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

1

PREFAC E

2

A B B R E V IA T IO N S

3

1

IN T R O D U C TIO N

4

2

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

8

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

3

4

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

4 .2 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

5

8

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.

1


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.

2


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

3


1 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

4


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:
1. W hat is a treaty under Vienna Convention 1969?
2. 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 ...)
3. W hich basic régulations o f current Vietnamese laws refer to

conclusion and application o f treaty?
4. 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)
5. W hich solutions will be applied for improving Vietnamese laws on
conclusion and application o f treaties?

5


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.

6


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 2 and chapter 3. 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.

7


2 Basic légal issues on treaty
according
to
Vienna
Convention 1969
V ienna Convention 1969 on the law o f treaties concluded on 23 M ay 1969,
(com e into force on 27th January 1980) played an important rôle o f
international morden law. It is not only the resuit o f successful codify
process o f custom ary international rules but also creates a basic international
légal frame to regulate relation between states on conclusion and application
o f treaties.
Although the Vienna Convention 1969 does not occupy the whole ground o f
the law o f treaties, it covers the important areas and is starting point for any
description o f the modem law and practice o f treaties1. The fomation o f
V ienna Convention 1969 enhanced effectiveness o f treaty usage as légal
instrument to adjust international coopération relationship among states; it is
also an important légal basis to determine international légal obligation o f
one state to agreement binding which were legally established. This is one
o f essiential conditions in terms o f légal for a state to integrate into the trend
o f globalization and régional alignment. The process o f conclusion and
application o f treaty creates multisided effects to practical benefits o f each
state in international coopération.

2.1 Term “treaty” according to Vienna

Convention 1969
2.1.1 The définition of treaty
In international law science, the term treaty is used widespread to define a
resouce o f international law, formed by order and procédure terminate
rights, duties and légal responsibilities among international law ’s subjects
when they taking part in international légal relations.
The term “treaty” has regularly been used as a generic term em bracing ail
instruments binding at international law concluded between international
entities, regardless of their formai désignation.2 The fomation and
development history o f international law point out that treaty exists under a
lot o f names such as Agreement, Protocol, Charter, and Convention....
However, it is difficult to see légal scientific criteria enough to determine
which a treaty document is in order to distinguish between treaty and other
international instruments. On the other hand, many international
1 A nthony A ust, pp. 6.
2 http ://w w w .taiw andocum ents.org/glosary 1.htm

8


undertaking and foreign policy statements, such as unilatéral statements o f
intent, joint communiques and final acts o f conférences, are not intended to
be legally binding and are not considered treaties.
Therefore, Art 2(1 a) o f Vienna Convention 1969 defines treaty as follow:
“Treaty " mean an international agreement concluded between states in
written fo rm and governed by international law, whether embodied in a
single instrument or in two or more related instrument and whatever its
particular désignation
The compréhension o f this définition allows confirming that treaty is
“agreement with international factors”. Thus, international factors with légal

agreem ent need understanding under which criteria?
The constitution, law and practice o f some states divide treaties variously
into catégories such as inter-state, inter-govemmental, inter-m inisterial or
adminiestrative. Treaties can also be described as “universal” and
“régional”, but this has no légal signficance . The Convention does not
recognise such distinctions. Intemationally, once in force, treaties are
binding on the parties and become a part o f international law4. Therefore,
international factors o f légal document shoud are assessed in the relation o f
created law among states, through the process o f conclusion, application and
termination o f treaty. In the other words, the international agreement is the
combination o f factors in terms o f form, content and certain international
légal procédure, related to the formation o f treaty instrument.
In the définition o f Vienna Convention 1969, treaty is an agreem ent in
w ritten form and concluded by states. Vienna Convention 1969 limits
adjustment scope to originated treaty relation between states is due to the
formation history o f Vienna Convention 19695. Vienna Convention 1969
does not apply to such treaties, which are the subject o f Vienna Convention
1986 on the law o f treaties between states and international organizations
and international organizations, which in effect, applies to such treaties the
provisions o f the Vienna Convention 1969, suitably adapted. Thus, Vienna
Convention 1969 that confirms this limitation doesn’t affect international
légal value o f agreements concluded by international organizations or
between states and international organizations. This is one o f the
disadvantages o f Vienna Convention 1969 under aspect o f the developm ent
o f international laws in général and laws o f treaty in particular6.
Defining treaty as agreement in written form between states, Vienna
Convention 1969 tacitly points out that international légal nature o f treaty is
the resuit o f agreement on nations’ will. In international relations, agreement
1 S upra N I, pp. 15
4 C ongressional R eseach Service L ibrary o f C ongress, p p .l

5 V ienna C onvention 1969 has not regulate relation betw een states and in tern atio n al
o rganizations and international organizations. R elation betw een states and in tern atio n al
organizations are reg u lated by V ienna C onvention 1986.
0 A ccoiding to C om m en tary o f ILC, treaties w hich is concluded b y international
ogam zations has a lot o f specific characteristics, and ICL said that, ii is v ery co m p licate and
m ake slow ly for d ra ff o f V ienna C onvention 1969 if it regulate relations in tern atio n al
oganizations.

