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Friday, October 7, 2022

Building a law on maritime zones of Vietnam

Updated: 08:35’ - 24/08/2006

Dr. NGUYEN HONG THAO

The XXIth century is considered one of seas and oceans. In the trend of the globalization, when we are facing great challenges of population boom, land resource exhaustion, petrol price escalation and environmental catastrophes, oceans and seas have been considered the end and means of humanity. Advancing toward the seas and oceans is an inevitable trend. Any country that wants to be a powerful state must firstly be a coastal state and have its own maritime strategy and interests. Activities of advancing toward the seas and oceans have become more and more complicated and diversified, with overlapping and conflicting local, sector, national, regional and international interests. Given such opportunities and challenges, a nation advancing toward to the seas and oceans will only achieve success if it has national laws and regulations in conformity with international law and the new legal order at the seas established by the United Nations Convention on the Law of the Sea (the 1982 Convention).

Over the past years, Vietnam has enacted a new Maritime Code, the Law on Aquatic Resources and other sea-related laws and regulations. However, advancing toward Bien Dong (East Sea or South China Sea) requires a comprehensive law on maritime zones and activities. That law will have the main role of defining the scope and legal status of Vietnamese maritime zones and continental shelf, identifying the role, functions and subjects of State maritime management, ensuring the effective safeguarding of national sovereignty and interests and sustainable development, promoting international cooperation, and exploiting the advantages and potentials of the sea for national development. The building of a law on maritime zones of Vietnam has become an objective and necessary requirement. It is an integrated part of the National Development Strategy to realize the tasks set in the Resolution of the Xth National Congress of the Communist Party of Vietnam. 

1. The United Nations Convention on the Law of the Sea 1982 and experiences of countries in making law on management of the seas

The United Nations Convention on the Law of the Sea of 1982 came into force on November 16, 1994. With 320 articles, 17 parts and 9 annexes, more than 1,000 legal norms, the Convention has been actually considered a Constitution on the Oceans and Seas of the international community. It constitutes one of the most significant achievements of international law in the XXth century. This is the first time in history that the 1982 Convention has given a legal framework to define internal waters, 12 miles territorial seas, 24 miles contiguous zones, 200 miles economic exclusives zones and continental shelves. There are 151 coastal states in the world with 400 marine boundaries which need to be delimitated, with only one-third of them having been settled. In the 20 coming years, the issue of maritime delimitation and settlement of disputes will continue to be a hot issue in the world. The 1982 Convention also regulates all maritime activities from use and management of marine resources, living and non-living, marine scientific research, artificial islands, freedom of navigation and overflight to marine environment protection, exploitation of seabed, maritime security, prevention of maritime crime or international cooperation at the sea; from the sovereignty, sovereign rights and jurisdiction of coastal states to the rights of other countries or even landlocked states. Being members of the 1982 Convention, coastal states have the obligation to implement it either directly or by translating the 1982 Convention provisions into domestic laws and regulations. In order to protect national maritime interests and advance toward to the seas in conformity with the 1982 Convention, most coastal countries have expressed their adoption of the 1982 Convention by enacting their highest legal document - law.  

2. The Vietnamese position brought up by Bien Dong

Bien Dong is a semi-enclosed sea surrounded by China and Southeast Asian countries. It has the following features to make its own strategic position:

- It is a semi-enclosed sea surrounded by the most states after the Mediterranean.

- It is the largest sea out of the six largest in the world. The area of Bien Dong is approximately 3.5 million km2. Its maximum width is 600 nautical miles (about 1.200 km).

- This is the only sea joining the Indian and the Pacific Oceans. It has also a network of active sea lanes at the second place in the world. About 70% imported oil of Japan, the Republic of Korea and China from the Middle East is transported across Bien Dong and an equal quantity of goods in return to make the trade balance. There are 150 - 200 kinds of ships crossing the Malacca strait per day, 50% of which have a capacity of over 5,000 gross tons and more than 10% of which have a capacity of over 30,000 gross tons.

