Vietnam Maritime Law Enforcement

korean journal of international and comparative law 6 (2018) 172–198 brill.com/kjic

Nguyen Thi Lan Anh Associate Professor, Institute for South China Sea Studies, Diplomatic Academy of Vietnam [email protected]

Mai Ngan Ha Institute for South China Sea Studies, Diplomatic Academy of Vietnam [email protected]

Abstract

In the context of more frequent occurrence of illegal activities at sea and increasing depletion of marine natural resources, the need for close cooperation between law enforcement forces is more imminent to foster an effective approach to these issues. In Vietnam, there is a multiplicity of law enforcement forces specializing in different aspects at sea. This article will describe the activities of these forces, including the organizational structure, functions and jurisdictions, as well as their law enforcement practices. Next, this article will describe the experience of these forces in international cooperation to address transnational maritime challenges. Finally, some assessments and proposals for future development will be made on the activities of Vietnam law enforcement forces.

Keywords international Law – Vietnam – law enforcement forces – coast guard – transnational maritime issues

1 Introduction1

Vietnam law enforcement force is one of the two major bodies responsible for maritime security, along with the Vietnam People’s Army. The maritime law enforcement forces of Vietnam comprise two main agencies, namely the Vietnam Coast Guard and the Fisheries Resources Surveillance Force, as well as four other functional bodies including the Border Guard, Custom, Environment Police and the Vietnam Maritime Administrations. Similar to the law enforcement agencies of other countries, these forces have the mandate to ensure adherence to the laws and regulations of Vietnam at sea and enforce the sovereignty and sovereign rights of Vietnam in its maritime zones in accordance with the United Nations Convention on the Law of the Sea (unclos) and other specialized treaties. In recent years, the law enforcement bodies of Vietnam have actively engaged in international cooperation with regional and international counterparts as well as relevant organizations to address transnational challenges at sea. In the context of more frequent occurrence of illegal activities and increasing depletion of marine natural resources, it is of urgent importance that law enforcement forces cooperate closely with each other to foster an effective approach to such issues. To understand the organization and practical operation of such forces would contribute tremendously to such cooperation. Therefore, this article will attempt to describe the activities of all maritime law enforcement forces of Vietnam. First, it will summarize the organizational structure, functions and jurisdictions of different law enforcement forces of Vietnam under relevant laws and regulations. The article will then analyze the practice of Vietnam maritime law enforcement bodies in anti-piracy operations, prevention of illegal, unregulated and unreported fishing, protection of the marine environment, prevention of accidents and collision at sea, and prevention of smuggling. Next, this article will describe the practical experience of Vietnam law enforcement forces in bilateral, regional and international cooperation to address transnational maritime challenges. Finally, some assessments will be made on the activities of Vietnam law enforcement forces and proposals for future development.

1 The views presented in this work are of the authors only and do not reflect the views of the Diplomatic Academy of Vietnam.

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2 Maritime Law Enforcement Forces of Vietnam

2.1 Vietnam Coast Guard The Vietnam Coast Guard (vcg) was initially established under the name Vietnam Marine Police and under the High Command of Vietnam People’s Navy in 1998,2 in order to relieve the burden on the Navy during peace time and protect the sovereignty and sovereign rights of Vietnam in its maritime zones in compliance with international law.3 In the same year, the Marine Police Department was also established as a part of the Navy’s High Command, albeit with a more guiding than commanding role. After ten years, to address new challenges in the protection of Vietnam’s sovereignty and sovereign rights at sea, in 2008, a new Ordinance was promulgated to elevate the Marine Police into an armed service under the Ministry of Defense.4 The Marine Police Department was also transferred to the Ministry of Defense and assumed direct commandment over the forces. In 2013, the force was officially renamed as “Vietnam Coast Guard” and the Marine Police Department became the Command of Coast Guard (ccg).5 This marks the official separation of the vcg from the Navy as an independent armed service.6 Under the 2008 Ordinance on the Vietnam Coast Guard, the vcg is a civilian armed force as it is placed under the leadership of the Vietnam Communist Party, the command of the Head of State and the unified management of the Government. Its activities are directly under the auspices of the cCg, Ministry of Defense. Units under the ccg include Regional Coast Guard of four different Zones, specialized task forces and centers. Each Regional Coast Guard force

2 Ordinance No. 04/1998/PL-UBTVQH10 of the Standing Committee of the People’s Assembly of Vietnam on the Marine Police of Vietnam (March 22, 1998). 3 Nguyen The Phuong & Truong Minh Vu, Vietnam Coast Guard: Challenges and Prospects of Development, Asia Maritime Transparency Initiative, January 2, 2017, available at https:// amti.csis.org/vietnam-coast-guard-challenges-prospects/. 4 Ordinance No. 03/2008/PL-UBTVQH12 of the Standing Committee of the People’s Assembly of Vietnam on the Marine Police of Vietnam (January 26, 2008) (hereinafter vcg Ordinance). 5 Decree No. 96/2013/ND-CP of the Government amending and supplementing a number of articles of the Government’s Decree No. 86/2009/NC-CP dated October 19, 2009 detailing and guiding implementation of a number of articles of the Ordinance on the Marine Police of Vietnam (August 27, 2013). 6 It is sometimes alleged that the separation of the vcg from the Navy was intended to make the VCG eligible to acquire new patrol vessels under the framework of some international aid programs, as such aid was only available for non-military purposes. See further “Canh Sat Bien Viet Nam/Vietnam Coast Guard/Vietnam Marine Police (vmp)” (Global Security), available at https://www.globalsecurity.org/military/world/vietnam/ marine-police.htm.

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 175 manages a part of the maritime zones and continental shelf areas of Vietnam,7 and consists of coast guard regiments and fleets, scout teams and professional squads.8 Other specialized task forces under the direct commandment of the ccg are marine police regiments, two Reconnaissance Teams, and four Anti- Drug Special Task Forces.9 A Coast Guard Information Center and a Training Center are also set up under the ccg to assist in providing professional guidance and training.10 As a law enforcement force, the duty of the vcg is to protect the security and order as well as ensure compliance to Vietnam legislations and treaties to which Vietnam is a party to in the maritime zones and continental shelf of Vietnam.11 In particular, the vcg is tasked to inspect, patrol and control the maritime zones and continental shelf of Vietnam, yet the scope of such actions erodes seaward. In particular, within the internal water, territorial sea and port areas, the vcg’s responsibility is broader as to encompass inspection and control for purposes of protection of Vietnam’s sovereignty; maintenance of security, order and safety; protection of the environment, including protection of natural resources, and prevention and control of environmental pollution; prevention of crimes, such as drug smuggling and human trafficking, and other violations of law.12 In the contiguous zone, the exclusive economic zone (eez) and the continental shelf, the vcg is only tasked to patrol and control for the protection of Vietnam’s sovereign rights; protection of the environment; and prevention of transnational crimes including piracy, armed attacks against

7 Decree No. 86/2009/ND-CP of the Government detailing and guiding a number of articles of the Ordinance on the Marine Police of Vietnam (October 19, 2009) (hereinafter Decree No. 86), Article 7: “1. 1st Regional Marine Police manages the sea areas and continental shelf from the estuary of Bac Luan river, Quang Ninh province, to Con Co island, Quang Tri province. It is headquartered in Hai Phong city. 2. 2nd Regional Marine Police manages the sea areas and continental shelf from Con Co island. Quang Tri province, to Xanh islet, Binh Dinh province. It is headquartered in Quang Nam province. 3. 3rd Regional Marine Police manages the sea areas and continental shelf from Xanh islet to the northern bank of Dinh An estuary. Tra Vinh province. It is headquartered in Ba Ria – Vung Tau province. 4. 4th Regional Marine Police manages the sea areas and continental shelf from the northern bank of Dinh An estuary, Tra Vinh province, to Ha Tien. Kien Giang province. It is headquartered in Ca Mau province.” 8 Ibid , Article 5. 9 Ibid . 10 Ibid . 11 Ibid , Article 1. 12 vcg Ordinance, supra note 4, Article 6.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access 176 Nguyen and Mai ships and vessels, illegal transportation and trafficking of humans, and illegal transportation and smuggling of narcotics and pre-substances.13 In addition, the vcg also has the duties to engage in international cooperation within their functions; to coordinate with other agencies in terms of law enforcement, search and rescue, handling of incidents at sea and protection of environment; and to raise awareness for seafarers.14 In its operational procedures, the vcg is authorized to take measures necessary to perform its aforementioned law enforcement duties.15 Upon detecting signs of violation, the vcg is authorized to check and inspect whether violations indeed take place. For violations of law, the vcg shall impose administrative measures, including fines or taking records of violations within its jurisdiction and transfer the cases to competent authorities; force the violators to cease the illegal acts; order them to leave the maritime zones of Vietnam; arrest, detain or conduct penal investigation against the violators; and confiscate equipment or means of violations. In cases of flee or resist, the vcg is allowed to take coercive measures or pursuit violators in accordance to domestic or international law. In strictly prescribed cases where the violators threaten the lives and security of coast guards or others, or in serious violations where the violators may escape unless weapons are employed, the vcg is explicitly allowed open fire. In addition, the vcg’s authority also include mobilization of resources or expropriation in urgent cases. At the moment, the vcg is considered to be one of the most robust and modern marine law enforcement forces in the region. With more than 50 vessels of different classes including 4 heavy-weight 2000-ton DN-2000 offshore patrol vessels,16 the capacity of the Vietnamese force will be further enhanced in the future with the transfer of new patrol boats under the Japanese oda, and patrol boats and a high-endurance cutter from the US.17 The vcg is also operating 3 casa C 212–400 patrol aircrafts from Spain and a medium-sized EC-225

