Vietnam can sue China for detaining fishermen

China’s detention of 21 Vietnamese fishermen is not based on any international laws, and Vietnam can refer such an illegal capture to an international tribunal for settlement, a law expert has said.

In regard to the fact that Chinese authorities captured 21 fishermen and their two boats, all from central Quang Nam Province, when they were fishing off of Vietnam’s Hoang Sa (Paracel) Islands on March 3, 2012, Dr Le Minh Phieu, who obtained a PhD Degree in Law at Montesquieu University, France, provided his opinion on the issue.

Under Article 292 – “Prompt release of vessels and crews” – of the United Nations Convention on the Law of the Sea (UNCLOS), the State whose flag is born by the detained vessel can sue another State that has detained said vessel at the International Tribunal for the Law of the Sea (ITLOS), provided that both States are UNCLOS members, Phieu said.

After considering the case, ITLOS can request the detaining State to release the detained vessel and its crew, Phieu said, adding that since its establishment in 1996, ITLOS has handled at least nine lawsuits in which the plaintiff asked for the release of vessels and crews.

Therefore, along with their efforts to resolve the problem via diplomatic channels, competent Vietnamese agencies can consider taking legal action against China to ITLOS, Phieu said.

Throughout its course of history, Vietnam has established its sovereignty over the Hoang Sa Islands, although China has occupied the archipelago by force since 1974, when the islands were under control of the Government of the Republic of Vietnam.

Pursuant to a resolution of the UN General Assembly from October 24, 1970, the fact that China occupied Hoang Sa by force fails to give China sovereignty over the archipelago.

Thus, in terms of a judicial aspect, Vietnam has full sovereignty over Hoang Sa.

At Hoang Sa, under Article 56 of UNCLOS, “Rights, jurisdiction and duties of the coastal State in the exclusive economic zone,” Vietnam has “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.”

Therefore, fishing operations by Vietnamese fishermen in the seas off Hoang Sa are completely appropriate to UNCLOS, and the fact thatChinahas detained 21 Vietnamese fishermen and their two boats is against international law, Phieu said.

“Moreover, the detention of the fishermen by Chinais also against the Code of Conducts in the East Sea (COC) between ASEAN and China.”

On the other hand, even if China has claimed that the archipelago, along with the sea around it, is in dispute, the detention is also against Article 73 of UNCLOS, which regulates that “coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.”

Under this regulation, even if Vietnamese fishermen had encroached upon China’s sea territory, China would not have been entitled to detain them or impose any other form of corporal punishment on them.

Therefore, China was no more entitled to seize Vietnamese fishermen when they were operating in a sea area that belongs to Vietnam’s sovereignty on March 3, Phieu said.

Do not pay any guarantee amount 

As earlier reported, the Chinese side has demanded that each of the detained boats pay 70,000 yuan (US$11,000) in order to be released.

Regarding this issue, Phieu said that the arrest is illegal since it was carried out in the sea area that belongs to Vietnam’s sovereignty, so if the Vietnamese side pays any payment of guarantee in exchange for release, China may cite Estoppel to conclude that Vietnam, through such payment, has recognized Chinese sovereignty over the archipelago.

Briefly, Estoppel is a principle under which a country is not allowed to release any speech or take any actions that are contrary to its previous speeches or actions, Phieu explained.

On March 21, Vietnam’s Foreign Affairs Ministry spokesman Luong Thanh Nghi said in a statement that Vietnam demanded that China immediately and unconditionally set free the 21 Vietnamese fishermen and two fishing vessels that China seized on March 3.

“The seizure of Vietnamese fishermen working in the waters around the archipelago has seriously violated Vietnam’s sovereignty, sovereign rights and jurisdiction rights,” Nghi said.

 Source: Tuoi Tre Online

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