The strengthening of Vietnam-US relations in recent years has been one of the most interesting traits of the so-called US Pivot to Asia. Such a strengthening needs to be understood at the intersection between geopolitical and geo-economic factors and in triangulation with the rise of China. While in many regards the emerging of Vietnam as a privileged interlocutor of US attempts at «disciplining» China is a fascinating historical development, it also entails important elements of historical continuity. Interestingly, the evolution of Vietnam-US relations in the two years 2014-2015 – which have been characterized by important developments in both military, economic and political terms – show both faces of this coin. Going through these recent evolutions is a particularly fascinating exercise in light of the series of historically significant anniversaries that marked 2015. 

1. Introduction

2015 was the fiftieth anniversary of the official beginning of the American war in Vietnam, the fortieth anniversary of the liberation of Saigon by Northern Communist troops, and the twentieth anniversary of the normalization of relations between the US and this Southeast Asian state. Amidst this coincidence of highly symbolic anniversaries, it seems fitting to make an assessment of the more recent state of Vietnam-US relations. Indeed, the two years 2014-2015 saw an unprecedented strengthening of bilateral ties, well reflected in the intensification of high-level visits and exchanges of political leaders. In what follows, we first propose a brief historical overview of Vietnam-US relations, paying attention to how they fit into the US’s so-called Pivot to Asia. Launched by Obama’s administration in 2009, the Pivot is a project substantially in continuity with a long history of US aspiration to world hegemony. As has been aptly noted, this project certainly can be read in the light of Beijing’s geopolitical and geo-economic rise. However, more than being merely aimed at containing Chinese power, its true stakes seem to concern the writing of the global rules, and who should be in charge of doing so.[1] We will then look at some key developments of the two years 2014-2015, namely: (a) The crisis that occurred between Vietnam and China over the Haiyang Shiyou-981 oil rig in spring 2014, which strengthened Hanoi’s reasons for intensifying its relations with the US; (b) The partial lifting of the US embargo on lethal weaponry that had been imposed on Vietnam in 1975, and the prospects this opened up in terms of military cooperation; (c) The conclusion of negotiations for the Trans-Pacific Partnership (TPP), of which Vietnam became part not least thanks to US support. In the final section we propose an assessment of the role that the highly contested issue of human rights – which has historically permeated US-Vietnam relations – concretely played in mediating the most recent developments between the two countries.

2. An overview

Obama’s Pivot to Asia has hinged on three main objectives.[2] The first is that of guaranteeing American interests in the «economic driver of the world».[3] The TPP – the Pivot’s economic pillar – covers a region producing 40% of global GDP. Far beyond trade relations alone,[4] the «US friendly» free trade agreement concerns the regulatory frameworks of the 12 member states in areas as diverse as intellectual property rights, the environment, labour standards, and the role of State-Owned Enterprises (SOEs) in the economy.[5] Secondly, the Pivot aims at increasing the US military presence in the Asia-Pacific; strengthening its already-existing alliances and strategic partnerships; and creating new ones.[6] One of the main US focuses, here – also driven by the need to check China’s growing assertiveness in the East and South China Sea – is that of guaranteeing the security and «freedom of the seas», and the respect for international law, in a major crossroad of world trade.[7] The Pivot’s third objective is the promotion of US values in the region, including prosperity and democratic freedoms.[8]

It is within this schema that Vietnam has definitively re-emerged from the «periphery of the world»,[9] this time as a privileged interlocutor of the United States. At the turn of the 20th century, China was already identified as a fundamental pillar of the US’s «long-term project of a capitalistic world order».[10] It was especially with China’s loss to Communism that Vietnam – as part of a Southeast Asian region now even more strategic in terms of markets and raw materials[11]– started to move towards becoming, in American eyes, the world’s «belly-button».[12] It was an arena in which America’s capacity to guarantee the victory of freedom and democracy, as well as its own credibility, would ultimately be tested. Accordingly, the Communists’ seizure of Saigon in April 1975 marked one of the US’s sharpest military and political defeats. This was soon followed by the Ford administration’s extension to the whole country of the «total embargo on transactions» already applied to North Vietnam.[13]

Interestingly, the Vietnam conflict largely explains the emergence of the «human rights» language in US foreign policy in the 1970s.[14] Vietnam was nonetheless still the victim: intertwining with accusations related to what has been defined the «POW/MIA myth»,[15] human rights considerations contributed to the strengthening and «multilateralization»[16] of the already harsh 1975 embargo. Washington’s normalization of relations with Beijing; the blind eye it turned to the Khmer Rouge’s genocide; the definitive isolation of Vietnam by the US (and its allies) following the intervention in Cambodia (1978), all well reflected the ambiguous role human rights played in American foreign policy – even at their apex, during the Carter administration. The embargo was definitively lifted by Bill Clinton in 1994 and the normalization of relations was announced in 1995 – some years after the launch (April 1991) of George H. W. Bush’s «roadmap for normalization» and the Paris Peace Agreements, in 1991. By that time a compromise had been found between the pressure exerted by a US business community wanting to enter the Vietnamese market and the forces opposing the lifting of the embargo, in the name of the continuously re-emerging POW/MIA issue.[17] One landmark of the strengthened economic relations was the sealing of a Bilateral Trade Agreement (BTA), coming into effect in 2001. Agreed in exchange for Vietnam’s improved market reforms, the BTA was followed by a series of US anti-dumping actions against the South-east Asian country.[18] Rapidly growing since then, bilateral trade has indeed been characterised by a persistent US trade deficit.[19] The intensification of economic and trade relations has proceeded notwithstanding the question of human rights in Vietnam – even though Washington has identified this as one of the most problematic aspects of restored links. In the first years of post-normalization, human rights-related criticisms still significantly overlapped with protracted accusations related to the American POWs/MIAs. Until recent times, indeed, the human rights issue seems to have served to perpetuate the US’s long-term discourse on Vietnam’s «moral unaccountability»[20] – sometimes compounded by the theme of its economic unreliability[21] – while morally legitimizing American global leadership aspirations.

