National sovereignty and territorial integrity are solemn matters, of which national territory and border are closely related. Modern international law and practice recognize the integrity of national border and territory. After the Second World War, the 1945 Charter of the United Nations stated in Article 2, section 4 a stipulation on the prohibition of the use of force to violate the territory of a nation. The steadfast, persistent and fierce resistance of colonized countries after the second World War, in which Vietnam was the vanguard with the victory of Dien Bien Phu, resulted in a more specific and comprehensive resolution of the UN on this issue.
Situated in Indochina, Vietnam has the total land border of 4550 km with China to the North and Lao, Cambodia to the West, faces the South China Sea to the East. On the map, Vietnam has the S shape, stretching 1650 km from the 23’23 to 8’27 North latitudes. The widest part on land is about 500 km and the narrowest is about 50 km.
Vietnam faces the sea to the East, South and South West, with the coach line of 3260 km from Mong Cai (North) to Ha Tien (South). The East Sea (South China Sea) within Vietnam’s sovereignty stretches to the East, South East and South West, has the continental shelf and is surrounded by islands and archipelagoes. Just within the Tonkin Guff alone, there is a group of 3000 islands in Ha Long Bay, Bai Tu Long, Cat Hai, Cat Ba and Bach Long Vi islands. Further are the Spartly and Paracel Archipelagoes. To the South West and South, there are some island groups of Con Son, Phu Quoc and Tho Chu.
Given this favourable geographical position, Vietnam has a lot of potential for the socio-economic development both in land and on sea. Having a large East Sea, Vietnam has been exploiting her sea for her own benefit, including exploitation, fishing and other activities within her territory and in accordance with International Law.
Sovereignty claims on the South China Sea
The South China Sea is a large sea with a total area of 3.5 million square meters. Given the abundance of its natural resources, the South China Sea has an integral role in the economic development of many countries in the region. The South China Sea is rich in bio-resources and is considered one of the major fishing grounds of the world. Its continental shelf contains a lot of mineral resources, especially oil reserve in huge quantity. The discovered oil is 640 million tons; natural gas is 930 billion cubic meters. Some experts assume that the total oil reserve in the South China Sea may reach 42.7 billion tons. Besides, there exist 116 different minerals, of which 69 have the reserve identified and given 1400 positions exploitable. Let alone its mineral resources, the South China Sea also situates in a strategic position of crucial transportation routes, including oil-transportation routes to the US and Japan. The South China Sea is one of the busiest sea-lines in the world and an important part of the sea route connecting West Europe-Middle East and the Far East. It is also a buffer zone for China, Japan and Korea to link with South East Asia, South Asia, West Asia, Africa and Europe. Notably, the Spartly Archipelagoes has a crucial position on the sea route from Pacific to Indian Sea. It is not only on the sea routes of the South China Sea, but also poses a great influence on the Malacca straight. More than half of bulk-oil carriers of the world travel through the South China Sea. The quantity of oil transported through the South China Sea is 5 times greater than through the Suez channel and 15 times greater than Panama channel. 90 % of Japan’s and Korea’s imported oil, 98 % of Taiwan’s and 88% of China’s are through South China Sea, of which 48% from the Middle East, 22 % from Asia-Pacific countries and 18% from Africa. Therefore, the South China Sea plays a crucial role in energy security of East Asia and South East Asia countries. Its sky also covers important flight routes. Most of air-transportation of Vietnam, China, Japan, Korea and South East Asian countries pass through this area. The West Europe-Middle East –Far East air route, one of the busiest in the world, also pass through South China Sea. Therefore, the issue of South China Sea has became a special and topical one in recent years and involved most of the countries in the region like China, Taiwan, the Philippines, Indonesia, Malaysia, Thailand, Cambodia, Brunei, as well as some other countries outside the region like Japan, Korea, the US and Russia. Among these countries, Vietnam is under direct influence with several complicated problems. Each country has its own interest and strategy and not yet compromise with the other in resolving remaining issues, especially in the territory and sea resources division.
Therefore, settlements of disputes on South China Sea would bring about substantial benefit for concerned parties and make contribution to peace in the region and the world.
Legal background to define Vietnam’s sovereignty in the South China Sea
Base on international law, the UN Charter and the Law on Sea 1982, Vietnam has promulgated several legal documents in order to define her sovereignty on territorial waters, continental shelf and economic exclusive zone. They are namely:
– The Declaration dated 12 May 1977 of the Government on the territorial waters, the adjacent sea area, the economic exclusive zone and the continental shelf of the Socialist Republic of Vietnam.
– Declaration dated 12 November 1982 on the sea base line of Vietnam.
– The law on national border in 2003.
These documents state specifically that Vietnam’s territorial waters width is 12 miles, the economic exclusive zone together with the territorial waters’ width is 200 miles from the base line, etc. They also bear many other legal stipulations regarding the management, exploitation and the protection of rights in the South China Sea. These documents are totally in accordance with international law and the 1982 Convention on the Law on Sea of the United Nations.
About bilateral and regional treaties on sea delimitation
These treaties pave the way for cooperation in dealing with issues of national sovereignty on territorial waters and at the same time, help to further consolidate the solidarity and friendship between Vietnam and neighboring countries, thus avoiding any harm to the existing fine relations with other ASEAN member countries. These treaties include:
– The Agreement on the common historic waters between Vietnam-Cambodia dated 7 July 1982.
– With Malaysia: The Memorandum of Understanding dated 5 June 1992 stipulates the scope of the “identified zone”. Within this zone, Vietnam and Malaysia has nominated their respective representatives (PETROVIETNAM and PETRONAS) to carry out exploration and exploitation activities. On the 29th of July 1997, the first ton of oil was brought up in Bunfa Kekwa oil field, marking an important success for both sides in the join management and exploitation of natural resources, as well as providing invaluable experiences in solving disputes in other areas.
