Vietnam should sue China, say scholars

(VOV) - Vietnam should sue China for misinterpreting and misusing the 1982 UN Convention on the Law of the Sea (UNCLOS), using force to possess another country’s territory, and violating the legitimate rights and interests of Vietnam.

By stationing its floating drilling rig Haiyang Shiyou-981 deep inside Vietnam’s exclusive economic zone (EEZ) and continental shelf, China even states that the operation of the rig is normal as the structure lies inside the territorial waters close to China’s Xisha islands (called Hoang Sa [Parace] archipelago in Vietnam). 

China intentionally misinterpreted and misused the 1982 UNCLOS in forming the baseline of the Paracel – an archipelago of Vietnam, which is not an archipelagic state, to identify the EEZ and continental shelf of the archipelago, intentionally creating a contiguous area, and turning the undisputed into disputed area so as to ‘break with the dispute and exploit the area altogether’.

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A big Chinese ship aggressively ramming a Vietnamese fishing boat near Haiyang Shiyou-981

This action runs counter to international law and norm, blatantly violates Vietnam’s sovereignty and jurisdiction over the EEZ and continental shelf.

In the face of China’s increased tensions in the East Sea, local and international experts say it’s high time Vietnam brought China to an international arbitration court.

China argues that the rig does not lie within the territorial waters of the Paracel, even Tri Ton island, as it is more than 12 nautical miles off this island, and therefore, it lies inside the EEZ of this island.

International scholars wonder if the Paracel meets the UNCLOS criteria to enable a sovereign nation to expand the scope of the EEZ and continental shelf of this archipelago.

After using force to control this archipelago in 1974, China has tried to change the status quo of the islands. Yet, international scholars say most of the islands and rocks of the archipelago are small, and they cannot sustain human habitation or economic life of their own.

They cite Article 121 of the 1982 UNCLOS, saying the Paracel does have no EEZ and continental shelf and it cannot be considered an archipelagic state based on which a country makes a claim about the continental shelf.

Dr Tran Cong Truc, former head of the Government Committee on Border Affairs, says China has intentionally misused Article 47 of the 1982 UNCLOS on archipelagic baselines to justify its groundless claim and ambitions. The article governs the drawing of straight archipelagic baselines of an archipelagic state, not an island.

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Dr Tran Cong Truc says China has intentionally misinterpreted the 1982 UNCLOS

Dr Truc says the Paracel is not an archipelagic state, and therefore baselines cannot be drawn to identify the waters and continental shelf of this archipelago.

“They use the convention [UNCLOS] in a wrong way. The 1982 convention stipulates that an archipelagic state has the right to form the baseline surrounding the entire archipelago and islands of the archipelagic state joined by the outermost points of the waters, exclusive economic zone and continental shelf. There are no provisions that say archipelagos of coastal nations are allowed to form the baselines around these archipelagos.”

Professor Carlyle Thayer from the Australia Defence Force Academy says China’s claim goes against the 1982 UNCLOS, as well as regional and international common perceptions. It is unacceptable that China is claiming its sovereignty over a large water surface area covering small islands and reefs.

Dr Nguyen Thi Lan Anh, deputy dean of the International Law Department under the Diplomatic Academy of Vietnam, cites Articles 57 and 74 of the convention, positing that the location where China is positioning its drilling rig is completely deep inside Vietnam’s exclusive economic zone and continental shelf.

Article 57 stipulates that the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Article 76 also stipulates that the continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

China’s action is a serious violation of international law and the 2002 ASEAN-China Declaration on the Conduct of Parties in the East Sea (DOC), which directly threatens peace, stability, security, safety and freedom of navigation and aviation in the East Sea.

Andrew Billo, assistant director for Policy Programme of the Asia Society, affirms that China has adopted a wrong approach when it unilaterally moved the oil rig to the disputed waters that will eventually complicate the situation.

China’s claims are based on historical factors and it is unlikely that the claims will be accepted by the international community, says Billo, adding in the modern world any sovereign claim by a nation must be based on international law.

China has failed to meet its international commitment, and bringing China into an international arbitration court is a good choice. However, the 1982 UNCLOS is not the only legal solution to all disputes. The convention encourages parties concerned to settle disputes by peaceful measures.

Annex V of the 1982 UNCLOS suggests the establishment of a conciliation commission to examine parties’ opinions, claims and arguments, and make recommendations in the hope that the parties concerned will reach an acceptable solution.

Organisations that have jurisdiction include the International Tribunal for the Law of the Sea, an international court, and a normal or special arbitration court. 

Article 296 of the convention says any decision rendered by a court or tribunal having jurisdiction shall be final and shall be complied with by all the parties to the dispute. Any such decision shall have no binding force except between the parties and in respect of that particular dispute.

It’s worth noting that the aforementioned regulations apply disputes relating to the interpretation and use of the 1982 UNCLOS.

In a similar class action lawsuit, the Philippines accused China of misinterpreting and misusing the 1982 UNCLOS. The suit has received strong support from the US, Europe, Japan, and many international scholars and lawyers. An international tribunal on the Law of the Sea established a five-member arbitration council to deal with the cause, and the first procedural hearing was held.

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Murray Hiebert (L) says Vietnam should sue China in an international court

Murray Hiebert, deputy director of the Sumitro Chair for Southeast Asia Studies at the Center for Strategic and International Studies (CSIS), says the best choice in the long run is to bring the case to the International Court of Justice where both sides have the chance to present their evidence, and the court examines documentations and reaches a verdict.

Dr Nguyen Ba Dien, director of the Centre for the Sea and International Marine Law under the Hanoi-based National University, says Vietnam has the right to sue China unilaterally.

“We have faith in justice, alongside international support. We have sufficient historical evidence and legal foundations to prove our sovereignty over the Paracel,” he says. “Obviously, China has no international legal foundations to justify its expansion ambition in the East Sea. China’s essential point is its violation of international law.”

Vietnam is ready to apply all possible measures to settle the East Sea dispute peacefully, but negotiations are the country’s top choice.

Addressing the recent 24th ASEAN Summit in Myanmar, Prime Minister Nguyen Tan Dung asked China to withdraw its oil rig from Vietnam’s territorial waters, and sit at the negotiating table to address the issue.

Yet, Vietnam vehemently protests against aggressive actions, and it resolutely defends national sovereignty and its legitimate interests in accordance with international law.

The Paracel is an undisputable part of Vietnam’s territorial waters. Settling current tensions in the East Sea through peaceful measures in line with international law is to meet the aspirations of both Vietnamese and Chinese peoples, contributing to peace, stability and cooperation in Southeast Asia, Asia-Pacific and the rest of the world.