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Executive Director Search at the American Society of International Law

by Chris Borgen

As many readers of this blog know, Elizabeth Andersen, the  Executive Director of the American Society of International Law, has been named the new director of the American Bar Association’s Rule of Law Initiative. Consequently, the ASIL has a search underway for a new Executive Director. The search announcement states, in part:

The American Society of International Law (“ASIL” or “the Society”) seeks an accomplished leader with vision, proficiency in international law, and proven management abilities to serve as its next Executive Director, starting in the second half of 2014…

…The Executive Director works closely with an active Executive Council and President (the latter is elected every two years). The successful candidate for the Executive Director post will be proficient in international law, and demonstrate strong administrative ability and experience, effective fundraising capacity, and an ability to relate to and represent the diverse and multinational membership of academics, private practitioners, jurists, government officials, and students in their various endeavors relating to all facets of international law. In addition to coordinating with Society leaders, the Executive Director manages an annual budget in excess of $3 million; supervises a staff of 17 (14 of whom are full-time employees) in planning and executing day-to-day operations; facilitates the dissemination of scholarly and informational output in print, electronic, and conference settings; raises funds for the Society by seeking grants and other contributions from foundations, corporations, law firms, individuals, and other sources; implements outreach programs to a variety of external constituencies including the U.S. Congress, the judiciary, the media, law-making bodies, think tanks, international organizations, academia and others; and administers programs outside as well as within the United States.

Please see the full text of the announcement for further  details about the ASIL, the position, and the application process.  Please note that that applications should be received by June 15, 2014.

Having been the Society’s Director of Research and Outreach from 1999-2002, I can say that serving on the ASIL’s staff is an incredible experience. Although running any NGO is a demanding task (more accurately, it is a conglomeration of many, many, demanding tasks…), there are few positions in the international law that place one at such a nexus in the profession as being the Executive Director of the ASIL.

My best wishes to the applicants and to the the Search Committee.

 

 

High Level Sanctions Review Launched at the UN

by Kristen Boon

A new High Level sanctions review has been initiated at the UN, sponsored by the UN Missions of Australia, Finland, Greece and Sweden, in combination with Brown University and the sanctions consulting firm CCI. The purpose of the review is to assess existing sanctions and develop forward looking recommendations to enhance effectiveness. A similar process took place in 2006, known as the Informal Working Group on General Issues of Sanctions, which resulted in some important policy documents for sanctions regimes.

This new review will focus on three issues:

  • UN integration and coordination on the implementation of UN sanctions (addressing opportunities to improve sanctions integration and coordination among the UN entities supporting the Council’s sanctions function, including sanctions committees, expert groups, the Ombudsperson and the Secretariat)
  • UN sanctions and related institutions and instruments. (addressing the intersections between UN sanctions and other international instruments and institutions dealing with international security, such as international arms control and disarmament mechanisms, international financial and economic regulatory systems, and international criminal justice institutions)
  • UN sanctions, regional organizations, and emerging challenges (Addressing opportunities to optimize UN sanctions as an effective tool in response to serious and systematic violations of human rights and international humanitarian law, enhance coordination with regional sanctions, and explore new applications to address evolving threats to international peace and security)

This promises to be an important endeavor. While some member states stressed that there was no need to “reinvent the wheel”, others noted the importance of coordinating with the ICC and not overburdening developing states.

From my perspective, this process will be relevant to international lawyers for three reasons:

