A summary of the PhD thesis: International law on the management of marine mineral resources and its practicality in Vietnam

MINISTRY OF EDUCATION AND

MINISTRY OF JUSTICE

TRAINING
HANOI LAW UNIVERSITY

PHAM HONG HANH
INTERNATIONAL LAW ON THE MANAGEMENT
OF MARINE MINERAL RESOURCES AND ITS
PRACTICALITY IN VIETNAM

Major: International Law
Code: 9 38 01 08

A SUMMARY OF THE PhD THESIS

Ha Noi – 2018


The PhD Thesis was accomplished at:
Hanoi Law University

Adviosrs/Supervisors:

1. Assoc.Prof: Nguyen Hong Thao
2. Assoc.Prof: Nguyen Thi Thuan

Critique 1:
Critique 2:
Critique 3:

The PhD Thesis is defended at the Thesis Examining Board
Meeting held at Hanoi Law University at ...on../.../

The PhD Thesis can be studied at:
1. National Library
2. Hanoi Law University' Library


PREAMBLE
Reason for choosing topic
Vietnam‟s Continental Shelf has many sediments containing oil and gas and having many
prospects to exploit these mineral resources with expected total amount of around 3.8 – 4.2 billion
tons of oil and around 150 billion m3 of gas. Oil and gas industry has discovered and put into
operation many oil and gas miners, bring Vietnam to the list of countries exporting crude oil,
greatly contributing to national economy‟s stability and development, ensuring national energy‟s
security. In the past period, Vietnam Oil and Gas Group ( PVN) provided nearly 35 billion m3 of
crude gas to manufacture, 40% of the nation‟s electric output, 35% - 40% of urea demand and also
provided 70% of gas demand to industrial development and life‟s consumption. Despite the
economically and socially great significance that oil and gas have brought, Vietnam also has been
confronting some big challenges. Firstly, the risk of environmental pollution may arising from the
process of the exploration and the exploitation, for example, oil leakage and overflowing may occur
due to engine and equipment„s breakdown on drilling rigs or in the process of oil transfer of supply
vessels or the breakdown of the oil tank on drilling rigs as well as service vessels; the
transformation of the marine ecological environment due to chemicals used, wastes eliminated from
the process of exploration and exploitation. The second one is the risk of resource depletion in the
future when almost miners in Vietnam have been exploited in a long time and now in the last
period leading to the strong decline of natural output. For example, Bach Ho Miner supplies the
largest output, accounting for more than 60% of PVN‟s output, has been in the stage of exhaustion.
Thirdly, the complication of East Sea‟s disputes along with the violation activities of Vietnam‟s

sovereignty in the continental shelf is more and more increasing in quantity and serious level,
threatening the national security and interest at sea.
Derived from the above reasons, the study of international law‟s regulations on managing
marine mineral resources and the comprehensive assessment of sea/marine mineral resource
management in Vietnam, particularly oil and gas, is significantly vital. The results of these studies
will be essentially benefit to law makers and mangers in policy and law making, not only in order to
implement the target: “step by step bring Vietnam to become rich in sea, rich from the sea, based on
the sea and forward to the sea” as Vietnam Sea Strategy to 2030 with vision to 2045 affirmed but
also meet the demand of integration and cooperation in all aspects as well as defend sovereignty and
sovereign rights of Vietnam. Moreover, having a profound understanding of international law‟s
regulations on marine mineral resource management will be practically significant to raising
awareness of each person, especially organizations (bodies) directly involving in exploration and
exploitation activities on legal basis and the legality of activities of exercising the sovereign rights
and jurisdiction of Vietnam at sea, thereby contributing to enhancing the consciousness of
protecting natural resources as well as defend the sovereignty and sovereign rights of the country.
2. Scope - research subject
Research subject of the thesis firstly are international treaties regulating marine resources
management, including multilateral treaties in the field of law of the sea and sea environment
protection relating to the mineral exploration and exploitation; bilateral and regional treaties and
agreements on protection sea environment from pollutants of activities in continental shelf, treaties
that establish joint exploitation areas. In addition, the thesis also researches on documents issued by
Regional Authorities and decisions issued by International Judicial Institution for settling disputes
or releasing advisory conclusions on issues relation to exercising the objects „s rights and
1.

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obligations in the process of performing activities in continental shelf and Region. Lastly, the thesis
researches on the regulations of Vietnam‟s law on oil and gas management and international

treaties, agreements on this field which Vietnam has entered into.
On the basis of research subjects mentioned above, the research scope of the thesis
includes:
Basic theoretical issues on management of marine mineral resources and
international law on management of marine mineral resources.
The Status of international law on management of marine mineral resources.
The Status of Vietnam‟s law and the reality of implementation of Vietnam‟s law on
management of oil and gas resources. Vietnam‟s law on management of Vietnam‟s marine mineral
resources currently comprising 2 parts, the first one is regulations on activities relating to oil and
gas and the second one is regulations on activities relating to the other minerals (including marine
mineral). Despite the fact that Vietnam sea is rather abundant in marine mineral, apart from oil and
gas, the exploitation of the other minerals is mainly carried out by localities in some small miner
such as Quang Xuong Miner ( Thanh Hoa), Cam Hoa Miner, Ke Ninh Miner, Ke Sung Miner, De
Gi Miner, Ham Tan Miner, even there are some minerals having no ability to exploit. Therefore,
among Vietnam‟s marine mineral resources, oil and gas are still the most commonly exploited
resources, and also the resources bringing the high economic value, the annual contribution of oil
and gas industry to the State‟s budget accounts for 20% along with many products serving the
economy such as gas electric, petroleum, high – pressure pneumatic and clean energy.
Derived from the above reasons, for Viet Nam, the research scope of the thesis focuses on
analyzing Vietnam‟s regulations and the reality of the implementation of Vietnam‟s regulations on
oil and gas management.
3. Objective and mission of the thesis
Research objectives of the thesis is to systematically clarify the theoretical and legal issues
on marine mineral management of international law; legal issues and the reality of marine mineral
management, particularly oil and gas of Vietnam, therefore, to propose some solutions on improve
the efficiency of management of these resources in Vietnam.
In accordance with research objectives of the thesis, the research missions of the thesis
include:
Analyzing the definition of marine mineral and definition of management, therefore,
release the definition of marine mineral management.

Clarifying some theoretical issues of international law on marine mineral resource
management, particularly: the source of law, the principles, content and role of international law on
marine mineral resource management and the history of the development of these regulations in
international law of the sea.
Analyzing the content of international law on marine mineral resource management
in a systematic manner, includes: (i) Management of marine mineral exploration and exploitation;
(ii) Protection of sea environment in the process of petroleum ( oil and gas) exploration and
exploitation and (iii) Settlement of international disputes arising from oil and gas activities;
analyzing and evaluating the reality of the implementation of law according to the 3 above contents
and propose some specific solutions to improve the efficiency of Vietnam‟s oil and gas
management.

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4. Methodology and Research methods
The thesis is based on the scientific methodology of Marxism – Leninism, thoroughly
utilized the viewpoints of dialectical materialism and historical materialism. The thesis is also
conducted on the basic of a profound understanding of the Party‟s and State‟s guidelines on foreign
policy, particularly in regard to the South China Sea and the defend of sovereignty and sovereign
rights of Vietnam at sea.
For each specific content, the thesis use many different scientific research method such as
systematic approach methods, historical methods, synthetic methods, analytical methods,
combining with researching theory and practice to propose specific solutions. Particularly:
Synthetic and analytical methods were used for overall assessment of thesis – related
works.
Historical methods were used for clarification of the development process of
international law on marine mineral resource management.
Systematic approach and analytical methods were used throughout the thesis,
especially in chapter 2,3, 4. Systematic approach methods were used to elucidate theoretical and

legal issues on marine mineral management in international law and Vietnam law in a general
manner instead of approaching in the sense that it is only a part of the legal status of waters or only
approaching under a certain aspect of marine mineral management. Analytical methods were used
to elucidate the content of international and Vietnam law on marine mineral resource management
and the practical implementation of law on marine mineral resource management.
Combined theoretical and practical methods were used to compare and assess the
practical implementation of marine mineral resource management in Vietnam, then propose specific
solutions to enhance the effectiveness of these management activities.
Comperative law were also used in certain measure to make the definition of “
marine mineral” on the basis of different approaches of nations‟ s law and to propose some
experiences for Vietnam in improving law on management of oil and gas resources.
5. Scientific meaning and novelty of the thesis
The thesis is a comprehensive research work of theoretical and legal issues on marine
mineral resource management in international law as well as legal and practical issues on marine
mineral resource management, particularly Vietnam‟s oil and gas. The thesis made contributions in
scientific aspects as follows:
Firstly, the thesis made the definition of marine mineral and marine mineral resource
management, then clarified characters of marine mineral resource management.
Secondly, the thesis systematically analyzed some basic legal issues of international
law on marine mineral resource management, then clarified the content of international law on this
field.
Thirdly, the thesis analyzed more profound and comprehensively and systematically
assessed regulations of international laws on marine mineral resource management on the basis of
analyzing international treaties, documents issued by the Authority and decisions and judgments
issued by relevant International Juridical Institutions, then indicate some “gaps” in these
regulations.
Forth, the thesis analyzed overall issues on Vietnam‟s management of oil and gas
resources in both legal and practical aspects according to content of marine mineral resource
management that is recognized by international law, then propose a number of solutions to enhance
the efficiency in management of Vietnam‟s oil and gas.

