Vienna convention 1969 on the law of treaties and vietnamese laws on treaty conclusion and application

NGUYEN THÏ TUYET VAN HANOI LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW VIENNA CONVENTION 1969 ON THE LAW OF TREATIES AND VIETNAMESE LAWS ON TREATY CONCLUSION AND APPLICATION SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW CODE: 60 38 60 MASTER OF LAW THESIS STUDENT: VU THITHANH LAN t h i rviÊN Z:tT^Èr°! l SUPERVISORS: DR LE MAI ANH - PROF KJELL.A.MODEER HANOI - 2004 Contents SUM M ARY PREFAC E A B B R E V IA T IO N S IN T R O D U C TIO N BA SIC LEGAL IS S U E S ON T R E A T Y A C C O R D IN G TO V IE N N A C O N V E N T IO N 1969 2.1 TERM "T R E A T Y " A C C O R D IN G T O V IE N N A C O N V E N TIO N 1969 2.2 BASIC C H A R A C T E R IS T IC S OF T R E A T Y 11 2.3 C O N C L U S IO N OF T R E A T Y 15 2.4 R E S E R V A TIO N OF T R E A T Y 18 2.5 THE EN TR Y INTO FO R C E 19 2.6 A P P LIC A T IO N O F T R E A T Y 23 2.7 THE R ELA TIO N BETW E EN T R E A T Y AND S O M E O TH E R S O U R C ES OF LA W 25 V IE T N A M E S E L A W S ON C O N C L U S IO N AND A P P LIC A TIO N OF T R EA TIES 31 3.1 O V E R V IE W 31 3.2 B ASIC R E G U L A T IO N S ON T R E A T Y C O N C L U S IO N 33 3.3 BA SIC R E G U L A T IO N S ON T R E A T Y A P P LIC A T IO N 40 3.4 R E G U L A T IO N S ON R E L A T IO N S H IP BETW E EN TR EA TY AND D O M ESTIC LAW 41 TH E IM P R O V IN G V IE TN A M E S E LAW S ON C O N C LU SIO N AND A P P LIC A T IO N OF T R E A T IE S 44 4.1 SITUATIO N 44 O R IE N T A T IO N S AND S O L U S IO N S TO IM PRO VING C O N C L U S IO N AND APP LIC A TIO N O F TR E A T IE S C O N C L U S IO N B IB L IO G R A P H Y V IE TN A M E S E LAW S ON 51 57 58 Summary The thesis is “Vienna Convention 1969 on the law o f treaties and V ietnam ese laws on treaty conclusion and application” The thesis aims improving Vietnamese laws on treaty conclusion and application To reach this aim, this thesis seeks to analyze some légal basic issues on treaty according to Vienna Convention 1969 The thesis is directed toward Vietnamese current laws on conclusion and application o f treaty by means o f international treaty The thesis points out strong points and weak point o f this légal system The thesis gives some opinions for improving Vietnam ese légal framework on treaty conclusion and application in order to correspond with Vienna Convention 1969 The first chapter provides an overview about the thesis In this chapter, the author point out necessary task o f reseaching, purpose, limitation, method and material, and position o f thesis In the second chapter, the author points out basic issues on treaty according to Vienna Convention 1969 in order to clarify such as concept, classification, characteristics, réservation, entry into force, conclusion and application o f treaties Additionally, the author seeks to present the relation between treaties and other sources o f law as custom and domestic law and points out solving relation between treaty and domestic law o f some countries in the world In the third chapter, provisions o f Vietnamese légal system on treaty conclusion and application are analysed In the fouth chapter, strong and weak points o f Vietnamese laws on conclusion and application o f treaties and as well as the author’s opinions to improve Vietnamese laws on conclusion and application o f treaties in order to correspond with Vienna Convention 1969 are clearly presented In the end chapter, conclusion will be placed in their context in order to synthesize the whole thesis subject Préfacé In preparing my work, I feel greatly indebted to my supervisor Prof Kjell.A.Modeer I would wish to register my spécial immeasurable thanks and appréciation to him He is so kindly and always sent me his warmly encouragement, guided me with valuable instructions and comments My thanks are due to my Vietnamese supervisor Doctor Le Mai Anh -who always extended her coopération and kind guidance, w henever I need I want to send a lot o f appréciation to ail my teachers who imparted me valuable knowledge and broadened my vision I would like to thanks the Staff at library o f Faculty o f Law o f Lund University who help me enthusiastically look for the material resources for my thesis I also wish thank the SIDA project and ail the supportive Staff o f faculty o f law for providing me with a chance to study in Lund University, a so nice place full o f classical culture and academic atmosphère Although the tim e I stay in Lund University is not long but it is an unforgettable period time for me with beautiful souvenirs Lastly, I would like to thank my family Thanks to m y friends and colleagues encouragements I have come over ail difficulties to finish my thesis Abbreviations AFTA: APEC: ASEAN: ASEM: BYIL CEDAW: Constitution 1992 EC: EU: ICL: ICJ: ILO: Treaty: Vienna Convention 1969 1969 Vienna Convention 1986: UN: YBILC: WTO: Asian free Trade Area ASEAN-Pacific Economie Coopération Association o f South - East Asian nation Asia - Europe Meeting Bristish Yearbook o f International Law Convention on the Elimination o f Ail Forms o f Discrimination Against Women Constitution o f the Socialist Republic o f Vietnam 1992 amended from 2001 European Community European Union International Law Commission International Court o f Justice International Law Commission International treaty Vienna Convention on the law o f treaties Vienna Convention on the Law o f treaties between States and International Organisations or between International Oraganisations 1986 United Nation Yearbook o f International Law Commission W orld Trade Organization Introduction In recent years, globalization is taking place speedily and strongly M any countries in the world have taken part in the trend o f intem ation and régional corporation Treaties, one o f basic sources o f international law are used as an essential instrument to regulate international relationship Treaties and the issue o f treaty conclusion and implementation, therefore, take an especially important position, and become on o f the basic sign o f national sovereignty International treaty conclusion and application is important and become légal framework for expanding and promoting international friendship and co-operation Nowadays, treaties may concluded ranging from the traditional issue o f peace and security to trade, economic régulation, taxation, the environment, human right and so on Treaties are essential part o f law system in général As seen from the law o f laws, Vienna Convention on the law o f treaties between states from 1969 (Vienna Convention 1969) set out the law and procédure for the making, opération and termination o f a treaty It points out général principles, rights and obligations o f State parties in treaty conclusion