The concept of “lawfare” has garnered greater academic attention in recent years. Terminologically speaking, it is a combination of “law” and “warfare”, with the former being weaponised for military objectives.Footnote 1 Kittrie attributed the origin of the lexicon to Hugo Grotius, one of the founders of the international legal system, with his seminal work “Mare Liberum” championing the concept of freedom of the seas and thus making way for the Dutch military to transcend its force far beyond its shoreline.Footnote 2
The weaponisation of law for strategic objectives is a complex trend that has become more discernible in the past three decades.Footnote 3 Four main reasons account for the growing prominence of lawfare. First, lawfare is seen as a viable option for weak players in the face of stronger adversaries.Footnote 4 In this asymmetric relation, actors mobilise all potential instruments to gain an edge, even unfairly by exploiting their opponents’ adherence to international rules. An example of lawfare is the use of military assets within the proximity of schools, hospitals, and other civilian premises. Second, while remaining suspicious of the genesis of international law, revisionist powers do not reject the normativity of international law.Footnote 5 For example, Chinese international law scholars are ready to accept that international legal rules play a central role in governing inter-state relations and managing their conflicts.Footnote 6 With increasing participation and yet divergent agendas, international law would be regarded as the critical site for states to compete for influence and legitimacy. Third, the state-centric approach to treaty interpretation more than often results in disparate understandings of international norms and major discrepancies in the practice of international law. This issue is complicated by the involvement of third parties, such as non-state actors, international tribunals, and courts, who also have a stake in advancing their own understanding of international law and how it should be implemented.Footnote 7 Fourth, the deepening of economic globalisation and the transformative nature of information technology are also suggested to amplify the significance and impact of lawfare strategies.Footnote 8 These trends facilitate the diffusion of legal knowledge and empower more actors to invoke the law for their own cause regardless of legitimacy. On top of it, economic interdependence has created new vulnerabilities that can be subject to exploitation through lawfare strategies.
This article will proceed in four parts. First, it will review conceptual elements of lawfare and the typology of lawfare in the existing international law literature in Section I. Section II will analyse whether Viet Nam has worked out a lawfare strategy, particularly regarding the South China Sea (SCS) disputes. The study of Viet Nam’s perspective of lawfare is worthwhile for two heuristic reasons. First, Viet Nam has a long socialist history. During the Cold War, international law scholars were deeply polarised regarding approaches to international law.Footnote 9 Instead of looking in the same direction, the socialist camp set out an alternative view of international law. Does this perspective still hold water in contemporary Viet Nam? Second, Viet Nam is a small, secondary state. While big powers enjoy more discretion in dictating on the law, small countries have a way, including using the law, to hedge against their counterparts’ assertiveness. This feature incentivises small states to adopt a pluralistic view of international law to blunt the coercive hegemony.Footnote 10 The article finds that Viet Nam has employed elements of lawfare strategy to counter China’s assertive conduct at sea by recalibrating its national interests and legal position. Section III concludes.