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6. Practical meaning of the thesis
The research results of the thesis can be used as reference materials for legislative bodies,
managers in activities of making and issuing policies and regulations on sea in general and marine
resource management in particular. The thesis also contributed to legal knowledge systems for
dissemination and propagation of international law and law of the sea with the aim at raising the
awareness of each person, especially organizations directly involving in exploration and
exploitation resources at sea, thereby, make them have a right understanding of the activities of
exercising sovereign rights and jurisdiction of Vietnam at sea. Moreover, analyses, comments and
assessments of the content of the regulations of international law on marine mineral resource
management will be valuable for reference to those engaged in researching and teaching
international law, particularly law of sea as well as those who are interested in this law.
7. Structure of the thesis
In addition to the introduction and the conclusion, the thesis is structured into 4 chapters:
Chapter 1: Overview of research related to the subject.
Chapter 2: Theory of marine mineral resource management in international law.
Chapter 3: Status of international law on marine mineral resource management.
Chapter 4: Vietnam law and the practice of law on management of oil and gas resources in
Vietnam.
CHAPTER 1 – OVERVIEW OF RESEARCH RELATED TO THE SUBJECT
As one of the earliest laws, international law of the sea has been a object of much interest
among scholars. Among the content of international law of the sea, the issues on marine resources,
especially marine mineral resources has been a object research of a large number of works. In the
term of scale, these researches were carried out in many levels: reference textbooks, workshop
articles, journal articles, scientific papers, master theses, doctoral these, … These works reflected
the development history of marine mineral resource management in the continental shelf and the
Zone and through different periods, from period of traditional law of the sea to period of
contemporary law of the sea with important marks such as unilateral statements of nations,

conferences on law of the sea and the peak was the birth of 1982 United Nation Convention on the
Law of the Sea ( UNCLOS) and elucidated a number of legal issues in international law and
Vietnam law on marine mineral resource management. Nonetheless, most of these works
approached mineral resources as a part of legal status of the continental shelf and the Zone or
approached just one certain content of mineral management. The separate and comprehensive
research of marine mineral resource management in international law in the legal aspect has been
quite superficial, therefore, it has not resolved this subject in both theoretical and legal aspects. On
the basis of comparing with the objectives and missions of the thesis and the limitation of previous
works, the thesis will clarify issues as follows:
Firstly, in the term of theory, the thesis will clarify the definition of marine mineral, marine
mineral resource management and basic theoretical issues in international law on marine mineral
resource management.
Secondly, legally, the thesis will continuously improve 2 legal content mentioned in the
previous works, on the basis of a comprehensive review of regulations recognized in relevant
international treaties on law of the sea and sea environment, regulations issued by the Authority and
judgments and advices issues by Juridical Institutions, including: (1) The exploration and
exploitation of marine mineral resources in continental shelf and region; (2) Protection of sea
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environment from the exploration and exploitation of marine mineral resources in the continental
shelf and the Region. At once, the thesis will supplement a new legal content - settlement of the
disputes arising from the exploration and exploitation of marine mineral resources in the continental
shelf and the region, which will focus on analyzing settlement mechanism of Seabed Disputes
Chamber under the provision of UNCLOS 1982. Based on the analysis of these legal issues, the
thesis will provide an assessment of the limitations and gaps in the provision of prevailing
international laws regulating the management of marine mineral resources.
Thirdly, on the legal and practical issues of Vietnam, the thesis will analyze basic content of
Vietnam law on management of oil and gas resources and the practice of Vietnam law on aspects:
(1) Management of oil and gas exploration and exploitation; (2) Protection of environment in oil

and gas exploration and exploitation; and (3) Settlement of international disputes in oil and gas
exploration and exploitation, thereby, assess and indicate limitations of Vietnam law. Based on
assessments of the law and the practice of law, the author will propose some solutions with a view
to enhancing the efficient of Vietnam‟s management of oil and gas resources.
CHAPTER 2
THE THEORY OF MARINE MINERAL RESOURCE MANAGEMENT IN
INTERNATIONAL LAW
2.1. The definition of marine mineral resources and marine mineral resource
management
2.1.1 The definition of “marine mineral resources”
Based on the definition in the Antarctic Treaty and the approaches in Mineral Laws of some
nations, “marine mineral resources” can be defined as “natural inorganic, non-renewable,
economically meaningful , including metallic and non-metallic resources ( construction resources),
oil and gas (petroleum) resources, existing in solid, liquid, gas form on the seabed and beneath the
seabed, but not including ice, water or snow”. This definition demonstrates the characters of marine
mineral resources as follows:
Firstly, the nature of marine mineral resources is natural inorganic, non-renewable, lost or
completely altered and no longer retain the original nature after use.
Secondly, marine mineral resources insist of metallic and non – metallic resources
(construction resources), oil and gas resources, which can be exist in any state such as liquid state,
solid state or gaseous state, in which it is mainly solid state and in some cases including water but
generally no water, which means no chemical components of water or metals in water.
Thirdly, marine minerals are the resource having special economic significance.
Forth, marine minerals exist on the seabed and beneath the seabed. However, not all marine
minerals that are in any position become the subjects of international law. The governing subjects
of international law will consist of all minerals which are at or beneath the seabed and beyond the
limits of national jurisdiction, including minerals in the Continental Shelf and the Region.
2.1.2 The definition of “management”
“Management” is the process in which competent authority impact/affect (tac dong) on
certain objects through various activities and forms for the purpose of achieving objectives.

Management has the following characters:
Firstly, the management relationship between subjects and objects, in which, the subjects
are those who issue the orders and the objects are the executor these orders.
Secondly, management is always directed toward certain common objectives.
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Thirdly, in management, there are always the factors of management power, this
management power is a tool for management subjects to impact on management objects with the
aim at achieving management objectives and also the basis to distinguish between the subjects and
the objects.
2.1.3 The definition of marine mineral resource management
Based on the definition of management in general, “mineral resource management” can be
defined as: “is the process in which the competent authorities adopt various activities to regulate
and control the exploration and exploitation of marine mineral resources and issues arising from
these activities of relevant subjects with the aim at ensuring interest and justice between nations in
the exploitation use of the sea.” Marine mineral resource management has the following characters:
Firstly, on the subject of management:
In Continental Shelf, according to UNCLOS 1982, Coastal State are entitled in two aspects:
(i) sovereign rights to natural resources, including mineral resources and (ii) jurisdiction with regard
to the establishment of artificial islands, installations and structures and the protection of marine
environment. Clause 1, Article 77 of the Convention provided that: “The coastal State exercises
over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural
resources”. Despite of not being specifically provided, it can be possible to understand that,
sovereign rights of coastal State shall include: “all reasonable rights for and in connection with the
exploration and exploitation of natural resources of the continental shelf. These rights include the
jurisdiction to the prevention or punishment of infringements. The Convention does not request
Coastal State to execute any acts of occupation or proclamation to enjoy the rights recognized by
UNCLOS. According to this, the rights recognized by the Convention are natural, inherent and “do
not depend on occupation, effective or notional, or any express proclamation.” (Clause 3, Article 77

