Thayer Consultancy Background Briefing:

ABN # 65 648 097 123

South China Sea: Will
International Law Restrain
China?
Carlyle A. Thayer
July 22, 2019

The U.S. Department of State has just expressed officially its concerns over China’s
“bullying behavior” in the South China Sea. We aske for your assessment of the
following issues:
Q1. How did China violate international law by deploying a survey ship into the
Vanguard Bank?
ANSWER: Under the United National Convention on the Law of the Sea (UNCLOS),
widely regarded as the “Constitution of the World’s Seas,” states have sovereign rights
to all the marine and seabed resources in their 200 nautical mile Exclusive Economic
Zone (EEZ) and continental shelf. The EEZ is drawn from straight baselines from a
state’s coast at low tide or from legal islands as defined in UNCLOS.
Vanguard Bank lies wholly within Vietnam’s EEZ and continental shelf and there can
be no doubt that Vietnam has sovereign jurisdiction. No state may exploit the marine
or seabed resources in another state’s EEZ without prior permission.
China’s actions in conducting seismic surveys in the waters near Vanguard Bank is
illegal for three main reasons. First, China’s coastline is far away and does not overlap
Vietnam’s EEZ. The Arbitral Tribunal that heard the case brought by the Philippines
against China determined that there were no legal islands in the Spratly archipelago
so China cannot claim an EEZ from any of its artificial “islands”. Second, the Arbitral
Tribunal ruled that China’s claim to historic rights was extinguished when China
acceded to UNCLOS and China’s nine-dash line map had no standing in international
law. Third, China acted unilaterally and did not request nor did it receive permission
to conduct survey work in Vietnam’s EEZ.
Q2. What is the message China wants to send?
ANSWER: China has issued vague statements calling on parties to respect its
sovereignty. At present it is unclear what message China wanted to convey and this
had led to speculation. Some analysts have speculated that China is seeking to disrupt
Vietnam’s oil exploration program. The Asian Maritime Transparency Initiative, for
example, claims that China sought to “punish” Vietnam for approving Rosneft Vietnam
BV’s resumption of oil exploration in bloc 06-01 in May.
There are two views. First, after the incidents in July 2017 and March 2018 involving
Repsol of Spain in the Vanguard Bank area, China is seeking to take advantage of
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Vietnam’s self-restraint by unilaterally conducting seismic surveys where no

exploration is being carried out.
Second, China is responding to the U.S. Indo-Pacific Strategy that targets Vietnam as
a potential strategic partner. China’s actions at Vanguard Bank are designed to
undercut the United States by demonstrating to Vietnam that there could be
consequences of moving too close to the United States.
Q3. What is the role of international law in this situation?
ANSWER: International law serves, to a certain extent, to restrain states from using
coercion or force. International law puts the onus on parties to a dispute to resolve
the matter peacefully. With the exception of the mandatory dispute settlement
mechanism in UNCLOS Annex VII, international law mandates the consent of all parties
to arbitration.
UNCLOS was designed to provide a compulsory dispute mechanism over maritime
jurisdiction but not sovereignty disputes. This is the mechanism used by the
Philippines against China. UNCLOS includes a provision for dispute settlement even if
one party chooses not to participate. This what happened in the case brought by the
Philippines. China’s absence did not prevent the Arbitral Tribunal from hearing this
case.
According to UNCLOS the Arbitral Tribunal’s Award (or legal ruling), is final, not
subject to appeal, and must be complied with immediately. Unfortunately, there are
no enforcement provisions in UNCLOS so China could brazenly ignore the Award
against it.
Q4. What can Vietnam do now to protect its interests while still ensuring its
commitment to international law?
ANSWER: To comply with international law, Vietnam must first seek to resolve its
dispute with China through dialogue and diplomatic consultations. The Philippines
took action against China by documenting its prolonged and unsuccessful attempts to
revolve its dispute through consultations.
Vietnam must use peaceful means to resolve its dispute. In the case where incidents
involve coercion or the use of force, Vietnam must respond proportionally. Vietnam
could attempt to block resupply to the China survey vessel to force it to withdraw, for
example.
Vietnam should keep the legal option on the table and advise China that legal action
could be taken. Vietnam could follow the same legal path that the Philippines did and
ask the Arbitral Tribunal to determine its entitlements as a littoral state. Of course,
this is no guarantee China would comply with a second Award.
Vietnam could demonstrate that China’s actions have consequences. Vietnam could
raise the Vanguard Bank issues at all relevant meetings of multilateral institutions
especially those under the ASEAN umbrella.
Vietnam could step up cooperation with the coast guards of regional states and major
powers such as Japan and the UnitedStates. Vietnam could organise capacity-building
activities in its EEZ in areas where China is likely to intrude.
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Vietnam should continue to press members of the international community to

condemn China’s action. The United States has already issued a strong statement
condemning China as a bully. Vietnam could work with other states to impose
sanctions on Chinese state-owned companies that deliberately conduct illegal
activities in another state’s EEZ.

Suggested citation: Carlyle A. Thayer, “South China Sea: Will International Law
Restrain China?” Thayer Consultancy Background Brief, July 22, 2019. All background
briefs are posted on Scribd.com (search for Thayer). To remove yourself from the
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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.