South China Sea : if Vietnam files suit, China may take part in legal proceedings

Participating in an arbitration would be a shift from tactics in the case Beijing lost unanimously to the Philippines in 2016. Analysts debate different responses Beijing could take after Hanoi signals it may seek an arbitral resolution to South China Sea disputes

Beijing is contemplating what countermeasures it can take if Vietnam takes it to international court over territorial disputes in the resource-rich South China Sea, insiders say.

One option would be to actually take part in the legal proceedings, which it did not do when facing a similar arbitration case brought by the Philippines four years ago, which China lost.

“I think preparations are under way,” said Wu Shicun, president of the National Institute for South China Sea Studies in Haikou, the capital of China’s island province, Hainan.

“It’s unlikely we’re turning a blind eye while Vietnam is moving into [legal action].”

Beijing could countersue Vietnam over the sovereignty of disputed parts of the Spratly Islands, Wu said.

It could also declare lines around the Spratlys to consolidate its claims and restart its oil and gas explorations there, which were suspended in 1994 after strong opposition from Hanoi, he said.

Beijing often cites a diplomatic note in 1958 signed by Pham Van Dong, then North Vietnam’s prime minister, as key evidence that Vietnam recognised China’s sovereignty over the Paracel and Spratly Islands.

But Vietnam has argued that the note was invalid, contending that territorial disputes over the South China Sea involved South Vietnam while Pham represented North Vietnam at that time.

Wu’s assessment is part of discussions in China in recent weeks on how Beijing would react if Vietnam pursues China through an international court of arbitration over their South China Sea disputes. Despite an ideological bond between the ruling communist parties of the two neighbours, Vietnam is the most vocal critic of China’s claims in the strategic waterway.

Last week, Zheng Zhihua, an associate professor with Shanghai Jiao Tong University, wrote an article on the website of think tank South China Sea Strategic Situation Probing Initiative saying that Beijing might learn a lesson from its arbitration with the Philippines and take a different approach.

For example, Zheng suggested, China might name its members for the arbitration tribunal and take part in the initial proceeding before determining whether to accept the case, similar to the tactic the US used in 1986 when Nicaragua filed a case to the International Court of Justice (ICJ).

Months after China seized the disputed Scarborough Shoal in 2012, the Philippines filed an arbitration case based on the United Nations Convention on the Law of the Sea (UNCLOS), challenging the legality of China’s claims to waters based on the “nine-dash line” that appears on official Chinese maps and encircles much of the South China Sea.

At that time, Beijing declared it would not participate in the arbitration. Later it said it would not accept or comply with any court decisions – known as “three no’s” strategy – when the Permanent Court of Arbitration ruled unanimously in favour of the Philippines.

Beijing claims 80 per cent of the South China Sea, through which US$5 trillion worth of goods are transported annually – portions of which are claimed by Brunei, Malaysia, the Philippines, Taiwan and Vietnam.

Vietnam and China have repeatedly pledged to resolve their conflicts over the waters peacefully, but tensions between them flare from time to time.

Last year a Chinese survey vessel, the Haiyang Dizhi 8, began making passes through an oil block deployed by Vietnam near Vanguard Bank, leading to a months-long stand-off between the coastguards of both nations until the Chinese ships left in November.

Carl Thayer, an emeritus professor with the University of New South Wales in Australia, said that Vietnam’s consideration of legal action against China dated back to 2014, when China stationed an oil rig in waters near the disputed Paracel Islands.

That move prompted a stand-off and triggered an unprecedented wave of anti-China protest in Vietnam.

“This has taken the form of wide consultations with experts in international law and the United Nations Convention on the Law of the Sea in particular,” Thayer said.

Hanoi could take the sovereignty dispute to the UN Security Council, but China has the right of veto there. Thus, seeking an arbitral tribunal under the UNCLOS appears to be a preferred option even though it contains no enforcement mechanism.

“If Vietnam took legal action and won, this outcome would be a severe blow to China’s prestige and international standing, particularly if China participated in proceedings,” Thayer said.

“Vietnam could then apply political and diplomatic pressure on China by insisting that the award be complied with – unlike the Philippines, whose president set it aside.”

Also, Vietnam’s actions would “provide a foundation for other members of the international community, particularly maritime powers, to weigh in”, he said.

In May, Hanoi nominated four arbitrators and four conciliators, signalling that it could follow the Philippines’ path and seek an arbitral tribunal.

Even so, Thayer said, there was no sign Hanoi would make the move soon – mostly because there was “no critical incident has taken place that has crystalised a dispute between China and Vietnam that compels legal action at this time”.

Observers said that any legal action taken by Hanoi could be viewed as incendiary by Beijing, especially as China is locked in a fierce rivalry with the US on multiple fronts, with the South China Sea the most likely flashpoint.

Relations between Hanoi and Washington have significantly improved over the years, largely because of the shared concerns over China. The USS Theodore Roosevelt made a port call to Da Nang, the second time in three years a US aircraft carrier has done so, and the US has given two coastguard cutters to Vietnam to improve Hanoi’s ability to patrol the South China Sea amid tensions with China.

“If Vietnam is getting too close to the US and brings a lawsuit, it means it is picking the side with the US to confront China over the South China Sea issue,” Wu said.

“That is something Vietnam has to evaluate.”

China was furious when Manila filed its suit in 2012, and has since stepped up its construction of artificial islands and its military build-up in the Spratly Islands as part of a response to the Philippines, Zheng said.

Observers said that a suit brought by Vietnam would also damage party-to-party solidarity.

“If China takes a weak position and makes concessions to Vietnam [over the South China Sea disputes], it would be hard for the government to explain to its people,” Wu said.

“It will be a miscalculation to believe China would show mercy just because of [shared ideology].”

Yun Sun, director of the China programme at the Stimson Centre, a Washington-based think tank, said China would also need to assess the cost, especially as it was facing a global backlash over its handling of the coronavirus outbreak.

“China’s external environment is bad enough [because of the Covid-19 pandemic] and it doesn’t need more enemies, especially a country in its neighbourhood and at an important location. Further escalation will only push Vietnam further away,” Sun said.

“I have no doubt that China will seek ‘punishment’ of Vietnam on the side, but that is not going to help China’s image and public diplomacy efforts and will only confirm what many countries are suspecting and worried about – that China does believe ‘might is right’ and it is a coercive hegemony when other countries don’t go its way,” she said.

“I’d like to think that is a much bigger damage.”

By Laura Zhou – The South China Morning Post – June 20, 2020