Measures to Establish International Commissions of Inquiry and Conciliation Commissions

It can be affirmed that international negotiation in resolving international disputes is a long-standing peaceful measure to resolve international disputes, which is widely applied and most effective. Because negotiation is the most favorable opportunity and condition for the disputing parties to directly express their views, positions, and claims on the disputed issue, and negotiate and make concessions to resolve it.

On the other hand, resolving disputes through direct negotiation will limit outside intervention, which can further complicate the dispute. Negotiation can be applied as an initial measure and can also be the last measure for the parties to resolve the dispute after the parties have resolved it by other measures.

In practice, in disputes in which Vietnam is a party, we have always determined that negotiation is the measure applied to all disputes over territorial borders. Before joining ASEAN, Vietnam declared its support for the Declaration of the Foreign Ministers of ASEAN countries on March 18, 1995. In its statement, Vietnam affirmed: " All sovereignty disputes over archipelagos in the East Sea must be resolved through peaceful negotiations; calling on the parties concerned to exercise restraint and commit not to use or threaten to use force" . In particular, in relations with China, Vietnam has always expressed its stance through the agreement on basic principles for resolving border and territorial issues between the Socialist Republic of Vietnam and the People's Republic of China on October 19, 1993 in Hanoi, with the following basic principles:

- Through negotiations, peacefully resolve territorial border issues between the two countries on the basis of five principles: respect for each other's sovereignty and territorial integrity; non-aggression; non-interference in each other's internal affairs; equality, mutual benefit and peaceful coexistence;

- The two sides shall base on recognized international legal standards and principles and refer to international practices to resolve border and territorial issues;

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- The two sides agreed to speed up the negotiation process and promptly resolve border and territorial issues, including at sea and on land... during the negotiation process.

To resolve the issue, both sides should refrain from taking any action that would further complicate the dispute and from using force or threatening force.

With that spirit, up to now, Vietnam and China have resolved the territorial and land border issues with the Land Border Treaty dated December 30, 1999 and the demarcation of the Gulf of Tonkin with the Agreement on the Demarcation of the Gulf of Tonkin and Fisheries Cooperation dated December 26, 2000 [23].

2.1.2. Mediation and conciliation measures

Mediation is one of the peaceful measures to resolve international disputes with the participation of a third party to help the disputing parties effectively resolve their disputes. The mediator can be a country, an international organization or an individual with great prestige in the international arena who acts as a mediator voluntarily or at the request of one of the disputing parties.

The measure of conciliation and mediation has been mentioned in the Hague Convention of 1899 and the Hague Supplementary Convention of 1907. Accordingly, the signatory countries have the right to request mediation or conciliation even in times of war. The Convention also obliges the disputing parties, where possible, to apply mediation and conciliation measures before using force.

In international relations, many disputes have been resolved with the great contribution of the mediator, typically the " Quartet" group sponsoring the Middle East peace process including the United Nations, the European Union, the Russian Federation and the United States; or in 1963-1964, the border territorial dispute between Algeria and Morocco, the neighboring countries Mali and Ethiopia were the two mediators to resolve this dispute. At the same time, these two countries also acted as observers to monitor the ceasefire between Algeria and Morocco; or the 1962 Caribbean Gulf crisis between the US and the Soviet Union that could threaten the security of Cuba and the world, the Soviet Union asked the then Secretary General of the United Nations, Mr. U Than from Myanmar, to act as a mediator. As a result, the incident was resolved peacefully by the US and the Soviet Union, and the risk of conflict and nuclear war was promptly resolved [5].

In essence, the mediator is essentially the mediator, so they do not have the authority to decide on dispute resolution measures. On the other hand, the solutions provided by the mediator are only for reference, not mandatory, and the mediator is not an international judicial body with the authority to resolve disputes between countries.

In fact, the mediator can act as the host country for the disputing parties to hold a conference. For example, in 1982, at Camp David, the United States mediated for Israel and Egypt to resolve the dispute over the Sinai Peninsula that Israel had occupied from Egypt in the 1967 Six-Day War. Accordingly, Israel committed to returning the Sinai Peninsula to Egypt on the condition that Egypt also committed to demilitarizing the peninsula. Or from 1968 to 1973, the French Republic was the host country of the Paris Conference between the parties involved in the Vietnam War, including the Democratic Republic of Vietnam, the Provisional Revolutionary Government of the Republic of South Vietnam, the Republic of Vietnam and the United States to negotiate an end to the war and restore peace in Vietnam (Paris Conference on January 27, 1973) [5].

