Given the background, strategic and geopolitical tensions involved in the South China Sea, many media agencies and reporters laughed at Donald Trump’s proposal in Hanoi earlier this November to act as a mediator for the dispute over the seas and sovereignty between China, Vietnam, and other Southeast Asia Countries. However, technically speaking, can this proposal be implemented? 

VCI Legal, with many years of experience in lawmaking and arbitration in Vietnam under the Government’s legislative program and international professional conferences, would like to answer this question from a specialist perspective. 

Mediation is one of the peaceful means to settle disputes as stated in the Charter of the United Nations 1945 (“UN Charter”) and the United Nations Convention on Law of the Sea 1982 (“UNCLOS”). According to these UN Conventions, mediation is a method where a third party intervenes to reconcile the claims of the contending parties.

The primary requirement of the procedure is informality and confidentiality. An offer of mediation may be accepted by a written agreement. It cannot be imposed without parties’ consent. Then, mediation can be undertaken by a single State or within the framework of an international organization such as the United Nations. Within the United Nations, the Security Council might appoint a committee of the Security Council to give advice as the mediator.

       The mediator is to be chosen by mutual agreement of the parties, who are “trained neutral person”,“experience, skills, knowledge and cultural sensitivity for the specific conflict situation.”

The function of the mediator is to support both parties in the settlement of the dispute in the simplest and most direct manner. Besides, the mediator should reconcile the opposing claims and appease the feelings of resentment between the States. He is expected to offer concrete proposals for a solution and a settlement of substantive issues related to a dispute. The mediator shall determine a time-limit for the parties to reach some solutions. However, his proposals represent nothing more than recommendations.

The outcome of the process is not binding upon the parties unless it is accepted by the parties in which case, such outcome will be embodied in an enforceable agreement. In case of failure of the mediation, no legal obligations arise and the Parties shall continue to seek another peaceful solution. Should the parties fail to settle by peaceful settlement, they shall refer their dispute to the Security Council in accordance with the UN Charter. However, the mediator might take on themselves the rendering of further assistance such as a financing or guaranteeing the implementation of the findings of the mediation.

Conclusion:

Mediation has both advantages and disadvantages as compared to other methods of dispute settlement. It is more flexible than arbitration or judicial settlement. It leaves more room open for the wishes of the contending parties and the initiatives of the third party. The parties remain in control of the outcome. Their proceedings can be conducted in secret. However, the proceedings cannot be started and be effective without the consent, cooperation, and goodwill of the parties. The proposed settlement is no more than a recommendation without any binding force upon the parties.

Therefore, provided that U.S President Trump receives acceptance from both Vietnam and China, he could be a mediator in a dispute over international seas and sovereignty between these two States. However, the problem is that with regard to strategic and geopolitical in the region, whether the United States or President Trump can be approved by both Vietnam and China as a mediator when the position of the United States is not necessarily entirely neutral. This question is of course not a mere legal issue.

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DISCLAIMER

This LBN newsletter are NOT legal advice. Readers are advised to retain a qualified lawyer, should they wish to seek legal advice. VCI Legal is certainly among those and happy to be contacted, yet VCI Legal is not to be hold responsible should any reader choose to interpret/apply the regulations after reading this LBN without engaging a qualified lawyer.

About VCI Legal:

VCI Legal is an international award-winning, full service business law firm in Vietnam. The firm provides a wide range of advisory services and has gained a strong reputation for successfully handling corporate, commercial, financial and contentious matters. The firm’s practice areas which have been highly recommended by various international magazines and agencies include: Corporate/M&A, Banking and Finance, Capital Markets, Insurance, FDI, cross-border transactions, Competition, Dispute Resolution, Energy, Infrastructure, IPRs Management and Real Estate.