25th Anniversary of UNCLOS 1982 and its Implementation in Vietnam

UNCLOS - the Constitution of the Seas and Oceans

The Convention, which codified and progressively developed international law in the maritime domain, has received wide recognition and support from the international community. By November 25, 2019, the Convention has been ratified by 167 countries and the EU, 150 countries are parties to the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea signed in December 10, 1994, and 90 countries have acceded to the Convention on the Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted on December 5, 1995.

The Convention manages all oceans on the Earth, with all living and non-living resources and all utilities at sea. Based on the principle that "the Land dominates the Sea", the Convention allows a coastal state to extend its sovereignty beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea of 12 nautical miles, termed as the territorial sea. A coastal state has economic sovereignty and jurisdiction over the exclusive economic zone of 200 nautical miles from the baseline and continental shelf, which is the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline from which the breadth of the territorial sea is measured and where the outer edge of the continental margin does not extend up to that distance. In exercising their rights and jurisdictions, coastal states must not infringe upon or result in any unjustifiable interference with navigation and other rights and freedoms of other States in their economic exclusive zones and continental shelves as provided for in this Convention. The Convention provides for the most comprehensive legal regime of maritime zones on the balance of the expansion of sovereignty rights and jurisdiction of the coastal state in the exclusive economic zone and continental shelf with the common interests of the international community in the High Seas and the Area – known as the common heritage of mankind. 

The Convention provides a legal framework for all activities in the oceans and seas, establishing for the first time a set of rules for the oceans and the potential new legal order at sea. The Convention establishes and promotes a legal regime for the management and conservation of marine resources, and protection of the marine environment in a synchronized and effective manner based on an integrated and ecosystem-based approach. After the Convention, a series of initiatives in these areas have been implemented. In implementing UN Conference on Environment and Development (UNCED) Agenda 21 Chapter 17 adopted in 1992,^[i] Resolution 66/288 of July 27, 2012, on "The Future We Want" approved by UN  General Assembly recognizes that oceans, seas and coastal areas form an integrated and essential component of the Earth’s ecosystem and are critical to sustaining it, and that international law, as reflected in the United Nations Convention on the Law of the Sea, provides the legal framework for the conservation and sustainable use of the oceans and their resources for sustainable development, poverty eradication, sustained economic growth, food security and creation of sustainable livelihoods and decent work, while at the same time protecting biodiversity and the marine environment and addressing the impacts of climate change. UN General Assembly Resolution 71/312 of July 6, 2017 "Our oceans, our future" reiterates the commitment to achieve the targets of the Sustainable Development Goal 14, namely “conserve and sustainably use the oceans, seas and marine resources for sustainable development.” Countries are committed to taking action to reduce the rate and impact of pollution on marine ecosystems, including the effective implementation of relevant conventions adopted within the framework of the IMO and the monitoring of related initiatives such as the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities striving to 2025 based on scientific data collected to achieve a significant reduction in marine debris, especially plastic waste, persistent organic pollutants, heavy metals, and nitrogen-based compounds from ships and land-based activities. Attempts to combat rising sea levels, including the International Law Commission's inclusion in its 2019 working program of the topic on "Sea Level Rise in relation to International law", are underway.^[ii]

The prevention of illegal, unreported and unregulated fishing (IUU) is also a goal for UNCLOS implementation. IUU negatively affects the fisheries of the world and of almost all countries. IUU harmfully impacts food safety, connects with transnational organized crimes such as drug trafficking, restricts and suffocates small-scale fisheries of developing countries, and gives way to corruption, money laundering and commercial fraud. The annual amount of illegal fish caught is recorded between 11 and 26 million tons, worth between 11 billion and 23.5 billion USD.^[iii] Based on UNCLOS and the Convention on the Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNSFA-1995), Food and Agriculture Organization (FAO) has further developed new documents such as the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas in 1995, the Code of Conduct for Responsible Fisheries in 1995, International Plan of Action to prevent, deter and eliminate Illegal, Unreported and Unregulated fishing (IPOA - IUU) in 2001, Agreement on port state measures to prevent, deter, and eliminate Illegal, Unreported, and Unregulated Fishing in 2009, Voluntary Guidelines for flag state performance in 2014, and others.

