East Sea: Be careful with China’s “win-win” plot

VietNamNet would like to introduce the final part of the 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?

Part 2: East Sea: How to sue China effectively?

international law, international court, east sea, china, vietnam

Sinh Ton Island, part of Vietnam’s Spratly Islands. Photo: Kien Trung

VietNamNet: If Vietnam brings the case to the International Tribunal for the Law of the Sea (ITLOS), what steps should we take?

Dr. Ngo Huu Phuoc: To bring the case to the ITLOS, we need to prepare a file for the lawsuit. The documents are compiled by the government or the Ministry of Foreign Affairs with political, historical and legal evidence, which is called the lawsuit announcement. Then we send the file to China. If they accept, they have to reply in accordance with the procedures stipulated in the Appendix 7 of the International Convention on the Law of the Sea 1982 (UNCLOS).

This file must be prepared very carefully. We also need a group of legal experts who well understand international law in general and the UNCLOS in particular.

VietNamNet: Some have said that on this occasion, Vietnam should bring the disputes over the Paracel and Spratly Islands (disputes over territorial sovereignty) to the court, to resolve under the UNCLOS?

Phuoc: I would like to emphasize again that the UNCLOS is not the international legal basis for solving this dispute. The Convention is only applied to solve disputes that arise during the interpretation and implementation of the Convention.

For example, for the case of China’s illegal drilling rig, if China says that it is deploying this rig in their waters and their exclusive economic zone according to the UNCLOS, they have misinterpreted because, according to the Convention, that is the exclusive economic zone and continental shelf of Vietnam. We can file a lawsuit against them for that point because they have explained and applied the UNCLOS wrongly.

The International Tribunal for the Law of the Sea has no jurisdiction to judge which island belongs to which country.

VietNamNet: To get the Paracel Islands back, which court can Vietnam file its claims to?

Phuoc: Currently we are seeking a solution to reclaim the sovereignty of Vietnam over the Paracel Islands and some islands of the Spratly, which have been illegally occupied by China since 1974 and 1988. As a peace-loving nation, we cannot use force to take these islands back, so we find a legal solution.

We should place our trust in the International Court of Justice, because this court resolves all disputes between nations. This means that we must accept the risk that if Vietnam is the winner, it will be difficult to force China to observe the court’s verdict. Moreover, if Vietnam is the loser, it will have to accept the court’s judgment.

To file the lawsuit against China to claim back the Paracel Islands, the first thing Vietnam must do is accept the jurisdiction to resolve the dispute by the International Court of Justice.

So far we have not once claimed to accept the jurisdiction of the International Court of Justice to resolve disputes, and to date Vietnam has never signed, joined or ratified any international treaty with the provisions that if any dispute arises, the dispute will be resolved at the International Court of Justice.

VietNamNet: This means that if both the plaintiff and the defendant accept the International Court of Justice, then this court will accept and resolve the lawsuit?

Phuoc: Yes, it’s true! Settlement of disputes in the International Court of Justice is a consensus mechanism, which means that the court only accepts cases with the agreement of both sides on the court’s jurisdiction. Therefore, if Vietnam files the lawsuit alone and China does not agree to solve the dispute at the International Court of Justice, the court will not accept the case.

For disputes over territory and maritime boundaries between Vietnam and China and other countries, in my opinion, we should choose the International Court of Justice. However, it is not easy, because the court is a complex dispute resolution mechanism. Weaker countries and the countries lacking historical evidence, such as China, are not so foolish as to accept this mechanism, because they are sure that they will lose in the case. That is the crux of the problem.

VietNamNet: China often uses the method of confrontation at first, then shifting to bilateral negotiations. What is their purpose?

Phuoc: That’s a trick of China which has been used for a long time: turning the undisputed areas into disputed areas. During the disputes, they speak very loudly, they use a lot of tools, means, methods and very many intrigues – and then they "cool down" the dispute. When they cool down, if we are not cautious, we may think that China has changed its mind, and they suggest negotiation.

I totally agree with some scholars that we should never be trapped by this trick of China. We have to always protect what belongs to us. They always take what does not belong to them and when we defend our sovereignty and territory, they propose “negotiation on a win-win basis”. If we agree, we will be trapped by China’s wicked plot.

Interviewers: Duy Chien – Ta Lam

international law, international court, east sea, china, vietnam