Thayer Consultancy Background Brief:

ABN # 65 648 097 123

Will Vietnam Take Legal Action
Against China for Aggression in
the South China Sea?
Carlyle A. Thayer
May 5, 2020
There are unconfirmed rumours about the Vietnamese government inching closer to
suing China at an international court over China’s recent aggression in the South China
Sea. We request your assessment of the following: it is likely? what would Vietnam
want to gain from an international legal case? and how likely is it that Vietnam would
actually win?
ANSWER: Ever since the crisis of 2014 when China parked the Hai Yang Shi You 981
and a protective armada of ships and vessels in Vietnam’s Exclusive Economic Zone,
Vietnam has kept open the option of taking legal action against China. This was
reiterated late last year by Vietnam’s deputy foreign minister Le Hoai Trung in remarks
to the eleventh international conference on the South China Sea hosted by the
Diplomatic Academy of Vietnam.
Vietnam has been ambiguous about what legal action it would take and what issue(s)
it would raise. It needs to be made clear that if sovereignty is in dispute both parties
must mutually agree to take their dispute to an international court. If Vietnam wanted
to protest “aggression” it could raise the matter at the UN Security Council. The
problem there is obvious – China has the right of veto.
If Vietnam adopted the Philippines model, it would make a claim under the United
Nations Convention of the Law of Sea UNCLOS). UNCLOS, however, does not apply to
disputes over sovereignty, maritime delimitation or military matters. A claim
concerning clarification of Vietnam’s entitlements, which is the strategy the
Philippines pursued, could be done under the compulsory dispute settlement
mechanism. There are four options – International Tribunal on the Law of the Sea,
International Court of Justice, Arbitral Tribunal and Special Arbitral Tribunal.
All state parties to UNCLOS are free to nominate which of the four mechanisms it
prefers. If a state has not done so then the default position is the Arbitral Tribunal.
This is what occurred with the Philippines and China.
In order to proceed, the Arbitral Tribunal first would have to determine that it had
authority over the issue and second that Vietnam was not making a vexatious case. If
successful, Vietnam would gain because the legal proceedings would proceed
irrespective whether China participated on not. Vietnam would gain by the publicity it
received and the political pressure it would put China under.
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If Vietnam avoided touching on issues that are proscribed by UNCLOS, it would likely
win. Vietnam would then have the backing of international law.
The Award (legal finding) by the Arbitral Tribunal must be complied with immediately
and is not subject to appeal. However, UNCLOS has no provisions for enforcement and
there is very little Vietnam could do in these circumstances.
Finally, an Award in Vietnam’s favour would give it grounds for resisting Chinese
actions and would provide a basis for the international community to support
Vietnam. This option was set aside by President Duterte.

Suggested citation: Carlyle A. Thayer, “Will Vietnam Take Legal Action Against China
for Aggression in the South China Sea?” Thayer Consultancy Background Brief, May 5,
2020. All background briefs are posted on Scribd.com (search for Thayer). To remove
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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.