Plenary session of the 30th Conference of States Parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) _Photo: baoquocte.vn
Before UNCLOS in 1982, in 1958, the UN held the First Conference on the Law of the Sea and set out the first international legal framework within which all activities in the ocean and seas must be carried out through the signature of four Conventions: the Convention on the Territorial Sea and the Contiguous Zone; the Convention on the High Seas; the Convention on Fishing and Conservation of the Living Resources of the High Seas; the Convention on the Continental Shelf; and the Protocol concerning the Compulsory Settlement of Disputes(3). This is a great step towards establishing the first international legal order at sea, harmonizing the different interests of coastal states and the common interests of the international community. However, the 1958 Conventions revealed several limitations.
First, maritime delimitation has not been completed as states have not yet achieved consensus on the width of the territorial sea and fishing area. Second, more attention has been paid to protecting the maritime rights and interests of developed countries rather than those of developing and geographically disadvantaged countries(4). Third, the international seabed that lies beyond the continental shelf of coastal states has not been regulated by international regulations. Fourth, the protocol on dispute settlement with a restricted option of submitting a dispute to the International Court of Justice (ICJ) has not been widely accepted(5). Fifth, although the problem of marine degradation and pollution has been foreseen, it regulated only the conservation of marine biological resources in the high seas. This regulation did not fully cover pollution sources, pollution scope as well as sanctions for marine environmental violations.
UNCLOS in 1982 overcame the inadequacies of the 1958 Conventions and provided a fair legal framework that harmonizes the interests of different groups of countries such as those between coastal and land-locked states, or between geographically disadvantaged developed and underdeveloped states.
Specifically, for the first time, UNCLOS completed regulations on delimiting the boundaries of sea areas from internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf, high seas, and Zone (international seabed). In particular, the exclusive economic zone came into existence as an effort of protecting the economic privileges of developing countries and newly independent countries in the national liberation movement in the early 1960s of the twentieth century. This is the first legal regulation taking into account the peculiarities of the natural distribution of marine living resources out to 200 nautical miles(6) and establishing it equally for all countries, except regulations based on traditional and historical fishing rights established by technologically advanced countries before the ratification of the Convention.
In terms of the continental shelf, UNCLOS stipulates the criteria for delimiting the continental shelf boundary based on objective geographical criteria under the principle that the land dominates the sea. Accordingly, the continental shelf is a geological concept, which is the natural extension of the land territory of the coastal states. Therefore, states can at least define the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured(7). However, to ensure fairness and objectivity, the Commission on the Limits of the Continental Shelf (CLCS)(8) has the authority to define a methodology for determining the outer edge of the continental margin of coastal states and only the extent of the continental shelf determined in accordance with the recommendations of CLCS are legally binding and recognized by other countries.
The interests of landlocked or geographically disadvantaged countries are also taken into account when a series of regulations on transit and fish stocks are included in the regulation on exclusive economic zones(9). In addition, the characteristics of archipelagic states were also first considered and codified into the legal status of archipelagic states(10).
In particular, in addition to inheriting the regulation of freedom of the high seas, UNCLOS established for the first time a set of rules known as the Common Heritage of Mankind. In particular, the International Seabed Authority (ISA) was established to develop regulations on resource exploitation in the area and distribute benefits fairly to member states(11). The 1994 Agreement on the implementation of Part XI of UNCLOS was also adopted in 1994 as an additional instrument to manage the exploitation of the Area to UNCLOS.
Settlement of maritime disputes by peaceful means
The UN Charter stipulates the principle of peaceful settlement of international disputes. Consequently, disputes must be resolved through such means as negotiation, investigation, mediation, conciliation, arbitration, courts, and regional and international organizations or any other peaceful means chosen by the parties(12). UNCLOS reaffirmed the spirit of this principle and skillfully combined peaceful means to create a dispute settlement mechanism suitable to the particularities of disputes between state parties concerning the interpretation and application of the Convention.
Accordingly, it gives priority to dispute settlement by any peaceful means of the choice of state parties. UNCLOS requires that States parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement where the mean to address such a dispute is not determined. In addition, it encourages parties to submit the dispute to conciliation as a voluntary choice.