9


is the meeting, exchange, negotiation, compromise, and concession in order
to corne to an agreement on issues that subjects o f international law take
into considération. Therefore, this relation needs to have the participation o f
at least two subjects. Légal traits o f agreement express in the results o f the
successful agreement. This resuit, in aperance, is acknowledged under
international légal norm, directly adjusting rights, légal duties o f contracting
states.
This above explanation allows distinguishing treaty that is the self- binding
o f international law ’s subjects to certain international légal duty with other
international commitments. This binding is implemented through unilatéral
légal deed or agreement between international law ’s subjects. In one treaty,
duties originated from treaty are commited to implement by contracting
states on the basis o f principles pacta sunt servanda and other principles
acknowledged by Vienna Convention 1969.
Besides, in ail sides, the process o f giving State wills to treaty content is
différent to giving state will to State légal document in national law. The
agreement o f contracting states to création o f treaty has dialectical relation
w ith such régulations o f national law, due to the binding o f state benefits. In
the existence and development o f each state, the conclusion and application

o f treaty is one o f basic légal activities, belonging to the scope o f
implementing international law subject’s rights in practice. W ith the term
“treaty”, Vienna Convention 1969 set a basis for the defining o f légal value
for treaty, as well as having the meaning o f création légal framework on
treaty, playing the rôle o f independent law source belonging to m odem
international légal system.

2.1.2 Classification of treaty
For its part, Vienna Convention 1969 “takes a cautions approach, avoiding
any systematic classification o f treaties and restricting itself to a few
distinctions o f limited scope. Treaties present a great variety o f différent
aspects according to whether one considers their elaboratation,
interprétation, modification, effects, violation and so forth, ail o f which call
for a spécifié analysis”7. It is possible to relatively current treaty by giving
common criteria according to traditional ways. Among such criteria, quatity
o f subjects are regarded as one o f basic criteria. In this way, treaty is
distinguished by bilatéral treaty and multilatéral treaty.
A multilatéral treaty has several parties, and establishes rights and
obligations between each party and every other party. M ultilatéral treaties
are often, but not always, open to any state; others are régional8.
Bilatéral treaties by contrast are negotiated between a limited num ber o f
states, most commonly only two, establishing légal rights and obligations
between those two states only. It is possible however for a bilatéral treaty to
have more than two parties; consider for instance the bilatéral treaties

7 P. R euter, pp. 35
8 http:// w w w .fact-index.com /t/tr/treaty.htm l

10

between Switzerland and the EU following the Swiss rejection o f the EEA
agreem ent9.
T he substantive features o f treaties ought to have pride o f place in the
classifications o f treaties. In m any cases, it will prove difficult even to
define the object and purpose o f a treaty10. However, based on substantive
feature o f treaty it is possible to classify treaty with criteria on mutual
dependence among légal duties set in this treaty and similar ones. It can be
classified into treaty on politics, economy, society, technology, and
envirom ent.... If based on application scope o f treaty, it can be classified
into bilatéral treaty, régional and global one, or war and peace time one,
contracting or law one... can also be shown différent view o f classification1
Law in each country has différent classification. Vietnamese laws on treaty
conclusion and application are divided treaties into for 4 kind: first,
international agreement on behalf o f the Socialist Republic o f Vietnam (on
b e h alf o f the State); second, international agreement on behalf o f the
Government; thirdly, international agreement on behalf o f the Ministry,
D epartm ent and fourth, international agreement concluded by the Supreme
P eople’s Court and the People’s Office o f Supervision and Control with
their granted power.
In whole, the classification o f treaty according to domestic law mainly
creates favoured conditions for conclusion, application and managem ent o f
treaty. In the Vienna Convention 1969 ’s approach, the treaty concluded in
w hatever level still bears the name o f state, it means states is the m em ber o f
its treaty.