and application V ienna Conventionl969 on the law o f treaty channels the expression by the state o f consent to be bound and defines the commitments they enter into It is basic régulation, contains substantial provisions applicable to other conventions Therefore, Vienna Convention 1969 on the law o f treaties is the authoritative treaty on the international law o f treaties, and is the part o f international law M ost states have ratified this treaty, their conclusion and application, especially, express their consent to be bound vary considerably, depending on constitutional, légal and political condition which reflect the history, the légal culture o f each country Nowadays, in Vietnam, the légal provisions conceming international treaty conclusion and application can be found in many différent légal documents, including Act, Ordinance, and D ecree A main document in this area is Ordinance on conclusion and application o f treaty enacted by National Assembly Standing Committee from 1998 However, in implementing process, this law revealed quite many shortcomings, which need to be corrected Vietnam has an Amendment o f 1992 Constitution from 2001, and especially, Vietnam expressed consent to be bound by V ienna Convention 1969 on the law o f treaty by accession from 2001 Therefore, provisions on treaty conclusion and application must be considered and changed to suit with the Constitution 1992 (amendment) and Vienna Convention 1969 on the law o f treaties which Vietnam is a state party This thinking, at the same time, means that national provision on conclusion and application shall be amended in order to agree with international provisions, mainly with Vienna Convention on the law o f treaties from 1969 By this law changing, we can actively contribute to the national ail field renovation and raise the position o f Vietnam in international community From the awareness about international treaty is important rôle mentioned above, it could be said that, the issue o f researching and improving Vietnam ese laws on conclusion and application becomes an essential question in the process implementing international agreement o f Vietnam Actually, in Vietnam, there is still no project studying the conclusion and application o f treaty, but just some short articles or small ideas in the large project relating to relationship between international law and domestic law With the scientific and practical background mentioned above, I chose the subject namely: “ Vienna Convention 1969 on the law o f treaties and Vietnamese laws on treaty conclusion and application I hope that my thesis shall have some contributions into im proving Vietnamese laws on conclusion and application o f treaties in the globalization circumstance for present and for coming time as well 1.1 Purpose The thesis aims improving Vietnamese laws on treaty conclusion and application To reach this aim, the thesis focuses on clarification o f the basic légal issues conceming treaty according to Vienna C onventionl969 on the Law o f treaty And, activities, the current Vietnamese légal provisions on treaty conclusion and application shall be analysed Through the results o f research, the thesis shall mention achievement and weaknesses o f Vietnamese laws on treaty conclusion and application The author would also like to give some assessments relating to treaty implementation o f Vietnam Therefore, the thesis shall make proposai to improve Vietnamese laws on conclusion and application o f treaties To gain these aims, the objective o f this study focuses on resolving some questions, consisting of: W hat is a treaty under Vienna Convention 1969? What are légal basic issues on treaty under Vienna Convention 1969? (Such as characterictics, conclusion, réservation, implementation o f treaty, relation between treaty and custom, treaty and domestic law ) W hich basic régulations o f current Vietnamese laws refer to conclusion and application o f treaty? W hat are strong points and weak points o f Vietnamese current laws on conclusion and application o f treaty? (basing on synthesis and analysis o f Vietnamese current laws on this field) W hich solutions will be applied for improving Vietnamese laws on conclusion and application o f treaties? 1.2 Limitation Law of treaty is a very large field This thesis seeks to analyze some légal basic issues on treaty according to Vienna Convention 1969 Therefore, provisions o f treaty such as characteristics o f treaty, the treaty conclusion process, consent to be bound, entry into force and implemetation o f treaty will be clarified Besides, the issues o f relation between treaties and other sources o f law such as custom international law, domestis law will be discussed The thesis is directed toward Vietnamese current laws on conclusion and application o f treaties by means o f international treaty The thesis points out strong points and weak point o f this légal system The thesis gives some opinions for improving Vietnamese légal framework on treaty conclusion and application in order to correspond with Vienna Convention 1969 On this point, narrowly, the thesis also studies treaty im plem entation o f Sweden, French, and Rusia as representing the civil law culture and England, Am erica as representing the common law culture Issues, which are conceming Vienna Convention between states and international organization or between international organizations from 1986 and evalution o f Vienna Convention 1969, will be left out 1.3 Method and material 1.3.1 Method In chapter 2, under Vienna Convention 1969, this thesis seeks to analyse some basic issues on treaty The object o f analysis is légal characteristics o f treaty Therefore, the working method chosen analyses where the aim is to elaborate on the current understanding o f the concept o f treaty in the context o f Vienna Convention 1969 and elaborate characteristics and rôle o f treaty generally In this chapter 3, descriptive and analysis methods are made use to clarified Vietnamese laws on conclusion and application o f treaties in order to have an overview for the research In the chapter 4, this thesis points out achivements and shortcomings o f this légal system This chapter aims to make proposai based on analysis and synthetic methods in order to improve Vietnamese Laws on treaty conclusion and application Finally, conclusion o f this thesis will in brief be presented through synthetic method in the final chapter 1.3.2 Material The resources will be used consist of: United Nation Charter Vienna Convention 1969 on the law o f treaty Constitution o f Socialist Republic o f Vietnam o f 1992 - Ordinance on conclusion and application o f treaty, which is enacted by National Assembly Standing Committee from 1998 M ainly some