The year 2019 marks the 25th anniversary of the United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) and also the 25th year since Vietnam ratified the convention.
Ships are docking at Truong Sa archipelago's Da Lat island. Photo VNA
On the occasion, Dr. Le Thi Tuyet Mai, a member of the Executive Board of Vietnam Society of InternationalLaw, Chair of Vietnam Lawyers Association Branch at the Ministry of Foreign Affairs, Director General of Department of International Law and Treaties, wrotean article entitled “UNCLOS 1982: Overarching framework for establishing thelegal order for the seas and oceans, promoting development and cooperation atsea.”
The following is the full textof the article.
“On June 23, 1994, the NationalAssembly of Vietnam adopted the Resolution ratifying the 1982 United NationsConvention on the Law of the Sea (UNCLOS). This year marks the 25thanniversary of the entry into force of UNCLOS and the ratification and depositof the instrument of ratification by Vietnam with the Secretary-General of theUnited Nations. Vietnam participated in the UNCLOS negotiation and wasamong 107 states signing UNCLOS on December 10, 1982 when the Conventionwas open for signature. Its active participation to and implementation ofUNCLOS shows Vietnam’s good faith, respect and hope for an equitable legalorder for the seas and oceans. Article 2 of the above-mentionedResolution of the National Assembly of Vietnam emphasizes: “By ratifying the1982 United Nations Convention on the Law of the Sea, the Socialist Republic ofVietnam expresses our determination to coordinate with the internationalcommunity to establish an equitable legal order for the seas and oceans andpromote development and cooperation at sea”.
UNCLOSconstitutes the overarching legal framework for the seas and oceans
As a multilateral treaty, UNCLOS is consideredas the second most important legal instrument established after the World WarII, only after the Charter of United Nations. It is universally ratified and/oraccepted. The annual United Nations General Assembly Resolution on Oceans andLaw of the sea affirms that “the Convention sets out the legal framework withinwhich all activities in the oceans and seas must be carried out and is ofstrategic importance as the basis for national, regional and global action andcooperation in the marine sector, and that its integrity needs to be maintained.”
In the Preamble of UNCLOS, the State Partiesaffirms their “desire to settle … all issues relating to the law of the sea”and establish “a legal order for the seas and oceans”. Prompted by such desire,with 320 Articles and 9 Annexes, UNCLOS provides in a clear and comprehensivemanner the legal status of all maritime zones under or beyond nationaljurisdiction, rights and obligations of every State including coastal,landlocked or geographically disadvantaged States in the use, exploitation andmanagement of the seas and oceans and marine resources. UNCLOS also sets outprinciples and provisions on navigation and aviation; conservation andmanagement of marine resources including living and non-living resources;protection and preservation of marine environment, marine scientific research,maritime security; dispute settlement and cooperation among State Parties.
The role of UNCLOS as the overarchinguniversal legal framework is also affirmed in Articles 293 and 311 on therelation between UNCLOS and other sources of international law includingconventions, international agreements and customary international law. Statesemphasized in UNCLOS that any agreements between two or more state parties ofUNCLOS on the issues provided in UNCLOS must be compatible with UNCLOS; “theConvention shall not alter the rights and obligations of State Parties whicharise from other agreement compatible with this Convention” (Article 311.2);agreement modifying or suspending the operation of provisions of thisConvention may be concluded provided that such agreement do not affect “theeffective execution of the object and purpose of this Convention”, “theapplication of the basic principles embodied herein” and “the enjoyment ofother States Parties of their rights or the performance of their obligationsunder UNCLOS” (Article 311.3); agreement expressly permitted and preserved byother articles of this Convention are not affected (Article 311.5). Regardingthe relations between UNCLOS and other sources of international law, such ascustomary law, only rights and obligations arising from rules of internationallaw compatible with UNCLOS are recognized and applied by competent courts andarbitral tribunals under Part XV of UNCLOS (Article 293.1).
Paragraph 8 of the Preamble of UNCLOS, whichstates that “matters not regulated by this Convention continue to be governedby the rules and principles of general international law”, should beinterpreted in a manner compatible with the objectives and provisions of UNCLOSas mentioned above. In fact, this paragraph provides for the relation betweenUNCLOS as lex specialis with specific provisions on the law of the seas andgeneral international law (or lex generalis) with general principles andprovisions for all branches of international law, such as principles of pactasunt servanda, peaceful settlement of international disputes, provisions oninterpretation of treaties embodied in the Vienna Convention on the Law oftreaties 1969. Furthermore, the Preamble of UNCLOS affirms itself that UNCLOSsettles all issues relating to the law of the sea. Therefore, suchinterpretation of this paragraph 8 that UNCLOS is not the only legal frameworkand there are other frameworks to regulate the use of seas and oceans such ascustomary law established before UNCLOS, is totally contrary to UNCLOS’sobjectives and purposes and undermines the universally recognized values ofUNCLOS.