The mediator acts as a chair in the negotiations, offering solutions to help the parties choose to resolve the dispute. However, regardless of their capacity, the mediator must comply with their role as a mediator, not favor any party in the dispute, and must not take advantage of it to intervene in the dispute.

2.1.3. Measures to establish international commissions of inquiry and conciliation commissions

In international relations practice, since the beginning of the 20th century, countries have begun to widely use commissions of inquiry and conciliation commissions to resolve international disputes. Specifically, in 1904, Britain and Russia established a commission of inquiry consisting of representatives from Russia, Britain, France, the United States, and Austria to investigate the British claim that the Russian navy had shot and killed some of their fishermen. After reviewing all the records and evidence, the commission of inquiry concluded that Russian customs had fired on British fishing boats and finally, Southern Russia accepted the above investigation conclusion and cooperated with Britain to resolve the incident. Or from 9 to 1904,

On August 14, 1990, at the proposal of the Secretary General of the United Nations, the Paris International Conference agreed to send a delegation to investigate the situation in Cambodia, which was essentially an investigation committee. Or to resolve the dispute over Jan Mayen Island between Iceland and Norway, the two disputing parties agreed to establish a conciliation committee. Based on the economic interests of the parties, this committee investigated the situation and proposed a solution to establish a joint development zone between the two countries [30].

In terms of international law, international investigation and conciliation commissions are special agencies established and operating on the basis of agreements between relevant parties to contribute to the resolution of international disputes. Accordingly, the countries that are parties to the dispute will sign international treaties to establish these commissions. In principle, the number of members of the investigation and conciliation commissions is always an odd number, in which each country in dispute will send an equal number of members to participate in these commissions, then the selected commissioners will select and invite a number of citizens of a third country to be the Chairman of the commission to ensure objectivity in making relevant decisions.

The duties of the investigation committee are narrower than those of the conciliation committee. Specifically, the committee's main duties are to investigate, search for, verify, and collect all information to identify and clarify the elements, details, and events that create the dispute. Meanwhile, the conciliation committee is responsible for drafting resolutions or conclusions to analyze and present to the disputing parties. To help the investigation and conciliation committees operate effectively, the disputing parties are responsible for creating favorable conditions and providing necessary documents for these committees to fulfill their duties. However, the decisions and conclusions of the investigation committee and the conciliation committee are not binding on the disputing parties.

2.2. Measures to resolve disputes by judicial agencies

2.2.1. Dispute settlement by the International Court of Justice

2.2.1.1. Overview of the International Court of Justice

a. About the name

The International Court of Justice is often referred to as the International Court or the International Court of Justice.

International Court of Justice or International Court of Justice or United Nations International Court, but in English, the term " International Court of Justice" is abbreviated as ICJ or in French, " La Cour Internationale de Justice" is abbreviated as CIJ. Therefore, when translated into Vietnamese, we call this Court the International Court of Justice, which is the most accurate.

The predecessor of the International Court of Justice is the Permanent Court of International Justice, established in 1922. The International Court of Justice officially began receiving cases, accepting and resolving international disputes between countries as well as providing legal advice to the General Assembly, the United Nations Security Council and specialized organizations of the United Nations from February 6, 1946 and officially replaced the Permanent Court of International Justice from April 18, 1946 [28].

b. Regarding legal position

The International Court of Justice is one of the six principal organs of the United Nations (the General Assembly; the Security Council; the Economic and Social Council; the Trusteeship Council; the Secretariat and the International Court of Justice). According to Article 92 of the Charter of the United Nations, the International Court of Justice is the principal judicial organ of the United Nations, established and operating under the Statute of the Permanent Court of Justice. The Statute of the International Court of Justice is an inseparable part of the Charter.

c. Characteristics of the International Court of Justice

The International Court of Justice has the following characteristics:

Firstly, the International Court of Justice is organized and operates according to its own statute (the Statute of the International Court of Justice) and is a permanent body, because the Court has a fixed headquarters, statutes, regulations, and internal rules of the Court. The judges of the Court are elected and serve a term of office.

Second, the International Court of Justice is a specialized agency, because the International Court of Justice performs three basic functions related to international law: resolving disputes between countries when countries agree to request, giving legal advisory conclusions to the Security Council, the General Assembly and specialized agencies and organizations of the United Nations. At the same time, the International Court of Justice is an agency that plays an important role in codifying international law (case law).

