VIETNAM NATIONAL UNIVERSITY, HANOI SCHOOL OF LAW NGUYEN NGOC LAN PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR ETHNIC MINORITIES IN VIETNAM: REFLECTION ON THE M’NONG, MA AND EDE GROUPS IN DAKNONG PROVINCE MASTER THESIS SPECIALIZED IN HUMAN RIGHTS HANOI - 2019 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com VIETNAM NATIONAL UNIVERSITY, HANOI SCHOOL OF LAW NGUYEN NGOC LAN PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR ETHNIC MINORITIES IN VIETNAM: REFLECTION ON THE M’NONG, MA AND EDE GROUPS IN DAKNONG PROVINCE MASTER THESIS SPECIALIZED IN HUMAN RIGHTS Codes: 8380101.07 TECHNICAL ADVISOR: AP. VU CONG GIAO HANOI - 2019 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com CONFIRMATION I assure you this is my own research. The data and results presented in this thesis are honest and have not been published by anyone in any previous works or thesis. The information referenced in the thesis is fully and carefully cited by the author.
Master’s Student Nguyen Ngoc Lan LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com ACKNOWLEDGMENT While studying at the School of Law, Vietnam National University, Hanoi, I got many supports, advise and sharing from teachers and classmaters. With deep appreciation and gratitude, I would like to express my sincere thanks to the lecturers, who have been working for the Vietnam National University, Hanoi. Studying in here, we could have the best conditions to study and improve knowledge and skills. In particular, I would like to express my gratitude to the Associate Professor, Dr Vo Cong Giao, the teacher, the mentor who help and support me to complete my master‟s thesis on Human rights.
I am also would like to express my gratitude to Professor, Doctor of Science Dang Hung Vo - former Deputy Minister of the Natural Resources and Environment, who advice me about the background of Land governance and sharing me his policy report on Land law 2013; Associate Professor.Dr Phan Dang Nhat, who sharing with me the back ground of customary law and ethnic minorities; Writer Nguyen Ngoc who supported and advise me on the connection between land and “living space” for ethnic minorities. The last but not least, I would like to express my thank to my family, friends and colleagues for their support and help during the thesis. With the knowledge and skills that I have learned, I promise to apply and do things that are meaningful to society. Ha Noi, June, 2019 Nguyen Ngoc Lan LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com TABLE OF CONTENTS INTRODUCTION.
1 CHAPTER 1 THEORETICAL AND LEGAL ISSUES ON PROTECTION OF THE RIGHT TO THE CUSTOMARY LAND TENURE OF ETHNIC MINORITIES IN VIETNAM .The concept, the necessity, the meaning of protecting the right to customary land tenure of Vietnam ethnic minorities. The concept of customary land tenure of ethnic minorities. The concept of protection of the right to customary land tenure of ethnic minorities. The necessity and significance of protection of the customary land tenure for ethnic minorities .Subjects, content, methods and conditions to protection of the right to customary land tenure of ethnic minorities in Vietnam .Subject of the protection of the right to customary land tenure of ethnic minorities in Vietnam .The content and methods to protection of the right to customary land tenure for ethnic minorities .The conditions to protection of the right to customary land tenure for ethnic minorities .The current Vietnamese Legal framework on protection right to the customary land tenure for ethnic minorities .Overview of Vietnam’s current legal framework on land right for ethnic minorities .The current legal provisions of Vietnam related to protection of the right to customary land tenure for ethnic minorities .International laws and laws of some countries related to protection of the right to customary land tenure for ethnic minorities and requirements and values implications to Vietnam .International Laws related to protection of the right to customary land tenure for ethnic minorities and requirements for Vietnam.Laws of some countries related to the protection of the right to customary land tenure for ethnic minorities and values for Vietnam.
50 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com CHAPTER 2 THE CURRENT SITUATION OF PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR M’NONG, MA AND EDE ETHNIC MINORITIES IN DAK NONG PROVINCE .Natural, economic and social characteristics in Dak Nong Province affecting the protection of the right to customary land tenure for M‟Nong, Ma and Ede .Social – economic characteristics.The methods, contents and results in the protection of the right to customary land tenure for M’Nong, Ma and Ede in Dak Nong Province in the last five years.General evaluation and issues with protection of the right to customary land tenure for M‟Nong, Ma and Ede minorities in Dak Nong Province. 72 CHAPTER 3 VIEWPOINTS AND SOLUTIONS ON PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR M’NONG, MA AND EDE IN DAK NONG PROVINCE.Viewpoints to protect the right to customary land tenure for M‟Nong, Ma and Ede in Dak Nong Province .Solutions for protecting the right to customary land tenure for M‟Nong, Ma and Ede in Dak Nong Province .Solution on law and policies .Solutions on organizations, system and human resource. 96 LIST OF REFERENCES. 101 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com LIST OF ABBREVIATIONS Art Article ASEAN Association of Southeast Asian Nations CEMA The Committee for Ethnic Minority Affairs CIRD The Centre for Indigenous Research Knowledge and Development CIRUM Culture Identity and Resources Use management CODE Consulting and Development Institute CP Government CT The Direction/ Directive EASRD East Asia and Pacific Region EU Europen Union FAO The United Nation‟s Food and agriculture GDLA The General Department of Land Administrative ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IUCN International Union for Conservation of Nature MARD Ministry of Agricultural and Rural Development MoNRE Ministry of Natural Resources and Environment MRLG Mekong Region Land Governance ND Decree NGOs Non-Government Organizations NQ Resolution SFEs State Forest Enterprises SPERI Social Policy Ecology Research Institute TT Circular UBDT Ethnic Minority Committee UDHR The United Nations Declaration on human rights LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com UN The United Nations VGGT The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forest in the Context of National Food Security VNFOREST The Vietnam Administrative of Forestry VUSTA The Vietnam Union of Science and Technology Associations LUAN VAN CHAT LUONG download : add luanvanchat@agmail.