authoritative books on the subject cover the chosen material for the treaty and treaty conclusion and application: Anthony Aust, M odem treaty law and practice, Cambridge, 2000 Council o f Europe and Bristish Institute o f International and Comparative Law, Treaty making-expression o f consent by states to be bound by a treaty, Kluwer Law International edn, 2001 P Reuter, Introduction to the law o f treaties, 2nd, English edn, 1995 Tran Van Thang- Le Mai Anh, International Law, l st, The Education Press, 2001 M alcolm N.Shaw, International Law, 4th, Cam bridge University Press, 2004 Beside, some articles and other material from Internet web are made use 1.4 Disposition The second chapter provides an overview about treaty Ln this chapter, the author points out basic issues on treaty according to Vienna Convention 1969 in order to clarify such as concept, classification, characteristics, réservation, entry into force, conclusion and application o f treaty Additionally, the author seeks to present the relation between treaties and other sources o f law as custom and domestic law The thesis also points out experience o f some countries in the world in solving relation betw een treaty and domestic law Consequently, the rôle o f treaties is elaborated In the third chapter, provisions o f Vietnamese légal system on treaty conclusion and application are analysed Therefore, generally, author seeks to synthesize basis current régulations o f Vietnamese laws on this fïeld The fourth chapter goes on with the results o f chapter and chapter In this chapter, strong and weak points o f Vietnamese laws on conclusion and application o f treaties and as well as the author’s opinions to improve Vietnamese laws on conclusion and application o f treaties in order to correspond with Vienna Conventionl969 are clearly presented This is also implementing obligations that Vietnam consents to be bound by this Convention In the end chapter, conclusion will be placed in their context in order to synthesize the whole thesis subject stated Lists o f Investment, and granted national treatment for régional and international investors11\ In parallel with investment field, législative and judicial coopération, one of the major interests in Vietnam ’s extemal affairs and intégration activities, receive much attention.The People’s Office o f Supervision and Control already signed a number of treaties with its counterparts o f Indonesia, Lao, Korea, Cuba, China, etc, under various forms such as “bilatéral coopération agreements”, or “coopération agreement minutes” Good results in negotiations along with a rapid increase in the quantity o f treaties has shown an improvement in quality o f treaties signed in Vietnam These achievements can also be attributed to the careful préparation o f the draft and the active participation o f relevant offices This indicates that législative, juridical, and executive offices have had a better awareness intreaty signing and implementing The relevant authorities have actively and creatively cooperated to fulfill the tasks In addition, the public also have better understanding in the effects o f treaties especially after Vietnam successfully signed and enforced Vietnam-US Trade agreement This improving situation should be attributed to the propaganda o f treaties nationwide Attention is paid to treaties not only in signing and implementing them but also in state management Vietnam National Assembly monitored ail aspects o f state opération, including the signing and implementing treaties The National Assembly considers treaty implementation through the reports from Président, Government, and the answerings to public’s questions of Président, Prime Minister, ministers, and other senior officers The Standing Commitee o f the National Assembly receive reports from relevant offices in the application o f treaties The minitoring o f treaties is also focused Systemizing treaties leads to an overall view on the implementing, and accordingly promoting treaty effective implementation It is said that thanks to “doi moi” in Vietnam, attentions have been paid to conclusion and application o f treaties in ail perspectives The process o f signing treaties has gradually been completed, the coopération among relevant offices has brought about fruitful results, and the propaganda of treaties has been greatly strengthened Ail these prosperous results considerably contribute to treaty enforcement, create a légal framework for building and perfecting the légal system, enforcing laws in Vietnam, and improving V ietnam ’s position in the world arena 111 Tran Hao Hung, pp 46 4.1.2 Shortcomings and weaknesses in Vietnamese laws on conclusion and application of treaties Since 1986, treaties with both quality and quantity play an important rôle in the expansion o f international coopération and economic developm ent in Vietnam However, Vietnam ’s treaty conclusion and application has still revealed a number of shortcomings and weaknesses especially in légal régulations Unclear and insynchronuous légal régulations are one o f the barri ers for the effectiveness o f treaty application * The first shortcoming is the delay in issuing documents granting treaty conclusion and application As stated, conclusion and application o f treaties is one o f the very important extem al affairs o f Vietnam It has been attracted great attention since V ietnam ’s independence which was marked with many historié treaties such as G eneva’s Treaty (1954), Paris Treaty (1972) However, it was not until 1989 that the first légal document on treaties was created (Ordinance 1989) But the process o f amending and supplementing légal régulations was lack o f synchonym Though Article 103 (10) o f Constitution 1992 stated clearly that President’s responsibility and authority in negotiating and signing treaties However, it was six years later (June 1998) that the Ordinance 1998 on this was issued to specify the President’s pow er112 This delay led to the fact that many treaties on behalf o f state signed betw een 1992 and 1998 such as Convention on anti-chemical weapons, ASEAN A greem ent on Establishing Center for Energy, etc, are still concluded under the guidelines given in Ordinance 1989 The insynchronym in légal system o f Vietnam has not been com pletely dealt with up to now One o f the examples is that though the Amended Constitution 1992 clarified légal régulations for treaties, the Ordinance 1998 did not have any changes to match with the Constitution * The second shortcoming is the définition and classification o f treaties according to légal régulations In practice, some treaties which concluded on behalf on the Ministry, Depaterment and on behalf on the People’ Office o f Supervision and Control has not arised rights