Introduction*
The world today stands amid old and new challenges. The escalation of tension in various places in the world threatens regional and international security. Natural disasters and rising sea level continue to raise alarms about climate change. Most notably, the outbreak of the COVID-19 pandemic has put the world at an unprecedented crisis of health and economics. On the bright side, however, new opportunities for cooperation at multiple levels has also arisen.
Against this background, a number of remarkable international legal issues have been drawing attention in Vietnam. In terms of the Law of the Sea, Vietnam continued to promote the negotiation of the South China Sea Code of Conduct (COC), participated in the exchange of submissions to the Commission on the Limits of the Continental Shelf (CLCS) in the South China Sea and issued a number of legal instruments in response to IUU fishing. Regarding Investment and Trade Law, Vietnam has recently joined several bilateral and multilateral free trade agreements with the EU, the United Kingdom and other key partners. Concerning human rights, the issue arises as to whether the measures taken by Vietnam to prevent and control the pandemic conform with its international human rights obligations. The newly adopted Circular on Vietnam’s honorary consular officers will also be discussed from an international law viewpoint.
Diplomatic & Consular Relations
Law on Consular Relations
On 6 February 2020, the Minister of Foreign Affairs of Vietnam has issued Circular No. 01/2020/TT-BNG on Vietnamese honorary consular officers (Circular 01/2020), which further consolidates the legal framework on Vietnam’s honorary consular officers. In accordance with the 1963 Vienna Convention on Consular Relations (1963 Vienna Convention) and the 2009 Law on Overseas Representative Missions of the Socialist Republic of Vietnam, Circular 01/2020 elaborates on the conditions for appointing Vietnam’s honorary consular officers, the appointment procedures, their functions and responsibilities.
The 1963 Vienna Convention does not provide a definition of “honorary consular officers,” but only distinguishes them from “career consular officers.” In that sense, Article 15 of Circular 01/2020 sets out the conditions for appointing Vietnam’s honorary consular officers: (1) being a national of Vietnam, the receiving state or a third state; (2) having residence in the receiving state; (3) being socially reputable and financially competent; (4) having clear judicial record; (5) having knowledge about Vietnam and the receiving state; (6) not being governmental officials, public employees of Vietnam or any country and does not receive remunerations taken from the governmental budget of Vietnam or any country.
The first condition on nationality is consistent with Article 22 of the 1963 Vienna Convention, which stipulates that consular officers may have the nationality of the receiving state or a third state with the express consent of the receiving state. The requirement of consent is met through the appointment procedures provided under Article 17 of Circular 01/2020, accordingly the “candidate” must be approved by the Ministry of Foreign Affairs of the receiving state via a diplomatic note.
The functions of Vietnamese honorary consular officers are provided in Articles 7–14 of Circular 01/2020. Accordingly, honorary consular officers may only carry out functions assigned by the Minister of Foreign Affairs, in accordance with the law of Vietnam, the law of the receiving state, and international treaties that the two states are members of and international law. These functions may include issuing Vietnam’s passports and travel documents, helping and assisting Vietnamese nationals, acting as notary and civil registrar, etc. – similar to those specified in Article 5 of the 1963 Vienna Convention.
Aside from consular functions, Vietnam’s honorary consular officers may exercise professional and commercial activities in the receiving state on the condition that these activities must not interfere with their functions and responsibilities (Article 4, Circular 01/2020). This is consistent with Articles 57 and 65 of the 1963 Vienna Convention, which implicitly allows honorary consular officers to undertake “for personal profit any professional or commercial activity in the receiving State.”
The issuance of Circular 01/2020 is expected to serve as a foundation for the effective appointment and operation of Vietnam’s honorary consular officers abroad. Since 1994, Vietnam has appointed 44 honorary consuls in various regions of the world, among whom 32 are still currently active.
International Economic Law
Investment & Trade Law
The most notable recent developments in the investment and trade realm in Viet Nam are the ratification of the EU-Vietnam Investment Protection Agreement (EVIPA) and the entry into force of the EU-Vietnam Free Trade Agreement (EVFTA). After both Parties signed the EVFTA and the EVIPA on 30 June 2019, the former entered into force on 1 August 2020, requiring ratification by Viet Nam and the EU. The latter was subject also to the ratification of all EU member states. The benefits and opportunities envisaged in the EVFTA, therefore, have been offered in the jurisdictions of the parties including eliminating almost all tariffs, reducing regulatory barriers and overlapping red tape, ensuring protection of geographical indications, providing market access to services, public procurement and enforceable mechanisms for the EVFTA rules. The Agreement also promotes responsible trade policy by integrating rules on environmental and labor protection, human rights in the relation with trade issues, transparency and inclusiveness in the decision-making process.
