Thayer Consultancy Background Brief:

ABN # 65 648 097 123

Carlyle A. Thayer
Is Vietnam Poised to Take
Legal Action Against China?
August 25, 2020

We request your assessment about the prospect of an Arbitral Tribunal case filed by
Vietnam against China.
Q1. How likely is it that Vietnam will file this case?
ANSWER: Vietnam has had contingency plans to file a legal case against China under
the United Nations Convention of the Law of the Sea (UNCLOS) from 2013 if not
earlier. To file a case under the binding or compulsory dispute settlement mechanism
under Annex VII of UNCLOS Vietnam would need to demonstrate that it had
attempted to resolve the issues in dispute with China and that no resolution was likely.
It is my assessment that it is highly unlikely that Vietnam will take legal action against
China in the foreseeable future. China is responding to the anti-China policies of the
Trump Administration by offering an “olive branch” to ASEAN member states,
including Vietnam, to resume consultations on the South China Sea Code of Conduct.
The prospects of a peaceful resolution of this dispute have not been exhausted.
Q2. What clues show that it's actively considering the move -- or otherwise?
ANSWER: Vietnam would also have to make the case for the critical moment when the
dispute was crystalised. At present China has not taken any action against Vietnam
that would rise to the standard of a critical moment that crystalised the dispute.
It could be argued that Chinese pressure on Vietnam throughout 2017-19 to halt oil
and gas exploration in the waters around Vanguard Bank and Block 06-01 constituted
the critical moment. Vietnam suspended operations by Repsol of Spain in 2017 and
2018 in the water around Vanguard Bank and in 2019 cancelled the contract in Block
06-01 as a direct result of Chinese intimidation. Vietnam, however, has not officially
confirmed these incidents.
Last year, at the 11th annual International Conference on the East Sea, co-hosted by
the Diplomatic Academy of Vietnam, Foundation for East Sea Studies, and the Vietnam
Lawyers’ Association, Vietnam’s Deputy Minister of Foreign Affairs Le Hoai Trung
alluded to the possibility of legal action against China by citing language from Article
33 of the UN Charter. This year, Vietnam formally contracted a panel of international
legal specialists, four arbitrators and four conciliators, to advise the government.
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Vietnam is in a delicate transitional period in the lead up to the thirteenth national

party congress in early 2021. Vietnamese leaders have shown themselves to be risk
adverse in dealing with China. This is another factor weighing against legal action.
Q3. If Vietnam sued and won as the Philippines did in 2016, how would that outcome
change geopolitical relations in the South China Sea?
ANSWER: If Vietnam initiated legal action against China, this would result in a rapid
deterioration in bilateral relations as China would likely apply punitive measures
against Vietnam. If Vietnam won an arbitral award against China related to the South
China Sea Beijing would launch an international propaganda campaign to denounce
the legal proceeding and the final award itself.
If Vietnam won its case against China, it would provide a legal foiundation for ASEAN
member states and ASEAN dialogue partners to pressure China to comply with the
award. UNCLOS contains no enforcement mechanism but external maritime powers,
such as the United States and Japan, could use the arbitral award as the legal basis for
pushing back against China.

Suggested citation: Carlyle A. Thayer, “Is Vietnam Poised to Take Legal Action Against
China?” Thayer Consultancy Background Brief, August 25, 2020. All background briefs
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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.