Vietnam is believed to be inching towards filing an international arbitration case against China’s expansive claims in the South China Sea, a potential legal response to rising Chinese intimidation and harassment in the contested waterway.
Analysts monitoring the situation believe Hanoi could file such a petition, possibly similar to the one the Philippines filed and won against China at The Hague’s Permanent Court of Arbitration in July 2016.
That decision ruled that China has “no historical rights” under its “nine-dash line” which Beijing uses to claim sovereignty to nearly 90% of the sea. China refused to participate in the proceedings and said it would “ignore” the decision, which lacked an enforcement mechanism.
“There have been significantly more voices within the ruling elite in Hanoi calling for bringing China to court” since last year, said Alexander Vuving, professor at the Daniel K Inouye Asia-Pacific Center for Security Studies in Honolulu, Hawaii.
Derek Grossman, a senior defense analyst at the RAND Corporation, a Washington-based think tank, said he had no confirmation that Hanoi is moving forward with an international case, but “I have heard from government sources that the proposal is under serious consideration.”
A Vietnamese diplomatic source who spoke to Asia Times on the condition of anonymity said discussions in Hanoi about an international lawsuit are now more intense than previously.
At an annual South China Sea conference hosted last November by the Diplomatic Academy of Vietnam, Vietnam’s deputy foreign minister Le Hoai Trung publicly raised the issue of an international case, the first time in nearly five years that a senior official had broached it.
“The UN Charter and UNCLOS 1982 have sufficient mechanisms for us to apply those measures,” Trung said at the time, referring to the United Nations Convention on the Law of the Sea (UNCLOS), an international treaty.
Vietnam has rising motivation to take China to court. The Chinese Haiyang Dizhi 8 geological survey ship spent much of 2019 harassing a Vietnamese joint venture with a Russian firm that was exploring for energy in Vietnam’s exclusive economic zone (EEZ) in the South China Sea.
That intimidation has continued this year, in spite of the coronavirus crisis. On April 3, a Vietnamese fishing vessel was sunk by a Chinese coast guard ship near in disputed waters near the sea’s Paracel Islands.
Then, on April 13, the Chinese Haiyang Dizhi 8 geological survey ship was redeployed to monitor Vietnam’s EEZ.
Days later, the Chinese government announced the creation of new administrative areas in the Paracel and Spratly Islands, parts of which Vietnam also claims.
Vietnam isn’t the only rival claimant in the South China Sea to have faced recent Chinese intimidation. Last month, Chinese vessels patrolled areas of the South China Sea that lie in Malaysia’s EEZ, including an area where it is conducting energy exploration.
While taking the matter to an international court may give Hanoi a certain symbolic victory, Beijing is unlikely to abide by any potential ruling in Vietnam’s favor. And the move could escalate tensions closer to conflict, analysts say.
But there is a sense that Vietnam is running out of options. Bill Hayton, a South China Sea expert at the Chatham House think tank, told Reuters last November that an international lawsuit is maybe “the only thing left for Vietnam.”
Speaking to Asia Times, Honolulu-based analyst Vuving opined that “Hanoi may think it has no other option [but] to sue China at an international court.”
Whenever Beijing opposes Hanoi’s actions in the South China Sea, the Vietnamese government has basically two options: either publicly criticize China or attempt to solve tensions through communist party-to-party meetings with Beijing.
When Beijing announced the new administrative centers last month, Vietnam’s Foreign Ministry spokeswoman Le Thi Thu Hang issued a statement deploring the move. “Vietnam demands that China respect Vietnam’s sovereignty and abolish its wrongful decisions,” it said.
Last August, Vietnam analyst Le Hong Hiep wrote in regional media that “diplomacy seems…to be the first and also the last line of defence [for Vietnam] against China’s assertiveness in the South China Sea.”
However, Hanoi might sense the time is ripe for a new legalistic approach, one that could sway international opinion in its favor.
Indeed, if there was ever a time when the Vietnamese people were most inclined to rally around the ruling Communist Party and when Beijing was at its weakest and most vulnerable, it is arguably now.