UNCLOS also raises the issue of integration with the Convention on Biodiversity and other legal documents on the management and conservation of marine biodiversity, especially in areas beyond national jurisdiction (BBNJ). According to Decision X/2 of the Tenth Conference of the Parties to the Convention on Biodiversity, by 2020, 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well - connected systems of protected areas and other effective area-based conservation measures. However, there is an absence of a regulatory framework for the marine Biodiversity in Areas Beyond National Jurisdiction. Developed countries, with their exploitation capacities superior to those of developing countries, are reaping huge benefits from the exploitation of resources in areas beyond national jurisdiction, particularly marine genetic resources and materials used to manufacture specific medicines. While  the exploitation and benefit sharing of mineral resources in these areas are under the management of the International Sea-bed Authority (ISA), the exploitation of biological resources on the High Seas has not had a similar mechanism of management yet because in principle the areas beyond national jurisdiction  are the High Seas, where all countries have the same right to use and exploit resources in accordance of Article 87 of UNCLOS 1982, which says "The High Seas are open to all States, whether coastal or land-locked.” In order to continue the promotion of the role of UNCLOS 1982, since June 2004 the issue of BBNJ has been discussed at the United Nations General Assembly within the framework of the Informal Consultative Process Meeting on Oceans and the Law of the Sea (ICP). Based on the results of discussions at the ICP and the Report of the Secretary-General of the United Nations, a Special Working Group (established in 2005-2014) and the Preparatory Committee for BBNJ (established in 2016-2017)^[iv] have developed a draft of the new international convention on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction.

The UNCLOS Convention establishes a regime of marine scientific research and transfer of marine technology, emphasizing the importance of marine science in hunger eradication and poverty alleviation, in contribution to insurance of food security, in marine environment and resource conservation of the world. It is also helpful to understand, predict and respond to natural events and promote sustainable development of oceans and seas through enhanced marine knowledge, sustained research and evaluation of monitoring results, and apply that knowledge to management and decision making. The ocean biogeographic information system recorded 55 million observations of more than 120,000 marine species and described 321 areas of ecological and ecological significance. The First Global Integrated Marine Assessment Program provides a comprehensive scientific understanding of the state of the marine environment, including socio-economic aspects. The United Nations has declared the Decade of Ocean Science for Sustainable Development (2021-2030) to support efforts to reverse the cycle of declining ocean health and to gather stakeholders across the oceans of the whole world behind a common framework to ensure that ocean science can fully support countries in creating improved conditions for sustainable development of the oceans.

UNCLOS protects the freedom of navigation, safety at sea, and promotes cooperation with the International Maritime Organization to create a favorable environment for international maritime traffic. The Convention is the basis for combating crimes at sea, especially suppressing pirates and armed robbery at sea. Under Article 100 of the Convention, all States are required to cooperate to the fullest possible extent in the repression of piracy on the High Seas or in any other place outside the jurisdiction of any State. International cooperation has been demonstrated in the suppression of the Somali pirates, and pirates in the Gulf of Guinea, in the East Asian and Southeast Asian seas. The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) contributed to a 15% reduction of piracy incidents in the first six months of 2018, compared to the same period in 2017.^[v]

The Convention establishes a new effective mechanism for the settlement of maritime disputes. For the first time, the mechanism for compulsory procedure for dispute settlement through conciliation and arbitration has been adopted and applied in practice. The arbitral tribunal established under Annex VII of the Convention contributed to the settlement of the dispute on interpretation and application of Article 121 of the Convention in the South China Sea case in 2016. A similar Tribunal was launched in 2018 in the dispute between Ukraine and Russia. The compulsory conciliation under Annex V of the Convention was successfully applied for the first time in the continental shelf dispute between East Timor and Australia, which led to the Maritime Border Treaty between the two countries signed in March 2018.[vi] Dispute cases submitted to the international Tribunal for the Law of the Sea (ITLOS) are increasingly diverse from fishing, marine environment protection to maritime delimitation. There have been nearly 30 cases that the ITLOS made a decision.