– In the Thailand Gulf: Vietnam has an overlapping sea zone with Thailand, Malaysia and Cambodia. With the total area of 300,000 square km, Thailand Gulf is valuable in many terms and consequently, disputes are unavoidable. Vietnam has settled the sea delimitation with Thailand in this gulf and the two countries are heading toward join exploitation in the gulf. The two sides signed the Agreement on the delimitation of the economic exclusive zone and the continental shelf on the 9th of August 1997. This was one of the first agreements reached in the Thailand Gulf and opened a new chapter in Viet-Thai relations.
– Vietnam and China in the Tonkin Gulf: The Agreement on the delimitation of Tonkin Gulf in 2000 and the Agreement on fishery cooperation were signed by the two countries in accordance with basic principles of the 1982 Law on Sea.
– The Agreement on the delimitation of the continental shelf between Vietnam and Indonesia dated the 26 of June 2003.
– Especially, Vietnam and countries in the region has participated in the Declaration on the Conduct of Parties in the South China Sea-DOC on the 4th of November 2002. Some of the main contents of this DOC are: “reaffirm commitments to the objectives and principles of the UN Charter and the UN’s Convention 1982 on the Law on Sea”, “refrain from inhabitant activities in islands, sand strips and low islands”, “commitment to the settlement of disputes in peaceful manner” and “respect the rights to free movement on sea and in the sky over the South China Sea”. ASEAN countries latter on has set up a mechanism to monitor the situation in the sea. Thought negotiation on it was dragged on for a long period of time, DOC is not a treaty with substantively negotiated terms. This declaration is applied for the whole South China Sea and does not confine to the Thailand Gulf or the Spartly Archipelagoes only. DOC is a major breakthrough for cooperation and peaceful settlement of conflicts in the region, of which Vietnam has made significant contribution.
- OVERVIEW OF VIETNAM’S LAW ON THE SEA
Vietnam has numerous/ various regulations concerning to sea from the strongest regulations such as: 1992 Constitution, Laws, Decree etc to international treaties with aims to formulate and protect Vietnam’s sovereignty so as to exploit and utilize natural resources in the sea, all the documents comply with international regulations and treaties, some of them are as follows:
1. 1992 Constitution: There are 12 Chapters, 147 Articles in the Constitution. The Article 1 of Chapter 1 states that:
“The Socialist Republic of Vietnam is an independent and sovereign country enjoying unity and territorial integrity, including its mainland, Islands territorial waters and air space.”
2. The 2003 Law on National Border: There are 6 Chapters and 41 Articles, with some relevant articles on the sea as follows:
Standpoint: National border of Vietnam is inviolable and must be respected. The works of construction, management and protection of national border of Vietnam have significant meanings within Vietnam’s territorial integrity and national sovereignty, contributing to maintain political stability and socio-economic development, strengthen national defense and security.
Chapter 1: – There are 14 Articles with some contents like: legal regime with national border, including: Formulation, management and protection of national border. Legal regime, management and protection of contiguous zone, exclusive economic zone and continental shelf of Socialist Republic of Vietnam, which is in line with 1982 UNCLOS and international treaties that Vietnam is a member.
National border in the sea has been defined and marked by co-ordinate system in the sea map, including border outside territorial sea of the lands, islands of Vietnam in accordant with 1982 UNCLOS and international treaties undertook by the government of Vietnam.
Borders outside the contiguous zone, exclusive economic zone and continental shelf of Vietnam clarify right of sovereignty and jurisdiction of Socialist Republic of Vietnam in accordant with 1982 UNCLOS and international treaties undertook by the government of Vietnam.
Sea border areas in Vietnam are calculated from national border in the sea to the administrative zones of communes and towns located nearby the sea, island and archipelago.
Internal Water of Vietnam include:
- Water zone located inside the baseline of Vietnam;
- Port water areas.
Territorial sea of Vietnam extends up to 12 nautical miles from the baseline. Territorial sea of Vietnam includes territorial sea of land, island and archipelago.
Chapter 2 has 10 articles focusing on legal regime on national border, border areas, such as:
Innocent passage of Oversea ships/ carriers in Vietnam’s territorial sea must abide by Vietnamese regulations and international treaties undertook by the government of Vietnam. Submarines and similar transportation means must float and display its nationality flag.
Oversea ships/ carriers operated by nuclear power, ships carried radioactive substance and other damaged substance traveled through Vietnam’s territorial sea must have full legal documents and equip special preventive measures according to Vietnam regulations and international treaties undertook by the government of Vietnam.
Those ships/ carriers must be get permission from Vietnam authority when operated in the Vietnam’s territorial sea.
Chapter 3 has 10 articles with some contents like: Dispute settlement procedures related to national border must abide by Vietnamese laws and international treaties undertook by the government of Vietnam.
Chapter 4 has 3 articles with some contents like: Management on national defense, formulate and guide the implementation of policies and strategy on national border; negotiate, sign and implement international treaties on national border; international cooperation in the works of construction, management and protection of national border.
Chapter 5 and 6: Reward, violation settlement and implementation of the code.
3. Decree No. 161/2003/ND-CP dated 18 December 2003, promulgated by the Government to stipulate regulations on sea-border include 5 Chapters and 37 Articles. The Decree has promulgated some regulations as follows:
Activities conducted by Vietnamese/ oversea people, carriers, ships in the border areas with aim to manage and protect national border in the sea; maintain social security, order and safety in the sea border areas
People, ships and carriers; export/ import and transit of goods through sea route in accordant with Vietnam’s regulations and international treaties undertook/ signed by the government of Vietnam.
