That statement was made by Dr. Tran Cong Truc, former head of the Government Border Committee.

An international comprehensive legal document

On April 30, 1982, the third U.N. Conference on the Law of the Sea passed a new convention named The United Nations Convention on the Law of the Sea (UNCLOS) 1982. On June 23, 1994, Vietnam was one of the first countries in the world to ratify the convention and became a member of UNCLOS.

An overview of the 13th International Seminar on the East Sea (South China Sea) in Hanoi on November 2021

According to Dr. Tran Cong Truc, UNCLOS 1982 was built on the basis of “whole package,” including all aspects related to the law of the sea. This is a comprehensive international legal document that consists of all the most important legal contents and practices in reality concerning seas and oceans. The most important part of the convention is that it devises a united measure of defining waters and continental shelf under the sovereignty and sovereign and jurisdiction rights of coastal countries. The convention also defines clearly the rights and responsibilities of all countries, regardless of being coastal or not and developed or developing, in various aspects such as security, environment preservation, resource exploitation, transportation, scientific research, etc. in the waters of countries and international waters.

As outlined in UNCLOS 1982, seas and oceans are divided into three areas with different legal statuses. First, internal waters or territorial sea is the sea area being a territorial part of the coastal nations over which the coastal nations have complete sovereignty. Second, the contiguous zone, the exclusive economic zone and the continental shelf are the sea areas that are not part of the territory of a coastal state, but are under the sovereign and jurisdiction rights of that coastal state. Third, international sea is the area that does not belong to the sovereignty, sovereign and jurisdiction rights of any country.

Notably, as for adjacent or opposite coastal states whose distances are less than the breadth of the waters and continental shelves, the basis of UNCLOS has created overlapping areas that need to be fairly negotiated.

In order to define the overlapping sea areas, UNCLOS provides principles that coastal states are to follow in accordance with the principle “land dominates sea.” For example, in the East Sea (internationally South China Sea), there are three types of geographical features effective in determining the extent of the above-mentioned sea areas, namely “coastal states,” “island states” and “geographical entities in the middle of the sea.” The convention gives specific standards for the demarcation of sea areas and continental shelves based on these features.

Another thing is beyond the maximum territorial sea of 12 nautical miles and beyond the waters and continental shelves of coastal and island states as defined in accordance with the UNCLOS are the high sea and the zone. These are “common heritage of mankind” under the legitimate rights and interests of all nations, regardless of whether they are coastal or not.

UNCLOS is not a magic wand

UNCLOS is an important global legal document, meeting the need of the international community for an international legal framework for all issues concerning seas and oceans. The question is whether the convention can play a decisive role in dealing with emerging maritime problems like disputes and disagreement in the East Sea?

According to Dr. Tran Cong Truc, although UNCLOS devises quite clear and obvious provisions, the concerning problem is that disputes are still happening in waters like the East Sea due to the hegemony of a number of countries which want to dominate the sea. That is also partly due to the fact that some UNCLOS regulations are just principle-based and vague.

Vietnam is consistent with the policy of dealing with disputes in the East Sea by peaceful means and on the basis of international law, especially UNCLOS and the Declaration on the Conduct of Parties in the East Sea (DOC). However, some countries have interpreted and applied UNCLOS in different ways. Apart from that, some others have intentionally interpreted and applied UNCLOS wrongly to satisfy their illegal and groundless demands, infringing upon the legitimate interests of other countries and even exerting negative impacts on UNCLOS.

In the East Sea now exist two types of disputes, mostly territorial disputes concerning the sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands. The rest are those concerning the waters and continental shelves of coastal countries when applying UNCLOS. These two types of disputes are completely different in nature, requiring different legal principles to deal with. However, both of them exist in parallel as they are occurring in the same geographical area.

According to Dr. Tran Cong Truc, these two matters must be separated. Disputes concerning the Hoang Sa and Truong Sa Islands are in fact sovereignty disputes created by some countries and territories in the region as they used force to capture part of or all of an archipelago of Vietnam in the East Sea. Meanwhile, the disputes over the sea border and continental shelves are formed during the changes in terms of geo-politics and geo-economics in the world with the fact that about 36% of the sea and ocean area is managed by coastal countries since the birth of UNCLOS. The result is there are now more than 400 disputes concerning sea border.

“UNCLOS only serves as a legal basis to settle maritime disputes, including disputes due to the incomplete or partially incorrect interpretation and application of UNCLOS,” emphasized Dr. Tran Cong Truc. Therefore, UNCLOS is not a magic wand to solve all disputes at sea as some people may assume.

However, islands and archipelagos are features that exist at sea and have natural relations with the marine space and continental shelves, not only in geographical terms but also in legal aspects. UNCLOS devises provisions specifying what islands, reefs, shoals, archipelagos, archipelagic states are and their effects in defining relevant waters and continental shelves. These concepts are specified so clearly and in much detail that no one has the right to misinterpret or replace them with other concepts for their own benefits.

(To be cont.)

Translated by Huu Duong