  • There are increasingly complex questions about how sanctions committees interact with other mechanisms. Are sanctions, which target individuals, incompatible with peacekeeping exercises, which usually have a mandate of neutrality? How should sanctions, which focus on conflict prevention and peace building, interact with international judicial mechanisms, which focus on deterrence, and longer term judicial processes for individual criminal responsibility? Relatedly, how can the work of the ICC and sanctions committees be better coordinated?
  • What process of review should apply to targeted sanctions generally? Currently only the Al Qaida sanctions regime is overseen by an administrative review mechanism in the form of the UN Ombudspersons office. Individuals and entities targeted under other sanctions regimes only have access to a “focal point” which is viewed as being not much more than a mailbox, given its limited mandate. The ECJ’s Kadi decision of 2013 raised stakes on due process, finding that even the Ombudspersons office does not meet the standard of effective protection. The battle between sanctions regimes and courts has begun, with potentially significant stakes for the supremacy of Security Council resolutions under Art. 103 of the Charter, and the ability of states to implement sanctions in the face of court challenges.
  • Finally, the situations in which sanctions are applied are increasingly innovative. Hate speech, poaching of wildlife products, protection of civilians, exploitation of natural resources – these are but a few of the justifications for imposing sanctions in the last decade.   These indicate a broadening view of what constitutes a threat to the peace and a deepening interest in using sanctions as a broad based tool.

To watch the opening meeting and see the statements, the video is available here.

Bond Cheat Sheet

by Peter Spiro

As David Kaye notes, treaty-power advocates everywhere may be breathing a collective sigh of relief with the Supreme Court’s decision in Bond v. United States. I’m not so sure how big a difference it makes, given the Senate’s persistent refusal to put an expansive treaty power to work. From an academic perspective the decision is a big let-down. No big pronouncements on Missouri v. Holland, the treaty power, the future of federalism in a different world.

On the substance, we have Jean’s excellent post below as well as Curtis Bradley’s characteristically precise analysis on AJIL Unbound. As Curt points out, the straight-up application of the federalism clear-statement rule in the foreign affairs context is significant. Perhaps a little tension with Charming Betsy? But this is incremental stuff, not the kind of ruling that marks a major pivot on the Court’s part in foreign relations law. The money quotes in the majority opinion relate to domestic affairs of a decidedly mundane kind, as Roberts decries an application of the treaty that “would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room.”

The Court may have understood this to be too freaky a case on which to peg a major ruling (hence also the silence from the Left side of the Court). The parade of horribles may be theoretically long and broad when it comes to imagining the ways that treaties might subsume core state authorities. But when it comes to making that specter a little more concrete, Justice Scalia is left conjuring up a multilateral “Antipolygamy Convention” with which Congress then trumps state intestacy laws. Really? (Scalia is known to write his concurrences and dissents from scratch. That was once a good thing; now it may be a bad. His concurrence here has a sloppy feel to it.)

For his part, Justice Thomas walks us through the original understanding of the Treaty Power in calling for its limitation to international relations. With due respect to the many rigorous scholars of an originalist orientation, I must admit that I have less patience for this oracular stuff the older I get. It never coughs up determinate answers. (How could it, in this context perhaps more than any other.) In what should be a candidate for SCOTUS understatement of the year, Thomas concludes: “I acknowledge that the distinction between matters of international intercourse and matters of purely domestic regulation may not be obvious in all cases.”

As foreign affairs law becomes increasingly doctrinalized, with a slew of major cases over the last 15 years, this is one area that will now remain up for grabs (the persistence of the century-old Holland decision notwithstanding). Maybe that’s not a bad thing for methodological and pedagogical purposes. As the Court plays the Marbury card more frequently (Scalia does it here), a last-word mirage rises in which the Court seems to be calling all the shots. But the new global architecture is far too immense and intricate for the Court to stay on top of it. Better to stay attuned to non-judicial mechanisms of constitutional evolution.

Roundtable at the NY City Bar on International Law and the Crisis in Ukraine

by Chris Borgen

For those in the New York City area who may be interested, tomorrow (June 4th) I will be participating in a roundtable discussion with Ambassador Yuriy Sergeyev, Ukraine’s Ambassador to the United Nations, concerning the crisis in Ukraine.   Mark Meyer, Moldova’s Honorary Consul in New York (and a member of the law firm Herzfeld & Rubin), will moderate the discussion.

The roundtable will take place at the New York City Bar on June 4th from 6:00 pm to 7:30 pm, with a reception to follow. Full details are available here.

For some of my recent posts on this topic, please see: 1, 2, and 3.

