Vietnam Deputy Minister of Foreign Affairs Nguyen Manh Cuong addresses the 14th Ocean Dialogue in Hanoi on May 7. The Ocean Dialogue is one of Diplomatic Academy of Vietnam's most prominent annual events on maritime security and law (Photo: VNA)
UNCLOS’ Contributions to Viet Nam’s Interests
For Viet Nam, UNCLOS is an important framework as it contributes to Viet Nam’s core interests, which are usually updated but revolving around three main elements: development, security and political interests. To be specific, UNCLOS helps Vietnam: (i) developing the country sustainably; (ii) ensuring independence and sovereignty; and (iii) engaging proactively in international affairs
[1].
First, Viet Nam has developed a system of domestic maritime regulations based on UNCLOS, thereby creating the legal foundation for Viet Nam to protect its interests. To be more specific, Viet Nam passed its Law of the Sea (VNLOS) in 2012, the most comprehensive legal document on Viet Nam’s maritime domain, with clear definitions of Viet Nam’s maritime zones in accordance with UNCLOS. For example, Article 15 of VNCLOS on Viet Nam’s Exclusive Economic Zone (EEZ) stipulates that this area is “adjacent to and beyond the Territorial Sea of Viet Nam…, extending to 200 nautical miles from the baseline”
[2], similar to Article 57 of UNCLOS on EEZ’s breadth
[3]. VNLOS champions UNCLOS to a great extent by stating in its Article 2 that “international treaty shall prevail” in case of differences between VNLOS and treaties Viet Nam is a member of (including UNCLOS
, a principle also enshrined in Viet Nam’s 2016 Law on Treaties
[5].
In addition to VNLOS, Viet Nam has incorporated UNCLOS’ content into other documents, including the Maritime Code (most recent update in 2015
[6]), Petroleum Law (most recent update in 2022
[7]), Law on Fishery (most recent update in 2017
[8]), Law on Militia and Self-Defense Forces (most recent update in 2019
[9]), the 2015 Law on Sea and Island Resources and Environment, or the 2018 Law on Viet Nam Coast Guard, and many more
[10], all aiming at protecting Viet Nam’s sovereignty and activities at sea, subsequently serving Viet Nam’s security and development needs.
On top of that, UNCLOS is the core basis of Viet Nam’s two current ocean governance frameworks, the Strategy for Sustainable Development of the Vietnamese Marine Economy (up to 2030, with a vision towards 2045)
[11] and the 2024 Resolution on National Marine Spatial Planning for the Period of 2021-2030 (with a vision towards 2050)
[12]. Both documents mention UNCLOS and embody practices inspired by UNCLOS’ zonal approach (such as spatial planning and coastal zone management) and principles of efficient usage and conservation of marine resources
[13], etc.
Second, UNCLOS has acted as a legal basis for Viet Nam During such processes, Viet Nam has also been said to have creatively applied
[16] the “equitable” principle in delimitation enshrined in UNCLOS’ Articles 74 and 83
[17]. With Thailand, Vietnam reached the Agreement on continental shelf and EEZ delimiation in 1997, utilizing UNCLOS’ zonal approach, despite Thailand not being an UNCLOS member at that time
[18]. With Malaysia, Vietnam submitted a joint application to the Commission on the Limits of the Continental Shelf (CLCS) in 2009
[19], in accordance with UNCLOS’ Article . Within ASEAN, UNCLOS is also referred in ASEAN – China’s Declaration on the Conduct of Parties (DOC) in the South China Sea
[20] and the Preamble of the Code of Conduct (COC) in the South China Sea
[21].
Third, Viet Nam has shown its activeness in various UNCLOS platforms, subsequently enhancing Viet Nam’s reputation and influence. Viet Nam has been proactively participating in the implementing agreements under UNCLOS, such as the Convention on the Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Viet Nam became the 90
th country to ratify this document in 2018
[22]) or the Agreement on Marine Biodiversity of Areas beyond National Jurisdiction, also known as BBNJ (Viet Nam was one of the first countries to sign this document in 2023
[23]), etc. In 2021, Viet Nam came up with the idea for the Group of Friends of UNCLOS in the United Nations to facilitate experience sharing on how to interpret and apply UNCLOS in modern times in an informal way
[24]. In 2024, Viet Nam also announced its first-ever candidate for the position of Judge of the ITLOS
[25].
