Between 4 July and 24 October 2019, China sent survey ship Haiyang Dizhi 8 (HD8) to conduct four seismic surveys in the waters within 200 nautical miles of Vietnam. Data collected by the South China Sea Chronicle Initiative shows that the HD8 came as close as 65.2 nautical miles from the coast of Phu Yen Province and covered an area of roughly 110,000 square kilometres. At the same time, Chinese Coast Guard (CCG) vessel Haijing 35111 harassed the Japanese rig Hakuryu-5 chartered by a Vietnamese joint venture with Russia’s Rosneft in Block 06.01 in waters about 190 miles southeast of Vietnam.
This was not a standalone act. In May 2019, Haijing 35111 obstructed the activities of Malaysia’s drilling rig in the area near Luconia Shoal, 1000 miles from the Chinese mainland but 90 miles from East Malaysia. Earlier, the Chinese maritime militia blocked the Philippines from approaching Thitu Island. The Washington-based Asia Maritime Transparency Initiative (AMTI) revealed that China maintains a permanent presence in all critical areas of this stretch of ocean, including Luconia Shoal, Second Thomas Shoal and Scarborough Shoal.
China is far more powerful than other claimants. In terms of naval power, China is roughly 10 times bigger than Vietnam and outnumbers all Southeast Asian navies combined. Its coastguard is also the strongest. As a show of force, China sent its 12,000-tonne CCG vessel Haijing 3901 — dubbed ‘the monster’ — and a fleet of 40 ships to escort HD8. These ships can operate for long periods of time far from the mainland thanks to refuelling and replenishment from China-built artificial islands in the Spratlys.
The underlying problem is a dispute over the legality of conflicting claims where China has consistently refused third party adjudication. China justified the HD8 undertaking as a reaction to Vietnam’s new drilling in Block 06.01, which lies within its infamous nine-dash line. On the other side, the Vietnamese viewed both the survey and China’s interference as unlawful under UNCLOS. From Vietnam’s perspective, China is deliberately attempting to turn ‘undisputed waters’ into ‘disputed spaces’ as a pretext to prevent coastal states from working with international oil firms in these areas, a term China is pressing in the Code of Conduct negotiations.
Vietnam’s key conundrum is whether it should risk open conflict with China to defend its maritime sovereignty. Strategically, the situation is not too dismal for Hanoi. Its elongated mainland and improved defence capabilities, alongside its experience, makes Vietnam both capable and indomitable within ASEAN. Its multi-layered defence system can inflict substantial costs upon any unlawful operation near its coast. But any conflict would cause major disruptions to Vietnam’s development priorities and must remain a last resort.
It could be more tempting for Hanoi to accept a Beijing-pressed joint exploitation proposal and sideline UNCLOS. It may not be worth fighting an uphill battle alone against China to defend such a frail covenant. And Vietnam is standing alone — Malaysia and the Philippines seem to care less about maritime rights and more about their economic relationships with China.
Though expressing support for UNCLOS and a rules-based order in principle, other powers — with the exception of the United States — are reluctant to openly criticise China’s intrusion into Vietnam’s EEZ. But giving in to Beijing could be more precarious as it may lead to further expansionism.
Against all odds, Hanoi has stubbornly defended UNCLOS. Vietnam’s leaders, President Nguyen Phu Trong and Prime Minister Nguyen Xuan Phuc, articulated a clear and consistent message that Hanoi will not concede on issues of independence and territorial integrity. This message was backed up by the deployment of 50 ships to affirm Vietnam’s interests, though with considerable restraint.
Hanoi has never ruled out the military defence option but resorting to force clearly represents a diplomatic failure. Though its defence force is combat-ready, Hanoi’s policy is to first exhaust all peaceful measures. Vietnamese officials have reportedly communicated dozens of protests to their Chinese counterparts. While its ASEAN partners pursued quiet diplomacy, Vietnam’s foreign ministry issued four public statements condemning China’s breach of UNCLOS.
Vietnam will likely scale up its response if the stand-off drags on. Other options have been discussed, such as bringing the case to the United Nations, international media campaigns, legal action, national rallies or forceful interventions. Though playing a prudent game, political elites in Hanoi are not insensitive to rising nationalism at home. The aim is not escalation, but gradually signalling the right message of resolve to Beijing.
As Vietnam stands its ground and attests to the legitimacy of its claims in public, the ball is in Beijing’s court to decide whether China wants to be a responsible emerging power.
Do Thanh Hai is a Senior Fellow at the Bien Dong Institute for Maritime Studies, Diplomatic Academy of Vietnam. The views expressed here are solely those of the author and do not represent the views of any government or institution.
