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China's incursion into Vietnam's EEZ and lessons from the past

By Dr Huong Le Thu

The Haiyang Dizhi 8, a survey vessel belonging to a Chinese government-run corporation, began surveying a large swath of seabed on July 3 northeast of Vanguard Bank (Bai Tu Chinh) off the coast of Vietnam. The ship was apparently undertaking an oil and gas survey across two blocks, Riji 03 and Riji 27, which fall within Vietnam’s continental shelf under the United Nations Convention on the Law of the Sea (UNCLOS). The survey ship has been escorted by other vessels, including the China Coast Guard and maritime militia. At the same time, China Coast Guard ships have been harassing Vietnamese drilling operations in Block 06-01 to the south.

...by no means a new phenomenon...

Chinese incursions in Vietnam’s continental shelf and exclusive economic zone (EEZ) are by no means a new phenomenon. The most serious recent incident occurred in 2014, when China deployed an oil rig, the HYSY-981, into Vietnam’s claimed EEZ, resulting in a diplomatic crisis between the two neighbours. The current situation near Vanguard Bank, however, represents a more serious challenge on several levels.

First, the Haiyang Dizhi 8’s survey activities pose a legal challenge: they demonstrate that China is persistent in pursuing administrative control within its 9-dash line despite that claim’s inconsistency with international law. This is the first time it has engaged in such a survey since the 9-dash line was declared illegal by an arbitral tribunal ruling in 2016. In this way, Beijing is openly disputing the legality of continental shelf rights guaranteed by UNCLOS. The area has been subject to natural resource exploitation by Vietnam for decades. But Beijing is now trying to create a dispute over areas that were effectively undisputed in the past.

China’s actions also pose a diplomatic challenge: Beijing is testing not only Vietnam, but also the United States and the international community. Will the international response be as muted as it was after the 2016 arbitral ruling? China is openly insulting the peaceful pursuit of dispute resolution through the ongoing code of conduct (COC) negotiations with ASEAN. The progress heralded by that process, which has resulted in a single negotiating draft text, evidently exists only on paper, not in practice. It also casts a shadow on the hope that any COC would have a real impact on managing either the disputes or China’s conduct.

Finally, Beijing’s actions represent a very real economic challenge. Beijing’s continuous coercion targeting other claimants’ natural resource exploitation is meant to force them into joint exploration schemes with Beijing, even in undisputed waters.

There is never a good time to face coercion, but this test by China comes at a moment when Hanoi is particularly busy, preparing not only for the upcoming ASEAN Chairmanship and its 2020-2021 term on the UN Security Council, but also preoccupied with the preparations for its 13th Party Congress and accompanying potential leadership change in early 2021. It seems that Beijing is exerting more pressure on Hanoi ahead of its ASEAN chairmanship as a psychological test.

Lessons from HYSY-981

Beijing has scaled up its pressure in the South China Sea not only vis-a-vis Vietnam, but also toward Malaysia and the Philippines. It is unreasonable to expect that the tactics Vietnam adopted in 2014 to deal with the HYSY-981 incident will be similarly effective today, especially given the fact that Beijing now pursues its activities with an awareness of their reputational costs, which China seems prepared to accept. Any attempt at so-called “megaphone diplomacy” this time around will have to be more concerted and include the United States, which has already become involved, as well as other supporters of the rule-based international order. But even so, such diplomacy alone is unlikely to lead to a sustainable resolution of the standoff. Vietnam has thus far avoided pursuing close military ties to other powers or legal measures against China as they would antagonize Beijing, but they remain options if Hanoi determines they are needed to defend its sovereignty.

Compared to the HYSY-981 stand-off, China’s current survey and harassment activities have received far less media attention and diplomatic exchanges. This is primarily because Hanoi wants to control anti-Chinese sentiment in Vietnam and prevent potential protests or unrest. In 2014, Vietnam witnessed a violent series of anti-Chinese protests leading to vandalism and mob activities around factories owned by Chinese, Taiwanese, Japanese, Korean, and even Vietnamese investors. This caused damage to Vietnam’s reputation as a safe environment for investment and the government may be worried about similar reactions to the current standoff. Neither government would want to deal with uncontrolled outburst of nationalist tendencies turning into violence.

Positive developments may also come out of crisis situations...

Positive developments may also come out of crisis situations. In 2014, I argued that the HYSY-981 incident provided additional stimuli to Vietnam’s strategic thinking and its foreign and defence policies, as well as a rare domestic debate on how the nation could escape China’s orbit. It is too early to say what the outcome will be this time around, but I do hope it will contribute to the further development of Vietnam’s South China Sea policy and defense posture—an outcome to look for in the country’s forthcoming Defence White Paper. Perhaps this crisis will result in further coordination between Vietnam and its Indo-Pacific partners. It may also contribute to building an inflection point that encourages the ASEAN claimant states to seek further cooperation on the matter.

The Wider Impact

Unlike in 2014, Beijing is concurrently exerting pressure on more than one Southeast Asian claimant. These incidents are a real test for the willingness of both ASEAN and the international community to defend nations’ sovereign and economic rights under the rules-based order. Unless regional countries are willing to look beyond individual national interests and speak out in support of other claimants, transgressions of the maritime rules-based order are becoming a new normal that will no longer generate strong reactions. Respect for international law, including the rights guaranteed by UNCLOS, must be supported and defended by all, including non-claimants. So far, only the United States has taken a public and explicit stance on China’s activities near Vanguard Bank.

ASEAN—despite the Defence and Foreign  Ministers’ Meetings that have happened during this period—has avoided naming the issue in its joint statements, but did reportedly debate the issue during the gatherings. At the recent Trilateral Strategic Dialogue between the United States, Japan, and Australia on the sidelines of the ASEAN meetings, Secretary of State Mike Pompeo and Foreign Ministers Taro Kono and Marise Payne collectively expressed concern about “credible reports of disruptive activities in relation to long-standing oil and gas projects in the South China Sea.”. The Australia-United States Ministerial Consultations (AUSMIN) in Sydney last weekend came up with a statement supporting the authority of UNCLOS, the validity of the 2016 arbitral tribunal ruling, and the importance of freedom of navigation. While expressing a “strong objection to coercive unilateral actions by any claimant state that could alter the status quo and increase tensions”, the statement again avoided naming any country or incidents at the source of the tension.

The lesson of the muted international reaction to the 2016 arbitral ruling is too evident to allow for another weak response. The current standoff serves as proof that Chinese coercion will continue and that the COC process makes no difference in Beijing’s plans to dominate the South China Sea. It might be a crisis for Vietnam individually, but it could also serve as an opportunity for the international community—beyond the United States—to react appropriately to the violations of UNCLOS and infringement on a littoral state’s continental shelf.

Originally published by: ASIA MARITIME TRANSPARENCY INITIATIVE on 08 Aug 2019