Le Vinh Truong ist mit AnhDung Phan und 21 weiteren Personen unterwegs.
26. Juli 2019 ·
Hãy khởi kiện Trung Cộng!
Từ năm 2014, sau vụ HY 981, chúng tôi tham dự Hội Thảo Quốc tế về Biển Đông tại ĐH Tôn Đức Thắng (25/7/2014) và đã trình bày Tham Luận "Khởi Kiện Trung Quốc và các tác động"
Sau đó bản tiếng Việt của bài này đã được đăng trên Cuốn sách "Công Lý và Hòa Bình Biển Đông" do NXB Hội Nhà văn ấn hành.
Toàn văn ở đây
Taking China to court and its politico-economic impacts
Le Trung Tinh & Le Vinh Truong
At Ton Duc Thang University SCS Conference 25 and 26 July 2014
1. South East Asian Sea – the setting
The 19th of January of this year 2014 is the date marking 40 years in which the People's Republic of China has used its military force to invade the entire Paracel Islands of Vietnam. For the last 40 years, a part of Vietnamese territory has been occupied illegally.
China not only occupies the islands, but also imposes sovereign rights over the waters around Paracel Islands. Since 2014, implementing the «Measures of carrying out the Fisheries Law of Hainan Province», Chinese agencies of law enforcement at sea have continually seized, chased away, and acted inhumanly against Vietnamese fishermen right in Vietnam’s age-old fishing grounds around Paracel archipelago.
China’s above-mentioned acts and «measures» have been performed for many years aiming to force Vietnamese fishermen to give up Paracel fishing grounds. According to information released by the president of the fisheries’ union of a district in Quảng Ngãi Province, in 2012 alone, as many as 300 local fishermen were arrested by Chinese forces. Since 2013, China has shifted from arresting to chasing, shooting, ramming and sinking Vietnamese fishing vessels, destroying fishing tools and equipment of Vietnamese fishermen.
And most recently, China’s positioning of the HY 981 oil rig in Paracel waters and in the very exclusive economic zone of Vietnam revealed even more clearly China’s ambition. According to Articles 57 and 76 of UNCLOS 1982, the position where China stationed its HY 981 oil rig is completely located in Vietnam’s exclusive economic zone and continental shelf.
To protect the HY 981 oil rig, the Chinese government has deployed a large number of protective vessels, up to 136 at some points of time, including 04 military vessels, 42 marine police ships, service vessels, cargo ships, and iron-hull fishing ships. A number of these Chinese ships have deliberately rammed into and attacked the ships of Vietnamese functional forces with high-capacity water cannons, damaging Vietnamese law enforcement vessels operating in these waters.
According to UNCLOS 1982, China’s use of water cannons to attack Vietnamese law enforcement vessels and use of its patrol planes, and more dangerously, China’s weapons readiness state can be construed as an act of using force and a threat of using force against Vietnam’s competent law enforcement forces at sea. China can thus be said to have violated the principles of peaceful settlement of disputes and the principles of non-use or threat of force.
All these acts have gone against the principles of the International Convention on adjusting nations’ behavior in connection with disputed territories, against related stipulations stated in UNCLOS 1982, DOC of 2002 by ASEAN nations and China, and against the Agreement between and Vietnam and China on the principles guiding the settlement of sea-related issues.
In face of increasing tension between Vietnam and China over the South East Asian Sea, Vietnam’s leaders – as revealed by latest information – are considering legal measures, i.e. to initiate a lawsuit against China.
Relating to this lawsuit against China, many articles have presented such issues as the performance and legal consequences of the lawsuit . Specifically, it is imperative for Vietnam to promptly proceed against China’s positioning of the Haiyang 981 oil rig in line with the compulsory dispute settlement procedure of UNCLOS 1982. A court established in conformity with this procedure would be able to conclude that China’s stationing of its oil rig in Vietnam’s EEZ is illegal.
This may be one of the following courts of jurisdiction: the International Tribunal for the Law of the Sea in Hamburg, Germany; the International Court of Justice in The Hague, Netherlands; or any court established in accordance with UNCLOS procedure as in the measure taken by the Philippines.