I. Conceptualisation and Categorisation of Lawfare
Former US General Charles Dunlap’s essay ignited an intense debate on “lawfare” and its use as a weapon of war. As observed by Dunlap, lawfare represents a novelty in twenty-first-century warfare.Footnote 11 His work, focusing on the abuse of international law for delegitimising the US and Israeli military campaigns, became the central theme when academics canvassed this phenomenon. Interestingly, in 2005, the US Department of Defense released the National Defense Strategy, which mirrored this sentiment, asserting that the law functioned as “a weapon of the weak” employed in judicial processes and terrorism to undermine American interests.Footnote 12 Two implications can be drawn from this perspective. First, the law was seen as an ulterior instrument employed by the “lawriors”, as termed by David Luban to refer to those who engaged in lawfare, pretending to be law-abiding persons so as to avoid “coming out and fighting like real men”.Footnote 13 At the abstract level, this is a critique of the politicisation of law. Second, the legal arguments advanced by those “lawriors” are baseless legally and factually.Footnote 14 Thus, those who engage in lawfare commit two fouls: one against martial virtue and another against legal virtue.Footnote 15
Although Dunlap’s essay helped popularise the term “lawfare” and shaped its subsequent discussion, his initial employment of lawfare focused on the pejorative aspect of this term, which was seen as inimical to US national security.Footnote 16 In a subsequent effort, Dunlap sought to capture the complexity of “lawfare”.Footnote 17 This revised perspective acknowledged the dual uses of lawfare that might be not only harmful to but also beneficial for the US national interest.Footnote 18 In essence, like any instrument, law could be wielded for benign or malign purposes. The strategic deployment of lawfare is a potentially optimal alternative to conventional warfare, especially considering Westerners are highly averse to lengthy conflicts and considerable casualties. Hence, lawfare has been reframed as “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective”.Footnote 19 This view is adopted in Orde Kittrie’s 2016 monograph on lawfare,Footnote 20 perhaps the very first of its kind in the academic literature. In a similar vein, Trachtman describes lawfare as “legal activity that supports, undermines, or substitutes for other types of warfare”.Footnote 21
However, Jill Goldenziel opines that the definition of lawfare as involving practically any use of law related to warfare is not analytically helpful for academics, policy-makers, and the military.Footnote 22 Goldenziel proposes defining lawfare as comprising two aspects. First is “the purposeful use of law taken toward a particular adversary to achieve a particular strategic, operational, or tactical objective”; second is “the purposeful use of law to bolster the legitimacy of one’s own strategic, operational, or tactical objectives toward a particular adversary, or to weaken the legitimacy of a particular adversary’s particular strategic, operational, or tactical objectives”.Footnote 23 On the analytical level, this proposition in large part resonates with Kittrie’s qualification of lawfare. Accordingly, two analytical elements of lawfare include: (i) effect: the use of law to accomplish objectives tantamount to those secured through conventional military action; (ii) intent: such legal action must be demonstrably driven by the intent to weaken or dismantle the adversary.Footnote 24 Goldenziel’s contribution is adding “legitimacy” to the equation when considering the objective of the weaponisation of law. In this sense, the invocation of law seeks to bolster one’s legitimacy or undermine an adversary’s legitimacy by foregrounding the (un)just and (il)legal underpinnings of that mission. Though this is not without criticism,Footnote 25 for the purpose of this article, this conceptual framework is helpful to preliminarily assess the engagement of Viet Nam in lawfare.
Since lawfare is multidimensional, its classification is contingent on how one approaches this phenomenon. For example, studies have identified various types of lawfare, such as domestic, state lawfare, which is employed to harass presidential candidates and damage their reputation during election campaigns for political gains. In this article, lawfare is limited to military, strategic objectives, and it largely concerns public international law.
Orde Kittrie observed two primary, interconnected forms of lawfare that have emerged and remained dominant in lawfare discourse. The first, instrumental lawfare, refers to the strategic use of law to secure objectives traditionally pursued through conventional military force. The second is “compliance-leverage disparity lawfare”, which specifically targets the kinetic battlefield by exploiting law to gain an advantage over an adversary who may be more susceptible to its influence.
Building on Kittrie’s framework, Jill Goldenziel compartmentalises lawfare into five categories. Apart from instrumental lawfare and “battlefield exploitation lawfare” as synonyms for Kittrie’s compliance-leverage disparity lawfare, Goldenziel proposes three additional types of lawfare. Proxy lawfare means “taking legal actions using adversary proxies”.Footnote 26 The legal tussle between the USA and Chinese company Huawei or Russian corporations exemplifies this type. Information lawfare centres on using the law to shape and control narratives surrounding a conflict.Footnote 27 This type of lawfare aims to be complementary to other types. It aims to shape popular opinion and undermine the legitimacy of the adversary’s operations. Institutional lawfare indicates “the purposeful creation of new domestic and international laws and institutions to achieve one’s military or strategic efforts”.Footnote 28 The US has historically employed this tactic as a primary funder for the United Nations and other international organisations. China has countered these efforts by establishing its own international institutions.
