Law is Encoded in Language and Language is Ambiguous

The general view of law in contemporary Vietnam is a positivist one. Yet even positivists recognize that law is constructed by language. The language of the law is developed and specialized in its uses and meanings.5 Its formulation may take different forms, judicial decisions in common law systems, or guidance or circulars in that of Vietnam. Law is a product of language, but possessing some aspects of autonomy.6 It may be a kind of technical language, distinct from the technical language of physics or other fields.7 The meaning of the language of law is not solely in the words used but also in the structures which embody them.8 Determining the meaning of legal clauses depends on how the structure is understood including nominal character, binominal and multinominal expressions, initial case descriptions, qualifications, and syntactic discontinuities.9 The relationship between law and language is close and law and linguistics can both attract the same individual.10 Both language and law are constructed from words.

5

John Gibbons, „Introduction: Language Constructing Law‟ (3, 3 -4), Yon Maley, „The Language of the La w‟ (11, 11-3) in John Gibbons (ed), Language and the Law (Long man, 1994).

6

Frederick Schauer (ed), „Introduction‟ in Law and Language (Dart mouth, 1993) xi.

7

Mary Jane Morrison, „Excursions into the Nature of Legal Language‟ (1989) 37 Cleveland State Law Review 271, 272, 290-309, 318-36.

8

Oliver Wendell Holmes, „The Theory of Lega l Interpretation‟ (1899) 12(6) Harvard Law Review 417, 417- 20; Glanville L Willia ms, „Language and the Law‟ (1945) 61 Law Quarterly Review 71 & (1946) 62 Law Quarterly Review 387 in Frederic k F Schauer (ed),above n 6, 97, 179-83.

9 _{Vijay Bhatia, „Cognitive Structuring in Leg islative Provisions‟ in John Gibbons (ed), above n 5, 136, 154-5.} 10 _{Sanford Schane, Language and the Law (Continuu m, 2006) 1-3.}

Vietnamese, unlike English, is not one of the languages used in international law. International law has its own familiarity with the ambiguities of documents drafted in multiple languages which are equally valid.11 Linguistic differences have caused difficulties in the previous use of Chinese, French, and Soviet terms in Vietnamese law.12 An attempt to establish a vernacular legal lexicon to replace the confusion caused by Chinese-

Vietnamese legal terms proved problematic and the former terms were gradually reverted to.13 Soviet legal meanings were subsequently grafted into them.14 Doi Moi and its legal terms have added to the problems requiring the translation of concepts in the absence of Vietnamese expressions.15 Underlying the new meanings of other recycled words are their older meanings.16 Even commonly used words may be ambiguous in Vietnamese.17

Observations are relevant to analysing the impact of this complexity. Hart recognized that law is encoded in words.18 He noted that words may have a core meaning that many agree on.19 They may have a penumbra of meaning which creates ambiguity.20 Demonstrating the relevance of linguistic philosophy to the philosophy of law and jurisprudence, he wrote:

11

See Vienna Convention of the Law of Treaties 1969 art 33. See a lso Mark N Rosenberg, „The Vienna Convention: Uniformity in Interpretation for Gap -Filling - An Analysis and Application‟ (1992) 20 Australian Business Law Review 442; Gillian White, „Treaty Interpretation: The Vienna Convention „Code‟ as Applied by the WTO Judiciary‟ (1999) 20 Australian Year Book of International Law 319.

12

John Gillespie, Transplanting Commercial Law Reform: Developing a ‘Rule of Law’ in Vietnam (Ashgate, 2006) 137-9. 13 Gillespie, ibid. 14 Ibid. 15 _Ibid. 16 _Ibid.

17 _{One typical instance is to be found in the greatest literary work in Vietnamese, the three centuries old,} Truyện Kiều [The Tale of Kieu] by Nguyễn Du. He used the word „ngài‟ as a noun meaning something with a beautiful quality but it has been interpreted very diffe rently. It is used to describe the beauty of the figure or the body shape of Thúy Kiều‟s the younger sister, Thúy Vân. It is also used to describe the eyebrows of the hero, Từ Hải, to depict him as very heroic and manly. At the same time, it may be argued that the word is used, in both cases, only to describe the eyebrows of those two characters. See: Nguyễn Du, Truyện Kiều [The Tale of Kieu], verses 20-25 and 2270-2275 <http://www.informat ik.uni-leip zig.de/~duc/sach/kieu/> (visited 3 March 2009). Such a way of interpreting the word is used by Vietna m‟s a fa mous scholar, Đào Duy Anh, who wrote Từ Điển Truyện Kiều [A Dict ionary of The Ta le of Kieu] (Socia l Scientific Publishing House, 1974) as the only annotations about The Tale of Kieu insofar.

18

HLA Hart, „Essay 1: Definit ion and Theory in Jurisprudence‟ (first published 1953) 21-48 in Essays in Jurisprudence and Philosophy (Cla rendon Press, 1983). See a lso in this book „Essay 3: Proble ms of the Philosophy of Law‟ (first published 1967) 89-98.

