Why Malaysia keeps arresting Vietnamese fishermen, what can be done about it

On September 22, 37 Vietnamese fishermen were freed by Malaysia, but just five days later, 19 fishermen in two Vietnamese vessels were arrested by the same country.

This isn't new. The Philippines, Indonesia and many other countries have also arrested Vietnamese fishermen before.

But our fishermen have affirmed that they were operating in waters belonging to Vietnam's Exclusive Economic Zone (EEZ). There have been cases where Vietnamese authorities have managed to show proof that the captured vessels were located in waters where Vietnam is allowed to exploit resources in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). But the other sides invariably claim that the fishermen deliberately intruded into their own EEZs.

So what's going on?

As an ASEAN country on the edge of the East Sea, known internationally as the South China Sea, Malaysia has waters that overlap with Vietnam; more specifically, in the region near the Gulf of Thailand.

Between Vietnam and Malaysia, there's an overlapping of continental shelves spanning 2,800 km2. The overlapping is the result of differences between the continental shelf boundaries announced by the Saigon administration in 1971, and the continental shelf boundaries as shown on the nautical charts that Malaysia announced in 1979.

When the Saigon administration announced its continental shelf boundaries, they also counted the Hon Khoai Island (about 6.5 nautical miles from the shore) and other islands on both sides, but Malaysia only counted its coastal islands, not Vietnam's Hon Khoai.

While the area of the overlapping continental shelves between Vietnam and Malaysia is not much, it has great oil and gas potentials. Vietnam and Malaysia signed a Memorandum of Understanding for oil and gas exploration cooperation in the overlapped areas on June 5, 1992 in Kuala Lumpur. The memorandum has three main points.

First, both countries would confirm the coordinates of overlapped areas in accordance with continental shelf boundaries announced by Vietnam's general department of oil and gas in 1977 (which coincides with the Saigon administration's version issued in 1971) and the continental shelf boundaries as shown on the nautical charts that Malaysia announced in 1979.

Second, both countries would temporarily suspend the issue of determining which continental shelf belongs to whom; and cooperate on exploring and exploiting oil and gas sources, splitting costs and profits equally. Oil and gas exploration would be done under commercial settlements between Malaysia's Petronas and Vietnam's Petrovietnam once they are approved by both countries' governments. Such an agreement would not affect either country's stance or demand regarding the overlapped area.

Third, if oil and gas fields partially overlap with either Malaysia's or Vietnam's continental shelves, both sides would negotiate with each other on exploration and exploitation.

Once the agreement went into effect, the two countries' national oil and gas companies signed commercial settlements and performed oil and gas exploration and exploitation in the overlapped regions. Since 1997, barrels of oil extracted from those overlapped regions have been exported and profits have been split between both sides per their agreement.

Despite the existence of an agreement regarding overlapped continental shelves between Vietnam and Malaysia, there is no such agreement regarding the two countries' EEZs. This is part of why both sides accuse each other's fishermen of having trespassing into their fishing zones.

Recently, most cases of Vietnamese fishermen being captured by Malaysian authorities have happened when their vessels were located in the southern regions of the Spratly Islands.

The Vietnamese government has affirmed that it has full historical and legal basis to assert sovereignty over the Spratly Islands, but Malaysia is also a claimant over certain entities in the archipelago.

Malaysia's claims are based on its respective claims over continental shelves as determined by laws and other documents issued in 1966, 1979 and 2009.

In a map published on December 21, 1979, Malaysia showed that its boundaries of territorial waters overlapped with sea regions in the south of the Spratly Islands, including the Amboyna Cay and the Barque Canada Reef controlled by the Vietnamese army, and the Commodore Reef illegally controlled by the Philippines.

On April 29, 1980, the Ministry of Foreign Affairs sent a diplomatic note to Malaysia protesting its actions, and on May 8, 1980, in a visit and dialogue with Malaysia, the then foreign minister Nguyen Co Thach had asserted that the Amboyna Cay belonged to Vietnam.

In June 1983, Malaysia illegally occupied the first entity, Swallow Reef, among the entities it has laid claim to. In December 1986, the Malaysian army further occupied the Mariveles Reef and the Ardasier Reef. In June 1999, they moved on to the Erica Reef and the Investigator Shoal, increasing the total number of Spratly Islands entities illegally occupied by Malaysia to five.

Malaysia has also unilaterally claimed rights over sea regions surrounding these entities. This is one of the reasons why many Vietnamese vessels operating in Vietnam's fishing zones are still captured by Malaysian authorities. It is one of the important reasons why Vietnamese vessels are accused of illegal, unreported and unregulated fishing.

Possible solutions

Regarding overlapping sea regions in the Gulf of Thailand area, both Vietnam and Malaysia should continue to negotiate for a common fishing zone on the overlapping areas of the two countries' EEZs.

Regarding the southern region of the Spratly Islands, territorial disputes between Vietnam and Malaysia might be difficult to resolve, especially amidst current global tensions.

However, both countries can reach an agreement for a common fishing zone for their fishermen, and in the spirit of the UNCLOS, such an agreement would not affect either country's sovereignty claims.

Vietnam and Malaysia can also consider cooperation to patrol the area together, both for mutual protection and to instruct fishermen not to intrude into exclusive fishing zones.