II. Viet Nam’s use of lawfare in the South China Sea disputes
It is a truism to state that the SCS is a significant source of tension and instability in the region. Almost all stakeholders have launched variations of lawfare. As also a major dispute claimant, the SCS disputes are the perfect litmus test for Viet Nam’s pluralistic approach to international law and its use of lawfare to attain strategic objectives. What is its position, and how does it react through law to other claimants’ conduct, mostly China’s? By and large, instrumental lawfare is seemingly dominant in Viet Nam’s approach to the SCS disputes. This article underscores three legal developments that Viet Nam has adopted to preserve itself and hedge against big powers.
A. Leveraging international law for self-preservation and hedging
The United Nations Convention of the Law of the Sea (UNCLOS) is the key legal instrument, widely propagated as “the Constitution of the Ocean” in Viet Nam,Footnote 29 for shaping the legal responses of Viet Nam to resist power asymmetry, especially in relation to China. In this sense, the UNCLOS is the pivotal document that equips small states with legitimate means of dispute settlement. According to Nguyen Hong Thao, a leading international law expert in Viet Nam, “as a developing country, Viet Nam has high hopes in upholding the international legal order at seas and oceans created by the UNCLOS”.Footnote 30
This tendency has become increasingly intelligible in recent years. At high-level meetings, bilateral and multilateral, Viet Nam has seized every opportunity to internationalise the SCS disputes. A common theme at the end of such meetings is a joint communiqué, a joint statement in which a special emphasis is placed on the United Nations Charter and the UNCLOS as the ultimate sources for settlement of the SCS disputes. When asked, Viet Nam’s spokespersons have frequently brought up these sources to critically comment on claimants’ activities in the SCS against the backdrop of rising tension. In so doing, Viet Nam targets undermining the legitimacy of others’ conduct in the region by naming and shaming their UNCLOS violations.
Corroborating evidence of Viet Nam’s instrumental lawfare is its dynamic stance on means of dispute settlement. As a colonised nation, Viet Nam was suspicious of the utility of international law in sustaining the imperial system against the decolonisation movements. On top of it, with the embedding of its socialist genome, Hanoi tended to adopt a binary view of international law with a particular focus on equal sovereignty, non-interference, and self-determination of the people.Footnote 31 The influence of the Confucian tradition might be a determinant for its litigation-averse, negotiation-prone approach to settling disputes. Therefore, it is reasonable to expect Viet Nam’s limited engagement with international law and the dispute settlement system. This is not really the case in the SCS disputes. In 2012, the Vietnamese National Assembly enacted the Law of the Sea of Viet Nam. Though this Law is considered a codification of the UNCLOS regulations, it hints at a paradigmatic shift in Viet Nam’s approach to resolving sovereignty and maritime disputes with other claimants. Prior to the adoption of the 2012 Law, the Vietnamese Government issued two Statements in 1977 and 1982, in which it emphasised the importance of resolving maritime disputes “through negotiations on the basis of mutual respect for independence and sovereignty, in accordance with international law and practices”.Footnote 32 Diverging from this original view, the 2012 Law offers more choices of dispute settlement mechanisms by simply stating that disputes must be resolved through “peaceful means, in conformity with the UNCLOS, the international law and practices”.Footnote 33 This formulation signifies Viet Nam’s broadened willingness to engage in various peaceful dispute settlement mechanisms, including negotiation, conciliation, arbitration, adjudication, or any other method mutually agreed upon by the parties involved and grounded in the principles of international law. This outlook has been reiterated in the statements of the Ministry of Foreign Affairs spokespersons on the SCS ruling on a number of occasions.Footnote 34 In 2020, there was a rumour that Viet Nam was following the Philippines and under preparation for bringing a lawsuit against China concerning the SCS disputes after having been pushed around in the disputed zone.Footnote 35 However, for unknown reasons, this scenario has not materialised.
