ASEAN-CHINA NEGOTIATIONS ON SOUTH CHINA SEA

C O N F I D E N T I A L SECTION 01 OF 02 HANOI 000362

SENSITIVE
SIPDIS

FOR EAP/MLS

E.O. 12958: DECL: 04/17/2019
TAGS: PREL PGOV ECON VM
SUBJECT: ASEAN-CHINA NEGOTIATIONS ON SOUTH CHINA SEA
"GUIDELINES" STALLED BY DISPUTE OVER ASEAN'S NEGOTIATING
STATUS

REF: A. HANOI 134

B. 08 HANOI 1094

HANOI 00000362 001.2 OF 002


Classified By: PolCouns Brian Aggeler. Reasons 1.4 (b/d)


1. (C) SUMMARY: ASEAN and China have made progress in
developing "guidelines" to supplement the 2002 Declaration
of Conduct of Parties in the South China Sea (DOC),
according to MFA and think tank contacts. The parties
remain deadlocked, however, on a key point: whether
follow-on discussions, including the resolution of
disputes, will be conducted a) between China and ASEAN as
an organization or b) between China and the separate ASEAN
member states. This is much more than a procedural matter,
our contacts insist. While the rest of the guidelines
amount to little more than an anodyne restatement of
original DOC principles, the question of ASEAN's status
would have a significant bearing on future, more
substantive negotiations. Along these lines, Vietnam takes
its extended continental shelf "baseline" claim seriously
and plans to meet the May 13 UNCLOS deadline. Our
Vietnamese contacts have also taken a keen interest in
events surrounding China's March 8 harassment of the USNS
Impeccable, though they voice conflicting -- and
conflicted -- opinions about how the United States should
deal with such incidents. END SUMMARY.

MODEST PROGRESS
--------------


2. (C) According to officials from the MFA departments
most directly involved in the negotiations, ASEAN and China
have made progress on six of seven "guidelines" intended to
elaborate on the 2002 DOC. The guidelines themselves
remain in draft form and are considered internal documents;
however, as described by the Deputy Director of Marine
Affairs at the MFA's Border Commission, Nguyen Minh Hanh,
they restate the DOC's commitment to dialogue and the
non-use of force, and introduce modest initiatives on
technical cooperation and fishing. As such they are
welcome but not especially significant, Hanh said.


3. (C) Hanh and his counterpart in the MFA's Department of
International Law and Treaties, Deputy DG Nguyen Manh Dong,
emphasized that the guidelines, like the DOC itself, would
be a non-binding statement of principles. China and ASEAN
remain far apart on an actual Code of Conduct (COC). Asked
whether he thought the guidelines could lead to a COC, the
Deputy DG for the MFA's Southeast Asia Department, Ta Duy
Chinh, laughed and said simply, "no."

NOT JUST PROCEDURAL: ASEAN'S NEGOTIATING STATUS
-------------- --


4. (C) Our MFA and think tank contacts stressed that
although there was agreement in principle on six out of the
seven guidelines, China and ASEAN were deadlocked on point
number two, which stipulates ASEAN's role in future
negotiations, including the resolution of disputes. ASEAN
insists that it, as an organization, be recognized as the
representative of all ten member countries. China,
according to our contacts, prefers that discussions be
conducted on a bilateral basis, between China and
individual member countries.


5. (C) Both sides cite the DOC as precedent. China points
to the fact that the document has eleven signatories:
itself and the ten individual ASEAN member countries.
ASEAN maintains that the DOC represents, de facto, a joint
declaration between itself and China; and in any case,
ASEAN's charter now gives it standing as a separate legal
entity (ref. A). The guideline negotiations are themselves
an interesting exercise. ASEAN says that it is represented
by the Association's "plus China" Chair, Brunei; however,
all ten member states are present at the talks and
participate in discussions.


6. (C) Specialists at the MFA=affiliated Diplomatic
Academy of Vietnam (DAV) stress that ASEAN's disagreement
with China is, in fact, a substantive one. At issue is not
so much the guidelines, which are relatively

HANOI 00000362 002.2 OF 002


noncontroversial, but ASEAN's standing in future
negotiations. As the DAV's leading expert on Law of the
Sea issues, Tran Truong Thuy, described it, giving ground
now would set a dangerous precedent and would leave ASEAN
member countries in a vulnerable position dealing with
China. Thuy's DAV colleague, ASEAN specialist Nguyen Hong
Son concurred, but argued that there is an important
internal dynamic as well. Noting the recent decision by
the Philippines legislature to assert its archipelagic
baseline claims (a move that Vietnam, like China,
protested),Son emphasized that there were competing claims
among ASEAN members, particularly in the Spratleys.
Consensus may be hard to reach, but having ASEAN lead
discussions might help preclude the type of separate peace
that member states might otherwise be tempted to strike
with Beijing on their own.

VIETNAM'S CONTINENTAL BASELINE CLAIM
--------------


7. (c) Underscoring the issue is the May 13 deadline for
coastal states to submit extended continental shelf claims
to the Commission on the Limits of the Continental Shelf
(CLCS) pursuant to the UN Convention on the Law of the Sea
(UNCLOS). Our MFA contacts emphasized that Vietnam fully
intends to meet the deadline, understanding that while the
CLCS is unlikely to reject individual South China Sea
claims, future negotiations would likely proceed on the
basis of states' submissions.

COMMENT: VIETNAM'S SOUTH CHINA SEA DILEMMA
--------------


8. (C) In nearly all of our conversations, our Vietnamese
contacts were eager to hear U.S. perspectives on China's
March 8 harassment of the USNS Impeccable. Hesitant to
offer direct advice, our contacts' comments and questions
nevertheless betrayed a real ambivalence -- and said more
about Vietnam's own South China Sea dilemma than about the
incident itself. There is no more vexing, emotional issue
for Vietnam than its relations with China (ref. B),and the
country's relatively weak position in the South China Sea
dispute encapsulates Vietnam's frustrations. Recognizing
the Vietnam is caught in an inescapable, asymmetric
relationship with China, many of our contacts clearly
wanted a more bellicose reaction from the United States.
At the same time, these same contacts cautioned us not to
"provoke" Beijing, because this would be bad for Vietnam.
Ultimately, Vietnam is pursuing a pragmatic China policy,
but that doesn't mean it sits well, even among those who
support it.
MICHALAK