Within the Pivot, Hanoi’s need to strengthen its own security in the South China Sea – a constant source of tension between Vietnam and China (who normalized relations with its South-east Asian neighbour in 1991) – has played in Washington’s favour. The historic dispute over the Spratly and Paracel Islands has re-emerged with particular vigour in the second half of the 2000s, when, from the Vietnamese perspective, China has began to show an ever more aggressive attitude.[22] Moreover, Vietnam’s rise as an Asian «manufacturing hub»[23] has paradoxically made it increasingly economically dependent on China – from where it imports a large share of intermediate goods, and with which it has a growing trade balance deficit.[24] In Vietnam’s view, the TPP could help reduce such dependency, encouraging foreign investors to produce intermediate goods directly in the South-east Asian country, to be exported to big international markets such as the US. More generally, Vietnam’s foreign-driven/export-oriented economic model has made it increasingly dependent on widening export markets and on the inflow of foreign direct investments. Conversely, beyond holding a strategic geographic position, Vietnam has itself become one of the most dynamic Asian economies – and a crucial destination for international manufacturers especially on account of its low labour costs and strong incentives for foreign direct investment (FDI) attraction. In 2015 the country saw a 6.68% GDP growth, allowing it to hope that it could overtake China’s growth rate (6.9%) in 2016.[25] As of 2014, foreign investments made up almost 20% of the country’s GDP, 22% of total investments and two-thirds of merchandise exports.[26]

A recent turning point in Vietnam-US relations was 2013, marked by the signing of a comprehensive partnership.[27] In correspondence with negotiations over the TPP and the signing of this partnership, the question of the state of civil, political and religious freedoms in Vietnam has overlapped with a specific focus on labour rights.[28]Also permeated by this theme, the two years 2014-15 simultaneously marked a transition to a qualitatively new phase of post-normalisation. Before turning our attention to the key moments underlying this acceleration – and to the concrete role played by human rights in mediating it – we will first offer a reflection on the triangular Vietnam-China-USA connection.

An analysis of Vietnam’s own relations with China in the two years under analysis is beyond the scope of the present study. However, it’s worth highlighting that as of 2015 Beijing still was a strategically important partner of Hanoi. As has been suggested, the Southeast Asian economy has systematically pursued a «policy of cooperation and struggle» with both US and China.[29] This orientation is part of wider foreign policy goals framed in terms of the «multilateralization» and «diversification» of external relations, and function of the preservation of «independence» and «self-reliance».[30] It will be interesting to assess, from this point of view, the outcomes of the Vietnamese Communist Party’s (VCP) Twelfth Congress,[31] whose preparatory work has been marked by intense infighting, not least regarding the country’s foreign policy orientations. For several years the VCP’s internal struggles have anticipated important changes, both domestically and on the international political terrain.[32]

3. The Haiyang Shiyou-981 crisis.

An important catalyst for the recent intensification of bilateral relations between Vietnam and the US was the unprecedented deterioration of Hanoi’s relations with Beijing in the spring of 2014, when China deployed the massive oil rig Haiyang Shiyou-981 in disputed waters surrounding the Paracel Islands. The crisis happened in the context of the noticeable intensification of Chinese interest and activities in the South China Sea under Xi Jinping’s presidency.[33] Among other things, since 2013 Beijing has started to rapidly intensify land reclamation activities in the South China Sea and turn the Spratly land formations into artificial islands equipped with both civilian and military infrastructure. Far wider in scope than the building activities mounted by any other contending country, Chinese manoeuvres have appeared to aim at increasing its capacity to control the Sea – indeed, potentially overwhelmingly so.[34]

The Haiyang Shiyou-981 events apparently ended with the restoration of Vietnamese-Chinese relations practically in the same state as they had been before the crisis broke out.[35] Nonetheless, they decisively dented Hanoi’s confidence in Beijing, strengthening its reasons to intensify its relations with the United States. Not only did the dispute over the oil rig put Vietnam face-to-face with the levels of aggression that China can reach, and indeed «the enormous disparity in the two countries’ power and capabilities».[36] It also shed further light on the possible economic and domestic political implications of the problem of maritime security.[37] Overall, the Haiyang Shiyou-981 affair substantially reinforced the perception that China represents a threat to Vietnam’s autonomy, security and political-economic stability. We will go on to briefly recount the most important moments of the crisis.

On 2 May 2014 the China National Offshore Oil Corporation (CNOOC) positioned the Haiyang Shiyou-981 oil rig within Vietnam’s exclusive economic zone, about 120 miles from its coast and close to the Paracel Islands. On 3 May, the China Maritime Safety Administration’s website noted that the Haiyang Shiyou-981 oil rig was to conduct drilling operations from 4 May to 15 August 2014, and forbade the presence of ships within a one-mile radius of the rig (soon after extended to three). On 5 May Hanoi demanded the removal of the rig and declared Beijing’s manoeuvres «illegal».[38] From the outset, China’s move was marked by an unprecedentedly muscular approach. Beijing unilaterally entered another state’s Exclusive Economic Zone (EEZ) for the first time[39]  – and it did not hesitate to actively defend the Haiyang Shiyou-981 oil rig area. In fact, according to Hanoi, already within the first week after the oil drill was placed in the disputed waters, China took recourse to ramming and the use of water cannons to push away Vietnamese vessels, damaging them and causing injuries to several of their crew members.[40] Vietnamese authorities denounced the provocative aspects of Beijing’s move, and its disregard for all previous agreements on maritime issues. In the words of the Vice Chair of the Vietnamese National Boundary Commission, Tran Duy Hai,

This is clearly an intentional act, seriously violating the sovereign rights and jurisdiction of Viet Nam over its Exclusive Economic Zone and continental shelf. It also infringes upon the relevant provisions of the international law, including the 1982 UNCLOS and runs counter to the spirit and language of the DOC. China’s actions run counter to the agreements and common understanding between the two countries’ leaders, particularly the agreement on the basic principles guiding the settlement of maritime issues between Viet Nam and China. [41]