Another indicative example of Viet Nam’s instrumental lawfare is the recalibration of the Paracels (Hoang Sa Archipelago) and the Spratlys’ (Truong Sa Archipelago) legal status. Prior to its accession to the UNCLOS in 1994, Viet Nam asserted a maritime claim encompassing a territorial sea and contiguous zone of 12 nautical miles each and an exclusive economic zone (EEZ) and continental shelf of 200 nautical miles measured from generated from the Paracels and the Spratlys.Footnote 36 In other words, the Paracels and the Spratlys were considered islands entitled to full maritime space in light of Article 121(1) UNCLOS. According to political scientist Do Thanh Hai, due to its distrust in international law, Viet Nam adopted an instrumentalist approach to the UNCLOS and staked maximalist claims wherever possible in the fear of being handicapped in subsequent negotiations.Footnote 37 However, this outlook has shifted since Viet Nam determined to embrace the spirit of UNCLOS and use it against China. The country’s leaders came to realise that negotiations would not lead to anything near to settlement.
The watershed was the 2009 Joint Submission of Malaysia and Viet Nam on the extended continental shelf in the southern coastline and the latter’s partial submission on its northern coastline to the Commission on the Limits of the Continental Shelf (CLCS). Notably, the submissions made by Viet Nam concerning the Spratly and Paracel features did not delineate an EEZ or continental shelf. This purposive omission suggests that Viet Nam has readjusted its original perspective. Rather than islands, in Viet Nam’s view, the SCS offshore islands are considered rocks that are not entitled to generate their own EEZs and continental shelves. Other claimants within the Association of Southeast Asian Nations seemed to hold similar view that those features were not islands.Footnote 38 Viet Nam’s joint submission with Malaysia and its partial submission to the CLCS in 2009 aimed at two strategic objectives. First, by formally lodging maritime claims Viet Nam considered itself to be acting in good faith and in compliance with the UNCLOS in its exercise of legitimate sovereign rights. As argued by Do Thanh Hai, this undertaking was meticulously studied and extensively surveyed for years before coming to light.Footnote 39 Henceforth, as national interest was recalibrated, Viet Nam’s legal position on the Paracels and the Spratlys’ maritime zones was adjusted. Second, the submissions could be seen as a wager to press China to spell out its claims in the SCS. In response, China lodged its objections to the CLCS with an annex demonstrating the nine-dash lines for the first time as part of its claims. Even though China’s counter-submission raised more questions than answers, it successfully drew China into the instrumental lawfare in which the UNCLOS is central.
The SCS arbitration ruling delivered a symbolic victory, just as Viet Nam needed, by having found that none of the features of Spratly Islands could have its own maritime space beyond 12 nautical miles. Drawing on this finding, Vietnamese scholars have weighed up the possibility of replicating the SCS ruling on the Paracel islands, which are subject to dispute between China and Viet Nam.Footnote 40 However, an official endorsement has remained pending.
In 2020, a new battle of words broke out. In protesting Malaysia’s Note Verbale No. CML/14/2019 dated 12 December 2019 outlining its extended continental shelf in the northern part of the SCS and China’s Note Verbale No. CML/11/2020 dated 23 March 2020,Footnote 41 Viet Nam lodged three Notes Verbales to the United Nations Secretary-General.Footnote 42 The Note Verbale No. 22/HC-2020 dated 30 March 2020 is significant in throwing more light on Viet Nam’s legal opinion on the SCS disputes. As usual, it reiterates a call for compliance with the UNCLOS as the paramount legal source in comprehensively managing and resolving the maritime conflicts. Notably, as stated in this diplomatic note, “the maritime entitlement of each high-tide feature in the Hoang Sa [the Paracel] Islands and the Truong Sa [the Spratly] Islands shall be determined in accordance with Article 121(3) of UNCLOS”. This reading would not endow any feature in SCS with an exclusive economic zone or continental shelf without exceptions. According to a commentator, the wording of this Note Verbale is an outcome of a thought-out, deliberate process.Footnote 43 It is suggested that if Viet Nam has a second opinion, the language would have been softened rather than as affirmative and robust as used in this diplomatic note.Footnote 44 From this perspective, Viet Nam’s legal opinion has mirrored the central findings of the SCS arbitral award pertaining