13 vcg Ordinance, supra note 4, Article 7. 14 vcg Ordinance, supra note 4, Articles 8–10. 15 vcg Ordinance, supra note 4, Articles 7–16. 16 Supra note 3. 17 See generally Ankit Panda, Japan Pledges 6 New Patrol Boats for Vietnam Coast Guard, the diplomat, January 17, 2017, available at https://thediplomat.com/2017/01/japan-pledges -6-new-patrol-boats-for-vietnam-coast-guard/; United States Transfers Six Coastal Patrol Boats to Vietnam Coast Guard, U.S. Embassy & Consulate in Vietnam, May 23, 2017, available at https://vn.usembassy.gov/20170522-media-release-united-states-transfers-six -coastal-patrol-boats-vietnam-coast-guard/; U.S. Transfers High Endurance Cutter to Vietnam Coast Guard, U.S. Embassy & Consulate in Vietnam, May 26, 2017, available at https://vn.usembassy.gov/20170526-media-release-us-transfers-high-endurance-cutter -to-vietnam-coast-guard/.

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 177 helicopter. Vietnam is planning to purchase 10 more M28 patrol aircrafts from Poland to enhance its aerial surveillance capacity in the coastal regions, as well as seeking to equip more on-board helicopters for heavy-weight patrol vessels.18

2.2 Fisheries Resources Surveillance Force One of the major issues in sea management in Vietnam is increasing violations of regulations on fishery resources and illegal encroachments into Vietnam’s waters by foreign fishing vessels leading to severely depleted fish stocks.19 Prior to the establishment of the Fisheries Resources Surveillance Force (frsf), the management of fishery was ineffective as the two agencies in charge – the Fishery Inspection Force of the Ministry of Fisheries and the Bureau for Exploitation and Protection of Fisheries Resources in the Bac Bo Gulf under the Ministry of Agriculture and Rural Development – lacked both adequate resources and legal basis for effective monitor and sanctions of violations.20 On 29 November 2012, the frsf was established pursuant to Decree No. 102/2012/ND-CP of the Government on the Organization and Operation of the Fisheries Resources Surveillance Force. The frsf is a specialized force of the State under the Directorate of Fisheries of the Ministry of Agriculture and Rural Development. The force comprises five regional Fisheries Surveillance Sub-Departments,21 professional divisions, and non-business units, under the central management of the Department of Fisheries Surveillance.22 Additionally, under the draft Law on Fisheries, it has been proposed for the establishment of provincial fisheries surveillance forces

18 Lam Ngoc, Tường tận sức mạnh của Cảnh sát biển Việt Nam, bao moi, June 18, 2017, available at https://baomoi.com/tuong-tan-suc-manh-cua-canh-sat-bien-viet-nam/c/22553781.epi. 19 Giang Nam, Cấp thiết thành lập lực lượng kiểm ngư, vietnam journal on fisheries, September 7, 2011, available at http://www.thuysanvietnam.com.vn/cap-thiet-thanh-lap -luc-luong-kiem-ngu-article-1368.tsvn. 20 Ibid . 21 In particular, Region i: the maritime zones from Quang Ninh province to Thua Thien – Hue province; Region ii: the maritime zones from Da Nang province to Ninh Thuan province; Region iii: the maritime zones from Binh Thuan province to Ca Mau province; Region iv: the maritime zones from Ca Mau province to Kien Giang province; Region v: the maritime zones of the South-Western region. See further Luu Giang, Chính phủ đề xuất thành lập lực lượng kiểm ngư ở 28 tỉnh, thành, trithucvn, March 22, 2017, available at http://trithucvn.net/chinh-tri-xa-hoi/chinh-phu-de-xuat-thanh-lap-luc-luong-kiem -ngu-o-28-tinh-thanh.html; Decision No. 359/QD-TCTS-VP of the Directorate of Fisheries of the Ministry of Agriculture and Rural Development on functions, tasks, powers and organization of the Fisheries Surveillance Sub-Department v under the Department of Fisheries Surveillance (July 8, 2015), Article 1. 22 Ibid.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access 178 Nguyen and Mai in all 28 coastal provinces of Vietnam, however, this idea is not entirely uncon- troversial due to concerns about inadequate resources.23 The frsf’s geographical scope of jurisdiction extends to the maritime zones of Vietnam, and has the specific function of fisheries law enforcement.24 Accordingly, the frsf is tasked to prescribe programs and plans, organize and conduct surveillance, control, inspection, and handling of violations of laws on exploitation and protection of the fishery resources; raise awareness about laws on fishery; and provide guidance for fishermen and related individuals and organizations to comply with fishery rules.25 The coordination between the frsf and other law enforcement forces is also specifically stipulated in Chapter 5 of Decree No. 102, which is not only limited within enforcement of fisheries law but also expands to search and rescue activities, mitigation of environmental pollution and prevention of accidents. In doing so, the frsf is authorized to patrol, inspect, control and examine the exploitation and preservation of the fishery resources in accordance with law; request relevant individuals and agencies to provide necessary information and documents for such inspection and examination; impose administrative sanctions and other measures to deter administrative violations; prosecute or initiate criminal investigation for violations of rules on fisheries; use weapons and combat gears in accordance with laws.26 Since its establishment, the frsf has been equipped with several heavy- weight and medium-sized patrol boats,27 and its capacity is constantly enhanced with larger vessels domestically manufactured or aided by Japan, Korea and the U.S.28 Nonetheless, with the scope of operation of over 1 million km2

23 Thai An, Đề xuất thành lập hệ thống Kiểm ngư ở 28 tỉnh ven biển, bao nhan dan, June 6, 2017, available at http://nhandan.com.vn/chinhtri/item/33079902-de-xuat-thanh-lap-he -thong-kiem-ngu-o-28-tinh-ven-bien.html. 24 Decree No. 102/2012/ND-CP of the Government on the Organization and Operation of the Fisheries Resource Surveillance Force (November 12, 2012) (hereinafter Decree No. 102), Article 3. 25 Ibid, Article 4. 26 See generally Decree No. 102, supra note 24; Decree No. 76/2014/ND-CP of the Government providing Guidelines for some Articles of the Ordinance amending the Ordinance on Management and Use of Weapons, Explosive Materials and Combat Gear (July 27, 2014), Chapter II; Joint Circular No. 01/2015/TTLT-BCA-BNNPTNT of the Ministry of Public Security and the Ministry of Agriculture and Rural Development on the Equipment, Management and Use of Weapons, Combat Gears and Specialized Equipment of the Fisheries Resource Surveillance Force (January 13, 2015). 27 Kiểm ngư Việt Nam được trang bị những gì?, bao dat viet, April 17, 2014, available at http:// baodatviet.vn/anh-nong/kiem-ngu-viet-nam-duoc-trang-bi-nhung-gi-3034130/?p=8. 28 Điểm danh đội tàu tuần tra được đối tác nước ngoài viện trợ cho Việt Nam, April 20, 2017, available at http://soha.vn/diem-danh-doi-tau-tuan-tra-duoc-doi-tac-nuoc-ngoai-vien -tro-cho-viet-nam-2017042010591621rf2017042010591621.htm; Tiện nghi ít biết của tàu

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 179 eez and more than 1 million fishermen working at sea, the current capacity of the force may not allow it to comprehensively manage fishery problems under its authority.