Beijing, for its part, justified its recourse – with the «utmost restraint»[42] – to water cannons as a response to some 171 Vietnamese attacks in its own territorial waters between 2 and 7 May 2014.[43]  In late May, a Vietnamese fishing vessel sank around 17 miles from the oil rig, following a collision with a Chinese one. The clash led to mutual accusations of responsibility for the incident, and a further escalation of tensions.[44] Beijing seemingly deployed some 80 vessels in defence of the rig, including fishing vessels, coast guard ships and seven warships – as well as some military jets. Hanoi reacted with a few dozen coast guard and fisheries surveillance vessels.[45]

During the second week of May 2014, as the Haiyang Shiyou 981 crisis was heating up and the VCP appeared divided on the approach to take toward China,[46] a wave of unrest broke out in the country. A first wave of peaceful anti-Chinese demonstrations was followed by violent riots in the industrial parks of the southern areas of Binh Duong, Ho Chi Minh City and Dong Nai. Over 300 businesses – whether owned by Chinese or other foreign (mostly Asian) capital – were attacked, looted and destroyed.[47] Workers were apparently involved in initially peaceful demonstrations by organized groups of unemployed migrant workers (who had earlier been laid-off), who went on to engage in violence.[48] In Binh Duong province – from where the riots spread, involving some 20,000 protesters – authorities reported the burning of 15 factories and enormous economic damage.[49] Riots also spread to central Vietnam, leading to the burning of the giant Taiwanese-owned «Formosa Plastics» and to the death of one Chinese worker and several dozens of injuries. [50]

This «dark chapter in Sino-Vietnamese relations»[51] brought about the temporary closure of a series of foreign businesses, job losses, a drop in tourism, serious economic damage and damage to the country’s image, as well as difficulties in maintaining order.  During these days, investor countries called on Vietnam to restore order and protect their citizens, condemned the incidents, and also highlighted the possible negative consequences they might have for future investment decisions. The Vietnamese authorities, on their part, worked to reassure investors, restore order and offer economic support for the damage suffered. China did not hesitate in blaming the Vietnamese authorities for sparking and then mishandling the disorder, and evacuated thousands of its own citizens. [52]

During this first month of clashes Beijing apparently rebuffed all Vietnamese attempts to resolve the tensions via negotiation. The clashes also continued into June 2014, which saw the failure of the first diplomatic meeting between the two countries since the crisis first exploded. On 10 June 2014 the Chinese State Councillor Yang Jiechi met the Vietnamese Foreign Minister Pham Binh Minh and Prime Minister Nguyen Tan Dung in Hanoi. The visit resulted in an exchange of accusations, with neither side moving from their respective positions.[53]

Already in the days immediately following the explosion of the crisis, the United States made its first official interventions in support of Vietnam. On 7 May 2014, a press statement by Jen Psaki, a spokesperson for the State Department, declared the Chinese manoeuvre «provocative» and expressed US concerns «about dangerous conduct and intimidation in this area».[54] On 10 July, a Senate resolution (S.RES.412) reasserted US support for freedom of navigation and the peaceful resolution of territorial and maritime disputes in the region; it condemned the recourse to intimidation and coercion; it highlighted China’s violation of international law; and it called on Beijing to return to the situation that had existed prior to the oil rig crisis breaking out.[55] The following day, deputy assistant secretary of state for Strategy and Multilateral Affairs Michael Fuchs reaffirmed US concerns over Beijing’s «provocative and unilateral» behaviour. [56]

On 15 July 2014 the oil rig was unilaterally withdrawn, earlier than it was previously announced.[57] This was officially justified as marking the conclusion of the exploratory operations and the identification of «signs of oil and gas».[58] The Chinese Foreign Ministry again declared that the Paracel Islands belonged to Chinese territory, while also defending the legitimacy of Beijing’s «safety of operations» around the oil rig.[59] It also remarked that the platform had been moved in correspondence with the implementation of commercial strategies, and not because of «outside factors».[60] After the oil drill was removed China continued its land reclamation and building activities in the Spratly Islands, reaching 2,900 acres in June 2015 according to US Defense Department data.[61]

4. From the Haiyang Shiyou-981crisis to the lifting of the weapons embargo

Among other things, the Haiyang Shiyou-981 crisis accelerated the already repeatedly-heralded US decision to relax its embargo on the sale of lethal weapons to Vietnam. The related announcement was made on 2 October 2014, upon the occasion of a bilateral summit between Secretary of State John Kerry and his Vietnamese counterpart Pham Binh Minh in Washington. The Vietnamese minister had apparently declined an invitation from Kerry in May, considering the meeting «too sensitive» in light of the affair over the oil rig. The summit’s objective was to assess the evolution of bilateral relations within the US-Vietnam comprehensive partnership – which had also foreseen the creation of a ministerial-level mechanism to this end. [62]

Already in the first days of August, the Republican senator and war veteran John McCain, visiting the Vietnamese capital together with senator Sheldon Whitehouse, reiterated his support for lifting the embargo and for accelerating military and economic cooperation.[63] That same month, General Martin Dempsey made a visit to Hanoi to discuss the strengthening of military cooperation. He was the first chairman of the Joint Chiefs of Staff to visit Vietnam since 1971.[64]

The ban on the sale of weapons to Vietnam dated back to the 1975 embargo. In 1984, Vietnam was further included among the countries subject to the restrictions set out by the ITAR (International Trafficking in Arms Regulation). The weapons embargo remained in place even after 1994, with its lifting conditional on Vietnam progress concerning the country’s human rights situation. In 2007, a first amendment to the ITAR allowed, on a case-by-case basis, the export or import of non-lethal defence articles and defence services.[65]

The partial lifting of the ban, announced in October, remained limited in scope. The United States emphasised that this measure reflected certain noticeable improvements in Vietnam’s human rights situation – including the release of some political prisoners – and that the future pace of military relations would remain conditional on «continued progress» in this field.[66] Adopted in November 2014, the new amendment to ITAR allowed the sale to Vietnam – on a case-by-case basis – of lethal defence articles and defence services aimed at enhancing maritime capabilities and domain awareness.[67] Not without a certain symbolic value of its own, this decision opened the way to further important developments.

