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Wednesday, 16 August 2017 16:21
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Using international legal means to protect water sovereignty

(LLCT) - There are currently two primary disputes in the East Sea: the territorial disputes over the Paracel and Spratly islands, and the disputes related to the water boundaries and continental shelf. The latter conflict was prompted when multiple countries bordering the East Sea applied United Nations Convention on the Law of the Sea (UNCLOS) principles to justify their own water boundaries and continental shelf.

1. Settling disputes with international laws

Global history is full of international disputes, most caused by complicated relationships and trade-off benefits among countries and other parties. Of these disputes, conflicts concerning territory tend to lead to the most complex and prolonged situations which can be risky and lead to war.

France and Germany’s dispute over Alsace-Lorraine caused tension between the two nations and was one of the factors behind World Wars in 1914 and 1939(1). Poland and Germany’s dispute over Danzig (now Gdansk in Poland) was one of the causes of World War II (1939)(2). The war between the United Kingdom and Argentina in 1982 was directly related to the dispute over the Falkland archipelago. The wars between Israel and the United Arab Emirates in 1948, 1956, 1967, 1973(3), and between Iran and Iraq in 1980 - 1988 resulted from the disputed land in Khuzestan and the border at the estuary of Shatt al - Arab(4). The Gulf War from 1990 to 1991 was caused primarily by territorial disputes between Iraq and Kuwait. These wars caused many casualties and lots of damage that will continue to impact the future generation. Therefore, it is crucial to use peaceful measures to solve future disputes, as this promotes security and reconciliation between opposing parties. Peaceful settlement also promotes the obedience of international laws.

Settling disputes peacefully is a basic principle of modern international law which prohibits the use of force in international relations(5). It has been recorded in internation legislation since the late 19th and early 20th centuries in the La Haye convention (1899 and 1907)(6), and later in the Briand - Kellogg pact on August 27, 1928(7). It was officially recognized as a basic principle of international law in item 3 Article 2 of the United Nations Charter: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered(8). It was asserted again in the Declaration of the United Nations General Assembly on October 24, 1970 (Resolution 2625): “Every state has the duty to refrain from the threat or use of force to violate the existing international boundaries of another state or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of states.... Every state shall settle its international disputes with other states by peaceful means in such a manner that international peace and security and justice are not endangered”(9).

According to Article 33, the parties to any dispute that may endanger the maintenance of international peace and security, shall seek first of all a solution involving negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, consulting with regional agencies or arrangements, or other peaceful means.

As mentioned in Article 33 of the Charter, using peaceful means to settle international disputes can be classified into two main groups:

Group 1: Diplomatic means including negotiations, enquiry, meditation, and consulting with regional agencies or arrangements.

Group 2: Other peaceful means including arbitration, or judicial settlements via international courts and arbitrators.

2. How to solve the dispute in the East Sea

There are currently two primary disputes in the East Sea: the territorial disputes over the Paracel and Spratly islands, and the disputes related to the water boundaries and continental shelf. The latter conflict was prompted when multiple countries bordering the East Sea applied United Nations Convention on the Law of the Sea (UNCLOS) principles to justify their own water boundaries and continental shelf.

The origins and scopes of these disputes are very different, and therefore the principles used to settle them also differ.

The first dispute was created when several countries took unfair advantage and used violence to claim entire archipelagos belonging to Vietnam.

According to international public laws, involved parties should settle these disputes based on “real occupation” principles, however these principles are not mentioned in the UNCLOS. Therefore, UNCLOS cannot be used to settle the disputes over the Paracel and Spratly islands.

The second dispute is related to declaring water boundaries and continental shelves.

This dispute formed following the implementation of UNCLOS in 1982. World geopolitics and geoeconomics changed drastically when about 36% of the seas and oceans were put under the sovereignty of seaside countries. As a result, there are about 416 disputes over water boundaries and continental shelves all over the world, with 15 disputes in Southeast Asia. Because China’s claim of the “cow tongue-shaped line” (nine-dash line) has an anti-scientific nature and contradicts UNCLOS principles, UNCLOS does not recognize it as a true dispute. Therefore, UNCLOS forms a legal foundation on which to settle the disputes in the sea, including the disputes that have been caused by incorrect application of the Convention on the Law of the Sea.

