VietNamNet Bridge - It must be emphasized that the advisory opinion process of the International Court of Justice (ICJ) will face political, diplomatic and legal barriers.

For this case, Vietnam should quickly send a diplomatic note to UNESCO to oppose China’s unilateral filing of the heritage file for the Silk Road on the Sea that passes through disputed areas, and state Vietnam's stance on this issue.

At the same time, Vietnam should mobilize other parties such as Malaysia and the Philippines to have a common voice at UNESCO, in order to prevent the World Heritage Committee from making an indirect decision to recognize sovereignty, sovereign rights and authority jurisdiction of China in the East Sea.

In addition, the Guidelines do not clearly stipulate how to submit the files for heritage sites in the disputed area, and the UNESCO Convention 1972 itself does not contain provisions on dispute resolution. Vietnam may also consider the competence of giving advice by the International Court of Justice to clarify the ambiguous issues.

The important point is that according to the statutes of the International Court of Justice, member states do not have the right to directly ask for the advice of the Court, but must go through one of the professional organizations of the United Nations.

But it must be stressed that the process to come to an advisory opinion of the ICJ will face a lot of political, diplomatic and legal barriers.

Firstly, to reach UNESCO's decision about submitting questions to the Court to obtain an advisory opinion depends very much on political and diplomatic campaigns of Vietnam. Convincing the Executive Committee to approve the decision to raise the question is not an easy task. The committee consists of 58 members including China, without Vietnam, and the General Conference consists of nearly 200 members of UNESCO.

Legally, to ask for an advisory opinion of the Court, the question that UNESCO raises must be a question of a legal nature relating to the interpretation of the UNESCO Convention 1972 and related documents.

Specifically, in this case, the issue that the Court should clarify is Article 11 (3) of the Convention in relation to paragraph 135 of the Guidelines.

So, the question that Vietnam needs to mobilize UNESCO to bring to the Court is: firstly, in case one party submits its file to the World Heritage Committee to seek recognition of a site as an underwater world heritage site without the consent of the related parties, how will the Committee address it?

This question is directed to the interpretation and clarification of Article 11 (3) of the UNESCO Convention 1972. Therefore, it is an entirely appropriate question that UNESCO might bring to the Court to ask for advice.

Secondly, in the context of China's intention to unilaterally submit the Silk Road on the Sea to UNESCO without consultation or consent from Vietnam in particular and other countries concerned in general, another question that UNESCO can raise is whether the area, which China submits to UNESCO, is "subject to claims for sovereignty or jurisdiction rights of more than one country" under the provisions of Article 11 (3) of the Convention UNESCO 1972?

In that case, does the behavior of the Chinese need the approval of other countries and can the obligations of joint submission in paragraph 135 of the Guidances be used or not? These are all questions related to the interpretation of provisions of the Convention; therefore, they are very likely to be accepted by the Court.

However, it should be noted that UNESCO requests the Court to identify areas submitted by China to be in the disputed area. This could face two obstacles.

Firstly, China will certainly oppose an advisory opinion concerning the determination of disputed areas in the East Sea, with the reason that it is one of the contents of the East Sea dispute that has not been resolved.

It is also the argument that Israel used to oppose the ICJ’s advisory opinion on the legality of the construction of the wall in the occupied Palestinian territory, as it said that the question is an integral part of the entire dispute between Israel and Palestine.

Although the Court finally gave its advice, it also reiterated the view that if the country concerned does not agree, it may make the Court’s advisory opinion inconsistent with its legal nature (resolving disputes on the basis of the agreement of all parties concerned).

Secondly, under Article 96 (2) of the legal regulations of the Court, a specialized agency of the United Nations can only raise the question of the scope of its activities.

In fact, the Court refuses to give answers to questions that the World Health Organization (WHO) raised in 1996 after noticing the question of "Whether the use of nuclear weapons violates international law, including the Charter of the WHO or not" outside the jurisdiction of this organization.

As an organization promoting the field of culture, science and education on a global scale, UNESCO’s requirement for identifying whether the areas submitted by China as disputed areas may not be completely similar to the above situation because it is related to the interpretation of the UNESCO Convention 1972.

In short, Vietnam needs to take action quickly and promptly through diplomatic channels to protest China's actions and at the same time look for suitable and clear explanations on the provisions in Article 11 (3) of the Convention.

Nguyen Ngoc Lan - Tran Hoang Yen