2.3 Border Guard The Border Guard was established in 1958 as the Vietnam People’s Armed Public Security Force, initially under the control of the Ministry of Interior, and was renamed into the Border Guard in 1979.29 Throughout its history, the force was transferred many times between the Ministry of Interior and the Ministry of Defense, until 1995 when the Border Guard was finally brought under the auspices of the Ministry of Defense.30 At the top of the hierarchical structure is the Border Guard Command under the direct management and command of the Minister of Defense.31 The Border Guard is broken down into Provincial Border Guard Commands and Marine Border Guard Fleets, which directly commands smaller border guard stations or marine border guard squadrons and mobile units.32 As indicated by its name, the function of the Border Guard is to consoli- date and defend the national border, and in the marine context, the borders on islands and seas of Vietnam.33 At sea, the force is tasked to prevent all acts of encroachment and illegal infringements in the maritime zones of Vietnam, including illegal exploitation of natural resources, pollution of the environment, and transnational crimes at sea such as piracy, human trafficking, smuggling and illegal transportation of weapons, narcotics and other banned commodities.34 In the performance of these duties, the Border Guard is authorized to employ a variety of measures.35 Upon detecting signs of violations, the

Kiểm ngư Việt Nam 102, bao moi, March 18, 2017, available at https://baomoi.com/ tien-nghi-it-biet-cua-tau-kiem-ngu-viet-nam-102/c/21793461.epi; D. Ngoc, Nhật bàn giao tàu hiện đại ngàn tấn cho kiểm ngư Việt Nam, nld, August 6, 2015, available at http://nld.com.vn/thoi-su-trong-nuoc/nhat-ban-giao-tau-hien-dai-ngan-tan-cho-kiem -ngu-viet-nam-20150806153255114.htm. 29 Bộ đội Biên phòng 50 năm xây dựng, chiến đấu và trưởng thành, August 11, 2011, available at http://bienphongvietnam.vn/bd-bien-phong-viet-nam/truyen-thong-bo-doi-bien -phong/114-b-i-bien-phong-50-nm-xay-dng-chin-u-va-trng-thanh-.html. 30 Ibid. 31 Decree No. 02/1998/ND-CP of the Government detailing a number of articles of the Ordinance on the Border Guard (January 6, 1998), Article 1. 32 Ibid. 33 Ordinance No. 55/1997/L-CTN of the Standing Committee of the People’s Assembly of Vietnam on the Border Guard (March 28, 1997), Article 5. 34 Ibid , Articles 6–9. 35 Ibid , Articles 11–17.

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Border Guard may chase or arrest suspects and their vehicles. In dealing with violations, the Border Guard may impose coercive measures to compel compliance, pursue violators beyond the territorial sea of Vietnam in accordance with domestic and international law, impose administrative sanctions, and undertake criminal investigation. The Border Guard may also open fire in cases similar to the vcg. In specific cases to ensure the national security and safety of lives, or for the prevention of epidemics, the Border Guard Commander may impose restrictions or temporary bans on activities in certain areas within its competence.

2.4 Custom The first agency responsible for the control of imports and exports and custom revenues of Vietnam is the Department of Tariffs and Indirect Tax established on September 10, 1945. Throughout its history, the custom agency of Vietnam was occasionally renamed and shuffled between the Ministries of Finance, Trade and Commerce, and Foreign Trade.36 At the moment, the General Bureau of Custom under the Ministry of Finance holds main responsibility for state management of customs. The General Bureau is the central agency governing other functional divisions and provincial Customs Departments in major custom provinces and cities. Provincial Customs Departments comprises sub-departments, customs control teams and equivalent units.37 The marine law enforcement duties of the Vietnam Custom include, inter alia, prevention and fight against smuggling and illegal cross-border trafficking of good at seaports.38 In inspecting such violations, the Custom may examine, inspect, and control cross-border transportation of goods. In enforcing the laws against such violations, the Custom is authorized to use weapons and combat gears against violators. In handling violations, the Custom is allowed to prescribe administrative measures, detain and arrest perpetrators and vehicles of violation, and initiate criminal prosecution and investigation proceedings in accordance with relevant legislations.

36 “Lịch sử Hải quan Việt Nam” available at https://www.customs.gov.vn/Lists/HaiQuan VietNam/Details.aspx?ID=5. 37 Law No. 54/2014/QH13 on Customs (June 23, 2014) (hereinafter Law on Customs), Article 14. 38 See generally Law on Customs; Decree No. 01/2015/ND-CP of the Government specifying customs areas, responsibility for collaboration in preventing and controlling smuggling and illegal transportation of commodities across borders (January 2, 2015), Article 6.

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2.5 Environment Police Another specialized force in charge of environmental protection is the Environment Police of Vietnam. Established under the Ministry of Public Security in 2006, the Environment Police is a branch of the police.39 The Environment Police Department is the central command of the force, exer- cising unified authority over Environment Police Divisions within provincial police authorities and Environment Police Teams within police authorities at districts and similar administrative levels.40 Accordingly, the protection of marine environment is the specific duty of regional forces in coastal provinces. The functions of the Environment Police is to prevent, detect, and fight against crimes and violations of laws concerning the environment, natural resources and food safety in relation to the environment within the territory of Vietnam.41 In the performance of these functions, the force is entitled to take actions in accordance with relevant laws to address both criminal and administrative offenses. In practice, most of the cases handled by the Environment Police were administrative offences.42 Such actions that may be taken range from detection, examination or investigation on crimes relating to the environment, to taking administrative or police actions to ensure adherence to laws. The Environment Police is also equipped with and authorized to use weapons and combat gears in cases prescribed by law.

2.6 Vietnam Maritime Administrations The system of Vietnam Maritime Administrations (vmas) was established in 1992 along with the Vietnam Maritime Administration of the Ministry of Transport which is specifically tasked with State management of maritime affairs. There are 25 vmas based in 25 coastal provinces managing maritime affairs in their respective regions and ports. Each regional vmas comprises functional divisions, and its representatives. The functions of the vmas are mostly administrative as including management of and cooperation in maritime affairs and port facilities in their respective regions and law enforcement for the maintenance of maritime

39 Decision No. 1899/2006/QD-BCA of the Minister of Public Security on the Environment Police (November 26, 2006). 40 Ordinance No. 10/2014/UBTVQH13 of the Standing Committee of the People’s Assembly of Vietnam on the Environment Police (December 23, 2014). 41 Ibid , Articles 7–8; Decree No. 105/2015/ND-CP of the Government detailing a number of articles of the Ordinance on Environment Police (December 20, 2014), Articles 4–11. 42 In the period of 2009–2016, 98.87% of the cases handled by the Environment Police were administrative offences, with the total value of 2.55 billion vnd administrative fines, while only 1.12% were criminal cases.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access 182 Nguyen and Mai safety and security, protection of the environment, and search and rescue.43 Thereby, the Administrations may impose administrative fines in accordance with law. However, unlike other marine law enforcement forces of Vietnam, the vmas are not equipped with weapons or combat gears, thus not permitted to use force in the performance of its functions.

2.7 Comparison on Functions and Scope of Operation of Vietnam Maritime Law Enforcement Forces In short, there are six forces responsible for law enforcement at sea in Vietnam with differing jurisdictions and powers, namely the vcg, the frsf, the Border Guard, the Customs, the Environment Police and the vmas. Each is under the auspices of different Ministries and has either broad or specific mandates over certain issues. Regarding the mandate, while other forces’ functions are specialized in terms of, inter alia, fisheries, customs, environment and port management, the vcg and the Border Guard have a rather general mandate over all maritime affairs. Therefore, there has been concern that the functions of these forces and that of the Vietnam People’s Navy which is the other major force responsible for Vietnam’s maritime security may overlap. However, the functions of these forces are rather segregated. Under the 2005 Law on National Defense, the Vietnam People’s Navy has the duty to defend the independence, sovereignty and territorial integrity of Vietnam with the use of force against external threats of aggression.44 Meanwhile, the role of maritime law enforcement forces of Vietnam as prescribed by laws is to exercise Vietnam’s sovereignty and jurisdictions in its maritime zones, as well as ensure the implementation of Vietnam relevant laws. Therefore, the cases where these forces’ jurisdictions overlap are not frequent, but practical collaborations are not out of the question. Concerning the geographical scope of operation, the broadest operational area belongs to the vcg, the frsf and the Environment Police – extending to the maritime zones and continental shelf of Vietnam – and smaller areas of operation are of the Border Guard, Customs and the vmas – limited within the internal water, territorial sea and seaports of Vietnam In terms of measures authorized, Vietnam’s maritime law enforcement forces are generally allowed to impose administrative sanctions on administrative violations. Excluding the vmas, the other five forces are also allowed to

43 Circular No. 31/2016/TT-BGTVT of the Ministry of Transport on the organization and operation of Vietnam Maritime Administrations (October 31, 2016), Articles 3–4. 44 See generally Law on National Defense of Vietnam (June 16, 2005).