One significant shift was the meeting between US Defense Secretary Ashton Carter and his counterpart General Phung Quang Thanh in Hanoi on 1 June 2015. A month from the fortieth anniversary of the loss of Saigon, the United States promised to transfer Vietnam some US$18m for the purchase of American Metal Shark patrol vessels, in support of the country’s maritime defence capabilities.[68] Carter’s visit to Vietnam was part of a wider 11-day tour across Asia, during which he also took part in the annual Shangri-la Dialogue in Singapore. He here confirmed Washington’s interest in strengthening Southeast Asian countries’ maritime capacity.[69] He also reaffirmed the three cornerstones of the US’s latest position on the South China Sea, which he had already announced in Hawaii some days previously.[70]

To put it in Carter’s own words,

1. First, we want a peaceful resolution of all disputes and an immediate and lasting halt to land reclamation by any claimant. […] We also oppose any further militarization of disputed features; 2. Second and there should be no mistake: The United States will fly, sail and operate wherever international law allows, as we do all around the world; 3. With these actions in the South China Sea, China is out of step with both international norms that underscore the Asia-Pacific’s security architecture, and the regional consensus in favour of non coercive approaches to this and other long-standing disputes.[71]

The announcement in turn evoked Washington’s apparent intention – disclosed by a Wall Street Journal report – to make recourse to «a more robust approach in the South Chinese Sea», including «using aircraft and Navy ships to directly contest Chinese territorial claims to a chain of rapidly expanding artificial islands».[72] Such intention provoked a sharp reaction from Beijing,[73] which it also reiterated at the Singapore security summit.[74]

In Hanoi, Carter also made an – only partially accepted – request to his Vietnamese counterpart, asking for a halt to land reclamation and island building in the South China Sea.[75] In any case, the meeting between the two ministers concluded with their co-signing of a Joint Vision Statement (JVS), seeking to orient their bilateral defence relationships on the basis of the Memorandum of Understanding on Advancing Bilateral Defense Cooperation already sealed in 2011.[76] The JVS explicitly invoked the possibility of «expan[ding] defence trade between our two countries, potentially including cooperation in the production of new technologies and equipment, where possible under current law and policy restrictions».[77]

In filigree, the overall language of the JVS represented an indication that the restrictions set out in the ITAR were about to be eliminated. This probable development seemed to be confirmed in subsequent months by Assistant Secretary for Arms Control Verification and Compliance Frank A. Rose.[78] It is worth noting, here, that the US defence industry has shown increasing interest in the growing Vietnamese market, and more generally in «capitaliz[ing] on regional anti-Chinese sentiment to boost sales».[79] The priority that Vietnam has itself attributed to modernising its own military capacities has translated into a surge in military spending. According to the Stockholm International Peace Research Institute, between 2005 and 2014 it rose by some 128%.[80] In April 2015 the media widely reported the staging of a meeting at the US embassy in Hanoi, seeking to promote the sale of US defence firms’ articles to the Vietnamese military. The invitees for this symposium – held a few days before the forty-year anniversary of the liberation of Saigon – included contractors like Boeing Co., BAE Systems Plc., Lockheed Martin Corp. and Honeywell International Inc.[81]

In the short term the US defence industry nonetheless seemed probably destined to play a limited concrete role in Vietnam. This owed not least to factors of a legal, technical and strategic nature. First of all, the restrictions set out by the ITAR still hung over the country. Secondly, the still-inexpert Vietnamese may have faced difficulties accessing the American Foreign Military Sales procurement procedures – and integrating US equipment and technology into Vietnam’s existing defence systems.[82] Finally, although «the Haiyang Shiyou-981 drift» strengthened the arguments for a closer alliance with the United States, it seemed probable that Hanoi would continue to privilege its own strategic allies, including Russia, also on the military terrain.[83]

Historically one of the main arms suppliers to Vietnam since the end of the war, as of 2015 Russia still provided the South-East Asian country with 90% of its military equipment.[84] In 2009 Vietnam signed an agreement for the supply of six Kilo-class submarines, with the penultimate vessel reaching Cam Ranh Bay in February 2016.[85] Moreover, Russia was already selling Vietnam aircraft, and was helping the country to construct a nuclear power station.[86]

The developments that we have briefly related above have, in any case, reconfirmed the substantial alignment of US and Vietnamese strategic interests with regard to the South China Sea. This convergence was brought into relief in Washington on 7 July, at the historic meeting between President Barack Obama and Vietnamese Communist Party’s General Secretary Nguyen Phu Trong. Organised to mark twenty years since the normalisation of bilateral relations, during the summit the two leaders also reaffirmed their mutual interest in taking forward their cooperation in areas already identified by the comprehensive partnership, strengthening their bilateral relations, and accelerating negotiations over the TPP.[87] We will now turn our attention to these negotiations, before returning, later in the chapter, to some particularly telling aspects of the meeting between Obama and Trong.

