December 29, 2014, by editor
South China Sea Arbitration: Vietnam Makes Submission to Court
Written by Alex Calvo.
The South China Sea is once again in the news, following Hanoi’s decision to join forces with Manila and make a submission to the Permanent Court of Arbitration (PAC), asking that it assert its jurisdiction, give “due regard” to Vietnam’s rights and interests in the Spratlys and Paracels, and in her EEZ and continental shelf, and declare China’s nine-dash line “without legal basis”. The Vietnamese submission was a response to China’s decision to publish a position paper on 7 December laying down her views, albeit without making a formal submission to the Permanent Court of Arbitration in the Hague, concerning the Philippines’ request for arbitration under UNCLOS (the United Nations Convention on the Law of the Sea). The court is currently considering whether it has jurisdiction to rule on the case. A third relevant development in the last days of 2014 was a study by the US State Department, released on 5 December. Once again, it is clear that the legal battle launched by Manila is being closely followed by all the different capitals concerned.
China has rejected from day one the Philippines’ resort to international arbitration, arguing that she had opted out of compulsory arbitration on sovereignty issues and that the suit was contrary to bilateral agreements to solve disputes by negotiation. These two points were among the main pillars of Beijing’s statement laying down her position, a paper which some observers believe shows how China cannot ignore international legal proceedings but which has not been formally submitted to the PAC. The reaction to China’s paper did not just come, as expected, from the Philippines, but also seems to have finally prompted Hanoi’s decision to join the battle. On 11 December, Vietnamese Foreign Ministry Spokesman Le Hai Binh made the following remarks in answer to questions from the press:
“Once again, Viet Nam reiterates that Viet Nam has full historical evidence and legal foundation to reaffirm its sovereignty over the Hoang Sa [Paracel Islands] and Truong Sa [Spratly Islands] archipelagoes, as well as other legal rights and interests of Viet Nam in the East Sea [Biển Đông]. It is Vietnam’s consistent position to fully reject China’s claim over the Hoang Sa and Truong Sa archipelagoes and the adjacent waters, as well as China’s claiming of ‘historic rights’ to the waters, sea-bed and subsoil within the ‘dotted line’ unilaterally stated by China”.
The spokesman also confirmed that Hanoi had “expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam”.
It should be noted that Hanoi did not join Manila as co-plaintiff in the case, but instead just lodged a statement with the Permanent Court of Arbitration. This has been taken by some observers as flowing from a desire not to “alienate Beijing”, while defending the country’s position. Furthermore, an un-named “regional source” told the South China Morning Post that Vietnam’s action “is as much to protect Vietnamese interests vis-à-vis the Philippines as it is directed against China”, while another added that “There is reportedly no consensus in the Vietnamese Politburo on this subject. This is probably as far as the Politburo is prepared to go”. The same newspaper also quoted a lawyer, Rodman Bundy, who believes that Hanoi’s statement “should be ignored by the tribunal given that Vietnam has no standing in the arbitration”, adding that the move was “a cat-and-mouse game going on outside the strict procedure of the arbitration”. Also speaking to the South China Morning Post, Australian Professor Carlyle Thayer said that Vietnam’s move was a way for the country to put forward her interests, adding that this amounted to “a cheap way of getting into the back door without joining the Philippines’ case”. Gregory Poling, a South East Asia analyst at the Washington-based think tank Center for Strategic and International Studies, believes that Vietnam’s statement had the same goal as “the Chinese position”, namely to “ensure that the justices hearing the case consider the arguments contained in the document, but do so in a way that is less provocative than Vietnam actually joining”.
Concerning China’s official reaction to Vietnam’s paper, on 12 December Foreign Ministry Spokesperson Hong Lei made some remarks in reply to a media question on Hanoi’s move. After repeating Beijing’s mantra about China’s “indisputable sovereignty over the Nansha Islands and their adjacent waters” and the “indisputable fact that the Xisha Islands are an integral part of China’s territory”, he said that “China will by no means accept Vietnam’s illegal and invalid sovereignty claims over Nansha and Xisha Islands”. Hong called on Hanoi to “work with China to resolve relevant disputes over the Nansha Islands through consultation and negotiation on the basis of respecting historical facts and international law so as to jointly safeguard peace and stability in the South China Sea” and insisted that Beijing would not take part in the arbitration proceedings, for the reasons explained in detail in the 7 December position paper, and that “China’s position will not change”.
Manila’s legal bid to cut short China’s maritime expansion is of course part of a wider strategy, involving also rearmament (among others, purchasing FA-50 light fighters from South Korea) and closer defence links with the US and regional powers like Japan and Vietnam. Similarly, Hanoi’s decision to join the international arbitration case should not be seen in isolation, but rather as part of a multi-faceted strategy which just like Manila’s also involves rearming and developing closer ties to other countries, including Japan (which is providing patrol boats to her coastguard), India (a key partner in developing offshore oil and also a patrol boat supplier), Russia (essential weapons supplier and energy industry partner), and the United States (whose Pacific Fleet commander recently visited Vietnam). Concerning bilateral relations between Vietnam and the Philippines, their respective claims are to some extent overlapping, and therefore the two countries are not completely at one. However, there is some evidence for tighter links, not least of which the port visit in November 2014 by two Russian-built Vietnamese frigates to Manila, the country’s first ever.
To conclude, while the ultimate fate of the arbitration is still unknown, the court having to decide first of all whether it has jurisdiction, Manila has already scored two goals. First, she has forced Beijing to publish a position paper. While not amounting to taking part in the proceedings, it means that China has come to the conclusion that she cannot simply ignore them. Second, she has prompted Vietnam to also address the court, although again without this amounting to taking part in the proceedings. However relevant these developments may be, their impact on the ultimate fate of the South China Sea will be limited. At the end of the day, no legal arguments can stop a determined actor. Only strength can. This strength has to be accompanied by a narrative, though, and it is here that the arbitration case’s main long-term impact may lie.
Alex Calvo is a guest professor at Nagoya University (Japan) and CPI Blog Regular Contributor. He focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. He is also a member of the Center for International Maritime Security (CIMSEC). Dr Calvo is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here. Image Credit: CC by MikeRussia/Wikimedia Commons.