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Foreign Policy

Game-Changer: Vietnam Mulls Legal Warfare against China

Dec 03 , 2019

Just few months removed from Vietnam’s chairmanship of the Association of Southeast Asian Nations (ASEAN), the Southeast Asian country has signaled a potentially game-changing policy shift. In early-November, Vietnamese deputy foreign minister Le Hoai Trung, speaking during a major conference in Hanoi, openly raised the prospect of legal action against China amid the South China Sea disputes. 

While emphasizing the value of diplomatic engagement, the Vietnamese diplomat dangled the prospect of third-party “fact-finding, mediation, conciliation, negotiation, arbitration and litigation measures” in order to constrain China’s maritime assertiveness.

“The UN Charter and UNCLOS [the United Nations Convention on the Law of the Sea] have sufficient mechanisms for us to apply those [legal] measures,” warned the Vietnamese diplomat, perhaps following the Philippines’ footsteps years earlier.

As the Philippines’ fraught legal warfare (lawfare) against China shows, however, Vietnam has more reason to use the ‘litigation measures’ threat than taking the Asian powerhouse to court altogether. Nonetheless, what’s clear is that Hanoi is desperately scrambling for counter-measures against China’s growing presence in its waters.

The Sisyphus Trap

Earlier this decade, the Philippines, then under the Benigno Aquino administration, made the unprecedented decision to file a compulsory arbitration case against China over the South China Sea disputes. It was not only the first arbitration case concerning the South China Sea disputes, but also the first time China was taken to international court over a border dispute.

Despite widespread skepticism, the Philippines successfully pushed for the establishment of an arbitral tribunal (under Art. 287, Annex VII, UNCLOS) to oversee the proceedings, which remained controversial amid China’s boycott. Three years late, the tribunal at The Hague issued an historic award against China’s ‘nine-dash-line’, which openly claims the South China Sea, as well as criticized its large-scale reclamation activities in the area.

Following the ‘three nos’ policy of non-participation, non-recognition, and non-compliance, China resolutely rejected the award, dismissing it as a ‘piece of trash paper.’ Some of Beijing’s sympathizers also questioned the validity of the ruling, given Beijing’s non-participation in the proceedings and the complicated jurisprudential nature of the disputes.

China’s brazen defiance, not to mention intimidation tactics against the Philippines, soon paid off. Under the newly elected Filipino President Rodrigo Duterte, the Southeast Asian country chose to ‘set aside’ the arbitration award in favor of rapprochement with Beijing. Soon, the two countries developed among the warmest bilateral relations in Asia, with both sides assiduously downplaying the maritime disputes amid improved diplomatic and economic ties. 

The astonishing improvement in bilateral relations even led Chinese Foreign Minister Wang Yi to openly praise Duterte, who has also downgraded the Philippines’ ties with Western partners in favor of its alliance with Beijing, as the “most respected and most important friend for President Xi Jinping and the Chinese people."

With the Philippines dramatically recasting its South China Sea policy and even emerging as a close Chinese diplomatic ally in the Association of Southeast Asian Nations (ASEAN), Vietnam rapidly emerged as Beijing’s most vocal critic in the region.

The Undeclared Alliance

Throughout the Philippines’ lawfare against China, Vietnam was largely opportunistic. On one hand, it prodded and praised Filipino officials for taking a risky yet consequential decision against China. Several Filipino officials and informed experts have told the author that Hanoi even suggested joining the fray, separately pursuing compulsory arbitration against China in both the Spratly and Paracel group of islands.

At the same time, Vietnam officially distanced itself from the Philippines’ arbitration award and refused to explicitly support legal warfare against China. With Manila switching sides under Duterte, however, Hanoi has been forced to change tact.

Speaking before the UN General Assembly in September, Vietnamese Foreign Minister Pham Binh Minh presented his country as the leading source of resistance to China’s maritime assertiveness. He called on Beijing to “exercise restraint and refrain from conducting unilateral acts, which might complicate or escalate tensions at sea, and settle disputes by peaceful means.”

“Vietnam has on many occasions voiced its concerns over the recent complicated developments in the South China Sea, including serious incidents that infringed upon Vietnam’s sovereignty,” the Vietnamese diplomat added, underscoring Hanoi’s position as China’s leading critic in Southeast Asia.

Meanwhile, Vietnam, armed with advanced Russian submarines, rapidly expanded defense cooperation with likeminded partners such as Japan, India, Australia, the European Union, and, most significantly, the United States. 

In the wide-cited Indo-Pacific Strategy paper, the Pentagon openly relishes how defense ties with Hanoi have “grown dramatically over the past several years” as both sides engage in ever-expanding “annual training exchanges and activities to enhance bilateral cooperation and interoperability with the Vietnam People’s Army, Air Force, Navy, and Coast Guard.” 

In recent years, Washington has rapidly assisted Vietnam’s maritime defense capabilities, including through the transfer of patrol vessels, a retrofitted U.S. Coast Guard high-endurance cutter, Scan Eagle Unmanned Aerial Vehicles, and a T-6 trainer aircraft. After decades of diplomatic hostility, American warships have now become regular visitors to Vietnam’s ports. 

This de facto alliance was fully on display ahead of this year’s ASEAN summit in Thailand, when David Stilwell, the U.S. assistant secretary of state for East Asia and the Pacific, told Southeast Asian states to toughen their position against China, stating, “This is your turf, this is your place. Vietnam has done a good job of pushing back…join Vietnam to resist actions that are destabilizing and effecting security.” 

It’s not clear whether Vietnam is willing to bear the brunt of Chinese diplomatic pushback should it to follow in the Philippines’ footsteps by filing an arbitration case under UNCLOS. But the Southeast Asian nation is clearly scrambling for ways to constrain China’s expanding presence in its waters. 

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