5. The conclusion of the TPP negotiations

5.1.   The US-Vietnam side-agreement on labour

The growing perception of a «Chinese threat» has pushed the American Congress to overcome its own reticence about a (partial) lifting of the embargo on the sale of lethal weaponry to Vietnam. This decision has, nonetheless, raised strong criticism in the world of campaigning and human rights organisations as it has been deemed to decrease Washington’s capacity to influence Hanoi’s conduct with regard to civil and political liberties.[88]

Backed by the Obama administration, Vietnam’s presence in the TPP negotiations has also fed into a wider opposition to the agreement in the US Congress. US legislators’ – and particularly Democrats’ – objections on the specific Vietnamese case have overlapped with the criticisms levelled by both human rights organisations and the world of trade unionism. Beyond the question of human rights in general, these critiques have concerned the theme of labour rights and the barriers to the constitution of independent trade unions in Vietnam.[89] The concerns in this regard have brought into question – among other things – the possible repercussions that a deal with a country hostile to labour rights like Vietnam might have for the levels and quality of employment in the US. Hanoi’s presence in the negotiations for the free trade area also intersected with discussions in Congress about granting President Barack Obama the Trade Promotion Authority (TPA), namely the (impermanent) power to negotiate a trade agreement, which the Congress can then endorse or turn down, but cannot modify.[90] The US President ultimately obtained the TPA – not without difficulty, and with Republican support proving decisive – in June 2015.[91]

Negotiations were also characterised by several reasons for apprehension and mutual pressure between Washington and Hanoi. Some main fields where problems arose included the question – of particular interest for the United States – of Vietnam’s adaptation to the agreement’s standards regarding SOEs, intellectual property rights and the «yarn forward» rule.[92] On their side, Vietnamese demanded special treatment for developing countries, while also noting the US tendency to privilege its own interests, without wanting to concede much to the other negotiating countries.[93] Issues related to access to the respective markets also featured prominently in bilateral talks. In any case, already in 2014 successive meetings between Vietnamese Deputy Prime Minister Vu Van Ninh and US trade representative Michael Froman had expressed a common will to accelerate negotiations and find agreement on the thorniest questions.[94]

The 12 member-countries concluded the negotiations for the TPP on 5 October 2015, following a complex process that had raised many difficulties and taken more than five years.[95] The text of the agreement, which up till that moment had remained a secret,[96] was made public on 5 November 2015[97] and formally signed in New Zealand on 4 February 2016.[98] Vietnam brought its own bilateral talks to a conclusion in August 2015.[99] Nonetheless, the TPP still had to face the far from simple challenge of being ratified by each member country. The United States – where the debate over the TPP overlapped with the US presidential election campaign – was the country where it seemed likely to face the greatest difficulties.[100] It remained uncertain whether Obama, confronted by a bipartisan opposition, would be able to get Congress to ratify the TPP by the end of his term as president.[101]

The conclusion of the negotiations was ultimately accompanied by a bilateral labour agreement between the United States and Vietnam.[102] The US’s overall goal in this side-agreement was to commit the Southeast Asian country to adopt the necessary internal reforms to satisfy the standards set out in the TPP. The TPP chapter on labour (no. 19) anchors all member countries to the «core labour standards» identified in the 1998 ILO declaration on Fundamental Principles and Rights at Work: «freedom of association and effective recognition of the rights to collective bargaining; the elimination of forced and compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.» Moreover, chapter 19 sets out the adoption of several measures: a first set guaranteeing «acceptable conditions of work related to minimum wages, hours of work and occupational safety and health», a second one «prevent[ing] the degradation of labour protections in export processing zones», and a third one aimed at to «combat[ing] trade in goods made by forced labour».[103] Focused on the core labour standards mentioned above, with particular attention to the question of unions’ independence, the agreement provided for the possibility of technical assistance to Vietnam, also allowing a certain flexibility in the timeframe within which the country was to comply with its requirements.[104] On a more general level, Vietnam appears to have obtained margins of flexibility and promises of technical assistance from both the United States and the other member countries – including with respect to thorny issues like SOE reform, open procurement and intellectual property rights.[105]

5.2.   Vietnam’s and the US’s converging interests in the TPP

Vietnam’s interest in the TPP is easily understood in terms of the predictions that accompanied the conclusion of the negotiations.[106] The most cited of these include Eurasia Group’s estimate of a 11% increase in the Vietnamese GDP within ten years of the agreement’s implementation – a «percentage increase» that «dwarfs the gains made by any other country» – and a likewise considerable increase in exports, of 28%. More particularly, a 50% increase was predicted – again, the highest in the whole free-trade area – for the garment and footwear sectors, mostly to the disadvantage of China.[107] Other export sectors expected to gain included agriculture, aquaculture, seafood and forestry. Analyses have especially highlighted the possibility for Vietnam to gain enhanced access to enormous markets like the USA and Japan. Vietnam is one of the five countries in the area covered by the TPP that does not already have a Free Trade Agreement (FTA) with the United States.[108]

According to estimates, garment and textile – key sectors of the Vietnamese economy – were likely to benefit most from the country’s entrance into the TPP and the preferential access to the US market allowed by the agreement.[109] Between 2005 and 2015 Vietnam was continuously classified as one of the world’s top ten garment and textile exporters, taking fifth place in 2015.[110] That year the United States was the Southeast Asian economy’s number one export market in these sectors, whereas Vietnam was itself the second biggest net exporter to the US after China.[111]

American official reports have identified Vietnam as one of the most interesting countries of the TPP’s area still lacking a US FTA.[112] This owes not least to Vietnam’s economic dynamism, the noticeable intensification of bilateral trade relations, and their potential for growth. It has been noted how the TPP could affect both Vietnamese tariff barriers relevant to US interests and, as noted above, non-tariff barriers such as those associated with the considerable role SOEs play in Vietnam’s economy.[113] Once in effect, the TPP will, for example, allow US agricultural and food producers to penetrate the highly promising Vietnam market. This will help strengthen America’s competitiveness in these sectors, faced with the challenges deriving from other free trade agreements existing or currently being negotiated in the region.[114] Similarly, the removal of the duties on US auto parts will improve US competitiveness as compared to countries that already have an FTA with Vietnam, such as China, Thailand and Indonesia.[115] Within the limits of the flexibility measures set out for the country, the TPP will also result in US access to the Vietnamese procurement market, and, as noted above, in strong provisions on the protection of intellectual property rights being extended to the country.[116]