UNCLOS). In the Area – the common heritage of mankind, under the provision of Article 137
UNCLOS, all rights in the resources of the Area are vested in mankind as a whole, on whose behalf
the Authority (International Seabed Authority, hereinafter called Authority) shall act. The
competences of Authority comprise: (i) Issuing regulations and procedures in order to perform a
function of marine mineral resources management in the Area; (ii) exercise control over activities in
the Area as is necessary for the purpose of securing compliance with the relevant provisions of this
Part and the Annex that related to this Part, the rules, regulations and procedures of the Authority
and the plans of work approved.
Secondly, on the object of management:
The object of marine mineral resources management is the minerals in the continental shelf
and the Area along with all subjects executing the exploration and exploitation of minerals in both
of these waters.
Thirdly, on the objectives of management:
In the event that the Continental Shelf not excess 200 nautical miles from the baselines, the
management of international law is aimed at two objectives: protecting the Coastal State‟s rights to
natural resources in the Continental Shelf and protecting the rights of other subjects by regulating
the obligations which the Coastal State shall comply with in the exercise of its rights. In the event
the Continental shelf extends beyond, the objectives of management are still not only to protect the
rights of exploitation for use of mineral resources of the Coastal State but also to share some of
interests that the Costal State achieves as executing the exploitation in the Extension to other
countries, especially the most underdeveloped countries and the non-sea countries with a view to
ensuring the relatively fair due to the extension of the Continental shelf. In the Area, the regulations
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of international law is aimed at ensuring that all acts to mineral resources in this water shall be
executed for the purpose of serving and protecting the common interest of the mankind.
2.2 The theory of international law on marine mineral resources management
International law on marine mineral resources management is a system of international
principles and regulations which stipulate legal issues arising between subjects and objects of

management in the course of the exploration and the exploitation of the marine mineral at the
seabed and beneath the seabed and beyond the limits of nation‟s jurisdiction and issues arising from
these activities.
2.2.1 The foundation/establishment and development history of international law on
marine mineral resources management
The foundation/establishment history of international law on marine mineral resources
management is in association with the birth of waters in international law. This course has clearly
reflected the struggles between different national groups, the coastal State with other States,
developed countries and developing and underdeveloped countries in the exploitation and use of the
sea. Up to now, the process of establishing the principles on management of marine resources in
general and marine mineral resources in particular has still been continuing with a view to meeting
the economic development needs of each country and the requirements of environmental protection
and ensuring international peace and security.
2.2.2 The sources of international law on marine mineral resources management
The regulations of international law stipulating these resources are firstly the source of the
international law of the sea, in which The Convention on the Law of the sea ( UNCLOS 1982), The
Agreement on the implementation of Chapter XI are the global legal framework regulating issues
on marine mineral resources management in waters beyond nation‟s territories. In addition, the
sources of this law also include the sources of law that mainly focus on technical or specific issues
in the course of the subject‟s exploration and exploitation of mineral resources such as documents
issued by the Authority and international treaties on civil responsibilities arising from the case of oil
spills.
2.2.3 Principles of international law on marine mineral resources management
 The principle of the Domination of the Land over the Sea
The principle of the Domination of the Land over the Sea and its contents were officially
recognized in the case of North Sea‟s Continental Shelf in1969 and has been continuously affirmed
in many subsequent judgments relating to the Continental shelf. According to these, “For the
Continental shelf, the principle applied is the principle of the Domination of the Land over the Sea,
[…], which means the Land is the legal basis of a country‟s power to exercise in its territory that
extends to the sea.” Thus, “the rights which the Coast States are entitled by the international law in

their respective territories originate from the fact that these seabed areas can only be regarded as
part of the territories in which the Coastal States exercise their power. This due to the fact that while
covered by the water, these seabed areas are the extension, continuation, expansion of these
territories by the sea. The influence of this principle on the Continental Shelf in general and the
natural resources management in particular, including mineral resources in the Continental Shelf is
expressed in 2 aspects: Firstly, the rights of the Coastal State in the exploration and exploitation of
mineral are natural, inherent and do not depend on occupation, effective or notional, or on any
express proclamation.”(Clause 3, Article 77 UNCLOS), secondly, these rights of the Coastal State
are “privileged”, not shared.
 The principle of the Common Heritage of Mankind
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The principle of the Common Heritage of Mankind was recognized in The Convention of
the Law of the Sea 1982 and became a legal principle regulating the legal status of The Area in
general and the exploration and exploitation of natural resources in the Area in particular.
According to this, “The Area and its resources are the common heritage of mankind” (Article 136
UNCLOS). The content of this principle is expressed in 2 aspects: Firstly, No occupying the Area
and its resources, secondly, establishing a international mechanism on management of the Area and
its resources, thirdly, the exploration and exploitation of the Area and its resources are carried out
for the common interest of mankind and the fourthly is using the Area for peaceful purposes.
 The Principle of equity
In the Continental Shelf, the principle of Equity is expressed that: despite the assertion of the
economic privileges of the Coastal State, the Convention still ensure some certain interests for other
nations in the event that the Coastal State executes the exploitation in the Continental Shelf beyond
200 nautical miles from the baselines through the obligation of contributing of the Coastal State as
exploiting in the extensions. In the Area, the principle of equity is expressed in 3 aspects: Firstly,
asserting that the Area is open to all States; Secondly, asserting that all activities relating to the Area
are for the purpose of ensuring interests of all nations, especially the least developed countries and
the thirdly is the equitable distribution, on the basis of non – discrimination between financial

interests and other economic interests from activities carried out in the Area.
 The Principle of Sustainable Development
The term “sustainable development” was clearly mentioned in the Report “Our common
future” of World Commission of Environment and Development. According to this, “sustainable
development” is “the development that meets the needs of the present without compromising the
ability of future generations to meet their own needs. This principle is expressed in 2 aspects:
Firstly, managing the exploration and exploitation to ensure that these activities are carried out in a
appropriate, saving and efficient manner and secondly is the obligation of protecting marine
environment in the course of exploration and exploitation of the marine minerals
2.2.4. The content of international law on marine mineral resources management
Under the current provisions in The Convention on the Law of the Sea 1982 as well as the
documents issued by the Authority, the contents of international law on marine mineral resources
management consist:
The first is the management of the exploration and exploitation of the minerals in the
Continental Shelf and the Area. The second is the protection and prevention of marine environment
in the course of exploration and exploitation of the marine minerals. The third is the settlement of
the disputes arising in the course of exploration and exploitation of the marine minerals.
The management of the exploration and exploitation of the minerals includes: the first is the
permission to explore and exploit the minerals through permits or contracts or agreements signed
with relevant subjects; the second is the supervision of the compliance with subject‟s obligations in
the course of exploration and exploitation of the minerals; the third is the handing of violations of
subjects in the course of exploration and exploitation of the minerals.
The protection and prevention of marine environment includes: Establishment of regulations
and rules to prevent, limit and control the marine environment‟s pollution resulting from the
exploration and exploitation in the Continental Shelf and the Area as well as mechanisms to ensure
the compliance with the environmental protection obligations of subjects directly involving in the
exploration and exploitation; assessment and monitoring of the environmental impacts; respond in
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the event of incident; management of the waste and chemical treatment in the course of exploration
and exploitation and cooperation in protection and prevention of marine environment.
In addition to the impacts on environment, the exploration and exploitation of marine
minerals raise the risk of potential disputes. Nevertheless, the commonality of these disputes is that
all of them are the international disputes, therefore the mechanism applied to settle these disputes is
the common dispute settlement mechanism in international law without any specific provision,
except for the provision of The Institution (Vien) of settlement of disputes related to the seabed with
the competence in settlement of the disputes related to activities in the Area.
CHPATER 3
THE STATUS OF INTERNATIONAL LAW ON MARINE MINERAL RESOURCES
MANAGEMENT
3.1 The management of exploration and exploitation of marine mineral resources
3.1.1 The management of exploration and exploitation of marine mineral resources in the
Continental Shelf
Stemming from the nature of the Continental Shelf which is the natural extension of the
territorial land as mentioned above, the management of the natural resources in general and the
marine minerals in particular are carried out for the most important purpose of protection the
Coastal State‟s interest. While in the national territory, the rights that the Nation exercises to its
territory are the rights which “are aimed at performing the public functions in a common and
specific manner in order to achieve objectives and objects by determined by the Nation itself”, the
rights in the Continental Shelf are regulated by international law and have certain limits. In other
worlds, to ensure that the Coastal State‟s management will not affect the rights of other subjects as
well as the common interest which are protected by the international law, in addition to recognize
the rights, the Convention also sets out the limits that the Costal State shall comply with in the
course of exercising its sovereign rights
3.1.1.1. The continental shelf not beyond 200 nautical miles and no any disputes
In the course of exercising its sovereign rights over the exploration and exploitation of the
Continental Shelf‟s resources, the Coastal State shall respect the rights which are provided by
UNCLOS of other nations, including the freedoms of navigation and aviation (Article 78 UNCLOS)
and the right to lay submarine cables and pipelines based on the consent of the Coastal State. In

addition, the rights of the Coastal State over it‟s the Continental Shelf do not affect the legal status
of the superjacent waters and of the air space above these waters ( Clause 1 Article 78 UNCLOS).
These provisions are regulated by the international law with the aim at respecting and protecting a
number of rights of all nations according to the principle of freedom of the seas from the sovereign
rights of the Coastal State. In the term of history, the birth/establishment of the waters under
sovereignty of the Nation, namely the Exclusive Economic Zone and the Continental Shelf is the
result of the process of struggles between the Coastal States that desire to expand their rights over
the resources and the others countries that desire to keep on maintaining the maritime order
previously set out in traditional maritime law. In the term of nature, the positions of the Exclusive
Economic Zone and the Continental Shelf are the suis generic, are not totally national territory but
not totally international water, therefore, in these positions, the Coastal State is entitled the
sovereignty due to the geographical continuation with the territory of the Coastal State and at the
same time, a number of rights and freedoms of other subjects are still ensured. These points explain
why, in the legal status of waters under sovereign rights in general and the Continental Shelf in
particular always contains the opposite groups of rights, namely the Coastal State‟s rights and the
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rights of other countries in conformity with the principle that the rights of this subject are
corresponding with the obligations of respect of the other subjects, at the same time, each subject,
when exercising its rights, must not infringe the rights of other subjects.
3.1.1.2 The Extended Continental Shelf
In order to limit the Coastal State‟s arbitrary extension of the Continental Shelf which
affects the common interests of international community, the Convention provided a number of
conditions and procedures with which the Coastal State must comply if having intention to extend
the scope of exercising the rights over the resources that regulated by the international law for the
Continental shelf. Once the determination of the outer limit has come into effect, the Coastal State
shall have the full rights of exploration and exploitation of mineral resources at and beneath the
seabed within the extension without exceeding 350 nautical miles from the baselines and all these
rights are similar to those over the normal 200 nautical mile - Continental shelf. Nonetheless, The

