LEGAL PLURALISM AND HUMAN RIGHTS: A POSSIBLE APPROACH TO THE APPLICATION OF CUSTOMARY LAW IN VIETNAM Presented by: Phan Nhat Thanh.

LEGAL PLURALISM AND HUMAN RIGHTS:

A POSSIBLE APPROACH TO THE APPLICATION OF CUSTOMARY LAW IN VIETNAM

Presented by: Phan Nhat ThanhPresented 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

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

- 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”

- 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

- Customary law’s application should be in line with economic, political and social backgrounds of the state

- 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:

- Enhancing the legal values of customary law (recognized by national constitution and as part of the laws)

- Involving traditional leaders and judges of minority groups in state court if the case relates to Indigenous people

- 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

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