Transcript customary law theory and practice in vietnam

LEGAL PLURALISM AND HUMAN RIGHTS:
A POSSIBLE APPROACH TO THE APPLICATION OF
CUSTOMARY LAW IN VIETNAM
Presented by: Phan Nhat Thanh
CONTENT
 Introduction
 Legal pluralism
1. The presentence of more than one legal order in a social field
2. Centralist paradigm of law and pluralist paradigm of law
3. Customary law issue on legal pluralism
4. Vietnam and the issue of legal pluralism
 Human rights towards customary law
1. International treaties and instruments
2. The impacts of human rights on customary law
3. The obstacles of customary law to human rights
4. Conflict solution: suggestions for Vietnam
 Conclusion
I. INTRODUCTION
SOCIETY
 Asian country, lying on the Indochinese peninsula and subject to many waves of
migration
 Population of over 86 million

Multi-ethnic country (54 ethnic groups) with many religions (six main religions and
many others from ethnic minorities)
ECONOMIC BACKGROUND
 A developing country
 Numerous complex and rapid changes in socio-economic and political field
 Before 1986 : A centrally planned economy (State sector and co-operative sector)
 After 1986: A multi-sectored economy – ‘socialist oriented market economy’
(state-owned enterprise, collective economic sector, individual sector, private
capitalist economic sector and state capitalist sector)
The diversity of economic sectors not only changes the state economy and social
life but also leads to change in Vietnam’s legal system in order to meet the
requirements of socio-economic renovation.
LEGAL SYSTEM
 Sources of law
 Legal reform
 Shortcomings and weaknesses
– Conflicts between legal concepts
– Ineffectiveness in law promulgation and implementation
– Lack of comprehension of the legal framework
II. LEGAL PLURALISM
 The presence of more than one legal order in a social field
(Supporters: John Griffiths, Masaji Chiba, Sally Falk Moore, Sally Engle Merry)
CENTRALIST PARADIGM OF LAW AND PLURALIST
PARADIGM OF LAW
Legal centralism
 Laws are considered as normative norms recognized by the state
 The state law is the only real law;
 The state law is the best way of obtaining social goods; and
 The state law occupies the supreme position in the whole of norms while other
normative orders are subordinate to state law
CENTRALIST PARADIGM OF LAW AND PLURALIST
PARADIGM OF LAW
Legal pluralism

“Law in many rooms”
 State law is one mode of legal pluralism
 Legal pluralism connotes customary and traditional law
VIETNAM AND THE ISSUE OF LEGAL PLURALISM
 State law applied solely
 Seeking for customary law application because:
– The development of society requests a diversification of sources of law to adjust
social relations
– There is a lack of the consistency of the legal system
– Most disputes of minority groups are mainly settled by customs, village
conventions and Indigenous customary law
III. HUMAN RIGHTS TOWARDS CUSTOMARY LAW
INTERNATIONAL TREATIES AND INSTRUMENTS
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Charter of the United Nations (1945)
Universal Declaration of Human rights (1948)
International Covenant on Civil and Political Rights (1966)
International Covenant on Economic, Social and Cultural Rights (1966)
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or
Linguistic Minorities (1993)
Bangkok Declaration (1993)
Vienna Declaration on Human rights (1993)
International Labour Organization Convention 107 (1957)
International Labour Organization Convention 169 (1989)
THE IMPACTS OF HUMAN RIGHTS ON CUSTOMARY LAW
 Human rights require that the application of customary law is as one of the human
rights standards
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Chosen by ethnic groups, customary law’s application accords with purposes and
principles of the Charter of the United Nations: “respect for human rights and for
fundamental freedoms for all”
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According to many international treaties, indigenous people have the rights to the
full recognition their customs
(Declaration on the Rights of Indigenous Peoples (Articles 11, 12, 27),
International Labour Organization Convention 107 (Articles 1, 7, and 8),
International Labour Organization Convention 169 (Article 8), Declaration on
the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities (Article 2))
THE IMPACTS OF HUMAN RIGHTS ON CUSTOMARY LAW
(cont.)
 Cultural preservation and respect for cultural identity
 Benefits of ethnic communities and national development
- Ethnic communities: customary law is essential foundation for adjusting
individual’s conducts
- National development: customary law contributes to expanding democracy and
protecting human rights for ethnic groups and Indigenous people
THE OBSTACLES OF CUSTOMARY LAW TO HUMAN
RIGHTS
 Different laws for people with regard to the same issues or disputes
- Causing inequality in society
- Leading difficulties in social management
 Public interests vs. Individual benefits: law is for nation, even more for public
interests and for common society while human rights think highly of individuals
 Class, race and gender discrimination
 Unwritten/uncodified that often generates inconsistent and confusing outcomes when
applied
THE RECOGNITION OF CUSTOMARY LAW AS AN
INSTRUMENT TO CONTRIBUTE HUMAN RIGHTS
PROTECTION IN VIETNAM
 Preservation and protection of minorities’ traditional values
 A ‘special care’ in need of ‘special care
 Prevention of unequal status between area and communities
CONFLICT SOLUTION: SUGGESTIONS FOR VIETNAM
 Defining precisely individual interests and public benefits to apply appropriately
dispute settlement methods
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Customary law’s application should be in line with economic, political and social
backgrounds of the state
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There is a need of special care for vulnerable groups such as women or children
CONFLICT SOLUTION: SUGGESTIONS FOR VIETNAM
(Cont.)
 Creating the balance between human rights and customary law application by:
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Enhancing the legal values of customary law (recognized by national constitution
and as part of the laws)
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Involving traditional leaders and judges of minority groups in state court if the
case relates to Indigenous people
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Having supervision mechanism for customary law’s application
CONFLICT SOLUTION: SUGGESTIONS FOR VIETNAM
(Cont.)
 Seriously considering cultural issues
 Using customary law as a legal instrument (a justice tool) rather than a political
instrument for political purpose
Thank you
Question and Answer