Preservation of Constitutional Supremacy: New Law Nullifies Human Rights Conventions

This Act was passed on April 09, 2016, replacing the 2005 law. One of the most important amendments of the new law lies in just three words that the old law did not have:

“In cases where there are differing provisions between legal normative documents and international treaties to which the Socialist Republic of Vietnam is a member concerning the same issue, the provisions of the international treaty shall apply, except the Constitution.” (Clause 1, Article 6).

This is not a novel legal tactic. In fact, it is widely used around the world, commonly known as a “constitutional reservation."

The Talisman

The pen is to paper what a sword is to the warrior. When binding their country to international obligations, negotiators always seek to protect national sovereignty to the utmost extent.

“Constitutional reservation” is an option they might consider when entering into international treaties.

One of the first countries to employ this tactic was the United States in 1988, when they signed the Convention on the Prevention and Punishment of the Crime of Genocide. Specifically, the US government declared:

“No provision of the Convention can compel the United States to undertake legislative actions or other governmental acts contrary to the Constitution of the United States as interpreted by the United States."

Although it caused significant controversy both domestically and internationally because it involved an important human rights issue, this did not surprise observers.

For many years prior, the US Congress had warned President Ronald Reagan that they would only ratify the convention if the President made it clear to other countries that the US Constitution would always hold the supreme position in regulating domestic relations, regardless of their international legal obligations.

Even though several European countries like Greece, Ireland, Norway, and Sweden officially opposed the “constitutional reservation” method, the United States successfully maintained this form.

However, sometimes the US government also found itself in a “boomerang” situation when opposing similar reservations by other countries.

Also in 1988, the Vienna Convention on Narcotic Drugs and Psychotropic Substances was reserved by Colombia on the extradition clause, arguing that extraditing their own citizens was a grave violation of the Colombian Constitution. The United States objected, claiming that Colombia was “undermining its obligations under the Convention compared to its national Constitution.”

“Constitutional reservation” creates ambiguity, making it nearly impossible to determine the validity and enforceability of the convention for the reserving country under international law. This is because the host country can use domestic legal tools (which they have 100% control over and can change at will) to deny the international obligations they have committed to at any time.

This method has become increasingly popular, especially for conventions related to human rights.

In 1990, South Korea sought a constitutional reservation for the International Covenant on Civil and Political Rights. The Government of the United Kingdom at that time opposed it, arguing that they could not understand the effectiveness of the Covenant in South Korea under such a reservation.

Under diplomatic pressure from the UK government, South Korea withdrew its two reservations.

Vietnam - The Silent “Cheat”

Vietnam is often known as a friendly nation actively participating in international conventions, but the implementation of international conventions, especially in human rights, always raises significant questions among experts and the domestic public.

In the predecessor of the Law on Conclusion and Implementation of International Treaties, we did not have the phrase “except the Constitution” as initially presented. This means that to some extent, we accepted that international treaties to which Vietnam signed or acceded had higher validity than the Constitution.

This changed as of July 01, 2016, when the Law on International Treaties came into effect. In other words, Article 6 of the Law on International Treaties is a “constitutional reservation” for all treaties to which Vietnam is a member.

This legal provision is relatively dangerous for three reasons.

First, Vietnam avoids having to publicly announce each reservation and receive feedback from the international community. As described above, making a reservation declaration and receiving opposition or support for the reservation is of particular importance in international relations, creating a mechanism for discussion and information exchange between governments, thereby forming an enforceable, supervised, and practical treaty. Creating a “constitutional reservation” clause within domestic law goes against international legal values and raises significant questions about the actual implementation of such conventions.

Second, this provision allows the Vietnamese government to fully control how international obligations, and particularly human rights obligations, are implemented without having to consider the actual content of the obligations in the Treaty (if the government so desires).

Suppose, when you read in the International Covenant on Civil and Political Rights that:

“...No one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.” (Clause 1, Article 9).

What you are actually reading is:

“…No one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law – except where the Constitution of Vietnam provides otherwise.”

Or more clearly, when you read that:

“Everyone shall have the right to hold opinions without interference” (Clause 1, Article 19).

What you are actually reading is:

“Everyone shall have the right to hold opinions without interference – except where the Constitution of Vietnam provides otherwise.”

Meanwhile, the Constitution of Vietnam creates an immense void for state interpretation without any constitutional safeguarding mechanism. For example:

“Article 25: Citizens have the right to freedom of speech, freedom of the press, access to information, assembly, association, and demonstration. The exercise of these rights shall be regulated by law.”

Third, this clause contradicts the Vienna Convention on the Law of Treaties, to which Vietnam has been a member since 2001. Article 27 of this Convention clearly stipulates: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

With the aforementioned analyses, it is clear that in the near future, Vietnamese legislators and jurists need to seriously reconsider the “constitutional reservation” method in national law.

Source: Luatkhoa Magazine

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