Guest Post: Silences in the Bond Case

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at Rutgers School of Law - Camden]

Thank you to Opinio Juris for letting me guest blog on Bond.

The most notable thing about the Bond decision is a resounding silence.  As a matter of law, it should have been easy to find for the government.  The statutory text reads plainly in the government’s favor, and constitutional text, practice, and precedent easily support the conclusion that the federal government can override federalism interests in implementing constitutionally valid treaties.  Yet not a single justice sided with the United States.  This silence is particularly perplexing given that three justices at oral argument seemed sympathetic to the government.

That is the major silence, but there are silences of reasoning in the opinions as well.  In what follows, I focus on two silences.  The first is the lack of consideration in the majority opinion of how treaty-implementing statutes might differ as a matter of statutory construction from ordinary statutes.  The second is the startling absence of constitutional history from the Framing onward in Justice Scalia’s concurrence.

The Majority Opinion

As Peter Spiro has noted, the majority ducks the constitutional question of whether the Treaty Power plus the Necessary and Proper Clause authorizes Congress to criminalize domestic poisonings like that of Ms. Bond.  Following a hint dropped by Justice Kennedy at oral argument, the Court does this by holding that there needs to be a “clear statement that Congress meant the statute to reach local criminal conduct.”  It isn’t enough for Congress to use broad language that seems to cover the act at issue; instead, Congress apparently has to do something more to signal specific intent to reach “local” conduct.  Congress didn’t do so here, so Ms. Bond wins.

I won’t deconstruct the merits of this approach, although I think Justice Scalia does a good job in his concurrence of showing why it is problematic.  But I do want to mention that it leads to an interesting divergence between the interpretation of a treaty and the interpretation of implementing legislation.  The Court spent very little time on the interpretation of the Chemical Weapons Convention itself, merely noting its “doubts” that the Convention was meant to reach ordinary domestic poisonings.  If it had wanted to, the Court could doubtless have done more to interpret the Convention this way (e.g., by explicit discussion of “object and purpose” or perhaps by drawing on rule-of-lenity-related principles in international and comparative law).  But instead the Court accepted a wedge between the interpretation of a treaty and of its implementing legislation.  Federalism principles do not matter to treaty interpretation (given that these principles are country-specific) but do matter to the interpretation of implementing legislation.  If this canon of construction is about Congressional intent, then it strikes me as odd, because there is a countervailing consideration not mentioned by the Court. This is that when Congress uses language that closely tracks a treaty’s language in implementing the treaty, Congress presumably does so because it wants convergence rather than divergence with the treaty.

Justice Scalia’s Concurrence

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Supreme Court Ducks Broad Treaty Power Ruling in Bond v. United States

by Peter Spiro

The decision is here. The Court found unanimously that the federal government overreached in prosecuting Carol Anne Bond under a federal statute implementing the Chemical Weapons Convention for what was otherwise a simple assault in a lovers’ quarrel. The six-justice majority decided the case on non-constitutional, statutory grounds – interpreting the statute (and the treaty) not to cover such conduct, but not addressing broader questions relating to the scope of the federal power to invade otherwise exclusive state authorities through the vehicle of international agreements.

So Missouri v. Holland stands. And it’s likely to stand for the foreseeable future. This was a freak case, a rare application of the treaty power cleanly posing the federalism question. Congress isn’t exactly free and loose in making use of its putatively limitless authority under the Holland opinion.

For those favoring national powers, this is probably the best that could have been hoped for. The Roberts Court has been ratcheting back the foreign affairs power on other fronts, and there was a wide expectation that this case would supply another important episode in advancing that agenda. The ruling is consistent with that agenda insofar as the Chief Justice’s opinion here treats the statute as it would any other. It’s not given a more expansive reading because it involves a treaty or foreign affairs. In that respect, Bond reflects the normalization of foreign relations law. But only in a small-ball kind of way. Constitutionally limiting (or affirming) the treaty power would have been much, much more significant.

We should have more soon on the ruling, the concurrences, and the future of the treaty power during the course of the week here at OJ.