Coastal State shall be under an obligation to make payments or contributions in kind in respect of
the exploitation of the non – living resources of the extended Continental Shelf, except for a
developing States which a net importer of a mineral resource produced from its continental shelf
(Article 82 UNCLOS). Through the contribution obligation of the Coastal State, The Convention
ensure the equity for nations in benefiting from the exploitation marine resources and at the same
time bring the specific economic interests to nations, thereby, creating favorable conditions for
nations, especially developing countries to enjoy the equal development opportunities to others. The
legal status of the Continental Shelf and profit sharing mechanism in the extended Continental Shelf
are regarded “compensation for each othes”. In other words, this provision is an agreement between
2 sides: the first one is nations opposing to the extension of the outer limit of the Continental Shelf
on the principle the common heritage of mankind and the other is nations supporting the extension
on the basis of the nature of the Continental that are the natural extension of territorial land under
the sea on the principle of the dominant of the Land over the Sea.
3.1.1.3 Undelimited Continental Shelf
Under the Article 83 UNCLOS 1982, the delimitation of the Continental Shelf between
States with opposite or adjacent coast shall be effected by agreement on the basis of international
law so as to achieve an equitable solution. If no agreement can be reached, the States concerned
shall not unilaterally execute the exploration and the exploitation of resources in the Continental
shelf that has not been delimited, due the fact that the limit of the Continental Shelf under the
sovereign rights of each Side has not been delimited and the unilateral activities of the exploration
and exploitation of resources will complicate the dispute. The Clause 3, Article 83 UNCLOS
provided the obligations of the States during this period: “During this transitional period, not to
jeopardize or hamper the reaching of the final agreement”. In the dispute of Guyana with Suriname,
The International Arbitrator Court affirmed that UNCLOS do not forbid all of the unilateral
activities in the overlapping waters, the States concerned shall have the right to execute some
activities is these waters in themselves but other activities require the agreement/ consent of all
States concerned. The criterion to distinguish these two activity groups is the risk of compromising
the seabed or subsoil beneath the seabed. In the event of the overlapped Continental shelf
mentioned above, agreement on the common exploration, exploitation and management in a certain
zone in the overlapping waters is a temporary measure so that the States concerned can exploit

resources without affecting or hampering the final delimitation. Such agreements are called as Joint
Exploitation Agreement (JEA).The content of these agreements regularly insists of legal basis
issues such as JEA‟s zone, JEA‟s term, the rights of exploration and exploitations of each State
10


(specifically over the minerals of the Continental Shelf), the exercise of jurisdiction of each State in
JEA‟s zone, mechanism of management and sharing profits and responsibilities arising from the
exploration and the exploitation of resources and dispute settlement,… In the course of exercising
the rights over the mineral resources in JEA‟s zone, the State concerned shall respect all rights of
other States recognized in UNCLOS and at once, not affect the legal status of the superjacent waters
and of the air space above these waters (Clause 1, article 78 UNCLOS).
3.1.2. The Management of the exploration and the exploitation of mineral resources in
the Area – the common Heritage of Mankind.
3.1.2.1 The permission to conduct of mineral activities in the Area
Under the provisions of paragraph 2 of Article 152 of the UNCLOS, activities carried out
in the Area may only be conducted by the following entities: Enterprise; Party State; State
enterprises, natural or juridical persons that are nationals of the Party State, or by the Party State.
3.1.2.2 The management and supervision of the performance of subject’s obligations in
the course of mineral exploration in the Area.
During the conducting of the activities in the Area, the subjects must comply with the
obligations recognized in the Convention and the documents issued by the Authority and shall be
subject to the Authority„s supervision in the performance of these obligations, including: financial
obligations to contracts entered into with the ISA; technical transfer obligation; obligations on
production output; other obligations, such as organizing training programs, informing the Authority
of all necessary and appropriate data for the performance of this agency‟s functions, preserving and
protecting the environment, ... In addition, the ISA has the right to monitor the performance of the
obligations of the sponsoring country, including the obligation to ensure the compliance with the
contract‟s terms, obligations provided by the Convention and related documents and direct
obligations.

3.1.2.3. Handling violations committed by subjects in the process of mineral exploration
in the Area
The contracting party is responsible for all losses incurred during the course of carrying
out the contractual activities, taking into account the responsibilities that may be attributed to ISA
due to acts or omissions of this agency, except in force majeure. In conjunction with civil liability,
the contracting party may be suspended or terminated under the ISA's decision. In respect of other
violations, in addition to suspending or terminating the contract, the ISA may force the contractor to
incur penalties in proportion to the seriousness of the breach, except exceptions are provided by
UNCLOS. For the sponsoring country, in the event of failure to comply with its obligations, such
country shall be subject to legal liabilities provided in paragraph 2 of Article 139 of the UNCLOS
provided that: the first is that the damage occurred and, secondly, there must be a causal
relationship between the breach due to the failure to perform its obligations and the damage
occurred.
In the provisions/regulations of UNLCOS on management of exploration and exploitation
of marine mineral in the Continental Shelf, the issue that has not been specifically regulated by the
Convention is in the relation is mainly the obligations of The Coastal State in the case of
exploitation of mineral in the Extended Continental Shelf under the Article 82. Particularly, (i) on
the form of obligation performance, UNCLOS has not specifically provided whether the Coastal
State may change the form of obligation performance or whether it have to apply only one of
unique form in the entire course of performance. In case the State choose to pay, which currency
will be used? By contrast, if the Sate choose to contribute in kind, how will the receipt, transfer and
11


risk management carried out? (ii) on the time of obligation performance, the Article 82 provided
that time to perform obligation of payment and contribution in kind is annual but not specifically, is
this fiscal year or calendar year? iii) Article 82 only regulated that all contributions are calculated
the basic of value or volume of the whole product gain at a exploitation point without elucidating
that which the basic for calculating thereof is, gross value or actual value of the products ; iv) actual
contribution rate is s more estimable figure and v) the Article 82 has not regulated a specific

measure to ensure the performance of obligation of sharing the Coastal State‟s profit whereas ISA
has not been recognized any of jurisdiction take appropriate measures if the Coastal State is not
willing to perform its obligations. On the content of marine mineral exploration and exploitation
management in the Area, nevertheless provided both in Convention on the Law of the Sea 1982,
Convention Annex, Agreement 1994 and documents issued by the Authority, it can be seen that the
mechanism of marine mineral management in this water still have unclear contents that need to be
further improved, particularly issues relating to: activities of enterprises; exploitation of mineral in
the Area, the Sponsoring State‟s obligations to the Contracting Parties in the course of carrying out
activities in the Area; the supervision of the Authority and the distribution of economic benefits
gained from the activities in the Area.
3.2. Environment Protection from the mineral exploration and exploitation
3.2.1 The common obligation in the protection and preservation of the marine
environment
“States have the obligation to protect and preserve the marine environment.” (Article 192
UNCLOS). Accordingly, all States are not permitted not to perform or unreasonably perform the
obligation to protect and preserve the marine environment, simultaneously, any acts or international
commitments of States having contents that are harmful to marine environment are all the violation
of international law. Set in the relation with other provisions of UNCLOS, this obligation to
“protect and preserve the marine environment) is not only imposed on the States but also on all
subjects carying out the exploitation and use of the sea.
3.2.2 Measures to protect and preserve the marine environmnt from the mineral
resurces exploitation in the Continential Shelf and the Area.
3.2.2.1. The establishment and issue of regulations and rules
In the Continental shelf, proceeding/arising from the jurisdiction in the field of protection
and preservation of marine environment, the Coastal State have the right to approve and adopt laws
regulations to prevent, reduce and control the pollution of marine environment, on the principle of
ensuring the requirement that these regulations shall be no less effective than international rules,
standards or recommended practices and procedures. (Article 208). Besides, under the Article 214
UNCLOS, the States also have the obligation to approve and adopt rules and regulations in order to
“implement applicable international rules and standards” established in relation with the mineral

