Vietnam is trying to defend itself in its maritime disputes with its much more powerful neighbor China in the South China Sea by naming and shaming it for its transgressions there. Some of the criticism is deserved. But much of it is hypocritical in that it ignores Vietnam’s own similar transgressions. Indeed, it is like the pot calling the kettle black.
Vietnam and its supporters accuse China of violating the UN Convention on the Law of the Sea (UNCLOS), building on and militarizing low-tide features, using its maritime militia to intimidate others and allowing its fishermen to operate illegally in others’ exclusive economic Zones (EEZs). But Vietnam is guilty of all these, and in its zeal to criticize China, the government and its supporters neglect acknowledging this.
Some accuse China of playing politics particularly in the negotiations for a Code of Conduct in the South China Sea, and this may be so. But they do not acknowledge that Vietnam is using the Association of Southeast Asian Nations to delay the conclusion of the Code of Conduct negotiations to advance its position against China.
Although the sovereignty dispute over the Chinese-occupied Paracels is only between Vietnam and China (including Taiwan), Hanoi selfishly insists that the geographic coverage of the Code of Conduct that is under negotiation include those islands and their attendant waters. This has been one of the main obstacles to agreement on a code.
Vietnamese government “scholars” have even tried to use Western think-tanks against China. A July 11, 2017, Rushford Report titled “How Hanoi’s Hidden Hand Helps Shape a Think Tank’s Agenda in Washington” implied sub rosa bias in the organization of the Center for Strategic and International Studies’ South China Sea conferences.
Carlyle Thayer, a well-known expert on Vietnam and the South China Sea, said that “the issue Greg Rushford raises is why CSIS is so coy about not revealing the financial details of what the DAV [the Foreign Ministry’s Diplomatic Academy of Vietnam] contributes and this might affect the selection of speakers.”
This caused Thayer – and relevant others – to lose “confidence in both the CSIS and DAV.” This incident may be just the tip of an iceberg of Vietnam’s attempts to influence think-tanks in its favor in its disputes with China.
Vietnam claims to support freedom of navigation, the core tenet of the US rubric of a “Free and Open Indo-Pacific” that many see as an incipient anti-China coalition. Indeed, the US appears to be trying to entice Vietnam to join this effort.
But the reality is that Vietnam does not support unfettered freedom of navigation for warships. Indeed, it has long had restrictions regarding entry of foreign warships to its territorial waters, similar to those of China.
Vietnam’s prior-notification regime and a territorial sea baseline that the US believes violate UNCLOS have been challenged by US freedom of navigation operations (FONOPs) in the recent past. Moreover, US challenges of prior permission for warships to undertake innocent passage in territorial waters around the Paracels are directed not only at China but also at Vietnam.
Further, the US does not recognize Vietnam’s claims to Spratly features that are not above water at high tide and presumably opposes their militarization just as it does those occupied by China.
These analysts continue to beat the dying horse of China’s nine-dash-line claim that has been formally adjudged by an international arbitration panel to be a violation of UNCLOS. But they fail to acknowledge that China may have an UNCLOS-compatible claim to part of Vietnam’s continental shelf and EEZ.
Beijing could argue that the Paracels belong to China, that they are legal islands, and that they generate an EEZ and a continental shelf extending out to 350 nautical miles. Those claims could encompass some of the northern part of the area in contention and necessitate the establishment of boundaries.
A previous arbitration result suggests that the Paracels may not generate EEZs or continental shelves – that is unknown – and at least some of the area is legitimately disputed until an arbitration or an agreement determines otherwise.
According to the Guyana-Suriname precedent, until a boundary is determined neither country should unilaterally proceed with exploitation there.
Also there could be oil or gas deposits that straddle potential boundaries. If so, the two claimants should refrain from unilateral exploitation near a potential boundary and negotiate a unitization agreement so that one does not suck the oil or gas out of the other’s potential portion.
As for militarization of the area, China has occupied and militarized eight features, including two that were under water at high tide and thus cannot be claimed as territory. But Vietnam occupies and has militarized some 22 outposts – several of them low-tide features – and its military, maritime militia and coast guard are deployed to the area.
It has also deployed rocket launchers on five features within striking distance of Chinese-occupied features.
Vietnam-flagged vessels are the most frequent illegal fishers in the South China Sea. This is not surprising, since contrary to popular perception, it also has the largest fishing fleet operating in the South China Sea – 129,519 vessels versus 92,312 for China.
When China’s South China Sea Probing Initiative used remote sensing data to reveal that many Vietnamese fishing boats were operating illegally in China’s internal and territorial waters – as well as in its undisputed EEZ – and that some could be maritime militia, Vietnamese analysts denied it.
But Vietnam’s lack of control of its fishing fleet was confirmed in 2017 when the European Commission issued it a “yellow card” that is still in force.
Under European Union regulations, “non-EU countries identified as having inadequate measures in place to prevent and deter illegal, unreported, and unregulated fishing may be issued with a formal warning (yellow card) to improve. If they fail to do so, they may have their fish banned from the EU market (red card).”
This warning may not have been given specifically because of Vietnam’s IUU fishing in the South China Sea, but it does reflect a general lack of control of Vietnam-flagged fishing vessels. China has never received a “yellow card.”
In some ways China may be a worse violator of the maritime “international order” in the South China Sea. But this is only a matter of degree, not principle. The point is there are no angels in the South China Sea and those who live in glass houses should not throw stones.
All scholars working on South China Sea issues should be objective and balanced in their analyses and not cherry-pick facts to support predetermined preferences. That is expected of officials, politicians and hired-gun lawyers, not scholars.