In a recent case, an arbitral tribunalestablished under UNCLOS Annex VII considered the relation between UNCLOS andother sources of international law, especially the validity of any rightsestablished before UNCLOS and concluded as follow: (i) UNCLOS does not affectthe rights and obligations established independently to UNCLOS and notincompatible with the Convention; (ii) UNCLOS prevails the rights andobligation established independently to UNCLOS and incompatible with theConvention. This arbitral tribunal also emphasized that no provision inUNCLOS allows historic rights of one State to resources in the exclusiveeconomic zones, continental shelf of other States as well as high seas and theinternational seabed Area. UNCLOS also does not allow the preservation orprotection of historic rights incompatible with UNCLOS.
UNCLOS clearly establishes legal regimes ofmaritime zones, rights and obligations of States
By codifying customary law, States agree uponand clearly stipulates in UNCLOS legal regimes of all maritime zones, settingthe limits of the maritime zones under sovereignty, sovereign rights andjurisdiction of coastal States (i.e. internal waters, territorial sea andcontiguous zone, exclusive economic zone and continental shelf); the maritimezones beyond national jurisdiction, including High seas and the internationalseabed Area (seabed and subsoil as well as mineral resources as common heritageof mankind). UNCLOS also provides rights and obligations of States Parties ofdifferent categories in these maritime zones. Core provisions of UNCLOS containlegal status of exclusive economic zones, continental shelf, regime of islands,artificial structures and cooperation for protection of marine environment,conservation and management of marine resources. Under the light of theprovisions of UNCLOS on EEZ and continental shelf, all activities of exploringand exploiting natural resources in EEZ and continental shelf of a coastalState are subject to permit of the coastal State and those activities carriedout without express consent of the coastal State are illegal, and constitutemanifest violation of the provisions of UNCLOS.
The exclusive economic zone (EEZ) was firstembodied in UNCLOS by the strong support of developing countries including Vietnam.UNCLOS provides that, within the EEZ of a coastal State, extending up to 200nautical miles from the baselines from which the breadth of the territorial seais measured (Article 57), the coastal State has sovereign rights to the naturalresources of the waters superjacent to the sea-bed and of the sea-bed and itssubsoil; sovereign rights to the economic exploitation and exploration of thezone; jurisdiction to marine scientific research and protection andpreservation of the marine environment (Article 56). Other States, whethercoastal or landlocked, enjoy the freedom of navigation and over flight and thelaying of submarine cables and pipelines (Article 58). Landlocked orgeographically disadvantaged States shall have the right to participate, on anequitable basis, in the exploitation of an appropriate part of the surplus ofthe living resources of the EEZ of coastal States of the same sub-region orregion (Articles 69 and 70); living resources, including migratoryspecies, are subject to conservation and development in conformitywith the provisions of UNCLOS (Articles 61 - 73). UNCLOS also clearly providesthat other States, in exercising their rights and performing their duties inthe EEZ, shall have due regard to the rights and duties of the coastal Stateand shall comply with the laws and regulations adopted by the coastal States aswell as other rules of international law (Article 58).
The continental shelf of a coastal Statecomprises the seabed and subsoil of the submarine areas that beyond itsterritorial sea throughout the natural prolongation of its land territory. Inreality, the outer edge of continental shelf differs among regions, some maynot extend to 200 nautical miles but some may extend beyond such limits. UnderArticle 76 of UNCLOS, the continental shelf of a coastal state may extend to atleast 200 nautical miles from the baselines; wherever the continental marginextends beyond 200 nautical miles from the baselines, the coastal State has theright to establish the outer limit of its continental shelf, by either, notexceed 350 nautical miles from the baselines or not exceed 100 nautical milesfrom the 2500 meters isobaths. However, in order to extend the limits of thecontinental shelf beyond 200 nautical miles, coastal States are obliged tosubmit to the Commission on the Limits of Continental Shelf with full geodeticdata; then the Commission will consider and make recommendations to coastalStates. In its continental shelf, the coastal State has sovereign rights forthe purpose of exploring it and exploiting its natural resources (Article 77.1).It should be noted that such sovereign rights are exclusive in the sense thatno other countries may explore and exploit the natural resources in itscontinental shelf without express consent of the coastal State (Article 77.2);coastal State enjoys exclusive rights to authorize and regulate drilling on thecontinental shelf for all purposes (Article 81). The exercise of rights of thecoastal State over the continental shelf must not infringe the freedom ofnavigation and other freedoms under UNCLOS.