- This is the only sea in the world having two largest archipelagic states, Indonesia and the Philippines, and two large archipelagoes Hoang Sa (Paracels) and Truong Sa (Spratlys) in the middle.

From the standpoint of the 1982 Convention, Bien Dong is a distinguished area, consisting of all the concerned contents of the 1982 Convention such as coastal state, archipelagic state, landlocked state, geographically disadvantaged state, maritime zones under national jurisdiction, historic waters, fishing grounds, marine delimitation, enclosed and semi-enclosed seas, international straits, cooperation in management of living resources, highly migratory species and trans-boundary stocks, joint exploitation, protection of marine environment, marine scientific research, anti-piracy, navigation safety, search and rescue, etc. The existence of the continental shelf and exclusive economic zone conceptions makes the whole Bien Dong overlapped by sovereignty and jurisdiction claims of coastal states. The consequence is that many states which were used to be distant from each other now share the common maritime boundary and making Bien Dong a place of most complicated disputes with most states concerned. Ten out of 16 maritime boundaries in the region remain unsettled, not to mention the disputes over the sovereignty on Hoang Sa and Truong Sa archipelagos. The maritime disputes in Bien Dong have affected not only the relations of concerned states and benefits of other states but also the peace, stability and cooperation in the development of the region and the world.

Stretching along Bien Dong, across 16 latitudes, (between 230 Parallel and 70 Parallel), Vietnam has a specific marine position:

- Vietnam is one of regional coastal states having the high maritime index (the length of the coast/land area). With the coast length of 3,260 km, this index for Vietnam is 0.01, highest in Indochina, higher than Thailand (0.007) and approximates to Malaysia. Land area of Vietnam is approximately 330,363 km2. The country has one km of coast for every 100 km2 of land area, while the average rate in the world is 600 km2/1 km. Vietnam has 28/64 coastal provinces and cities, 125 coastal districts, accounting for 17% of the country area.

- With a long coast, and Hoang Sa and Truong Sa archipelagos in the middle of Bien Dong, Vietnam has favorable conditions for extending its maritime zones under the international law of the sea. Vietnam is a coastal state with sea area three times broader than land area.1

- Most of the sea lanes across Bien Dong pass the maritime zones under the jurisdiction of Vietnam. The country has a strong position to develop seaports, navigation services and search and rescue in the sea.

- With 2,773 coastal islands of about 1,630 km2, Vietnam has most islands in the region after the two archipelagic states Indonesia and the Philippines2. These islands are unevenly scattered.

- Vietnam is a transit state to a landlocked state (Laos), states and territories deep in the continent (Cambodia, Thailand, Yunnan - China).

From the standpoint of the 1982 Convention, Vietnam has the advantage to extend the exclusive economic zone and the continental shelf to develop maritime economy and maritime transport. Meanwhile, Vietnam also faces certain great challenges. It has seven out of 16 marine disputes in Bien Dong to be settled with opposite and adjacent states, including the archipelagic states. It is also involved in the sovereign dispute over Hoang Sa and Truong Sa archipelagos, especially when some countries take this chance to have unreasonable claims to the huge sea surrounding them not in conformity with the 1982 Convention; and most other marine issues existing in Bien Dong. These issues require Vietnam to develop and implement its marine legal system including a law on maritime zones as soon as possible.

3. Status of marine management in Vietnam

Before the 1982 Convention came into effect, Vietnam has learnt and applied the provisions of the 1982 Convention with creativity to broaden and protect its maritime interests. The Governmental Declaration of 1977 on the Vietnamese maritime zones and the Governmental Declaration of 1982 on the baselines for measuring the breadth of the territorial sea constitute the fundamental legal basis for building the legal system on the Vietnamese maritime zones and activities.

On June 23, 1994, the IXth National Assembly at its 5th session ratified the Resolution to adhere to the United Nations Convention on the Law of the Sea of 1982. The Resolution expresses the determination of Vietnam to join the international community in the establishment of an equitable legal order in order to promote maritime development and cooperation.