Although the EVFTA’s objective is to liberalize and facilitate trade and investment between the parties (Article 1.2), the EVIPA deals separately with protection rules and investment dispute settlement due to the distinct ratification requirements on the side of the EU and its member states.
The EVIPA has been approved at the EU, ratified by Viet Nam and eight out of 27 EU member states. The long negotiation process slowed down the internal approval process in the majority of the EU countries given the general limitation in their regulatory powers and exposure to suits by foreign investors. Nonetheless, the EVIPA represents a more cautious investment deal compared to recent treaties to which Viet Nam has been a party such as the 2019 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and 2020 Regional Comprehensive Economic Partnership Agreement (RCEP), especially in terms of the most invoked standard, fair and equitable treatment clause.
Secondly, the RCEP, combining both trade and investment in its scope, having entered into force on 1 January 2022, applies in the jurisdictions of the ten ASEAN countries plus Australia, China, Japan, New Zealand and South Korea. Regarding investment protection, the RCEP overlaps with and thus, mirrors the rules of the ASEAN intra-investment agreement, ASEAN Comprehensive Investment Agreement (ACIA), and those between ASEAN and the all other RCEP parties, except for Japan. Trade liberalization significance of this Agreement lies mainly with converged rules of origins for all the parties and its scope covering China, Japan and South Korea, which have not succeeded in concluding a deal among themselves since the first initiative in 2002.
Thirdly, as a consequence of the UK’s exit from the EU, the United Kingdom and Viet Nam signed a bilateral trade agreement on 29 December 2020 – the UKVFTA, which aims to ensure the continuity of the EVFTA and thus replicates the EVFTA rules. The two parties are applying their FTA provisionally from 1 January 2021 pending its entry into force.
Law of the Sea
Progress on the South China Sea Code of Conduct (COC)
The negotiation of the COC continues to be a priority of Vietnam’s concern. In 2020 and 2021, the COC negotiation process was affected by COVID-19. However, Vietnam still made efforts to promote and maintain the COC negotiation process. On 12 November 2020, under the Chairmanship of Vietnam, ASEAN leaders agreed to issue the Chairman’s Statement of the 37th ASEAN Summit, referring to the South China Sea issue and the COC negotiation process, emphasizing cooperation for “the progress of the substantive negotiations towards the early conclusion of an effective and substantive Code of Conduct in the South China Sea (COC) consistently with international law, including the 1982 UNCLOS within a mutually-agreed timeline.” In June 2021, at the Special ASEAN-China Foreign Ministers’ Meeting in Celebration of the 30th Anniversary of the Dialogue Relations, the Vietnamese Foreign Minister and his counterparts affirmed building an effective and efficient COC in accordance with international law and UNCLOS. In September 2021, Vietnam and China held the 13th meeting of the Steering Committee for bilateral cooperation between the two States. The Prime Minister of Vietnam emphasized the importance of the COC, promoting the negotiation of a substantive and effective COC in the South China Sea, in compliance with international law, especially the 1982 United Nations Convention on the Law of the Sea.
In 2022, when the COVID-19 epidemic situation improves, the parties can speed up the negotiation process and reach consensus on differences between the parties regarding the legal nature, geographical scope of application of COC and the roles of countries outside the region.
Extended Continental Shelf Submissions in the South China Sea
The South China Sea is a semi-enclosed sea with diversity in natural resources. In addition, the continental shelf of the South China Sea is a potential resource of oil and gas reserves. The states have competing claims over territory sovereignty over the islands in the South China Sea including: Brunei, China, Malaysia, the Philippines, and Vietnam. One of the main issues in the South China Sea is that the continental shelf claims of states are not clearly defined. In 2009, Malaysia and Viet Nam tried to clarify their continental shelf claims. On 6 May 2009, Vietnam and Malaysia submitted a joint submission to the CLCS relating to the continental shelf in the southern part of the South China Sea. On 7 May 2009, Vietnam submitted a separate submission to the CLCS concerning the continental shelf in the northern part of the South China Sea. The submissions from Vietnam and Malaysia were objected by China and the Philippines by invoking Article 5(a) of Annex I Rules of Procedures of the CLCS. Therefore, the CLCS could not continue reviewing their submission.