and obligations for State and Government Besides, the current régulations not constitute clearly which treaties are not signed, but, ratified by Président However, the laws on this strictly named the fields on which treaties can be concluded on b eh alf o f the State while in reality treaties on such fields can still be signed on b ehalf o f the Government This shortcoming need immediate solutions, for it easily leads to the overlapping in treaty conclusion * The third, along with the lack o f synchronisation in treaties régulations, how to rank différent treaties in Vietnam légal system is still a problem 112 Hoang Phuoc Hiep, pp.3 47 requiring through solutions Vietnamese laws also have no spécifié norms regulating whether the treaty transform into the national law This is one o f the causes leading to the difficulties in the application o f treaties theoretically and practically Legislatively that the légal status o f treaties has not been specified results in the impossibility o f using treaties as légal docum ents which people can use to protect their own rights in the fields that dom estic laws have not had enough régulations * The fourth régulations o f giving power o f représentative in negotiating and signing treaties are sometimes not specified, so the proposais becom e too général, unable to address which agencies are directly offered the power Also in this matter, there has not been a clear instruction defining the limit o f attorney power to what agencies among the state offices w hich can sign treaties on behalf o f the State The signing o f treaties made by the People Office’s Supervision and Control also arise certain problem s114 For instance, some agreements signed with foreign offices are mainly concemed with extemal affairs but none deal with such litigation actitivies as prosecution asssistance, encouragements in éducation coopérations via mutual exchange and study, etc In principle, these agreements need to follow the légal process requiring the The P eople’s Office o f Supervision and Control have reports to The Standing Commitee o f the National Assembly and complété a sériés o f procédures before signing treaties However, this process is often broken because the signing o f treaties is often made on the occasion o f bilatéral visits Apparently, treaty is essential to reconsider the concept o f treaties in order to affirm what is actually a treaty as the agreements with the contents and forms regulated by laws * The fifth shortcoming is in treaty examination The examination o f treaties involved assessing effect oftreaty implementation in ail aspects o f life This is clearly stated in Article 5(3) o f Ordinance 1998 and Article o f Decree 161/ND-CP The examination o f legality and constitutionalisation o f treaties before signing has not been strictly implemented, especially in case o f treaties signed on behalf o f ministry and Department However, the current laws have not had solutions for such situation as when M inistry o f Justice and the proposai offices for treaty conclusion have opposite view points on treaty examination The current laws have not had décisions regulating in which conditions a examination board is founded in necessary circumtances Besides, current régulations on requirememts o f treaty exam ination contradict each other, example, examining scope of Decree 161/ND-CP (Art 3,5) is narrower than Ordinance 1998 (Art 3,5) * The sixth shortcoming is the confusion and incom pliance in treaty préparation for approving, signing and enforcing especially in terms o f time and procédures Being passive in the préparation o f draft treaties and being much dépendent on the draft treaties from foreign counterparts also lead to 113 D oan N ang, p p 24 114 N g u y en L ong V an, pp 48 being passive in negotiation In some cases, because the govem ing bodies submit treaties for approval in a very short time (1-2 days) and the submitted files not have adequate information as regulated, treaty is difficult to follow ail the steps o f procédures Files submitted for ratification have been greatly simplified such as lack o f examination, lack o f argumentative opinions, lack o f Vietnam ese versions o f treaties These actually violate the procédure régulations stated at Ordinance 1998 (Art 13), example, take ASEAN Fram ework Agreem ent on Investment Sectors and Transit Goods as a case in point Besides, the approval o f treaty process in some cases is delayed There are still treaties getting ratified years after being signed Now, 66 bilatéral treaties has not entry into force due to has not completed légal procédure by ail Vietnam and other parties115 The déposition o f the first copy o f already signed treaties to Foreign M inistry has not been properly done The registration for treaties in Déposition o f The United Nations has been neglected Vietnam has never had any procédures to refuse other nations’ réservation o f an treaty in which Vietnam is one member although this issue is regulated clearly by Vienna Convetion 1969 On the other hand, Vietnamese laws on conclusion and application o f treaties have had régulations on this issue * The seventh shortcoming is the implementation o f treaties: V ietnam ’s laws have just général régulations interpreting treaties’content116 Such régulations are provided in Art 29 (2, 3, 4) o f Ordinance 1998, but they are still rather ambiguous Currently, the interprétation of present treaties is confined to giving différent understanding for treaties’ content and the proposais o f offices for signing treaties Follow current régulations, the agencies in charge o f interpreting treaties are the Standing Committee o f the National Assembly, Govem ment, Supreme People’s Court, the Standing Committee o f the National Assembly, relevant Ministries and Departments These agencies are responsible for the interprétation o f treaties they proposed for approval or those that they directly signed This is a very unreasonable régulation because it indicates that the agencies that propose to have interprétation tum out to be those that interpret treaties Such régulations certainly cannot guarantee the logics and justice in enforcing laws o f state agencies Moreover, régulations on records, interprétation documents, legality o f interprétation documents for both extemal and internai affairs, the time o f interprétation are not regulated by Vietnam’s laws on conclusion and application - The current légal documents state that ail the treaties after coming into effect must be publically declared but this is not com pulsory117 W hat’s 115 Supra N I 07, p p 116 Supra N 108, p p 117 Supra N 107, p p 49 more, there have been so far no régulations o f déclaration for treaties before being enforced And there have also been no