Additionally, UNCLOS provides Viet Nam with platform to share concerns and build new rules in maritime domain from a developing country’s perspective. For example, back when UNCLOS was negotiated, Viet Nam was able to join the Third Conference on the Law of the Sea and with the G77 group advocated for the equitable principle in delimitation
[26]. With International Seabed Authority (ISA), a body established under UNCLOS’ Article 156, Vietnam announced its first (and female) member in the ISA’s Legal and Technical Commission term 2023-2027 in 2022, contributing to the decision-making process within ISA regarding the management of non-living resources on the seabed
[27] and has called for early completion of deep-sea mining regulations with regard to the special needs of the developing world
[28]. In recent years, Viet Nam also submitted its written submission and oral proceedings to both the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS)
[29], seeking their advisory opinions on climate change and marine environment duties under UNCLOS, highlighting the needs of developing countries in the process
UNCLOS’ Potential Limits for Viet Nam?
There has been certain criticism towards UNCLOS and its limits in safeguarding coastal states’ interests. Viet Nam’s interests, including climate change
[31], foreign unmanned drones or militia boats, etc. (especially when Viet Nam has frequently been listed among the most susceptible countries to climate change
[32] and has faced with challenges from unmanned vehicles and militia in its waters or in disputed areas
[33][34]).
Additionally, some issues regulated in UNCLOS are subject to different interpretations, which might be of concerns to Viet Nam. For example, Viet Nam’s requirement for foreign military ships to issue prior notice before exercising innocent passage through its territorial sea
[35] is oftentimes challenged by the United States
[36], even when Viet Nam does not enforce such requirement in reality and has stressed that international standards “shall prevail” in case of countering UNCLOS. UNCLOS does not clarify whether “marine scientific research” includes “hydrographic surveys”
[37] either, leading to contradictory interpretations from China
[38] and the United States
[39], hence potential clashes
[40] detrimental to the regional stability that Viet Nam considers part of its security interest.
However,
UNCLOS and its nature can provide space for future adaptation. First, UNCLOS has embedded in itself flexibility to address emerging maritime needs with the so-called “rule of reference” (RoR). Many scholars have emphasized this principle, which is UNCLOS’ ability to take into account or utilize applicable legal instruments outside UNCLOS, including pre-existing treaties or customary rules, especially in specific issues that UNCLOS does not dive deep into for the sake of the “package deal” approach
[41]. This is not a standalone principle in UNCLOS, but a catch-all phrase whose sentiment can be found in multiple UNCLOS regulations, such as Article 211, according to which parties are required to take into account generally accepted international standards
[42]. Ultimately, this rule can be applied to help UNCLOS adapt to issues not clearly articulated beforehand, including climate change
[43]. Particularly, Article 211 mentions “competent international organization” regarding vessels’ pollution
[44], which can be used to refer to revised MARPOL Annex VI in 2004 (after UNCLOS) about reducing emission limits
[45]. Article 212 also requires parties to take into account international regulations and practices related to marine pollution prevention
[46], which could generally cover new climate change developments in the maritime . Other than that, UNCLOS’ institutions, such as ICJ, has recently provided an advisory opinion on state obligation with regards to climate , further reinforcing the legal framework on this matter.
Second, it is important to take note of UNCLOS’ role as an overall guiding document, or one might call it UNCLOS’ “constitutionality”
Such documents are also commonly ambiguous enough to allow evolutionary interpretation to address new or emerging issues. Accordingly, UNCLOS’ content or languages were potentially left vague during the negotiation for the sake of a “package deal” agreement. In actuality, there have been multiple efforts to help UNCLOS evolve via this often-misunderstood vagueness, including the three Implementing Agreements
[48].