to the legal status of maritime features in this region.Footnote 45 It likely suggests that a specific portion of the SCS falls under the designation of High Seas where other States enjoy freedom of navigation. To that end, Viet Nam has expressly endorsed external players’ conduct, such as freedom of navigation operations, not only in the Spratlys but also the Paracels as an international protest to China’s excessive claims in the region.Footnote 46 This form of challenge is intended to stem China’s claims from becoming valid through acquiescence.Footnote 47 Also, to address concerns that Beijing’s sovereignty claims could gain validity through acquiescence, Hanoi has implemented measures to limit Beijing’s influence on social media and especially on official electronic portals of international institutions. In 2022, following Viet Nam’s formal dismissal of the nine-dash line, the World Meteorological Organization removed this line from a heatwave map previously posted on its Facebook page.Footnote 48 Vietnamese authorities have shown zealous efforts in tackling China’s SCS-related misinformation.Footnote 49
Viet Nam’s use of the UNCLOS in this case clearly demonstrates two conceptual elements of Kittrie’s lawfare. First, its intended effect is to avert the conflicts in the SCS. It does so by, among others, scaling down the disputed area with the view that no feature in the Paracels and Spratlys is entitled to maritime zones outside 12 nautical miles and threatening to resort to judicial means to pressurise China to recalculate the cost-benefit of its operations. Second, it purposely creates a zone contingent on the international rule of law and minimises the zone of lawlessness to constrain China’s arbitrariness and assertiveness. Instead of resorting to force, under which it will stand no chance against its mighty neighbour, the utilisation of law helps Viet Nam achieve strategic objectives without sacrificing its resources to unnecessary standoffs. Moreover, using law equips Viet Nam with a legitimacy tool to declare China’s actions illegal and isolate adversaries, particularly to dissuade countries from participating in and supporting China’s maritime scheme.
B. Crafting alternative to sidestep legal ambiguities
Joint development (JD) is a viable mechanism for parties to rise above deadlocked sovereignty disputes and allow them to mutually benefit from natural resources in maritime areas with overlapping legal entitlements. This cooperation mechanism has been mentioned in the rulings of international tribunals.Footnote 50 JD finds its legal basis in Articles 74(3) and 83(3) of the UNCLOS as a provisional measure characterised by its practical nature, pending the conclusion of the delimitation of the EEZ and continental shelf. JD is state-centric, concluded through an agreement with the view to espouse the transition before parties finalise boundary delimitation. It goes without saying that JD is limited to disputed maritime areas pending the settlement of the maritime boundary delimitation and shall not adversely affect the process or substance of the dispute.Footnote 51
Despite the utility and feasibility of the JD model at the SCS, there was a divergent understanding and application of JD between China and Viet Nam, which was a source of contention and cynicism.Footnote 52 China has used the JD model to nudge the SCS claimants to partake in its overarching scheme. However, based on an analysis of China’s high-level leaders’ statements, Nguyen Hong Thao submits that China’s inner leadership views JD as entailing three core interrelated elements: (i) China’s claims over islands and maritime zones inside the nine-dash lines are legitimate; (ii) but parties determine to “set aside” the disputes; (iii) to jointly make use of the resources.Footnote 53 Put differently, JD is weaponised based on the hidden assumption that China’s nine-dash line in the SCS is legitimate. This use of JD is highly problematic because it turns the disputed areas into non-disputed and thus betrays the notion of “setting aside disputes”. Moreover, though some waters are not subject to overlapping claims, if JD is advanced, it will spark new disputes in irrelevant areas. For example, since 1992, Beijing has insisted on the application of the JD model to the Vanguard Bank (Tu Chinh Bank), which falls within Viet Nam’s EEZ.Footnote 54 Otherwise, impediment to access and harassment becomes the norm in this area. As documented by Asia Maritime Transparency Initiative, in 2022, China’s patrols within the waters surrounding the Vanguard Bank demonstrated a marked increase, reaching a total of 310 days.Footnote 55 This has posed a major challenge to Viet Nam’s exercise of sovereign rights and economic interest.