The 1982 Convention on the Law of the Sea is not the only legal foundation that can be used to settle disputes. The Convention’s Chapter 15 of Articles 279 - 299 mention some basic content:

Principles for settling the disputes

Procedures for settling the disputes

Jurisdictions

Conciliation procedure (Annex V)

Statute of the international tribunal for the Law of the Sea (Annex VI)

Functions and procedures of using arbitration (Annex VII)

Use of Special Arbitration (Annex VIII)

UNCLOS states the following guidelines for settling disputes: “States parties shall settle any dispute concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter”.

In the Annex V of UNCLOS there is a plan for establishing a conciliation commission intended to “hear the parties, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement” (Article 6, Annex V).

Parties involved in a dispute should provide a written declaration stating whether they accept any of the following means to settle the dispute: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal or a special arbitral tribunal constituted in accordance with Annex VIII.

 - International Court of Justice (ICJ): The ICJ is one of the United Nations’ principal judicial organs. It was established in 1945 and preceeded by the Permanent Court of International Justice, which was formed in 1922. Using international law, the International Court of Justice began to settle legal disputes and give advisory opinions on legal questions submitted to the United Nations General Assembly, the Security Council, and other authorized United Nations agencies (which clearly stated in United Nations Chater since 1946).

- The International Tribunal for the Law of the Sea began to operate in accordance with UNCLOS. Its headquarters are located in Hamburg, Germany, however, the court can also be relocated if it is more convenient.

According to part XI and part XV, not all disputes can be heard by international jurisdiction. Disputes over territory, land borders, water boundaries, continental shelf, economic benefits and sea resources can only be heard by international jurisdiction if the related parties sign a written agreement. Parties can bring cases unilaterally to international jurisdiction if they incorrectly explain or apply UNCLOS 1982 in identifying sea area and continental shelf. The Philippines unilaterally sued China for this and established an international arbitral tribunal based on the principles mentioned in Annex VII of UNCLOS 1982.

According to Article 296 of UNCLOS 1982, any decision rendered by a court or a tribunal with jurisdiction under this section is final and must be agreed upon by all involved parties. These decisions do not have binding force - parties can formulate their own methods of settling disputes.

3. The lawsuit between the Philippines and China and its effects on Vietnam

In order to understand the effects of the verdict of the Philippines’ lawsuit, it is important to consider its nature. The Philippines sued China regarding 15 issues, because it used the wrong application, the wrong explanation, and they violated UNCLOS 1982 in the East Sea, specifically the claim of the “cow tongue-shaped line”. Annex VII of UNCLOS 1982 lists seven contents that are recognized by the international arbitration tribunal as belonging to its jurisdiction.

Some other contents are left for later consideration or are related to the “sovereignty” of subjects such as Mischief reef and Zhubi reef or related to the determination of water boundaries. The five judge arbitral tribunal, which was established by the Permanent Court of Arbitration (PCA), operates independently, objectively, and adhering to international laws, particularly UNCLOS 1982. According to Article 298, a state member can refuse to settle disputes over sovereignty and water boundaries via international jurisdiction. China declared in writing its refusal to settle the disputes via international jurisdiction with respect to Article 298 UNCLOS 1982, so it is essential to have a cautious five-member arbitral tribunal.

Vietnam can draw two lessons from this case.

First, international disputes over sovereignty, territory, and water boundaries can only be brought to an international arbitration tribunal if the involved parties agree to enter into an agreement to bring the disputes to court. Therefore, it is unrealistic to unilaterally sue China over the seven islands it is currently occupying illegally in the Paracel and Spratly islands because China does not want to internationalize the case and refuses to settle the disputes via international arbitration tribunal. Thus, Vietnam needs to take a different approach in protecting the country’s water sovereignty.

