Fragmented pragmatism: the conclusion and adoption of international treaties in Vietnam

Abstract

Although The Socialist Republic of Vietnam (hereafter 'Vietnam') has rules regarding the conclusion and adoption 1 of international treaties, they do not make clear whether international obligations entered into by Vietnam are self-executing or require the passage of national legislation to become effective domestically. The resolution to this issue is important because the mode of adoption of international treaties determines which law to apply where there is a conflict between an international treaty obligation and a domestic law. The issue also indirectly relates to how Vietnam complies with its treaty obligations. This chapter will examine the rules with regard to the conclusion and adoption of treaties by Vietnam, questioning whether the Ordinance on the Conclusion and Implementation of International Agreements 1998 reflects an incorporation or transformation approach with respect to treaty adoption. Further evidence, specifically an analysis of the measures undertaken by Vietnam in fulfilment of its treaty obligations, the perceived application and effect of international treaties in Vietnam's socialist law regime and the treatment of treaties in domestic laws, will be relied on to conclude how treaties are adopted in Vietnam. Under Article 102 of the Constitution of the Socialist Republic of Vietnam (hereafter 'Constitution'), the president is elected and capable of being removed by the National Assembly. The president is the head of state responsible for acting on behalf of Vietnam in domestic and foreign affairs, 2 and has the duty and power under Article 103(10) of the Constitution 288 This content downloaded from 129.215.17.190 on Sat, 20 Jan 2018 15:12:03 UTC All use subject to http://about.jstor.org/terms 289 The conclusion and adoption of international treaties in Vietnam to negotiate and sign international agreements on behalf of the Socialist Republic of Vietnam with the heads of other states; to approve or join international agreements, except in cases where a decision by the National Assembly is necessary. The National Assembly has the obligation and power, under Article 84(13) of the Constitution to decide fundamental policies in external relations; to ratify or annul international agreements that have been signed or participated in on the proposal of the country's President. It is the role of the Standing Committee of the National Assembly 'to carry out the National Assembly's external relations'. 3 The government—the executive arm of the National Assembly—has the duty and power under Article 112(8) of the Constitution, to conclude international treaties made in the name of the government, to undertake unified management of the external affairs of the state, and to direct the implementation of international treaties to which Vietnam has signed or acceded.