19 _{Hart, ib id.} 20 _Ibid.

Questions such as … „What is law?‟… have great ambiguity. The same form of words may be used to demand a defin ition or the cause or the purpose or the justification or t he orig in of a legal or politica l institution.21

As a consequence, judges and other officials using law have discretion. In Hart‟s analysis, there are two kinds of legal rules and ambiguity can occur in both.22 They are the primary rules which are binding on individuals and the secondary rules or rules of recognition which are used by law officials to read whether a primary rule is binding law.23 Where the primary rules are not sufficiently clear or intelligible, there may be uncertainty about the obligations which they impose.24 At the same time, vagueness or ambiguity in the secondary rules may cause uncertainty over whether powers have been conferred on individuals in accordance with statutory requirements, whether legislators have the

authority to change laws, or whether courts have jurisdiction over disputes concerning the interpretation and application of laws.25 Hart also argued that by interpreting vague or indeterminate laws, judges may make new law.26

Such ambiguities are prevalent in Vietnamese law.27 There are principles for the interpretation of law in Vietnam, including those applied to interpreting the terms and

21

HLA Hart, „Essay 1: Definit ion and Theory in Jurisprudence‟, above n 18, 21.

22

HLA Hart, „La w as the Union of Primary and Secondary Rules ‟ (77-96), „The Foundation of a Legal System‟ (97-113), „Formalis m and Ru le-Scepticis m‟ (114-150) in The Concept of Law (Oxford University Press, 1961). A certain analysis of Hart‟s primary rules and secondary rules see, eg, Austin Chinhengo,

Essential Jurisprudence (Cavendish Publishing, 2000) 51-5.

23 _{Hart, ib id.} 24 _Ibid. 25 _Ibid. 26 Ibid. 27

During the period in which the Civ il Code 1995 was in force, there was considerable debate over one of its provisions for courts declaring a person as missing or dead. The issue was whether a person who had

disappeared from their place(s) of residence for a certain period could be declared dead. The phrase „biệt tích‟ (disappearing) was used. This phrase is used, both in daily life and dictionaries, to refer to a person who has disappeared without leaving any single trace but who might return home if still a live. The la w could be taken to mean that they were dead when they might only be missing. However, the purpose of the law was taken into account in interpreting it, that the provision was intended to be used to declare people dead. There were diffe rent periods for matters which had diffe rent consequences including management of p roperty, marital and family re lationships and inheritance and final property settlements. See: Civil Code 1995 arts 84-93 (Civil Code 2005 arts 74-83 currently).

conditions of a civil contract or the words used in a will.28 The circumstance leading to the interpretation of a contract with vague terms may well be similar to how uncertainty is produced in other jurisdictions. The United States have well-known cases about whether „chicken‟ includes „frozen eviscerated chickens‟ or „dressed and eviscerated chickens‟ to be broiled or fried or whether these chickens may be „manufactured products‟.29

These cases show the ambiguity of language. That ambiguity may be increased where there are translations from English, the most commonly used international commercial language, into Vietnamese. The documents for the WTO accession and the TRIPs implementation are in English. The two languages create further ambiguity in translation. English is complex and legal English is accepted as difficult to comprehend even for native speakers.30 The problem for Vietnam is compounded by English being used very little in administration or education. There is also little literature on intellectual property laws published in English in Vietnam which has had a negative effect on foreign entrepreneurs in the country.31

The protection of intellectual property under TRIPs‟ standards in the 1995 application for accession to the WTO, or the global multilateral trading system,32 started at a common point for all legal major initiatives in Vietnam in the agenda of the ruling party. After launching Doi Moi under the Sixth National Congress (December 1986) of the Communist Party of Vietnam (CPV), the policy of „making friends with all‟ and „connecting the internal market with the world‟s other markets‟ was subsequently included in the Seventh National Congress (June 1991).33 Under the Eighth National Congress (June 1996)

resolutions, „to pressingly and firmly carry out negotiations on a free trade agreement with

28

Civil Code 2005 arts 409 & 673 respectively.

29

Schane, above n 10, 12-53.

30

Ibid, 2-3.

31

Amanda J Mc Bratney, „More Legislative Traffic on the „Doi Moi‟ Superhighway : Technology Transfer, IP and Co mpetition Laws in Vietnam‟ (2003) 11(2) Asia Pacific Law Review 189, 189.

32

This is discussed in the next chapter, or Chapter 3, on loca lizing the TRIPs Agree ment in Vietna m.

33

Hùng Vũ, „Chủ trương, chính sách của Đảng và Nhà nước‟ [Directions and Polic ies of the Party and the State] Báo Điện tử Đảng Công sản Việt Nam [On line Ne wspaper of CPV] <http://www.cpv.org.vn> (visited 20 Septe mber 2011).