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 183 initiate criminal investigation or proceedings against criminal offenses within their respective substantive jurisdiction. They are equipped with weapons and combat gears, which indicate that they are implicitly authorized to resort to the use of force. However, the right to open fire is explicitly limited to the vcg and the Border Guard in strictly prescribed cases. It can be seen that due to the broad mandates and jurisdictions of the vcg and the Border Guard, overlapping scopes of jurisdictions and operation are unavoidable. As such, it has been consistently emphasized in law that all law enforcement forces of Vietnam shall coordinate and cooperate with each other in addressing violations. Regarding coordination on substantive issues such as combating maritime crimes, search and rescue, and protection of national security, Vietnam Government has prescribed in several documents the principles for cooperation; allocated the responsibility to each force; and provided for the contents of coordination such as exchange of information, implementation of measures, or investigation and handling of cases.45 Regarding coordination among forces, there are also specific provisions governing the coordination between the vcg and other forces under the Ministry of Defense46 – including the Border Guard – and other law enforcement forces,47 between the frsf, Customs, Environment Police and other agencies.48 While these regulations are scattered in a number of documents, this system of legislations still pro- vides a rather comprehensive framework on the collaboration between law enforcement bodies of Vietnam and helps in facilitating more comprehensive solutions to challenges at sea.

45 Decision No. 133/2002/QD-TTg of the Prime Minister issuing regulations on coordination among the Police, the Border Guard, the Coast Guard and the Customs in combating against drug-related crimes in border areas, at border gates and at sea (October 9, 2002); Decision No. 103/2007/QD-TTg of the Prime Minister issuing regulations on coordination in search and rescue at sea (July 12, 2007); Decision No. 77/2010/ND-CP of the Govern- ment on coordination between the Ministry of Public Security and Ministry of Defence on implementing the missions to protect national security, maintain order, public security and national defence (July 17, 2010). 46 Decision No. 28/2002/QD-BQP of the Minister of Defense issuing regulations for the coordination between the Vietnam Coast Guard and forces of the Ministry of Defense in national maritime zones (February 25, 2002). 47 Decree No. 66/2010/ND-CP of the Government on regulations on coordination on state management on activities of the Vietnam Coast Guard and other law enforcement forces in national maritime zones (June 14, 2010). 48 Supra note 24, Chapter 5; Decree No. 01/2015/ND-CP of the Government specifying customs areas, responsibility for collaboration in preventing and controlling smuggling and illegal transportation of commodities across borders (January 2, 2015), Chapter iii; Supra note 41, Chapter iii.

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3 Vietnam’s Maritime Law Enforcement Practices

Vietnam’s law enforcement forces have actively exercised their roles and functions in all Vietnamese waters in various fields, including suppression of transnational maritime crimes, addressing illegal, unregulated and unreported (iuu) fishing, dealing with maritime environment problems, conducting search and rescue in maritime accidents and collisions, and so on.

3.1 Suppression of Transnational Maritime Crimes Within the maritime zones of Vietnam, piracy, armed robbery and trafficking are among the most popular maritime crimes that usually occur within a transnational context. Regarding piracy, the piracy situation in Vietnam occur in two main ways, either Vietnamese vessels are hijacked by foreign pirates when passing through the waters of Indonesia, the Philippines or the Malacca Strait, or Vietnam’s waters are used by foreign pirates for hiding. These match with the resurgence of piracy in the Southeast Asia region in the last couple of years, with 178 cases occurring in the region among 246 cases in the world in 2015 and 85 among 191 cases in 2016.49 To curb this situation, the vcg has strengthened its capacity, conducted patrols and intervened to assist victims, arrest pirates and investi- gate incidents.50 The Sunrise and Zafirah cases are two typical cases when the vcg actively reacted. In the first case, the Sunrise is an oil tanker en route to Quang Tri province, a central province of Vietnam, to transport over 5200 tons of oil from Singapore.51 A couple of hours after departing from the Horizon Port of Singapore, it was then approached by a high-speed watercraft and two fishing boats. The pirates, armed with guns and knives, took control of the crew, destroyed the vessel’s communication system, assaulted the sailors, stole one- third of the vessel’s oil and freed the ship at approximately 2.00 am near Thai

49 Dr. Nguyen Thanh Le and Luong Thi Kim Dung, Nâng cao năng lực của Cảnh sát biển Việt Nam trong thực thi pháp luật về cướp biển và cướp có vũ trang đối với tàu thuyền, Vietnam Coast Guard, June 7, 2017, available at http://canhsatbien.vn/portal/nghien-cuu-trao-doi/nang -cao-nang-luc-cua-canh-sat-bien-viet-nam-trong-thuc-thi-phap-luat-ve-cuop-bien-va -cuop-co-vu-trang-doi-voi-tau-thuyen. 50 Major Gen. Nguyen Van Son, Phòng, chống cướp biển và cướp có vũ trang chống lại tàu thuyền ở khu vực châu Á, Vietnam Coast Guard, May 26, 2017, available at http:// canhsatbien.vn/portal/quan-ly-chi-dao/phong-chong-cuop-bien-va-cuop-co-vu-trang -chong-lai-tau-thuyen-o-khu-vuc-chau-a. 51 Tien Phong, Tàu Sunrise 689 thoát nguy về đến vùng biển Việt Nam, bao moi, October 9, 2014, available at https://baomoi.com/tau-sunrise-689-thoat-nguy-ve-den-vung-bien -viet-nam/c/14999548.epi.

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 185 waters after 5 days of holding hostage.52 Three hours later, the captain of the Sunrise phoned to report the incident to the owner of the vessels, the Hai Phong Fishery Shipbuilding Company.53 Immediately after the disconnection of the Sunrise, the vcg had sent notices seeking assistance to coast guards of Malaysia, Indonesia, Philippines and Singapore.54 Upon receiving the information from the captain of the Sunrise, the High Command of the vcg decided to dispatch two boats, the csb 2004 and csb 2001, to rendezvous with the vessels and escort them back to Vietnam. After approaching the Sunrise, a working team consisted of coast guards and medical officials provided medicines, food, water and first-aid to injured sailors.55 In the meantime, the vcg investigated, gathered information from the sailors and traced the evidence left on the vessels of the hijacking. The Sunrise was finally escorted to Phu Quoc Island for checking and repair.56 In the second case, on 19 November 2012, the vcg received the information from the imb that the Zafirah, a Malaysian oil tanker, was missing, alleg- edly under hijacking and last traced at a distance of 110 nm from the eez of Vietnam.57 Based on these information, the vcg deployed its forces to search for the pirates and victims. A day later, Vietnam fishermen reported of rescuing 9 Malaysian sailors in Vietnam’s waters.58 This information helped the vcg confirm the suspicion that the pirates were still operating within Vietnam’s waters. After two days of dispatching its forces, on the early morning of 22 November 2012, the vcg detected a vessel with similar identification with the missing Malaysian oil tanker.59 However, the number and name of the vessel did not match with the registration informations on the International

52 Vietnam Coast Guard begins probe into hijacking of oil tanker Sunrise 689, tuoitrenews, October 11, 2014, available at https://tuoitrenews.vn/society/23180/vietnam -coast-guard-begins-probe-into-hijacking-of-oil-tanker-sunrise-689. 53 Ibid . 54 T.M., Tàu Sunrise 689 đã gặp cướp biển, petrotimes, October 9, 2014, available at http:// petrotimes.vn/tau-sunrise-689-da-gap-cuop-bien-217911.html. 55 N. Trieu and Q. Vinh, Các thuyền viên tàu Sunrise 689 đã được sơ cứu, tuoi tre online, October 9, 2014, available at https://tuoitre.vn/nhom-cuop-bien-gom-10-nguoi-quoc-tich -indonesia-656338.htm. 56 Tuan Phung, et al., Tàu Sunrise 689 sẽ về Vũng Tàu đêm 10–10, tuoi tre online, Octo- ber 9, 2014, available at https://tuoitre.vn/tau-sunris-689-da-duoc-cuop-bien-tha-656080 .htm. 57 Thu Lan, Hành trình bắt 11 tên cướp biển của Cảnh sát biển Việt Nam, Vietnam Coast Guard, 8 March 2013, available at http://canhsatbien.vn/portal/thuc-thi-phap-luat/ hanh-trinh-bat-11-ten-cuop-bien-cua-canh-sat-bien-viet-nam. 58 Ibid. 59 My Lang and Minh Phuong, Cuộc kiếm tìm trong đêm, tuoi tre online, June 27, 2015, available at https://tuoitre.vn/cuoc-kiem-tim-trong-dem-767625.htm.

