As one of the main claimant countries of the South China Sea dispute, Vietnam has in recent years taken a leading role in ASEAN to address China’s aggressive activities.
Nevertheless, owing to the inherent limitations of this regional institution, along with the current influence of Covid-19, resorting to ASEAN mechanisms is not the best option if Vietnam hopes to resolve the dispute. Instead, the government should consider bringing the case to international arbitration and upgrading the relationship with the US to a strategic partnership. These stern moves may compel China to curtail its increasing assertiveness.
The South China Sea is one of the most hotly contested areas in the world, with several claimants within the region disputing territory. But what is notable and worth mentioning is Chinese provocation in recent years. In April last year, amid the spread of the coronavirus, China sunk a Vietnamese fishing vessel near the disputed Paracel Islands, sent the Haiyang Dizhi 8 ship into Vietnam’s exclusive economic zone, and announced the establishment of new administrative areas near Vietnam’s declared maritime entitlements.
Confronting Chinese assertiveness, Vietnam has been mainly implementing multi-dimensional diplomatic methods for years. To demonstrate, the Vietnamese government endeavours to directly negotiate with China over the dispute and carry out several exchanges of high-level visits. It has also utilised the media to publicly condemn Chinese activities in the South China Sea.
Raising the issue through ASEAN is another strategy applied by Hanoi with the aim of swaying regional opinion in its favour. In fact, in addition to past attempts, Vietnam has brought up the dispute for discussion in the 36th ASEAN Summit and the 53rd Foreign Ministers’ Meeting during its 2020 ASEAN chairmanship.
With a result of a joint statement in June last year calling for full compliance with the United Nations Convention on the Law of the Sea (UNCLOS), Vietnam was expected to lead the region to take a stronger and clearer stance on the South China Sea conundrum. Nonetheless, when taking a deeper look at the diversity and fundamental working principles of ASEAN, one had better not put too much hope on this regional institution.
ASEAN functions on the norms of non-interference and consensus-building. Hence, with regard to the issues deemed internal, other nations tend to rarely express strong reactions. The Rohingya crisis could be viewed as a prominent example
To begin with, ASEAN is too diverse of an institution to come up with collective action for the South China Sea matter. It consists of ten members with varying levels of economic and military power and a wide range of political regimes. Therefore, to “win the heart and mind” of all members would be almost impossible for Vietnam. What’s more, the institution functions on the norms of non-interference and consensus-building – hence, with regard to issues deemed as internal matters, other nations tend to rarely express strong reactions. The Rohingya crisis in Myanmar could be viewed as a prominent example of this.
From the nature of ASEAN, it is understandable why the region fails to come up with a joint strategy towards the South China Sea conundrum, despite a long and tiring debate between members. Additionally, inside of ASEAN, there are certain nations that possess an intimate and dependent relationship with China, namely Laos and Cambodia, who receive substantial investment and financial aid from Beijing. Also, China remains on the list of crucial trading partners for many other states in the region. As a consequence, opposing China is not considered a favourable policy. This economic reliance will, undoubtedly, influence their desire to take sides in the South China Sea issue.
The ongoing Covid-19 pandemic has complicated the situation even further. Given the restrictions on social distancing, normal negotiations and consultations between ASEAN members through physical meetings become mostly impossible. Vietnam clearly strives to establish the Code of Conduct as soon as possible, but considering the current situation, there is a high chance that COC discussions will be delayed. This, in turn, accommodates China’s goal of buying time to further expand and consolidate its control over the South China Sea through building military bases.
Still, Vietnam should keep in mind that even if the COC is completed, it will not necessarily change the game. Indeed, many scholars pointed out the potential weaknesses of COC, with Dr Vo Xuan Vinh of the Institute for Southeast Asian Studies at the Vietnam Academy of Social Sciences even concluding that the completed version would be “not meaningful”. Will China strictly abide by the established rules? The answer is, worriedly, no.
The US is like-minded with Vietnam regarding the issue of the South China Sea. There were many times when the US policymakers publicly criticised the ‘completely unlawful’ activities of China
Fortunately, Hanoi still has other alternative measures, which could prove far more effective. It is a ripe time for the country to bring the case to the international court whilst strengthening its relationship with the US.
First, the recommended policy of suing China can bring many benefits to Vietnam. According to Professor Peter Dutton, the decision of the court can bring “clarity over its legal rights to resources in the region” and hence “stop Chinese interference so that Vietnam can move forward with exploitation contracts for its offshore gas and oil deposits”. Moreover, should Vietnam win the case, it can highlight China’s illegal nine-dash line claim and rally more international support for its side.
Under article 287 of UNCLOS, the maritime dispute can be settled by four courts including the International Tribunal for the Law of the Sea, the International Court of Justice, Annex VII, and Annex VIII. However, if deciding to go to the court, Vietnam should choose Annex VII. This is because of the nature of the dispute between Vietnam and China, which is a dispute over the rights on the Exclusive Economic Zone and the Continental Shelf.
With Annex VII, even if the other party, China, does not appear before the court, the court will still proceed if requested, which might be the possible scenario for Vietnam. Since the award would be “final and without appeal” and “complied with by the parties to the dispute”, Vietnam had better consider a lawsuit seriously. In the meantime, Vietnam should prepare persuasive evidence to sue China over article 56, 58, and 77 of UNCLOS on the rights of the coastal State in its EEZ and Continental Shelf in order to increase its likelihood of winning.
Second, Vietnam should enhance its partnership with the US and consider upgrading the relationship into “strategic comprehensive”. The Vietnamese government might already be considering this partnership given that it was hinted at in the 2019 Viet Nam National Defence White Paper, which stated: “Depending on circumstances and specific conditions, Viet Nam will consider developing necessary, appropriate defence and military relations with other countries.”
Inherently, the US is like-minded with Vietnam regarding the issue of the South China Sea. There were many times when the US policymakers publicly criticised the “completely unlawful” activities of China while calling Vietnam a “cooperative maritime partner”. At the current time, it is a wise choice for Hanoi to seek further support and assistance from Washington. For instance, it can ask for help in enhancing fisheries management, surveillance systems, and law enforcement capabilities. Vietnam should also increase security cooperation through joint exercises and strategic dialogues.
Having a strong partner by its side, Vietnam’s message for China will be more powerful and far-reaching.
Nguyen Hoang Anh Thu, a senior student majoring in International Relations at Tokyo International University and a research fellow at Vanguard Think Tank for Trans-Pacific Relations (VTT).