Legal remarks for Vietnam’s lawsuit against China

  • 03:33 - 2014/07/12

The Permanent Court of Arbitration (PCA) has legal jurisdiction to intervene in Vietnam`s international disputes and impose sanctions, discipline or an appropriate dispute resolution process in furtherance of a peaceful settlement.

UNCLOS, China, PCA, UN members

The Permanent Court of Arbitration (PCA) headquartered in The Hague (the Netherlands)

Commensurate with the signing of an agreement between Vietnam and the PCA on June 23, the country officially recognized the PCA as the preferred forum of international dispute resolution with full legal authority to resolve disputes in arbitral tribunals for cases concerning international maritime and territorial boundary disputes.

The PCA is an intergovernmental organization with 115 member states. Established in 1899 to facilitate arbitration and other forms of dispute resolution between states, the PCA has developed into a modern, multi-faceted arbitral institution that is now perfectly situated at the juncture between public and private international law to meet the rapidly evolving dispute resolution needs of the international community.

The PCA is the court where the Philippines filed a petition against China for disputes between the two countries on territorial claims in the East Sea but Beijing has so far refused to participate in the legal proceedings.

Earlier on June 3, the PCA announced that it asked China to submit its counter response by mid December.

Why should Vietnam take legal action against China in the PCA?

Law Professor Erik Franckx, a PCA member said that Vietnam should sue China for various issues such as improper delineation of waters and pollution of waters. However, Vietnam can choose the same cause of action as that of the Philippines which requires China to clearly delineate the “Nine dash line”, professor Franckx said.

UNCLOS, China, PCA, UN members

Law Professor Erik Franckx-a PCA member 

Professor Frankx explained that one of the requirements of bringing the lawsuit to the International Court of Justice (ICJ) is that it requires mutual acceptance by all of the parties to the dispute. In the current situation, the ability to sue China in the ICJ is very difficult because China can refuse to participate in the proceedings. Japan, for example, has been actively bringing Senkaku island disputes to this court but the Chinese side did not respond.

However, Professor Frankx says that if suing China in the PCA is fundamentally grounded in legal compliance with dispute resolution mechanisms required by the United Nations (UNCLOS dispute settlement procedures), then China is legally bound to participate in the PCA proceedings.

In other words, China is a signatory of the UNCLOS and Professor Frankx’s legal opinion is that the UNCLOS dispute resolution procedures require recognition and compliance by China with the PCA.  China therefore, stands naked before the court of any legal defense for not recognizing the PCA’s jurisdiction.

Sharing with Professor Frankx’s view, Professor Jerome Cohen from the US–Asia Law Institute (USALI) said that Vietnam has two alternatives.  It can join the lawsuit with the Philippines or alternatively Vietnam can file a separate legal action against China by itself.

Mr. Cohen added that it is possible to sue China without the Chinese participation (as China has done in the lawsuit of the Philippines). This is also a maneuver to demonstrate to the world that China is deliberately evasive and not interested in solving current problems through peaceful means.

According to Professor Cohen, the crux of the matter when suing China in the international court is not that who is stronger than another but to whom justice belongs.

Internationally exposing China’s unjustified claims

Talking about the Philippine lawsuit against China, Professor Renato DeCastro from Manila-based De La Salle University said China has so far failed to provide a clear explanation of what the "Nine-dash line" is. During the debates, China sometimes deemed "Nine-dash line" as "territorial waters", but sometimes "exclusive economic zone (EEZ)". China refused to explain "Nine-dash line" despite knowing well.

UNCLOS, China, PCA, UN members

Professor Renato DeCastro from Manila-based De La Salle University

That`s why the Philippines took legal action against China in the International Tribunal on the Law of the Sea in the hope that China will explain what “Nine-dash line” is under which the tribunal will give a verdict saying Chinese “Nine-dash line” claim is inconsistent with international law while everyone knows that China is a member of   the UNCLOS, Professor Renato explained.

Regarding the results of the lawsuit, Professor Renato said at least so far everyone is aware of the problem and discussing it, forcing China to always argue in favour of its claims. The US, Japan and other countries have expressed support for the Philippines and their discussions have put pressure on China.

In principle, UNCLOS signing countries are subject to the ruling of the International Tribunal on the Law of the Sea, but each country has the right to reservation and does not accept the jurisdiction of the international court in a certain field.

China has an intention on this issue long ago by reserving Article 298 under the UNCLOS which excludes four ways of internationally settling disputes under the Law of the Sea, especially those relating to settlement of sea and island sovereignty disputes.

But there is a fundamental obligation of UN members in which China can not reject. Under term 3 of Article 2 of the UN Charter and Article 279 of the UNCLOS, member states have the obligation to settle disputes by peaceful means, without the use of force, and this obligation is not excluded by any statement.

In this regard, Professor Erik Franckx said by signing the UNCLOS, China was wise to manage to remove some of legally binding provisions which are normal rights of the participating countries. By reserving some provisions in the UNCLOS, China can argue that these issues are of their exclusion, thereby causing difficulties for Vietnam to sue China under the UNCLOS.

Although the worst result is that the court will not be able to issue judgment, this is also a process of showing opinions and convincing the world public. This is a civilized way to resolve disputes and promote cooperation because lawsuit race is better than arms race, Professor Frankx noted.



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