Author: Le Hong Hiep
18 July 2016
The arbitral tribunal’s award on the Philippines’ case against China is a historic milestone in the evolution of the South China Sea dispute.
As one of the main parties to the dispute, Vietnam has welcomed the ruling, adding that it would make a separate statement on the award’s content. Once released, the statement will shed light on Vietnam’s interpretation of the ruling, and provide clues about how it might deal with the dispute in the future.
Vietnam stands to benefit significantly from the award, but also faces some negative implications for its claims in the Spratlys.
Two points in the tribunal’s ruling are of particular significance to Vietnam. First, the tribunal dismissed China’s claim to “historic rights” based on the nine-dash line as incompatible with the 1982 United Nations Convention on the Law of the Sea (Unclos). Second, it found that none of the features in the Spratlys met the criteria of an island under Article 121 (3) of the Unclos.
As such, these features are only entitled to a territorial water of 12 nautical miles at most, not an Exclusive Economic Zone (EEZ) that may stretch up to 200 nautical miles.
These rulings significantly narrow down the scope of the maritime dispute between China and Vietnam. There is now no overlapping zone between China’s nine-dash line and Vietnam’s EEZ, as well as between the hypothetical EEZ of certain features in the Spratlys and Vietnam’s EEZ measured from its mainland.
The tribunal’s ruling also sets an important legal precedent for Vietnam to handle its dispute with China over the waters surrounding the Paracels.
As features in the Paracels are similar to those in the Spratlys in terms of size and nature, they are unlikely to be entitled to an EEZ. In addition, the tribunal’s ruling that the Spratlys cannot generate maritime zones collectively as a unit should also be applicable to the Paracels.
As such, the straight baseline established by China in 1996, which connects 28 outermost points around the Paracels from which China would like to claim maritime entitlements for the archipelago, will be further invalidated.
In past major maritime incidents between the two countries, including China’s offer of nine blocs within Vietnam’s EEZ to international bidders in 2012, and China’s deployment of a giant oil rig in Vietnam’s EEZ in 2014, China justified its actions by referring to its rights within the nine-dash line or the supposed EEZ of the two archipelagoes.
With the above two rulings, Vietnam now has strong legal grounds to block China’s future encroachments into its EEZ.
At the same time, the ruling also generates some negative implications for Vietnam’s claims in the Spratlys. For example, as the tribunal declared that none of the features in the Spratlys are entitled to an EEZ, Vietnamese fishermen’s access to this important fishing ground may be reduced significantly. Specifically, they will lose the right to fish in waters inside the EEZ of the Philippines and outside the territorial water of qualified features in the Spratlys.
Vietnam is also expected to abandon its claims over the Mischief Reef and the Second Thomas Shoal, which the tribunal has declared to be low-tide elevations that belong to the Philippines’ continental shelf.
More importantly, Vietnam may also have to abandon its claims over Alison Reef, Cornwallis South Reef and Tennent Reef, on which Vietnamese troops are stationed.
These features, which are classified by experts as low-tide elevations, fall within the EEZ of the Philippines and outside the territorial water of any nearby features. Under Unclos, they are not subject to sovereignty claims and the Philippines has sovereign rights over them.
Although the ruling does not address these features directly, Vietnam may be asked by the Philippines to give them up.
IMPLICATIONS FOR TIES WITH MANILA AND BEIJING
The award, therefore, enhances Hanoi’s bargaining power vis-a-vis Beijing but weakens its position vis-a-vis Manila. Nevertheless, Vietnam will likely support the award as the benefits it would gain could outweigh the possible losses.
Moreover, Vietnam can still hope to negotiate with the Philippines over its fishing rights as well as its occupation of the above-mentioned low-tide elevations.
In any case, as Manila and Hanoi have been de facto allies in their common cause against China’s expansionism in the South China Sea, the ruling is unlikely to unsettle their ties, at least in the short term.
Where Vietnam-China relations are concerned, given the precedent set by the award, Hanoi can reasonably expect a victory if it files a similar case against Beijing over the Paracels.
However, Vietnam may not want to initiate the proceedings right away as such an action will invite intense hostility from China and destabilise bilateral relations, something Vietnam may not be ready to afford yet. Instead, Hanoi may wish to leave the legal option against China open and use it as a source of leverage in dealings with Beijing.
In sum, Vietnam will measure its responses carefully to maximise its gains from the tribunal’s award. At the same time, Vietnam’s support for the Philippines from the early phase of the arbitration proceedings implies that it is ready to accept possible fallouts that the award may generate for its interests.
That said, Vietnam’s future South China Sea policy and its actions on the ground will largely depend on the level of China’s compliance with the award, as well as the status of its relations with China and the Philippines.
In the meantime, there is no need for Hanoi to rush.
Le Hong Hiep is a research fellow at ISEAS – Yusof Ishak Institute. A version of this article was originally published on Today Online at http://www.todayonline.com/commentary/hague-ruling-presents-vietnam-opportunities-and-dilemmas
PCA Press Release: PCA Case No. 2013-19 – The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China)
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