At the same time, Vietnam should officially request China to bring the dispute over Paracel archipelago before the International Court of Justice. It has been proven that the settlement of Paracel dispute through bilateral negotiations was ineffective, as China claimed that Paracel was not a disputed area. The longer this situation is, the more Vietnam will suffer from disadvantages.
An important question we need to address is: what are the politico-economic impacts of such a lawsuit?
This article starts with an analysis of the weak points of the Vietnamese government’s approach to persistent negotiations, on which basis to work out the proper legal measure, i.e. initiation of a lawsuit as a proactive diplomatic move. The article will then continue with presenting the value of a lawsuit in preventing war – an undesirable ending awaited by no one.
This article will also analyze the effect of such a lawsuit, which on the one hand will impact all aspects of Vietnam’s politics, and on the other, is likely to generate economic reprisals in both short and long terms that Vietnam needs to prepare countermoves.
2. Persistent negotiations?
Relevant information also shows Vietnam has been very hopeful that a settlement could be reached through negotiations. Between early May, 2014 when the crisis arose and early June, 2014, there were nearly 30 efforts made by the Vietnamese side in search of negotiations from experts’ and leaders’ levels, which all failed.
Pursuing persistent negotiations with the Chinese side to settle problems related to the South East Asian Sea has long been Vietnamese leaders’ guiding motto. Yet, reality shows that this approach is totally unsuccessful, partially contributing to the Haiyang 981 oil rig incident. This approach did not help curb China’s ambition, if not to say further encouraged this neighbor’s greedy sole occupation of the South East Asian Sea.
In face of the current situation in which China has been using its oil rig, airplanes and warships to encroach on Vietnam’s EEZ, the approach to persistent negotiations proves to be all the more irrational. In the interrelationship between Vietnam and China alone, this has put Vietnam to a lower position in which Vietnam is likely to make more concessions so as to mitigate China’s behavior. In manifestations to the world community, persistence in seeking negotiations with an aggressive country would also introduce a very vague message to other nations on Vietnam’s immediate response as well as selection of a long-term strategy towards China. This would not be a proper solution to gain international support.
On their part, China has for decades made every effort and devised plans to violate sovereignty and the right to sovereignty all over the South East Asian Sea. And this ambition has shown up all the more clearly in recent years, with such perverse actions as cutting off the cables of Vietnam’s vessel Bình Minh 2, officially introducing the “nine-dotted line” in its declaration opposing the Joint Statement between Vietnam and Malaysia, printing the “nine-dotted line” on Chinese passports, etc. Therefore, the hope that negotiations will force China to give up its long-cherished ambition is merely a delusion that should be promptly abandoned.
The best outcome from negotiations during Chinese aggression against Vietnam would only be some mild mitigation of its encroachment. For instance, China would be likely to station its oil rig at the same place and promise to enter into more active negotiations on COC. Even in case it may withdraw the Haiyang 981 rig, China would still be likely to declare that it has executed sovereignty in Vietnam’s EEZ that it has claimed as its own.
However, in order to “gain” this mitigation in encroachment through negotiations, Vietnam will be likely to trade off its economic and political concessions, namely to accept greater aggression and dependence in more aspects. A specific instance of this is that China may force Vietnam to agree on China’s joint exploitation in Vietnam’s EEZs such as Tư Chính and Nam Côn Sơn.
Carrying out persistent negotiations will therefore be a regrettable solution, which is synonymous to capitulation and which may be later described with understatements and hailed as a “joint victory” or “lofty friendship” of the two nations.
3. Initiating a lawsuit as a diplomatic move and a preventive weapon in international affairs
There exist two major schools in addressing foreign relations .
Liberalism is the school of international relations theory esteeming common values of mankind such as peace, equality, and confidence in a world in which all nations wish to prosper and seek happiness for themselves and others.
Conversely, realism is the school which highlights the concept that each country has to manage to protect itself. Or, even more extremist is realpolitik which casts a dubious look at such values as peace and equality and gives prominence to a nation’s might in its struggle for subsistence.