Washington University Law Professor Sworn in as Malawi’s President

by Julian Ku

So, Professor of Law, what are you going to do after you retire from your tenured post teaching and finish writing all the articles and books you want to write? Well, I guess I’ll become President (of Malawi)!

On Saturday, [Peter] Mutharika, now 74, a soft-spoken professor with a proper English-educated accent and who smoked a pipe while he taught in the 1970s, shocked many of his former colleagues and students when he was officially named the southeastern African country’s president after a tumultuous election that took more than a week to resolve.

It was an ascent to power just three years after his formal retirement from Washington University.

Congrats to Professor (er, I mean President) Mutharika!   It is not very often that a professor of international commercial law and contracts becomes a head of state.  It sounds like there are many serious obstacles facing him (and only a few of those are related to his background as a U.S. law professor), but I am sure all of us in the U.S. law academy wish him the best!

Constructing the Eurasian Economic Union

by Chris Borgen

The New York Times reports that:

The presidents of Russia, Kazakhstan and Belarus formally signed an agreement on Thursday to create a limited economic union — an alliance hobbled by the absence of Ukraine but one long pursued by President Vladimir V. Putin of Russia to confirm his country as a global economic force.

“Today we are creating a powerful, attractive center of economic development, a big regional market that unites more than 170 million people,” Mr. Putin said during the ceremonies. He underscored the significant energy resources, work force and cultural heritage of the combined nations.

This treaty, which was signed this past week but is not expected to come into force until January 2015, marks the next step in transforming the still-nascent Eurasian Customs Union (ECU) into the Eurasian Union (EEU). Russian pressure for Ukraine to turn away from association with the European Union and towards Moscow-led Eurasian integration was one of the roots of the current crisis.

As the Shanghai Cooperation Organization (SCO) with China and the Central Asian states is Russia’s answer to U.S. military alliances, Eurasian economic integration is meant to be Russia’s response to EU and U.S. economic power.  According to a chronology in a report by the Centre for European Policy Studies, the creation of the EEU was first suggested by the President of Kazakhstan, Nursultan Nazarbayev, in 1994. There was not much movement until the negotiation and signing of a customs union treaty among Russia, Belarus, and Kazakhstan in 2007. The basic requirements of the Eurasian Customs Union came into force in 2010, which were essentially trade policy coordination measures establishing a common external tariff among its members. However, the deepening Eurasian economic integration was given a boost by an op-ed by Russian President Vladimir Putin in October 2011.

In early 2012, the member states deepened ECU’s institutions by starting the operations of the Eurasian Economic Commission, a supranational entity that was contemplated in the 2007 treaty,  to manage the external trade regulations of the member states, including relations with the WTO. That also marked the establishment of  the “single economic space” (SES) among the member countries which, in the words of the Centre for European Policy Studies paper, “envision[ed] further regulatory convergence and harmonisation of national laws” in particular economic sectors.

The treaty that was signed on May 29th is ostensibly to move from customs union towards a full economic union, with free movement of goods, capital, and people among the member states, but reality has so far proven to be less sweeping and heroic than the rhetoric that marked the occasion. The most obvious issue is that the EEU was originally envisioned to include not only Russia, Belarus, and Kazakhstan, but also Kyrgyzstan, Armenia, and especially Ukraine. Ukraine would have added  a populous country with  economic potential and an an economy that (unlike Russia and Kazakhstan) was not based on natural resource exploitation. But Russia’s intervention in Ukraine  backfired: not only did it fail to bring Ukraine into the EEU fold but, according to a Radio Free Europe report, it has weakened the EEU by having: (more…)

Haiti Cholera Case: New Briefs Filed on Privileges and Immunities

by Kristen Boon

New briefs have been filed in the Haiti Cholera case against the UN, now pending in the SDNY.    Plaintiffs filed a response to the US Government’s Statement of Interest, in which the US defended the UN’s absolute immunity.  The important treaty law argument the Plaintiffs advance in response is that:

Both international law and U.S. law provide that a material breach of a treaty or contract by one party excuses performance by other parties. Defendants’ failure to establish a standing claims commission, or any other mechanism for relief, should deny Defendants the benefits of immunity and the right to shield themselves from responsibility in the instant case.

