Why UNCLOS Matters
fulcrum – PUBLISHED 20 SEP 2022
This article is part of “UNCLOS 40th Anniversary Series – Why UNCLOS Matters” conceptualised by the Blue Security programme. The series, which commemorates the 40th anniversary of the U.N. Convention on the Law of the Sea, brings together established and emerging maritime security scholars from Southeast Asia and the broader Indo-Pacific to address the pertinence and relevance of UNCLOS. Blue Security brings together Australian and Southeast Asian experts to look at a range of maritime security issues across the region. The series was developed by Dr. Troy Lee-Brown and Dr. Bec Strating. It is published in collaboration with the team at Fulcrum.
UNCLOS’s relevance to Vietnam is significant, but the Convention must be updated if Vietnam and other signatories are to succeed in dealing with contemporary challenges in maritime affairs.
2022 marks the fortieth anniversary of the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). Known as the “Constitution of/for the oceans”, the Convention sets out a legal framework for regulating most sea-related activities and provides a platform for international cooperation on maritime-related issues. Furthermore, it stipulates binding mechanisms for settling disputes at sea.
With a long coastline of 3,260 km, 3,000 islands, and 28 coastal provinces, Vietnam’s interest in maritime governance has long been significant. The country actively participated in the negotiations and drafting process for UNCLOS. When UNCLOS was open for signature on December 10, 1982, Vietnam was among the first 117 countries to sign the Convention.
Since becoming a signatory to UNCLOS, Vietnam has remained a responsible member and has made significant efforts to endorse and implement its provisions. Furthermore, Vietnam has called upon other states in Southeast Asia to respect and comply with UNCLOS. In particular, during its chairmanship of ASEAN in 2020, Vietnam repeatedly stressed the relevance of UNCLOS in maintaining regional peace and resolving maritime disputes. Most recently, together with Germany, Vietnam initiated the establishment of the UNCLOS Group of Friends to accelerate cooperation between like-minded countries on common maritime goals.
The importance of UNCLOS to Vietnam has been proven over the past 40 years, especially in terms of legitimising the country’s maritime claims, enhancing its domestic law and management system, accelerating cooperation with other states, and settling maritime disputes.
First, UNCLOS standardises claims over maritime entitlements and sovereign rights of its signatories including Vietnam. Before UNCLOS, especially in the first half of the twentieth century, there were chaotic situations where countries argued over their maritime boundaries, leading to disputes such as the Cod Wars over fishing rights in the North Atlantic between the UK and Iceland. The adoption of UNCLOS has helped to reduce these kinds of disputes, as the Convention became a legal basis for the demarcation of overlapping territories. Based on the principle “the land dominates the sea”, UNCLOS entitles coastal states to 12 nautical miles (nm) of territorial sea from their baselines, 12 nm of contiguous zone beyond the territorial sea, 200 nm of exclusive economic zone (EEZ) and 200 nm of continental shelf from their baseline (with the possibility of extension beyond this point). With this, coastal states like Vietnam have been able to extend their sovereignty beyond land territories. Vietnam has claimed its maritime entitlements in accordance with UNCLOS’s regulations.
Second, the Convention has driven Vietnam to reform and improve its domestic law and the management of its maritime zones. In 2012, the government adopted the Law of the Sea, which mostly harmonises domestic law with UNCLOS provisions. This law establishes the breadth of Vietnam’s maritime zones, governs operations in these zones, and plans maritime economic development. Vietnam has also introduced and revised other specialised laws, such as the 2015 Law on Marine and Island Resources and the 2017 Law on Fisheries. With regard to management, the Vietnam Coast Guard was established in 1998. The Militia and Self-Defense Force and the Fisheries Surveillance Force were established in 2009 and 2014 respectively.
Third, UNCLOS has provided a framework for Vietnam to cooperate with other states on various issues like crimes at sea, namely piracy and armed robbery against ships, protecting the environment, conducting scientific research, and managing resources. Vietnam has also participated in maritime search and rescue activities in international waters. According to the Vietnam Maritime Search and Rescue Coordination Center, from 2016 to 2021, its force saved 215 foreign sailors and 11 vessels in distress. The country has also initiated maritime dialogues with countries such as the U.S., Australia, and India. Moreover, Vietnam has joined sea patrols with its neighbours and regional partners, namely China, Thailand, the Philippines, Brunei, and Cambodia.
Fourth, UNCLOS plays a crucial role in addressing Vietnam’s maritime disputes. Under Article 287, the Convention provides Vietnam and other states with different forums to settle their disputes, including the International Tribunal for the Law of the Sea, the International Court of Justice, and mechanisms under Annex VII and Annex VIII. Thanks to these, many state parties have been able to peacefully end long-running disputes. Vietnam has successfully resolved disputes with Cambodia, Thailand, China, and Indonesia. Vietnam is continuing negotiations and consultations on the delimitation of its maritime boundaries. Under these processes, UNCLOS will be a legal foundation upon which Vietnam and other parties may reach a consensus.
However, recently, UNCLOS has exposed its limitations. For example, the implementation of UNCLOS’s provisions in different countries is still inconsistent, particularly in terms of excessive maritime claims in the South China Sea and challenges to freedom of navigation in the EEZs. This has caused difficulties for Vietnam in implementing the provisions of UNCLOS. Furthermore, UNCLOS’s framers did not envisage nor provide specifically for climate change and sea level rise. Hence, there is a need to revise UNCLOS so that it would remain relevant and useful for states, including Vietnam, for the next 40 years. Nevertheless, it is worth noting that in today’s contested international environment, it would require compromises from all state parties.
This article is part of the ‘Blue Security’ project led by La Trobe Asia, University of Western Australia Defence and Security Institute, Griffith Asia Institute, UNSW Canberra and the Asia-Pacific Development, Diplomacy and Defence Dialogue (AP4D). Views expressed are solely of its authors and not representative of the Maritime Exchange, the Australian government, or collaboration partner country government.
Thu Nguyen Hoang Anh is a graduate student at the European University Institute majoring in Transnational Governance.