2.2 Basic characteristics of treaty
U nder international law an international agreement is generally considered
to be a treaty and binding on the parties if it meets some criteria:
- The parties intend the agreement to be legally binding and the agreem ent is

subject to international law.
- The agreement deals w ith signficant matters
- The agreement clearly and specifically describes the légal obligations o f
the parties
- The form indicates an intention to conclude a treaty, although the
substance o f the agreement rather than the form is the govem ing factor.
Additional, an international agreement is considered to be a treaty if it have
som e criteria under Vienna Convention 1969:

2.2.1 Form of treaty
Form of treaty shown clearly the written law source o f international law.
According to Vienna Convention 1969 ’s régulation and the treaty practice

9 h ttp://en.w ikipedia.org/w iki/T reaty
10 Supra N7, pp. 36-37
11 H anoi Law U niversity, In tern a tio n a l law Textbook, p p .77

11


o f nations, form o f one instrument is asserted to be agreement between
states in written form. In other words, the original text o f a treaty must be
typed or printed. Vienna Convention 1969 does not apply to oral
agreem ent1 . It also does not define other forms such as telegram, telex, fax,
message or even e-mail, or rather, constituted by an exchange o f such
com munications... which are the resuit o f technology developm ent. Such
w ork as not apply other forms partly avoid m isunderstanding when
exchanging communication by conversation like orall agreement, making
phonecall and partly it is because at this point o f promulgation, Vienna
C onvention 1969 can not calculate such trend o f scientific development.

However, the overwhem ing advantages o f written form and abilities in the
confirm ation o f binding rights and duties o f states in an exact, clear way
c a n ’t be denied and it can be restored them as a concrete evidence o f
consent by states to be bound by a treaty.
Treaty is an only instrum ent but can be two or more instruments related to
each other and does not depend on names o f these instruments. In this issue,
Recom m endation o f ILC o f U N clearly confirmed that there is no diffence
o f légal force o f international treaty w hether embodied in a single
instrument or in two or more related instruments.
Basically, such treaty in written form has signs as follows:
* Names o f treaty instrument:
Treaty has various names and the naming for instruments totaly depends on
will o f parties. There is no distinction force value between treaty according
o f names. In practice, a lot o f treaty has the same content and characteristics
but not can be named, example, Protocol, Exchange o f notes, Convenant,
M odus vivendi, Arrangement...
* Structure o f treaty13:
A lm ost every treaty is built into 3 parts: Introduction, Content, Conclusion.
In Introduction part, treaty is not divided into articles, clauses, chapters...
and does not contain concrete norms to determine rights, duties o f
participants. This part only defines reasons o f treaty, purpose o f treaty, or
name o f parties.
The Content o f treaty is the most important which is divided into parts,
chapters, sections, articles... in order to adjust rights, obiligations o f parties.
The Conclusion consists o f articles in terms o f condition, date o f entry into
force, duration and territorial application, language, the depositary...
Although treaty is divided into chapters, sections, articles, clauses...it is not
a compulsory requirement in form to every treaty. For instance, such treaty
as Déclaration Bangkok 1967 o f ASEAN is one o f treaty that doesn’t have
such structure.

* Language in which the treaty is written:

12 Supra N 1, pp. 16
11 Supra N i l , pp. 76

12


Language used in instrument o f treaty is approved by member states, on the
basis o f being suitable and having equality between parties. However, the
agreement on language use in bilatéral treaty can have différences to
m ultilatéral treaty. For example, with bilatéral treaty, two parties agree to
use languages o f two parties or international language. On the contrary, with
multilatéral treaty, language to be chosen will be the official language o f
UN like English, French, Russian, Spanish, Arabian and Chinese.
Instruments compiled by chosen language are original ones and have similar
légal value. Language o f instrument can be regulated in article o f treaty like
régulation at Article 111 o f UN Charter, Article 53 o f Vienna Convention
1961 on Diplomatie Relation....

2.2.2 Subject of treaty
Conclusion treaty is one o f fundamental rights o f an independent and
sovereign State. On the other word, “the making o f treaties is one o f the
oldest and most characterictic exercises o f independence or sovereignty on
the part o f states”14. “Every state possesses the capacity to conclude
treaties” 15. When taking part in treaty relations, state have enough rights in
the carrying out o f making-treaty process as negotiation, signature,
ratification, approval, termination, révocation...
In international law, capacity o f subject to treaties are one o f important
factors affected légal value o f instrument. According to Vienna Convention