Third, there has not been any source of law of the sea as as UNCLOS in ocean . In terms of membership, UNCLOS’ parties represent almost all existing coastal states
[49], showing its internationally recognized status. Non-party states also considers UNCLOS a part of customary law, aspired to follow the same standards. For example, Cambodia is noteworthy for not ratifying but still acting in accordance with UNCLOS in determining its EEZ
[50] and in negotiating its historic waters agreement with Vietnam
[51], etc. In terms of scope, there have been other treaties or legal instruments that help govern the ocean, but they do not match UNCLOS’ expansive coverage or are inspired from UNCLOS. For instance, the Barcelona Convention, the Nairobi Convention
[52] or the Antarctic Treaty System
[53] all aim at sustainable management in areas beyond jurisdictions but only within their respective geographical areas (Mediterranean, East Africa and Antarctica). Others with bigger geographical scopes, such as the Convention on Biological Diversity (CBD) with more than 190 parties, or the Convention on Migratory Species (CMS) with more than 130 parties, only focus on one specific topic.
In conclusion, UNCLOS is an important framework for Viet Nam’s three core interests in development, security, and political influence, since the Convention has inspired Viet Nam’s own maritime regulations, facilitated Viet Nam’s maritime delimitation and dispute management with others, as well as generated opportunities for Viet Nam to play an active role and reinforce its voices in international affairs. UNCLOS after 30 years might face several limitations regarding emerging maritime issues or ambiguous interpretation, but that fact does not take away UNCLOS’ ability to evolve, “constitutionality” and universality, thereby enhancing its role as an effective foundation for Viet Nam to safeguard its national interests in the future.
Written by Hoang Do*
Commented by Dr. Nguyen Thi Lan Anh & Nguyen Thi Lan Huong
*The views expressed in this articule are solely of the author
REFERENCES
[2] The Law of the Sea of Vietnam, adopted 21 June 2012 (entered into force 1 January 2013), Article 15.
[3] United Nations Convention on the Law of the Sea (UNCLOS), adopted 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), Article 57.
[4] The Law of the Sea of Vietnam, Article 2.
[6] https://thuvienphapluat.vn/van-ban/Giao-thong-Van-tai/Bo-luat-hang-hai-Viet-Nam-2015-298374.aspx
[7] https://lawnet.vn/en/vb/Law-12-2022-QH15-Petroleum-875C0.html
[8] https://www.fao.org/faolex/results/details/en/c/LEX-FAOC171855/
[9] https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Luat-Dan-quan-tu-ve-2019-366794.aspx
[13] UNCLOS, Preamble (n 2).
[17] UNCLOS, Article 74 & 83 (n 2).
[19] https://www.un.org/depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm
[20] https://asean.org/declaration-on-the-conduct-of-parties-in-the-south-china-sea-2/
[21] https://fulcrum.sg/the-code-of-conduct-for-the-south-china-sea-movement-in-lieu-of-progress/
[26] Nguyen Hong Thao, ‘Forty years’ (n 10).
[29] https://www.itlos.org/fileadmin/itlos/documents/cases/31/written_statements/3/C31-WS-3-3-Viet_Nam.pdf
[31] Nilufer Oral, “UNCLOS and sea level rise” (2023) 149,
Marine Policy 105454 1
. [32] Oo AT, Cho A, Minh DD, “Assessment of the Vulnerability of Households Led by Men and Women to the Impacts of Climate-Related Natural Disasters in the Coastal Areas of Myanmar and Vietnam” (2024) 12(6)
Climate 82, 83.
[35] VNLOS, Article 12 (n 1).
[37] Sam Bateman, ‘Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research’ (2005) 29(2)
Marine Policy 163, 164.
[41] Nguyen Ngoc Lan, “Expanding the Environmental Regulatory Scope of UNCLOS Through the Rule of Reference: Potentials and Limits” (2021) 52(4)
Ocean Development & International Law 419-444, 420.
[42] UNCLOS, Article 211 (n 3).
[43] Nguyen Ngoc Lan (n 26) 430.
[44] UNCLOS, Article 211 (n 3).
[45] Nguyen Ngoc Lan (n 26) 431
[46] UNCLOS, Article 212 (n 3).
[47] https://arbitrationlaw.com/library/constitutional-perspective-unclos-and-environmental-impact-assessments-areas-beyond-national
[49] ‘UNCLOS’,
UK Parliament (n 8)
[50] World Bank, Building a Blue Economy Roadmap for Cambodia (Report, 2023) 10.
[52] United Nations Environment Programme,
Regional Seas programmes covering Areas Beyond National Jurisdictions (Regional Seas Reports and Studies No. 202, 2017) 1.