Legal management and protection regime for the contiguous zone, exclusive economic zone and continental shelf of Socialist Republic of Vietnam have particular regulations which are in line with the 1982 United Nation Convention on the Law of the Sea (1982 UNCLOS) and other international treaties that undertook or signed by the Government of Vietnam
Chapter 1 has 9 articles, with the following contents: Activities conducted by Vietnamese/ oversea people, ships and carriers in the sea border areas; investment and construction for the sea border areas in order to strengthen its capacities; construct infrastructural structure for management works and sea protection; Vietnamese/ oversea people and ships/ carriers must abide by this Decree and related regulations promulgated/signed by the government of Vietnam.
Chapter 2 has 3 articles – Regulations for Vietnamese people and ships/ carriers operated in sea border areas with some contents like: Needed legal documents for Vietnamese people and ships/ carriers operated in the sea border areas; People and ships/ carriers with missions to explore and conduct scientific researches, survey sea geological area and natural mineral in the sea border areas must have permission from state authorities.
Chapter 3 has 9 articles- Regulations for oversea people and ships/ carriers operated in sea border areas with some contents like: Needed legal documents for oversea people and ships/ carriers operated in the sea border areas; Oversea ships/ carriers operated in the sea border areas must display their nationality flag and Vietnamese flag; the transportation of the ships/ carries must not result in any harms in Vietnam territorial sea; Oversea ships/carriers must abide by 1982 UNCLOS, related regulations and other related regulations on the prevention of sea collision and regulations/ laws and international treaties undertook by the government of Vietnam. Incase oversea ships/ carriers exposing clear risks of causing pollution, they must change their route out of Vietnamese territorial sea; Oversea people and ships/carriers when conducted activities of investigation, exploration, exploitation, research, catching of first and mineral resources etc must get permission from Vietnam authority.
Chapter 4 has 13 articles – Management and protection of sea border, with some contents as follows: the Government of Vietnam shall control/ conduct activities of management and protection of national border in the sea; maintain security and social order in the sea border. The monitoring, checking, supervising and arresting of ships/carriers violated Vietnamese regulations must go in line with Vietnamese laws and international treaties undertook by the government of Vietnam. Oversea people and ships/ carriers when go through (in and out) the border of Vietnam must present related documents concerned to their activities with the Border Security Unit and they must be supervised by Border Army. Regulations on activities conduced by Vietnamese/ oversea people and ships/carriers in sea port and military port shall be promulgated by the government and ministry/ provincial authority according to their jurisdictions.
Chapter 5 has 3 articles – Regulate the implementation of the Decree.
Besides, to manage sea border areas, the Decree also promulgated specific communes, districts belonging to sea border areas.
4. Declaration dated 12 November 1982 regarding the base-line
On 12th November 1982, the government of Vietnam announced the Declaration on baseline to measure the seaward limits of a State’s territorial sea and reassure the standpoint to address disputes through “negotiation”. With the standpoint, Vietnam has successfully negotiated and addressed lots of issues relevant to sea delimitation such as: International treaty on sea delimitation with Thailand in 1997, International treaties on Gulf of Tonkin and Fishing Cooperation with China in 2000. On 14th March 2005, the Triple Arrangement of Vietnam-China-the Philippines of on the geological surveillance of The Spratly Islands has been signed after long time discussion with the principle of protecting sovereignty, exclusive economic zone and continental shelf in Vietnam’s islands. This Arrangement is considered a solution contributing to the maintaining of peace and stability in the region. Currently, Vietnam continues to promote negotiations on the delimitation in the gate of the Gulf of Tonkin with China, sea delimitation with Cambodia and joint development and exploitation of oils in the overlapping zone among Vietnam, Thailand and Malaysia (starting from 1998).
5. Declaration dated 12 May 1977
On 12th May 1977 the government of Vietnam announced the territorial water extends up to 12 nautical mile, continuous zone extends up to 12 nautical miles, Vietnamese Exclusive Economic Zone, in combination with Vietnam’s territorial sea extends up to 200 nautical miles; Vietnam’s continental shelf extends up to the fringe of continental shelf. Incase the fringe of continental shelf do not extent up to 200 nautical miles, 200 nautical miles shall be applied for such areas.
In addition to the above mentioned documents, Vietnam has promulgated various kind of regulations, directly and indirectly mentioned to the development and management o sea such as: 1993 Oil Code (supplemented and amended in 2008), Law on environmental protection 2005, Maritime Law 2005, Law on Aquaculture 2003 and Law on Water resource 1998.
II. NEGOTIATION, SIGNING AND PARTICIPATION IN INTERNATIONAL TREATIES
- With Cambodia
In the sea, on Jul 07, 1982, both governments signed the agreement on forming the joined historial water territory and agreed that: Shall negotiate at a suitable time for defining the borderline on the sea and consider the line Brévié drew in 1939 as the administrative line to divide islands between two countries.
The Prime Ministers of two countries agreed to set up a working group to discuss and settle the borderline division between two countries and the necessary solutions to maintain the security and stability in the border region with a view to building a permanent peace and friendship borderline between two countries.
Under the agreement between the Prime Ministers of two countries and on the occasion of the Prime Minister Ung Huot’s visit to Vietnam early June 1998, the united expert group on Vietnam – Cambodia border met in Phnompenh from Jun 16 – 20, 1998. During the meeting, the two sides decided to keep implementing the treaties and agreements on border of two countries, which were signed in 1982, 1983 and 1985. The two sides spent much time debating several issues regarding their opinions of water and land border with the expectation of building a permanent peace and friendship borderline between two countries.
The Agreement on historical water territory of the Socialist Republic of Vietnam and the People Republic of Cambodia dated July 07, 1982 in brief. The Agreement comprises of 3 articles as follows:
To consolidate and develop the special relationship of Vietnam and Cambodia in the spirit of a peace, friendship and corporation treaty between Vietnam and Cambodia signed on February 18, 1978.