1969, subjects to treaty must be states16. The Convention does not apply to
ail international agreement, only those between states. Therefore,
international agreements between state and physical person or légal person
as international or multinational companies are not treaties17.
States implement own subject’s rights through authoried bodies or person
on behalf of State.Various représentatives o f the state have an authority at
international law. Article 7 o f Vienna Convention 1969 has classified
représentative o f one state including the représentatives with full power and
représentatives without full power. A person which are considered as
représentatives o f a State not have to procédure full powers such as Heads
o f State, Heads o f Government and Ministers for Foreign Affair; heads o f
diplomatie missions; représentatives accredited by states to an international
conférence or an international organization . A person or other officiais
who is considered as représentative o f a State has full power for the purpose
o f adopting or authenticating the text o f treaty or for the purpose o f
14 M cN air, L aw o f treaty, (1961), 2nd edn, p p .35
15 V ienna C onvention 1969, A rt 6
16 Ibid, A rt 2(1)
17 See A nglo- Iranian O il C om pany (U nited K in g d o m v. Iran) (P relim in ary O b jectio n s) ICJ
R eports (1952),pp.93,112; See C. G reenw ood, ”T he L ibyan O il A rb itra tio n s” , B Y IL
(1982), pp 27-81. The International C ourt o f Justice has held that an oil co n c essio n granted
by a state to a foreign com pany was not a treaty because the state o f n atio n ality o f the
com pany was not party to the concession. E ven w hen, as so m etim es h appens, an ag reem en t
betw een a state and a com pany provides that it shall be interpreted in w hole o f in p art by
reference to rules o f international law, that d o e s n ’t m ake it a treaty.
18 V ienna C onvention 1969, A rt 7

13

expressing the consent o f the State to be bound by a treaty, except the treaty
has other régulations.
Therefore, based on légal value o f singning deed, Vienna Convention 1969
gives requirement o f représentatives their state. There is no différence in
international law between a treaty concluded on behalf o f States and one
concluded on behalf o f Government or M inistry binds the states, and
changes o f Government will not affect its binding force.19
The production o f “full powers” is a fundamental safeguard for treaty at
international level and national level. The Commentary o f the ICL on this
provision makes clear that it seeks to combine two aspects o f compétence
on conclusion o f treaty. First, recognise and respect the self- détermination
o f each state to determine représentative o f a States; and second to ensure
that the security o f treaties should not be undermined by the danger o f
complex and uncertain limitations on délégation for conclusion o f treaty
under national law.20

2.2.3 Content of treaty
An essential element o f a treaty is the intention o f the parties to enter into a
légal relationship. So, the content o f treaty has close relation to contracting
states’s intention. Content o f treaty defines rights, duties and international
responsibilities o f state parties. According to the ILC’s Commentary, treaty
and treaty conclusion and application govemed by international law ’
embraces the element o f an intention to create obligations under
international law. If there is no such intention the instrument will not be a
treaty. Thus intention must be gathered from the terms o f the instrument
itself and the circumstances o f its conclusion, not from what the parties say
afterwards was their intention21.
Basically, the treaty content is expressed through différent norms such as ju s
congens norm, alternative norm, adjustment norm and conflict norm.
However, the treaty content mainly contains direct adjustment norms to

parties’ rights and duties. Légal trait is specilized by content o f the abovementioned norms. Based on content treaty can be distinguished from
political instrument declared by states in international coopération.

2.2.4 Law of treaty
Characteristics o f treaty on formation, content, subject are closely related to
conditions on applied law for légal relationship o f treaty conclusion and
application. An agreement between states will be no value if this it was not
regulated by international law. Therefore, the treaty - m aking process must
be carried out on the basic o f international law régulations, especially, the
régulations in Vienna Convention 1969. States may, however, make

9 A nthony A ust, pp. 48
:0 Y B IL C (1966) V ol.II, pp. 240-242
J ICJ R eports, Q uata and B ahrain, 1994, p p .l 12

14


agreements between themselves that are subject to some national law and
not to international law. It is convenient to make agreements o f this sort
about, example, the sale o f commodities or arms, or lease o f property, when
some third party not a subject o f international law is closely involved in the
transaction. Although such agreements are in a sense “international”, they
are not govemed by international law, and are not treaties but state
contracts.

2.2.5 The rôle of treaty
International relationships between states take place in various condition,
diffrent from cultural and political, economic, social condition. Developing
in this condition, treaty has the function o f maintaining and settling

international légal order, taking care o f equal relation between states,
ensuring international benefit and national benefit harmoniously, ensuring
fundemental principle to be implemented and enforced.
Treaty concluded by states aims at reaching and saving national benefits in
particular and common international benefit in général. The agreement o f
states expressed in treaty’s content is important légal basis for the
implementation o f parties and solving disputes raised in treaty implementing
process.
Nowadays, treaty confirmed its rôle as important légal tool used by
international community to lay foudation and promote the rapid
development o f international coopération relation, link nations together.
Besides, treaties also push up development o f international law and
domestic law. This issue expresses by means o f rôle o f treaty, which is a
source o f international law and domestic law.

