In the face of illegal sovereignty claims and aggressive Chinese actions in the East Sea (South China Sea), public opinion in Vietnam has repeatedly raised the issue of Vietnam’s challenging China in international courts. The Permanent Court of Arbitration (PCA) declared the Philippines won against China over the South China Sea dispute on July 12, 2016 as the example supporting Vietnam to sue China. In particular, Vietnam’s recent dispatch to the United Nations to protest China’s sovereignty claims in the South China Sea has been assessed by experts as a prelude to a legal process in the future.
Currently, there are many different views on this topic. Professor Ta Van Tai, who has spent many years working in the field of law at the famous Harvard University, said that this time is not necessarily “right” for Vietnam to sue China.
Prof. Tai said that it is necessary to delineate the issue into two different lawsuits. The first is on the issue of waters and continental shelves. The second is about islands, rocks, and territorial sovereignty.
He said that if Vietnam wanted to sue China over the violation of waters and continental shelves, this would not be sufficient time to immediately take legal action against China because Beijing’s provocative action to assert its sovereignty recently has not been enough reason for Vietnam to sue China.
He explained: “It [China] takes the boat to go around, according to the principle of freedom of navigation, including EEZ (exclusive economic zone) of Vietnam, they still have the right to go in. But only Vietnam has the right to exploit resources in that water area, not ban them. Only when they enter the 12 nautical miles area of Vietnam, Vietnam can give them notice. As they travel only, Vietnam cannot sue.”
Even China’s latest provocative act is to name “standard names” for 25 islands, rocks and 55 undersea geographic features in the South China Sea area, including many shallow beaches deep within Vietnam’s exclusive economic zone, even if it is less than 60 nautical miles from the Vietnamese coast, there still cannot be enough “excuse” for Vietnam to sue China.
Prof. Tai explained that this naming is similar to the countries giving different names to an island or reef of another country. For example, Vietnam used to call America’s Aloha or Hawaii islands as Hawaii.
According to him, only when China exploits resources in Vietnam’s waters then Vietnam will have enough “excuse” to sue China. He said: “And if China only goes without doing anything, there is no reason to sue. That is, according to the case law of many countries, a lawsuit can only have enough reasons if it is ‘mature’. And if it hasn’t been carved, it can’t be sued, but have to prepare the file.”
However, Prof. Tai said that Vietnam’s protests are also a thing to do to benefit public opinion and diplomacy.
According to him, if Vietnam wants to sue, Hanoi should follow the principle of “China violates whatever, it will sue that.”
According to him, if China continues to take action leading to a lawsuit on waters and continental shelves, Vietnam will easily win because the 1982 Convention on the Law of the Sea has clear delimitation of rights and interests of the countries concerned.
He added: “The lawsuit on waters and continental shelves does not need to prepare much historical evidence, because it is the natural right of the coastal state under international law.”
Regarding sovereignty issues on the islands, rocks and entities in the South China Sea, Tai said that Vietnam could prepare documents to sue China.
He said: “The lawsuit on the issue of islands, rocks, and the sovereignty of the land they occupied the Hoang Sa (Paracels) in 1974 and Gac Ma (South Johnson reef) in 1988, if Vietnam wants to sue, it has to sue the International Court of Justice according to the principle established in 1947. Back then, there was a national principle that when Vietnam can sue China only if China recognizes the sovereignty of the court.”
Tai said that even if Vietnam sues China to the International Court of Justice, China can still declare the court “not authorized.” However, he still recommends that Vietnam should implement this measure even though the court has no right to try once China has not accepted to court as the defendant.
The lawsuit on sovereignty over the islands and rocks in the South China Sea Sea does not comply with the 1982 Convention, such as the lawsuit on waters and continental shelves, but according to the traditional international law, there have been 400 years on the issue of sovereignty territory, of which a key element is that a country’s territorial sovereignty is established by “normal occupation” (not by force) of derelict areas and “continuous management” these areas for years.
Prof. Tai explained: “Therefore, Vietnam can clearly state territorial sovereignty in the Hoang Sa and a few in the Truong Sa that existed since the Le Dynasty with naval teams called Bac Hai and Hoang Sa teams- the Nguyen Lords sent out the rocks and lands to establish sovereignty. So the preparation of historical records is about territorial sovereignty.”
Regarding the time to sue China, some opinions in the current Vietnamese public have expressed concern that if Hanoi did not sue Beijing within 50 years of losing Hoang Sa in 1974, then Vietnam will lose this archipelago forever. However, the professor thinks that this concern is not satisfactory. He explained: “Vietnam has repeatedly opposed it. To protest means not to recognize China’s sovereignty. Then Vietnam’s sovereignty does not go away after 50 years. If you object to it, you will not lose your rights.”
On the afternoon of April 9, at the regular press conference of the Ministry of Foreign Affairs held online due to COVID-19, representatives of DPA (German news agency) sent questions about the completion progress of legal procedures to sue China over the South China Sea issue.