In addition to the International Tribunal for the Law of the Sea, other maritime organizations, such as the Commission on the Limits of the Continental Shelf (CLCS) and the International Seabed Authority (ISA), established by the Convention, have contributed to the maintenance of compliance with provisions of the Convention on specific maritime areas. By 2019, the Authority has entered into 15-year contracts with twenty-seven contractors for exploration for polymetallic nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts in the international seabed area (the Area). The CLCS has issued 30 recommendations for submissions from several coastal states. Summaries of these recommendations are made publicly available in accordance with section 11.3 of Annex III of the Commission Rules of Procedure.

The Convention encourages regional and international cooperation in the management, use of the sea, conservation and exploitation of marine resources, protection of the marine environment, assurance of maritime safety and in other fields. The annual Meetings of States Parties to UNCLOS 1982 are a mechanism to consider coordination at a global level under an integrated ocean and maritime law agenda. The United Nations -Open-ended Informal Consultative Process on Oceans and the Law of the Sea (the Consultative Process) facilitates the exchange of views among a wide range of stakeholders and improves the coordination and cooperation between nations and competent international organizations.

Significant values of UNCLOS to Vietnam’s maritime strategy

UNCLOS and Vietnam’s maritime legal system

UNCLOS has contributed to creating a new shape of Vietnam, a country with a long coastline of more than 3,200 km. According to the principle that “the land dominates the sea”, the coastline allows the coastal state to expand its maritime zones to the maximum extent. Vietnam has a coastline/sea area ratio much higher than the world average. Vietnam is the first country in Southeast Asia to declare a 200-nautical mile exclusive economic zone and a continental shelf on May 12^th, 1977 and ratify the UNCLOS on June 23, 1994, before it came into effect. The geography of Vietnam not only confines more to the S-shaped mainland but also includes more than 700,000 square kilometers of sea area (the waters of Hoang Sa (Paracels) and Truong Sa (Spratlys) are not counted yet).

UNCLOS has promoted the development and improvement of Vietnam's maritime legal system. With effect on January 1, 2013, the Law of the Sea of Vietnam of 2012 is the most comprehensive legal document regulating Vietnam's maritime issues such as definitions and legal regimes of its maritime zones, maritime jurisdiction enforcement and marine economy development. The Law’s provisions are basically consistent and compatible with those of UNCLOS. As per UNCLOS and its 2012 Law of the Sea, Vietnam has introduced a raft of specialized laws, particularly the 1980 Maritime Code, amended in 2005 and 2015; the 1993 Petroleum Law, revised in 2000, 2008 and 2014; the 1993 Law on Environmental Protection, amended in 2014; the 2015 Criminal Code, the 2015 Law on Marine and Island Resources and Environment; the 2003 Fisheries Law, amended in 2017; the 2018 Law on the Vietnam Coast Guard; and the 2009 Law on Militia and Self-Defense Forces.