2.3 Conclusion of treaty
99

The birth o f a treaty involves various stages . In practice, the treaty making
process involves 3 stages: first, the création o f a treaty as an international
instrument and seconlly, the expression o f consent by states to be bound by
a treaty and thirdly, implementation o f treaty.
“Conclusion” may have quite a number o f meanings, the narrowest o f which
should be considered first: a treaty is “concluded” once the States have
'yx
expressed their defmitive intention to be bound . Therefore, conclusion o f
treaty is made by a lot o f légal activities such as negotiation, adoption,
signing, ratification, approval and acception, accession... Ail the actions
just mentioned are actions at the international level.

‘2 N .A .M ary an G reen M .A , LL .B (C antab), pp. 164
S upra N 5, p p .55

15


2.3.1 Formation of treaty instrument
A treaty is concluded succesfully after process o f création o f treaty
instrument and expression o f consent by states to be bound by this treaty.
The stage of instrument formation includes negotiation, adoption and
authentication o f the text.
Negotiation is considered the first period o f treaty- making process. Draft
instrument is prepared earlier by the states participating and after
negotiation successfully, the states will compile official instrument for
adoption. The real point o f negotiation is agreement and unify parties’ will.
States agreed equally on rights and duties to reach the common benefit and
protect benefits o f each party. In many ways the process o f negotiating is the
m ost crucial phase o f treaty making as it relates to the substance o f the
oblibigation envisaged24. This is time-consuming phase so in order to avoid
the lengthening or deadlock o f agreement, negotiation needs good will from
negotiating states.
“The adoption o f the text of a treaty, usually, takes place by the consent o f
ail the states participating in its drawing up”25 with the means o f the formai
act. The adoption of the text is not an act to express the consent to be bound
by a treaty, exclude treaty which applied other priciples. W hen the
negotiators o f the treaty finalise the text, the text is adopted. This m ay occur
at a specially- called conférence, or at a meeting o f a body such as the UN
General Assembly.
The création o f treaty instrument is ended by authentication. Authentication
is also formai act, it is usually done by initiating, expreesing acceptence o f

the accuracy o f the written text. And authentication o f the text is a necessary
requiement before whether states consent to be bound to a treaty.
Authentication is done by an act or a procédure26. Once a treaty has been
authenticated, states cannot unilaterally change its provisions. It is clearl that
the term to which the parties may be prepared to agree the treaty text, must
be elaborated. Then the provisional text so agreed upon must in some
manner be authenticated, so that there may be no mistake or confusion as to
its exact term.
So, offical instrument o f a treaty is created after being negotiated, adopted
and authenicated by contracting state. After these steps, a new international
instrument has come into existence, but this does not mean that it has
entered into force.

2.3.2 The expression of consent by states to be
bound by a treaty
According to Vienna Convention 1969 (Art 15), acts express consent by
states to be bound by a treaty are various such as signature, exchange o f
24 C ouncil o f EU and Bristish Institute o f International and C om p arativ e Law , p p .29.
25 V ienna C onvention 1969, A rt 9
:b Supra N I, pp.71

16


instruments constituting a treaty, ratification, approval or acceptance,
accession or by any other means if so agreed. These acts have the same légal
effect because they ail have the same purpose o f creating common force for
treaty. However, they still have certain distinction in ternis of validity of
each act.
Signature is theis step indicates an intention to become a party to a treaty,

and does not usually establish consent to be bound by the terms o f the
treaty, unless the treaty provides for the signature having that effect27. So,
signature are divided into 2 kinds: définitive signature (not subject to
ratification) and simple signature (subject to ratification)28. Nowaday, in
international relationship, a lot o f treaties regulate this treaty will corne into
force after a füll signature29.
Ratification is defined as if the “international act” whereby a state indicates
its consent to be bound to a treaty. Ratification, usually, is the highest
expression o f consent by a state to be bound by a treaty. In the case of
bilatéral treaties, ratification is usually accomplished by exchanging the
requisite instruments, while in the case o f multilatéral treaties the usual
procédure is for the depositary to collect the ratification o f ail states keeping
ail parties informed o f every situation. The institution of ratification grants
states the necessary time - frame to seek the requied approval for the treaty
on domestic level and to enact the necessary législation to give domestic
effect to that treaty. Ratification activity can come into force o f treaty to a
state or not, depend on this treaty’s régulation, example, Vienna Convention
1969 itself regulate “the present Vienna Convention 1969 is subject to
ratification”30.
Acceptance and approval o f treaty have the same légal effect as ratification
and consequently express the consent of states to be bound by a treaty. In
the practice o f certain states, acceptance and approval have been used
instead o f ratification when, at national level, constitutional law does not
require the treaty to be ratified by the Head o f States.
Accession is the act whether by a state accepts the offer or the opportunity
to become a party to a treaty already negotiated and signed by other states. It
has the same leal effect as ratification. Accession usually occurs after the
treaty has entered into force. The Secretary - General o f the UN, in his
function as depositary, has also accepted accessions to some treaties before
their entry into force, example, Vienna Convention 1969 “shall enter into

force on the thirtieth day following the date of deposit of the thirty-fifth
instrument o f ratification or accession”31. The conditions under which
accession may occur and the procédure involved depend on the provisions
o f the treaty. A treaty might provide for the accession of ail other states or
for a limited and defined number of states. In the absense o f such a