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Maritime Organization (imo) system as well as the notice from Malaysian and Singapore coast guards on the pirated vessel.60 After 12 hours of monitoring, the vcg sent two coast guard vessels, the csb 4031 and csb 4034, to approach and request the suspected vessel to anchor at a location of 70 km away from Vung Tau province for examination. While the pirates attempted to flee, the vcg completed the examination, confirmed that the suspected vessel was the hijacked oil tanker of Malaysia and successfully arrested 11 Indonesian pirates.61 These pirates were later handed over to Malaysia for prosecution.62 The case highlights the prompt and effective response of the vcg. Despite the rough sea and high potential of oil spill, the vcg still completed the mission and ensured the safety of human and facilities.63 With regard to armed robbery, the vcg, in 2016, detected 9 cases with less serious consequences in some major port waters in Quang Ninh, Hai Phong, and Ba Ria – Vung Tau provinces. Most cases are local theft involving assets on foreign vessels anchoring in Vietnamese ports. The cases are still reported to the Information Sharing Center of ReCAAP and classified as armed robbery against ships.64 To address this situation, the vcg closely coordinated with the vmas in major ports and increased patrols in the maritime zones of Vietnam. This helped to reduce the number of small-scale thefts from 27 in 2015 to 9 cases in 2016.65 Concerning smuggling, the vcg, in coordination with the Border Guard and Customs, detected, arrested and handled hundreds of cases concerning oil, coal, drug and other products. With regard to drug, in the past 10 years, the vcg has detected the smuggling of a total of 21 kg heroin and other drug-related products, resulting in the prosecution of 66 criminal cases on drug trafficking.66

60 Ibid. 61 My Lang and Minh Phuong, Cảnh sát biển VN chạm trán cướp biển: Lệnh nổ sung, tuoi tre online, June 28, 2015, available at https://tuoitre.vn/canh-sat-bien-vn-cham-tran -cuop-bien-lenh-no-sung-768027.htm; My Lang and Minh Phuong, Cảnh sát biển VN chạm trán cướp biển: Bắn thẳng vào cabin, tuoi tre online, June 29, 2015, available at https://tuoitre.vn/canh-sat-bien-vn-cham-tran-cuop-bien-ban-thang-vao-cabin-768390 .htm. 62 My Lang and Minh Phuong, Cảnh sát biển VN bắt cướp biển – Kỳ 5: Những chuyện chưa kể, tuoi tre online, June 30, 2015, available at https://tuoitre.vn/canh-sat-bien-vn-bat -cuop-bien-ky-5-nhung-chuyen-chua-ke-768981.htm. 63 Ibid . 64 Supra note 50. 65 Supra note 49. 66 Dao Le, Cụm đặc nhiệm phòng, chống tội phạm ma túy số 2 – Cảnh sát Biển: 10 năm xây dựng và trưởng thành, bao moi, June 29, 2017, available at https://baomoi.com/cum -dac-nhiem-phong-chong-toi-pham-ma-tuy-so-2-canh-sat-bien-10-nam-xay-dung-va -truong-thanh/c/22637096.epi.

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As to oil trafficking, from 2012 to 2015, the vcg detected 69 cases involving 21,773,682 liters of oil and 259 persons.67 In 2016, the number of detected oil trafficking cases increased to 213 cases with 563 persons and 10 million liters of oil involved. The increase in the number of oil trafficking cases closely related to the resurgence of piracy in the region and the recent development of new commercial fraud. For example, on 29 January 2016, the Vietnam Department of Customs caught red-handed the Singaporean vessel btc Christina pumping a huge amount of trafficked gasoline of 9,373.6 tons (5 times more than the amount prescribed in papers) onto the storage of Duong Dong Company.68 On 21 April 2017, the vcg arrested four vessels conducting oil trafficking in the eez of Vietnam. At the time of the arrest, 3 foreign fishing vessels were carrying 1,200,000 liters of oil without any legal document on the origin of the cargo and attempted to sell these oil for Vietnam fishing vessels. These vessels were fined and escorted to the 4th Regional Coast Guard for further investigation and prosecution.

3.2 Prevention of iuu Fishing In the past decade, addressing iuu fishing has emerged as an area of priority in the operation of law enforcement of Vietnam for the dangerous impacts of iuu fishing on the conservation and management of the living resources as well as the potential negative impacts of this situation to the relationships between Vietnam and neighboring countries. iuu fishing is an issue which Vietnamese fishermen are both victims and violators. Regarding the former, foreign fishing vessels often conduct illegal fishing in the waters of Vietnam due to differences in the interpretation of maritime entitlements and the existence of maritime disputes between littoral States in the South China Sea. Violating vessels mostly come from China and occasionally from other countries like Thailand and Cambodia. For example, on 22 September 2015, the frsf in coordination with the 4th Regional Coast Guard approached and seized 3 foreign fishing vessels with 56 fishermen which fished at 8.28 N latitude and 103.35 E longitude within Vietnam’s eez. All three fishing vessels were registered in Thailand with a Thai captain and fishermen from Thailand, Cambodia and Myanmar. Upon seizure, the Vietnam law enforcement forces interpreted the legal basis for eez of Vietnam, recorded the violations within minutes and escorted the Thai fishing vessels out of

67 Nguyen Thanh Minh, Tình hình an ninh Biển Đông: Vấn đề và cơ chế hợp tác, nghien cuu quoc te, June 24, 2017, available at http://nghiencuuquocte.org/2017/06/24/ tinh-hinh-ninh-bien-dong-van-de-va-co-che-hop-tac/. 68 Ibid.

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Vietnam’s waters.69 In March 2017, the Border Guard of Quang Binh province seized two fishing boats with 9 Chinese fishermen on board while the vessels were fishing at approximately 40 and 20 km offshore from Vietnam coastline. The fishermen had to sign penalty documents before being were released.70 Concerning the latter, Vietnam is also faced with illegal fishing incidents caused by its fishermen not only in its own maritime zones, but also in the waters of other countries such as Malaysia, Philippines, Indonesia, Australia or France (New Caledonia). This situation stemmed from, on the one hand, the tensions in the South China Sea that deprive and force Vietnamese fishermen to leave their traditional fishing grounds, and on the other hand, the fishermen’s lack of awareness and their willingness to take risk for their livelihood. To address these issues, the law enforcement forces of Vietnam have firstly conducted comprehensive legal dissemination programs in which thousands of leaflets and handbooks have been given to Vietnam fishermen to explain Vietnam and international laws on fishery, maritime delimitation lines, maritime overlapping zones and bilateral agreement on fisheries between Vietnam and its neighboring countries. This information is also uploaded to the web- sites of the General Department on Fisheries and Coast Guard.71 Patrols in all maritime zones of Vietnam are also strengthened in order to timely detect, prevent and sanction illegal fishing activities. The vcg also cooperate with the Ministry of Foreign Affairs of Vietnam in the return of Vietnam fishermen arrested by neighboring countries for illegal fishing activities.