Regarding legal regime of islands, Article 121of UNCLOS sets criteria to determine whether a geographical feature is an“island” or a “rock”. Accordingly, an island is a naturally formed area ofland, surrounded by water, which is above water at high tide; an island cansustain human habitation or economic life of their own shall have its ownterritorial sea, contiguous zones, exclusive economic zone or continental shelfapplicable to other land territory. Rocks which do not meet the twoabove-mentioned criteria shall have 12 nautical miles-territorial sea only, noexclusive economic zone or continental shelf. Low-tide elevations have noterritorial sea of their own (and no exclusive economic zone and continentalshelf); they do not affect the limit of maritime zones (Article 13.2).
According to a recent award of an ArbitralTribunal under Annex VII of UNCLOS, “rock which cannot sustain human habitationor economic life of their own shall have no exclusive economic zone andcontinental shelf” as the legal regime of islands in Article 121 UNCLOS dependson the objective capability of the feature in their natural characteristics tosustain human habitation or economic life of their own without external sourcesor only with exploiting objectives. The Tribunal also concluded that none ofgeographical features in the Spratly Islands are capable of creating EEZor continental shelf; islands in the Spratly Islands cannot create maritimezones as a whole. The high-tide features create territorial sea while low-tideelevations do not.
Artificial structures cannot be considered asislands since they are not naturally formed area of land. UNCLOS clearlyregulates the construction of artificial structures. In particular, the coastalState, in the EEZ, shall have the exclusive right to construct and to authorizeand regulate the construction, operation and use of artificial islands,installations and structures, of which their presence does not affect thedelimitation of the territorial sea, the exclusive economic zone or thecontinental shelf (Article 60.8). Moreover, due notice must be given of theirconstruction and permanent means for giving warning of their presence must bemaintained; any installations or structure which are abandoned shall be removedto ensure safety of navigation, considering any generally acceptedinternational standards established in this regard by the competentinternational organization (Article 60.3).
UNCLOS also requires States to cooperate inprotection of marine environment and conservation and management of naturalresources in coastal States’ maritime zones as well as high seas (Part XII).UNCLOS provides that States bordering an enclosed or semi-enclosed sea shouldcooperate to manage living resources, adopt scientific research and marineenvironment policies and undertake relevant activities. Landlocked States enjoythe rights to access the sea and transit through transit waters. States Partiesshall prevent and control marine pollution and be liable for damages resultedfrom the responding violations. Marine scientific research are subject to therights and duties of other States as provided for in this Convention.
It should be emphasized that every maritimearea has its own legal regime as stipulated in UNCLOS, including rights and obligationsof coastal States and other different categories of States. Coastal States, onthe one hand, enjoy the rights in their maritime zones, and, on the other hand,have the obligation to respect rights of other States and perform otherobligations under UNCLOS.
UNCLOSestablishes institutions, mechanisms to ensure its implementation, includingmechanism for settlement of disputes concerning interpretation and applicationof the Convention
To ensure full and consistentimplementation of the Convention in practice, UNCLOS establishes a set ofbodies and mechanisms with different roles and functions which supplement eachother. Specialized organizations established under UNCLOS include: (i) theInternational Seabed Authority (ISA, designated to organize and control theexploration and mining of the mineral resources in the Area – common heritageof mankind and administer a benefit-sharing mechanism); (ii) the Commission onthe Limits of the Continental Shelf (CLCS, whose functions are to consider thesubmissions of coastal States and make recommendations regarding theestablishment of outer limits of the continental shelf beyond 200 nauticalmiles); (iii) the International Tribunal on the Law of the Sea (ITLOS, ajudicial body having the mandate to adjudicate disputes between States arisingout of the interpretation and application of the Convention). In addition, theannual Meeting of the States Parties to UNCLOS (SPLOS) is convened inaccordance with the Convention to consider the reports of organizationsestablished under the Convention; make decisions on budgetary matters andworking conditions of those organizations as well as discuss any issues arisingfrom the implementation of the Convention.