27 topic/hottoppic/2001/l/2.htm l
28 />29
THU VIE N
Supra N I 1, pp. 80
TRLfONG
GAI HOC LUÂT HA NÔI
30 Vienna Convention 1969, Art 82
31 Ibid, Art 84.
PHÔNGGV _ A T )S

17


provision, accession can only occur where the negotiating states were
agreed o f subsequently agree on it in the case o f the State in question.
An important point made by Vienna Convention 1969 for parties related to
the process express consent to be bound by a treaty is the duty not to be
against object and purpose o f the treaty and this issue was applied before the
treaty cornes into force. It is necessary to stress that provision because “the
control o f contracting states for the unimplementation can ruin oject or
purpose o f treaty in case this treaty hasn’t come into effect. Acceptance
treaty with its form and content is a necessary assuarance for the common
benefits o f treaty relation that is being or will be formed”.32

2.4 Réservation of treaty
A state may w ish to become a party to a treaty with réservations, that is to
accept to be bound by most, but not ail, o f the provisions o f the treaty. The
importance o f the réservation will naturally depend on its scope and on the
object and purpose o f the treaty.
In accordance with the benefit o f parties, the Vienna Convention 1969 admit
that réservation is the right o f the subjects while conclusion o f treaty.
“Réservation means a unilatéral statement, however phrased or named,
made by a State, when signing, ratifing, accepting, approving or acceding to
a treaty, whereby it purports to exclude or to modify the légal effect o f
certain provisions o f the treaty in their application to that State”33. Although
the Vienna Convention 1969 does not distinguish or indicate the réservation
applied in which type o f treaty, it is obvious that the réservation is only set
up for multilatéral treaty. The bilatéral treaty can not set up réservation
because it is the resuit o f the successful agreement between two subjects. On
the other hand, a réservation to a bilatéral treaty (a treaty to which there are
only two parties) has the same effect ans an amendment (except that a
réservation m ay be withdrawn at any time)34.
A state becoming a party to a multilatéral treaty may be able to formulate
réservations, indicating that it will not be bound by one or other o f the
provisions. The subject o f réservation to multilatéral treaties is one o f
unusual- in fact baffling-complexity35. Réservation is limited because it
can’t be applied absolutely36. The parties have the right o f réservation but
can only carried when the states does the affirming act o f its agreement.
State parties can not formulate a réservation if the réservation is prohibited
by a treaty, as such UN Convention on the Law o f the Sea 1982 (Art 309).
In some other cases, state parties may only formulate a determinate
réservation if the réservation is not prohibited by a treaty, example, Chicago
Convention on Law o f Civil Aviation Art 24(1,2).
32 Le M ai A nh, F u n d a m en ta l légal issues underV ienna Convention 1969 a n d laws

c o n c ern in g intern a tio n a l treaties co n clu d ed betw een nations, pp. 45-50
33 V ienna C onvention 1969, A rt 2 (l)(d )
34 N A .M a ry a n G re e n M .A ., L L .B .(C antab), pp. 167
35IC L Y earb o o k (1 953),vol.II(A /C N .4/63), pp.124;
30 N g u y en Thi T huan, pp. 27-31

18


The réservation influences directly on the effect value o f treaty. So, the
déclaration o f réservation, getting out réservation, acceptance o f and
objection to réservation have to expressed by texts and informed to
concem ing parties. An objection by another contracting state to a
réservation does not preclude into force o f the treaty as between the
objecting and reserving states unless a contraty intention is defmitely
37
expreesed by the objecting states . Besides, each différent act o f réservation
activity will lead to the différent légal effect such as withdrawn o f
réservation and o f objection to reservation.Unless the treaty otherwise
provides, withdrawn o f réservations and o f objection to réservations may be
at any time.

2.5 The entry into force
The entry into force o f treaty plays an important rôle in the content o f
Vienna Convention 1969, relating to the implementation o f treaty, because,
every treaty in force is binding upon the parties to it and must be performed
in good faith. However, the entry into force o f the treaty must be
distinguished from the entry into force o f the treaty in relation to a particular
state.