America, to join APEC and the WTO‟ were adopted.34

Five years later, the Political Bureau of the CPV (Politburo) formulated Solution 07-NQ/TW on 27 November 2001 on

International Economic Integration35 which proposed „actively negotiating to join the WTO‟ in the nine specifically determined tasks in Section II.36

The Prime Minister‟s Decision 37/2002/QĐ-TTg of 14 March 2002 on the Government‟s Action Program for Performing the Politburo‟s Solution 07-NQ/TW was adopted on that basis.37

All of the rest of course of accession to the WTO, conducted by the government, and the process of making domestic laws in conformity with the WTO‟s binding agreements, including TRIPs, taken by the National Assembly,38 follows these first steps.

Vietnamese culture and society meant that the country as a whole had little familiarity and experience with intellectual property protection, particularly in the forms required to meet the standards of the WTO and TRIPs.39 The status of being a developing country in

transition from a centrally-planned socialist economy with low per capita income and a low level of technological development added to the difficulties of Vietnamese policy and law makers in adapting law and practices to meet these standards.

The National Assembly legislated on a number of intellectual property areas in wide and general terms, devoid of details which added to the problems and discretion which the resulting ambiguities gave to administrative officers and the judiciary. The established system of guidance on implementing laws was used to issue ordinances, decrees, directives, and circulars by state organs, including the Supreme People‟s Court, to reduce the

ambiguity. The greatest leeways produced by the ambiguities were enjoyed by the 34 Ibid. 35 Ibid. 36

„Nghị quyết của Bộ Ch ính trị số 07-NQ/TW về “Hộ i nhập kinh tế quốc tế” ngày 27 tháng 11 nă m 2001‟ [Solution 07-NQ/TW of 27 November 2001 of the Politburo on International Economic Integration], Online Newspaper of CPV, above n 33.

37

See above n 33.

38

This is discussed in the next chapter, or Chapter 3, on internalizing the TRIPs Agreement in Vietna m.

39

This is below discussed in the next section, or Section 2, of this chapter. See also Dang T H Thuy, „T he Protection of Well-Known Marks in Vietna m‟ in Christopher Heath and Kung-Chung Liu (eds), The Protection of Well-Known Mark s in Asia (Klu wer La w International, 2000) 135, 146-7.

administrative officers because of the close way the judiciary observes this guidance once issued.40 Those guidelines are suggested to be so extensive that they inhibit judicial reasoning and prevent the development of secondary source of law.41

Similar problems can be seen in transposing international law into Vietnamese law in other areas. The problem of ambiguous language can occur in all international agreements and in implementing them in all national jurisdictions. Encoded in languages authenticating the WTO Agreement, TRIPs itself gave rise to these problems.

There are commonly established practices for selecting the language used in international organizations and agreements. The largest international organization, the United Nations, uses six official languages: Arabic, Chinese, English, French, Russian, and Spanish. It has called for more efforts to create more material in languages other than English to fill the linguistic gaps left by the extensive use of English.42 The 1969 Vienna Convention on the Law of Treaties is authentically created in Chinese, English, French, Russian, and

Spanish.43 The WTO Agreement is presented „in a single copy, in English, French and Spanish languages‟ with each being authentic.44

The TRIPs Agreement has no similar statement. As one of the integral and annexed agreements to the WTO Agreement, it may be implied that the version in each of the three languages is similarly authentic. Yet, as with the United Nations, English is the most commonly used language including in global trade and commerce. Similarly with the World Intellectual Property Organiza tion (WIPO) in the context of WTO/TRIPs,45 it is much easier to look for or retrieve the text on international

40 Gillespie, above n 12, 176, 217, 221-2. 41 Ibid. 42

Language Parity, Implications of New, Traditional Technologies, Platforms on Freedom o f In formation Dominate Debate in Committee on Information, UN Doc PI/1931 (27 April 2010)

<http://www.un.org/News/Press/docs/2010/pi1931.doc.htm>.

43

Vienna Convention on the Law of Treaties 1969 art 85.

44

WTO Agreement the last sentence immediate ly after a rt XVI(6).

45

See, eg, WTO Agree ment art V; TRIPs Agreement prea mb le para 8 and art 68. See a lso Agreement between the World Intellectual Property Organization and the World Trade Organization

and national intellectual property laws in English than in French or Spanish, though they may appear on part of the website.46

The uncertain meanings of words used in TRIPs can give WTO members, including Vietnam, leeways in creating local laws. For example, members are permitted to exclude from patentable subject matter „diagnostic, therapeutic and surgical methods for the treatment of humans or animals‟47

and „plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non- biological and microbiological processes‟.48

There is no definition of these words or

phrases. Members are concurrently obliged to protect plant varieties „either by patents or by an effective sui generis system or by any combination thereof‟49 without determining what the „effectiveness‟ of such a sui generis system may mean. There have been considerable differences between member states in applying these provisions.50