However, an exchange of views is not valid indefinitely. The Convention only requires the parties to exchange views within a time limit(13). Only upon the expiration of that time limit where no settlement has been reached, the dispute shall be submitted to the court or tribunal having jurisdiction. To provide more choice of procedures, UNCLOS stipulates that a State shall be free to choose one of the 4 following means for the settlement of disputes: the International Court of Justice (ICJ), the International Tribunal of the Law of the Sea (ITLOS), an arbitral tribunal constituted following Annex VII and a special arbitral tribunal constituted under Annex VIII(14). Only the ICJ has been established next to the United Nations since 1945, the remaining tribunals were all newly established under UNCLOS. Notably, UNCLOS created a default means of dispute settlement. Accordingly, states parties, which have not agreed on jurisdiction or have not expressed any preference with respect to the means of dispute resolution available under the Convention, shall be deemed to have accepted arbitration in accordance with Annex VII as a compulsory procedure.
These default means not only ensure flexibility in choosing a dispute resolution body but also ensure efficiency when a state can unilaterally submit the dispute to the arbitral tribunal constituted in accordance with Annex VII to settle a dispute with other states concerning the interpretation or application of this Convention. The right to unilaterally commence litigation allowed by UNCLOS is a “package deal” which means once signing the convention, a party is not allowed to reserve any provision and is bound by dispute settlement means provided in Part XV of the Convention as compulsory jurisdiction.
However, to improve flexibility in dispute settlement, and also to reduce the rigidness of the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes 1958 (which many states did not ratify), UNCLOS stipulates optional exceptions and limitations. Accordingly, disputes concerning the interpretation or application of this Convention about the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention are naturally excluded from the compulsory dispute resolution means provided by jurisdictions(15). Disputes relating to sea boundary delimitation, military activities of vessels, or disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it are also not submitted to procedures provided by the Convention(16). Accordingly, a State Party which has made a declaration to exclude these 3 categories of disputes shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party.
Despite being entitled to exclusion right or not to submit any dispute falling within the excepted category of disputes to any procedure in this Convention, member States are still obligated to settle disputes by amicable means, including the obligation to exchange views. In particular, UNCLOS provides that for the excluded category of disputes, a party can unilaterally request the application of a conciliation procedure to make recommendations on dispute settlement means.
It can be said that, with its flexible and creative provisions, UNCLOS provided a multi-layered dispute settlement mechanism to create the freedom to choose dispute settlement means and jurisdiction and to facilitate the dispute settlement process of the parties. In particular, the dispute settlement mechanism of UNCLOS is the first mechanism that provides the right of a member state to unilaterally submit dispute to an international tribunal. Thanks to this provision, many marine disputes between countries have been resolved and conflicts between nations have been reduced. Since the ratification of UNCLOS in 1982, 29 maritime disputes have been settled by the ICJ, 18 disputes by ITLOS, and 11 by an arbitral tribunal constituted under Annex VII.
Sustainable and visionary values
Not only creating a comprehensive and universal regulatory framework, an innovative dispute settlement mechanism promoting peace and stability at sea, UNCLOS also adopts progressive provisions associated with sustainable, forward-looking sea and ocean governance. The obligation to cooperation is at the heart of the Convention when it is mentioned 60 times in 14 different articles such as provisions on cooperation in the field of marine environment protection and preservation, cooperation in marine scientific research, cooperation in science and technology transfer, cooperation in semi-enclosed seas, cooperation in the suppression of crimes at sea...
In the field of protection and preservation of the marine environment, the Convention assigns responsibility and obligations to coastal states within the exclusive economic zone and determines the obligation of cooperation between countries within the high seas. In particular, Part XII of the 1982 UNCLOS is dedicated to providing for the protection and conservation of the marine environment with 11 sections.
In addition to section 1 on general obligations applicable to states, Part XII of UNCLOS contains specific provisions on cooperation at the regional and international levels and provides technical assistance for developing countries in assessing the impact of pollution sources on the marine environment. In particular, it classifies the causes of marine pollution like pollution from land sources, mining activities, etc. to develop regulations to prevent marine environmental pollution at the national and international levels and to determine the relevant parties' responsibility. In addition, it has specific provisions for iced sea areas and determines the relationship with other specialized international treaties in terms of environmental protection.