We have mentioned in previous sections the TPP’s potential to decrease Vietnam’s economic dependence on China. Nonetheless, in key sectors like garments and textiles, both the possibility of increasing exports to the US market and that of reducing Chinese imports depended on Hanoi’s ability to adjust to the «yarn forward rule». As of 2015, the Vietnamese garment and textile industry was still heavily reliant on non-TPP member countries, particularly China. The insertion of «yarn forward rule» into the agreement was aimed at restructuring the regional supply-chains, to the advantage of the member countries – not least the United States – and to the direct disadvantage of non members countries, above all China. No doubt, the inclusion of the «yarn forward rule» creates important opportunities for US textile producers to penetrate the Vietnamese market, both in terms of exports and investments.[117]

Vietnam’s entrance into the TPP has also been deemed likely to bring it a greater influx of foreign direct investment than any other member country.[118] Already before the negotiations were concluded, international garment and textile producers – both of Asian, including Chinese, and American provenance – began to redirect investment flows toward Vietnam or to increase existing ones, in expectation of the benefits associated with Vietnam’s participation in the agreement. [119] Also predicted was a further increase in the already extraordinary influx of foreign direct investment in the Vietnamese electronics and IT sectors, coming from the biggest international conglomerates. In recent years – not least in anticipation of its entrance into the TPP – Vietnam has turned into a major production base for giants like Samsung, Intel, and Microsoft. Since 2013, electronics have become Vietnam’s leading export sector. Along with trade advantages that Vietnam is foreseen to gain from participating in TPP, the low costs and good quality of its labour have greatly contributed to making it one of the most attractive Asian production bases and, at least in part, an alternative to the increasingly more expensive China.[120] In 2015, the US was only the seventh investor in Vietnam (out of 103 countries and territories), though this figure does not take account of investment by American enterprises registered elsewhere.[121] According to the Vietnam Association of Foreign Investments predictions, the United States was nonetheless one of the TPP area countries most interested in expanding its presence in Vietnam, with important potentials «to rise to the top».[122]

6. Some reflections on the state of US-Vietnam bilateral relations through the lens of human rights.

As we mentioned above, the question of human (and labour) rights in Vietnam featured prominently in US-Vietnam relations also in the two-year period under examination. In the following sections, some reflection on the role that this theme concretely played in mediating recent relations between the two «old enemies» will be offered. The analytical lens of «rights» offers a particularly interesting perspective on at least two levels. On the one hand, it allows us to evaluate the real state of the relations between the two countries, on the fundamentally important political-ideological plane. On the other hand, the theme of rights opens out onto reflection on some of the concrete contents of the American «return» to Vietnam, and, more generally, the US project of «global leadership». In this latter regard, we will devote particular attention to the question of labour rights and standards, which marked the TPP negotiations and closely concerned the Hanoi regime. On this terrain we can take forward some of the observations already made in a previous issue of Asia Maior.[123]

6.1.   Convergences

Although as of 2015 the US’s persistent questioning of the state of human and labour rights in Vietnam was not without concrete implications, it seems to have continued to play a mostly rhetorical role, legitimising its privileged dialogue with Hanoi. Indeed, this marked an element of continuity with the controversial relation between rhetoric and practice that has traditionally underpinned Washington’s foreign policy on this theme. After all, the US fought its Vietnam war not least in the name of democratic freedoms; and, on the other hand, the US return to the country in the 1990s went ahead despite the lack of such freedoms. A useful entry point for evaluating the most recent state of relations between the two countries on the ideological-political plane are two of the main official meetings that marked 2015.

The first was the already-mentioned visit to Washington of Vietnamese Communist Party’s General Secretary Nguyen Phu Trong in July of that year. The visit had initially raised uncertainties as to the correct protocol to follow, given that the US system does not itself have any equivalent figure.[124] The most insightful analyses have aptly shown that although the Vietnamese leader’s trip did not result in tangible forward steps in the relations between the two countries, it was of very great value. Among other things, Nguyen Phu Trong was ultimately received by Barack Obama in the Oval Office of the White House, on a par with a prime minister or head of state. This decision seemed to note the US’s definitive recognition of Hanoi’s domestic political structures, including the centrality of the VCP and the primary role the General Secretary plays within the Party. This seemed to contribute to easing the suspicions raised by Vietnamese political factions more concerned over US intentions toward their country. Moreover, the meeting was characterised by the theme of  «respect for each other’s political systems, independence, sovereignty and territorial integrity».[125] This seemed to de facto seal the US’s «substantive engagement» with the Vietnamese Communist Party, first started by Hillary Clinton’s visit to Hanoi in 2012, and then strengthened with the launching of a comprehensive partnership the following year.[126]

It is worth noting that the July summit had been preceded by Tran Dai Quang’s visit to Washington, in March of that same year. It has been noted that although this meeting did not catalyse media attention, it in itself represented a crucial advance in the relations between the two countries. A Politburo member and the first Vietnamese Public Security Minister to visit the United States, Tran Dai Quang was also commander of the national security forces and, as such, a potential «primary target of human rights critics in the United States». His visit to Washington was interpreted as demonstrating Hanoi’s increased assuredness in dealing with its historic «ideological challenger». Again in this case, the welcome reserved for the minister seemed to contribute to salving the qualms of Vietnamese «conservatives» averse to rapprochement with Washington. An apparently clear mark of the eased relations between the two countries on the ideological plane was the acceptance of the US Peace Corps’ presence in the country – these latter having only a few years earlier been defined a subversive and «hostile force».[127]

It is true, within this picture, that the specific theme of human rights has remained of central importance, and has been constantly addressed throughout the more recent exchanges between the two countries. Even so, the objective qualitative leap in bilateral relations seemed bound – at least in part – to encourage a further «levelling down» of the two countries’ different positions in this regard; as has already been seen in the past.