Dozens of related documents, including government decrees and prime ministerial decisions, can be listed as: (i) Decree 25 of March 6, 2009, on integrated management of natural resources and protection of the environment of sea and islands; (ii) Decree 155 of November 18, 2016, stipulating sanctions against administrative violations in the field of environmental protection; (iii) Decree 104 of December 5, 2012, on regulations on foreign military ships visiting the Socialist Republic of Vietnam; (iv) Decree 102 of November 29, 2012, stipulating the organization and operation of the fisheries surveillance force; (v) Decree 146 of October 30, 2013, on the announcement of sea lanes and traffic separation schemes within Vietnam’s territorial sea; (vi) Decree 58 of May 10, 2017, detailing a number of articles of the Vietnam Maritime Code regarding management of maritime activities; (vii) Decree 142 of December 11, 2017, stipulating sanctions against administrative violations in the maritime field; (viii) Decree 05 of January 16, 2017, stipulating the handling of property sunken along inland waterways and in seaport waters and maritime zones of Vietnam; (ix) Decree 67 of July 7, 2014, on a number of policies for developing the fishery sector; (x) Decree 162 of November 12, 2013, on sanctioning of administrative violations in the maritime zones, on islands and in the continental shelf of the Socialist Republic of Vietnam; (xi) Decree 71 of September 3, 2015, on management of activities in maritime border areas; (xii) Decree 41 of May 15, 2016, on licensing scientific research in the sea of Vietnam; (xiii) Decision 103 of July 12, 2007, promulgating the Regulation on coordination in search and rescue at sea; (xiv) Decision 1690 of September 16, 2007, approving the Vietnam Fisheries Development Strategy to 2020; and (xv) Decision 1037 of June 24, 2014, approving the adjusted master plan on Vietnam's seaport system development up to 2020, with orientations toward 2030.

Development of the country’s maritime strategy

The Convention has driven Vietnam to accede to various international maritime conventions. On April 27, 2006, it ratified the Agreement relating to the implementation of Part XI of the UNCLOS, and on December 18, 2018, it became the 90^th country to ratify the Convention on the Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.

The country has also signed a total of 11 conventions of the International Maritime Organization, including the Convention for the Safety of Life at Sea (SOLAS), Convention for the Prevention of Pollution from Ships (MARPOL), Convention on Civil Liability for Oil Pollution Damage (CLC), Convention on Facilitation of Maritime Traffic (FAL), and Convention on Maritime Search and Rescue (SAR).

UNCLOS provides the basis for Vietnam to develop its own maritime strategy. While the fourth National Party Congress convened in 1976 just mentioned the maritime economy as a new economy,^[vii] the sixth National Party Congress in 1986 identified development of the marine economy as a spearhead industry of the country, stipulating that “step by step comprehensively tap the huge potentials of the marine economy, develop the economy on the islands, take control of the territorial sea and the continental shelf, and exercise sovereignty over the exclusive economic zone.”^[viii]

On February 9, 2007, the 4^th Plenum of the 10^th Central Committee of the Communist Party of Vietnam adopted Resolution 09-NQ/TW on Vietnam’s Maritime Strategy up to 2020 with the overall goal of turning Vietnam into a powerful and prosperous marine country, firmly ensuring national sovereignty and sovereign rights on the sea and islands, and making important contributions to national industrialization and modernization. After 10 years of implementation of the strategy, on October 22, 2018, the 8^th Plenum of the 12^th Central Committee passed Resolution 36-NQ/TW on a new strategy, namely the Strategy for Sustainable Development of the Vietnamese Marine-Based Economy up to 2030, with a vision toward 2045 (2030-45 Strategy).

The adoption of such strategy marked a new period of sustainable use and proper protection of marine resources and environment in Vietnam. The 2030-45 Strategy sets out the goals of “turning Vietnam into a powerful maritime nation; basically achieving the criteria of a sustainably developed marine-based economy; building up a marine ecological culture; proactively adapting to climate change and sea level rise; precluding the pollution and degradation of the marine environment, coastal erosion and saltwater intrusion; restoring and conserving critical marine ecosystems; and advancing marine science to promote sustainable maritime economy.”

The specific objectives of the 2030-45 Strategy are to achieve marine and ocean governance and coastal zone management indicators according to international standards, reaching the level of upper-middle countries in the world. Most of sea- and island-related socio-economic development activities will adhere to the principle of integrated management suitable to the marine ecosystem. Regarding the marine-based economy, the sea-based industries will contribute about 10 percent, and the economy of the 28 coastal provinces and cities will account for 65-70 percent of the country’s GDP. These industries will develop sustainably according to international standards, while exploitation of marine resources will ensure the restorability of marine ecosystems. It is also aimed that the human development index (HDI) of the 28 coastal localities will be higher than the national average and their average income per capita will be 1.2 times or higher than the average national income.

