Introduction¹

The review of Viet Nam’s practice in 2021 focuses on two areas, treaty law and international economic law, which have had significant developments. It discusses the new Law on International Agreement in relation to the Law on Treaties (2016) to highlight its objective of ensuring that commitments with international partners by state agencies are inconsistent with treaty obligations. The latter witnesses intensive treaty conclusion this year as scheduled in the roadmap of implementing multilateral economic treaties to which Viet Nam is a party.

Treaties

State organs at central and municipal levels have entered various agreements in their day-to-day operations with their foreign partners on collaboration and cooperation in their respective areas of competence. The Viet Nam’s Law on International Agreements, effective from 1 July 2021, superseding the 2007 Ordinance on Conclusion and Implementation of International Agreements, distinguishes these function-based agreements entered by state organs from treaties under the 2016 Law on Treaties in two new ways.

First, by definition, Article 2.1 of the Law on International Agreements defines “international agreement” as “a written agreement on international cooperation between a Vietnamese contracting party, within its functions, tasks, and powers, and a foreign contracting party, which does not give rise to, alter or terminate a right or obligation of the Socialist Republic of Vietnam under international law.” Accordingly, the most important elements to differentiate between the two types of agreements are (i) treaties involves the State while international agreements are not signed on behalf of the State and (ii) treaties are legal tools shaping State obligations while international agreements are not supposed to formally engage the State. The new Law explicitly excludes certain typical designations of treaties such as “Convention, Treaty, Covenant, Agreement” from the non-exhaustive list of titles that can be chosen for covered international agreements.

Second, since these agreements can be considered as state conduct for the purposes of attribution of responsibility, the new Law understandably introduces detailed mechanisms to ensure that the conclusion of covered agreements would not amount to a breach of other treaty obligations. Under Article 5, the Ministry of Foreign Affairs (MOFA) is tasked with the general unified management of international agreements in cooperation with other ministries or ministerial-level and the People’s Committees of provinces which have competence over specialized areas. For the purpose of safeguarding treaty compliance, the MOFA shall provide a written assessment requesting state organs on the conformity of proposed international agreements with relevant international treaties to which Vietnam is a party. The MOFA also has to determine if proposed international agreements entail state obligations for Viet Nam which should be reserved solely for treaty conclusion (Article 29.4). In addition, due to the fact that agreements concluded by state agents have been invoked in investment treaty arbitration cases against Viet Nam, Article 25.3 of the Law on International Agreements requires state organs to seek written consultation from the Ministry of Planning and Investment with regard to its proposed conclusion of an international agreement.

The new Law, therefore, can be considered an effort to institutionalize and improve mechanisms of ensuring treaty compliance as well as the systematic consistency of its legal system. This is of particular importance given Viet Nam’s robust treaty-making activities and increasing investor-state arbitrations initiated under investment treaties.

Conclusion and Application of Trade Treaties

International Economic Law

The ASEAN Trade in Services Agreement (ATISA), signed on 7 October 2020, became effective for Viet Nam on 29 October 2021. Negotiated on the basis of the existing ASEAN Framework Agreement on Services (AFAS), ATISA is a further step for Viet Nam and other ASEAN parties to intensify their service market liberalization. Resolution 131/NQ-CP of the Viet Nam’s Government approving the ATISA provides for implementation mechanism, especially with regards to the Non-Conforming Measures (NCM) and necessary changes in domestic laws to ensure compliance with the ATISA.

The UK-Viet Nam Free Trade Agreement (UKVFTA), signed on 29 December 2020, is another trade treaty which has entered into force for Viet Nam this year, on 1 May 2021. This Agreement, as explained in the UK Government report on continuing its trade relationship with Viet Nam, aims to maintain the effect of the EVFTA when the latter ceases to apply to the UK.

The entry into force of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) in 2019 and the EU-Vietnam Free Trade Agreement (EVFTA) in 2020 either triggers a direct application of their obligations or requires internalization of treaty provision into Vietnamese legal systems. Resolution No. 72/2018/QH14 on Ratification of the CPTPP and Resolution No. 102/2020/QH14 on ratification of the EVFTA list in their annexes the provisions to be applied directly in Viet Nam. Other obligations will require the promulgation or amendment of domestic laws to be effective within the domestic legal framework. Both resolutions specifically provide that changes should be made in nine Vietnamese laws in the case of the CPTPP and two in the case of the EVIFTA, which have been completed as planned.

Ratifying Intellectual Property Treaties as Part of Trade Treaty Obligations

Viet Nam has included the conclusion of intellectual property treaties and adherence to treaty-based standards of protecting copyright and related rights in its Intellectual Property Strategy by 2030 (Decision No. 1068/QĐ-TTg). Furthermore, under the CPTPP and the EVFTA, as a Party, Viet Nam undertakes to ratify or accede to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) no later than the date of entry into force of CPTPP (Article 18.7.2) and within three years from the effective date of EVFTA (Article 12.5.2). Viet Nam deposited its instrument of accession to the WCT on 17 November 2021, which will take effect with respect to Viet Nam on 17 February 2022. The WPPT is scheduled to accede in 2022 under Decision 121/QĐ-TTg. These accessions are part of Viet Nam’s consistent and determined efforts in its international integration process to provide a safe legal environment in digital space for copyright and related rights.

Ratifying ILO Conventions as Part of Trade Treaty Obligations

As CPTPP Parties are generally obligated under Article 19.3.1 to adopt and maintain in their statutes, regulations and practices the labor rights as stated in the International Labour Organization (ILO) Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998), the EVFTA explicitly requires its Parties to make “continued and sustained efforts towards ratifying, to the extent it has not yet done so, the fundamental ILO conventions” (Article 13.3.a). Under Decision 2528/QĐ-TTg, Viet Nam started to study the possibility of ratifying the three fundamental ILO Conventions to which it was not a party from 2016 to 2020, namely the Right to Organise and Collective Bargaining Convention (No. 98), the Abolition of Forced Labour Convention (n. 105), the Freedom of Association and Protection of the Right to Organise Convention (No. 87). Pursuant to Decision 121/QĐ-TTg of the Prime Minister dated 24 January 2019 approving the Plan on implementation of the CPTPP, Convention 98, Convention 105 and Convention 87 would be ratified in 2019, 2020, and 2023, respectively. Accordingly, Convention 98 and Convention 105 has entered into force for Viet Nam as of 5 July 2020 (Notice No. 39/2019/TB-LPQT) and 14 July 2021 (Notice No. 24/2021/TB-LPQT), respectively. Viet Nam’s Labour Code 2019, effective as of 1 January 2021, has been drafted to ensure consistency with the labor rights under the ILO fundamental conventions. Additionally, mechanisms supervising compliance under these conventions with their observations and direct requests will help the Parties to review and make necessary changes in their domestic legal system.

Conclusion

The new developments in Viet Nam’s international law practice reported this year is a continuity of its consistent realization of “proactive and vigorous international integration” (Resolution 22-NQ/TW, 2013). Couched not only with general policies and strategies, as mentioned above, Viet Nam used action plans and roadmaps with specific measures regarding the conclusion and implementation of treaties. Undertaking treaty obligations not only entails legal implications but can also be a political investment for credibility and reputation, which is part of a package tool for international integration. This long-term approach can be sustained for many years to come.