By Jerome A. Cohen
On Saturday, ASEAN member states took a subtle but important step forward toward asserting the all-encompassing authority of the UN Convention on the Law of the Sea (UNCLOS) over PRC claims. UNCLOS, Beijing argues, despite the 2016 major contrary decision of the Philippine arbitration tribunal convened under UNCLOS that the PRC spurned, still leaves open the possibility of legitimate PRC claims to “historic rights” and a preemptive “nine-dash Line” in the South China Sea. Yet, without specific reference to the unanimous Philippine arbitration decision interpreting UNCLOS, which would have plainly infuriated the PRC, this new ASEAN statement, crafted by Vietnam but apparently acquiesced in by all ASEAN members, explicitly confirms that “UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out”.
This cautious, collective “diplomatic speak” can be read to mean that any PRC maritime activities in defiance of the authoritative Philippine arbitration award interpreting UNCLOS are illegitimate. Of course, the PRC claims that the tribunal’s expert arbitrators, among the world’s leading law of the sea specialists, misunderstood UNCLOS and that a proper reading would sustain the PRC’s position.
This is what makes fascinating the recent signals that Vietnam may finally pursue its own maritime legal claims against the PRC by following the Philippine example and initiating its own claims against the PRC via UNCLOS arbitration arrangements. Curiously, the PRC has recently reportedly hinted at a possible receptiveness to Vietnam’s suggestion that Hanoi and Beijing agree to invoke third party legal decision-making to settle their maritime issues, which would be a momentous and positive step toward international law for Beijing. But don’t hold your breath waiting for Beijing’s agreement to any type of impartial, independent international maritime arbitration or adjudication. Nevertheless, at least some reconsideration of the wisdom of PRC refusal to take part in the Philippine arbitration may be under way in Beijing.
Vietnam’s initiation of arbitration would itself be an exciting development, even more so than the Philippines’ stunning 2013 decision to try to take the PRC “to court”. A second authoritative arbitration award invalidating the PRC position would be a grievous blow to Beijing’s continuing legal efforts. For years I have been urging Vietnam to take this legal plunge despite the countervailing political and economic pressures that have inhibited Hanoi from going to law against the powerful neighbor on its borders. International law is the last resort of the weak against the powerful. Yet invoking it can be risky!