“We reaffirmed that the 1982 UNCLOS is the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones, and the 1982 UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out.”
Since 1992, the year ASEAN first issued a Declaration on the South China Sea, the sentence above has only appeared in the 36th and 37th ASEAN Summit Chairman’s Statements in 2020 – when Vietnam was the chair of the organization.
While other ASEAN countries prefer to merely mention the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in their Chairman’s Statements, Vietnam was more decisive in confirming the role of UNCLOS as a solid and comprehensive basis for establishing a legal maritime order. This resolute position runs counter to China’s rhetoric when it comes to the South China Sea dispute.
China has been negotiating a Code of Conduct (COC), an anticipated set of “effective and substantive rules” governing activities in the South China Sea, with ASEAN countries for more than 20 years. Beijing’s message to the bloc is clear: ASEAN countries should respect the historic claims and related rights of China, as demonstrated by the nine-dash line map, in the South China Sea.
However, these claims are extraneous to UNCLOS; in other words, they exceed the lawful limits of maritime zones and pertinent rights as provided in the Convention. The claims were even proven illegal by an UNCLOS arbitral tribunal in the award concluded in 2016.
With that background in mind, by stating that “the 1982 UNCLOS is the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones,” Vietnam, via the ASEAN Chairman’s Statement, rejected the historic claims of China in the South China Sea. Furthermore, Hanoi implicitly established a viewpoint, shared by other ASEAN countries, that those historic claims of China could not serve as a premise for the COC negotiations. The negotiation, instead, shall be based first and foremost, on the legal framework provided in UNCLOS, “within which all activities in the oceans and seas must be carried out.”
More importantly, although Vietnam, like ASEAN as a grouping, has never explicitly endorsed the 2016 South China Sea arbitration award, the statement comports with the judgment. One could infer that Hanoi would be more inclined to recognize and apply the legal arguments of the 2016 South China Sea award in its South China Sea negotiations with China.
Vietnam did not just express the idea about the primary role of UNCLOS in establishing maritime legal order at ASEAN meetings. One can find similar statements in the Note Verbale dated March 30, 2020, that Hanoi submitted to the Commission on the Limits of the Continental Shelf (CLCS), and the statement of Vietnamese Prime Minister Pham Minh Chinh at the United Nations Security Council (UNSC) on August 9, 2021.
There are two subtle elements in the above-mentioned statements of Vietnam which should not be overlooked. First, Vietnam seems poised to employ the wordings of collective actors, such as “we” (in their ASEAN Summit Chairman’s statements) and “States and international organizations” (in the statement at the UNSC), and generally vague wordings, such as “any maritime claims in the [South China Sea]” (in the Note Verbale to CLCS). These terms did not single out China or China’s claims and activities in the South China Sea. Second, the statements of Vietnam were delivered at public forums. This practice may be expected to help Hanoi gather support from the international community with respect to its maritime disputes with China.
This observation confirmed the soft balancing aspect of Vietnam’s hedging strategy against China. In other words, Vietnam, as a smaller country, takes advantage of its participation at multilateral forums (regional and international organizations) to advance its agenda – in this case, its maritime interests at sea – without directly confronting China. Vietnam has pursued this strategy since its normalization of diplomatic relations with China in 1991 although the situation in the South China Sea has changed substantively since then.
With respect to the development in the South China Sea, such a defensive strategy may not work, especially when Vietnam is a party directly involved in the dispute. First, the statements of Vietnam at public forums are arguably broad and vague. They were not prominent enough to help Hanoi get significant attention and support at the international level (not to mention that the process of mobilizing support from other countries at international forums is sometimes too slow to achieve a tangible goal). Second, they are unlikely to affect China. Not only does Beijing refuse to amend its unlawful claims, but China has been expeditiously advancing its actions to gain greater leverage at sea.
There are other options to manage and settle a maritime dispute besides just talking about it that Hanoi should take into account. Recently, small states have been more inclined to meticulously employ legal procedures provided in international law to protect their interests from bigger states. Timor-Leste initiated a compulsory conciliation against Australia to settle their maritime boundary dispute. Mauritius requested an advisory opinion of the International Court of Justice concerning the U.K.’s continued administration of the Chagos Archipelago, over which Mauritius claims sovereignty. Ukraine brought Russia before several tribunals under the UNCLOS regime to secure their maritime interests after the annexation of Crimea (in one case concerning the detention of three Ukrainian naval vessels, and a case concerning coastal states’ rights in the Black Sea, Sea of Azov, and Kerch Strait). And, of course, the Philippines filed an arbitration case against China’s South China Sea claims and actions, which resulted in the 2016 award heavily in Manila’s favour.
Those are the prime examples for Vietnam to consider to better secure its vital interests in the South China Sea.