To settle issues on water territory between the the sealine of Kien Giang province, Phu Quoc island to Tho Chu archipelago of Vietnam and the the sealine of Kampot province to Poulowai island group of Cambodia, It includes the water territories, which belong to Vietnam and Cambodia for a very long time and it is defined on basis of their specially geographic characteristics as well as their important role to the economy and defense of each country.
The water territory between the the sealine of Kien Giang province, Phu Quoc island and Tho Chu archipelago of Vietnam and the the sealine of Kampot province to Poulowai island group of Cambodia is the historical water territory of two countries under the limited internal water regime (according to East Greenwich meridian):
On the Northern West, it is limited by the line connecting co-ordinates “09o 54’2 North latitude – 102o 55’2 East longitude” and 09o North latitude – 102o 57’0 East longitude” in Kol Sès (Cambodia) to co-ordinate “10o 32’4 North latitude – 103o 48’2 East longitude” on the coastline of Kampot province (Cambodia).
On the Northern, it is limited by the coastline of Kampot province from the co-ordinate “10o 32’4 North latitude – 103o 48’2 East longitude” to the landmark on the the sealine of the land borderline between Vietnam and Cambodia.
On the Southern East, it is limited by the line connecting from the landmark on the coastline of the land borderline between Vietnam and Cambodia to the co-ordinate “10o 04’ 2 North latitude – 104o 02’ 3 East longitude” in An Yen cape in Phu Quoc island – Vietnam and rounding the north bank of the island to Dat Do cape at co-ordinate “10o 02’ 8 North latitude – 103o 59’ 1 East longitude, stretching to co-ordinate “09’ 18’ 1 North latitude – 103o 26’ 4 East longitude in Tho Chu island (Vietnam) to co-ordinate “09’ 15’ 0 North latitude – 103o 27’ 0 East longitude” in Hon Nhan island of Tho Chu archipelago in Vietnam.
On the Southern West, it is limited by the line from co-ordinate “09o 55’ 0 North latitude – 102o 53’ 5 East longitude” in Poulo Wai island to co-ordinate “09o 15’ 0 North latitude – 103o 27’ 0 East longitude” in Hong Nhan of Tho Chu archipelago in Vietnam.
The patrol and guard in this historical water territory is made by both sides.
The fishing of local people in this territory is still in compliance with the traditional custom. Both sides will come into negotiation before exploiting mineral resources in this territory.
- With Malaysia
There is an overlapping water territory covering the exclusive economic zone and continental shelf with an area of around 28,000 km2. This water territory was found by the boundary zone on continental shelf and was announced in 1971 by former Saigon Authority. The boundary on continental shelf was described in Malaysia’s water territory map and was announced in 1979. The difference derived from the reason that the former Saigon Authority included Hon Khoai island and other islands of two countries but Malaysia just counted its the seaal islands and ignored Hon Khoai of Vietnam (Hon Khoai is about 6.5 nautical miles far from the mainland).
In May 1992, Vietnam and Malaysia signed an agreement on joint exploration and exploitation co-operation of the overlapping water territory. Under this agreement, oil companies of two countries were entrusted with signing the trade arrangement and conducting the exploration and exploitation co-operation, then sharing products. The division of overlapping territory would be settled later. The co-operation of oil industry between two countries is still going on.
In addition, the area of overlapping water territory between Thailand and Malaysia is about 7,250 km2, of which 800 km2 relate to Vietnam. Three countries agreed to discuss the joint exploitation of overlapping water territory together.
Vietnam and Malaysia’s governments have made affirmation for quite a lot of time that they will solve all disputes between two countries through peaceful negotiation and in compliance with the international law.
- With Philippine
Philippine has no sovereignty over Spratly archipelago. Under the Paris agreement signed in 1898 between the US and Spain, The Philippine was taken over by the US from Spain. Phillipino archipelago was defined in the map together with the agreement accordingly. As a result, Philippine does not include any island of Spratly archipelago as described in the map.
Since 1951, The Philippine started to dispute Spratly archipelago with the statement of Philippine’s President that Spratly archipelago must belong to Philippine because it is near the Philippine.
In the early 1979, the Philippine promulgated a decree signed by President Marcos on Jun 11, 1978 that it considered Spratly archipelago (except Spratly island) as its territory and named Spratly archipelago as Kalayaan.
From 1978 to 1994, Vietnam and the Philippine has had meetings at levels of Ministry of Foreign Affairs, Prime Minister and President to reach an agreement that both countries will settle all disputes via peaceful negotiation in the spirit of mutual friendship, conciliation and belief.
On Nov 07, 1995, Vietnam and Philippine’s Ministries of Foreign Affairs came into agreement of 9 basically behavior principles towards the disputed water territory including:
– Two parties agreed to seek solution to the dispute of sovereignty over Spratly archipelagos through peaceful means.
– Keeping restraint or not to use armed forces, promoting bilateral or multilateral co-operation on environmental protection, scientific research, meteorology, anti-disaster, salvage, anti-pirate and control of environmental pollution, protection of marine resources in Spratly archipelago.
– Ensuring free maritime as stipulated by the international laws.
– To reinforce co-operation and to settle all disputes over the sovereignty of Spratly archipelago.
From the end of April to May 1996, two sides had conducted successfully a joint survey on marine science at the Spratly archipelago and South China sea. Two sides will keep conducting jointly scientific surveys on the archipelago and South China sea. Vietnam-Philippine United Committee – led by two countries’ Ministers of Foreign Affairs – convened in January 1997 in Hanoi and reached an agreement on several measures to gain trust of two sides, including the mutual exchange of visits of army commanders and encamped forces on the archipelago.
