East Sea: How to sue China effectively?

VietNamNet would like to introduce the second part of our talks with Dr. Ngo Huu Phuoc, Head of the International Law Faculty of the Ho Chi Minh City University of Law.

Part 1: Has China forgotten its commitments?

east sea, ngo huu phuoc, international law, lawsuit against china, international court, unclos 

Chinese ships in Vietnam's waters. Photo VOV

VietNamNet: China’s unruly actions have spurred domestic and international public opinion to believe that it is time for us to sue China in the international court of justice. What is your thought about this?

Ngo Huu Phuoc: I do not oppose this plan. However, I believe that in the current situation, as well as based on the practice of dispute resolution of the International Court of Justice – the principal judicial body of the UN – we need careful study. Because the dispute settlement mechanism in the international court of justice is not simple.

I said it is not simple – or in the other words it is particularly complex – because of the political factors relating to the findings and judgment of the International Court of Justice. For example, immediately after Kosovo declared its independence from Serbia in 2008, through the General Assembly, Serbia asked the International Court of Justice the question “Is Kosovo’s declaration of independence consistent with international law or not?”

After two years, the Court concluded that Kosovo's declaration of independence is indeed in accordance with international law. In my opinion, this is a conclusion with political color, which is inconsistent with international law, creating a dangerous precedent, and encouraging secessionist actions of "sensitive" territories in any number of countries around the world. If the court was fair it should have concluded that Kosovo’s declaration of independence from Serbia is a violation of international law.

From that practice, I think we need to very carefully consider the matter before turning to the dispute resolution mechanism of the International Court. Because, with the influence of a powerful country like China, a permanent member of the UN Security Council, political factors may indeed influence the decision of this court.

What I particularly note here is that, when we put the fate of the nation on national territory, sovereignty, sovereign rights and jurisdiction over the sacred waters and island of the country in the hands of 15 judges of the International Court of Justice, it means that we will give the full rights of judgment to the court and in my opinion that is dangerous.

Taking legal proceedings against China is our right but the verdict is under the jurisdiction of the Court and we have to observe that judgment.

According to the regulations of the International Court of Justice, there is no appeal against its verdict and the verdict takes effect immediately. And if one side in the dispute which has agreed to the court’s involvement does not ultimately observe the court’s judgment, the other party may request the UN Security Council’s intervention.

I put the issue in the present context: if the Court says that China is wrong and has to implement the Court's decision and China does not obey. Would the UN Security Council then conduct enforcement against China? It is very doubtful!

If the Court says Vietnam is the winner in the case, of course this is my wish, and given the clear and firm legal and historical evidence, I am confident that Vietnam will indeed win. But given the worst possible outcome (by the perception and opinion of the judges of the International Court of Justice), Vietnam will have to comply with the Court's decisions because we will have voluntarily given this Court the jurisdiction to decide, and we are not as powerful as other states.

In my viewpoint, at this moment Vietnam should only use the multilateral mechanisms of ASEAN, the ASEAN Regional Forum (ARF) (The ARF was founded in 1994 to promote mechanisms for dialogue and consultation on political and security issues in the region, build confidence and develop preventive diplomacy. The slogan of ARF is "Promoting peace and security through dialogue and cooperation in the Asia -Pacific), and the UN forum to inform the world the situation and we find the next legal steps.

VietNamNet: Could Vietnam use the dispute settlement mechanism under the UNCLOS 1982 to resolve this case?

NHP: I confirm that in terms of law and legal basis, Vietnam is fully capable of chosing solutions to resolve the dispute in accordance with the provisions of the UNCLOS.

Looking at the provisions of the UNCLOS on the settlement of disputes, I think we need to continue the research, not hastily bringing the case to the international court of justice.

The International Maritime Law Arbitration Moot only has the function of investigation and establishment of facts derived from disputes relating to fisheries, protection and preservation of the marine environment, marine scientific research and navigation, including pollution caused by ships. It is not a body that has the function of solving disputes as does the International Tribunal for the Law of the Sea. This body can only draft nonbinding recommendations that are the basis for the disputing parties to reconsider the matters that cause the dispute.

The International Tribunal for the Law of the Sea is a permanent agency based in Hamburg (Germany) but to date this court has not solved many disputes on the interpretation and implementation of UNCLOS, and in fact not many states choose this court to resolve disputes.

Through my research, I have found that countries in the world tend to choose the International Tribunal for the Law of the Sea (ITLOS) to resolve disputes. According to my understanding, since the UNCLOS took effect, ITLOS has been resolving a number of disputes between Bangladesh and India on the delimitation of the maritime boundary between the two countries under Article 287, Annex VII of the UNCLOS which began in October 2009. Then there is also the lawsuit of Ireland against the UK related to the MOX plant that began in November 2011. These cases are being implemented.

Other cases include the lawsuit of Malaysia against Singapore related to the exploitation and use of the sea in July 2003 (This case was resolved by the judgments dated 1/9/2005); Barbados’ lawsuit against Trinidad and Tobago the demarcation of the Exclusive Economic Zone and Continental Shelf in February 2004 (The case was resolved by the arbitration dated 11/4/2006); Guyana’s lawsuit against Suriname relating to the delimitation of maritime boundaries between the two countries on 24/2/2004 (The case was resolved by the judgment dated 17/9/2007; Mauritius’s lawsuit against the UK on the marine reserves around the Chagos Archipelago on 20/9/2010 (The case is being addressed); and the Philippines’s lawsuit against China’s claims of sovereignty and sovereign rights in the East Sea on 22/1/2013 (the case is being considered).

I particularly note that the International Tribunal for the Law of the Sea does not have jurisdiction to resolve disputes over border territory, just the disputes arising in the interpretation and implementation process of the UNCLOS.

For example, China has announced the so-called U-shaped line in the East Sea because China said that under the UNCLOS it owns those waters. As such, they interpreted the UNCLOS wrongly. When they interpret and implement the Convention incorrectly, it leads to dangerous consequences – that is, violation of the sovereignty, sovereign rights and jurisdiction of Vietnam and other countries in the region. That is the very important legal basis and practical basis for Vietnam to sue China to the International Tribunal for the Law of the Sea – because China has interpreted and implemented the UNCLOS wrongly.

Therefore, in the future, Vietnam needs to do its research and consider choosing an effective legal solution to resolve the dispute. Bringing the case to the International Tribunal for the Law of the Sea is an effective solution in my opinion.

To be continued…

Interviewers: Duy Chien – Ta Lam

east sea, ngo huu phuoc, international law, lawsuit against china, international court, unclos