3.3 Protection of the Marine Environment Marine environment incidents occurring in the waters of Vietnam occur from both land and vessel based sources. The year 2016 witnessed a number of serious environmental incidents such as the chemical dumping of Formosa Company to the water near the coast of Ha Tinh province, or the controversy over the dumping licence for Vinh Tan Electric Company in the coast of Binh Thuan province. It is also reported that the increase in the number of potential cases of oil spill and destructive fishing practices.

69 Tuyet Nhung, Việt Nam đối xử nhân đạo với ngư dân Thái Lan xâm phạm lãnh hải, antd, September 25, 2015, available at http://anninhthudo.vn/chinh-tri-xa-hoi/viet-nam-doi -xu-nhan-dao-voi-ngu-dan-thai-lan-xam-pham-lanh-hai/635081.antd. 70 Hoang Tao, Vietnam snares Chinese boats for illegal fishing, vnexpress, March 3, 2017, available at https://e.vnexpress.net/news/news/vietnam-snares-chinese-boats-for-illegal -fishing-3549818.html. 71 Ha Kieu, Tăng cường tuần tra, giám sát khai thác hải sản tại Miền Trung, mard, December 27, 2016, available at https://www.mard.gov.vn/Pages/tang-cuong-tuan-tra-giam-sat-khai -thac-hai-san-tai-mien-trung-33170.aspx.

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While agencies like the Ministry of Natural Resources and Environment and provincial departments are in charge of land-based environment pollution, the Vietnam maritime law enforcement forces will exercise Vietnam’s jurisdiction in controlling vessel-based pollution. Accordingly, the vcg in cooperation with the Environment Police have exercised comprehensive measures in preventing marine environment pollution, including conducting information dissemination in order to raise awareness of local communities on marine environment protection; planting trees in the coastal areas; cleaning beaches; conducting stimulation exercises on handling oil spill, and patrolling to detect, prosecute or sanction violators. These measures resulted in initial success in controlling and reducing the threats to marine environment. For example, in February 2017, the frsf, in coordination with the Border Guard dispatched vessels and canoes to arrest three fishing vessels registered in Khanh Hoa and Ninh Thuan provinces for using explosives in fishing.72 In November 2017, an oil spill over an area of over 4 hectares was reported near central Binh Dinh province’s Quy Nhon seaport. The spill stemmed from vessels sunk in the earlier Damrey Storm, which car- ried around 103,000 litres of diesel oil and over 110 tonnes of fuel oil. This posed a threat of spreading the oil slick and causing deaths of farmed fish near the ports in Hai Ninh hamlet. The Quy Nhon Urban Environment Company has mobilized more than 200 workers to scrape and collect the layers of oil along the beach and to transport the oil-contaminated sand to garbage dumps. More than 3,000 packs of oil polluted sand along 7km of beach front were removed.73

3.4 Protection of the Safety of Life at Sea Located in a natural disaster prone area, the high frequency of natural disasters in the South China Sea has affected the safety of navigation in maritime zones of Vietnam. Search and rescue, therefore, is one of the major tasks of Vietnam law enforcement forces. At national level, the National Committee on Prevention of Natural Disaster and Search and Rescue is the hub for receiving information and providing command on search and rescue works. At sea, the Center for the Coordination of Search and Rescue is a focal point in which the vcg and Border Guard are all active players and in charge of the search and rescue operations at sea.

72 Huynh Thanh, “Lưới lửa”, “pha xúc” đang giết biển, nld, June 4, 2002, available at http:// nld.com.vn/thoi-su-trong-nuoc/luoi-lua--pha-xuc-dang-giet-bien-83603.htm. 73 Quy Nhon begins clean up after oil spill, viet nam news, July 11, 2013, available at http://vietnamnews.vn/environment/241947/quy-nhon-begins-clean-up-after-oil-spill .html#hQTTP7fKMCUIqMbb.97.

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Most cases of search and rescue involve distress at sea caused by natural disasters and other force majeure circumstances. However, a significant number of cases of search and rescue also comes from intentional collisions and ramming of Vietnam’s fishing vessels by foreign vessels for the assertion of groundless claims over the maritime zones of Vietnam. The 1st Regional Coast Guard estimates that in the past five years, in the Gulf of Tonkin alone, 329 search and rescue operations have been conducted, resulting in the rescue of 122 vessels and 1821 seafarers.74 The vcg always maintains at least 28 vessels standing-by to protect the safety of Vietnamese vessels’ navigation at sea.75 Not limiting only to Vietnam seafarers, the vcg also actively rescues foreign seafarers. For example, on 8 September 2017, the vcg successfully coordinated the evacuation of a sick Chinese sailor on-board the vessel Yuan Yue Hu at around 35 nautical miles northeast of Nha Trang coast, when the vessel was en route from Hong Kong to Singapore. The sick crewmember received treatment at a hospital in Nha Trang and was arranged transportation to return to China after his conditions became stable.76

3.5 Summaries of the Practices of Vietnam Law Enforcement Forces In practice, Vietnam maritime law enforcement forces coordinate rather smoothly. Suppression of transnational crimes is mainly the task of the vcg, although in some cases, the vmas, Border Guard and Customs are also involved as well as the Vietnam People’s Navy. In terms of prevention of iuu fishing, there is close coordination among the frsf, the vcg and the Border Guard. Protection of the environment requires combined actions from the vcg, the Environment Police, the frsf and the Border Guard. Safety of life at sea is actively protected by both the vcg and the Border Guard. It can be seen that the practice of Vietnam law enforcement forces is compatible with respective regulations. Due to broad mandate and robust forces, the vcg and Border Guard are the most active as they involve all law enforcement activities in Vietnam’s maritime zones. Other forces with more specific tasks mainly

74 Col. Tran Van Tho, BTL Vùng Cảnh sát biển 1 nâng cao năng lực tìm kiếm, cứu hộ, cứu nạn trên biển, Vietnam Coast Guard, September 1, 2017, available at http://canhsatbien.vn/portal/cuu-ho-cuu-nan/btl-vung-canh-sat-bien-1-nang -cao-nang-luc-tim-kiem-cuu-ho-cuu-nan-tren-bien. 75 Cảnh sát biển cam kết có mặt kịp thời khi ngư dân gặp sự cố, vov, March 31, 2017, available at http://vov.vn/xa-hoi/canh-sat-bien-cam-ket-co-mat-kip-thoi-khi-ngu-dan-gap-su -co-608499.vov. 76 Coast Guard rescues Chinese sailor off Nha Trang coast, vov, September 9, 2017, available at http://english.vov.vn/society/coast-guard-rescues-chinese-sailor-off-nha-trang -coast-358140.vov.

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 191 work within their jurisdictions, while still participating in other operations if needed. In addition to inter-agency cooperation, Vietnam law enforcement forces, particularly the vcg, also coordinate with international and regional partners, as well as the private sector in addressing maritime challenges. The vcg has participated in international mechanisms such as ReCAAP or the imb, and worked with regional law enforcement forces in the suppression of transnational crimes. Cooperation with the private sector is mainly in the protection of the marine environment. While there are no practical cases recorded of conflict of jurisdictions among Vietnam law enforcement forces, there may still be potential overlaps due to broad legal mandates. In this regard, the draft Law on Vietnam Coast Guard has been forward-looking and has specific provisions on cooperation between the vcg and other forces under different Ministries.77 The draft Law recognizes the central role of specialized agencies, and stresses the duty of the vcg to exchange information with, and provide assistance to such agencies in investigation, prosecution and sanction of offenses. There have been recommendations to unify Vietnam maritime law enforcement forces. This is desirable to meet the need to strengthen the capacity and efficiency of the Vietnam maritime law enforcement forces in the context of rising challenges from the maritime domain. The unification of law enforcement forces should be limited within the purposes of managing and controlling maritime activities by patrolling, surveillance, inspection, investigation and other practical measures. In the later stage of handling offenses, other agencies under administrative and judicial branches may be more involved than law enforcement forces. The major challenge to such recommendations is the fact that Vietnam law enforcement forces are under different Ministries and governed by different regulations. Thus, merging these forces would require significant reforms in the governmental structures over the forces, as well as major amendments of current laws and policies.

77 Draft Law on Vietnam Coast Guard (subject to contributions at the 5th Session of the Fourteenth National Assembly), available at http://duthaoonline.quochoi .vn/DuThao/Lists/DT_DUTHAO_LUAT/View_Detail.aspx?ItemID=1295&LanID= 1511&TabIndex=1. See Section 2 on the Responsibility to Coordinate in Operation among Forces, Articles 26–30 on the responsibility of the vcg to cooperate with the Ministries of Public Security, Transport, Resources and Environment, Agriculture and Rural Develop- ment, and the vmas.

