If China refuses to face Vietnam at
international court, then what?
What are Vietnam’s
options if China refuses
to be taken to international court in the East Sea
dispute? In that case, Vietnam can still unilaterally file a lawsuit
against China if it proves that the dispute between the two countries falls
under the scope of the 1982 UN Convention on the Law of the Sea (UNCLOS), and
not within the exception that China has claimed.
China's illegal
rig in Vietnam's
exclusive economic zone and continental shelf.
Since May 1, China
has unilaterally deployed its HD-981 rig and many vessels, including military
ships, in Vietnam’s
exclusive economic zone (EEZ) and continental shelf. This action violates Vietnam’s
sovereign rights and its jurisdiction over the EEZ of 200 nautical miles and
continental shelf. More dangerously, China escalated tensions when its
ships, under the support of aircraft, rammed vessels of the Vietnamese coast
guard.
While Vietnam
maintains a policy of restraint and using dialogue to negotiate, China is
increasingly expressing its aggression. Therefore, in addition to finding the
support of the international community, Vietnam should be "self-
reliant".
Facing China's
aggressive acts to push tensions to a climax, Vietnam should set out a strategy
for rational and sustainable value . Besides political and diplomatic moves,
a solution based on the legal process may be a positive suggestion.
Through the principle of voluntary implementation of
international commitments (pacta sunt servanda), international law has high
practical value. Specifically, international law can help prevent conflict,
resolve disputes and promote cooperation in international relations. The
universality and binding power of international law has become the preferred
choice of many countries in the resolution of disputes and the prevention of
conflicts.
As China
has repeatedly delayed and has been even unwilling to resolve disputes, Vietnam may
unilaterally submit the dispute to the arbitral tribunal. Specifically, Vietnam can request the establishment of an
arbitral tribunal under Annex VII of the UNCLOS, in case China does
not agree to bring the case to the international court of the law of the sea.
Many experts have said that Vietnam
should take legal actions against China. This article is about this
process.
Vietnam should act
based on the provisions of the dispute settlement mechanism laid out in
UNCLOS Chapter XV, consisting of three sections and 21 articles (from Article
279 to Article 299).
The first step is that Vietnam has to conduct the
procedures and regulations of the dispute resolution process based on the
consensus of both parties from Part 1 of the UNCLOS (Article 279 to article
285). The most notable article is 283, which requires the parties to exchange
views on the disputed issues in the <case that | context of whether>
the disputes are in the scope of the UNCLOS, which both states had signed, to
figure out the resolution through negotiation or other peaceful forms.
Based on this, Vietnam
may require China to bring
the East Sea dispute to the International Court
of Justice. However, China
will never agree, because it does not have a solid legal claim. China has
violated the UNCLOS and it is unwilling to resolve the dispute through
negotiations.
Therefore, Vietnam can apply part 2 of
chapter XV (article 286 to article 297), on the legal procedures necessary to
make binding decisions. Article 286 of Part 2 clearly states that if no
agreement is reached in resolving disputes after the implementation of the
provisions of Part 1, the proposal of any country will also be sent to the
court specified in this section.
According to Article 287, the member states of UNCLOS,
if conditions prove it necessary, can choose one of the four specific
tribunals to resolve the dispute, but if the remaining country involving in
the dispute does not accept the tribunal chosen by the other state or does
not choose any tribunal, the dispute can still be taken to the arbitral
tribunal under Annex VII (Section 5 Article 287).
The issue of concern here is the provisions in Part 3,
Chapter XV, regulations on the limits and exceptions to the application of
Part 2. Especially Article 298, paragraph (a) (i), which provides an
exception that claimants can apply to remove the jurisdiction of the courts
referred to in Article 287, particularly disputes concerning the interpretation
and application of articles 15, 74 and 83 on delimitation of maritime
boundaries.
Specifically, after participating in UNCLOS, China claimed
to separate herself from the dispute settlement mechanisms involving
territorial sovereignty when it claimed to consider all types of disputes in
Article 298 as exceptions, including disputes concerning the interpretation
and application of articles 15, 74 and 83 on maritime boundary delimitation.
However, Vietnam
still can unilaterally sue China
if it can prove that the dispute between the two countries is under the scope
of UNCLOS and not within the exceptions that China has claimed.
The most important task now is that Vietnam has to concentrate in perfecting the
legal basis in both historical and practical factors to demonstrate its
indisputable sovereignty in the East
Sea. This is the
important basis for Vietnam
to sue Chinese in the international court, and win the support of the
international community, as in the case of the Philippines.
With the positive meaning of international law, Vietnam can see this is a direct way to force China to
behave more rationally. This will be a huge advantage for Vietnam in
the construction of the national image and in claiming its legitimate
sovereignty.
The legal front will be the shield to prevent China from
succeeding in its efforts. The solid legal basis will help Vietnam internationalize the East Sea
disputes, something that China
has always avoided. If Vietnam
keeps silent, it will be disadvantaged at the negotiating table later, as China may claim that Vietnam has tacitly acknowledged China's
actions to be legal.
To demonstrate the significance, effectiveness, and
necessity of the UNCLOS – a "constitution of the oceans" – it is
highly possible that Vietnam’s
proposal will be accepted. Importantly, both Vietnam
and China
are UNCLOS signatories.
From here, Vietnam will not only protect its
legitimate sovereignty, but also can play an important role in helping ASEAN
increase its coherence.
The national interests and responsibilities to the
region are the foundations for Vietnam in its struggle against
any infringement of its sovereignty. Therefore, Vietnam
needs to urgently stop China’s
soft "expansion" plot.
Huynh Tam Sang, VietNamNet Bridge
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