If China refuses to face Vietnam at international court, then what?

VietNamNet Bridge – 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.

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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

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