Third, the International Court of Justice is an independent dispute settlement body from other organs of the United Nations. In the process of settling disputes at the Court, it is completely independent from the main organs of the United Nations such as the General Assembly, the Security Council, the Secretariat, the Economic and Social Council and the Trusteeship Council. Therefore, the judgments of the International Court of Justice are not bound or influenced by these organs of the United Nations system.

d. On the headquarters and composition of the International Court of Justice

The International Court of Justice shall have its seat in Deen Haarg, the Netherlands. However, the Court may, after consultation with the parties to the dispute, hold hearings at locations outside Deen Haarg if it considers it necessary.

The International Court of Justice consists of 15 judges (excluding 2 judges who are nationals of a country). The list of candidates for election as judges of the Court is introduced by the countries and elected by the General Assembly and the Security Council on the principle of majority, excluding the votes of permanent or non-permanent members of the Security Council for a term of 9 years, and they can be re-elected. Judges elected to the International Court of Justice must have good professional qualifications in the field of international law and be fluent in the official working languages of the United Nations, mainly English and French (the official working languages of the Court).

The composition of the Judiciary shall ensure the representation of the principal forms of civilization and the principal legal systems. Judges of the International Court of Justice shall not hold any political or administrative office or engage in any other professional activity.

Judges of the International Court of Justice act independently, they only act in the name of the International Court of Justice and not in the name of or on behalf of the countries of which they are citizens. Because the International Court of Justice is not a representative body of governments. Therefore, judges are selected without regard to nationality. During their time as judges, they enjoy privileges and immunities.

Diplomats, even when temporarily residing abroad, are not dismissed. To ensure objectivity and unbiasedness in the consideration and resolution of disputes, if the dispute involves a country whose nationality the Chief Justice is, the Chief Justice will transfer the position of Chief Justice to the Deputy Chief Justice of the Court.

The Court of Justice has a Court Secretariat, which is an agency that assists the Judges in performing the functions of dispute resolution and legal advice. The Secretariat acts as a permanent administrative agency of the Court, specializing in performing judicial services; liaising between the Court and countries; acting as an intermediary between countries and international organisations with the Court; making minutes of Court meetings; certifying, transferring and storing Court decisions; organising the publication of publications such as judgments, legal advice conclusions, memoranda submitted by the disputing parties to the Court, and documents issued by the Court in the course of performing its functions and duties.

The Secretariat consists of:

- 1 Chief Secretary (equivalent to the rank of Deputy Secretary General of the United Nations)

- 1 Deputy Secretary

- Secretaries

e. On the jurisdiction of the International Court of Justice

According to the Statute of the International Court of Justice, “The International Court of Justice established by the Charter of the United Nations shall be the principal judicial organ of the United Nations…” The International Court of Justice may also give legal advisory opinions to the General Assembly, the Security Council, and the specialized agencies of the United Nations on any legal question relating to their fields of activity, if so authorized by the General Assembly. Of course, advisory opinions will not be binding on the agencies or organizations requesting the advice [33].

In practice, the basic and primary function of the International Court of Justice is to resolve all international disputes between states if requested in accordance with the provisions of the Statute of the Court. That means that only states that accept the jurisdiction of the Court to resolve disputes have the right to request

The Court deals with disputes relating to: According to the Statute of the International Court of Justice: “… the jurisdiction of the Court consists of the obligation to consider all legal disputes relating to:

a) Interpretation of the treaty;

b) Any matter of international convention;

c) There is an event that, if later determined to be a breach of international obligations;

d) The nature and extent of compensation for breach of international obligations…”

In addition, as the main judicial organ of the United Nations, the Court also has the power to codify international law (case law) and other specialized powers such as the Court's jurisdiction over a dispute involving the Court's authority over a specific case; the Court's power to control the trial process; the Court's power over provisional protection measures; and the termination of disputes...

g. Parties in Court

In principle, all members of the United Nations automatically become parties to the Statute of the Court. States that are not members of the United Nations and have not joined the Statute of the Court may also become parties to the Court under the conditions set out by the Security Council in Resolution of 15 October 1946. That is, these countries must formally declare their acceptance of the Court's judgments in general, or in respect of specific disputes, as in the case of the Federal Republic of Switzerland, which declared its acceptance of the Court's jurisdiction in 1948 before Switzerland joined the United Nations on 10 September 2002; or the Republic of Liechtenstein, which declared its acceptance of the Court's jurisdiction in 1950 before it joined the United Nations on 18 September 1990; Or the Republic of San Mario also declared its acceptance of the Court's jurisdiction in 1954 before joining the United Nations on March 2, 1992.

Based on the supreme sovereignty of each country in choosing the agencies and means to resolve international disputes, therefore, countries are not obliged to bring related disputes to the Court for settlement. Of course, the

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