- With Thailand
There is an overlapping water territory between Vietnam and Thailand. It starts from the boundary outside Vietnam continental shelf, which was announced in 1971 by former Saigon authority and the boundary of Thailand continental shelf, which was announced in 1973. The reason is that while Vietnam recognizes 100% effect of Tho Chu island, Thailand still denies its effect although Tho Chu island had a population of about 500 people and had an independent economy at that time. After the agreement on historical water territory was signed between Vietnam and Cambodia in 1982 (in which, the sovereignty of islands between two countries were defined; Wai island is under the sovereignty of Cambodia), the area of overlapping water territory between Vietnam and Thailand is about 6,000 km2.
The Agreement on defining the boundary on the sea in Thailand gulf dated Sep 08, 2007 between the Socialist Republic of Vietnam and Thailand in brief. The Agreement comprises of 6 articles as follows:
To consolidate the existing friendship relation between two countries.
To define the boundary on the sea between two countries in Thai gulf at the overlapping water territory in accordance with the continental shelf’s claims of two countries.
The boundary on the sea between Vietnam and Thailand at the overlapping water territory in accordance with the continental shelf’s claims of two countries is the line connecting point C with point K. This line is localized by below latitude and longitude.
Point C: Latitude 07o 49’ 00’’.000 North
Longitude 103o 02’ 30’’.000 East
Point K: Latitude 08o 46’ 54’’.7754 North
Longitude 102o 12’ 11’’.5342 East
Point C is the Northern pole point of the joint development zone and is defined according to agreement between Thailand and Malaysia on setting up jointly authorized agency for natural resources exploitation in sea bed in the overlapping continental shelf between two countries in Thai gulf.
Point K is a point that is in the border on the sea between Vietnam and Cambodia.
The borderline on the sea is the boundary between continental shelves of Vietnam and Thailand and is the boundary between exclusive economic zones of Vietnam and Thailand also.
All parties will negotiate with Malaysia to settle the overlapping continental shelf between 3 countries. All parties recognize their jurisdiction and sovereignty respectively towards the continental shelf and exclusive economic zone in accordance with the boundary on the sea that defined by this agreement.
If there is any structure of oil or natural gas field or mineral mine in the sea bed across the boundary, all sides will inform to each other all information related and will negotiate the best way to effectively exploit the above-mentioned structure of oil or natural gas field or mineral mine. The interest gained from the exploitation will be equally shared.
All disputes relating to explains and application of the agreement will be peacefully settled via discussion and negotiation.
- With Indonesia
The distance between Vietnam and Indonesia is about 250 nautical miles, starting from Con Dao to North Natuna. These are 2 furthest islands of 2 opposite countries. Therefore, there had been no any dispute relating the border of two countries before (the distance between Vietnam’s coastline and Bornéo coastline is more than 400 nautical miles). Now, due to the development of international law on marine, two countries have to define the boundary of the continental shelf and exclusive economic zones.
From 1978, Vietnam and Indonesia started on negotiation. Vietnam’s viewpoint is to base on the definition of the continental shelf that the continental shelf is the natural stretch of mainland. Thus, the boundary should be defined on basis of the gap dividing the natural stretch of two continental shelves. The difference in opinion of two countries created a disputed water territory with the area of around 92,000 km2 at first.
On Jul 26, 2003, after rounds of negotiation, a treaty was signed between the Socialist Republic of Vietnam and the Government of the Republic of Indonesia on defining boundary of continental shelf and is considered a legal base for defining the boundary of continental shelf and other overlapping water territories (this treaty went into effect since May 06, 2008).
The Agreement on defining the boundary of continental shelf dated July 26, 2002 between the Socialist Republic of Vietnam and the Government of the Republic of Indonesia in brief. The Agreement comprises of 6 articles as follows:
To consolidate and develop the existing relationship between Vietnam and Indonesia and to define the boundary of continental shelf between two countries.
The boundary of continental shelf between Vietnam and Indonesia is defined by line-segments connecting in order points with co-ordinates as follows:
06o 05’ 48’’ North
105o 49’ 12’’ East
06o 15’ 00’ North
106o 12’ 00’’ East
06o 15’ 00’’ North
106o 19’ 01’’ East
06o 20’ 59,88’’ North
106o 39’ 37,67’’ East
06o 50’ 15’’ North
109o 17’ 13’’ East
The location of points and line segments on the sea will be defined by methods that were agreed by the authorized agencies of both sides.
The authorized agency of the Socialist Republic of Vietnam is Department of Survey and Map under the Ministry of Natural Resources and Environment. The authorized agency of Indonesia is Department of Water, Map and Ocean under Indonesian Navy.
Both sides will exchange and consider the viewpoint of the other in order to match its policies with international laws on the protection of sea environment
In case of discovering the structure of oil or natural gas field or mineral mine located across the boundary in sea bed, both sides will inform to each other all information related and come into negotiation on the way to effectively exploit the above-mention field-structure and on sharing interest gained from these exploitations.
All disputes arose during the explaination and implementation of the agreement will be peacefully settled via negotiation.
6. With the People’s Republic of China
Agreement between the Socialist Republic of Viet Nam and the People’s Republic of China on the Delimitation of the Territorial Sea, Exclusive Economic Zone and Continental Shelf between the Two Countries in the Tonkin Gulf
The Guft of Tonkin (Beibu)is enclosed by Vietnam and China, it is 123.700 square kilo meters in area, the largest of its widthwise is about 320 kilometers (176 nautical miles) and the narrowest is about 220 kilometers (119 nautical miles). The coastal of Vietnamese side is about 763 kilometers, Chinese side is about 695 kilometers. There are 2300 Vietnamese coastal islands and islets in the Gulf. Of particular importance is the 2.5 square km Bach Long Vy Island, which is located near the middle of the inner Tokin Gulf – 110 km from the nearest Vietnamese coast and 130 km from Hainan Island.