2.5.1 Condition for a treaty to corne into force
Objectively, once treaty only cornes into force when it meets the
prerequisite conditions that follow basic principles o f international law and
o f Vienna Convention 1969. According to these principles, the conclusion
and application o f treaty are not conflict ju s congens norm and coercion o f a
state by the threat or use force.
According to Art 53 o f Vienna Convention 1969, a treaty is void if, at the
time o f its conclusion, it conflicts with a peremptory norm o f général
international law (jus congens). A peremptory norm o f général international
law is a norm accepted and recognized by the international community o f
states as a whole as a norm from which no dérogation is permitted and
which can be modified only by a subséquent norm o f général international
law having the same character.
So, although Vienna Convention 1969 has not listed in détail ju s congens’s
belonging, any treaty even consisting o f one norm conflict ju s congens norm
can be absolute invalidity. Besides, one treaty only come into force when
the conclusion is done through légal act o f authority subjects under
international law and law o f state parties.The overriding need for certainly
in treaty relations is clearly reflected in the wording o f Art 46, which
provides that, a state may not invoke the fact that its consent to be bound by
a treaty has been expressed in violation o f a provision o f its internai law
regarding compétence to conclude treaties as invalidating its consent unless
37 V ienna C onvention 1969, A rt 20(4)(b)

19


that violation was m anifested and concemed a rule o f its internai law o f
fundamental importance.This treaty will be o f no validity if it does not
conflict with international law and internai law on authority o f

représentative o f a states; on free consent and good fair principle and it does
not order to procédure o f conclusion.
However, it is necessary to define the limitation o f effect o f treaty in order
to enhance the rôle o f treaty. The effect o f treaty is an influence scope o f
treaty limited according to duration, territorial scope, and objects o f treaty.

2.5.2

Duration and territorial scope of treaty

2.5.2.1 Duration of treaty
In principle, a treaty enter into force in such maner and upon such date as it
m ay provide or as the negotiating states may agee. Those provisions o f the
treaty relating to entry into force which must précédé its entry into force
apply as from the adoption o f the text. These include the manner and date o f
the treaty’s entry into force. The treaty nearly always does contain a
provision about entry into force. If it does not, and if the negotiating states
have not agreed otherwise, the treaty will enter into force only after consent
to be bound has been established for ail the negotiating states.
In the case o f bilatéral treaty, it is good practice to confirm the date in the
Certificate o f Exchange or Instrument o f Ratification. In the case o f
multilatéral treaties, states can be state parties o f treaty by différent ways;
thus, date o f entry into force o f treaty to every state parties can be not in the
same time. It is usual to provide that the date o f entry into force will be a
specified num ber o f days, week o f months following the deposit o f the last
instrument o f ratification which is need to bring the treaty into force38.
Treaty can entry into force when it has enough certain number o f states
parties according to treaty provisions39 or the effective o f treaty is regulated
by treaty itself. If the state parties don’t reach the agreement an on date o f
the treaty enter into force o f treaty, the Depositary bodies determine or

consult state parties to the date o f entry into force. If a multilatéral treaty
require that state parties has to carry out the ratifying procédure, the effect
o f treaty can be fixed in its document or determine the concrete time by after
document40.
However, the real effect o f a treaty can appear before treaty entry into force
officially. The some provisions o f a treaty can be applied from the time of
the adoption o f its text. In the other word, provisions on the authentiacation
o f its text; consent o f states to be bound by a treaty; the manner or date o f its
entry into force; réservation; the function o f the depositary and other matters
arising necessarily will be implemented before the entry into force. Besides,
if a treaty itself so provides or the negotiating states have in some other

18 A cco rd in g to V ien n a C o n v en tio n 1969 itself, A rticle 84 (1)
-w Ibid, A rt 84
4U E xam ple: T he E u ro p e an C onvention, A rt 45

20


manner so agreed, this treaty or a part o f treaty is applied provisionally
pending its entry into force41.
Existing duration o f a treaty is from the entry into force o f the treaty to the
term ination or révocation o f the treaty. The treaty without effect is the treaty
o f no binding value to State parties. Treaty, ail or a part, can be considered to
suspend or revoke to the opération o f treaty. Reasons for term ination or
révocation are various. This can be based on the agreement o f ail parties or
one party; can be regulated in advance or not; can be objective cause or
subjective cause.... Part V o f the Vienna Convention 1969, Art 42-45 and
54-64, set out the various circumstances in w hich a treaty can be denounced,
terminated or its opération suspended, other than on grounds o f invalidity.