exploration and exploitation.
In the Area, the competence of issuing regulations is recognized for both subjects: States
and the Authority. States have the right to issue regulations on protection of marine environment in
the Area undertaken by vessels, installations, structures and other devices flying their flag or
registered in the State (Article 209) as well as adopt regulations, rules to ensure the compliance with
the obligation to protect environment of the Contracting Party. The Authority is entitled to set out
appropriate and special rules, regulations and procedures with the aim at preventing, reducing and
controlling the marine pollution (Article 145), at the same time, to periodically review rules,
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regulations and procedures on marine environment for the purpose of effective protection of marine
environment from harmful impacts that can be arising from the activities in the Area.
3.2.2.2. The assessment of environmental impacts probably arising from the exploration
and exploitation of minerals.
Under the provisions of UNCLOS, ISA‟s documents as well as international and regional
treaties directly regulating the environmental protection from the exploration and exploitation of
minerals, the obligation to assess environmental impacts is recognized for many different subjects,
from states, sponsoring states to states concerned, organizations and individuals directly carrying
out these activities through many different forms such as directly or through intermediaries of
competent international organizations. This activity is conducted in many stages, from the time the
subjects submit the request to the competent institutions provided by the national law to the
Continental Shelf and the Authority to the Area in order to be licensed for exploitation, which
means as one of the basics for consideration to be permitted to explore and exploit in that waters or
not, until the entire process of directly carrying out the exploration and exploitation the minerals.
3.2.2.3 Response in case of pollution of marine environment
Response in case of pollution of marine environment includes contents and activities: the
first one is the establishment of plan to respond to pollution of environment. The second is the
inform to national competent Authorities or relevant nations and organizations of environmental
problems or risks of environmental problems; The third is the action when receiving the notification

on pollution or risks of pollution. On a case by case basis, the subjects receiving the notification on
pollution or risks of pollution will perform the assessment and define the pollution and take
appropriate measures for response. In the Continental Shelf, these contents will be specifically
provided in the national law of the Coastal State; in the Area, General Secretary will approve and
adopt temporary measures and the Council will approve or deal with other subjects on essential
measures so as to prevent, slow down and reduce serious damages or risks seriously threatening
marine environment.
3.2.2.4 Control of activities relating to wastes, chemical use, vessels and installations in
the course of exploration and exploitation
Aiming at controlling wastes in the course of mineral exploration and exploitation, some
international treaties such as Protocol on protection of the Mediterranean Sea from the pollution
arising from exploration and exploitation in the Continental Shelf, at and beneath the seabed 1955,
Protocol on marine pollution arising from the exploration and exploitation of the Continental Shelf,
established rules on treating wastes, poisons and materials in the course of mineral exploration and
exploitation, including substances, wastes, materials that are not permitted to dispose and which
may be disposed on the basic of a special permit or common permit issued by the competent
agencies. In addition, in order to ensure that the use of chemical in the course of the exploration and
exploitation does not affect marine environment, a number of international treaties provided that the
use and storage of chemical in the course of the mineral exploration and exploitation must be
approved by the competent Authorities on the basis of the Plan of Chemical Use, in which clarifies
the type of chemical used, the purpose and the quantity.
3.2.2.5 International Cooperation in protection and preservation of marine environment
International Cooperation is recognized in many international treaties on environmental
protection with fundamental contents such as rules, procedures to protect, preserve the marine
environment; response in case of the pollution of marine environment, scientific study, information
exchange; support of developing countries; establishment of institutions under international laws to
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construct, coordinate, supervisor the performance of obligation to protect environment, … These

coordinate contents above will be executed through direct activities between nations or through
competent international organizations.
3.2.3 Liability of subjects in the protection and preservation of marine environment
In the Continental Shelf, the compliance with the obligation to protect and preserve
marine environment has been dat ra voi 2 groups of subject, one is Coastal States and the other is
subjects directly involving in the exploration and exploitation of minerals in this waters. For the
Coastal States, the general principle is set out in the Article 235 of the Convention, “States are
responsible for the fulfillment of their international obligations concerning the protection and
preservation of the marine environment. They shall be liable in accordance with international law.”
In the event that a Coastal State is fail to fulfill its legal obligations, such States will incur the
international legal responsibility due to the breach, including material responsibility and nonmaterial responsibility. With regard to the subjects directly involving in the exploration and
exploitation of minerals in the Continental Shelf, in order to ensure the compliance with the
obligations of these subjects, the Coastal States are entitled the jurisdiction in the field of protection
and preservation of marine environment. Accordingly, in addition to issuing rules for regulating, the
Coastal States have the right to take any measures for the compliance with their own rules,
including civil responsibility and criminal responsibility of violating subjects/ infringing subjects.
3.3 Settlement of disputes arising from the exploration and exploitation of the marine
minerals
3.3.1. Principles of Dispute settlement
Under Article 279 of the Convention on the Law of the Sea 1982: “States Parties shall
settle any dispute between them concerning the interpretation or application of this Convention by
peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations
and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the
Charter”. Nonetheless, this principle does not define/ assign any specific measure to settle the
disputes, States have the right to take any appropriate measure. The Convention as well as the
international law in general do not restrict the right of States to seek alternative measures, as long as
it is of the peaceful means.
3.3.2.Measures of dispute settlement
Based on the binding validity of the decision of dispute settlement, means of dispute
settlement may be divided into 2 groups: the first one is through diplomatic means, namely

negotiation (Article 238 UNCLOS), reconciliation ( Article 284 and Annex 5 of UNCLOS) and the
other is through the International Judicial Institution, including: the International Tribunal on the
Law of the sea, the International Court of Justice (ICJ); the Arbitral Tribunal that is constituted in
accordance with Annex 7 of the Convention and the Ad hoc Tribunal for the dispute settlement in
some particular fields. In the Continental Shelf, the International Tribunal under the provisions of
UNCLOS shall have jurisdiction over disputes arising from the management of the exploration and
exploitation of the marine minerals in regard to the implementation of (i) sovereign rights of the
Coastal States over the exploration and exploitation of the minerals, (ii) jurisdiction with regard to
the establishment and use of artificial islands, installations and structures and the protection and
preservation of the marine environment; (iii) the obligation to ensure the rights of other subjects in
the Continental Shelf ( the freedoms of navigation and over fight and of the laying of submarine
cables and pipelines) during the course of exercising the sovereign rights and jurisdictions that
mentioned above as well as (iv) the obligation to protect and preserve the marine environment of
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the Coastal States. For the disputes concerning the delimitation of the Continental Shelf, the
International Tribunal shall not have the jurisdiction to settle if a Party makes declarations to
exclude the jurisdiction over this matter. In such case, States may unilaterally submit the dispute to
the conciliation in accordance with the procedure under Annex V, section 1 of the Convention). In
the Area, the disputes concerning the management of the exploration and exploitation of the marine
minerals shall be settled by the International Tribunal recognized by UNLCOS, apart from the
disputes in respect of which the Security Council assigned to settle under the Article 298.
3.3.3 The settlement of disputes concerning the Seabed
For the disputes concerning to the Area, under Article 187 of UNCLOS, the Seabed
disputes shall have jurisdiction over the following disputes: (i) the disputes between State Parties
concerning the interpretation and application of the sections in Paragraph IX and the relevant
Annexes; (ii) the disputes between State parties and ISA concerning acts or omissions of the
Authority or of a State Party; (iii) the disputes between the Authority and State Enterprises, natural
or juridical persons involving in entering into and implementing a contract; (iv) any other disputes