After ten years, in December 2019, Malaysia continued submitting its partial submission regarding the South China Sea. Immediately, the submission received objection from China. In Note Verbal No. CML 14/2019 dated 12 December 2019, China requested the CLCS not to consider the submission by invoking Article 5(a) of Annex I. The Philippines also opposed the submission of Malaysia by Note Verbal No. 000192-2020 dated 06 March 2020. It seems that, like the scenario in 2009, the CLCS will not review the submission.
By the Note Verbal No. 22/HC-2020 dated 30 March 2020, unlike China and the Philippines, Vietnam does not object to the CLCS’s consideration of Malaysia’s submission, however Vietnam opposes China’s claims in the South China Sea mentioned in Note Verbal No. CML 14/2019 dated 12 December 2019 and Note verbal No. CML 11/2020 dated 23 March 2020 of China. Vietnam affirms that “the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the sole legal basis for and defines in a comprehensive and exhaustive manner the scope of their respective maritime entitlements in the East Sea.” Other countries also expressed their positions related to China’s note verbals, including, the Philippines, Indonesia, Malaysia, the United States, Australia, the UK, France, Germany, Japan and New Zealand.
Responses to Illegal, Unreported and Unregulated Fishing (IUU Fishing)
IUU fishing (illegal, unreported and unregulated fishing) is one of the non-traditional security issues facing Vietnam. In this context, Vietnam has issued resolutions and strategies on sustainable development of the marine economy in association with ensuring defense and security; has implemented many undertakings and policies to support and protect fishermen who legally catch and exploit seafood in the waters under Vietnam’s sovereignty as well as prevent Vietnamese fishing boats from violating foreign waters. Accordingly, Vietnam approved the following:
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(1) Directive No. 45/CT-TTg dated 13 December 2017 on a number of urgent tasks and solutions to overcome the warning of the European Commission on combating illegal, unreported and unregulated fishing;
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(2) Directive No. 17/CT-TTg dated 24 June 2021 of the Prime Minister on inter-sectoral coordination mechanism between departments, ministries, branches and People’s Committees of 28 coastal provinces and cities in exchanging and processing information in order to prevent and eventually put an end to the situation of Vietnamese fishing vessels violating regulations on combating illegal, unreported and unregulated fishing in foreign waters;
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(3) Decision No. 78/QD-TTg dated 16 January 2018 approving the National Action Plan to prevent, reduce and eliminate illegal, unreported and unregulated fishing by 2025; etc.
Moreover, the Navy, Fisheries Surveillance, Coast Guard, Border Guard, and Directorate of Fisheries of Viet Nam regularly exchange and coordinate with coastal localities in investigating and verifying information on the number of fishing vessels violating foreign waters in order to take measures to manage them according to the law and contributing to improving the effectiveness and efficiency of state management over fishing activities and protecting aquatic resources of Vietnam.
Human Rights
Human Rights in the Context of the Pandemic
Since December 2019, the world has been paralyzed by the COVID-19 virus, causing nearly 400 million cases worldwide and over 5.5 million deaths, according to statistics from the World Health Organization. In preventing and controlling the pandemic, states have enforced various measures, from lockdowns and quarantines to compulsory vaccination. The adoption of restrictive measures is undoubtedly necessary given the highly contagious nature of the virus, and is consistent with Article 12.2(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which obliges state parties to “take steps … for … the prevention, treatment and control of epidemic … and other diseases.”
However, these measures have also called into question several human rights issues. This section will examine the conformity of two measures taken by the Vietnamese government to prevent and control the disease: social distancing and vaccination with its international human rights obligations, in particular under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Social Distancing
Since the outbreak of the pandemic, the Vietnamese government has implemented nationwide social distancing three times, by virtue of the Prime Minister’s Directives No. 15/CT-TTg (on March 27, 2020), 16/CT-TTg (on March 31, 2020) and 19/CT-TTg (on April 24, 2020), albeit at different levels of strictness according to the situation in each particular local province.