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4 International Cooperation of Vietnam’s Law Enforcement

4.1 Bilateral Cooperation Law enforcement at sea, by its nature, largely relates to transboundary issues, particularly those concerning iuu fishing, marine environment pollution, maritime crimes and maritime safety. This creates a solid foundation for bilateral cooperation between Vietnam and other countries in the region. To date, law enforcement forces of Vietnam have cooperated with the inter-agencies of many countries including China, Philippines, Indonesia, Malaysia, Japan, South Korea, India and the United States. With China, cooperation extends to various areas from fishery, joint patrol and search and rescue. Vietnam and China concluded the Joint Fishery Agreement in 2000 which came into force in 2004. Within the arrangement, coast guards of the two countries shall regularly conduct joint patrols, ship visits, and joint exercises on search and rescue, and exchange and share information on illegal fishing. Since January 2016, the two coast guards have monthly informed each other about their respective patrols and violating fishing vessels. The two coast guards also notify each other about incidents at sea and coordinate to support fishermen in distress.78 In an incident concerning the missing of a casa turboprop and a Sukhoi SU-30 MK2 fighter jet, the Chinese coast guard provided assistance to its Vietnamese counterpart in searching for the planes and rescuing the pilots.79 The two coast guards also concluded a Memorandum of Understanding (mou) on 27 June 2016 to promote cooperation on anti-maritime crimes, joint patrol and search and rescue. Under the mou, the two also assign national focal points to maintain 24/7 contact.80 With the Philippines, the two coast guards concluded a mou for the operation of a hotline on 23 August 2013. Accordingly, the hotline is established by telephone, fax and internet for 24 hours a day between the two coast guard headquarters.81 Regular contacts are made monthly and irregular contacts are used for immediate coordination on fisheries surveillance activities against

78 Vietnam, China coast guards conduct joint fishery patrol, vov, April 21, 2016, available at http://english.vov.vn/politics/vietnam-china-coast-guards-conduct-joint-fishery-patrol -317783.vov. 79 China Helps Vietnam Search for Downed Coast Guard Plane, The Maritime Executive, June 17, 2016, available at https://maritime-executive.com/article/china-helps-vietnam -search-for-downed-coast-guard-plane. 80 Senior Lt. Col. Dang Hong Quan, Cảnh sát biển Việt Nam – Trung Quốc tăng cường hợp tác, Vietnam Coast Guard, August 15, 2017, available at http://canhsatbien.vn/portal/ hop-tac-quoc-te/canh-sat-bien-viet-nam-trung-quoc-tang-cuong-hop-tac. 81 Lien Nhi, Đường dây nóng giữa Lực lượng Cảnh sát biển Việt Nam và Lực lượng phòng vệ biển Philippines, Vietnam Coast Guard, August 26, 2013, available at http://canhsatbien

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 193 iuu fishing, emergency response to distressed Filipino and Vietnamese fishermen operating within the two sides’ maritime zones and on the high seas, as well as suppressing maritime crimes such as trafficking, illegal immigration, piracy and armed robbery.82 With Indonesia, during the official visit of the General Secretary of the Vietnamese Communist Party, Nguyen Phu Trong, to Indonesia in August 2017, the vcg and the maritime security agency of Indonesia (bakamla) inked a letter of intent on cooperation enhancement.83 Prior to this letter, the cooperation between the two coast guards was already established. In August 2016, the 4th Regional Coast Guard rescued two barges, the Buana Ocean 18 and Buana Ocean 19, floating at around 42 nautical miles off the Southeast coast of Hon Khoai island of Vietnam. The vcg, in coordination with the Indonesian Consular, identified the owner of the two barges, escorted and handed them over to its owner – the PT. Buana Transperindo Wahana International Company.84 With Malaysia, the vcg closely worked with its Malaysian counterparts in many cases. Two most significant cases were the Sunrise and Orkim Harmony cases. In the first case, the vcg successfully assisted in finding the Malaysian hijacked oil tanker, the Sunrise, arrested the pirates and handed them over to Malaysia for trial.85 In the Orkim Harmony incident in June 2015, the vcg also coordinated with the Malaysian Coast Guard to search and arrest the armed pirates when they fled to the waters of Tho Chu island of Vietnam. Eight pirates were then extradited to Malaysia for investigation and trial.86 With South Korea and India, the vcg conducted search and rescue drills. In 2013, the Korea Coast Guard 3012 anchored at the ptsc port in the southern coastal province of Ba Ria – Vung Tau to join a fire fighting and rescue exercise

.vn/portal/hop-tac-quoc-te/duong-day-nong-giua-luc-luong-canh-sat-bien-viet-nam -va-luc-luong-phong-ve-bien-philippines. 82 Alladin S. Diega, PHL, Vietnam launch joint effort to fight illegal fishing, business mirror, March 27, 2015, available at https://businessmirror.com.ph/phl-vietnam-launch -joint-effort-to-fight-illegal-fishing/. 83 VN, Indonesia sign cooperation agreements, viet nam news, August 24, 2017, available at http://vietnamnews.vn/politics-laws/392596/vn-indonesia-sign-cooperation-agree ments.html#l6gSlsiAaSe540Q7.97. 84 Bach Huy Binh, BTL Vùng Cảnh sát biển 4 cứu hộ thành công và bàn giao 2 xà lan quốc tịch Indonesia, Vietnam Coast Guard, August 25, 2016, available at http:// canhsatbien.vn/portal/hop-tac-quoc-te/btl-vung-canh-sat-bien-4-cuu-ho-thanh -cong-va-ban-giao2-xa-lan-quoc-tich-indonesia. 85 See supra, section 3.1. 86 Supra note 49.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access 194 Nguyen and Mai in the area with the 3rd Regional Coast Guard of Vietnam.87 In 2015, Vietnam and India Coast Guards held a search and rescue drill off the coast of Ba Ria – Vung Tau during the visit of the Indian SaRang 44 Samar – class offshore patrol vessel to Vietnam.88 With Japan, Japanese coast guard ships frequently visit and dock at ports of Vietnam. The two sides promote especially cooperation in capacity building through sharing experiences, joint training, joint exercises on search and rescue, humanitarian assistance, anti-piracy and deterring illegal fishing. During the official visit in 2015 of Vietnam Communist Party’s Secretary General, Nguyen Phu Trong, Japan concluded a Diplomatic Note with Vietnam to provide a 200 billion jpy non-refundable aid for Vietnam’s maritime safety.89 Japan also pledged to help Vietnam upgrade the vcg’s vessels and patrol capacity.90 With the US, in 2013, the two coast guards concluded Agreement on cooperation in which the US will provide formal training and curriculum development assistance to the vcg and an $18 million assistance package is provided with the aim to boost Vietnam’s maritime security. The US also provided assistance to the construction of a training facility in Hai Phong province with a focus on maritime law enforcement, using coast guard cutters and providing English-language training for the vcg. The two conducted frequent ship visits and exercises on search and rescue and safety of navigation. The US also transferred coastal patrol boats to assist Vietnam Coast Guard in inter-coastal patrols and law enforcement concerning smuggling, illicit trafficking, piracy and armed robbery against ships, and illegal fishing.91

87 RoK Coast Guard holds rescue exercise in Vietnam, vietnamplus, June 24, 2013, available at https://en.vietnamplus.vn/rok-coast-guard-holds-rescue-exercise-in-vietnam/46213 .vnp. 88 India, Vietnam Coast Guards hold rescue drill at sea, vietnamnet, August 31, 2015, available at http://english.vietnamnet.vn/fms/government/140162/india--vietnam-coast -guards-hold-rescue-drill-at-sea.html. 89 Lien Nham, Cảnh sát biển Việt Nam và Lực lượng Bảo vệ bờ biển Nhật Bản ký kết Ghi nhớ hợp tác, Vietnam Coast Guard, 21 September 2015, available at http:// canhsatbien.vn/portal/hop-tac-quoc-te/canh-sat-bien-viet-nam-va-luc-luong -bao-ve-bo-bien-nhat-ban-ky-ket-ghi-nho-hop-tac. 90 Japan gifts Vietnam patrol vessel for maritime security, vietnamnet, March 18, 2017, available at http://english.vietnamnet.vn/fms/society/174768/japan-gifts-vietnam-patrol -vessel-for-maritime-security.html. 91 United States Transfers Six Coastal Patrol Boats to Vietnam Coast Guard, U.S. Embassy & Consulate in Vietnam, May 23, 2017, available at https://vn.usembassy.gov/20170522 -media-release-united-states-transfers-six-coastal-patrol-boats-vietnam-coast-guard/.

