What the UN Convention on the Law of the Sea has meant in 25 years

By Le Thi Tuyet Mai   August 9, 2019 | 10:11 pm PT
What the UN Convention on the Law of the Sea has meant in 25 years
A Chinese coast guard ship sails next to a Vietnamese coast guard vessel (front) near Vietnam's Paracel Islands, May 14, 2014. Photo by AFP/Hoang Dinh Nam.
The United Nations Convention on the Law of the Sea (UNCLOS) is an overarching framework for establishing legal order for the seas and oceans, promoting maritime development and cooperation.

This year marks the 25th anniversary of the entry into force of the UNCLOS as well as the ratification and deposit of the instrument of ratification by Vietnam to the Secretary-General of the United Nations. Its active participation to and implementation of the Convention shows Vietnam’s good faith, respect and hope for an equitable legal order for the seas and oceans. The Resolution dated June 23, 1994 of the National Assembly of Vietnam emphasizes: "By ratifying the 1982 United Nations Convention on the Law of the Sea, the Socialist Republic of Vietnam 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

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).

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

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 abovementioned 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

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.

Being a coastal state and a party to UNCLOS, Vietnam has been making its utmost efforts for peaceful resolution of maritime issues in the East Sea in accordance with international law, including UNCLOS. Furthermore, Vietnam 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, Vietnam 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.

*Dr. Le Thi Tuyet Mai is a member of the Executive Board of Vietnam Society of International Law, Chair of Vietnam Lawyers Association Branch at the Ministry of Foreign Affairs, Director General of Department of International Law and Treaties. Views and opinions expressed are her own.

(The title for the article was written by VnExpress International.)

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