In the field of marine scientific research, it emphasized the guarantee of harmony between the sovereign rights and jurisdiction of coastal states and the interests of the community. Accordingly, the Convention stipulates that countries and international organizations disseminate information and knowledge resulting from marine research. At the same time, it also requires them to cooperate and create favorable conditions for the exchange of research data and information and for the transfer of knowledge gained from marine scientific research, especially for developing countries as well as for strengthening the capacity building of developing countries in the field of marine research(17).
In particular, being aware of the importance of science and technology, and overcoming inequality between countries in this field, UNCLOS dedicated Part XIV to regulating maritime technology transfer. Consequently, the Convention defines the principle that countries cooperate directly, or through international organizations, in order to actively create favorable conditions for the development and transfer of marine technology in fair and reasonable conditions. It places particular emphasis on the need for technical assistance by developing, landlocked or geographically disadvantaged states in the exploration, exploitation, protection, and management of marine resources, protection and preservation of the marine environment, marine scientific research, and other activities undertaken in a suitable marine environment to promote the social and economic progress of developing countries. It also encourages the establishment of national and regional marine research centers to promote marine scientific research in order to use and preserve marine resources for the achievement of Sustainable Development Goals.
Towards the goal of conserving precious marine genetic resources for sustainable development in the future, at present, states members of the Convention are in the process of negotiating and signing an agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction(18). At the same time, along with technological advances, new problems such as the negative impacts of climate change, sea level rise, and the impact of epidemics will be discussed to supplement the provisions of the Convention.
Vietnam - a responsible member of UNCLOS 1982
Right after the unification of the country did Vietnam actively participate in the third United Nations Conference on the Law of the Sea. At the same time, Vietnam also issued a Declaration on the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf on May 12, 1977(19). Although published in 1977, the content of this Declaration is completely consistent with UNCLOS. In 1994, Vietnam was the 63rd country to ratify the Convention before it came into force in December 1994. The Resolution of Vietnam’s National Assembly clearly affirmed that by ratifying UNCLOS in 1982, Vietnam expresses its determination to join the international community in building a just legal order, encouraging development and cooperation at sea(20).
After becoming an official member of the Convention, Vietnam has issued many domestic legal documents to concretize its provisions in such many fields as territorial boundaries, navigation, fishery, petrol, maritime environmental protection, etc. In particular, in 2012, Vietnam promulgated the Law of the Sea of Vietnam with most of the contents compatible with UNCLOS.
To fulfill its obligations under UNCLOS, after 15 years as a signatory, Vietnam submitted its extended continental shelf in the northern area to the Commission on the Limits of the Continental Shelf (CLCS)(21) in 2009. In addition, Vietnam also cooperated with Malaysia to submit to the CLCS the boundary beyond the common extended continental shelf in the southern area of the South East Sea, where the two countries have overlapping and undefined continental shelves(22).
In the spirit of mutual equality, understanding and respect, and respect for international law, especially UNCLOS, Vietnam has successfully demarcated overlapping seas with its neighboring countries. Together with maritime delimitation, Vietnam and China also reached an agreement on fisheries cooperation in the Gulf of Tonkin, thereby establishing a joint fishing cooperation area and joint patrol to prevent crime and other illegal activities at sea(23).
Until now, maritime delimitation agreements between Vietnam and neighboring countries have been implemented in accordance with the principle of peaceful settlement of international disputes, in line with international law, especially the 1982 UNCLOS, contributing to peace, stability, and development in bilateral relations. In addition to maritime delimitation, Vietnam has also reached an agreement with Cambodia on historic waters in the undefined sea area between the two countries. Vietnam and Malaysia have also established a joint oil and gas exploitation area in the area of an undefined overlapping continental shelf...
In sea areas that are not yet demarcated with neighboring countries such as the overlapping area with Cambodia, the trilateral overlapping area between Vietnam, Malaysia, and Thailand, or potentially overlapping area between Vietnam and Brunei, as well as between Vietnam and the Philippines(24), Vietnam always respects the sovereign rights and jurisdiction of coastal countries for the exclusive economic zone and continental shelf. While promoting negotiations to find a basic and long-term solution, Vietnam supports the maintenance of the status quo, objecting to actions to complicate the situation and use force or threaten to use force.
