By Carl Thayer
In a statement Thursday, December 11, the Vietnamese foreign ministry spokesman Le Hai Binh said that Hanoi has asked the Permanent Court of Arbitration at The Hague to take Vietnam’s legal interests and rights into consideration when evaluating the evidence in the Philippines case against China in the South China Sea under the UN Convention on the Law of the Sea’s (UNCLOS) compulsory dispute mechanism. What does this move by Vietnam mean? Is Vietnam really following the Philippines’ path by seeking international arbitration? Does it mean that there is a consensus in the Vietnam Politburo on the issue?
Vietnam has filed a formal statement of interest with the Permanent Court of Arbitration (PCA). This statement is not a “statement of claim” as made by the Philippines in January 2013 but a statement of interest in the China-Philippines case before the arbitral tribunal. In its statement Vietnam acknowledged that the PCA has jurisdiction over the Philippines’ case. Vietnam asked that the PCA take due regard of its rights and interests. And Vietnam rejected China’s nine-dash line as having no legal basis. All three points stand in opposition to China’s just released position paper which came out two days after Vietnam filed.
By expressing its interest in the case Vietnam is not joining the Philippines in taking legal action against China. But Vietnam’s statement of interest will be noted by the arbitrators of the China-Philippines case. This will have the effect of raising – however slightly – the importance of this case. In other words although the case is a bilateral matter, the judgment of the arbitrators must take into account the interests of other parties likely to be affected by the outcome. It may be likely that by filing a statement of interest that the Arbitral Tribunal could invite Vietnam to make a presentation of its rights and interests. In other words, Vietnam can make its legal case “through the back door.”
There are mixed reports about the legal action that Vietnam was planning to take. It lodged its statement of interest on December 5 (coincidently the same day the U.S. State Department released its report, Limits in the Seas). Rumors have been flying around the diplomatic community that Vietnam was prepared to take stronger legal action and advised its close friends accordingly. At the last minute, if these rumors are correct, Vietnam chose the minimalist option. According to diplomatic sources China had intended to release its position paper around mid-month, but released its paper on December 7 in response to Vietnam’s actions.
Vietnam’s actions also take place on the eve of the important tenth plenum of the Vietnam Communist Party’s Central Committee, which was originally scheduled for December 5-15, but is now postponed to early January 2015. Vietnam’s legal actions will be aimed at mollifying its domestic critics. These critics may not be completely satisfied but will be heartened by this action. The Central Committee likewise will have to temper whatever urge its members might harbor about taking legal action against China. They will have to accept and go along with the government’s decision.
The timing of Vietnam move, coming on the day the State Department released its brief on the Limits In the Seas, and two days before the release of China’s position paper, could not have been more propitious. These events, when taken as a whole, appear to be raising the salience of international law as a means of managing South China Sea territorial disputes. China will not be happy because it is hell bent on getting the arbitral tribunal to reject the Philippines’ case.
Dr. Carlyle A. Thayer is Emeritus Professor at the School of Humanities and Social Sciences, The University of New South Wales at the Australian Defence Force Academy in Canberra, Australia. Read more by Professor Thayer here.