Second, China is purposely misinterpreting the notion to dodge the verdict from the arbitration tribunal with the argument that “the dispute with the Philippines is about the territorial dispute over Scarborough, in the Spratly islands”. On October 25, 2015, the arbitration tribunal stated that it had the authority to hear at least seven of the 15 complaints that the Philippines were bringing against the China. This has boosted Vietnam’s confidence to support and protect the aspects of the verdict that do not affect the sovereignty of the Spratly islands, which is being disputed by several countries. The verdict of the arbitration tribunal confirmed only that the Spratly island is beyond 200 miles of all parties’ exclusive economic zone based on UNCLOS regulations. Even Ba Binh Island, a real island with naturally formed areas of land, coral reefs, or rock according to the definition mentioned in Article 121, is too small, with an area of 0.4 square kilometers. It does not have a separate economy and its severe weather makes it uninhabitable. However, in addition to China, the Philippines, Taiwan, and Malaysia are occupying parts of the Spratly islands and trying to consolidate legal bases, even using international arbitration tribunals to protect their illegal claims of sovereignty. That leads to the question of whether Vietnam should support the Philippines’ lawsuit and whether the verdict could negatively affect the Vietnam’s sovereignty.

It is necessary to further clarify the nature of the Philippines’ lawsuit. According to PCA, the petition contains 15 items divided into three groups: (1) China’s claim of the “cow tongue-shaped line” based on “historical right” is incompatible with UNCLOS and therefore worthless; (2) the Philippines requests PCA to clarify the value of disputed landforms such as islands, reefs, sandbars, and other submerged or partially-submerged features and then identify the validity of these subjects (within the territorial waters of 12 nautical miles and the exclusive economic zone of 200 nautical miles); (3) the Philippines has asked PCA to affirm that China has violated UNCLOS by preventing the Philippines from enforcing its UNCLOS-guaranteed freedom and rights of sovereignty and jurisdiction, and also that China has damaged the sea environment with its extension of the islands and fishing activities.

The Arbitration Tribunal has only responded to a few of these requests for clarification, such as whether Ba Binh island is within 200 nautical miles of the exclusive economic zone, and whether the Zhubi, Mischief and Zhou Yuan reefs have 12 nautical miles of territorial water. The issue of which countries these territories belong to is beyond the arbitration tribunal’s authority. The Vietnamese Ministry of Foreign Affairs sent an official diplomatic note declaring its sovereignty, legal rights, and benefits, making Vietnam’s support of the verdict of the Arbitration tribunal beneficial.

The most significant benefit is the considerable reduction of the disputes that China has created in the East Sea, especially their claim of the “cow tongue-shaped line”. This claim is primarily what motivated the Philippines to send their petition to PCA. Vietnamese still remembers how China publicly and illegally invited bids for nine lots of oil and gas that were completely within Vietnam’s exclusive economic zone and continental shelf in 2012. More seriously, in May 2014, China illegally installed the 981 drilling rig in Vietnam’s exclusive economic zone, which put the relationship between China and Vietnam in its worst state since the 1979 - 1989 border war. At that time, Vietnam reacted fiercely and struggled to protect its legal sovereignty rights and jurisdiction.

This time, the Arbitration tribunal declared that China’s claim of the “cow tongue-shaped line”, which it drew in 1946, is unsuitable with UNCLOS and holds no legal foundation. This is a victory not only for the Philippines but also for Vietnam, for the region, and for the soundness of UNCLOS 1982. While, this verdict should drastically reduce the number of disputes in the East Sea, China may choose to ignore it and escalate violence in the area. It will not be an easy task to force China to surrender its unreasonable claim and obey the tribunal’s verdict. But forcing China to face a lawsuit and lose has noticeably affected the country’s image in the world and has confirmed that their dedication to “rising peace” is a facade. China is currently fighting the USA, Japan, and EU for global influence, and this outcome does not help their cause.

Although the verdict lacks solid mechanisms to hold China accountable, it is still significant in that it creates unity between related parties - particularly ASEAN members. They are now collaborating to protest expansionism, protect nautical and aeronautical freedom in the East Sea, and narrow the scope of the disputes.

The dispute over Paracel islands is a bilateral dispute between China and Vietnam, so it is difficult to call upon the international community to support and assist Vietnam. The dispute over Spratly islands is more complicated, as it involves five countries and one state. In principle, if Vietnam opposes China’s illegal occupation, it must also oppose the Philippines, Malaysia, and Taiwan. This creates a situation that is very difficult to resolve.

Regarding the application of UNCLOS, however, this verdict is an opportunity to unite related parties (including Indonesia), because the “cow tongue-shaped line” trespasses the Natura archipelago exclusive economic zone of Indonesia. Recently, China has escalated their actions and trespassed further into the territory, provoking Indonesia’s fear and anger. Thus, the verdict of the Arbitration tribunal on the “cow tongue-shaped line” is very important to all parties, including Vietnam, in fighting against the conspiracy to monopolize the East Sea of China.