régulations for treaties’ juridisction, déclaration procédures, as well as the language used in treaties when being declared or press This shortcoming needs immediate solutions because it is a must to déclaré treaties before they are enforced when Vietnam - US Trade Agreement is signed and Vietnam becom es an official member o f WTO This should be done also in order to help improve the understanding as well as the responsibility o f différent officies, organisations, individuals about treaties, and thereby create a favorable condition for the enforcement o f treaties in the coming time - There are also shortcomings in the state management in conclusion and application o f treaties Constitution, Law on Establishing National Assembly, Laws on National Assembly’s Observation presently not have any specific and adequate régulations on the m onitoring o f National Assembly in conclusion and application o f treaties The Ordinance 1998 provides the régulations on National Assem bly’s juridisction, the observation o f National Assembly, National Assem bly’s Comm ittees but these régulations have not been specified, and have not included the observation mechanism o f the authoritative bodies State’s managing and calculating treaties has not been thoroughly conducted, so there is not an exact number o f treaties signed on behalf o f ministry and departerment In appropriate coopérations between relevant officies lead to ineffective enforcement o f treaties especially in the implementation o f législative assistance agreement, bilatéral consul agreement with régulations on civil and légal protection for overseas Vietnamese From the awareness about Vietnamese laws on treaty conclusion and application mentioned above, it could be said that, the régulations on this issue are a great achievement o f Vietnam’s légal system However, the shortcomings and weaknesses in current légal régulations barrier the conclusion and application of treaties The conclusion and application of treaties in Vietnam still reveal a number o f weaknesses with both subjective and objective causes Among them, the most noticeable are the unsynchronic, inadéquate, and too-general régulations inappropriate to the current légal régulations monitoring this field In addition, there still remain other causes resulting in the ineffectiveness o f treaties’ conclusion and application: lack o f understanding in international law, law o f treaty o f many officers and the majority o f citizens, lack o f responsibility in enforcing treaties, and above ail the shortage o f treaties experts Such shortcomings and weaknesses impede the conclusion and application o f treaties in Vietnam, and obstruct Vietnam’s intégration and development The requirement therefore is that Vietnam laws on conclusion and application o f treaties be improved and perfected.treaty is more important especially when Vietnam offïcially becomes a m em ber o f Vienna 50 1o Convention 1969 So as to réalisé this goal, it is necessary to leam from other countries that have had experience in conclusion and application o f treaties This task is not easy to carry buttreaty will be very useful for treaties implementation 4.2 Orientations and solutions to improving Vietnamese laws on conclusion and application of treaties From the légal status and current enforcement condition, one o f the urgent issues is how to improve Vietnam légal system in conclusion and application o f treaties in order to create synchronie légal framework suitable with the Vietnamese Constitution 1992 (amendment) and authoratative treaties w hich is concluded by Vietnam 4.2.1 Point of view Properly evaluating the importance o f treaties’s signing and enforcem ent is one o f crucial factors to establish and perfect Vietnam légal system Conclusion and application o f treaties is not only internai but also extem al affairs This activity should be done in accordance with “doi m oi” and intégration process o f Vietnam Signing treaties promûtes international relations, creates favorable conditions for the effective im plem entation o f international commitments Nevertheless, the conclusion o f treaties should not violate the national independence and people’s benefits At the same time, treaty need help to solve difficultés in international relations In the globalisation trend, Vietnam needs to act, to participate, to affirm treaties itself in the international community Hence, V ietnam ’s laws on conclusion and application o f treaties also need to have suitable régulations Vienna Convention 1969 affirms treaties légal status and effectiveness in adjusting légal régulations on conclusion and application o f treaties This resuit partially helps to perfect the laws on treaty o f participants Being one state part o f Vienna Convention 1969, Vietnam is trying to set a complété légal framework for treaty implemenation and performing treaties task as a member nation It is fondamental that the conclusion and application o f treaties in Vietnam had a comprehensive, long-term, stratégie p lan 119 Currently, constructing and perfecting laws on treaties is an important issue in the National Assembly program about perfecting Vietnam légal system Thus, within the scope o f this thesis, the researcher wish to recomm end some solutions 118 Le M A nh, P o in t o f view on estabüsh in g Law on co n clu sio n and ap p licatio n o f treaties from a légal angle, pp 24 119 V ietnam C o u n try ’s Président: R eport on D elivered 1997-2002 by at the l l lh m e etin g o f the 10th P arliam ent 51 4.2.2 Solutions 4.2.2.1 Légal framework The current légal documents for conclusion and application o f treaties in général and Ordinance 1998 in particular reveal certain shortcomings and weaknesses, failing to meed the requirement o f treaty implementation In order to improving Vietnam’s légal system in conclusion and application o f treaties, it is vital to tum Ordinance 1998 into Law on conclusion and application o f treaties The Law on conclusion and application o f treaties should be constituted on the basic o f the Amendment Constitution 1992 and on the direction o f legalising the authoritative treaty légal régulations Furthermore, attention should be paid to create the accordance between common légal régulations and those in Vienna Convention 1969 On the other hand, Law on conclusion and application o f treaties m ust correspond with Vienna Convention 1969 and need to make use o f the existing régulations o f this Convention in the current légal system This helps guarantee the effective enforcement o f Vienna Convention 1969 In addition, it is also necessary to invent Decrees directing the implementation o f this treaty in order to clear aw ay the obstacles in conclusion and application o f treaties which are caused