To sidestep the ramifications of China’s JD model, since the 1990s Viet Nam has worked out a policy alternative, “Cooperation for Mutual Development” (CFMD).Footnote 56 Five key principles characterise this policy. First, CFMD is envisioned as a holistic approach grounded in the United Nations Charter and the UNCLOS, particularly Articles 74 and 83 (maritime delimitation), Article 123 (cooperation in enclosed or semi-enclosed seas), Article 118 (international cooperation in the conservation and management of living resources), and Article 119 (conservation of the living resources of the high seas).Footnote 57 Second, differing from the state-centric approach to JD, CFMD is more inclusive, allowing for the participation of non-state actors, such as private companies.Footnote 58 For instance, the 2005 tripartite agreement involving the national oil and gas corporations of China, Viet Nam, and the Philippines exemplifies this inclusiveness. Third, CFMD is open to various maritime spaces, even areas beyond national jurisdiction.Footnote 59 As such, it can be applied to areas with overlapping claims or the maritime zone that rests exclusively with a single state. Fourth, CFMD encompasses a wide range of cooperative activities, including resource exploration and exploitation, marine environmental protection and preservation, maritime search and rescue, disaster prevention and control, and anti-piracy measures.Footnote 60 These joint cooperative activities are deemed to conform to the spirit of UNCLOS, the Declaration on the Conduct of Parties in the SCS, and the draft Code of Conduct. Fifth, CFMD can be pursued as a long-term resolution to coordinate stakeholders in realizing its objectives.Footnote 61 This framework aims to deter unilateral actions, foster sustainable development and mutual understanding, and prevent disputes from escalating.
With an alternative scheme, Viet Nam averts legal ambiguities inherent to China’s concept of JD in its pursuit of strategic objectives. Since CFMD is not a UNCLOS lexicon, nor do its principles succumb to Beijing’s understanding of JD, it gives Viet Nam extra leeway to move forward with joint economic and non-economic activities without antagonising its own claims. Even in case of a skirmish flaring up, CFMD is unlikely to be invoked as evidence of acquiescence to buttress sovereignty claims in the SCS disputes. This tussle also showcases the dynamic interaction between the use and misuse of the law in achieving strategic objectives without resorting to force.
1. Adopting maritime militia force to counter Chinese assertiveness
In response to Chinese maritime militias, Viet Nam has deployed its “fishing militias” with dual objectives, economic and strategic, to counteract belligerency at sea. Viet Nam’s fishing militias originated from widespread resentment towards Chinese repression of Vietnamese fishermen at sea. These repeated incidents of aggression against Vietnamese fishing vessels triggered a heated debate in Viet Nam during late 2009 as to whether fishermen should be armed and organised into maritime self-defence militias.Footnote 62 In the same year, the Law on Militia and Self-Defence Forces was passed and set the very first foundation for fishing militias to operate. The Vietnamese fishing militias have grown gradually ever since.Footnote 63
Despite some general similarities, Vietnamese fishing militias differ fundamentally from Chinese maritime militias in at least three aspects: legal standing, allocating resources, and engagement rules. First, as suggested in a comparative study of maritime militia-related legislation of China and Viet Nam, Vietnamese fishing militias take a firmer root in the national law and are considered “de facto active servicemen” when on duty, while there are many legal ambiguities regarding Chinese counterparts in its law.Footnote 64 The Vietnamese laws explicitly prescribe distinct legal responsibility for fishing militias in cases of violations of their duties. Even though this is an internal matter of national law, it bears implications for international law and state responsibility. With the legal empowerment of its fishing militias to defend maritime zones, Vietnamese lawmakers make clear that this force is exercising power on behalf of the State when mobilised. In contrast, the legality of the Chinese maritime militias’ conducts and their responsibility at sea remains obscure. Cui and Shi have suggested that an explanation for this divergence is the trend of professionalisation of the Chinese military forces, which does not admit irregular forces as part of the military.Footnote 65 This account, however, does not rule out the possibility that Beijing intentionally turns a blind eye to this force in cases where legal obscurity may play in its favour.
