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