by the shortage o f detailed guideline documents even after the laws are constituted In the process o f international intégration, one o f the tasks that Vietnam need to fulfil is participating in Vienna Convention on the law o f treaties between states and international organisations or between the international Organisations 1986 This is the international trend though Vienna Convention 1986 has not come into effect However, that is not a barrier for Vietnam because basically Vienna Convention 1986 and V ienna Convention 1969 have much in common So it is im portant to carefully consider the légal régulations when constructingtreaty laws so as to guarantee the accordance between Vietnam’s national laws and treaties including treaties that Vietnam have not signed and enforced but will be likely to Guaranteeing the logics and preciseness o f laws helps to avoid later amendments and suppléments, accordingly save tim e and expense, as well as affirm the pioneer rôle o f laws In parallel with the enactment o f Law on conclusion and application o f treaties, National Assembly and relevant offices should have long-term stratégies on this activity to facilitate extemal relations, developm ent stratégies, and to catch up with the development trend o f the world 4.2.2.2 Provisions The légal framework is only improved when its includes proper légal régulations and enacts effectively the signing and enforcem ent o f treaties 120 Supra N I 07, 108; Supra 118, pp 32 52 Thus, it is a must to better and improve légal régulations on treaty m aking power, procédures and implementation o f treaties - Scope o f Law on conclusion and application o f treaties: From scientific légal view, Law on conclusion and application o f treaties is only regulated légal relations concem treaty making process Treaties that belong to scope o f this Law have to conclude on behafl o f the State and Government The scope o f Law on conclusion and application is corresponding with régulations o f Vienna Convention 1969 and almost légal provisions o f countries in the world So, scope o f this Law is narrow er than Ordinance 1998 In the other words, international agreements on behalf o f the M inistry and Department are not treaties and they not belong to scope o f 121 this new Law - Priciples o f conclusion and application o f treaties: Conclusion and application always obey Vietnam ese Constitution; correspond with priciples o f international law, law o f treaties and Vienna Convention 1969 Therefore, conclusion and application o f treaty have to based on respect for each other’s independence in each other’s intem all affairs, equality and mutual interests Besides, conclusion and application o f treaties have to obey provisions on treaty making power and treaty hierarchy priciple Law need to affirm pacta sunt servanda principle in process o f treaty conclusion and application o f Vietnam - Relation between treaties and domestic law: The solving relation between treaty and domestic law is important to Vietnam ese légal system According to these experience o f some countries in the world and Vietnamese légal practice, Law on conclusion and application o f treaties needs to codify current provisions on this field Law need to assert treaties are an intégral part o f the légal system, and prevail 1T) over inconsistent domestic law But, these conflicts or diffenrences between treaties and internai légal norms must be harm onized through législation activity The enactment or amendment current légal text, in order to correspond with treaties, is one o f ways for implementing treaty It is an importance to establish a flexible mechanism for treaty application In this issue, Vietnam should leam experience o f nations in the world, experience o f developed nations such as France, Russia, especially, United States This is appotum ity as well as challege to many developing countries such as Vietnam in intergrating and getting used to légal framework in international coopération field, especially, international economic coopération - Définition and Classification o f treaties: It is necessary to clarify key concepts in Ordinance 1998 when treaty laws are constituted, especially such concepts as “International treaties”, “délégation”, treaty making power, 121 M inistry o f Foreign: P roposai docum ent on T he D raft L aw on C o n clu sio n and A p plication o f T reaties, p p 122 S upra N I 18, p p 30 53 “ légal assistance” o f The People’s Office o f Supervision and Control and Supreme People’s Court when signing treaties in the relation with their granted power Consequently, it is possible to defme the issues that Supreme People‘s Office o f Supervisor and Control and Supreme People’s Court are 123 allowed to negotiate and sign treaties with their foreing partners - Treaty m aking power: It is essential to clarify treaties in order to define the jurisdiction o f relevant offices in signing treaties, for example, what are treaties signed on behalf o f the State, and what on behalf o f the Government Clarifying this issue helps identify treaties for ratification, treaties for accession, and thereby avoid the situations in which offices proposai for treaty’s ratification get confused with their task Moreover, clarifying the jurisdiction for approving treaties should be placed the top importance That is, what treaties are ratified by Président, what by the National Assembly Also, it is important to specify the reasons, basics, and jurisdiction for treaties’ approval Jurisdiction for signing treaties on behalf o f the State, which regulated in Ordinance 1998 (Art 6), and Law on Establishing Government (Art 15) needs immediate amendments because it is not suitable with the Amended Constitutionl992 At the same time, régulations on jurisdiction for negotiating and signing treaties should be adjusted to match with the current Constitution M oreover, dealing w ith the situation when heads o f intergovemmental organisations ask for treaty approval and signing is very necessary because this m atter is still left untouched in Vietnam légal system Jurisdiction o f The People’s Office o f Supervision and Control and Supreme People’s Court in signing treaties needs defming by Law on conclusion and application, especially after the Constitution 1992 (amendment) narrowed the jurisdiction o f The People’s Office o f Supervision and Control in législative activities - Examination o f treaties: It is essential is that treaty exam ination and language being clarified in Law on conclusion and application o f treaties The cases o f examination, examination o f draft treaties, exam ining Board, and examining procédures must be regulated And it is also im portant to be ready to deal with situations in which examination results are différent