Thayer Consultancy

Background Briefing:

ABN # 65 648 097 123

Vietnam Files Statement of

Interest with the Permanent
Court of Arbitration
Carlyle A. Thayer
December 12, 2014
[client name deleted]
In a statement Thursday December 11th, the Vietnamese foreign ministry
spokesman Le Hai Binh said that Hanoi has asked the Permanent Court of Arbitration
at The Hague to take Vietnams legal interests and rights into consideration. What
does this move by Vietnam mean? Is Vietnam really following The Philippines' path
by seeking international arbitration ? Does it means that there is a consensus in the
Vietnam Politburo on the issue ?
ANSWER: Vietnam has filed a formal statement of interest with the Permanent Court
of Arbitration (PCA). This statement is not a statement of claim as made by the
Philippines in January 2013 but a statement of interest in the China-Philippines case
before the Arbitral Tribunal. In its statement Vietnam acknowledged that the PCA
has jurisdiction over the Philippines case. Vietnam asked that the PCA take due
regard of its rights and interests. And Vietnam rejected Chinas nine-dash line as
having no legal basis. All three points stand in opposition to Chinas just released
Position Paper which came out two days after Vietnam filed.
By expressing its interest in the case Vietnam is not joining the Philippines in taking
legal action against China. But Vietnams statement of interest will be noted by the
arbitrators of the China-Philippines case. This will have the effect of raising
however slightly the importance of this case. In other words although the case is a
bilateral matter, the judgment of the arbitrators must take into account the interests
of other parties likely to be affected by the outcome. It may be likely that by filing a
statement of interest that the Arbitral Tribunal could invite Vietnam to make a
presentation of its rights and interests. In other words, Vietnam can make its legal
case through the back door.
There are mixed reports about the legal action that Vietnam was planning to take. It
lodged its statement of interest on December 5 (coincidently the same day the U.S.
State Department released its report, Limits in the Seas). Rumours have been flying
around the diplomatic community that Vietnam was prepared to take stronger legal
action and advised its close friends accordingly. At the last minute, if these rumours
are correct, Vietnam chose the minimalist option. China issued its Position Paper two
days later, on December 7th.

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Vietnams actions also take place on the eve of the important tenth plenum of the
Vietnam Communist Partys Central Committee. Vietnams legal actions will be
aimed at mollifying its domestic critics. These critics may not be completely satisfied
but will be heartened by this action. The Central Committee likewise will have to
temper whatever urge its members might harbour about taking legal action against
China. They will have to accept and go along with the governments decision.
The timing of Vietnam move, coming on the day the State Department released its
brief on the Limits In the Seas, and two days before the release of Chinas Position
Paper, could not have been more propitious. These events, when taken as a whole,
appear to be raising the salience of international law as a means of managing South
China Sea territorial disputes. China will not be happy because it is hell bent on
getting the Arbitral Tribunal to reject the Philippines case.

Suggested citation: Carlyle A. Thayer, Vietnam Files Statement of Interest with the
Permanent Court of Arbitration, Thayer Consultancy Background Brief, December
12, 2014. All background briefs are posted on Scribd.com (search for Thayer). To
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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.