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Monday, 14 August 2017 10:58
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Protection of sovereignty over sea and islands based on international laws

(LLCT) - Vietnam has authentic and convincing historical evidence to confirm its ownership of the Hoang Sa and Truong Sa (Paracel and Spratly) archipelagos. It also has evidence of continuous and peaceful enforcement of the sovereignty according to international laws, specifically the United Nations Convention on the Law of the Sea (UNCLOS)(1).

1. The legal basis of Vietnamese sovereignty in the East Sea

Vietnam has authentic and convincing historical evidence to confirm its ownership of the Hoang Sa and Truong Sa (Paracel and Spratly) archipelagos. It also has evidence of continuous and peaceful enforcement of the sovereignty according to international laws, specifically the United Nations Convention on the Law of the Sea (UNCLOS)(1).

In September 2009, Vietnam presented the report to the UN Commission on the Limits of the Continental Shelf addressing the delimitation of the continental shelf beyond 200 nautical miles from the baseline of Vietnam in the East Sea. The report confirmed Vietnam’s sovereignty and jurisdiction over the sea, continental shelf, and the Paracel and Spratly archipelagos.

According to UNCLOS, Vietnam holds sovereignty and jurisdiction over about one million square kilometers of sea and continental shelf. This includes internal waters, territorial waters, contiguous zones, and exclusive economic zones. The scope and legal basis on Vietnam’s sea and continental shelves detailed in the Vietnamese Law of the Sea and other legal documents.

International law condemns any country that uses violence or threats to violate or bully another country into surrounding territory. Article 1 of the United Nations Charter confirms that the purpose of the United Nations is “to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace” (Clause 1, Article 1). Article 2 of the Charter confirms that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (Clause 3, Article 2), and that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (Clause 4, Article 2)(2).

International laws - particularly the United Nations Charter and UNCLOS - establish basic principles allowing nations to protect their sovereignty and territorial integrity using peaceful international measures.

Throughout the past few years, China has transgressed its borders and constructed projects on reefs within Vietnamese territory. This is a serious violation of international law, Vietnam’s sovereignty rights, and international nautical right - all decisive factors in the region’s international business and economic development. It is a threat to regional and international peace and security.

2. International judicial mechanisms to solve the East Sea territorial disputes

According to the United Nations Charter and UNCLOS, there are four international mechanisms and jurisdictions that could possibly solve the territorial waters dispute:

The International Court of Justice, which was established according to the United Nations Charter.

The International Tribunal for the Law of the Sea, which was established according to Appendix 6 of UNCLOS.

An Arbitral Tribunal, which was established according to Appendix 7 of UNCLOS.

A Special Arbitral Tribunal, which was established according to Appendix 8 of UNCLOS.

Vietnam can select one or many of these jurisdictions as a basis to sue China depending on each specific case and context.

a. The United Nations’ International Court of Justice

Chapter I (Articles 1, 2) and Chapter VI (Articles 32-38) of this document mention the UN’s ability to settle disputes over territory and other issues between UN member countries. Chapter XIV (Articles 92-96) of the United Nations Charter and other related international treaties lay out peaceful measures for settling disputes within the International Court of Justice’s jurisdiction.

Article 92 (Chapter XIV) of the United Nations Charter defines the International Court of Justice, stating: “The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter”. Article 93 confirms that “Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party”(3).

According to Article 33 of the Charter, all nations involved in a dispute must use peaceful measures and pose no threat to international peace and security. It said: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”(4).

b. International Tribunal for the Law of the Sea

The UNCLOS details the rights, responsibilities, and legal obligations of all parties in the Convention. China is a full member of the Convention and should be held accountable to its legal obligation to respect and enforce the international commitments defined in the Convention, including the settling of disputes through International Tribunal for the Law of the Sea.

Article 279 of the 1982 International Tribunal for the Law of the Sea stated: “States Parties shall settle any dispute between them concerning the interpretation or application of the 1982 Convention by peaceful means in accordance with Article 2, Clause 3 of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, Clause 1, of the Charter”(5).

The 1982 Convention also lists the official judicial mechanisms to be used to settle disputes, apart from negotiation and peace talks. If disputes cannot be settled using these strategies, the nations can choose one or all of the four aforementioned jurisdictions, which were established within Article 287 of UNCLOS. Both the International Court of Justice and the International Tribunal for the Law of the Sea (established based on Appendix VI of UNCLOS) play an important part in settling territorial waters disputes in the East Sea.

c. Arbitration and Arbitral Tribunal

Arbitration and Arbitral Tribunal are prescribed in detail in Appendix VII of UNCLOS. Article 3 (Item g), Appendix VII of UNCLOS makes the following statement about the competence and purpose of arbitration in settling disputes: “Parties in the same interest shall appoint one member of the tribunal jointly by agreement. Where there are several parties having separate interests or where there is disagreement as to whether they are of the same interest, each of them shall appoint one member of the tribunal. The number of members of the tribunal appointed separately by the parties shall always be smaller by one than the number of members of the tribunal to be appointed jointly by the parties”(6). The arbitral tribunal shall consist of five members (according to item a, Article 3, the party instituting the proceedings shall appoint one member to be chosen; the other party must chose its own representative no later than 30 days after receiving the announcement (item b and c, Article 3); the other three members shall be appointed by agreement between the parties. They should be third-party nationals, unless the parties agree otherwise. The disputing parties will appoint a President of the Arbitral Tribunal from among these three members.