The Resolution reaffirms the sovereignty of the Socialist Republic of Vietnam over its internal waters and territorial sea and its sovereign right and jurisdiction in the contiguous zone, the exclusive economic zone and the continental shelf based on the provisions of the 1982 Convention and principles of international law and calls on other countries to respect the abovesaid rights of Vietnam. The National Assembly reiterates the Vietnam’s sovereignty over Hoang Sa and Truong Sa archipelagos and its position to settle those disputes relating to territorial claims as well as other disputes in Bien Dong through peaceful negotiation in the spirit of equality, mutual respect and understanding, and with due respect of international law, particularly the 1982 UN Convention and of sovereign rights and jurisdiction of the coastal states over their respective continental shelves and exclusive economic zones; the concerned parties should, while exerting active efforts to promote negotiations for a fundamental and long-term solution, maintain stability on the basis of the status quo, refrain from any act that may further complicate the situation and from the use of force or threat of force. The National Assembly emphasizes that it is necessary to identify between the settlement of disputes over Hoang Sa and Truong Sa archipelagos and the defense of the continental shelf and maritime zones failing under Vietnam’s sovereignty, sovereign rights and jurisdiction based on the principles and standards specified in the 1982 Convention.

In the past years, since the initiation of the open-door policy in 1989, Vietnam has made many efforts to build a diverse and perfect marine legal system in the spirit of 1982 Convention. These documents have contributed to creating a stable legal order in maritime zones of Vietnam and regulating activities in the field of marine transportation and communication, aquatic products, petroleum, environment protection and other fields. Vietnam has also taken contents of the 1982 Convention into consideration in making its decisions to accede to a series of treaties relating to the sea.

However, the marine legal system of Vietnam still shows some shortcomings:

- Vietnam has not had any supreme legal document (law) on maritime zones and its legal status, serving as a foundation for maritime activities. The two Declarations of 1977 and of 1982 are only governmental-level documents and have shown some shortcomings compared with the content of the 1982 Convention.

- The scope of maritime zones of Vietnam has not been stipulated and clearly defined to lay the foundation for maritime delimitation, maritime dispute settlement, maritime management and cooperation.

- The system of marine legal documents is provisional, only meets the immediate requirements. While the sea is a unified environment, many legal documents drafted and issued by ministries, branches and localities are overlapping and even contradictory. Vietnam has an abundance of general regulations but lacks specific regulations in each field as well as coordination regulations. The Chanchu typhoon in May 2006 showed a weakness of Vietnam’s legal system and management in offshore zones. The management capacity of Vietnam seems to concentrate only on coastal zones of 30 meters deep. 

- Some regulations in the marine legal system are not compliant with the maritime treaties to which Vietnam has signed or acceded.

4. Draft Law on maritime zones of Vietnam

The Draft Law aims to clearly identify the scope of maritime zones and subjects of its regulation; to protect national sovereignty, sovereign rights and jurisdiction and legitimate interests of Vietnam at the sea; to reinforce the use, exploitation, protection and state management at the sea; to enhance international cooperation; and to maintain peace and stability in the region and in the world.

The Draft Law has been formulated on the following principles:

- To ensure consistency with the Constitution, laws and regulations of the Socialist Republic of Vietnam and with international law.

- To legislate and concretize the policy of the Party and the State on national defense and socio-economic development, particularly on the marine management in the new situation.

- To create a high legal foundation for identifying the scope and legal status of Vietnamese maritime zones in order to protect the sovereignty and sovereign rights, jurisdiction, territorial integrity, safety and security in Vietnamese maritime zones, to broaden international relations for the purpose of socio-economic development and to create a peaceful and stable environment in the region.

- To establish principles for and make fundamental provisions on the legal status and marine management work in accordance with the situation and specific features of Vietnamese maritime zones.

