Vietnamese people protest China's recent deployment of an oil rig into Vietnamese waters in Hanoi on May 11
A local lawyer has said that although it would be difficult to take China’s violations in the East Sea to an international court, a lawsuit will still do the country good.
Hoang Ngoc Giao, chief of the non-governmental Institute for Research on Policy, Law and Development, talked to Tuoi Tre about the escalation of tensions Vietnam and China since the latter moved an oil rig into Vietnamese waters last week.
Tuoi Tre: What's the procedure for filing a lawsuit in international court? How should Vietnam initiate a lawsuit against China?
Hoang Ngoc Giao
Lawyer Hoang Ngoc Giao, chief of the non-government Institute for Research on Policy, Law and Development
: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) includes a section about mechanisms for dispute settlement. Now, besides the International Court of Justice, states can go other places to seek resolutions to territorial and sovereignty disputes. The International Tribunal for the Law of the Sea was established under the 1982 UNCLOS specifically for disputes related to seas and islands.
The world knows that China occupied Vietnam’s Hoang Sa (Paracel) Islands with violence 40 years ago, an act that violated the Charter of the United Nations. With the recent deployment of the Haiyang Shiyou 981 oil rig, China has openly violated Vietnam’s sovereignty, seriously violating international laws. We are totally eligible to sue China in accordance with the regulations of the 1982 UNCLOS.
One lawsuit could be filed relating to Vietnam's sovereignty over the Hoang Sa (Paracel) Islands, which should be classified as a a territorial dispute.
Another could be filed over China’s deployment of an oil rig into Vietnam’s exclusive economic zone and continental shelf, which would be a lawsuit based upon China's violation of Vietnam’s sovereign rights and should be submitted to the International Tribunal for the Law of the Sea.
What difficulties will Vietnam likely face when filing a territorial dispute lawsuit with the International Court of Justice?
So far the court has sovled many disputes among states. It handled the North Sea Continental Shelf between the Netherlands, Denmark, and Germany; and the Preah Vihear Temple between Thailand and Cambodia. That is to say lawsuits regarding territorial disputes are not unprecedented.
But, there can be procedural difficulties in bringing a case to the International Court of Justice. [In Vietnam’s case], the biggest problem is that China never wants to submit to an agency with international jurisdiction. Therefore, many people anticipate that if Vietnam files a lawsuit, the court will not handle it because China will raise an objection.
Vietnam could file a petition with the United Nations Security Council, but as one of its permanent members, China would probably vote against the council’s handling of Vietnam’s complaint.
However, China has not only illegally occupied Hoang Sa and some islands of Truong Sa (Spratly). It has implemented a number of evil policies which claim a majority of the East Sea and violate the sovereign and jurisdictional rights of Vietnam and a number of other countries. I give, as examples the “U-shaped line” [a map China released that lays claim to over 80 percent of the sea] and fishing bans.
In other words, China has perversely ignored regulations on the rights of coastal countries. It considers the East Sea its territory and has applied its own rules there. Facing China’s violations of other countries’ maritime freedom and legal rights, an affected country can sue it in the International Tribunal for the Law of the Sea in accordance with the mechanism for compulsory settlement of disputes. The court can handle the lawsuit without the consent of the two related parties. The Philippines has already applied this mechanism to sue China and the tribunal is working on the case.
If China refuses to attend a hearing on the territorial dispute at the International Court of Justice, then what will we gain by unilaterally filing a lawsuit against them?
I think it would be impossible to get the court to agree to handle the territorial dispute, given China’s objection. However, we will still achieve many objectives by filing the lawsuit.
First of all, we will have legal documents that will considerably raise Vietnamese and international awareness about the legal and historical basis of Vietnam’s sovereignty over Hoang Sa and Truong Sa.
Second, we will be able to challenge China in a court of international justice. The international community will question why China (which claims to have acted in accordance with international laws) declined to settle the case in court.
In the meantime, it is time Vietnam sued China over its latest violation of our exclusive economic zone and continental shelf as well as previous violations. There will be two plaintiffs – Vietnam and the Philippines – against one defendant that is China. A lawsuit would mean that Vietnam will contribute its voice not only to protecting its own rights, but demanding China strictly follow the UNCLOS, and respect rules in relation other countries in the East Sea.
Who will file the lawsuit?
Under international law, states are represented by the government, so the lawsuit must be presented under the name of the government. Of course, procedures and legal documents related to such lawsuit are very complex. Usually other countries have to assign a panel to do the job; this involves hiring a team of international lawyers.
Under the current circumstances, we have to employ diplomatic and legal measures to protect Vietnam’s sovereignty over Hoang Sa and Truong Sa as well as its sovereign rights in the East Sea.
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