The necessary of the study The customary land tenure is one of the basic human rights which are recognized and protected by many countries‟ laws, as well as in important international human rights documents. In Vietnam, customary laws and tenure systems have developed over centuries under varying influence from the feudalist Nguyen Dynasty (1802 – 1883), the French colonial period (1858 – 1954). After 1960 in the North and 1975 in the South, state centralization and collectivization began to seriously influence customary management system. The collectivization period resulted in land being controlled by state cooperatives.
Large areas of forest land in the midland and upland regions of Northern and Southern Vietnam were assigned for forestry under the management of State Forest Enterprises (SFEs). This led to state policies overriding customary land management and resulted in a drastic decline in Vietnam‟s forest resources [67, page 2]. In Vietnam, in the first Constitution - Constitution 1946, the Democratic Republic of Vietnam concretized the Declaration of Independence on 2nd September 1945 on basic human rights, which are right to life, right to freedom and right to seeking happiness. The Constitution also affirms that everyone has their citizenship and freedom of residence.
Over time and through the development of the society, these freedoms rights at each period have been amended and supplemented to suit the new era, but still ensured to be regulated in the basic law, which is the Constitution and other relevant Laws. Article 22 of the Vietnamese Constitution 2013 regulates: “Everyone 1 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com has the right to inviolability of his or her home. No one may enter the home of another person without his or her consent”. Thus, from the early days of the establishment of the country, our state paid attention to and focused on ensuring the fundamental freedoms of citizens and expanding, further strengthening the social solidarity.
Since 2000, the economic and social context has changed, and policies on land and forest have changed accordingly. The Land Law 2003 stipulates that communities are to be allocated forest land for cultural purposes, specifically sacred forests or spiritual forests [52, page 1]. Use rights to community forests and land is recognized by the state, but customary tenure is not, which limits the role of the communities in forest management. Nevertheless, the new Forestry Law (2017) for the first time recognizes communities as forest owners and mentions the need to respect the “living space” and “traditional customs” of communities.
It also prioritizes the allocation of forest land to ethnic minorities. This reflects a growing recognition that it is necessary to broaden the forest use rights granted to communities. Most ethnic minorities in Vietnam have a special relationship with the land, the elements and other living creatures. This relationship goes beyond mere economic interests to become cultural and spiritual connections to the places they have inhabited for generations.
These connections have been diffused and nurtured from generation to generation and ethnic minorities still possess the belief that “Land is sacred, and land is life”. Recognition of traditional and customary land rights is the basic foundation for emancipation of ethnic minorities and their development – economically, politically and culturally. Their relationship with their land and resources is 2 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com deeply intertwined with their customs, culture, and political practices; it is the expression of their social wholeness. In their opinion, living, working and nurturing the land with full control and tenurial security is key to living fully and surviving as a people.
Taking land from them implies losing their distinct identity, a serious deprivation of their sense of what makes them unique. Recognition by legislation of their struggle for land and life as an expression of their self-determination to carve their own destinies is a basic prerequisite for the fulfilment of their rights and cultural development [55]. Rights to use forest resources, land of communities has to recognized by the state; traditional use rights had not been recognized. This limits the ability of the community to manage and use resources.
Although the Forestry Law has established a community of forest owners, showing respect for the living space and community customary practices, and prioritized the forest allocation to local ethnic minorities. Meanwhile, in fact, among ethnic minorities in Vietnam in general, and in Dak Nong Province in particular, people have been managing and using customary land to produce a lot of goods. Many National Assembly delegates think that it is necessary to expand the right to use the allocated land and forest area to the community, especially, laws need to recognize the traditional/customary forest land resources tenure by the community. It is important to clarify the definition of customary tenure, its influence on forest management, and how policies impact on customary tenure.
These points need to be analyzed from a theoretical and practical perspective to provide information and social critics to the Ethnic Council of the National 3 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com Assembly for review and verification of policies on customary tenure of ethnic communities in Vietnam. Therefore, in the framework of the master‟s thesis in the Law of Human Rights, the writer decided to choose topic “Protection of the rights to customary land tenure for ethnic minorities in Vietnam: Reflection on the M’nong, Ma and Ede groups in Dak Nong province”.