Vietnam wants a South China Sea dispute resolution pact with teeth, not more politics
- Asean member states and China are a step closer to forming a Code of Conduct for the South China Sea after years of operating a toothless diplomatic pact that has failed to reduce tensions
Nevertheless, Vietnam still treats the DOC as an essential tool to protect its interests in the South China Sea, frequently citing it as a basis for diplomatic protests against China.
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Other lower-profile yet no less worrisome incidents involved China’s repeated harassment of Vietnam’s oil and gas operations in its exclusive economic zone (EEZ), or China’s various violent attacks against Vietnamese fishermen, especially in the waters around the disputed Paracels. As such, establishing a “substantive and effective” COC has been Vietnam’s focus.
As a major claimant state in the South China Sea, Vietnam has a significant stake in the outcome of the COC process. And over the years it has repeatedly urged the parties to adopt a code that is legally binding, that provides actual mechanisms for managing disputes, and is not just another political document that lacks teeth.
Commenting on Chinese Premier Li Keqiang’s proposal in November 2018 that Asean and China should aim to reach a COC within three years, Vietnamese foreign affairs deputy spokesperson Nguyen Phuong Tra said “it is of utmost importance to reach a COC that is substantive and effective, in accordance with international law, especially the 1982 United Nations Convention on the Law of the Sea”.
Hanoi’s demand for a “substantive and effective” code stems mainly from its disappointments with the limitations – legally and geographically – of the 2002 DOC.
Geographically, unlike the current DOC, Vietnam wants a COC that applies to both the Paracels and the Spratlys, as well as the disputed South China Sea waters themselves.
This is because Vietnam wants to treat the Paracels, half of which was forcefully seized by China from Vietnam in 1974, as disputed territory – though China does not consider the Paracels as such.
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China’s law-enforcement authorities have frequently harassed or attacked Vietnamese fishermen in the waters around the Paracels. The most recent example involved a Vietnamese fishing boat moored near Da Loi island in the Paracels on March 6 when a China Maritime Surveillance vessel chased and fired water cannon at it. The boat later sank after hitting rocks while being chased.
During the 1990s attempt to forge a COC, Vietnam and other Asean member states did not raise the issue of legal enforcement largely because they considered the prospective COC as a tool for confidence building.
But the reality over the past two decades, with recurring violations of the DOC by signatory states, shows that such a belief is misplaced, and a non-binding COC will have little effect in fulfilling its intended purpose of maintaining peace and stability in the South China Sea.
This time around, Vietnam wants all contracting states to be bound by the COC in full without any reservation. It also wants the code to be ratified by signatory states in accordance with their respective internal procedures.
Vietnam has proposed dispute settlement measures, such as friendly negotiations or mediation, but also says nothing should prevent other peaceful means of dispute settlement – a move that implies Hanoi wants to keep its legal options open when dealing with China.
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This stance is understandable given Vietnam’s persistent efforts in accumulating historical and legal evidence to prepare for a “legal showdown” in which Vietnam will resort to international adjudication to address its grievances against China in the South China Sea, especially regarding the Paracels.
In 2014, prime minister at the time, Nguyen Tan Dung, said Vietnam was considering different options to protect its maritime interests against China’s encroachments.
The last of Vietnam’s demands for the proposed COC is that, unlike the broad and non-specific nature of the DOC, the newly negotiated COC should be much more specific and based on real experiences in dealing with China.
For example, its demand for parties to respect the maritime zones as established in accordance with the 1982 United Nations Convention on the Law of the Sea seems to derive from China’s past incursions into its EEZ.
Though Vietnam’s long list of demands seem to be a tall order for many observers, the COC negotiations are still in the initial stage, and all parties are aiming high to create more room for possible compromises down the road. Some Vietnamese officials even said they tended to believe that “it is better to have no deal than a bad deal”.
With Vietnam holding the Asean chairmanship in 2020, Hanoi will have an opportunity to highlight the South China Sea issue. It may also try to accelerate the COC negotiations, but not at the expense of the code’s substance.
Inevitably, COC negotiations will be challenging and time-consuming. Painful trade-offs between achieving a COC early and making it substantive and effective will present difficult choices for all parties.
This article is an extract from a longer version in ISEAS Perspective Issue 2019, No. 22