Bases for assigning a sea area in Vietnam under Decree 11/2021/ND-CP

Bases for assigning a sea area in Vietnam under Decree 11/2021/ND-CP (Internet image)

Regarding this issue, LawNet would like to answer as follows:

1. Bases for assigning a sea area in Vietnam under Decree 11/2021/ND-CP

Bases for assigning a sea area according to Article 5 of Decree 11/2021/ND-CP are as follows:

- The organization or individual’s demand for use of the sea area for exploitation and use of marine resources.

- Written permission for exploitation and use of marine resources granted by a competent authority to the organization or individual as prescribed by law.

- The national marine spatial planning; comprehensive planning for sustainable exploitation and use of coastal resources.

If the national marine spatial planning; the comprehensive planning for sustainable exploitation and use of coastal resources is not available or has been approved but fails to show the sea area to be assigned, the assignment of the sea area shall be based on one of the plannings approved by the competent authority in the following order of priority:

+ National sector planning;

+ Regional planning;

+ Provincial planning;

+ Special administrative - economic unit planning;

+ Technical and specialized planning.

If the abovementioned plannings are not available, the determination of location, boundary and size in service of sea area assignment shall comply with Clause 4 of Article 5 of Decree 11/2021/ND-CP.

- The determination of location, boundary and size in service of sea area assignment in the case where the plannings in Clause 3 of Article 5 of Decree 11/2021/ND-CP are not available shall comply with the following requirements:

+ The sea area to be used for exploitation and use of marine resources shall ensure that the exploitation and use of marine resources do not affect national defense and security-related activities, sovereignty, sovereign rights, jurisdiction and national maritime interests; does not the fulfillment of the obligations specified in relevant international treaties to which the Socialist Republic of Vietnam is a signatory;

+ The sea area to be used shall ensure that the exploitation and use of marine resources do not adversely affect the environment, marine ecosystems, aquatic resources, human health and potential for national economic development as prescribed by law;

+ The sea area to be used shall ensure that the exploitation and use of marine resources do not affect safety upon using seaports, navigational channels, petroleum installations, electrical and optical marine cables, co-management of aquatic resources by community organizations and legal exploitation and use of natural resources by organizations and individuals as prescribed by law.

+ The Ministry of Natural Resources and Environment shall determine the location, boundary and size of the sea area which is assigned by the Prime Minister and the Ministry of Natural Resources and Environment after collecting comments of the Ministry of National Defense, the Ministry of Public Security, the Ministry of Foreign Affairs, other ministries and People's Committees of provinces concerned about the regulations set out in Points a, b and c of Clause 4 of Article 5 of Decree 11/2021/ND-CP;

+ The People’s Committee of the coastal province shall determine the location, boundary and size of the sea area which is assigned by the province after collecting comments of the Ministry of Natural Resources and Environment, the Ministry of National Defense, the Ministry of Public Security, the Ministry of Foreign Affairs, provincial army and police authorities and organizations concerned about the regulations set out in Points a, b and c of Clause 4 of Article 5 of Decree 11/2021/ND-CP;

+ The People’s Committee of the coastal district shall determine the location, boundary and size of the sea area which is assigned by the district after collecting comments of the Department of Natural Resources and Environment, the Department of Agriculture and Rural Development, provincial army and police authorities and organizations concerned about the regulations set out in Points a, b and c of Clause 4 of Article 5 of Decree 11/2021/ND-CP.

2. Duration of assignment and recognition of sea areas in Vietnam

Duration of assignment and recognition of sea areas according to Article 6 of Decree 11/2021/ND-CP is as follows:

- Time limit for using a sea area:

+ Except for the case in Point b of Clause 1 Article 6 of Decree 11/2021/ND-CP, the duration of assignment of a sea area (hereinafter referred to as "the assignment duration" shall be considered and decided for each specific case on the basis of the application for sea area assignment, investment project and time limit specified in the written permission for exploitation and use of marine resources granted by the competent authority but must not exceed 30 years;

+ Regarding the investment project whose investment guidelines have been approved or decided by a competent authority and which has been issued with the investment registration certificate or investment certificate with an investment duration of over 30 years, the assignment duration may be over 30 years but must not exceed the investment duration specified in the written approval for investment guidelines, decision on investment guidelines, investment registration certificate or investment certificate (except for marine aquaculture projects”);

+ The assignment duration may be extended for multiple times but the total extended period must not exceed 20 years.

- In the cases where the assignment duration specified in Clause 1 of Article 6 of Decree 11/2021/ND-CP expires and the organization or individual wishes to continue using the sea area, such organization or individual may be assigned the sea area as prescribed in Decree 11/2021/ND-CP if the following conditions are met:

+ The written permission for exploitation and use of marine resources remains effective;

+ The use of the sea area still conforms to the planning as prescribed in Clause 3 Article 5 of Decree 11/2021/ND-CP.

+ The effective period of the sea area recognition equals to the remaining effective period of the decision on land allocation or agreement on lease of coastal land with water surface or seawater surface previously issued by the competent authority.

- The duration of assignment of a sea area for land reclamation shall be considered on the basis of the land reclamation plan of the approved investment project.

The organization or individual assigned the sea area for land reclamation in service of project execution is entitled to use the area of land formed after the land reclamation in accordance with regulations of law on land.

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