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 2 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.
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: 38 01 08 A SUMMARY OF THE PhD THESIS Ha Noi – 2018 The PhD Thesis was accomplished at: Hanoi Law University Adviosrs/Supervisors: Assoc.Prof: Nguyen Hong Thao 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: National Library 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 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 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 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 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 above contents and propose some specific solutions to improve the efficiency of Vietnam‟s oil and gas management 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, 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 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 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 Structure of the thesis In addition to the introduction and the conclusion, the thesis is structured into 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 – 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 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 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 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 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 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 aspects: Firstly, the rights of the Coastal State in the exploration and exploitation of mineral are natural, inherent and 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 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 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 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 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 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 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 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 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 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, 12 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 13 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 voi 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 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 groups: the first one is through diplomatic means, namely negotiation (Article 238 UNCLOS), reconciliation ( Article 284 and Annex 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 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 14 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 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 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, 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 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 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 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, 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 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 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 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 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 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 20 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,… 21 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 22 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 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 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 23 Petroleum, the Law on Environmental Protection 2014, the Law on Natural Resources and Marine and islands Environment 2015 and the documents guiding the implementation of the law In practice, from the first ton of crude oil exploited in June 1986, up to now, Vietnam Oil and Gas Corporation is currently exploiting 25 domestic and 10 foreign oil mines with a total production of over 455 million tons of oil In the overlapped Continental shelf of Vietnam - Malaysia, the first ton of oil was mined in the "delemited area" from Bunga Kekwa on July 29, 1997, marking the result of both sides efforts in joint mining operations as well as settlement of disputes in delimitation of the sea; Vietnam, China have jointly conducted oil and gas exploration and exploration activities under the Vietnam-China Joint Exploration Agreement in the offshore delemited area in the Tonkin Gulf During the course of the exploration and exploitation, the environmental protection has been carried out effectively with analysis results from oil and gas tanks which shows that the amount of waste discharged as well as chemicals used by the contractors in the process are all within acceptable limits and have negligible impact on the environment; the number of oil spills caused by incidents in the course of the petroleum exploration and exploitation accounts for only a small percentage (2%) of all oil spills The abundant oil and gas reserves as well as the blood location of the East Sea in the Asia-Pacific region have led to many disputes relating to the exercise of sovereign rights and sovereign rights in the exploration and exploitation of oil and gas Over time, these disputes have become quite common and complex as these disputes are not only a dispute over the right to conduct the exploration and exploitation in the particular waters, but also are related to direct actions infringing the sovereignty and sovereign rights over the waters of Vietnam With a consistent viewpoint: “Settling disputes over territorial sovereignty as well as other disputes relating to the South China Sea through negotiating peace in the spirit of equality, mutual understanding and respect, respect for the international law, particularly the 1982 United Nations Convention on the Law of the Sea.” Vietnam has been persistent, proactive and flexible in using diplomatic measures through various channels and levels to deal with the issues, thereby affirming and protecting the sovereignty, sovereign rights at sea in general and sovereignty and sovereign rights in petroleum exploration and exploitation in particular Institutionalizing the Party‟s guidelines and policies on the Vietnam Maritime Strategy to 2030 with a vision to 2045 needs aiming at the general goal: "step by step bringing our country to become a powerful country on the sea, rich from the sea, based on the sea and forward to the sea,” and the improvement of efficiency in the management of oil and gas resources needs performing in many aspects, from the completion/ improvement of the law, the conduct of the joint exploitation in the disputed area basing on the principle of ensuring the sovereignty, sovereign rights, equality and interests of Vietnam to the expansion of the international cooperation in both content and form Particularly, in the context of acts of infringement of Vietnam‟s sovereignty and sovereign rights becoming increasingly complex and serious, the management of petroleum have to be closely linked to the protection of the sovereignty and sovereign rights at sea Therefore, in addition to improving the performance of maritime law enforcement forces, Vietnam is advised to continue to flexibly use political and diplomatic measures as it did in the past, simultaneously, consider legal measures to settle disputes thoroughly for the strong defense of the sovereignty, sovereign rights and marine resources 24 ... 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. .. 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... 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