UNCLOS also provides for mechanisms forsettlement of disputes among States with respect to the interpretation andapplication of the Convention (Part XV). Such mechanisms have been used bystates quite often in practice. It is worth noting that the dispute settlementmechanisms under UNCLOS are only applicable to settlement of disputes betweenStates concerning the interpretation and application of the Convention(Articles 279 and 288) and constitute peaceful means for dispute settlementunder international law as clearly endorsed in the United Nations Charter,including diplomatic and legal processes.
Accordingly, when a dispute arises withrespect to the interpretation and application of UNCLOS, State Partiesconcerned are obliged to carry out exchange of views regarding disputesettlement through negotiation or other peaceful means (Article 283).
If the exchange of views or negotiation in areasonable period do not result in a settlement agreement, the parties mayagree to submit the dispute to international judicial bodies for a bindingdecision, including the International Court of Justice (ICJ), the InternationalTribunal 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 aspecial arbitral tribunal (constituted in accordance with Annex VIII ofUNCLOS). States, at any time, can make declarations choosing one or more ofthose aforementioned procedures.
In order to resort to the compulsoryprocedures under UNCLOS, the parties to a dispute must satisfy the requirementthat the parties have already carried out exchange of views, as previouslymentioned, and have not reached an agreement on dispute settlement throughanother compulsory procedure entailing a binding decision and that agreementdoes not exclude dispute settlement procedures under UNCLOS (Article 282). TheConvention also has clear provisions to ensure that, other than certainexceptions under Article 298, in case where the parties to a dispute which havenot made declarations choosing a procedure or not accepted the sameprocedure or otherwise not agreed on means of dispute settlement, such disputeshall be submitted to a compulsory procedure – arbitral tribunal to beestablished in accordance with Annex VII of UNCLOS. In fact, such arbitrationprocedure has been used by many States. Although there are cases in which aparty to a dispute makes certain objections and there are certainexceptions, in the event of disagreement over the jurisdiction of the arbitraltribunal, the tribunal itself has the competence to make a decision on whetherit has jurisdiction over the dispute (Article 288); the decision of thearbitral tribunal is final and binding upon all parties to the dispute, even ifa party to such dispute did not participate in the procedure (Article 296).
Besides, UNCLOS also provides for a compulsoryconciliation procedure. Accordingly, even if a party to a dispute makes adeclaration excluding a compulsory dispute settlement procedure with regard tocertain types of disputes, and such dispute arises after the entry into forceof UNCLOS and both parties could not reach an agreement through negotiation ina reasonable period, either party to the dispute may choose to submit thedispute to a Conciliation Commission (established in accordance with Annex V ofUNCLOS). Although the conclusions and recommendations of the ConciliationCommission don’t have binding effect, parties to the dispute are obliged tonegotiate on the basis of the report and recommendations in order to reach aresolution of the dispute. Timor Leste, after a period of fruitless negotiationwith Australia, had resorted to the Conciliation Commission under Annex V ofUNCLOS to seek a resolution for its long-standing dispute with Australia overmaritime delimitation and marine resources sharing. This marks the firsttime the compulsory conciliation procedure has been successfully applied. Onthe basis of the Report and recommendations of the Conciliation Commission,Timor Leste and Australia had negotiated and reached a Treaty on maritime boundarydelimitation in March 2018, binding on both countries and eventually settlingthe dispute between these two countries.
It has been practically proved that decisionsrendered by judicial bodies set forth under UNCLOS, especially ITLOS orarbitral tribunals, constituted significant contributions to the interpretationof the provisions of UNCLOS and clarification of controversial and ambiguousissues or any claims or activities contrary to the UNCLOS. It should be notedthat effective implementation of UNCLOS by its State parties, like otherinternational treaties, is not only reflected in their positions at global andregional forums relating to seas and oceans, but in fact depends on actions ofState parties in using seas and oceans as well as marine resources and requiresgood faith and due regards of every State party.
UNCLOSis the legal framework for promoting cooperation in response to maritimechallenges, for the preservation and sustainable use of seas and oceans andmarine resources
Coastal states have establishedtheir respective maritime zones in accordance with UNCLOS, enacted domesticlegislations on seas, engaged in various programs and activities of cooperationon ocean management such as through bilateral, regional, sub-regional andglobal cooperation mechanisms, such as regional sea commissions, regionalfishery organizations, marine environment protection mechanism, or implementingarea-based marine protection projects. Such practices have vividly depicted atmany levels the effort and willingness of almost all countries andinternational organizations in the implementation of UNCLOS.