Specifically, DPA representative stated that Vietnam has repeatedly said that it could not exclude the possibility of suing China regarding its sovereignty claims in the South China Sea. So has the legal record preparation process been completed yet? Will Vietnam proceed with lawsuits against China after the Vietnam Delegation at the United Nations on March 30 sent the diplomatic note opposing the Chinese note?
Answering this question, Spokeswoman Hang said that Vietnam’s consistent stance was to resolve disputes in the South China Sea by peaceful means, based on international law, such as as shown in the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982).
“The circulation of the diplomatic note at the United Nations is normal, demonstrating the position and protecting the legitimate rights and interests of Vietnam,” Ms. Hang said, while emphasizing: “Vietnam’s consistent stance also has fully reflected in this note, according to which Vietnam asserts sovereignty over the Spratlys and the Paracels, in accordance with international law; at the same time, asserts sovereignty, sovereignty and Vietnam’s jurisdiction over the seas is determined under UNCLOS 1982.”
The current Vietnamese government, in terms of official statement, barely talks about using legal means to resolve disputes related to China.
However, from an academic perspective, many seminars held in Vietnam have mentioned that Vietnam needs to study legal procedures for initiating a lawsuit to the International Arbitration Court on the Law of the Sea in accordance with Annex VII of the 1982 Convention.
Therefore, the fact that Vietnam has just sent a diplomatic note to the UN on March 30 to oppose China’s sovereignty claims in the South China Sea is considered by academics to be the first step for a Vietnamese lawsuit to oppose China’s sovereignty claim in the South China Sea.
Dr Ha Hoang Hop, a regional security and political researcher at the ISEAS-based Southeast Asia Research Institute, Yusof Ishak, explained the event as follows: “It is understandable that because in 2019, the Communist Party of Vietnam at its plenum discussed and decided that in case it cannot be solved by means of negotiations with China, it will have to proceed to sue China.”
Based on the content of the note, Dr. Hop said that it is possible that Hanoi’s upcoming legal direction will be to file a lawsuit with a judge or a UN court to oppose China’s claim of sovereignty over the South China Sea, similar to the Philippines exercised and won in 2016.
However, before this final step can be taken, Hanoi may take some previous steps. Hop said: “Next, Vietnam will meet with China to discuss whether it can be handled at the negotiating table. Not bilateral but multilateral.”
“Second, Vietnam must organize for ASEAN to negotiate with China on Code of Conduct in the South China Sea (COC). Because this year Vietnam is the rotating chair of ASEAN, it must continue until November.”
If the ASEAN meeting on COC cannot be done in July due to COVID-19 epidemic, then according to Dr. Hop, it is possible that the bloc of Southeast Asian countries will hold online meetings or postpone them. However, so far, no decision about this has been made.
Dr. Tran Cong Truc, former head of the Government of Vietnam’s Border Committee, also said that the March 30 note marked Vietnam’s intention to take higher legal steps.
He said: “Review of the recent note sent by Vietnam to the UN on March 30, should be known that especially the second part, the second content about the 1982 Law of the Sea Convention is the only legal basis for determining the extent of the seas under the rights of a coastal state.”
“Including emphasis on the features of the Paracels and Spratlys, it must be determined according to Article 121, Clause 3, which are islands unsuitable for human habitation and without a separate economic life, like the entities in these two populations, there is no exclusive economic zone and continental shelf 200 nautical miles as defined by the Convention of the Law of the Sea, but only a maximum of 12 nautical miles.”
“Another thing to say is that shallow, submerged or completely submerged beaches are not the object of territorial acquisition. I think it is very core content, it involves what we (Vietnam) can sue China for by calling it deliberately explaining and misusing the Convention by having them apply things which is wrong, not exactly as we know it, as they traced the baseline of the Paracels in 1996, and then they continued to do that to ‘Nansha’ (Spratlys) or about to do it, that’s completely wrong.”
“In addition, they say the shoals on the ground of Vietnam, as well as the Philippines, as well as Malaysia, are part of China, which is completely misinterpretation, misapplication, and their story saying China’s historical sovereignty within the U-shaped line (or the nine-dash line map). For the process we can bring to international tribunals.”
“And if unilateral, these agencies have the authority to review and make a decision. This is the first content we think needs clarification. And so it should be remembered that why Vietnam has not sued, so far has not sued to reclaim its sovereignty over the Paracels and the Spratlys. It can be said that this is a calculation of the Vietnamese side, that is, In principle, Vietnam is ready to prepare for that process, but when to do it must take into account all the factors to be most beneficial, most effective.”
“So we think that after this note, as everyone has studied, Vietnam will take new steps to fight higher legal level.”
Many times, indications show that Vietnam has considered suing China over territorial sovereignty in the South China Sea, but perhaps because of its long-standing dependence on Beijing, the Communist Party of Vietnam and its government in Hanoi are still hesitant, not willing to bring the matter to the UN court.
And let us continue to watch for the final decision of the leadership in Ba Dinh, what they will do for the people and for the country.
Thu Thuy from Hochiminh city – Thoibao.de (Translated)