Regarding the two archipelagos of Hoang Sa (Paracels) and Truong Sa (Spratly), on the one hand, Vietnam affirms that it has enough historical and legal evidence to prove Vietnam's sovereignty over these two archipelagoes, on the other hand, advocates the distinction between the dispute settlement over the Hoang Sa and Truong Sa archipelagoes and the protection of the sea areas and continental shelf under Vietnam’s sovereignty and jurisdiction and on the principles and standards of UNCLOS. On that basis, Vietnam has signed and implemented the Declaration on the Conduct of Parties in the East Sea (DOC), and is actively working with China and member states of the Association of Southeast Asian Nations (ASEAN) to negotiate a Code of Conduct in the South China Sea (COC).
On October 22, 2018, the Resolution of the 8th plenum of the 12th Vietnamese Communist Party's Central Committee on "Strategy for sustainable development of Vietnam's marine economy to 2030, with a vision to 2045" was issued, defining that "The sea is an integral part of the sacred sovereignty of the Fatherland, a living space, a gateway for international exchanges which is closely associated with the cause of national construction and defense"(25). In addition to the objectives of developing the blue economy, conserving biodiversity, preserving and promoting marine historical and cultural traditions, acquiring advanced and modern science and technology, and using high-quality human resources, the Strategy defines a vision for 2045 that Vietnam will actively and responsibly participate in solving international and regional issues in the seas and oceans.
In this spirit, in 2021, Vietnam and 11 countries founded the Group of Friends on UNCLOS in order to create an open and friendly forum for exchanging views on sea and ocean issues, thereby contributing to the full implementation of UNCLOS(26). Vietnam will continue to actively participate in multilateral forums and discuss emerging issues of the seas and oceans such as biodiversity conservation in areas beyond national jurisdiction, response to impacts of climate change on seas and oceans, governance of marine activities in the context of new non-traditional security challenges like the COVID-19 pandemic, human trafficking, illegal migration, etc.
Often referred to as a “Constitution on the Oceans,” the signing of UNCLOS 40 years ago was a historic milestone in the development of international law, creating a comprehensive legal framework for peaceful maritime governance, stability, promoting cooperation among nations, and sustainable development of seas and oceans. The United Nations - the multilateral organization with the largest number of members in the world today - has repeatedly recognized the role of UNCLOS and emphasized the need to comply with the Convention in all activities at seas and oceans(27). In its high-level declarations, ASEAN also always emphasizes the universal value and importance of implementing UNCLOS to maintain peace, stability, and peacefully manage and settle maritime disputes in the region. As a coastal state, and an active and responsible member of the international community, Vietnam has always affirmed that UNCLOS plays a key role in national sea economic management and development. UNCLOS functions as the basis for Vietnam to peacefully settle maritime disputes with neighboring countries, towards peaceful and sustainable management of the East Sea.
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(1) Gabriele Goettsche-Wanli: “The United Nations Convention on the Law of the Sea: Multilateral Diplomacy at Work”, No. 3, Vol. LI, United Nations, December 2014, https://www.un.org/en/chronicle/article/united-nations-convention-law-sea-multilateral-diplomacy-work
(2) See: List of States that signed and ratified UNCLOS in 1982, https://www.un.org/depts/los/reference_files/UNCLOS%20Status%20table_ENG.pdf
(3) Full text of four Conventions and 1958 Protocol on the Law of the Sea, https://legal.un.org/avl/ha/gclos/gclos.html
(4) Article 2 of the Continental Shelf Convention provides that States may determine the continental shelf up to the limit according to their exploitability. This criterion is completely dependent on the level of science-technology, and the strength of developed countries.