Island inhabitants will have access to adequate essential socio-economic infrastructure facilities, especially electricity, fresh water, communications, health care, education, and etc. As regards marine science, technology and human resources development, Vietnam aims to approach and make the most of scientific and technological advances and emerge as one of the leading countries within ASEAN in the field with high-quality sea-related scientists and researchers.

Regarding marine environment and response to climate change and sea level rise, Vietnam will assess the potential and value of important marine resources. At least half of its maritime zones will be basically surveyed in terms of marine resources and environment and presented on maps of a 1: 500,000 scale. A digitalized database on the sea and islands will be built, shared and updated regularly. The country will strive to prevent, control and significantly reduce marine pollution, and take the lead in the region in minimizing ocean plastic waste. Particularly, in all the coastal provinces and cities, all hazardous wastes and solid household wastes will be collected and treated up to environmental standards. All coastal economic zones, industrial parks and urban areas will be planned and built in a sustainable, ecological and smart manner, ensuring adaptability to climate change and rising sea level, and with centralized wastewater treatment systems meeting environmental regulations and standards. Marine, coastal and island ecosystems will be properly managed and protected. Marine and coastal parks and reserves will account for at least 6 percent of the natural area of ​​the country’s sea; and the area of ​​coastal mangrove forests will be restored to at least the level of the year 2000.

According to the Strategy, the capacity of forecasting and warning natural disasters, earthquakes and tsunamis, observing and supervising the marine environment, climate change, sea level rise, including through application of space technology and artificial intelligence, will reach the level of the advanced countries in the region. Measures will be taken to prevent and limit the impacts of flooding tide, saltwater intrusion and coastal erosion. By 2045, Vietnam is expected to become a powerful marine country with sustainable development, prosperity, security and safety with its marine-based economy making significant contributions to the national economy. It will actively and responsibly participate in addressing international and regional issues of the sea and oceans.

UNCLOS in Vietnam’s protection of maritime sovereignty, sovereign rights and jurisdiction and peaceful settlement of disputes

The UNCLOS also sets requirements for Vietnam to reform the management apparatus and strengthen its maritime law enforcement forces. In 1998, the task of developing a national plan for oil spill incident prevention and response was transferred from the Ministry of Science, Technology and Environment to the National Committee for Air and Sea Search and Rescue, helping the latter strengthen and expand its activities in Vietnam's waters, meeting the requirements of new tasks. In 2007, the Ministry of Fisheries was merged into the Ministry of Agriculture and Rural Development and the Vietnam Administration of Seas and Islands was established within the Ministry of Natural Resources and Environment to enhance the approach of unified, multi-disciplinary and multi-functional management to marine environment.

Vietnam is the first country in the region to build a coast guard force in 1998. Through the  promulgation of the two ordinances in 1998 and 2008 and the law on the coast guard in 2018, this force has become strong enough to reach out to enforce the law in all maritime zones including the Exclusive Economic Zones and continental shelf of Vietnam.^[ix] In addition to the coast guard, Vietnam has restored the fisheries surveillance force and maritime self-defense forces to assist the navy and the coast guard in defending the country’s maritime sovereignty, sovereign rights and jurisdiction. This policy has proven to be righteous in coordinating these forces at sea to prevent illegal activities of foreign ships and rigs, such as China’s Oil Rig HD 981^[x] and Survey Ship Haiyang Dizhi 8, from encroaching on the Vietnamese Exclusive Economic Zone and continental shelves established by UNCLOS.

