Thayer Consultancy Background Briefing:

ABN # 65 648 097 123

UNCLOS and Vietnam’s Right
to Sovereign Jurisdiction
Carlyle A. Thayer
July 24, 2019

Vietnam has officially confirmed the fact that a Chinese survey ship entered Vietnam’s
Vanguard Bank on its southern continental shelf. The Vietnamese media has been
given permission to publish this information since last night.
The incident at Vanguard Bank appears to be shaping up into the largest conflict
between China and Vietnam since the Hai Yang Shi You 981 crisis in 2014.
We are preparing a report with a focus on international law, in particular the United
Nations Convention on the Law of the Sea (UNCLOS), and Vietnam’s perspective. We
request your assessment of the following issues:
Q1: In the official government statement regarding the issue, Foreign Ministry
spokeswoman Le Thi Thu Hang said that “security in the South China Sea is the
common interests of internal and external nations as well as international community.
Therefore, Vietnam urges related countries and international community to take
efforts to contribute to protecting and maintaining the common interests”.
Is Thu Hang’s mention of “external countries” a signal that Vietnam intends to
internationalize this issue?
ANSWER: In August 2018, ASEAN members and China agreed to a Single Draft South
China Sea Code of Conduct Negotiating Text. This document remains confidential but
Thayer Consultancy has viewed a copy. China makes it quite clear in its submission
that outside countries should be excluded from cooperation in developing marine
resources in the South China Sea. China wants to limit marine resource cooperation
to its national companies and those of Southeast Asian states. China also wants all
nations to give advance notice of any military exercises with outside states so it can
object.
China’s wants to exclude external countries as well as other members of the
international community to weaken the stance of the claimant states, such as
Vietnam, Malaysia and the Philippines, in their “friendly consultations” with China.
Vietnam’s policy statement recognizes the reality that disputes in the South China Sea
are already internationalized. All countries that engage in trade have an interest in
safe, secure and peaceful shipping routes. In addition, many countries, both internal
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and external, have a direct economic interest in energy security. Finally, major powers
and other maritime powers have an interest in freedom of navigation on the high sea
and international waters that make up the South China Sea.
A clear indication that the South China Sea issue is internationalized is the strong
statement issued by the U.S. Department of State on 20 July that declared, “The United
States firmly opposes coercion and intimidation by any claimant to assert its territorial or
maritime claims. China should cease its bullying behavior and refrain from engaging in this
type of provocative and destabilizing activity.”
Q2: What does international law, namely UNCLOS, mean to Vietnam and other
countries, even including China, when it comes to the South China Sea issue?
ANSWER: The United Nations Convention on the Law of the Sea (UNCLOS) is
internationally regarded as the “Constitution of the world’s seas.” UNCLOS sets
international law regarding maritime jurisdiction; it does not address issues directly
related to sovereignty.
UNCLOS creates norms and rules that guide state behavior, make state interaction
more predictable, and provides for the compulsory settlement of disputes. UNCLOS
creates a level playing field for all states both big and small.
All signatories to UNCLOS that are littoral states or that administer islands (in the legal
meaning of the term) benefit from a legal regime that gives them sovereign
jurisdiction over the marine and seabed resources in their Exclusive Economic Zone.
Small countries rely on UNCLOS to protect their legitimate interests. For example, the
Philippines took its dispute with China to the Arbitral Tribunal to determine what its
entitlements were in the face of Chinese harassment, intimidation and coercion.
Among the many decisions by the Arbitral Tribunal it ruled that China’s claims to
historic rights were extinguished when it acceded to UNCLOS and that China’s nine-
dash line map had no basis in international law.
Decisions by the Arbitral Tribunal are final, should be complied with immediately and
are not subject to appeal. Unfortunately, UNCLOS contains no mechanism for
enforcement and China has been brazen in standing outside the law.
Q3: In the case of the Vanguard Bank dispute, how can Vietnam express its position of
respect for international law, resolve conflicts peacefully while still defending its
sovereignty when the other side uses “gray zone” tactics like China?
ANSWER: Vietnam can demonstrate its respect for international law by delivering
diplomatic protests to China outlining why Chinese actions in the waters around
Vanguard Bank are illegal and call on China to cease such actions and withdraw its
ships from Vietnam’s EEZ.
Vietnam should hold consultations with China to resolve the dispute by peaceful
means. The Vietnam Coast Guard should refrain from the use of force and respond to
threatening Chinese actions in a proportional manner.
Neither diplomacy nor consultations are likely to end Vietnam’s conflict with China.
=Vietnam must first demonstrate it has exhausted all efforts to resolve the matter
peacefully. This is a prerequisite for taking legal action against China under the
compulsory dispute mechanism outlined in UNCLOS Annex VII.
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Vietnam should continue to expand its diplomatic and political efforts to members of
ASEAN, major powers and members of the international community to create a united
front to bring increased peaceful pressure to bear on China. Vietnam should make it
clear it will not agree to a South China Sea Code of Conduct unless Vietnam’ legal rights
under UNCLOS are respected by all states including China.
Vietnam should move to safeguard its own interests by enlisting the cooperation of
regional coast guards (Malaysia and the Philippines in particular) as well as the coast
guards of major powers and other members of the international community. The
purpose is to establish a continuous presence of regional and external coast guards in
the South China Sea. Vietnam should also host bilateral and multilateral coast guard
activities and exercises designed to improve maritime domain awareness and capacity
building.
If China persists in violating Vietnam’s sovereign jurisdiction, its lawmakers should
consider lobbying the U.S. Congress to adopt sanctions against any Chinese state
entity that deliberately violates UNCLOS in the South China Sea.

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, “UNCLOS and Vietnam’s Right to Sovereign

Jurisdiction,” Thayer Consultancy Background Brief, July 24, 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.

Suggested citation: Carlyle A. Thayer, “UNCLOS and Vietnam’s Right to Sovereign

Jurisdiction,” Thayer Consultancy Background Brief, July 24, 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.