this Code of Conduct, for the purpose of promoting good neigh-borliness and transparency, establishing harmony, mutual understanding and co-opera-tion, and facilitating peaceful resolution of disputes among them.

Other countries and international organizations are encouraged to subscribe to the prin-ciples contained in this Code of Conduct.

Appendix 5Excerpt from the Joint Statement of the Meeting of Heads

of State/Government of the Member States of ASEAN and thePresident of the People’s Republic of China, Kuala Lumpur,

16 December 1997: ASEAN-China Cooperation Toward The 21st Century

8. Recognizing that the maintenance of regional peace and stability served the interestsof all parties, they undertook to resolve their differences or disputes through peacefulmeans, without resorting to the threat or use of force. The parties concerned agreed toresolve their disputes in the South China Sea through friendly consultations and negotia-tions in accordance with universally recognized international law, including the 1982UNCLOS. While continuing efforts to find solutions, they agreed to explore ways forcooperation in the areas concerned. In the interest of promoting peace and stability aswell as enhancing mutual confidence in the region, the parties concerned agreed to con-tinue to exercise self-restraint and handle relevant differences in a cool and constructivemanner. They further agreed not to allow existing differences to hamper the develop-ment of friendly relations and cooperation.

9. ASEAN member states believed that a stable, peaceful and prosperous China wouldconstitute an important factor for the long-term peace, stability and development of theAsia-Pacific region in particular and of the world in general.

7.12. Encourage ASEAN member Countries parties to a dispute to engage in friendlynegotiation and use the bilateral and regional processes of peaceful settlement of disputeor other procedures provided for in the UN Charter.

7.13. Enhance efforts to settle disputes in the South China Sea through peaceful meansamong the parties concerned in accordance with universally recognized internationallaw, including the 1982 UNCLOS.

Appendix 6Excerpt from the Hanoi Plan of Action at Sixth ASEAN Summit 1998

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7.14. Continue efforts to promote confidence-building measures in the South China Seabetween and among parties concerned.

7.15. Encourage all other parties concerned to subscribe to the ASEAN Declaration onthe South China Sea.

7.16. Promote efforts to establish a regional code of conduct in the South China Seaamong parties concerned.

Appendix 7Excerpt from the Joint Communique of the 32nd ASEAN

Ministerial Meeting, Singapore, 23–24 July 1999

39. In reviewing the situation in the South China Sea, we recognised that several issuesremained a source of concern, including the overlapping and conflicting claims amongthe countries involved that remain unresolved. We emphasised the importance of resolv-ing these issues in the interest of peace and stability in the region. We reiterated theneed for the disputes to be settled peacefully, in accordance with the recognised prin-ciples of international law, including the 1982 UNCLOS, and to continue to exerciseself-restraint in the conduct of activities in the South China Sea. We recalled the ASEANForeign Minister’s agreement in 1996 to the idea of a Regional Code of Conduct whichwould lay the foundation for long-term stability in the area and foster understandingamong claimant countries. At the 6th ASEAN Summit, the ASEAN Leaders agreed topromote efforts to establish a Regional Code of Conduct in the South China Sea amongthe parties directly concerned. Pursuant to these agreements, we noted that as a follow-up to the ASEAN SOM recommendation in May 1999, the Philippines has submitted adraft Regional Code of Conduct for the immediate consideration of the ASEAN SOMWorking Group on ZOPFAN and SEANWFZ at its next meeting. We recognised thepositive contribution of the ongoing bilateral and multilateral consultations among theparties concerned at the intergovernmental level, the extensive consultations at the ASEAN-China Dialogue and the regular exchange of views in the ARF, and the ongoing Infor-mal Workshop on Managing Potential Conflicts in the South China Sea and encouragedtheir continuance.

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