Almost every treaty regulated the duration and term ination o f treaty.
However, m any bilatéral treaties make no provisions for duration and their
subject matter is such that they could rem ain in force indefinitely but, since
it is possible that either o f the parties m ay want to terminate it at som e time,
they include a term ination clause42. W hen the parties are not sure the
duration o f treaty, treaty can be a provision created with enclosed régulation
o f expanding o f duration o f treaty43.
Articles 28 o f V ienna Convention 1969 regulate non- retroactivity o f
treaties. According to this article, unless a différent intention appears from
the treaty or is otherwise established, Convention's provisions do not bind a
party in relation to any act or fact w hich took place o f any situation w hich
ceased to exist before the date o f the entry into force o f the treaty w ith
respect to that party. So, treaty followed the common raies o f law that is not
adjusting social relation raised after the légal document cornes into force.

2.5.2.2 Territorial scope of treaty
Influential scope o f a treaty depend on bilatéral or multilatéral treaty. Unless
a différent intention appears from the treaty or is otherwise established, a
treaty is binding upon each party in respect o f its entire territory. So,
limitation territorial scope o f treaties is defmed is embraces ail the land,
internai waters and territorial sea, and the airspace above them, over w hich a
party has sovereignty o f state parties.
However, in practice, a treaty m ay apply to an overseas teritory. Such
treaties (like treaty in alignment among states) have effect applied for
activities o f countries outside its territory. Some bilatéral treaties have
provisions for extending them to overseas territories. They are typically
found in treaties on matters such as double taxation, extradition, narcotic
drugs, mutual légal assistance and investm ent protection44. In multilatéral

41 V ienna C o n v en tio n 1969, A rt 25

42 T ypically, this pro v id es: eith er p a rty m ay te rm in ate this treaty b y a w ritte n n o tice to the
other party. T erm in atio n s shall take effect six m o n th s fo lio w in g the date o f n o tificatio n .
U K -U S T re aty on M utual L égal A ssitan ce in C rim in al M a tte r 1994 (U K T S (1 9 9 7 )1 4 ).
4‘’ T he S lovenia- U n ited K in g d o m C ultural C o -o p eratio n A g reem en t 1996
44 A nthony A ust, pp. 163

21


treaty, although it is not always, a lot o f them allow states to limit their
overseas territorial scope without application o f treaty45.
Therefore, the Vienna Convention 1969, specifically, has not given out
limitation force on territorial scope o f treaty. This issue is determined by
parcitipating states, basing on agreement o f state parties.

2.5.3 Treaties and third parties
In theory, influence objects o f légal text consits o f individuals, institutions
and relations. Commonly, légal texts affect ail objects in territory scope that
the has force in time and space45. In principle, the treaties apply only to the
state parties to them. This consent by state to be bound is expressed by
différent activities as signature, ratification, approval and acceptence,
exchange document, accession. The général raie is rather obivious: a treaty
does not create either oblibigations or rights for a third state w ithout its
consent47. However, in practice, the raie o f Vienna Convention 1969 rests
firmly on the sovereignty and independence o f state. Thus, whether bilatéral
or multilatéral treaties cannot create rights or obligations for a third party
without its consent.
Third states, which have not become parties to a treaty by orgininal
signature followed by ratification or acceptance, but w hich wish to become
a party to it, m ay have the right accorded under the treaty to accédé or

adhéré to the text and thereby become bound by it. Art 35 and Art 26 o f
Vienna Convention 1969 clarified common principle by setting out those
circumstances in which a treaty can apply to a third state. O bligations o f the
third state is only formed with two conditions: first, the parties m ust intend
the provision to be the mean o f establishing the obligation o f the third state;
secondly, the third state must have expressly accepted the obligation in
writting. The third state, even, does not become a party to the treaty w hen a
third state has accepted an obligation in a treaty.
Besides, there is not any raie that international law w hich prevents two or
more states by treaty a right in favour o f a third state, if these rights are not
against com m on principle o f international law and don’t violate global
security. This is the case the treaty give right to the third state or a group o f
state if ail relevant state agree. The Vienna Convention 1969 also adjusted
the révocation or modification o f obligations or rights o f third state with the
consent o f the parties to the treaty and o f the third state, unless it is
established that they had otherwise agreed.
Vienna Convention 1969 does not prevent non-party from quoting any
régulation o f treaty. In this case, régulation o f treaty is applied under form
o f international customary law. In practice ail régulation o f Vienna

45 T he International L abour O rganisation C onstitution, A rt 35 (8) p ro v id es that its req u ies
m em bers to give reasons if they do not extend an ILO to one or m ore o f th e ir o v erseas
territories.
46 H anoi L aw U niversity, S tate an d Law Theory Textbook, pp. 137
47 V ienna C o n v en tio n 1969, A rt 34

22