Without doubt, Vietnam’s «struggles» against US political pressure on human rights has been the subtext of its rapprochement with Washington.[128] In fact, US pressure has not brought about «reform or any meaningful action to improve human rights» inside Vietnam.[129] Significantly, in the past years, Hanoi has continued to oppose the US’s full lifting of its embargo on lethal weapons being conditional on the question of human rights.[130] On the other hand, even in August 2015 – as he visited Vietnam to mark twenty years of the normalisation of relations – John Kerry remarked that

[…] there are basic principles that we will always defend: No one should be punished for speaking their mind so long as they are peaceful; and if trading goods flow freely between us, so should information and ideas. And we believe that progress in upholding these basic human rights will absolutely serve Vietnam’s interests in several ways. […]. Progress on human rights and the rule of law will provide the foundation for a deeper and more sustainable strategic partnership.[131]

More generally, the two countries have systematically underlined their readiness to pursue dialogue and, at the same time, their objective differences in this regard. Within this evident dialectical tension, nonetheless, Hanoi has often strategically made openings on the question of human rights, and in particular in correspondence with crucial moments of its rapprochement with the United States or integration into the international community. As negotiations advanced on the TPP, Vietnam repeatedly proceeded to release political prisoners.[132] As mentioned above, the partial lifting of the lethal weapons embargo was itself preceded by a manoeuvre of this type. After the comprehensive partnership agreement was signed, there was a drop in arrests and the number of political activists, journalists and bloggers who were detained.[133] Already in the second half of the 2000s, as relations with the United States intensified, Hanoi released political prisoners and negotiated over religious freedoms. At stake in that period there were several crucial political-diplomatic developments: premier Phan Van Khai’s historic 2005 visit to Washington; the preparations for Vietnam joining the WTO; and President Nguyen Minh Triet’s 2007 visit to the United States.[134] In the lead-up to Vietnam’s entry into the WTO (2007) and its election to the UN Human Rights Council (2013), there were also openings on the question of the independence of the trade unions.[135]

For its part, the US administration has not been averse to endorsing the Vietnamese government’s proclamations of intent, or the limited material advances that this latter actually made.[136] This has allowed Washington to legitimise its proceeding with bilateral relations in spite of the many critical voices that have been raised, including in Congress, reaffirming these relations’ beneficial effect on freedoms within Vietnam.[137] However, Vietnam’s openings have been mostly limited and superficial, and often the promises made have not been kept. As noted by an analyst, the Vietnamese Communist Party has thus far proven able to combine its economic opening with the preservation of its political control.[138] Beyond the numerical tally of political prisoners, often the focus of Washington’s attentions, in 2015, «amid high level diplomacy», the human rights situation in Vietnam was reported as being persistently critical. [139] To put it in the words of Brian Adams, the Asia Director of Human Rights Watch: «Vietnam tried to minimize political trials and convictions in 2015 to gain favour during the Trans-Pacific Partnership negotiations, but repression against activists remained firm, with beatings increasing».[140]

6.2.   The TPP and labour standards

The dynamic we briefly reconstructed above brings into question the role that labour standards in general – and more specifically the side-agreement on labour between the United States and Vietnam – were meant to play in the TPP. They above all seemed to respond to the Obama administration’s attempt to influence the fiery domestic political debate around the free trade agreement.[141] On the Vietnamese side, adherence to labour standards – officially reasserted in November 2015[142] – certainly did serve the demands of the Party’s own internal legitimation.[143] However, the overall treatment of labour rights and conditions in the TPP provoked not a few criticisms.

Before going on to give a few examples of these objections, it seems useful to make a general observation. As in most FTAs, the main labour standards included in the TPP directly invoke the «core labour standards» of the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work (DFPRW) – and not that Organization’s set of labour conventions. This has itself been considered an element of ambiguity.[144] Indeed, the appearance of the DFPRW at the end of the 1990s responded to the attempt to reassert the question of labour – marginalised in previous decades – in the context of growing economic globalisation and trade liberalization, characteristic of those years. The labour standards at the heart of the DFPRW are based on 8 key pre-existing ILO labour conventions.[145] These core standards are meant to be binding on all ILO member states, regardless of whether or not they have ratified the 8 conventions.[146] However, ever since its first appearance – strongly backed by the United States – the DFPRW has proven an instrument with less enforcement capacity than the existing international labour rights regime. As one authoritative commentator explained, it embodied a shift of emphasis «from a focus on rights, the content of which is relatively well defined in international treaties» to a «focus on more generally formulated ‘principles’». As a consequence, «There is now an emphasis on soft promotional techniques […].» [147]

Analyses have also brought into relief the weakness of the specific enforcement mechanisms set out in the TPP;[148] such a weakness has been already amply demonstrated by assessments of other US FTAs, including the new-generation ones (2009 and after), which set out strengthened measures concerning labour rights and standards.[149] As we mentioned in the previous section, the TPP also proposed that member countries adopt laws that guarantee «acceptable conditions of work related to minimum wages, hours of work and occupational safety and health».[150] Nonetheless, the parameters of «acceptability» have not been referred to any specific standard; they have instead been left to the decision of individual governments. Moreover, the labour chapter appears to allow countries – in order to be more attractive for trade and investment – to weaken their provisions concerning the «acceptable conditions of work» and also those related to the fundamental rights themselves (in this case, provided that the minimum standards, as internationally defined, are met).[151] The effective lack of enforcement mechanisms in the side-agreement between the United States and Vietnam has also been noted.[152]As some analysts have shown, the Vietnamese authorities have themselves claimed that the country has already put in place measures aimed at satisfying the criteria of the DFPRW – to which it already adhered as an ILO member country – and already has adequate laws on wages, hours of work and health and safety. At the same time, their proclaimed acceptance of the requirement regarding union independence seemed liable again to translate into purely superficial measures, or unkept promises.[153]

It should be said, in the above regard, that the enormous limits to the functioning of the Vietnamese union – especially at the factory level – have so far certainly contributed to exposing the country’s emerging working class to very poor working and living conditions. It is also true, however, that over the years a singular mechanism has been developing in Vietnam, through which the union and government apparatus «respond» to the high level of worker conflictuality, mostly expressed in the form of «wildcat strikes».[154] Particularly frequent from the early 2000s onward, some 80% of these strikes have been concentrated in companies financed by foreign capital.[155] Although illegal from a formal point of view, such strikes have been de facto «institutionalized».[156] They normally lead to the intervention of government and union officials at the negotiating table on behalf of the workers, once the conflict has broken out.[157] Many of these industrial disputes have resulted in a raise of minimum wages, following what some have labelled «collective bargaining by riot».[158]