In other words, they argue that the Convention on Privileges and Immunities of the UN has been suspended because the UN failed to set up a standing claims commission as required under Article 29.

In addition, two amicus briefs have been filed.  The first is by a group of International Law Scholars who argue that the the UN has an obligation to respond to claims of a private law nature, and that the Haiti cholera case does not involve operational necessity.

The second is by a group of European Law Scholars, who provide information to the Court on how cases on Privileges and Immunities have been addressed in European jurisdictions.   In particular, they analyze the important precedent of Waite and Kennedy, in which a “reasonable alternative means” test was adopted.    They also distinguish the Mothers of Srebrenica case in which the Dutch Supreme Court and later the ECtHR upheld the UN’s absolute immunity, because the Security Council was considered to be fulfilling its core function and the core of the case involved operational necessity.

Each of these briefs raises important international law arguments and ultimately invites the SDNY to decide whether the UN’s immunity is conditioned on the requirement to provide a forum for the settlement of private disputes.

Implications of Security Council Veto on ICC Referral of Syrian Situation

by Kristen Boon

Before yesterday’s vote on referring the situation in Syria to the ICC, Louise Arbour, outgoing President of the International Crisis Group and former UN High Commissioner for Human Rights, was quoted in the New York Times as saying “The only question in my mind is, will it belong to the cemetery of good intentions or the museum of political scoring? This is, in a sense, an exercise in using the I.C.C. and accountability for posturing.”   In other words, the ICC was never the best option.   I’ve seen several similar comments in the blogs, for example by Dov Jacobs here and Kevin here.

Nonetheless, for a Council that is deeply engaged with Syria, yesterday’s Security Council session marked another defeat for the people of Syria. Despite widespread member state support starting in 2013 for a referral, see this letter signed by 57 states to the Security Council,  and reports that 60 states supported the referral yesterday, the meeting marked the fourth time Russia and China vetoed resolutions involving Syria, and the first time the veto has been used on a proposed ICC referral.   For background on this resolution, see this Security Council Report analysis here.

Because international tribunals such as the ICC would only have the capacity to try a fraction of the crimes, it has always been clear that other mechanisms, such as hybrid tribunals like those in Bosnia, a specially created international court, or the Syrian courts themselves, will be necessarily be part of the judicial response to the ongoing atrocities being committed in conflict.  In this sense, the “pass” on the ICC referral doesn’t mean alternatives aren’t available.   Moreover, US support for this referral (albeit with concessions related to the Golan Heights and jurisdiction over American servicepeople) further closes whatever legitimacy gap the ICC may have had in American eyes.

The legitimate controversy over financing aside, the downsides of potential ICC jurisdiction over ongoing atrocities committed by the government forces and opposition forces alike are really ones that, institutionally, could have and should have been handled by the Court itself, as a separate and independent body. I don’t agree with arguments that the Security Council referral was complicated by the fact that opposition forces are implicated in the commission of atrocities as well, or that the Security Council needs to decide who (which side) should be prosecuted in advance of referring a situation to the court.   What this conflict does indicate however, is the deepening entanglement between international courts and the Council, a theme which runs broadly through the Council’s peace and security work, and through its sanctions practice as well.

This entanglement can be addressed in a few ways.  The First, is greater clarity and better mechanisms to improve the relationship between the Council and the ICC (amongst other courts), while maintaining institutional independence.   For an overview of the issues broadly cast, see David Kaye’s 2013 report here.   Second, working around the Security Council is another option.  Because Syria is not a party to the ICC, the options are limited, but Amb. Christian Wenawaser of Leichtenstein has argued that another route to ICC jurisdiction might be hoc submission under Art. 12(3) of the ICC Statute.   In a talk at the International Peace Institute in January, he stated that the Syrian Opposition could refer the situation to the ICC now, to show the opposition is claiming its competence and supports accountability.  Although it would be a political act, in time, he predicted it might become a legally valid referral if the Syrian opposition is eventually recognized as the government.   The ICC would of course be the ultimate judge of the legal consequences of any such referral, but optimistically, it could trigger jurisdiction from the moment such a declaration was made, not the moment it was accepted. The downside to this approach, however, is that it might become a political tool amongst the competing factions to bolster their status as the official opposition.

