A decisive legal victory over China's claims still poses challenges for Vietnam

July 12, 2016 | 05:06 pm PT
World awaits next move in maritime game of Chinese chess.

Today the Permanent Court of Arbitration (PCA) issued a definitive ruling against China's sweeping claims in the East Sea, known internationally as the South China Sea. The Philippines filed their arbitration suit in January 2003. China refused to participate in the hearings, arguing that the PCA and the U.N, Convention of the Law of the Sea (UNCLOS) do not have the legal authority to rule on sovereignty issues.

The Philippines submission was written in a way that sovereignty was never the issue at hand. The PCA took China's consideration into account, and in December 2015, ruled that it had standing to rule on 15 specific points. Their ruling was the strongest affirmation of the rule of law and creates an important legal precedent.

Few legal scholars or international relations specialists were expecting the court to rule unanimously in the Philippines' favor on almost every count. Most importantly, the PCA ruled that the nine-dash line has no basis in international law and that the historical rights claimed by China were "extinguished" by the ratification of UNCLOS. The court ruled that no feature on the Spratly Islands is habitable in its natural state and therefore, no feature is entitled to a 200 nautical mile exclusive economic zone (EEZ).

In short, the PCA ruled that China has no exclusive right to resources in the South China Sea, while it claims over 90 percent of the area.

So what does this mean for Vietnam? In general this was a major victory for Vietnam, certainly in the legal sphere.

First, the legal invalidation of the nine-dash line is crucial. China's nine-dash line clearly violates Vietnam's EEZ and continental shelf rights. China has no legal rights to fish or drill for hydrocarbons in these waters. The PCA ruling was unequivocal: China has violated the Philippines’ EEZ and continental shelf rights. The same holds true for Vietnam.

Second, the PCA’s invalidation of China’s historical rights is critical. As the court ruled that the Philippines, too, enjoyed historical rights in those waters, it should follow that Vietnam shares the same rights; i.e. historical rights are not exclusive.

Third, the sweeping and thorough nature of the ruling means that Vietnam actually does not have to file its own arbitration suit. Hanoi has been able to free ride on the courageous leadership of the Philippines, to whom it should hold a debt of gratitude.

But the ruling has several down sides for Vietnam. Here are just three.

First, Vietnam, too, has no claim to an EEZ from any of its held features. At best, it will enjoy a 12 nautical mile territorial zone from a few.

Second, the PCA ruled that “China has inflicted irreparable harm to the marine environment” through its construction of seven islands and reclamation of others, which Vietnam has also done, albeit to a much smaller degree. And the court was highly critical of China’s construction of islands while the court was deliberating. Such reclamation was “incompatible with the obligations on a state during dispute resolution proceedings.” Hanoi should take note.

Third, China is likely to now draw straight baselines around its features in the Spratly Islands, just as it has done in the Paracel Islands. The PCA has tried to preempt it from doing this, clearly stating "UNCLOS doesn't provide for groups of islands to generate maritime zones collectively." But that is almost certainly what China will do and those base lines will include Vietnam-held features.

China has responded by saying the PCA’s ruling is “null and void”, that they inexplicably “violate international law” and thus that it will not be bound by them. The Ministry of Foreign Affairs made this clear in a July 12 statement: “China's territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards.”

So how is China likely to respond to the ruling?

At one extreme, it could increase the militarization of the islands that it has built. It could deploy anti-aircraft missile batteries that have already been deployed to the Paracels, as well as more fighter aircraft ahead of declaring an Air Defense Identification Zone (ADIZ).

Short of that, it could lash out on a bilateral basis. China could retaliate against the Philippines by beginning land reclamation at the Scarborough Shoal, or at least continue to deny fishing rights. China could, likewise, deny Vietnam access to its own features. It will most likely draw straight baselines, despite the PCA’s admonishment.

China will continue to enforce its claim of sovereignty, not through its navy or even its coast guard, but through its maritime militia; an armed and deputized fishing fleet that remains within the command and control of the security forces. The day before the PCA ruling, China sunk a Vietnamese fishing vessel. It lost the legal fight, but no country is pushing back in terms of China’s unilateral enforcement of sovereignty through its fishermen.

China may weigh the costs of being overly aggressive. Despite its claims of substantial international support, only 10 countries openly support China's legal position, and most of them are landlocked, poor, corrupt and dependent on Chinese aid. It wants to be a superpower, but without carrying any of the costs. Hegemony has costs: leading by example, taking hits in international courts or providing collective goods.

But the Chinese leadership has put themselves into a corner by fanning the flames of nationalism in their state controlled media. The Chinese Communist Party has tried to harness nationalism, but more importantly tried to assert China’s “rights” lost in the two centuries of humiliation to the West and Japan, in order to legitimize the regime.

China is most likely to act close to home, and continue to use its influence over Cambodia, Laos, Brunei and even Myanmar, to prevent a unified response from ASEAN.

So, before the champagne starts flowing in Hanoi, the leaders should work quickly to build up support in ASEAN for a collective response, using all the leverage at their disposal.

Second, they will have to use their own coast guard to counter Chinese fishermen/maritime militia. The rule of law is on Vietnam’s side, but it must be enforced.

Zachary Abuza is a professor at the National War College, in Washington, D.C., where he focuses on Southeast Asian politics and security issues, including governance, insurgencies, democratization and human rights, and maritime security.  

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