With the current status of a weaker country, Vietnam is to make full advantage of the values set forth in liberalism, chiefly represented by international laws such as UNCLOS 1982, the UN Charter, or international arbitration agencies such as the International Court of Justice and the International Tribunal for the Law of the Sea. This is especially significant when Vietnam has China as a neighbor – one long known to have negated the said values.
It is therefore not a situational or final choice for Vietnam to resort to legal measures. On the contrary, this is a must, an indispensable and indisputable choice, when injustice is likely to take place (and not when injustice has occurred as fait accompli). This is a kind of preventive weapon and a “dissuasion weapon” (arme de dissuasion) made use by the weaker side in preventing tensions from being escalated to a regrettable war.
The non-use, or even declaration of likely non-use of legal measures right from the start, resembles tying one’s own hands in face of an opponent. This is certainly an unwise approach, especially when this opponent is much mightier and has a history of using force. Such an opponent can be said to have exposed weaknesses which Vietnam could deter with strong legal measures.
And this approach was even more unsuitable when it was clearly manifested in such a stance as « persistence in peaceful negotiations» and especially in China’s motto of “16 Golden Words” and spirit of “Four Goods”.
The above motto does not belong to any school of international relations and certainly is not one of liberalism. For it is not based on equality, but instead on concessions, not on peace and freedom, but rather on intimidation and arrangement.
These slogans can be rationally said to be merely diplomatic euphemisms or diversions. However, when the national foreign affairs and political policies use euphemisms to refer to the devil, what do those who can help think? Are camouflaging tactics which are likely to bring the image closer to surrender feasible? Who choose to sacrifice their financial and political resources to help the relinquishing? They may tend to keep their own defenses by taking up realism instead.
Specifically, Vietnam is to promptly initiate a lawsuit against China’s positioning the Haiyang 981 oil rig at an arbitral tribunal established in line with the compulsory dispute settlement procedure of UNCLOS 1982.
At the same time, Vietnam should officially request China to bring the dispute over Paracel before the International Court of Justice. This is a form of peaceful struggle regulated in Article 33.1 of the UN Charter.
Moreover, Vietnam needs to abolish immediately and permanently all the above abnormal and use an ordinary and rational measure to handle international relations, i.e. to initiate a lawsuit against China at the very first signs of injustice.
4. Taking China to court and/or War
4.1 Persistent negotiations may hold potential risks of war
In reality, China has been attacking Vietnam at sea. Ramming with ships and firing water cannons at Vietnamese fisheries surveillance vessels are all destructive and deathly methods. And all these aggressive activities have been well supported by airplanes and warships.
A contradictory fact which turns out to be true is that the persistence in seeking negotiations may spark potential risks of war. First of all, no matter what might take place during negotiations, the Vietnamese government would have to maintain the protest at sea with fisheries surveillance vessels. Prolonged standoffs and tensions would be gradually heated and may be triggered into armed conflicts at sea. Secondly, when realizing that Vietnam has no other choice to abide by persistent negotiations, China would not hesitate to carry out localized attacks so as to create pressure and fright. As a response, Vietnam then would have to choose either to swallow the bitter pill, in other words, surrender or to carry out counterattacks, which would lead to war.
4.2 A war would not help solve the dispute
A war, however it may end, would be unlikely to help thoroughly settle the dispute. For it would be almost impossible to subdue anyone by force, let alone a whole people.
On one hand, in contemporary history, several wars have taken place between Vietnam and China (1974, 1979, and 1988), with contradictions piling up. Regardless of the outcome of these wars, Vietnam has never reached more agreements with China. Conversely, whether they won or lost any of these wars, the Chinese were never pleased or kind to Vietnam. The outcome of any war could only render the stronger side more brutal and more ambitious, and the weaker side would be displeased and discontented, in spite of all the euphemisms that the representing nation may use to describe the relation.
On the other hand, a struggle by legal means before an arbitral tribunal would be a much better measure for both countries to settle all conflicts and contradictions. Each of the nations then would enjoy proper fairness and would be free to use their own tools, namely reasoning, legal and historical evidences. The judgment of such a court shall be rational, clear-cut, public, and shall enjoy international recognition.