for which the jurisdiction of the Chamber specifically provided in this Convention.
In addition to the jurisdiction over disputes, the Chamber shall give advisory opinions at
the request of the Assembly or the Council on the legal questions/issues set out.
The mechanism of the international dispute settlement, including the settlement of
disputes arising from the exploration and exploitation of the marine minerals, is quite fully
provided. However the settlement of disputes concerning the extending of the Continental Shelf as
well as the performance of the Coastal State‟s obligations as exploiting resources in the extended
Continental Shelf is inadequately provided. With regard to unclear matter of the Article 82 at
present, it is very likely for the disputes between the Coastal States and ISA to occur, even the
disputes between ISA and other States during the course of distribution of profits that the Coastal
States contribute. Nevertheless, under the provisions of this Convention, these disputes are not
currently disputes for which a State Party may submit to the Judicial Institutions.
CHAPTER 4
LEGALITY AND THE STATUS OF IMPLEMENTATION OF MANAGEMENT
OF PETROLEUM IN VIETNAM
Under the provisions of UNCLOS, Vietnam‟s legality as well as treaties on delimitation
of the sea and general exploitation into which Vietnam entered, the activities with regard to
petroleum of Vietnam are carried out in the non-dispute Continental Shelf and in some cases, even
the overlapping Continental Shelf, through the joint exploitation or development cooperation of
petroleum mines that are located across the delimitated boundaries. With the existence of Paracel
and Spratly archipelagos in the South China Sea, do their structures of these archipelagos create
their own Continental Shelf for the performance of oil and gas management of Vietnam or not? For
the Spratly, the decision of Arbitral Tribunal established under the Annex VII has concluded that:
“there‟s no any floating structure in the Spratly that may have the capability to sustain the human
habitation or a economic life, therefore, under Article 121(3), these structures like that do not have
the exclusive economic zone and Continental Shelf. This Conclusion was approved by all Judges on
the basis of the analysis of the UNCLOS‟s provisions, international practices as well as documents
collected by the Court and provided by Philippines. Prior to the final decision, some countries in the
Region expressed their viewpoints on the non – acknowledgement that all entities in the Spratly are
qualified to have their own exclusive economic zone and Continental shelf. In the Declaration dated

5 December 2014 by The Ministry of Foreign Affair of Vietnam sent to the Arbitral Tribunal,
15


Vietnam affirmed that: “Accordingly, Vietnam‟s viewpoint is there‟s no any entity mentioned by
Philippines in the lawsuit has its own exclusive economic zone and continental shelf of the
navigation rights in general within the scope of 12 nautical miles as they are the low-tide elevations
or rocks that cannot sustain human habitation or economic life as provided in the Article 121(3) of
the Convention.” Almost scholars and countries made clear their support to the decision claiming
that all entities in the Spratly are just rocks or low-tide elevations with the 12 nautical mile –
territorial sea without having their own exclusive economic zone and continental shelf. For the
Paracel, in personal view, the Tribunal‟s decisions to the Paracel may be recommended to apply to
the Spratly with 2 possibilities: either there is no any entity in the Paracel having their own
exclusive economic zone and continental shelf or there are just some structures having their own
exclusive economic zone and continental shelf. Because, despite the fact that the Paracel has some
larger islands and a longer human history than the Spratly, in generally, the natural elements of the
Paracel and the Spratly are quite similar.
4.1 Legality on the management of Vietnam’s oil and gas resources
4.1.1. Overview of oil and gas potential of Vietnam
With 330000 km2 of the land and millions of km of the Continental Shelf, Vietnam I
regarded as a zone in which existing sedimentary areas De Tam with significant petroleum
potential. After more than 40 years of the deployment of search and exploration, 8 oil and gas
sedimentary basins with Cenozoic ages in the Vietnam‟s Continental Shelf and waters. So far, more
than 80 oil and gas mines have been discovered, in which over 30 mines have been put into
operation. Vietnam‟s oil and gas mines are mainly medium – sized (accounting for 50% of total
mines), small and very small (accounting for 35%), large and very large mines are less (accounting
for only 13% of total mines).
4.1.2 The legal basis of the management of Vietnam’s oil and gas resources
The legal basis for the management of Vietnam's oil and gas resources firstly includes a
system of national legal documents, from the Constitution, the National Assembly‟s Resolution for

Approval of the Convention of the Law of the Sea 1982, the Law of National Borders 2003 to the
specialized documents, consisting of the Declaration of the Government of the Socialist Republic of
Vietnam on Vietnam's territorial sea, contiguous zone, exclusive economic zone and continental
shelf on May 12, 1977 and the Declaration of the Government of the Socialist Republic of Vietnam
on the baseline used to measure the width of Vietnam's territorial sea on November 12, 1982, Law
of the sea of Vietnam 2012, Law on Petroleum, Law on Environmental Protection 2014, Law on
Natural Resources and Environment of seas and islands in 2015 and other guiding documents as
well as regulations related to the Civil Code 2015, Civil Procedure Code 2015.
Together with the national legal system, international treaties and agreements that
Vietnam has entered into are the international legal basis for oil and gas management on the
Vietnam‟s waters. These include: firstly, the Continental Shelf Delimitation Agreements and Joint
Development agreements; secondly, the international treaties on the fields of Law of the sea and
protection of the marine environment from oil-related activities.
4.1.3 The basic contents of the law on management of Vietnam’s oil and gas
4.1.3.1 The exploration and exploitation of oil and gas
 The ground of implementation of the oil and gas exploration and exploitation
Oil and gas prospection, exploration and exploitation activities shall be carried out on a
basis of the oil and gas contract signed in the form of a Petroleum Sharing Products (PSC) or other
forms agreed upon by Petro Vietnam (PVN) with the contractor and approved by the Prime
16


Minister (under the Article 25 of Decree 95/2015/ND-CP detailing some articles of the Petroleum
Law, hereinafter referred to as Decree No. 95/2015).
 Basic obligations in the implementation of the oil and gas exploration and
exploitation
During the course of exploration and exploitation of oil and gas, the subjects concerned
have to comply with the basic obligations, including: Ensuring safety in operation of oil and gas;
clearing of works, equipment and facilities in service of oil and gas activities; the regulations on
exploitation of oil and gas resources; financial obligations; other obligations such as the applicable

standards and technical regulations, regulations on geophysical exploration, regulations on drilling,
requirements on environmental protection (ENP), information supply and security, petroleum
insurance and related obligations relating to labor contracts, foreign currency balance, crude oil and
natural gas sales in Vietnam,…
 Handling of violations in the petroleum exploration and exploitation
The issue of sanctioning administrative violations in the petroleum exploration and
exploitation is stipulated in the Article 43 of the Law on Petroleum and the Government's Decree
No. 67/2017 / ND-CP on penalties administrative violations in the field of gas and petroleum. For
each violation, depending on the specific acts as well as the extent of violations, individuals and
organizations may be fined under different penalties, in addition to incurred other supplementary
penalties as well as forced to comply with remedial measures.
4.1.3.2. Environmental protection in the petroleum exploration and exploitation
Organizations and individuals involving in the oil and gas exploration and exploitation
shall observe/comply with the obligation to protect the environment with the following basic
contents:
 Establishing reports and plans on environmental protection
Organizations and individuals carrying out the petroleum projects or contracts have the
obligation to establish reports, plans on environmental protection, including: the environmental
impact assessment report (Article 46 of the Decree No.95/2015/ND-CP); Environmental Protection
Project (Article 5 of the Petroleum Law); oil spill response plan and reports on environmental
protection that encompasses: reports on environmental protection, annual environmental
monitoring; reports on environmental protection during the process of project‟s implementation at
the end of the project and reports on the cause of the problem, handling process and environmental
consequences in case of incidents causing great harm to the environment.
 Performance of the financial obligations in environmental protection activities
Organizations and individuals involving in the oil and gas exploration and exploitation
have to perform their financial obligations including: providing environmental remediation deposit
(Article 38 of the Law on Environmental Protection, 2014); buying liability insurance for
environmental damage compensation for the fulfillment of the responsibility of environmental
damage compensation in cases of pollution (Article 32 of Decree No.19/2015 / ND-CP) or

deducting for setting up risk reserve fund for prevention, remedy and compensation of
environmental incidents occurring in the course of production and business of the enterprise; paying
the environmental protection fee for mineral exploitation.
 International cooperation in marine environmental protection
The contents of the cooperation include: Research, establishment and improvement of the
law on natural resource management, marine environmental protection and islands protection;
investigation and study of resources, marine and island environment, the vulnerability of the
17


marine and island environment; resource exploitation; response to environmental incidents. The
cooperation shall be executed on the basis of principles as ensuring the consistency with the socioeconomic plans and strategies, the foreign policies and guidelines (Article 71, 72 of Law on the
Marine and Island Resources and Environment)
 Treatment of the waste from oil and gas exploration and production
Exploitable water and other sources of water arising from the oil and gas works on sea,
hazardous and non-hazardous waste from floating platforms and inorganic substances, natural
organic substances, large objects made up of iron, steel, concrete and similar non-toxic substances
which, in specific circumstances, can only be treated by plunging them into water.
 Oil spill response
Based on the level of the oil spills (small, medium, large), the response shall be operated
at 3 levels: grassroots level; regional level and national level with responsibility of each subject and
measures corresponding to each level. In addition, other actions can also be taken to respond to an
oil spill such as setting zones restricting activities to prioritize the rescue and salvage operations and
oil spill response; removal of sunk ships causing or is likely to cause oil spills,...Owners of vessels
causing oil spills shall be liable for compensation, response cost, economic damage and
environmental damage.
 Compensation and handling of environmental violations in the petroleum
activities.
The issue of compensation for environmental damage in general and compensation for
damages marine environment in particular, including damages caused by oil and gas exploration