The application of social distancing arguably interferes with people’s civil and political rights as well as with their economic, social and cultural rights. In terms of civil and political rights, social distancing may restrict the right to freedom of movement (Article 12 ICCPR), right of peaceful assembly and freedom of association (Articles 21, 22 ICCPR), right to freedom of conscience and religion (Article 18 ICCPR) with the suspension of religious activities in public. However, these rights may be subject to restrictions necessary to protect certain legitimate public interests, including public health (Articles 12.3, 21 and 22.2 ICCPR). In Vietnam, social distancing is implemented for the legitimate objective of protecting public health.
Regarding socio-economic and cultural rights, social distancing severely affects the livelihoods of the people, threatening their rights to work (Article 6 ICESCR) and their adequate standard of living (Article 11 ICESCR). The right to education is also arguably affected as schools were forced to close (Article 13 ICESCR). However, as noted by the UN Economic and Social Council (ECOSOC) in their Statement on the coronavirus disease (COVID-19) pandemic dated 6 April 2020, the abovementioned rights could be limited by emergency measures taken to combat the public health crisis posed by COVID-19, as long as these measures are “necessary,” “reasonable and proportionate,” and “be lifted as soon as they are no longer necessary for protecting public health.” Firstly, social distancing was necessary and has indeed been proven effective in controlling the disease; the measure was also proportionate as it was enforced only to the extent necessary for controlling the pandemic, and was lifted as soon as the caseloads and mortality rate were in control. Secondly, the restriction caused by social distancing was alleviated by the use of technology that allowed remote work and education.
Furthermore, as a state party to the ICESCR, Vietnam is only obliged to “[take steps], individually and through international assistance and co-operation, […] to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means” (Article 2.1 ICESCR). In the context of the pandemic, this obligation means that states “must make every effort to mobilize the necessary resources to combat COVID-19 in the most equitable manner, in order to avoid imposing a further economic burden on [the] marginalized groups” (ECOSOC Statement of 6 April 2020). In the case of Vietnam, a rescue package of approximately USD 2.6 billion was issued in the framework of its National COVID-19 Response Plan to support the most vulnerable and workers who have lost jobs and impacted enterprises with low interest credit to pay workers’ salaries.
The measure of social distancing was part of Vietnam’s “zero-COVID” strategy during the first and second waves of the pandemic. However, with the complicated developments of COVID-19 and the dual goals of containing the pandemic and promoting economic growth, Vietnam has gradually shifted to a more flexible policy of re-opening and “adaptati[ng] to the new normal” through an intensive nationwide vaccination campaign.
Vaccination
Despite the initial shortage of vaccines, Vietnam has risen to become among the six countries with the highest vaccination coverage in the world thanks to its vigorous “vaccine diplomacy.” To date, over 99 percent of the 18-and- over-year-old population have received at least one shot of vaccine and 90 percent of them have received two doses.
Article 12 of the ICESCR envisages “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” To achieve the full realization of this right, member states are required to take measures necessary for “the prevention, treatment and control of epidemic, endemic, occupational and other diseases.” Vaccination, as a proven effective measure for the prevention and control of the COVID-19 pandemic, is undoubtedly in compliance with this Article.
Furthermore, the right to the enjoyment of the highest attainable standard of health contains “the right to control one’s health and body, […], and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation” (ECOSOC, General Comment No. 14 dated 11 August 2000). Consent for medical treatment is thus an aspect of the right to health.
The vaccination campaign in Vietnam fully complies with this requirement. Unlike a number of countries that apply strict “compulsory vaccination” or “vaccination pass,” Vietnam does not implement obligatory vaccination for the whole population, despite its ambitious vaccination goal and active implementation. According to the procedure of vaccination issued by the Vietnam’s Minister of Health (Decision No. 3588/QD-BYT of the Minister of Health dated 26 July 2021), people must be advised about the side effects of vaccines and express their consent in writing before being inoculated. This practice guarantees the consent of the subject before the treatment is given.
Conclusion
The overview of the above international legal issues, though far from complete, shows the significant role that international law plays in Vietnam. It serves as both as a means and a foundation for Vietnam in its international integration and cooperation, while protecting its national sovereignty, the rights and interests of the state itself and of its people. Furthermore, as a responsible member of the international community, Vietnam has been actively participating in the construction of international law, at the national, regional and international level, in addressing issues of common interest. This is expected to be the stance that Vietnam will take in the years to come.
The opinions expressed in this article are solely those of the authors. They do not purport to reflect the opinions or views of any institution they might be affiliated with.