Law should be supplemented with examination régulations when treaties are enforced though in reality the examination activities have already is constituted Vietnamese versions for multilatéral treaties and régulations on examing the translated versions or copying treaties when they are written only in foreign languages should be available whenever they are submitted for approval 123 Nguyen Long Van, pp 54 The last matter o f concem in Vietnam ’s conclusion and application o f treaties is that Vietnam should be more active in constructing draft treaties Law on conclusion and application o f treaties should have régulations defining the responsibility and jurisdiction o f each relevant office in this activity to create favourable condition for the effective negotiation and enforcement o f treaties, and to help protect the national benefits at most - Being a party of Vienna Convention 1969, Vietnam m ay transform ail provisions on entry into force o f treaty under this Convention into domestic law However, Law on conclusion and application o f treaties need to progmulate clearly some issues such as conclusion and application o f treaty have to obey provisions on treaty- making power, treaty-m aking procédure which are regulated by Vietnam Constitution and Law itself Besides, this Law needs to regulate provisions on provisional application, acceptance o f and objection to réservation, and withdrawal o f réservation and o f objections to réservation Vietnamese current laws did not regulate these issues - In parallel with improving régulations on coclusion o f treaty is the task o f perfecting régulations on treaty enforcement This requires a spécial attention in Vietnam légal system beside other issues such as treaty status, treaty legalisation and enforcement process, etc For instance, there should be more spécifié régulations on the légal status o f treaties in Vietnam ese légal system In the implementation o f treaties, there should also be more régulations on the enforcement of treaty régulations in Vietnam légal system There should also be specific régulations for treaty interprétation such as procédures, time authorised bodies, and its enforcement so as to avoid the overlapping and unreasonal implementation Spécial attention should be placed to the déclaration and propaganda o f enforced treaties This helps build up valuable statistics source on treaties for Vietnam Régulations on treaty’s language in press, as well as jurisdiction o f treaty déclaration should be immediately created Propaganda activities should also include educating and training staff, developing experts, and introducing treaties among schools and universities especially at school specialising in législative trainings with the aim o f improving public understanding in treaties and thereby raising people’s awareness in complying général international commitments - Improving state management124 régulations in treaties is also a great demand set for légal system To constructtreaty laws, it is necessary to have specific régulations on the monitoring mechanism o f the National Assembly and National Assembly’s Offices in charge on treaties Its monitoring and management o f the National Assembly and National A ssem bly’s offices should be strengthened, for example in treaty enforcement In addition, 124 Hoang Phuoc Hiep, pp.6 55 National Assembly and treaties relevant offices need to maintain regular control, examination, reports, and évaluations on treaty enforcem ent in order to present légal adjustments in time To réalisé this task, National Assembly should set up Treaty Advisory Office whose staffs are good at treaties as well as international laws, frequently open treaty training classes, and encourage the responsibility o f relevant offices conclusion and application o f treaties It is urgent that Vietnam légal system constructs a good coopérative mechanism among Ministries, Department in application o f treaties Foreign M inistry should cooperate with législation authority bodies to set plans for regular and overall examining o f treaties enforced in Vietnam to figure out the shortcomings or weaknesses left in each treaty, among treaties, and between treaties and the current légal documents From the findings, the M inistries can recommend necessary amendments, suppléments, or even deletion of unreasonable légal documents to guarantee the effective implementation o f international commitments, and duties originated from treaties that Vietnam has signed or participated This will certainly help promote V ietnam ’s intégration process Strengthening international coopération in ail aspects including treaty conclusion and application should become a focus because such coopération will greatly benefit Vietnam in the intégration trend So, it is V ietnam ’s légal system that need direct and adjust the international coopération in treaties to create a légal framework on treaty implementation 56 Conclusion Traditionally and essentially a treaty is an agreement between states binding in virture of the maxim pacta sunt servanda, which is in itself somewhat • • • • • 19 S tautologous, saying no more than that binding agreements are binding Vienna Conventionl969 on the law o f treaty between states is “one o f the prim e achievements o f the ILC” 126 The Convention contained m uch that was new and that represented development o f international law, while also a num ber o f provisions resulted from the réconciliation o f devergent view and practice As be seen the law o f laws, Vienna Convention 1969 is authoritative treaty on the international law o f treaties and contains substantial provisions applicable to other treaties A lot o f states consent to be bound by this Vienna Convention 1969, in which Vietnam is one o f parties However, treaty conclusion and application are various activities, depend on each states’ Constitution, laws, economy, policy, society, culture and légal culture Treaty conclusion and application is very important to Vietnam in globazation process Vietnamese laws gained achievements for regulate signing and enforcement treaty Treaties contributed to pump relation betw een Vietnam and other states in the world However, present Vietnamese laws on conclusion and application o f treaties revealed weaknesses or shortcomings, so, it must be amended as soon as posible Improving Vietnamese laws on treaty conclusion and application have to suit w ith provisions o f Constitution 1992 and Vienna C onventionl969 The législation activity for improving légal document system on treaty conclusion and application with solutions is vital to tum Ordinance 1998 into Law on conclusion and application o f treaties Law on conclusion and application o f treaties have to become a légal framework effectively