and production activities are stipulated in general by the provisions of the Law on Environmental
Protection 2015, Civil Code 2015 and the Civil Procedure Code. 2015 in accordance with the
general principle in compensation for damage is "Organizations, individuals causing environmental
pollution, degradation shall be responsible for remedying the consequences and compensating for
the damages caused.”(Article 164 of the Law on Protection environmental protection 2014) In case
of disputes arising, the dispute shall be resolved in accordance with the provisions of law on the
settlement of civil disputes outside the contract (Article 161 of the Law on Environmental
Protection). Depending on the nature and specific level of the violation, an individual or
organization may be subject to the following forms of liability: civil liability or criminal liability.
4.1.3.3. Settlement of international disputes in petroleum exploration and
exploitation activities
The basic and consistent viewpoint of the State of Vietnam on the settlement of the
disputes at sea between Vietnam and neighboring countries is settling by the peaceful means
through negotiating on the ground of voluntariness and equality and in accordance with
international law with the aim at finding a fair solution for the parties concerned. This is
consistently reflected in the Vietnam‟s documents on the sea, from the Declaration on the territorial,
contiguous, exclusive economic zone and continental shelf of the Government of the Republic on
May 12, 1977 Vietnam's Socialist Republic, the Resolution of the Vietnam‟s National Assembly
dated January 23, 1994 ratifying the United Nations Convention on the Law of the Sea in 1982, to
the Law of the Sea of Vietnam. Accordingly, "The State of Viet Nam settles disputes related to the
sea and islands with other countries by peaceful means, in conformity with the 1982 United Nations
Convention on the Law of the Sea, international law and practices” (Article 4 of the Law of the Sea
of Vietnam).
18


The current legal basis of Vietnam's oil and gas management is mainly a system of
specialized regulations in the field of petroleum and environmental protection related to oil and gas
exploration and exploitation which are recognized in many documents with different legal validity.
Overall, this document system has created a full legal basis for oil and gas management as well as

the implementation of international treaties on this field that Vietnam is a member. However, the
system of these regulations still has the following limitations:
Firstly, the legal system on oil and gas resources management still has many problems
which are not prescribed or generally prescribed, not specifically or unreasonably.
Particularly: (i) the problem of joint exploitation; (ii) the problem of dispute settlement arising from
the course of the exploration and exploitation of oil and gas; (iii) the regulations on financial
insurance for the performance of environmental protection obligations; (iv) the issue of
compensation for damage to the marine environment.
Secondly, the legal system on marine environmental protection in general and marine
environmental protection from oil and gas exploration and exploitation in particular has been
scattered in many documents from the Law on Petroleum (Article 5), Law on Environmental
Protection, Law on Natural Resources and Environment of the sea and islands; government decrees;
Decisions of the Prime Minister to Circulars issued by the Ministry of Natural Resources and
Environment. On the other hand, the same content in marine environmental protection is regulated
in many different documents.
Thirdly, some regulations in the field of environmental protection are not compatible with
international treaties of which Vietnam is a member. Firstly, for the limitation of the liability due to oil
pollution, the CLC Convention 92 stipulates the limitation of liability for oil pollution under the provisions
of the Maritime Code that such liability is not limited (Clause 2 of Article 300); Secondly, in respect of
limitations for initiating a lawsuit for damages pursuant to the Civil Liability Convention, limitations for
initiating a lawsuit for damages to oil pollution is three years after an incident and six years for successive
damages resulting from the incident, whereas, under the provisions of the Civil Code 2015, of limitations for
initiating lawsuits for compensation for non-contractual damage, including environmental damage, is three
years from the date the right holder requests or knows that the right their legitimate interests are harmed
(Article 588).

4.2 The reality of enforcement of law on the management of Vietnam’s oil and gas
4.2.1 The reality of the exploration and exploitation of oil and gas
Vietnam's oil and gas exploration and exploitation activities were deployed greatly early
(from 1961), mainly carried out with the help of the Soviet Union in the north. In the southern

continental shelf, these works were carried out by foreign companies such as Mobil, Pecten,... from
the 1970s. By 2017, authorized by the Vietnam government, PVN has signed 106 oil and gas
contracts with domestic and foreign companies. Of which, there are 62 contracts still in force,
including 10 petroleum contracts (PC), one business cooperation contract (BCC) and 51 product
sharing contracts (PSC) with a total of nearly 40 domestic and foreign petroleum contractors
entering into contracts. From the first milestone of crude oil exploitation in June 1986, PVN is
currently exploiting 25 domestic and 10 foreign oil mines with the total production of over 455
million tons of oil (of which, oil production is over 346 million tons and gas production is over 108
billion m3), oil sales has reached over US $ 140 billion, and state budget revenues from oil exports
has reached over US $ 67 billion.
In the overlapping Continental shelf, so far, Vietnam has signed a Petroleum Agreement
with Malaysia in 1992 to establish a joint exploitation area covering about 2,800 square kilometers,
limited by straight sections connecting 6 defined points that are located in the northeastern coast of
Western Malaysia and the southwestern coast of Vietnam. On July 29, 1997, the first ton of oil was
mined in the "identified area" from Bunga Kekwa mine, marking the efforts of both sides in joint
19


mining as well as the settlement of disputes in delimitation of the sea. In addition to the agreement
signed with Malaysia, since 2005, the Vietnam Oil and Gas Corporation, now the Vietnam National
Petroleum Group and China National Offshore Oil Corporation (CNOOC) signed and implemented
the Agreement Framework on Petroleum Cooperation in the Agreed Offshore Area in the Gulf of
Tonkin. Over the past years, the two sides have jointly conducted oil and gas exploration and
production activities in the identified areas of the Agreement, including: 3D seismic survey; drilling
a well for oil and gas, document research and interpretation, and assessment of oil and gas potential.
4.2.2 Environmental protection from the petroleum exploration and exploitation
Among the polluting sources from the petroleum exploration and exploitation, oil is the
primary source of pollution and also the most dangerous source of pollution. Oil pollution can arise
from following causes:
Firstly, the pollution is arises from the rig or drilling system. However, the amount of

these contaminants falling to the sea is not substantial/ negligible as they only cause local and
immediate pollution where they fell and soon afterwards they were dispersed and infused into
seawater. The incident of oil spill on the sea can only occur without adequate use of equipment due
to recklessness or severe disaster caused by earthquakes, but, these phenomena have not occurred
yet.
Secondly, the pollution is caused by transportation and drilling operations, oil and gas
exploitation. In fact, a number of oil spills have been reported over the years that have arisen from
these courses. Nonetheless, compared to the total number of oil spills in the country caused by
various reasons, the oil spills caused by such incidents only account for a very small proportion of
2% of the causes of oil pollution.
In addition to pollution from oil, chemicals and wastes in the exploration and exploitation
of oil and gas are also regarded as one of the sources of pollution in the marine environment.
However, the environmental analysis reports in the oil and gas tanks have shown that the amount of
waste discharged from the exploration and exploitation of oil and gas as well as the chemicals used
by the contractors in these courses are within the allowable limit and their impact on marine
environment are not significant.
4.2.3. Settlement of international disputes in oil and gas exploration and exploitation
With abundant oil and gas reserves as well as the lifeblood location of the South China
Sea in the Asia-Pacific region, petroleum disputes in the region occur quite popularly.
Vietnam‟s disputes relating to the petroleum exploration and exploitation naturally are
disputes over the exercise of sovereign rights and jurisdiction of Vietnam over the petroleum
exploration and exploitation in both independent and overlapping Continental Shelf. These disputes
are mainly related to: i) Petroleum exploration and exploitation activities in the Continental Shelf,
mainly of which are exploration and exploitation of China in the Vietnam‟s Continental Shelf; ii)
acts that obstruct Vietnam's exploration and exploitation of petroleum; and iii) act of violation of
obligations "without prejudice to the final delimitation" in the overlapping Continental Shelf that
are not yet delimited by Article 83 UNCLOS.
Vietnam has consistently and proactively used diplomatic measures through various
channels and levels to settle these disputes, including: Firstly, bilateral diplomacy through official
declarations, the function of the Ministry of Foreign Affairs of Vietnam with the content of protest

against the violation of violating country, requesting the termination of infringement of Vietnam‟s
sovereign right and jurisdiction over the exclusive economic zone and Continental shelf; Secondly,
multilateral diplomacy through regional forums, international organizations and global international
organizations so as to continuously affirm the sovereignty, sovereign right and jurisdiction of
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Vietnam in the South China Sea with the aim at taking advantage of international community‟s
support and creating diplomatic pressure in order to end the infringement.
4.3 Solutions to improve the management of Vietnam’s oil and gas exploration and
exploitation
4.3.1 Review and improve legal system on management of oil and gas resources and
protection of sovereignty, sovereign rights in the exploration and exploitation of oil and gas
 Improve/ complete regulations on management of oil and gas exploration and
exploitation
Although joint exploitation is conducted on the basis of agreements between countries, it
is essential to have provisions in the Law on Petroleum to regulate this matter with a view to
ensuring the nature of the joint exploitation that is to work together to exploit resources as well as a
temporary solution without affect the final decision on the delimitation in the overlapping waters.
With regard to the provisions on dispute settlement arising from the petroleum contracts, the law is
in need being amended to ensure the equality of the contracting parties in the right to choose the
means of dispute settlement, regardless of domestic and foreign organizations and individuals.

Improve/ Complete regulations on environmental protection from the exploration
and exploitation of oil and gas
Derived from the fact that the regulations on marine environmental protection in general
and environmental protection from the exploration and exploitation of oil and gas are scattered in
many different documents, which creating overlapping, lack of synchronism while still missing
issues that need stipulating, Vietnam is advised to consider to issue a separate legal document in
this field, namely Law on protection of the marine environment, which specifically regulates the

protection of marine environmental from various sources of pollution, including the exploration and
exploitation of petroleum. For this source of pollution, the rule for law making is to ensure the
integration of the contents that are regulated in many current documents and to supply and specify
the issues that are now not clearly provided.
 Improve the legal basis for the operation of the law enforcement force to enhance
the effectiveness of the protection of sovereignty and sovereign rights in the exploration and
exploitation of petroleum
The first is to review current regulations on functions, duties and operations of the
maritime law enforcement agencies to amend/revise the overlapped regulations between these
forces clearly with the aim at clearly defining of the scope, content, and operative characteristics of
each force.
The Second is to improve the legal basis for the operations of the Coast Guard/ Marine
Police
4.3.2 Enter into joint exploitation agreements and be cautious of the exploration and
exploitation in the extended Continental Shelf
 Entering into the joint exploitation agreements
For countries that have completed the delimitation process as well as the undelimited
Continental Shelf, Vietnam can consider entering into Petroleum Agreement (OTC) agreements
with these countries on the basis of prudent examination of political, legal and economical aspects
such as the status quo of resources in overlapped waters, economic and social conditions, financial
and technical capability of each side, actual exploitation potential, economic benefits gained in
correlation with the undesirable effects from the mining process that may occur so as to determine
with which countries to enter into these agreements, where the mining areas are located, the mining
model and management mechanism,…
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

Be cautious in petroleum exploration and exploitation in the extended Continental

Shelf
Of the currently identified oil and gas fields in Vietnam, there are several oil and gas
fields that are located outside the outer boundary of the Continental Shelf away from 200 nautical
miles from the baseline, such as no. 154, 159 and 160. During the time waiting for CLCS to review
our reports, Vietnam should not conduct any activity of petroleum exploration and exploitation tai
oil and gas fields beyond the 200 nautical mile boundary of the Continental Shelf. Even if the
expansion of the Continental Shlef is approved by the CLCS, Vietnam is also advised to carefully
consider whether to explore and exploit oil and gas in the Extension or not and if any, where should
be exploited and how to exploit,.... this is due to the fact that when conducting exploitation, from
the sixth year onwards, Vietnam shall have to pay contributions in cash or in kind, therefore, if there
is not careful and accurate calculation, Vietnam may not cover all the costs incurred during the
operation.
4.3.3 Improve the effectiveness in the protection of Vietnam’s sovereignty, sovereign
rights at seas and improve international cooperation
 Improve the effectiveness of maritime law enforcement force
In order to meet the requirements of protecting sovereignty and sovereignty in the present
context, maritime law enforcement officers and soldiers have to be professionally and militarily
proficient and clearly aware the guidelines, policies of the Party, laws of the State and international
treaties and have strong political wills to deal with violations, infringements upon national interests,
legal interests of organizations and individuals at sea. This requires training and instruction to be
performed in a professional and regularly manner, updated the advanced training contents of
countries in the region and in the world, and at the same time, to strengthen the modern command
and control system equipped with powerful weapons for the maritime law enforcement as well as
strengthen the international cooperation in training and instruction of the law enforcement forces.
Strengthen and renew the propaganda and education of the law of the sea in general and
the sovereignty of Vietnam in exploring and exploiting oil and gas in particular for all classes of
people. To carry out the task of protecting Vietnam's sovereignty and territorial sovereignty over the
sea, propaganda and dissemination activities must meet the following requirements: First, to
provide timely, To ensure that all people in the country, overseas Vietnamese and the world's

people understand the Vietnamese legal basis, historical basis and actual occupation in the sea and
islands; Know the position and position of the Party and State on resolving the issue of sovereignty
disputes in the South China Sea; secondly, diversification of propaganda content, forms of
propaganda and third, propaganda activities must be built in accordance with each object
propaganda.
 Strengthening international cooperation activities
Derived from the fact that China frequently acts to pressure, threaten, even hinder or
undermine the operations of companies, foreign petroleum corporations when carrying out the
exploration and exploitation of petroleum in the Vietnam, Vietnam should take diplomatic and
legal measures to create peace of mind for foreign investors and simultaneously, strengthen the role
of Coast Guard and Marine forces in areas where foreign investors are at risk or have been damaged
in practice due to violations of Vietnam's sovereign rights.
In the protection of the marine environment in general and the protection of the marine
environment from the petroleum exploration and exploitation in particular, the international
cooperation contents should be focused as follows: (i) oil pollution; (ii) intensifying the
implementation of international cooperation activities in practice such as training of oil spill
incident response...; (iii) continuously expanding the cooperation contents such as human resources
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training, deployment of projects for assessment the overall risk of causing environmental pollution
from the current petroleum exploration and exploitation.
4.3.4 Improve of political, diplomatic and legal activities in the international dispute
settlement
Firstly, along with the direct negotiation, it is advised to continuously use diplomatic
multilaterally diplomatic channels at various levels, ranging from regional international
organizations such as ASEAN, international organizations such as the United Nations to economic
and security forums such as the Regional Security Forum (AFR), Shangrila Dialogue, AsianPacific Economic Forum (APEC),... to take advantages of the international community‟s support,
thereby creating pressure on the violating States to stop their violations.
Secondly, it is essential to continue to take the initiative in diversification and

multilateralization of the international relationships; strengthen the implementation of substantive
cooperation with other countries in the region and in the world with a view to taking maximum
advantages of the "external force", thereby facilitating the strengthening of "position/status" and
"force" of Vietnam in the dispute settlement. Thirdly, in addition to these political and diplomatic
measures mentioned above, the use of dispute resolution through international arbitration should be
taken into account in the future. In order to be able to use the judiciary measures, Vietnam should
actively prepare human resources, including expert staff as well as documents and evidence to
prove its arguments as well as consult from other countries about similar lawsuits, especially the
Philippines about preparation of the legal documents for submission to the arbitral tribunal in the
Philippines case against China.
CONCLUSIONS
1.
The history of the development of international maritime law in general and the
regulations on management of marine mineral resources in particular reflect the process of struggle
and harmony among nations with various benefits and actions in the effort to develop a common
rule regulating issues related to the exploitation and use of marine resources.
The birth of the continental shelf and the Area has created a completely new legal regime
for marine minerals. That is, instead of the freedom of each nation for the resources at the seabed
and beneath the seabed outside the territorial sea under the principle of freedom of the sea as in
traditional law of the sea, in the Continental Shelf, mineral resources are placed under the control of
the Coastal states with sovereign rights in exploration and exploitation, and in the Area, all activities
with respect to mineral resources are placed under the governance of the Authority, from allowing
mining operations to inspecting and supervising this whole process.
At the global level, the United Nations Convention on the Law of the Sea 1982, the
Agreement 1994, other international treaties in the field of marine environmental protection related
to oil and gas exploration and exploitation and the regulations issued by the Regional Authority,
together, have formed the legal basis for regulating the management of marine mineral resources in
2 aspects: the management of exploration and exploitation; environmental protection from the
exploration, exploitation and settlement of disputes arising from these activities. The process of
developing and improving this legal framework on resource management still needs continuing with

requirements of specifying and detailing unclear regulations, supplying contents that are currently
missing or creating new provisions so as to offset the current "gaps".
On the basis of the provisions of the UN Convention on the Law of the Sea, Vietnam has
carried out many activities to exercise sovereign rights in the mineral exploration and exploitation,
namely oil and gas on the continental shelf in many aspects. Legally, Vietnam has issued a system
of basic regulations or specialized regulations directly stipulate the specifically legal contents in the
management of oil and gas resources such as the Law on the Sea of Vietnam, the Law on
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