The Draft Law has been formulated on the following bases:

- The Constitution of the Socialist Republic of Vietnam;

- The Resolution of the National Assembly on ratification of the 1982 Convention; guidelines of the Political Bureau and the Government; Resolutions of IXth and Xth Party Congresses; Resolution No. 03-NQ/TW on May 6, 1993, of the Political Bureau on some tasks of marine economy development in the coming time; Directive No. 20-CT/TW of September 22, 1997, of the Central Party Committee on strengthening marine economic development toward industrialization and modernization;

- Prime Minister Directive No. 399-CT/TTg of August 5, 1993, on the Plan on implementation of the Resolution of the Political Bureau on some tasks of marine economy development in the coming time, and Directive No. 171/TTg on March 18th, 1995, on the tasks to be performed following the Conference on “Marine economic development”;

- Government Declaration of May 12, 1977, on the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf; Government Declaration of November 12, 1982, on the baselines for measuring the breadth of the Vietnamese territorial sea;

- The Law on Negotiation, Conclusion and Implementation of Treaties, the Law on National Boundary, the Maritime Code, the Law on Petroleum, the Law on Aquatic Resources, the Law on Minerals, the Law on Environment Protection; the Ordinance on the Border Guard, the Ordinance on the Marine Police, Decree No. 30/CP of January 29, 1980, on the status for foreign ships operating in maritime zones of the Republic Socialist of Vietnam, Decree No. 191/2004/ND-CP of November 18, 2004, on management of fishing activities of foreign fishing vessels in maritime zones of Vietnam, Decree No. 36/1999/ND-CP of June 9, 1999, on handling of administrative violations in the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of the Socialist Republic of Vietnam, Decree No. 41/2001/ND-CP of July 24, 2001, on cooperation in the state management of activities of the Marine Police and cooperation amongst the forces  operating in maritime zones and the continental shelf of the Socialist Republic of Vietnam, Decree No. 242-HDBT of August 5, 1991, on marine scientific research activities of foreign ships in the maritime zones of Vietnam, Decree No. 27/2005/ND-CP of March 8, 2005, detailing and guiding the implementation of a number of articles of the Law on Aquatic Resources; and Prime Minister Decision No. 103/2005/QD-TTg of March 12, 2005, on response to oil spills, and other concerned legal documents;

- The 1982 Convention and treaties to which Vietnam is a contracting party;

- Experience on the marine management and protection of coastal localities and sectors;

- Foreign countries’ experience on marine management and protection and laws of the sea.

Being a framework law, the Draft Law governs all marine issues; identifies the scope of maritime zones and their legal status, marine activities in those maritime zones such as petroleum, fisheries, marine scientific research, transfer of marine technology, and protection of marine environment

The scope of regulation of the Draft Law is limited to defining the maritime zones under the sovereignty, sovereign rights and jurisdiction of Vietnam and regulating marine activities in those maritime zones. It does not regulate other marine activities of Vietnam in the areas outside Vietnamese jurisdiction, such as those on the high sea.

The Draft Law has been built in the spirit of “transforming the 1982 Convention provisions into national law,” supplemented with domestic regulations to make it conformable with the demands and characteristics of Vietnam but not contrary to international law and practice. On the other hand, the Draft Law stipulates that treaties will apply in cases not yet regulated by the national law.

The Draft Law defines the limits of internal waters, 12 miles territorial seas, 24 miles contiguous zone and 200 miles economic exclusive zone. The outer limit of the continental shelf is identified by the method of thickness of sedimentary rocks or by the distance from the foot of the continental shelf. The Draft Law also provides for procedures and competence to define the scope of zones and the bases for maritime delimitation. It also mentions maritime limits between coastal provinces. 

Particularly, the Draft Law attempts to settle those problems relating to the Vietnamese baselines: The Government Declaration of November 12, 1982, on the baselines for measuring the breadth of the Vietnamese territorial sea has traced the baselines from the point 0 in the Vietnam-Cambodia historic water to the Con Co Island. This baseline system has not had the terminus points in the Gulf of Tonkin and in the Gulf of Thailand while leaving the baselines for Hoang Sa and Truong Sa archipelagos to be defined at the appropriate time. Some Vietnamese base points were defined before the 1982 Convention enters into force. Therefore, they should be reviewed in conformity with the provisions of the 1982 Convention.

