The South China Sea Award: Legal Implications for Vietnam

The Arbitral Tribunal award on the South China Sea, issued on the 12 July 2016, was a legal game changer.¹ As a major claimant in the South China Sea, the award has significant implications for Vietnam. This article addresses both the opportunities and challenges for Vietnam, as well as the short term and long term impacts of the Tribunal’s award.

Vietnam as Major Party in the South China Sea Dispute

Vietnam claims sovereignty over the Paracel and Spratly archipelagos on the basis of effectivités of the international law on territorial acquisition. In a note verbale to the United Nations dated 22 February 2016, Vietnam stated that it “has ample legal basis and historical evidence to affirm its indisputable sovereignty over Hoang Sa [Paracel] Archipelago and Truong Sa [Spratly] Archipelago. Successive Vietnamese governments have peacefully and continuously exercised and defended Viet Nam’s sovereignty over the two archipelagos since at least the seventeenth century.”²

As a South China Sea coastal state, Vietnam acknowledged the importance of the sea and proclaimed its maritime zones in a declaration in 1977, even before the 1982 United Nations Convention on the Law of the Sea (UNCLOS) came into effect. Vietnam declared sovereignty, sovereign rights and jurisdiction within five maritime zones: internal waters; territorial seas; contiguous zones; an exclusive economic zone (EEZ); and a continental shelf. This claim was reiterated in the 2012 Law No. 18/2012/QH13 on the Sea of Vietnam. Earlier, in 2009, Vietnam had delineated its 200 nautical mile (nm) EEZ and submitted its extended continental shelf claim to the UN Commission on the Limits of the Continental Shelf (CLCS).³ As to the maritime zones of the Paracels and Spratlys, Vietnam has adopted general principles as outlined in UNCLOS, without specifying precise details for the legal regime of each of the maritime features.⁴ Regarding dispute settlement, Vietnam has consistently expressed its willingness to settle all disputes in accordance with international law, particularly UNCLOS.⁵ In general, Vietnam has relied on international law to support its sovereignty claims over the Paracels and Spratlys, and on UNCLOS to delineate its maritime zones in the South China Sea.

Confirmation of the Legal Basis of Vietnam’s Maritime Claims

In addressing the matter of applicable law for generating maritime zones, the Arbitral Tribunal firmly concluded that UNCLOS provides and defines limits within a comprehensive system of maritime zones that is capable of encompassing any area of the sea or seabed.⁶ Essentially, the Tribunal endorsed the methods used by Vietnam to delineate the country’s maritime zones in the South China Sea in accordance with UNCLOS.

Over the past few years, due to conflicting maritime claims between Beijing and Hanoi, a number of serious incidents have occurred within Vietnam’s claimed EEZ and continental shelf. These included the severing of towed cables attached to Vietnamese survey ships by Chinese vessels in 2011, the opening of nine oil blocks in Vietnam’s EEZ for bidding by a Chinese state oil company in 2012, the deployment of the Chinese drilling vessel HYSY-981 into Vietnam’s EEZ in 2014 and the frequent detention of Vietnamese fishermen by Chinese authorities.

Judging by its words and deeds, China appears to be claiming sovereign or historic rights to maritime resources within the nine-dash line, thus placing up to 60 per cent of Vietnam’s EEZ and continental shelf in dispute.⁷ However, the Tribunal decisively ruled that “upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded … by the limits of the maritime zones provided for by [UNCLOS]”.⁸ The Tribunal’s decision represents a major breakthrough for Vietnam, as it means that China has no maritime rights within the nine-dash line and thus there are no overlapping EEZ or continental shelf claims between the countries.

China also claims sovereignty over the Paracels and Spratlys, and believes that these two archipelagos can generate EEZs and continental shelves.⁹ Under...