Here, we wish to highlight the failure of a war as a means of settling contradictions between the Vietnamese government and the Chinese government. And the crimes and sufferings related to any war are beyond discussions in this article.
4.3 A war would erase history
No wars can help solve contradictions. In contemporary history, several wars have taken place between Vietnam and China (1974, 1979, and 1988), with contradictions piling up, though disguised by euphemisms.
For all the sufferings and losses it causes, a war would not bring about any truly positive lesson of experience to the warring countries when it ends. For many reasons, the nations participating in a war will have to distort related history, whether they win or lose. In each of such countries, after a war leaders would continue to be hailed with heroic or pathetic images.
At least some decades after a war with the help of information and history excavation would the people become disillusioned and then put aside the wartime arguments to abide by and look at the incidents in a truly imperturbable attitude, in the faint hope that no war would break out.
While persistent negotiations or surrender are a historical smear, wars are a long-term concealment of history and truth under a cover of the warring years.
4.4 Lawsuit as a means of war prevention
Except in case of defense, a war is what every nation should avoid. In fact, an effective and intelligent method of defense would be to prepare for war on the one hand and to keep war at the farthest distance on the other.
Initiating a lawsuit against China is a way of keeping war at the farthest distance. Why has China been always upset any time Vietnam mentions the capability of making use of legal measures? It is certain that China is not afraid of a broken friendship between the two countries. But when the dispute is brought before an arbitral tribunal, in the light of justice and world opinion, China will no longer be able to intimidate Vietnamese fisheries surveillance forces with force or to use a war threat as in a situation with only two disputing countries and with Vietnam persisting in seeking negotiations.
It is imperative that Vietnam promptly uses legal measures, as this is the only and sole way to thoroughly solve the disputes. China is to pay proper attention to this.
China may not accept the settlement of disputes through legal measures as this is likely to deprive China of its advantages as a powerful country. Yet, to whatever extent it might be aggressive, China will have to understand that wars are synonymous to sufferings and losses. As mentioned above, a war will never help solve any disputes with Vietnam, China’s neighbor to the south. And China must have realized that the price to pay for a war would be much higher when it knows that Vietnam is not fearful of any struggles, both legal and armed.
Besides, even if there is a war, legal measures will also be necessary and need to be carried out by Vietnam. For in case of war, whatever the outcome might be, the contradictions would remain and become more serious. In addition, Vietnam’s giving prominence to legal and peaceful measures is bound to gain support from world opinion during wartime. And to the very end of the struggle, Vietnam’s victory in terms of international public laws shall be a fatal blow against the Chinese warmongers.
5. A number of political impacts from initiating a lawsuit against China
A lawsuit against China will provide Vietnam with a possibility of solving problems related to the Haiyang 981 oil rig and disputes related to the sovereignty over Hoàng Sa archipelago in the most equitable and effective manner.
A lawsuit against China would place the Vietnamese in a new response to the Chinese. The duration of the lawsuit would redefine the relationship between the two countries, and the motto of “16 Golden Words” and “Four Goods” would have no further chance to exist, and everything would take place in peace. By choosing a more defined stance to China, Vietnam would then enjoy greater support from the free world. Vietnam would then have the opportunity to free itself from China’s politico-economic influence, which cannot be obtained though persistent negotiations or the outbreak of a war.
Before an arbitral tribunal, both China and Vietnam would have to present their most accurate historical and legal evidences. And when historical incidents are referred to in a rational and clear-cut manner, for the sake of national sovereignty and other vital issues of the whole nation which requires the understanding of many people, they would help the Vietnamese know more about history, understand one another better and enjoy easier reconciliation.
More importantly, a lawsuit against the Chinese government would help the Vietnam partially free themselves from traditional confinements and get access to universal values of mankind such as “equality”, “peace” and “rationality”. And when struggling for justice benefiting the nation, the Vietnamese would understand more about the issue and request justice for themselves. All this would make up the genuine might of Vietnam.
In this spirit, initiating a lawsuit against China would be Vietnam’s most appropriate choice compared to persistent negotiations which are so close to surrender and contain in themselves potential risks of war. A lawsuit against China therefore should not be a final choice but an urgent task to be performed in the soonest possible time.
6. China’s possible immediate and short-term economic reprisals in response to a lawsuit
Immediately after Vietnam initiates a lawsuit against China, this country may take immediate and short-term reprisals such as stopping some imports from Vietnam for some period of time.
A typical example of this kind of reaction is the reprisals taken by China within two months against the Philippines as tensions arose between these two countries around the Scarborough Shoal waters .
At the peak of tensions, namely by mid-May 2012 and 1 month after the arising tension, China declared the suspension of imports of 1,200 containers of fruits from the Philippines then waiting at various ports. At the same time, China also prevented its citizens from taking outbound tours to the Philippines. These moves have presented a number of difficulties to Filipino farmers and the Philippines administration.
However, it was interesting that during this whole tension, the support from Filipino citizens and political parties to the Filipino President soared up. The whole Philippines seemed to have united into a unique bloc backing up President Aquino. Subsequent to this incident, the Philippines proceeded against China at an arbitral tribunal established in accordance with UNCLOS.
Such reprisals as mentioned above are what the Vietnamese government as well as the Vietnamese people must be prepared for. The long history of living close to this northern neighbor may have familiarized the Vietnamese with and enabled them to adopt corresponding responses to such similar reprisals or behavior from China as buying buffalo hooves , buying golden apples, nails, selling goods at low prices and of poor quality, halting goods at border gates …
Such normal characteristics which are limitations of Vietnam’s industrial and agricultural production such as small-scale, scattering or fluctuating happen to be partially positive features during the «wartime»; for instance, this production would develop high adaptability and flexibility in many difficult situations. And like the Philippines, once facing challenges against their sovereignty, the Vietnamese people would often become adamant and readily accept sacrifices. The problem is that the government must have clear-cut and transparent reactions, thus creating trust among its people.
7. Long-term macro-economic reprisals related to trade balance, cooperation and investment
During the possibly lengthened lawsuit, China may exert adverse impacts on trade transactions and force the commerce, cooperation and investment between the two countries to come to a standstill. In a short term, this would certainly affect the Vietnamese people’s living. However, in the medium term and longer term, these reprisals once prolonged would become precious springboards for Vietnam to thoroughly solve problematic issues and weaknesses in Vietnam’s economic ties with China.
Firstly, Vietnam currently has a trade deficit against China, with import values about 2 - 3 times export values, and this gap shows no signs of narrowing down. Any commercial reprisals taken by China in any form would only enable Vietnam to cut down its imports from China, and this would eventually create a better trade balance between the two countries.
Secondly, the goods items that Vietnam imports from China are mainly agro-products, and the remaining 40% is basic and low-tech commodities. Trade tensions with China would force Vietnam to turn back to Vietnamese agricultural and basic products.
In addition, Vietnam has to import such commodities as iron, steel, machinery and equipment from China partly because Chinese EPC contractors or FDI projects from China do not comply with the norms of using Vietnamese products and contractors. Vietnam could fully improve and minimize importation of these products from China if FDI projects and EPC assessment are strictly managed.
Thirdly, as Chinese investments into Vietnam are modest, accounting for a small FDI proportion compared to such other countries as Japan, Singapore and South Korea, with a lawsuit against China, the reduction of Chinese investments (if any) would not impose any pressure against Vietnam’s economy.
Despite its modest amount of foreign currency brought into Vietnam, China happens to benefit much more in comparison to other countries . FDI projects from China often send large numbers of Chinese workers to Vietnam, who have set up Chinese villages or streets right in the Vietnamese territory . All the more, Chinese companies often bring along old and outdated working machinery and equipment to Vietnam. Economic «tensions» with China, if any, would urge Vietnam to thoroughly solve these problems, which turns out to be a positive move.
China is an important trade partner of Vietnam, but it is certainly not the only trade partner, and would not be likely to be a good, stable and equitable partner who would comply with the values of equality and environment protection, at least in the present context of developments. China’s economic reprisals in face of Vietnam’s lawsuit would show that China is equivocal between economic and political affairs, and this would be an opportunity for Vietnam to seek more equitable partners, promising a better trade balance such as the United States and the EU, thus minimizing Vietnam’s economic dependence on China.
8. China’s possible economic reprisals in the long term
Unlike the 2-month tension between the Philippines and China, Vietnam’s lawsuit against China may last a longer time, ranging from several months to even several years.
If that is such a case, it is worth considering China’s reactions after the Philippines proceeded against China at the International Arbitral Tribunal for the Law of the Sea. It is interesting and noteworthy that since the Philippines lodged its complaint in January 2013, no clear-cut economic reprisals from China have been recorded. This is totally different from the tension lasting two months around Scarborough Shoal.
China’s reaction subsequent to Vietnam’s approval of the Law on Vietnamese Sea dated June 21, 2012 is just another example. According to Carl Thayer , China had learned of Vietnam’s drafting the Law on Vietnamese Sea and had many times intervened by proposing Vietnam to suspend this task. However, subsequent to Vietnam’s approval of the Law on Vietnamese Sea, almost no clear-cut economic reprisals from China have been recorded.
These above-mentioned examples show that it is not easy for China to take economic reprisals or that China is not readying itself in so doing. For the economic and commercial ties among countries, and between countries and economic organizations have become tighter and closer day after day, and require stability, rationality, and consistency in conduct. As China is currently the country with the world leading trade turnover, any and all of its moves will be monitored and criticized if they are «unreasonable» and prolonged. This is why China would often choose the approach of creating implicit political pressure, keeping every incident and affair in a vague scope, and handling affairs internally, while continuing to perform aggressive moves: occupying islands, chasing away fishermen, and deploying its oil rig into the continental shelf of Vietnam.
More than ever, Vietnam understands the plot and needs to bring the issue into the daylight and before international justice by officially proceeding against China in the two above-mentioned methods to protect Vietnam’s sovereignty and national security.
9. Conclusion
To initiate a lawsuit against China would be a civilized action, manifesting the respect of international public laws and peace. This would be a normal thing and a righteous attitude between neighboring countries with minimal mutual respect.
The analyses contained in this article show that Vietnam needs to promptly abandon the approach of persistent negotiations with China and to make use of legal measures instead. A lawsuit against China would be both an active form of foreign relations and an effective solution of war prevention.
Besides, a lawsuit against China would bring about positive political impacts on Vietnam. This would require the Vietnamese government to adopt a new kind of response to China and the motto of “16 Golden Words” and the spirit of “4 Goods” will have no more grounds for existence. More important, the lawsuit would enable the Vietnamese to partially free themselves from their own confinements and get access to universal values of mankind.
Vietnam’s experience in dealing with this northern neighboring country shows that by performing this positive move, Vietnam is to prepare itself for economic reprisals from China.
Immediate and short-term reprisals may cause difficulties to the Vietnamese people and production, for which Vietnam will also need to prepare.
However, in medium and longer terms, protracted reprisals would be a valued medicine for Vietnam to thoroughly treat the problems and weaknesses in Vietnam’s economic relations with China. Firstly, there would be a better trade balance between the two countries and Vietnam would be oriented to turning back to its own agricultural and basic products. Secondly, Vietnam would have to proactively address problems related FDI projects from China or from Chinese EPC contracts; such problems include the uncontrolled influx of Chinese workers into Vietnam, poor quality construction work, and the lack of respect for Vietnam’s domesticization criteria. Thirdly, these difficulties would serve as a driving force and opportunity for Vietnam to carry out re-structuring and reform production and consumption, as well as seek more promising trade partners, or even gain a more equitable trade relationship with China.
By thoroughly understanding potential reprisals from China, Vietnam needs to foresee possible developments and prepare its own economic strength to cope with these reprisals and minimize adverse impacts. However, these reprisals should not become obstacles that could prevent Vietnam from making proper decisions for national interests and sovereignty.
Sách mới của Tiến sĩ Lê Vĩnh Trương
https://www.phunuonline.com.vn/ban-ve-trung-quoc-troi-day-a1393117.html
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