(5) The Protocol concerning the Compulsory Settlement of Disputes has only been ratified by 18 countries. In addition to conferring compulsory jurisdiction on the ICJ, the Protocol also provides choices for the jurisdiction of other courts and arbitrations if states reach a consensus. However, the ultimate goal is to establish compulsory jurisdiction to settle maritime disputes. See: “List of ratified countries”, https://treaties.un.org/Pages/showDetails.aspx?objid=08000002800332b0
(6) Before the ratification of 1UNCLOS, in Santiago declaration of 1952, three Latin American countries Chile, Ecuador, and Peru have claimed for the first time 200 mile limit of territorial waters with exclusive fishing rights as this is usually a shallow sea area with warm temperatures, suitable for the growth and development of fish species. See: S. N. Nandan: “The Exclusive Economic Zone: A Historical Perspective”, https://www.fao.org/3/s5280T/s5280t0p.htm
(7) The extended continental shelf may be as wide as the natural continental shelf, either 350 nautical miles from the baselines or 100 nautical miles from the 2,500m isobath. The definition of the continental shelf is stipulated in Article 76 of UNCLOS 1982
(8) The Commission on the Limits of the Continental Shelf (CLCS) is one of three bodies established under UNCLOS to review submissions of the continental shelf boundaries beyond 200 nautical miles by countries. The Commission consists of 21 members, representing 5 geographical regions
(9) The Convention is dedicated to Part X with 9 articles from Articles 124 - 132; two provisions in the Law on the Exclusive Economic Zone (Articles 69, 70) and Article 254 on marine scientific research to stipulate the rights of geographically disadvantaged and landlocked states
(10) An archipelagic State, because of its peculiarity of being composed only of an archipelago, but geographically divided between different islands, shall be entitled to its own statute, provided for in Part IV, from Article 46 - 54. Accordingly, An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. In addition, archipelagic states are entitled to a special legal status with archipelagic waters (water areas enclosed by archipelagic baselines).
(11) The International Sea-Bed Authority is the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area for the purpose of the common heritage of mankind on the basis of Regulations on the organizational structure, powers, and functions of the Authority as defined in Part XI and the Agreement on Implementation of Part XI of UNCLOS in 1982.
(13) Article 33 of the UN Charter
(13) The obligation to exchange views is provided for in Article 283 of UNCLOS 1982. The reasonable time is determined according to the circumstances of each specific case.
(14) As defined in Article 287 of UNCLOS 1982. Arbitration established under Annex VII and Annex VIII are both ad hoc arbitrations. Arbitration established under Annex VII have general jurisdiction over all types of disputes relating to the interpretation and application of UNCLOS 1982, while Arbitration established under Annex VIII have jurisdiction only over disputes relating to marine scientific research.
(15), (16) As defined in Article 297 of UNCLOS 1982
(17) Article 244 of UNCLOS 1982
(18) To date, the negotiation process has been held at 5 intergovernmental plenary sessions. See: https://www.un.org/bbnj/
(19) The full text of the Declaration is saved in the United Nations database on maritime claims of states, https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/VNM_1977_ Statement.pdf
(20) Point 2, Resolution of the National Assembly of the Socialist Republic of Vietnam on the ratification of UNCLOS 1982 on June 23, 1994
(21) Vietnam delivered its submission on the Limits of the Continental Shelf in Respect of the North Area in the East Sea to CLCS on May 7, 2009, https://www.un.org/depts/ los/clcs_new/submissions_files/submission_vnm_37_2009.htm
(22) The joint submission by Vietnam and Malaysia on the Limits of the Continental Shelf in Respect of the North Area in the East Sea was delivered on May 6, 2009, https://www.un.org/depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm
(23) Agreement on Fisheries Cooperation in the Gulf of Tonkin between the Government of the Socialist Republic of Vietnam and the People's Republic of China, 2000, http://biengioianhtho.gov.vn/medias/public/Archives/head/Cac%20nuoc%20bien%20gioi/UBBG.Viettrung09.pdf
(24) After Vietnam’s submission on the Limits of the Continental Shelf in Respect of the North Area in the East Sea, the Philippines sent a note expressing concern that Vietnam's continental shelf might overlap with the continental shelf of the Philippines. However, so far, the overlapping area has not been identified specifically. Similarly, Vietnam's extended continental shelf may also create overlapping areas with Brunei
(25) Documents of the Eighth Conference of the 12th Central Committee, Office of the Party Central Committee, Hanoi, 2018, p. 81
(26) The UNCLOS Group of friends was the first initiated by Vietnam, which lobbied for the establishment together with Germany and joined the team of 12 core members, namely Argentina, Canada, Denmark, Germany, Jamaica, Kenya, the Netherlands, New Zealand, Oman, Senegal, South Africa, and Vietnam. To date, 115 countries representing all geographical areas have joined the Group,
(27) See: Remarks of the President of the 76th Session of the United Nations General Assembly, Abdulla Shahid on April 29, 2022, https://www. .un.org/pga/76/2022/04/29/40th-anniversary-of-the-adoption-of-the-united-nations-convention-on-the-law-of-the-sea-unclos/
