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Vietnam should sue China for using force to settle disputes: lawyer

As China has illegally deployed an oil rig in Vietnam’s waters and used ships to attack Vietnamese vessels that have been trying to drive the rig and its guarding ships away, Vietnam should sue China to an international court for "using force in settling disputes," a senior Vietnamese lawyer has said.
As China has illegally deployed an oil rig in Vietnam’s waters and used ships to attack Vietnamese vessels that have been trying to drive the rig and its guarding ships away, Vietnam should sue China to an international court for “using force in settling disputes,” a senior Vietnamese lawyer has said.

Lawyer, Prof. Dr. Nguyen Van Nam, a senior researcher in international law, made the advice in an interview with VnExpress newspaper on how to sue China for violating Vietnam’s sovereign rights and jurisdiction over its exclusive economic zone and continental shelf by placing its oil rig Haiyang Shiyou 981 since May 1.

Specifically, Vietnam can file a suit against China at the International Tribunal for the Law of the Sea for using force against Vietnamese ships that have been protecting Vietnam’s territorial waters from being violated by the Chinese rig and its guarding ships, Dr. Nam said.

The International Tribunal for the Law of the Sea was established under the 1982 United Nations Convention on the Law of Sea (UNCLOS), according to the lawyer.

China’s use of force – in which Chinese ships have rammed or fired their water cannons at Vietnamese vessels, causing injures to 12 Vietnamese fisheries surveillance officers and damaged several boats so far – has violated Article 2, paragraph 3, of the Charter of the United Nations, Dr. Nam said.

This paragraph reads: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

China’s use of force has also violated Article 279 of UNCLOS, which reads: “States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.”

“We should base our lawsuit on these two legal foundations to avoid the fact that China has applied another article of UNCLOS to exclude UNCLOS’ s jurisdiction over all kinds of disputes involving China in relation to sovereignty over seas and islands. ”

China’s exclusion of jurisdiction

Pursuant to Article 287(1) of UNCLOS, when signing, ratifying, or acceding to UNCLOS, a State may make a declaration choosing one or more of the following means for settling such disputes:  the International Court of Justice in The Hague, The Netherlands; the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany; ad hoc arbitration (in accordance with Annex VII of UNCLOS); or a “special arbitral tribunal” constituted for certain categories of disputes (established under Annex VIII of UNCLOS).

“However, under a regulation of International Court of Justice, the court will only handle a suit when the related parties involved recognize the court’s jurisdiction.

“Therefore, if China rejects such a jurisdiction when Vietnam sues it to the court, the suit will be not handled,” he said.

Meanwhile, the UNCLOS will handle any suit despite a refusal by any of the related parties, Dr. Nam said.

However, article 298, paragraph 1, of the UNCLOS allows “States and entities, when signing, ratifying or acceding to this Convention, or at any time thereafter, to declare that they exclude the application of the compulsory binding procedures for the settlement of disputes under the Convention in respect of certain specified categories kinds of disputes.”

Making the best use of this regulation, China has issued a valid announcement to exclude the jurisdiction of UNCLOS over all sovereignty disputes related to seas and islands, Dr. Nam said.

“In order to avoid such exclusion of jurisdiction by China, we should sue China for ‘using force in settling disputes’ based on Article 279 of UNCLOS and on Article 2, paragraph 3, of the Charter of the United Nations, as above mentioned,” the researcher said.

He also emphasized that even Vietnamese fishermen who have suffered damages caused by Chinese ships that have violated Vietnam’s waters can personally file their suits against China at ITLOS.

Such lawsuits will be based on Article 20, parapraph 2, of UNCLOS, which reads: “The Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case,” he explained.