UNCLOS has kept Vietnam updated with maritime management issues of concern to the international community, such as illegal, unreported and illegal fishing (IUU), biodiversity beyond national jurisdiction (BBNJ), building marine protected areas, and fighting against plastic waste. Vietnam's offshore fisheries development strategy is required to comply with FAO regulations on management and sustainable development of marine fisheries. In October 2017, Vietnam became the second country in the region to be warned with a “yellow card” by the European Union (EU) for IUU activities. Vietnamese fishing vessels have been also subjected to tough measures like ship destruction, fishermen arrests, fines imposition, thus causing strains in consular activities for diplomatic missions and diplomatic relations with regional countries. Other the other hand, Vietnam also faces illegal fishing activities of foreign vessels in its waters. In 2017, Fisheries Law with new regulations on fighting against IUU practices is adopted to address the above-mentioned difficulties.^[xi]

The Convention also extends Vietnam's interests beyond the Bien Dong Sea (South China Sea in international name). Vietnam has opportunities and needs to actively participate in the development of the Convention on the Conservation and Sustainable Use of Marine Biodiversity beyond National Jurisdiction. Vietnam should also be prepared to join the club of countries that exploit the seabed and ocean floor. Vietnam has had a plan to build 15 marine protected areas in Bien Dong Sea and it should actively plan for more. As Vietnam is ranked among the top five countries in the world in generating plastic waste and being affected by rising sea levels, it needs to actively cooperate with countries in the region and around the world to mitigate these risks.

The UNCLOS is an effective legal instrument for Vietnam to protect its maritime sovereignty and its sovereign rights and jurisdiction. The dispute settlement mechanism created by the Convention has increasingly shown its efficacy and superiority. Adhering to the provisions of the Convention, Vietnam is the most successful country in the region to resolve maritime disputes with the most diverse tools applied. It has creatively applied the principle of fairness in the delimitation of the Exclusive Economic Zones and continental shelves with Thailand in 1997, and the Gulf of Tonkin with China in 2000, the delimitation of the continental shelves with Indonesia in 2003; joint development with Malaysia in 1995, joint development and fishing cooperation with China in the Tonkin Gulf in 2004, and Cambodia in 1982. Currently, it is conducting negotiations on the maritime delimitation for the area outside the mouth of the Tonkin Gulf or the delimitation of the Exclusive Economic Zones with Indonesia.

Vietnam expressed its support to the jurisdiction of the Arbitral Tribunal established under Annex VII to the UNCLOS in the Philippines' case against China in the South China Sea and demonstrated its willingness to take all peaceful measures to resolve maritime disputes in the South China Sea with neighboring countries. The letters and spirit of the Convention are also clearly demonstrated in the formulation and implementation of the Declaration on the Conduct of the Parties in the South China Sea (DOC) and in the ongoing negotiation of the Code of Conduct of the Parties in the South China Sea (COC).

UNCLOS has also given opportunities for Vietnam to expand its cooperation capacity in marine scientific research, resource assessment, environmental protection and joint patrols in the Tonkin Gulf, Gulf of Thailand and coordination in suppressing piracy activities. Vietnam has also improved its search and rescue capabilities, taking part in the search for Malaysian MH 370 aircraft which disappeared in 2014 and the rescue of 22 Filipino fishermen in distress in the Spratly area in 2019. It also received support from other countries in the search for its fishing boats struck by typhoons in the Bien Dong and for the search of the crashing Su-30 fighter jet and CASA aircraft in its waters in 2016.

For the past quarter of a century, UNCLOS has provided a comprehensive legal framework for the peaceful, cooperative and sustainable utilization of seas, oceans and marine resources. The Convention asserts that the issues of the seas and oceans are closely interrelated and must be addressed as a whole. The effective and comprehensive implementation of the provisions of the Convention will help the humankind to address current challenges to build a green, peaceful and prosperous planet. The Convention serves as an indispensable legal tool for developing countries, including Vietnam, in the struggle for a fair maritime legal order and sustainable development.

Dr Nguyen Hong Thao is Associated Professor of the Diplomacy Academy of Vietnam.  The article reflects his own opinions on the related issues.
Click here for pdf file