Unfortunately, this piece is typical of the public output of current Diplomatic Academy of Vietnam researchers. I get that a government research institute has to present the country’s position. But policymakers need to know all sides of an issue in order to make well-informed decisions. However this piece is so one-sdied that it neither contributes to the international intellectual debate nor to clear-eyed Vietnamese national policy making. Indeed it is yet another example of Vietnam’s use of “academia” to promote its political position on the South China Sea. https://ippreview.com/index.php/Blog/single/id/1088.html
Do Thanh Hui assumes that China’s claim to part of Vietnam’s EEZ and continental shelf is based on “its infamous [and discredited] nine-dash line]. But China may have legitimate basis for a claim to part of Vietnam’s EEZ and shelf.
China might argue that technically, the ruling on the legal status of the Spratly features applies only to the features examined and named by the Philippines-China arbitration panel– and it only applies to the Spratlys– not the Paracels—at least not directly.
China claims among others the fourth largest feature in the Spratlys – Spratly—which lies about 200nm to the north east of Vanguard Bank and is occupied by Vietnam. The status of Spratly was not examined or determined by the arbitration panel. If China owned the Spratly feature and it was ruled a legal island, it could generate a 200 nm EEZ and a continental shelf extending as far as 350 nm. Boundaries between China and Vietnam would need to be established. Ordinarily, such a boundary would be closer to the island than Vietnam’s mainland. Indeed, precedents suggest that an opposing island would get very little EEZ and shelf versus a mainland. But that is unknown and to be determined in this specific case.
According to the U.S., Vietnam uses an excessive baseline that extends its EEZ and continental shelf in this area further than allowed by UNCLOS. https://2009-2017.state.gov/documents/organization/58573.pdf Moreover, equitable principles would play a role in boundary delimitation– and that is a crap shoot. For example, China might argue that it has the greater need for the resources based on its greater population. As long as the status of Spratly is unknown and until a boundary is determined, the area is disputed and according to the Guyana-Suriname precedent, neither country should unilaterally proceed with exploitation. https://academic.oup.com/jids/article/10/1/160/5133609; http://legal.un.org/riaa/cases/vol_XXX/1-144.pdf This means China might argue that at least the eastern portion of Vietnam’s claims in that area is disputed and its request that Vietnam have Spain’s Repsol—and other foreign oil companies – – cease their exploitation activities in the area may be reasonable.
China might also 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 nm. Those claims could encompass some of the northern part of the area in contention and again necessitate the establishment of boundaries.
The previous arbitration result suggests that the Paracels may not generate EEZs or extended continental shelf. But again that is unknown – and at least some of the area could be legitimately disputed until an arbitration or an agreement decides otherwise.
The following is what I consider an objective summary of the situation. Both China and Vietnam have overlapping claims to some of the same area. Vanguard Bank and the immediate surrounding area may well be eventually adjudicated to belong to Vietnam. But this has yet to be determined and this assessment does not extend to Vietnam’s entire claimed EEZ and shelf. China claims at least the outer parts of both and has put out blocks for lease that overlap Vietnam’s already leased petroleum blocks 130-133 and 154-157. According to a 24 August 2019 Open Letter from the President of the Viet Nam Society of International Law to the President of the Chinese Society of International Law, China has stated that “the operation areas of the survey vessel HD-8 and its escort vessels are within the maritime zones under China’s jurisdiction”. China has been—with words and now actions—demanding that Vietnam’s contractors cease exploitation pending negotiations. Vietnam’s claims may be legally stronger but that remains to be determined and until it is neither should be allowing exploitation of the disputed area.
But the decision for Vietnam’s leaders to pursue arbitration against China is more political than legal. They have to weigh the advantages and disadvantages.
If its complaint passes the procedural hurdles and is finally victorious, the advantages are that it will satisfy Vietnam’s nationalists, recover some lost pride, credibility and legitimacy for the government, and bring international law to its side – for what that is worth in these days of increasingly raw power politics.
But the practical disadvantages far outweigh the theoretical advantages.
First, even if the panel decides it has jurisdiction and that the complaint is admissible, Vietnam may not ‘win’ on all points. In other words, it is possible that Vietnam will lose part of its claimed EEZ and shelf. Second, even if it does ‘win’, the ruling cannot be enforced as we have seen with the Philippines-China arbitration result.
Third, and perhaps most important, by ‘internationalizing’ the dispute, Vietnam will have alienated and angered its permanent giant neighbor with whom it must live into the indefinite future. It will likely suffer economically, politically, and possibly militarily. So Vietnam’s leadership would have to decide if it really wants to confront China on the international political stage.
Some have suggested that Vietnam should move closer to the U.S. to counter China. But does its leadership really want to side with the U.S. – a declining power –against China – its permanent neighbor and inexorably rising regional and world – power?
Such claims by China may not eventually be successful. And they would leave China open to charges that it is using UNCLOS when it helps it and ignoring it when it does not—like the U.S., Russia, and the U.K. But such claims based on the Spratly feature and the Paracels raise the possibility that there is a valid dispute over at least part of the area. In sum, Vietnam has the better argument for its claim to Vanguard Bank and part of the larger area in question. But politics may well trump legal “correctness” in Vietnam’s decision making.
Mark J. Valencia
Adjunct Senior Scholar
National institute for South China Sea Studies
Haikou, China