Many international organizations, with the UNand UN Oceans system at the forefront, have actively promoted theimplementation of UNCLOS in every aspects, including encouraging those statesthat are not yet parties to UNCLOS to ratify or accede to UNCLOS; providingcapacity-building assistance for least-developed and developing countries tobetter fulfill their obligations under the Convention and providing financialsupports through Trust Funds for these countries to participate in forums onseas and oceans within the framework of UNCLOS and United Nations GeneralAssembly (UNGA). Moreover, the UN Secretary-General prepares and submits annualreports on emerging issues on implementing UNCLOS to the UNGA, SPLOS andrelated international organizations, providing a basis for countries to discussand review the implementation of the Convention in general. The UN alsomaintains an Open-ended Informal Consultative Process (ICP) to discuss emergingissues on ocean management and make recommendations on necessary measures andissues which should be codified within the framework of UNCLOS to better manageseas and oceans.
As a result of discussions and recommendationsof ICP, after a long and informal discussion at the UN since 2004, the UNGAdecided to convene an Intergovernmental Conference on an international legallybinding instrument under UNCLOS on the conservation and sustainable use ofmarine biological diversity of areas beyond national jurisdiction (BBNJ), whichheld the first session in Oct. 2018 and second session in April 2019. Whenadopted, this legal instrument is expected to be a significant addition to theexisting legal framework on seas and oceans set by UNCLOS, for the sustainableuse and conservation of common resources of mankind for present and futuregenerations.
UNCLOS continues to serve as the legalframework for countries to address traditional challenges such as maritimedelimitations and disputes, piracy, cross-border criminals, as well as emergingchallenges including marine pollution, running out of resources, marine plasticdebris, climate change, sea level rise, sustainable development of oceaneconomy (blue economy) towards achieving the goal of conservation andsustainable use of seas and oceans and their resources, in accordance withSustainable Development Goal 14 (SDG14) under the UN 2030 Agenda.
All maritimedisputes must be settled by peaceful means in accordance with international lawincluding UNCLOS
In certain regions still exist maritimedisputes such as disputes over the delimitation of overlapping maritimeentitlements, identification of regime of geographical features in theseas or the exploitation and sharing of marine resources, in particularmineral resources. Such disputes are inevitable because UNCLOS authorizescoastal states to establish broad maritime zones under national jurisdiction,leading to the existence of overlapping maritime areas claimed by opposite oradjacent coastal states. This situation is rooted in the significant role ofseas and oceans and marine resources for the development of states. It is anundeniable fact that some maritime disputes arise from absurd claims made byrelated coastal states totally contrary to UNCLOS.
Facing maritime disputes in many areas aroundthe globe, the international community agrees that all states must fullyrespect and implement UNCLOS, clarify their maritime claims and settle alldisputes by peaceful means in accordance with international law includingUNCLOS, and thus reaching appropriate resolution of disputes between partiesconcerned, or at least provisional measures and at the same time making effortstowards an equitable settlement solution, ensuring legal rights and legitimateinterests parties concerned.
In the context of complicated developments inthe East Sea (South China Sea), states concerned must respect the legal orderfor the seas and oceans established under UNCLOS, respect diplomatic and legalprocesses including on-going negotiations, refrain themselves from takingactions which undermine the role of UNCLOS in order to ensure peace, security,safety and freedom of navigation in the region and the world at large, for thecommon benefit of the region and international community. Maritime claims bystates must be clarified in accordance with the provisions of UNCLOS. In caseof disputes or differences regarding the interpretation and application ofUNCLOS, parties concerned are obliged to resolve such disputes by peacefulmeans, in accordance with international law, including UNCLOS. Pending thedisputes resolution, parties concerned must fully respect and comply with theDeclaration on the Conduct of Parties in the South China Sea of 2002 (DOC),refrain from undertaking unilateral activities which could complicate thesituation and escalate the disputes. Parties concerned should also participateconstructively in the negotiations toward an effective and substantive COC inconformity with international law, including UNCLOS.
Being a coastal State and Partyto UNCLOS, Vietnam has been making its utmost efforts for peaceful resolutionof maritime issues in the East Sea in accordance with international law,including UNCLOS. Furthermore, Vietnam has also been fully implementing UNCLOSsince Vietnam accepted to be bound by UNCLOS and becoming a State Party toUNCLOS 25 years ago. Together with other State Parties, Vietnam will continueto promote full respect for and implementation of UNCLOS with a view toprotecting the legal values of this universal legal framework.
Dr. Le Thi Tuyet Mai