Articles 3 and 4 state that the Arbitral Tribunal functions in accordance with this Annex and the other provisions of this Convention, includes moderating the settling of disputes between related parties under UNCLOS jurisdiction.

d. Special Arbitral Tribunal

Special Artribal Tribunals or Permanent Courts of Arbitration, which were established according to Appendix VIII of UNCLOS, have the right to settle disputes based on UNCLOS regulation. The special arbitral tribunal shall consist of five members, defined in Article 3 of Annex VIII of UNCLOS. Both involved parties appoint two members which may hold the country’s nationality. The President (a third-party national) will be appointed by agreement of the parties (unless the parties otherwise agree).

Using international jurisdiction mechanism to solve disputes has been a popular method in many circumstances, especially in the disputes over the East Sea. In early 2013, the Philippines sent a petition to Permanent Court of Arbitration in order to find ways to neutralize China’s groundless statement claiming sovereignty basing on the irrational “nine-dash line”. Later, in March 2014, the Government of the Philippines submitted a 3000+ page legal document with evidence and maps supplementing their petition. The case was handled and tried by a court in La Haye. Vietnam can learn from the Philippines in using the international judicial system to solve disputes in the East Sea.

3. Some measures for Vietnam to effectively protect the sovereignty over sea and islands

a. Peaceful diplomatic talks

Vietnam’s war for independence and the following period of development were important to gaining international support from ASEAN and the rest of the world. Strengthening the Party and State’s foreign affairs, combining the foreign affairs of the State with those of the civilians through academic exchange and development, and holding security and economy forums will contribute to increasing the support and assistance of the international community in looking for peaceful measures for the East Sea disputes.

b. Legal struggle and effective use of international jurisdictions.

In this modern context, it is necessary to combine diplomatic activities with legal action. Vietnam needs to combine all the necessary legal documents to sue China and present them to international jurisdictions such as The International Court of Justice, the International Tribunal for the Law of the Sea, the Arbitral Tribunal, and the Special Arbitral Tribunal. It is essential that Vietnam prepare historical and legal evidence and a group of legal consultants, lawyers and judges who are experts in international law. Legal struggle is an important and necessary means to call for the support of the international community and to force China to stop their violation of international laws. The Philippines’ experience shows that legal struggle is an effective diplomatic measure when searching for peaceful measures for East Sea disputes.

c. Making and improving the sea laws and intensifying the sanctions to punish violations, as well as improving the ability to execute the jurisdiction over land and water sovereignty of Vietnam

First, it is possible to bring a case against China to Vietnamese courts. Make and consolidate domestic sanctions to help execute sea laws. Reform, supplement and enforce laws to create a solid national legal basis on which to fight the violation of territorial waters. Construct and enforce regulations executing laws in the seas and punishing violators.

d. Promoting education, training, dissemination and communication

Increase high quality human resources for the struggle on all fronts, using diplomatic, legal and historical means. Be more intentional about specialized training in international laws - particularly sea laws - at university, as well as forming basic perception about national sovereignty over sea and islands in high school. Prioritize the sources for the training about international and sea laws at law schools.

More attention needs to be paid to training judges and lawyers specializing in international and sea laws. Train and teach skills and foreign languages (English and French) to lawyers and judges. Vietnam should also prepare for the lawsuit by taking an active part in nominating candidates for the International Court under the authority assigned in Article 4 of the Charter.

Accelerate research and education about sovereignty and national fronts in general and territorial waters in particular to all people. Starting with officials and civil servants, especially those ones who plan, execute and supervise sea laws. Therefore, more efforts should be put towards training researchers, educators and communicators involved with universities specializing in law history, international relationships and international politics. Moreover, it is necessary to prepare solid historical and legal documents for teaching and researching, and to consult modern policies on territorial waters.

Educational and training institutions play an important role in intensifying the vigilance over territorial waters. Education and training institutions from all over the country - especially the Ho Chi Minh National Academy of Politics and other provincial political academies all over the nation - have to speed up their research. The Academy of Journalism and Communication also needs to train researchers and communicators about the national territory and territorial waters. It is especially crucial to train top experts with the knowledge of international laws and competency in foreign languages to take part in different forums to defense for the State’s viewpoints, policies and laws. Open postgraduate programs specializing in sovereignty over sea and islands, especially regarding history, law, politics, and international relationships at Ho Chi Minh National Academy of Politics.

e. Increasing international cooperation

Increasing international cooperation will build the ability to execute laws on the seas and help other countries seeking peaceful measures - including legal struggles for the disputes over sovereignty and jurisdiction. This will promote diplomatic and legal activities to settle the dispute over the East Sea non-violently. International cooperation and exchange of experience in executing the laws in the seas, and in settling disputes over territory and territorial waters with other countries and international organizations will help promote Vietnamese legal consultants, lawyers, and judges to take part in international jurisdictions in the future. It is necessary to intensify the cooperation with other countries within ASEAN and Asia-Pacific Ocean and Indian Ocean regions to exchange knowledge and experience on settling disputes and protecting water sovereignty in an era of a constantly shifting context that presents both challenges and opportunities.

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(1) UNCLOS was ratified and signed on December 10, 1982 at the Conference of the United Nations on Sea Laws in Montego Bay (Jamaica) and became effective on November 16, 1994. On June 23, 1994, Vietnam officially became the 63rd member of UNCLOS, which now has 157 member nations.

(2), (3), (4) United Nations Charter 1945, http://www.un.org.

(5) United Nations Convention on the Law of the Sea (UNCLOS).

(6) UNCLOS, http://www.un.org.

Assoc. Prof., Dr. Hoang Van Nghia

Ho Chi Minh National Academy of Politics

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