The Guft of Tonkin has the important strategic position for Vietnam and China on Security and Defence. The features of Bacbo Guft is the width is quite narrow, and there was not the delimitation between two countries before. According to the UNLOS 1982 of United Nations, whole the Guft is the overlap area and in fact there was the disputes, they badly effect to the relationship between the two countries
Vietnam’s Viewpoint of Delimitation of the Guft of Tokin
Base on “Agreement of Principle” between the two countries which concluded on 19th October 1993, Vietnam affirms priciple standpoint of delimitation The Guft of Tonkin base on international practice and law, and also mentions to concernned conditions and situations in The Guft of Tonkin in order to obtain a fair resolution which the two countries can accept
Specific contents of Delimitation
+ Scope of delimitation The Guft of Tonkin: The definition of scope of delimitation area need base on objective natural conditions and comply with legal standard. The Guft of Tonkin is enclosed by the islands of Vietnam and China. In the South of The Guft of Tonkin – the mouth (estuary) of The Guft of Tonkin – Con Co Island lies next to the coastaline – is one of components of coastaline, it is also the point to account the width of territorial water of Vietnam. So the difining limit of the south of The Guft of Tonkin Mouth is the line which connected by Con Co island (belong to Vietnam) and Oanh Ca Cape (the nearest point of Hainam – China) suitable with specific conditions of The Guft of Tonkin and legal standards.
+ Delimitation exclusive econoomic and continental sheft: The Guft of Tonkin is a narrow sea, the widest is not over 400 nautical miles. According to the law of the sea, The Guft of Tonkin does not conclude high seas, this regulation is stipulated in UNLOS 1982 and in fact it become custom normatives which are recognised and applied widely in international practice. Beginning of practice, Vietnam suggested to use a joint boundary for seas and continental sheft, in order to make advantage for control and co-operation of the two countries later.
The negotiation about fishery co-operation is also carried out parallel with the Agreement of Delimitation The Guft of Tonkin. However, until april 2000, Vietnam agreed to negotiate about fishery co-operation. Over 6 rounds of negotiation about fishery co-operation at specialist level, The two countries agreed to create a joint fishery zone from 200 latitude to the line to enclose Guft Mouth. This zone have the wide is about 30,5 nautical miles from the boundary delimitation to each side and The area covered is 33,500 square kilometers, It means 27,9% the area. So it distance the coastal line of each countries: majority distance the coastal line 35 to 59 nautical miles and there are two point distanced 28 nautical miles. The term of this Zone is 15 years (12 formal years and extend to another 3 years automatically afterwards)
Three big principle of Common Fishery Zone are:
– Each country have the right to inspect and control the fishing boards which are allowed to entry Common Fishery Zone the for fishing;
– The product of fishing and quantity of boards which are allowed to entry Common Fishery Zone the for fishing based on the equal principle, based on products of fishing which are determined through recurrent conjugate investigate;
– Each party has the right to co-operate with the third party for fishing in the Common Fishery Zone. The two Parties agreed to establish the Sino-Vietnamese Joint Committee for Fishery in order to build the scheme related to Common Fishery Zone
The concluding Agreement between the Socialist Republic of Viet Nam and the People’s Republic of China on the Delimitation of the Territorial Sea, Exclusive Economic Zone and Continental Shelf between the Two Countries in the Tonkin Gulf is an important even to Vietnam and the relationship between Vietnam and China. With the concluding on the Delimitation Agreement, Vietnam definitively resolves the second issue of three border, territory issues which have existed between two countries (boundary on land, Beibu Guft and South China Sea). The clear delimitation of boundary territorial waters outside estuary Bac Luan, scope of Exclusive Economic Zone and Continental Shelf between the Two Countries in the Tonkin Gulf to make the advantage for control and remain stability in the Tonkin Gulf, to contribute strengthen the confidence and to promote the co-operation on all aspects between the two countries.
2. Agreement between the Socialist Republic of Viet Nam and the People’s Republic of China on the Delimitation of the Territorial Sea, Exclusive Economic Zone and Continental Shelf between the Two Countries in the Tonkin Gulf, effective dated 30th June 2004. The Agreement includes 11 Articles with the contents as follow:
Desiring to strengthen and enhance the traditional bonds of friendship and neigh- borliness between the two countries and the peoples of Viet Nam and the peoples of China, maintain the stability and promote the development of the Tonkin Gulf
Basing themselves on the principles of mutual respect for independence, sovereignty and territorial integrity, nonaggression, no-interference into one another’s internal af- fairs, equality, mutual benefit, and peaceful coexistence;
In the spirit of mutual understanding and accommodation and friendly consultations for an equitable and reasonable solution to the delimitation of the Tonkin Gulf
In this Agreement, In this Agreement, the Tonkin Gulf is a semi-enclosed gulf bordered by the continental coastlines of Viet Nam and China to the North, by the coastlines of the Lei Zhou peninsula and Hainan island of China to the East, by the continental coastline of Viet Nam to the West and by the straight lines connecting the outermost point of the outer edge of the Yieng Ge cape, Hainan island of China defined by the geographical coordinates of Latitude 18o 0’19” North, longitude 1080 41’17” East, crossing Con Co island of Viet Nam to a point situated on the coastline of Viet Nam specified by the geographical coordinates of latitude 160 57’ 40” North and longitude 1070 08’42” East.
The two Contracting Parties agreed on the delimitation line of the territorial sea, exclusive economic zone and continental shelf between the two countries defined by the straight lines connecting the following 21 points specified by coordinates and in the sequence given.
The two Contracting Party shall respect the sovereignty, sovereign rights, and jurisdiction of each other over their respective territorial sea, exclusive economic zone, and continental shelf in the Tonkin Gulf as provided for in this Agreement
If any single petroleum or natural gas structure or field, or other mineral deposit of whatever character, extends across the delimitation line defined in Article II of this Agreement, the two Contracting Parties shall, through friendly consultations, reach agreements as to the manner in which structure, field, or deposit will be most effectively exploited as well as on the equitable sharing of the benefits arising from such exploitation.