 A second benefit is that identifying the legal effects of some subjects in the East Sea would contribute to narrowing disputes. To enforce its claim over the “cow tongue-shaped line”, China has claimed the area within 200 miles of the exclusive economic zone around Paracel and Spratly islands, Scarborough and Macclesfield. They refer to Scarborough reef as “Huangyan Island” and Macclesfield reef as “The Zhongsa archipelago”.

Therefore, the arbitration tribunal’s verdict concerning the Philippines contributes to thwarting this plot and paving the way for involved parties to use jurisdiction to eliminate the illegal “cow tongue-shaped line”.

A third benefit is that Vietnam can combine their regional strength with the strength of the world to fight China’s plan to monopolize the East Sea. Some countries such as Malaysia and Indonesia have expressed their annoyance with China’s expansion. Indonesia is not concerned with the sovereignty and Malaysia has a good relationship with China but the “cow tongue-shaped line” is still directly related to these countries’ benefits.

4. Some legal directions for Vietnam

For a long time, Vietnamese people have been worried about the situation in the East Sea. Some citizens want the Government to sue China, and others worry that China’s 50 year occupation of Paracel islands may cause Vietnam to lose its sovereignty permanently.

This fear is unfounded, however, as internation laws state that this is only possible if the rightfully sovereign country does not put forth measures to protect their territory.

Vietnam will continue to maintain its material and spiritual sovereignty over Paracel islands, as it has done throughout the past 50 years. Both kinds of sovereignty are important according to international law.

On the other hand, as mentioned before, an international tribunal is not allowed to process a file presented by one party in order to settle sovereignty disputes. Therefore, it is necessary to thoroughly research the situation with China through international jurisdiction.

Learning from the Philippines, Vietnam can sue China for incorrectly explaining and applying Article 47 of UNCLOS in their occupation of Paracel islands. Vietnam should also require international jurisdiction to reject the line that China illegally used in 1998 to measure the water boundaries of Paracel islands.

If Vietnam settles that problem, it will gain an advantage in the fight with China concerning Vietnamese fishermen’s work in fishing grounds of Paracel islands, which will be beneficial if China continues to arrest and threaten Vietnamese fishermen.

Additionally, Vietnam’s use of a legal basis to reject China’s claim over Paracel islands, will also help address China’s illegal installation of the drilling rig.

China’s schemes have been very malicious. If Vietnam does not craft an appropriate and effective opposition, China will announce that Vietnam raised no protest to it installing a rig within 200 miles of Paracel islands (which it calls Xisha). China’s justification was that by visual perception, the rig was closer to Hainan than the Vietnamese shore, and therefore within China’s undisputed sea territory.

It is high time Vietnam carries out their legal fight with more energy and aim by calling upon a group of experienced Vietnamese lawyers who can collaborate with foreign lawyers to compile as case to hold China accountable to international jurisdiction, specifically regarding UNCLOS 1982. This will give Vietnam an advantage in the situation. In order to complete this task successfully, jurors and lawyers should form a core force, and frontiersmen a legal front. The Vietnamese Lawyers Association and the Vietnam Bar Federation need to promote their roles as social organizations and take responsibility for the nation. The State must invest and create favorable conditions for Vietnamese lawyers to take part in this complicated legal front. Thoroughly researching the case of the Philippines will not only help Vietnam react confidently, but will also help support the PCA verdict without further inciting disputes with the Philippines and Indonesia.

_____________________

(1) CPV: The 12th National Party Congress Documents, the Office of Central Party Committee, Hanoi, 2016, p.18.

(2) China is about 28 times larger than Vietnam in area, 14 times bigger in population, more than 50 times bigger in GDP scale, and more than 30 times bigger in defense budget. This gap is expected to widen in coming years.

(3) Different from previous generations of high-ranking leaders, Xi Jinping is the first Party General Secretary/President of China who has repeatedly affirmed in public that islands in the East Sea are inherent parts of China, showing that China will not use its sovereignty interests for exchange.

(4) The policy of “Three NOs” is mentioned in the Vietnam White Paper on Defense 2009. These include: no military alliances; no foreign military bases in Vietnam; and no relationship with any country to resist another.

Dr. Tran Cong Truc

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