Global frustration with China, chiefly because of its handling of the coronavirus crisis and its subsequent disinformation campaign, has not been so pronounced in decades.
The China Institutes of Contemporary International Relations, a think tank affiliated with the Ministry of State Security, China’s top intelligence body, apparently claimed in a recent report that “global anti-China sentiment is at its highest since the 1989 Tiananmen Square crackdown,” according to a Reuters report paraphrasing of the report.
At the same time, the Chinese Communist Party (CCP) has been weakened domestically as economic growth, the long-ruling party’s main source of legitimacy, is expected to contract in 2020 for the first time in four decades.
Vietnam’s ruling Communist Party, however, has won praise at home and abroad for its competent and uncharacteristically transparent handling of the Covid-19 crisis. Vietnam is also likely to be a big benefactor as the US, Japan and European states seek to “decouple” their economies and shift their supply chains away from China.
Vietnam can also leverage its current strong international standing to make its case against China.
Vietnam is this year’s rotating chair of the Association of Southeast Asian Nations (ASEAN), a position it will likely try to use to forge a more united front amongst Southeast Asian neighbors, many of which have their own rival claims against China in the sea.
Vietnam also holds the non-permanent seat at the UN Security Council for 2021-22, a position that allows it to raise the issue of Chinese “aggression” to other Security Council members, said Carl Thayer, emeritus professor at the University of New South Wales in Australia.
But the problem, he noted, is obvious: “China has the right of veto.” According to Thayer, “Vietnam has been ambiguous about what legal action it would take and what issues it would raise.”
Instead of lodging a complaint through the UN Security Council, Hanoi could pursue the “Philippines model” by making a claim under the UNCLOS treaty.
If it takes that route, Hanoi will need to decide whether it files a case at the International Tribunal on the Law of the Sea, the International Court of Justice, an Arbitral Tribunal or a Special Arbitral Tribunal.
“All state parties to UNCLOS are free to nominate which of the four mechanisms it prefers. If a state has not done so, then the default position is the Arbitral Tribunal. This is what occurred with the Philippines and China,” Thayer explained.
If an Arbitral Tribunal rules in Vietnam’s favor, which will require Hanoi to prove several debatable issues over its own historic claims, then “Vietnam would gain by the publicity it received and the political pressure it would put China under,” Thayer said.
It would also give Vietnam “grounds for resisting Chinese actions and would provide a basis for the international community to support Vietnam” but “there is very little Vietnam could do” if Chinaignores the ruling, as it did with the Philippines, Thayer said.
Indeed, there are risks of taking China to court. Writing last August, analyst Le Hong Hiep noted that senior Vietnamese officials are wary of taking China to arbitration as “even if Vietnam wins the case, it will not stop China from encroaching into the country’s waters in the future.”
“Even worse,” he added, “it may make China more aggressive and further destabilise Vietnam–China relations, which may threaten Vietnam’s economic prospects and put the country into a precarious strategic position.”
RAND Corporation analyst Grossman asserted last year that if China did seek conflict, Vietnam would be the Chinese military’s “preferred warm-up because it would offer the military much-needed combat experience in the air and naval domains, without the threat of US intervention, and in a winnable situation.”
It’s unclear if Vietnam is being pressured by international allies, namely the US, to file an arbitration case against China in hopes of establishing a second legal precedent against Beijing’s sea claims. Such a verdict, analysts argue, would give the US more ammunition to intensify its freedom of navigation operations in the South China Sea.
It is “important to highlight how the Chinese Communist party is exploiting the world’s focus on the Covid-19 crisis by continuing its provocative behavior,” US Secretary of State Mike Pompeo said to Southeast Asian foreign ministers in a video conference last month.
“The United States,” Pompeo said, “strongly opposes China’s bullying; we hope other nations will hold them to account, too.”
In many ways, Vietnam is in a Catch-22 situation. Its attempts at diplomacy and public protest have failed to deter China, as recent intimidation tactics have underscored.
But internationalizing their tensions might push Vietnam and China – and, by extension, the US and China – closer to a point of armed conflict, which Hanoi likely knows it has no chance of winning without major foreign backing.