Balancing the Rights of Coastal States and User States in the Post-UNCLOS Age: Vietnam and Navigational Rights

Tác giả: Phan Duy Hảo

Trong sách “Maritime Order and the Law in East Asia“, biên tập bởi Nong Hong và Gordon Houlden, 2018. 

Trích phần Kết luận:

Evidence from Vietnam’s behaviours in recent years indicates that there has been a major change in Vietnam’s perception of UNCLOS and the role of UNCLOS in the international maritime order. Specifically, the state has paid more attention to the impact of UNCLOS while formulating its foreign policy. It has also relied more on UNCLOS to buffet its maritime claims and referred to the treaty with some regularity as a source of guidance in drafting its domestic law.

At the international level, Vietnam continues to highlight the significance of UNCLOS in maintaining the world’s maritime order. It actively participates in various instruments that have been adopted to implement UNCLOS. It is worth noting that the state has repeatedly touted UNCLOS as the most important international law of the sea document that has met the desire and expectations of the international community for a fair international legal order of the oceans. The government’s representative has also called for a full implementation of UNCLOS, which includes the respect for the rights the coastal states have in their maritime zones. Also, the country has frequently emphasized the importance of the “comprehensive and effective dispute settlement system which offers States Parties important peaceful means for the settlement of their maritime disputes, thus protecting their legitimate interests as well as the interest of the international community.” This is a clear departure from the position it took in the negotiation of UNCLOS in which it “firmly opposed” any compulsory third-party settlement because that would violate “the principle of the sovereign equality of states.”

At the domestic level, Vietnam has established a relative comprehensive domestic legal framework to facilitate its implementation of UNCLOS. Recent laws, including the 2003 Law on National Border, the 2004 Fishery Law, the 2005 Maritime Code, the 2014 Environment Protection Law, the 2015 Law on Sea and Island Natural Resources and Environment and, in particular, the 2012 Law of the Sea have helped to bring the country’s registration much closer to UNCLOS. The old legal documents adopted in the pre-UNCLOS period have all been replaced and superseded. The picture is not perfect though, as one can still argue that a few provisions in Vietnam laws, including the straight baselines system, are not consistent with international law and UNCLOS. But it is clear that UNCLOS plays an increasing prominent role in Vietnam’s domestic legal order. Article 2 of the 2012 Law of the Sea, for example, states that in case there are differences between the provisions of the Law on the one hand and those of an international treaty to which Vietnam is a party on the other hand, then provisions of the international treaty shall prevail. This is in accordance with the new Constitution of Vietnam which provides that Vietnam shall comply to all treaties in which it is a party. This is also in accordance with the 2016 Treaty Law, which provides that when a domestic legal document and a treaty to which the state is a party contain incompatible provisions on the same matter, the treaty shall prevail; and the 2016 Law on Promulgation of Legal Normative Documents, which provides that the promulgation of domestic legal documents shall not create any obstacles to the implementation of treaties to which Vietnam is a party.

Vietnam’s policy change and legislative evolution in the area of maritime issues and navigational rights in particular are the result of its own reassessment of geopolitical realities and national interests. The adoption of the 1977 Statement and the 1980 Decree reflected Vietnam’s heightened sensitivity and overwhelming preoccupation with national security in the midst of the Cold War. The country was stretching to cope with the aftermath of the Vietnam war, the military confrontation from the Pol Pot regime in Cambodia, the isolation and sanctions imposed by the United States and its allies, and the suspicions, tension, and rivalries in its relationships with China and many ASEAN states. Toward the end of the Cold War, Vietnam began to re-evaluate its security environment and reassess its foreign policy in response to the changing context both domestically and internationally. Along that line, Vietnam has concluded that UNCLOS would offer or facilitate a more level playing field for all states, especially small ones, to protect their legal rights in the oceans, including the rights to explore and exploit natural resources for economic development, and peacefully settle their disputes. It has, therefore, become increasingly interested in promoting the role of UNCLOS as a “constitutive multilateral treaty” on the oceans in laying the legal foundation for the establishment of all major maritime areas. Given its evolving perception of international law, its priority and desire for a peaceful environment and economic development and in the context of the South China Sea disputes with its neighbours, it is expected that Vietnam will continue to rely more heavily on international law and UNCLOS in its foreign and oceans policy in the years to come.

Tải toàn văn chương sách tại Hao Duy Phan (2018) Balancing the rights of coastal states and user states in the post-UNCLOS age

TS. Phan Duy Hảo hiện đang là nghiên cứu viên cao cấp tại Trung tâm Luật quốc tế (CIL) thuộc trường Đại học Quốc Gia Singapore. Ông là tác giả của nhiều bài báo trong nhiều vấn đề khác nhau của Luật quốc tế. Trước khi tham gia CIL, ông là chuyên viên luật quốc tế tại Vụ Luật và Điều ước quốc tế của Bộ Ngoại giao Việt Nam và đã từng có thời gian làm việc ở Trung tâm Đông-Tây (East-West Center) ở Washington D.C., Mỹ, và Viện Nghiên cứu Đông Nam Á của Singapore. Bài viết thể hiện quan điểm riêng của tác giả.

Quan điểm trong bài viết không nhất thiết là quan điểm của các thành viên và cộng tác viên Dự án Đại Sự Ký Biển Đông hay của các nhà tài trợ Dự án. 

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Xem những nghiên cứu khác của các tác giả người Việt:

https://daisukybiendong.wordpress.com/category/nghien-cuu-cua-nguoi-viet/