The delimitation of the territorial sea, exclusive economic zone, and continental shelf between the two countries in the Tonkin Gulf in accordance with this Agreement shall not affect or prejudice each Contracting Party’s positions on provisions of international law of the Sea
Any dispute between the two Contracting Parties arising out of the interpretation and
implementation of the Agreement shall be settled through friendly negotiations and consultations
1. Agreement on Fishery Co-operation in the Tonkin Gulf between the Government of the People’s Republic of China and the Government of the Socialist Republic of Vietnam, effectived 30th June 2004. The Agreement includes 22 articles, which regulates some fields as follow
For the purpose of maintaining and developing the traditional neighboring and friendly relationship between the two countries and between the two peoples, and of preserving and sustainably utilizing the marine living resources in the Agreed Water Area in the Tonkin Gulf,
The Contracting Parties shall undertake fishery cooperation in the Agreed Water Area based on the mutual respect for sovereignty, sovereign rights, and jurisdiction. Such fishery cooperation shall not affect the sovereignty of the two countries over their re-spective territorial seas and other rights and interests enjoyed by the two countries in their respective exclusive economic zones
Both Contracting Parties have agreed to establish the Common Fishery Zone in the respective areas of 30.5 nautical miles of the exclusive economic zones of the two countries from the demarcation line determined in the Delimitaion Agreement on Tonkin Gulf, north to the closing line of the Tonkin Gulf, and south of 20° N.
The Contracting Parties shall respect the principle of equality and mutual benefit and shall determine annually the quantity of operating fishing vessels for each party in the Common Fishery Zone through the Sino-Vietnamese Joint Committee for Fishery in the Tonkin Gulf established pursuant to Article 13 of this Agreement, based on the allow able catch determined on the basis of the results from joint regular surveys on fishery resources and the impact on respective fishing activities of both parties, and the need of sustainable development
Both Contracting Parties shall carry out the licensing system for fishing activities conducted by their own fishing vessels in the Common Fishery Zone. Fishing permits shall be issued in accordance with the quantity of fishing vessels in the current year determined by the Sino-Vietnamese Joint Committee for Fishery in the Tonkin Gulf, and the names of the fishing vessels granted permits shall be notified to the other party. Both Contracting Parties shall be obliged to educate and train their fishermen who conduct fishing activities in the Common Fishery Zone.
Fishing Vessels which intend to enter the Common Fishery Zone for fishing activities shall apply for the permit from the competent authorities of their own countries and may enter the Common Fishery Zone for fishing activities only after they have obtained the permit. The fishing vessels of the Contracting Parties for fishing activities in the Common Fishery Zone shall mark themselves in accordance with the regulations set forth by the Sino-Vietnamese Joint Committee for Fishery in the Tonkin Gulf.
The Contracting Parties shall establish the buffer zone in order to avoid disputescaused by illegal entry by mistake of small fishing boats of one party to the territorial sea of the other.
Each Contracting Party, if it finds that small fishing boats of the other party conduct fishing activities in its water area in the buffer zone, may send a warning, or take necessary measures to order them to leave that water area, but by so doing the Contracting Party shall restrain its action not to detain or arrest the vessels in question, nor to use force. If there is any dispute relating to fishing activities, it shall be reported to the Sino–Vietnamese Joint Committee for Fishery in the Tonkin Gulf for settlement; if there is any dispute beyond fishing activities, it shall be settled by relevant and respective competent authorities of the two countries in accordance with their domestic law.
The Contracting Parties have decided to establish the Sino-Vietnamese Joint Committee for Fishery in the Tonkin Gulf (hereinafter referred to as the Joint Fishery ComMittee) in order to implement this Agreement. The Joint Fishery Committee shall consist of two representatives respectively appointed by both Governments and several committee members.
The Joint Fishery Committee will make detailed regulations on its operational mechanism.
When the nationals and fishing vessels of one Contracting Party need assistance due to distress or other emergencies in the sea area of the other Contracting Party, the other Contracting Party shall be obliged to render salvage and protection, and notify in the meantime the relevant department of the counterpart Contracting Party of the relevant matters.
When the nationals and fishing vessels of one Contracting Party seek refuge due to bad weather or other emergencies, they may take refuge in the area of the other Contracting Party in accordance with the annex to this Agreement and the regulations of the Joint Fishery Committee, and after the contact with the other Contracting Party. During the refuge, the nationals and fishing vessels of that Contracting Party shall abide by the relevant laws and regulations of the other Contracting Party, and obey the management of the relevant department of the other Contracting Party.
Any dispute resulting from interpretation or application of this Agreement between the two parties shall be settled through friendly consultation
7. The Delimitaion on the Conduct of Parties in the South China Sea (DOC)
Starting from cognizant of the need to promote a peaceful, friendly and harmonious environment in the South China Sea between ASEAN and Chia for the enhancement of peace, stability, economic growth and prosperity in the region; on 4 November 2002 during the Eighth ASEAN Summit in Phnom Penh, Cambodia by leaders of ASEAN and China, ASEAN and China signed The Declaration on the Conduct of Parties in the South China Sea (DOC) with committed to enhancing the principles and objectives of the Joint Statement of ASEAN and of the People’s Republic of China in 1997 and desiring to enhance favourable conditions for a peaceful and durable resolution of divergences and disputes among countries concerned.
