Probing Vietnam's Legal Prospects in the South China Sea Dispute

Abstract

executive summary: This article reviews dispute settlement procedures under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), discusses the application in two cases, and draws implications for the actionable legal procedures available to Vietnam. main argument Although most Asian states are signatories to UNCLOS, which offers options for dispute resolution by either voluntary or compulsory processes, in reality fewer than a dozen Asian states have taken advantage of such an approach. The decision to adopt third-party mechanisms comes under great scrutiny and deliberation, not least because of the entailing legal procedures and the politically sensitive nature of disputes. Vietnam claims the second-largest maritime area in the South China Sea dispute after China. A comparison of two recent cases—the arbitration between the Philippines and China and the conciliation between Timor-Leste and Australia—highlights the importance of selecting between binding and nonbinding decisions and framing a complaint. In particular, any legal action under UNCLOS should specify China's claims and actions in areas that encroach on Vietnam's claimed exclusive economic zone (EEZ) and violate international law. policy implications • Were Vietnam to build a case against China in the South China Sea based on maritime entitlements, rather than boundary delimitation, it should initiate a compulsory arbitration procedure pursuant of Article 287 and Annex VII of UNCLOS. In taking this step, Vietnam should seek a ruling regarding (1) entitlements to living and nonliving resources in its EEZ and continental shelf and (2) the legality of China's claims and activities in the South China Sea. • While Vietnam continues to prefer negotiations, the growing assertiveness of China, including its activities in Vietnam's claimed EEZ, may change this calculation. A potential victory in international arbitration could secure Vietnam's sovereignty over its EEZ and continental shelf.