This year marks the 25th anniversary of the entry
into force of the United Nations Convention on the Law of the Sea (UNCLOS)
as well as the ratification and deposit of the instrument of ratification by
Viet Nam to the Secretary-General of the United Nations. Its active
participation to and implementation of the Convention shows Viet Nam’s good
faith, respect and hope for an equitable legal order for the seas and
oceans. The Resolution dated 23 June 1994 of the National Assembly of Viet
Nam emphasizes: “By ratifying the 1982 United Nations Convention on the Law
of the Sea, the Socialist Republic of Viet Nam expresses its determination
to coordinate with the international community to establish an equitable
legal order for the seas and oceans and promote the development and
cooperation at sea”.
UNCLOS constitutes the overarching legal framework
for the seas and oceans
1. UNCLOS provides for a wide range of comprehensive
provisions for the establishment and legal regime of maritime zones,
governing all activities at seas, at national, regional as well as
international level. The State Parties to UNCLOS clearly agree in UNCLOS
that UNCLOS prevails over other conventions, international agreements and
other sources of international law, including international customary rules
on seas and oceans; any agreement between two or more state parties of
UNCLOS on the issues provided in UNCLOS must be compatible with UNCLOS; and
that only rights and obligations arising from rules of international law
compatible with UNCLOS are recognized and applied by competent courts and
arbitral tribunals under Part XV of the Convention (Articles 311 and 293.1).
2. Such interpretation that UNCLOS is not the only
legal framework and there are other frameworks to regulate the use of seas
and oceans such as customary law established before UNCLOS, is totally
contrary to UNCLOS’s objectives and purposes and undermines the universally
recognized values of UNCLOS. Since the Convention is of strategic
importance, its integrity and comprehensiveness need to be maintained.
UNCLOS clearly establishes legal regimes of maritime
zones, rights and obligations of States
3. UNCLOS provides a basis for the establishment of
the maritime zones under sovereignty, sovereign rights and jurisdiction of
coastal States, including archipelagic States (i.e. internal waters,
archipelagic water of archipelagic states, territorial sea and contiguous
zone, exclusive economic zone and continental shelf); the maritime zones
beyond national jurisdiction (including High seas and the international
seabed area, its subsoil as well as mineral resources as common heritage of
mankind). UNCLOS also provides for the rights and obligations of States
Parties, accordingly all activities of exploring and exploiting natural
resources in EEZ and continental shelf of a coastal State are subject to
permit of the coastal State and those activities carried out without express
consent of the coastal State are illegal, and constitute manifest violation
of the provisions of the Convention.
Article 121 of UNCLOS sets criteria to determine
whether a geographical feature is an “island” eligible to enjoy legal status
of island. Accordingly, an island is a naturally formed area of land,
surrounded by water, which is above water at high tide; an island can
sustain human habitation or economic life of their own shall have its own
territorial sea, contiguous zones, exclusive economic zone or continental
shelf applicable to other land territory. Rocks which do not meet the two
above mentioned criteria shall only have 12-nautical-mile territorial sea, no
exclusive economic zone or continental shelf. Low-tide elevations have no
territorial sea of their own (and no exclusive economic zone and continental
shelf); they do not affect the limit of maritime zones.
In conformity with the regime of island set out
under UNCLOS, a recent award of an Arbitral Tribunal constituted under Annex
VII of the Convention concluded that none of geographical features in the
Spratly Islands are capable of creating EEZ or continental shelf; islands in
the Spratly Islands cannot create maritime zones as a whole.
UNCLOS establishes institutions, mechanisms to
ensure its implementation, including mechanism for settlement of disputes
concerning interpretation and application of the Convention
4. To ensure full and consistent
implementation of the Convention in practice, UNCLOS establishes a set of
bodies and mechanisms with different roles and functions which supplement
each other. It also provides for mechanisms for settlement of disputes among
States with respect to the interpretation and application of the Convention
(Part XV), including diplomatic and legal processes. Accordingly, when a
dispute arises with respect to the interpretation and application of UNCLOS,
State Parties concerned are obliged to carry out exchange of views regarding
dispute settlement through negotiation or other peaceful means. If the
exchange of views or negotiation in a reasonable period of time does not
result in the solution, the parties may agree to submit the dispute to
international judicial bodies for a binding decision, including the
International Court of Justice (ICJ), the International Tribunal on the Law
of the Sea (ITLOS - established under Annex VI of UNCLOS), an arbitral
tribunal (constituted in accordance with Annex VII of UNCLOS) or a special
arbitral tribunal (constituted in accordance with Annex VIII of UNCLOS).
If a dispute cannot be settled through exchange of
views or negotiation in a resonable period of time, the parties concerned
may choose a compulsory procedure - an arbitral tribunal constituted in
accordance with Annex VII of UNCLOS (under certain conditions) or a
Conciliation Commission (established in accordance with Annex V of UNCLOS).
The report and recommendations of the Commission, even though not binding,
serve as the basis upon which States Parties to the dispute are obliged to
negotiate in order to reach a resolution of the dispute, otherwise the
States Parties are obliged to submit their dispute to a judicial body.
Decisions rendered by judicial bodies established
under UNCLOS constitute significant contributions to the interpretation of
the provisions of UNCLOS and clarification of controversial and ambiguous
issues, excessive claims or activities contrary to the Convention. It should
be noted that effective implementation of the Convention by its State
Parties, like other international treaties, is not only reflected in their
positions at global and regional forums relating to seas and oceans, but in
fact depends on actions of State Parties in using seas and oceans as well as
marine resources and requires good faith and due regards of every State
Party
5. Being a coastal State and a Party to UNCLOS, Viet
Nam has been making its utmost efforts for peaceful resolution of maritime
issues in the East Sea in accordance with international law, including
UNCLOS. Furthermore, Viet Nam has also been fully implementing UNCLOS since
it accepted to be bound by UNCLOS, becoming a State Party to the Convention
25 years ago and making great efforts for conservation and sustainable use
of seas and oceans and their resources in accordance with Sustainable
Development Goal 14 (SDG14) under the UN 2030 Agenda. Together with other
State Parties, Viet Nam needs to continue to promote full respect for and
implementation of UNCLOS with a view to protecting the comprehensiveness
and legal values of this universal legal framework./.