According to The Declaration on the Conduct of Parties in the South China Sea (DOC), the parties agreed contain themselve, to avoide the conducts which may cause strains and conflicts in the South China Sea; To organise ussually contractings of militaries of parties; To mutual inform about manoeuvres. In order to obtain this result, all parties had some consessions. The final document had the name of Declarateon on the conduct (DOC), it had not much tie as the initiallly expection of parties. However, The People’s Republic of China agreed to continue negotiating in order to progress to build a code which has much more ties. This document also did not mention about Paracell and Spratly archipelagoes as the requirments of some countries of ASEAN (Vietnam is among them), only mention the general south china sea. In side, finally countries of ASEAN agreed to cancell the pharse “not to build new grounds” in the area where the Philipinese required. This Declaration was general and not much tied, however the obtain of the Declaration is an important step on the dialogue progress between Chian and ASEAN. If parties serious implement the Declaration, it will hepl them to avoide the conflicts in the South China Sea as happed and to keep the stability for region
The Declaration specified co-operation requirement on 5 fields:
– Protection environment
– Marine science research
– Maritume safety and security
– Seeking and rescue on the sea
– Protest transnational criminality, including and not limit of deal in drugs, buccaneer, armed robbery, and traffic in arms
These co-operation fields were regarded as little delicate issue and a menthod to assist tù häc build the trust between the parties. These co-operation fields were regulated in the UNLOS 1982 and in practice they were bilateral or multilateral deployed between the countries in the region.
DOC also difined the general principle for co-operation is: “Form, scope and position of bilateral and multilateral co-operation conducts need to be unamious of concerned parties before that conduct to be done”
So the DOC turned aims, principles of ASEAN into reality by excepting the ability of armed conflicts or resolve disputes by force, gave the method for co-operation on the specific field.
III. VIETNAM’S POSITION REGARDING THE SETTLEMENT OF SEA DISPUTE
- General position
Vietnam’s viewpoint in settling disputes in the sea is through “negotiation”, settling all disputes by peaceful means in the basic of international regulations and practices, especially 1982 UNCLOS and the spirits of 2002 Declaration on the conduct in the East Sea (DOC) with aims to maintain peace and stability so as to seek basic long term solutions, where could be accept by all relevant parties.
In order to implement the Article 1 – DOC, Vietnam undertakes to apply international regulations to promote relationships amongst nations as stated in the Charter of United Nations, principles on peaceful living as well as other acceptable principles in international law, such as:
The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations,
The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered,
The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter,
The duty of States to co-operate with one another in accordance with the Charter,
The principle of equal rights and self-determination of peoples,
The principle of sovereign equality of States,
Vietnam always comply with Article 4 – DOC, this article stated that parties have obligations to settle disputes on territory by peaceful means, the principle that all parties shall refrain in their international relations from the threat or use of force against the territorial integrity
To implement the Article 7-DOC, once again Vietnam assures that all parties should negotiate relevant matters, DOC’s principles must be implemented to promote good/ long term/ transparent relationships in cooperation manner. This is a key method that Vietnam uses to promote East Sea to become peaceful/ stabilized and developed regions, facilitating long-term peaceful solutions.
2. About the Sovereignty in Spratly and Paracel archipelagoes
The policy of Vietnam in addressing dispute with China is mostly by peaceful means and negotiations. Vietnam firmly pursues “peaceful solutions” stipulated in the Arrangement on 19th October 1993 , which is to continue negotiating all matters in the East Sea so as to seek stable and fair solutions, avoiding threats to damage relationship between the two countries. The Spokesman of the Vietnam Ministry of Foreign Affairs said “For the East Sea, we assured that Vietnamese policies is through negotiation to settle all conflicts by peaceful means based on international regulations and practices, especially 1982 UNCLOS and the spirits of 2002 DOC. Consequently, Vietnam’s stance is quite opened, peaceful and respective with international laws.
3. Other matters
Vietnam has promoted and formulate her policies to implement international commitments for matters in the East Sea in an appropriate manner. Some successes have been achieved such as: the negotiation and implementation of DOC. Currently, Code of Conduct in the East Sea are being negotiated and promoted etc. The cooperation in exploration and exploitation of mineral resources has been developed, on 14th March 2005, three oil and petrol companies from Vietnam (Petro Vietnam), China (CNOOC) and the Philippine (PNOC) have signed Arrangement on seism survey in the overlapping areas in the East Sea. The vital matter in the East Sea is how to share interests/ benefits of exploiting mineral resources in the Ease Sea in a suitable and fair manner with aim to avoid conflicts.
Due to the historical process with nearly 100 years in the East Sea , in combination with the development of international regulations in the sea, especially 1982 UNCLOS, Vietnam and other South- East Asia have some matters/ disputes need to address in the East Sea and continental shelf.
As a member of 1982 UNCLOS, Vietnam has obligations to adjust and promulgate domestic regulations in line with the spirit of 1982 UNCLOS. One of the most important work for Vietnam is to readjust and supplement the regulations on straight baseline of Vietnam. In fact the system of Vietnam’s straight has not completed as yet. First Vietnam shall supplement the straight baseline regulations in the Gulf of Tonkin. The adjustment on baseline system in the Gulf will provide legal basic for the work of management and protection on the sea of Vietnam in the Gulf of Tonkin.
In spite of the fact that the Declaration on Vietnamese Sea has been announced by the government of Vietnam in 1977, so far Vietnam has not defined specific border in the South Western Sea of Vietnam. As a member of 1982 UNCLOS, Vietnam had officially announced her sea border, including the continental shelf with 200 nautical miles from the baseline in accordant with 1982 UNCLOS. Besides, Vietnam shall review all documents on legal regime on the sea of Vietnam with aim to adjust unsuitable regulations. Vietnam will formulate legal system on the sea in accordant with 1982 UNCLOS in the near future.
During many years, Vietnam has made considerable efforts to reach final negotiation with Thailand for sea delimitation in 1997 and China in 2000. Currently, the negotiation with Indonesia is nearly finished with small maters remained with overlapping regions in the sea. With Malaysia, Vietnam has reached Arrangement on joint development on overlapping regions, the works of delimitation are not key matter since Vietnam and Malaysia has Agreement on Joint Development on the sea.
Notes: In some cases, East Sea is stated as South China Sea
(From Journal of International Affairs – Aichi University (Japan) N 134/2009)