In 2015 the question of the Vietnamese unions’ transition to a more democratic set-up still remained very much unresolved and problematic, all the more so in a country that continues to declare itself a «socialist market economy». Even the reform programmes that the government and the union have adopted in response to rising labour conflict have overall proven to fall far short of providing workers democratic representation.[159] Nonetheless, not only the TPP’s provisions seem unwilling to effectively challenge the status quo. Such agreements also highlight the ultimate incompatibility between, on the one hand, the «neoliberal» models of development and industrialization and, on the other hand, the very same labour (and other) rights they claim to promote – thus bringing to light the constraints under which trade unions in Vietnam (as elsewhere) operate.

As noted above, a central factor in catalysing investors’ attentions towards Vietnam has been the possibility of accessing a deep reserve of low-cost and relatively well-educated young workforce. Effectively, the agreement could definitively trap Vietnam in productive specializations inherently incompatible with advancing even basic labour rights and conditions.[160] Studies in Vietnam as elsewhere have widely shown what international investors’ expectations and demands are with regard to the characteristics of the workforce – indeed, low-skill and labour intensive productions can be easily moved to other countries offering lower labour costs. A recent survey on the Vietnamese garment and electronics sectors – typically relying on the recourse to poor internal migrant workers, in particular young women – has for example confirmed the spread of low pay and unstable employment relations in foreign invested firms, the workforce’s enormous vulnerability, the existence of very high turnover rates, and the prevalence of harsh and highly disciplinary factory regimes.[161] Some case studies on female migrant labour in the electronics sector have shown in detail how the labour regimes driven by foreign investment are structurally tailored to producing (migrant) workers that are exploitable, poorly paid, vulnerable, temporary and circulatory (and thus exposed to a ceaseless return to poverty).[162]

In the above respect, it’s worth recalling the idea of labour rights and standards that the United States and its businesses themselves concretely uphold and promote. Telling, for example, is the hostility that the American Chamber of Commerce and the US-China Business Council (along with the European Union Chamber of Commerce) have shown in the past towards attempts at concretely improving the basic standards of work of millions of Chinese (internal migrant) industrial workers – as in the case of the 2008 Chinese Labor Contract Law. Not only did the above organizations criticize some pillar aspects of the draft law’s provisions; they also intensively lobbied for having them revised and mitigated in its final version. Moreover, conspicuous by their absence in the two organizations’ comments to the draft law was any reference to the rights to strike and organize – which the Chinese labour law itself does not recognize. [163]

Indeed, US firms are among those well-known for spreading heavily labour-unfriendly practices around the world. Noteworthy in this regard was the highly criticized visit that Obama paid to Nike headquarters in Oregon in May 2015, as part of its «campaign» to gain Democratic and trade-union support for the free trade agreement.[164] With much at stake in the TPP, as of 2015 Nike represented 60% and 30% of the US and world footwear markets respectively.[165] The corporation’s labour practices in Vietnam – its largest production base[166] – have apparently improved since the 1990s, when workers’ harsh treatment in the country came to light, heavily damaging the image of the giant conglomerate.[167] However, as a report noted in 2015, Nike has continued strongly to rely (and apparently still intended to do so) on the below-subsistence wage levels that can be imposed on Vietnamese workers, and on the lack of basic workers’ freedoms and rights in the Southeast Asian country.[168] It is also, more generally, worth remembering that the US has not signed up to the ILO convention on workers’ freedom of association and collective bargaining. In fact US «law allows employers to permanently replace workers that exercise the right to strike»,[169] whereas at the enterprise level, heavy anti-union practices are notoriously widespread, and made possible by easily-escaped legislation.[170]

With regards to the issue of the compatibility between the TPP and human and labour rights, another important question relates to the much-criticized Investor to State Dispute Settlement (ISDS) mechanism. The extent to which the ISDS will be extended to areas such as labour regulations – if it is at all – is still difficult to assess. However, the very fact that this mechanism did ultimately enter the TPP’s text is telling of the «rights-unfriendly» rationale of the agreement – already visible in measures such as those related to intellectual property.[171] Aimed at guaranteeing the enforceability of international investors’ and corporations’ rights and interests, this is a mechanism that can significantly challenge governments’ regulatory capacity in areas of public interest.[172] With regard to the specific issue of labour rights and standards, it seems legitimate to echo one commentator’s observation: «[…] if the Vietnamese government did decide to enact policies to strengthen labour – such as a big increase in the minimum wage […] – companies may sue, forcing the country to pay compensation and reverse policies. Even if independent unions were allowed, how much power would they really have to struggle for policy changes in the face of this corporate power?».[173] Potentially, mechanisms like the ISDS do indeed seem capable of imposing «from above» precise and stringent limits on the effectiveness of any pressure «from below» seeking substantial political and institutional change.

We said above that in 2015 the question of human and labour rights in Vietnam represented an element of continuity with the controversial relation between rhetoric and practice that has traditionally underpinned US foreign policy on these subjects. Seen through the lens of the TPP and labour standards, the human rights issue also raises questions regarding the continued US tendency to collapse the very meaning of democratic freedoms, principles and rights into its own vision of the world order. Inextricably bound up with «U.S. practices of ‘neoliberalism’»[174] and hegemony, the extension of the theme of Vietnamese «moral unaccountability»[175] into the post-normalization years also appeared to disguise the fashioning of the mechanisms that would finally be able to empty these notions of their genuine socially-transformative potential. In particular, while reference to labour rights and standards appears to serve the interests of key international stakeholders, agreements such as the TPP do indeed seem capable of weakening any genuine attempt at improving labour conditions and rights and reforming its organizational structures.