At present, Vietnam has 11 forces in charge of maritime patrol and supervision in different fields and sectors (Border Guard, Marine Police, Navy Force, Customs, Quarantine, Police, Navigation Inspection, Navigation Safety, Environment Inspection, Fishing Inspection and Marine Register). The division of their competence is a complicated issue and has been dealt with in some legal documents. The Draft Law clearly defines the geographic scope of operation for each force, especially the Border Guard and Marine Police, mechanisms of cooperation at sea, and affirms the building of a multi-functions Marine Police capable of controlling various activities at the sea, especially in the exclusive economic zone and the continental shelf.

There are now about 15 ministries directly involved in the marine management in Vietnam. Many of them have overlapping functions and duties. Nevertheless, there is no sole agency to perform integrated marine management. Lack of an overall plan has caused conflict of interests amongst sectors, branches and localities. It has also impeded the effective exploitation of the marine potential for economic development and the combination of marine economy development with national defense and protection of natural resources. Vietnam needs to reorganize its marine management apparatus and raise the capacity and effectiveness of marine management agencies and forces. The country can reinforce the traditional model of organization by defining clearly duties and competence for each ministry, branch or province to avoid overlap in their activities. Otherwise, Vietnam can choose to follow the new trend in the world by establishing a sole state body in charge of marine issues.  From the practice of marine management, there are now some proposals from ministries, provinces and experts to set up in Vietnam a body in charge of marine affairs. This body may be a ministry or an inter-ministerial commission. Despite of its advantages, this model is still controversial because in terms of form, it is against the current trend of state apparatus reform aimed at cutting the number of intermediate agencies and it is difficult to identify functions as well as organizational structure of such ministry.

Therefore, the Draft Law should settle the debate on how to organize marine management, either establishing a separate ministry in charge of state management at the sea or delegating marine state management to some ministries (Ministry of Fisheries, Ministry of Home Affairs, Ministry of Environment and Ministry of Foreign Affairs).

The Draft Law should also lay down orientations for setting up a system of marine management bodies from the central to the local level, which will conduct research, propose and promulgate policies and regulations on the use of water surface, waters, seabed and its subsoil of Vietnamese sea for economic, commercial, production and other purposes.

Vietnam needs to promote the role of judicial bodies (people’s procuracies and people’s courts) in handling law-breaking acts at sea, especially those involving foreign elements.

To deal with overlapping and contradictory regulations, the Law on Maritime Zones should be the supreme legal document on the sea. It should regulate the relationship between domestic laws and international treaties. If there is a contradiction between provisions of Vietnamese law and those of international treaties to which Vietnam is a contracting party, then the provisions of such treaties will prevail.

The Draft Law should also regulate the relationship between specialized legal documents promulgated before the entry into force of the Law by annulling or revising these documents to conform with the provisions of the Law and the 1982 Convention.

Formulating the Law on Maritime Zones of Vietnam is a necessary step to make the country more powerful in the process of industrialization, modernization and international integration. That Vietnam will become a small or big country will partly depend on the process of advancing toward the sea. To establish and enforce a new legal order at the sea in conformity with the 1982 Convention constitutes the best way for defending our legitimate interests and for using and properly exploiting national marine resources.-

Notes:

1 Total land area of coastal states in ASEAN is 3.76 million km2 while total water area in ASEAN is 8.94 million km2: Sea area/land area: 5/2

See at Chia Lin Sien, Protecting Environment of ASEAN from Ship-Generated Oil Pollution and Japan’s Contribution to the Region, Institute of Developing Economies, Singapore 1994, and p. 8.

2 Nguyen Hong Thao: Fundamentals of the law of the sea, People’s Police Publisher, Hanoi, 1997, pp. 8-9.

VNL_KH1 

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