Second, it is axiomatic that resources are the Achilles’ heels of Vietnamese fishing militias. In a 2020 editorial published in the China Daily, Viet Nam was formally called out for strengthening its armed maritime militia and risking the SCS’ stability.Footnote 66 The editorial alleged that Vietnam was subsidising fishermen to acquire “large militia ships” specifically intended for confrontational purposes. This piece picks up a trend in Chinese media reports over the past few years that have laid the blame on Viet Nam for maritime provocations at the SCS. In response, Vietnamese Ministry of Foreign Affairs’ Spokesperson quickly dispelled this myth.Footnote 67 In the absence of official Vietnamese figures, an estimation of the maritime militias’ size can be derived from available data. According to the calculation of political scientist Nguyen Khac Giang, roughly 6,700 fishermen could potentially be considered members of the maritime militia in 2021.Footnote 68 However, this figure might still be delusive.Footnote 69 These “militia” fishermen reportedly receive only rudimentary training, are not armed or lightly armed, and most importantly, can be mobilised only in times of emergency, such as situations of conflict, search and rescue missions, and prevention of illegal, unreported, and unregulated fishing.Footnote 70 For most of the time, these individuals are primarily engaged in regular fishing activities.
The second feature leads to the third one, which is engagement rules. Given that its capability is no match for Chinese maritime militias, Vietnamese fishing militias’ engagement rules are meant to be defensive in character.Footnote 71 Deployments may take place in response to China’s assertive activities at sea, which, in the view of Viet Nam, are attempts to illegitimately enforce Beijing’s territorial claims and deny Hanoi’s access to resources within its claimed EEZ and continental shelf.Footnote 72 An indicator to buttress this view is the absence of documented confrontations between Vietnamese fishing militias and other claimants in the SCS.Footnote 73 Their operations are primarily confined to Viet Nam’s EEZ, demonstrably distinct from China’s approach.
The encouragement of Vietnamese fishermen to continue sailing on the sea, doing regular fishing activities, and defending the maritime entitlement of the country is intended to legally resist China’s excessive claims and factually expose its belligerent conduct at sea. Its effect should not be understated since it is a way, though a risky one, to draw more scrupulous international attention to the region of global importance, and therefore undermine the legitimacy of the adversary.
III. Conclusion
Lawfare is not an exclusive device of superpowers. Small and middle powers are even more inclined to adopt elements of lawfare to balance superpower rivalry and evade confrontations. It bears noting that using the law as a weapon of war would be a double-edged sword if Viet Nam itself acts at odds with the norms that it has been preaching. This article does not claim that Viet Nam’s instrumental lawfare in the SCS disputes represent its overarching approach to international law. Different branches of international law would probably see different approaches factoring in national circumstances and international climate. In any case, Viet Nam’s efforts to recalibrate its national interests so as to advance lawfare strategy are highly conspicuous through the SCS disputes. To rephrase Harold H. Koh’s words in the context of the SCS disputes, “[Viet Nam] is using its smart-power assets in a case where there’s a hard-power disadvantage and the rule of law is on their side … [Viet Nam] is treating [the SCS disputes] as a global struggle … [Viet Nam’s] long game is law”.Footnote 74 This may be a long game indeed, but it is still worth a shot.
Acknowledgements
This article is part of the research project “The Use of International Law for Preventing and Addressing Hybrid Wars” (with Dr Linh Giang Nguyen as Principal Investigator). The views expressed herein do not reflect those of the Institute of State and Law or the Vietnam Academy of Social Sciences. The author would like to give special thanks to Tran Thi Thu Thuy, Xoai, and Bo for their patience and support.
Funding statement
None.
Competing interests
The author declares none.
Tien-Duc NGUYEN is Research Fellow at the Institute of State and Law, Vietnam Academy of Social Sciences.