Third:  censure of the veto.  A number of prominent NGOs responded to yesterday’s session with a statement urging permanent members of the Security Council to adopt a “code of conduct” that would require the P5 to voluntarily refrain from using the veto in situations of genocide, war crimes, ethnic cleansing and crimes against humanity.  This NGO statement invokes the parallel effort by France to introduce a resolution that would restrict the use of the veto in cases of mass atrocity.   Although France’s efforts were referred to multiple times during the debate, yesterday’s double veto made clear the political costs of blocking the veto are not yet high enough to sway Russia and China’s persistent objections to judicial or other intervention in Syria.

Fourth, using the General Assembly in the spirit of the Uniting For Peace resolution.  Derek Jinks analyzes this path here.

As these options become more attractive by necessity, yesterday’s vote makes clear that the Security Council’s primary is under scrutiny.  Moreover, it reinvigorates the debate about whether the Council’s failure to act creates legal consequences for the P5, member states, or the UN itself.  As Deputy Secretary-General Jan Eliasson said yesterday:

“The Security Council has an inescapable responsibility in this regard. States that are members of both the Security Council and the Human Rights Council have a particular duty to end the bloodshed and to ensure justice for the victims of unspeakable crimes.”

Senate Foreign Relations Committee Takes on the AUMF

by Deborah Pearlstein

As several of my friends at Just Security and Lawfare have noted, the Senate Foreign Relations Committee on Wednesday held an, um, interesting hearing on whether the primary domestic law authorizing the use of force against Al Qaeda, the Taliban and associated forces needs to be repealed or revised. Witnesses’ written statements and (more interesting) video of the hearing is here. The hearings featured current DOD General Counsel Stephen Preston, Principal Deputy Legal Adviser at the State Department Mary McLeod, followed by former (Obama) State Department Legal Adviser Harold Koh and former (Bush) Attorney General Michael Mukasey.

The Administration witnesses took a pounding. Some of the harsh questioning was, as ever, partisan bombast seeking to score pre-election points. Some of it was the members’ impatience with the complexity of the (overlapping) domestic and international law in the area. But some of it was the members’ understandable difficulty in trying to follow the witnesses’ at times needlessly confusing responses, viz. “Q: Give me a sense of what you get from the AUMF that you don’t have under existing statutory or constitutional law? A: “…I think it would be fair to say that with or without an AUMF, to the extent that it grants authority for the use of military force against Al Qaeda, the Taliban, and associated forces, in which we are in armed conflict, to the extent that those groups continue to pose a threat of imminent attack against this country, the President does have constitutional authority to act….” And some of it was genuine frustration, viz. “Q: If a bill was introduced today to repeal the [2001] AUMF, would the Administration’s position be support, oppose, or I don’t know? A: As of today, Senator, I think the answer is, we don’t know.”

So does the Administration really think the President’s authority under Article II of the Constitution gives it all the power it needs, even without the AUMF? If one is concerned about this kind of broad inherent executive authority, and if all agree the Al Qaeda of 9/11 is diminished and the nature of the threat of terrorism is evolving, doesn’t that necessarily mean we need new statutory authority to define or constrain the President’s ability to go after these evolving threats? My view: no and no. Here’s why. (more…)

Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute

by Julian Ku

There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea.  Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.

What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done.  Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction.  Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”

At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction.  Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone.  So I think we will see a rerun of the Philippines arbitration.  Vietnam will constitute a tribunal, China will not participate, and away it goes.

Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China.  I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.

Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts.  This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas.  It is not a slam-dunk, but it certainly could be a plausible claim.

I am doubtful that  an additional arbitration will lead to China backing down.  Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines.   The extra added pressure of  a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.  I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.