to regulate conclusion and application o f treaties This new Law have to construct a machenism to implementing treaty, solving relation between treaty and domestic law Conclusion, improving Vietnamese laws on treaty conclusion and application is a pressing and necessary task The improving Vietnamese laws on conclusion and application certainly help prom ote V ietnam ’s intégration process M ax Sorensen, pp 177 12,1 A nthony A ust, p p 57 Bibliography A nthony Aust: M odem treaty law and practice First édition Cambrigde University Press 2000 Le M Anh: The theories foundation on transformation o f treaty No 3, Law and State Journal, The Institute o f State and Law.Hanoi 2003 Le M Anh: Fundamental légal issues under Vienna Convention 1969 and laws concem ing international treaties concluded between nations No 5, Law and State Journal, The Institute o f State and Law.Hanoi 2004 Le Mai Anh: Point o f view on establishing Law on conclusion and application o f treaties from a légal angle No 10, Law and State Journal, The Institute o f State and Law Hanoi 2004 Bristish Yearbook o f International Law 1982 Charter o f United Nation Nguyen D uy Chien: The treaty conclusion in order to international intergration and coopération No 6, State and Law, The Institute o f State and Law Hanoi 2000 Council o f EU and Bristish Institute o f International and Comparative Law: Treaty making expression o f consent by states to be bound by a treaty First édition Kluwer Law International 2001 Congression Reseach Service Library o f Congress: Treaty and other international agreement: The rôle o f the United States Senate U.S Government Printing Office W ashington 2001 10 Pham Truong Giang: The im proving Vietnamese Odinance on conclusion and application o f treaty The them e o f sicencific researching ”The relation between treaty and Vietnam ese law”, M inistry o f Justice, Hanoi 1998 11 Hanoi Law University: International Law Textbook First édition The People Police Press 2002 12 Hanoi Law University: State and Law Theories Textbook Fouth édition The People Police Press 2000 13 Hoang Phuoc Hiep: Some ideas on the treaty conclusion and application on behalf o f The Socialist Republic o f Vietnam Conférence: The im plem enting Ordinance 1998 Hoabinh 2004 14 Tran Hao Hung: The stituation o f negotiation, conclusion and application o f Investement Agreements Conférence: The im plem enting Ordinance 1998 Hoabinh 2004 15 International Law Commission: The Commentary 16 International Court o f Justice: Reports 1952 17 International Court o f Justice: Reports 1994 18 Nguyen Van Luat: The domestic law in order to international intergration and coopération No 6, State and Law Journal, Hanoi 2000 19 M alcolm N Shaw: International Law Fouth édition Cambrigde University Press 2004 20 McNair: Law o f treaty 58 First édition 1961 Oxford University Press (Reprinted 1986) 21 Mark E Villger: Custom international law and treaties M artinus N ihoff Publishers 1985 22 Max Sorensen: M anual o f Public International Law First édition St M artin’s Press NewYork 1968 23 M ichael Bogdan (editor): Swedish law in the new millenium First édition Stockholm 2000 24 M inistry o f Foreign: Report on The Results o f implementing Ordinance 1998 on treaty conclusion and application (1998-2003) International law Department Hanoi 2004 25 M inistry of Foreign: Proposai Document on The Drafït Law on Conclusion and Application o f Treaties Num ber 2018-TT/NG-LPQT Hanoi 2004 26 Doan Nang: Relation between international law and domestic law, theories and practice in Vietnam Symposium: Basic o f theories and practice on application o f international law, Hanoi U niversity 2001 27 N A Maryan Green M.A, LL.B (Cantab): International Law (Law o f peace) First édition M acdonald & Evans LTD 1973 28 O.Connell: International Law Second édition Stevens and Sons Press London 1970 29 P Reuter: Introduction to the law o f treaties Second édition English 1995 30 Statute o f Interantional Court o f Justice Second édition English 1995 31 Sinclair: Vienna Convention on the law o f treaties Second edition.Oxford University Press 1984 32 The Slovenia - United K ingdom Cultural Co-operation Agreement 1996 33 The International Labour Organisation Constitution 34 The National A ssem bly’s Office: Reseaching Report on implementing situation Ordinance 1998 The Information- library -scientific reseaching Centre The National Assem bly’s Office Hanoi 2004 35 Tran Van Thang- Le Mai Anh: International law- Theories and practice First édition The Education Press 2001 36 N guyen Thi Thuan: Issue on réservation under Laws o f treaties No 3, Law Journal, Hanoi 2002 37 Thai Vinh Thang: The relationship between domestic law and international law in globalization process No 2, Law Journal, Hanoi 2002 38 The Socialist Republic O f Vietnam: The Constitution 1992 (amendment) 39 The Socialist Republic O f Vietnam, The National A ssem bly’ Standing Committee: The Ordinance on treaty conclusion and application 1998 40 The Socialist Republic O f Vietnam, The Govemment: The Decree 161/1999/ ND-CP guided détail some provisions o f Ordinance 1998 41 Nguyen Long Van: The People O ffice’s Supervision and Control and its implementing Ordinance 1998 and Judicial Assistant Agreement Conférence: The im plementing Ordinance 1998 Hoabinh 2004 42 Vietnamese Communist Party: Instrument of the 9Ü1Communist Party Conférence 59 43 44 45 46 47 48 49 50 51 52 53 54 First édition The National Political Puslisher 2001 Vienna Convention on the Law o f treaties 1969 Vienna Convention on the Law o f treaties 1986 United States- United Kingdom Treaty on Mutual Légal Assitance in Criminal M atter 1994 Yearbook o f International Law Commi!sion Volume II 1966 Yearbook o f International Law Commision Volume II 1953 http://www.taiwandocum ents.org/glosaryl htm httpi// www.fact-index.com/t/tr/treaty.html http://en.wikipedia.org/wiki/Treaty http://www.austlii.edU/au/au/other/liac/hot_topic/hottoppic/2001/l/2.html http://hrli.alrc.net/mainlile.php/glosary/130 http://www.Aust (2000) hi.edu.au/au/other/liac/hot- topic/hottopic/2001/l/2.html hhpt://lawmin.nic.i$/ncrwc/finalreport/v2b2-3.htm ... LAW S ON 51 57 58 Summary The thesis is ? ?Vienna Convention 1969 on the law o f treaties and V ietnam ese laws on treaty conclusion and application? ?? The thesis aims improving Vietnamese laws on. .. perfecting Vietnamese laws on treaty conclusion and application in order to coresspond with amended Constitution 1992 and Vienna Convention 1969 In overview, Law on treaty conclusion and application. .. LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW VIENNA CONVENTION 1969 ON THE LAW OF TREATIES AND VIETNAMESE LAWS ON TREATY CONCLUSION AND APPLICATION SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW