12 Dec Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal
The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea. It is a little unclear exactly what Vietnam has filed. According to its Ministry of Foreign Affairs website:
In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.
According to the South China Morning Post, the Vietnamese submission has three points.
1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.
I think this filing has much more political than legal significance. As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal. It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.
On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China. I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course. The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.
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Opinio Juris » Blog Archive Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal – Opinio Juris
I wonder if the arbitral tribunal has the right to take such a submission into account, even if it finds it relevant to the dispute?
Generally in international arbitration practice the arbitral tribunal’s jurisdiction is limited to the claims and arguments submitted by the parties to the dispute, and to a determination of their rights and obligations rather than those of third parties. Even where procedural rules do allow for amicus curiae submissions, these must be allowed by the tribunal.
Response…Vietnam’s intervention in the Philippine’s case was addressed at a seminar in Saigon in July. Here is a link to a pdf file from the seminar:
http://cil.nus.edu.sg/wp/wp-content/uploads/2014/08/Beckman-SCS-Conf-Saigon-26-July-2014.pdf
In short, it may be possible.
Thanks for this, very interesting. Still, the slides seem to indicate that the second option would be for Vietnam to request the tribunal to intervene, rather than just file its position as it has done. In these circumstances, and absent any formal request by Vietnam to officially intervene in the case, I still wonder whether the tribunal is permitted to take its position into account (unless both China and the Philippines agree that its position is relevant to the resolution of their dispute, which is probably unlikely).