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 195

4.2 Multilateral Cooperation In addition to bilateral cooperation, Vietnam law enforcement forces also actively participate in multilateral cooperation frameworks. Within asean, the vcg participated and supported the proposal for the establishment of an asean Coast Guard Forum as a platform for cooperation and coordination among the asean coast guards and maritime law enforcement agencies.92 At Asian level, the vcg is a member of the Heads of Asian Coast Guard Agencies Meeting (hacgam) which consists of 20 coast guard members in the region. Vietnam also successfully hosted the 7th meeting of hacgam and promoted expanded discussions on the topic of “Strengthening practical cooperation, exchanging information, and ensuring maritime security and safety” which explored the role of coast guards on search and rescue, disaster relief, maritime environmental protection and capacity building.93 The vcg is also the focal point of the Information Sharing Centre established under the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) in 2006 with the purpose to gather timely and accurately information on incidents of piracy and sea robbery. As a focal point, vcg has maintained contact on a 24/7 basis with the Information Sharing Centre of ReCAAP and other ReCAAP members in order to promptly issue warnings and alerts to the shipping industry and facilitate responses in case of incidents. Upon receiving the information, the vcg, in coordination with the vmas and port authorities, will inform the ship owners and management companies of acts of piracy in the waters in the region and ask them to adopt a maritime security plan approved by the Vietnam Register and to pay particular attention to the ReCAAP’s recommendations to ensure

92 PCG hosts First Expert’s Group Meeting on ASEAN Coast Guard Forum, Philippine Coast Guard, August 19, 2015, available at http://www.coastguard.gov.ph/index.php/ 11-news/923-pcg-hosts-first-expert-s-group-meeting-on-asean-coast-guard-forum; relevant part in Joint Communiqué of 48th asean Foreign Ministers Meeting (Kuala Lumpur, Malaysia) on August 4, 2015: “33. We noted the proposal at the 5th asean Maritime Forum for the establishment of the asean Coast Guard Forum (acgf). In this regard, we looked forward to the Experts’ Group Meeting on the acgf on August 19–20, 2015, in Manila, the Philippines, to discuss the possible establishment of the asean Coast Guard Forum (acgf) and its Terms of Reference.” 93 Presentation by Japan (asean Regional Forum) available at http://aseanregionalfo- rum.asean.org/files/Archive/19th/4th%20ARF%20ISM%20on%20MS,%20San%20 Francisco,%2014-15June2012/Annex%2022%20-%20Presentation%20by%20Japan.pdf.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access 196 Nguyen and Mai that no problems befall Vietnamese ships working in international waters, especially in the dangerous waters.94

4.3 Opportunities and Challenges for Cooperation of Vietnam Maritime Law Enforcement The common ground for promoting cooperation of Vietnam maritime law enforcement in both bilateral and multilateral frameworks is the awareness to address transnational threats to maritime domains. The South China Sea, with its natural characteristic as a semi-enclosed sea and its role as a choke point for international navigation, also generates an imperative for the maritime law enforcement forces of littoral States to cooperate to protect the marine environment and safety of navigation. In the last decade, the resurgence of piracy, armed robbery and kidnap for ransom as well as the emergence of illegal immigration, maritime terrorism and iuu fishing have made cooperation between maritime law enforcement forces the only option for maintaining good order and security in the South China Sea. The focus on maritime security in the policies of many countries including China, Japan, the US, India, Australia, Indonesia and others creates favorable conditions to promote cooperation between maritime law enforcement agencies in general and to seek assistance on capacity building for Vietnam maritime law enforcement agencies in particular. However, in the context of intense disputes in the South China Sea, maritime law enforcement forces have been utilised as political tools for asserting sovereignty and maritime claims. Maritime law enforcement forces of certain countries usually exercise excessive jurisdiction in other countries’ maritime zones. This resulted in a large number of encounters between law enforcement forces in the South China Sea. In order to overcome this difficulty, some solutions may be considered. First, as in most cases of disputes, parties in the South China Sea may agree to cooperation among law enforcement forces in the region subject to a “non- prejudicial” provision on their sovereignty and maritime claims. However, given the degree of political mistrust in the region, it may require more than mere good faith for even the formal discussion of this idea to be commenced. Further, it is also worth noting that previous cooperation mechanism among major claimant States like China, Vietnam and the Philippines has gone to a rather dead end. The 2005 Joint Marine Seismic Undertaking (jmsu) among the national oil companies of Vietnam, China and the Philippines started

94 VN ships to get piracy warnings, viet nam news, May 4, 2016, available at http:// vietnamnews.vn/society/296293/vn-ships-to-get-piracy-warnings.html.

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access Vietnam Maritime Law Enforcement 197 out as a so-called breakthrough in the South China Sea dispute.95 Yet, further down the road, the jmsu was never implemented due to allegations that the then Philippine government had made concessions to Beijing prejudicing its own claims in the South China Sea in exchange for Chinese oda.96 The lesson learnt from this experience is that cooperation in the South China Sea, especially in the sensitive terms of law enforcement in general, can be deemed a move to realize one country’s territorial and maritime claims, regardless of the nature of such cooperation and a “non-prejudicial” clause. The second, more viable solution could be to explore cooperation among law enforcement forces in less sensitive fields like search and rescue, humanitarian assistance and disaster relief, or protection of environment, which are “zone-less” fields to which all claimants have stakes, and legal rights and obligations to. Developing a set of operational procedures for regional forces in terms of engagement, exchange of information and coordination in this regards, therefore, will be helpful to reduce incidents and promote cooperation between maritime law enforcement forces in the region.

5 Conclusion

In summary, the maritime law enforcement body of Vietnam is not unified and comprises two major forces – the vcg and the frsf – and four other functional organs – the Border Guard, the Environment Police, the Customs and the vmas. The geographical and substantive scopes of jurisdiction of these forces are diverse, extending to all maritime zones of Vietnam and span- ning over all maritime affairs, albeit the operations of the frsf, Environment Police, Customs and the vmas are quite narrowly limited within specific issues of fishery, environment, customs and port managements. Such diverse and non-unified operations may pose some problems to the performance of duties as resources may not be equally and efficiently distrib- uted among these bodies, and overlapping functions may lead to confusion in some cases. Nonetheless, the practice of law enforcement forces of Vietnam still indicates effectiveness in cooperation and coordination between these forces and shows no sign of jurisdictional conflict. This has partially been the result of clear guidance on the scope of operation of each body in Vietnam’s

95 Ian Storey, Conflict in the South China Sea: China’s Relations with Vietnam and the Philip- pines, japan focus, April 30, 2008, available at https://apjjf.org/-Ian-Storey/2734/article .pdf. 96 Ibid.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access 198 Nguyen and Mai relevant legislation and rule and on the coordination between the forces. Meanwhile, a more united law enforcement force is still called for to replace the current law enforcement structure. Due to intense disputes in the South China Sea, maritime law enforcement forces in the region have been used as political tools to assert sovereignty and maritime claims, resulting in unfriendly encounters which can deteriorate trust and confidence in the region, hindering attempts to address transnational issues. Proposals to address this problem can be difficult to be implemented, due to lack of confidence and trust among concerned parties. Nonetheless, the maritime law enforcement forces of Vietnam are still actively and proactively engaging in international and regional cooperation. In suppressing transnational crimes and illegal activities at sea, the Vietnam forces have cooperated and coordinated closely with their regional counterparts and relevant organizations such as ReCAAP to deal with problems of piracy, smuggling of narcotics and oil in the region. In protecting security and safety of navigation, Vietnam law enforcement bodies have conducted bilateral and multilateral practices on accidents and collisions, search and rescue, and environmental practices in cases of oil spills within its maritime zones with regional and international partners. Vietnam has also contributed actively in assisting neighboring navies and law enforcement bodies in search and rescue operations, thereby engaging in a network of effective regional practice which is of great importance in the context of the South China Sea.

korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/27/2021 172–198 08:16:52PM via free access