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Thayer Consultancy

ABN # 65 648 097 123

Thayer Consultancy ABN # 65 648 097 123

Background Briefing:

South China Sea: Setting the Scene for Legal Action

Carlyle A. Thayer

July 22, 2019

We request your assessment on recent developments at Vanguard Bank in the South China. Sea.

Q1 - How do you assess China's action?

ANSWER: China’s actions in deploying the Haiyang Dizhi 8 into Vietnam’s Exclusive Economic Zone (EEZ) is without question a deliberate violation of international law. Vietnam has sovereign rights over the marine and seabed resources in its EEZ and continental shelf. China cannot conduct surveys in Vietnam’s EEZ without prior permission.

What remains unclear is who in China ordered the Haiyang Dizhi 8 to enter Vietnam’s EEZ. Was the decision made at the operational level by officials of a Chinese state-owned oil company or was it made at a higher level for a specific political purpose.

China’s actions demonstrate that it is unwilling to conform to international law but is willing to act unilaterally to assert so-called “historic rights” over the entire South China Sea. China’s submission to the ASEAN-China Single Draft South China Sea Code of Conduct Negotiating Text made clear that China does not want outside countries to be involved in developing the marine resources in the South China Sea. China seeks hegemony and compliance by the claimant states. China will continually push its oil companies and coast guard into the EEZs of littoral states to force these states to acquiesce.

Q2 - How long will China's violation last?

ANSWER: The Haiyang Dizhi 8 is a scientific survey vessel. It will need to be refueled and resupplied for an extended stay. It is likely that China will announce that the Haiyang Dizhi 8 has completed its mission and withdraw it from Vietnam’s EEZ as China did in 2014 when it withdrew the Hai Yang Shi You 981 after a month.

Q3 - What are consequences?

ANSWER: China’s actions have eroded Vietnam’s strategic trust. This year it looked like bilateral relations were on an upward trajectory after the events of 2014 involving the HYSY 981 and the events of July 2017 and March 2018 in Vanguard Bank. China’s

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actions will make cooperation in other areas more difficult and could well inflame anti- China public opinion.

China’s actions have resulted in a strong diplomatic response from Vietnam and a call by Vietnam for the international community to become involved. The United States issued a strong statement condemning Chinese bullying. In other words, China’s actions have succeeded in internationalizing the South China Sea issue just what China opposes.

China’s actions could result in a delay in negotiating the ASEAN-China South China Sea Code of Conduct Single Draft Negotiating Text. China’s submission stated that outside countries should not be involved in cooperation in marine resources. In other words, China seeks hegemony through joint ventures with companies owned by the claimant states. China’s actions are likely to provoke Vietnam and Malaysia to oppose China’s attempt to exclude outside countries.

Q4 - What Vietnam should do to resolve this?

ANSWER: Under international law Vietnam is required to settle this dispute through peaceful means through consultations with China. If Vietnam decides to follow the Philippines and take legal action under the compulsory dispute settlement mechanism in UNCLOS Annex VII, it must demonstrate that it acted in good faith to resolve this dispute by peaceful means. Vietnam will need to argue later that it acted in good faith and exhausted consultations with China. In other words, Vietnam should leave the legal option on the table.

Vietnam will be ASEAN Chair in 2020. Vietnam needs to intensify lobbying ASEAN members states to create a stronger united front in negotiations on the Code of Conduct (COC). Vietnam should make it clear it will not accept a COC that enables China to continually violate international law including UNCLOS.

Finally, as Vietnam has foreshadowed, Vietnam should lobby members of the international community to condemn China, as has the United States. Vietnam should reiterate its support for a rules-based free and open Indo-Pacific and work with like-minded states.

Vietnam should demonstrate to China that its actions have consequences. Vietnam should step up cooperation with the coast guards from the United States and Japan by conducting capacity building activities in Vietnam’s EEZ.

Media Identification: The University of New South Wales, Canberra or The University of New South Wales at the Australian Defence Force Academy, Canberra.

Suggested citation: Carlyle A. Thayer, “South China Sea: Setting the Scene for Legal Action,” Thayer Consultancy Background Brief, July 22, 2019. All background briefs are posted on Scribd.com (search for Thayer). To remove yourself from the mailing list type, UNSUBSCRIBE in the Subject heading and hit the Reply key.

Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients. Thayer Consultancy was officially registered as a small business in Australia in 2002.

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