INTRODUCTION
Communities effectively manage natural resources by utilizing customary law, as recognized in Vietnam's Law on Forest Protection and Development This law emphasizes the importance of village populations and ethnic minority communities, prioritizing the assignment of forests that align with their customs and traditions (Art 20(2)(a), Decree N° 23/2006).
Customary laws are vital among ethnic communities living harmoniously with forests, guiding social relations and preserving traditions, festivals, beliefs, and cultivation practices accumulated over centuries These laws are voluntarily followed by indigenous people, regardless of formal recognition by the state, and establish mandatory rules regulating members' behaviors and actions within the community Ngo Duc Thinh, a prominent researcher in folk culture, describes customary laws as reflections of behavioral experiences with society and the natural environment, passed down through generations via social and productive practices.
Vietnam is a diverse multi-ethnic country with 54 ethnic groups, each unique in language, lifestyle, and religion, often living according to their own cultural and customary laws Since the 1990s, the Vietnamese government has increasingly recognized the importance of customary law, especially amid social and economic shifts driven by the Doi Moi policy launched in 1986 Transitioning from a centrally planned economy to a multi-sector system, Vietnam has experienced significant social and legal changes affecting inheritance, marriage, land, and civil transactions As state laws struggle to cover emerging social relations, customary law plays a vital role in regulating aspects like land management, property disputes, marriage, inheritance, and dispute resolution within indigenous communities Customary law not only provides rules for social interactions but also offers mutually agreed dispute settlement methods, making it an essential source of legal and social regulation in Vietnam's evolving legal landscape.
1 See more details in Chapter 5 ‗The Vietnamese Legal System
2 Duy Nghia Pham, 'Confucianism and the Conception of the Law in Vietnam' in John Gillespie and Pip Nicholson (eds), Asian
The book "Socialism & Legal Change: The Dynamics of Vietnamese and Chinese Reform" (ANU E Press, 2005) highlights key developments in legal reforms, including two significant conferences on Customary Law held in Dak Lak Province in 1997 and Lao Cai Province in 1999 These conferences revealed that researchers widely agree that customary law coexists with state law, regardless of whether the state officially recognizes it.
The Justice Department of DakLak Province highlighted the significance of customary law in their 1997 presentation, emphasizing its relationship with current state laws Their speech, titled "Speech of the Justice Department of DakLak Province," addressed the interaction between traditional practices and formal legal systems, underscoring the importance of understanding and integrating customary law within modern legal frameworks Additionally, the work by So Tu Phap Tinh Lam Dong further explores this relationship, providing detailed analysis on the coexistence and conflicts between customary and state laws in DakLak.
3 Huy Tuan Hoang, 'Decentralization and Local Politics of Forest Management in Vietnam: A Case Study of Cơ Tu Ethnic Community'
4 Quoc Anh Tran, above n 713, 101–6; Xuan Tien Ha, 'Tap Quan va Thuc Tien Xet Xu Cac Vu An Dan Su cua Toa An Nhan Dan Tinh
In Lao Cai Province, customary law plays a vital role as the primary method for resolving disputes within ethnic minority communities, reflecting deeply rooted cultural practices However, the relationship between indigenous peoples and forests diverges significantly from government-driven policies and programs, which often adopt a top-down approach to forest management These policies frequently overlook local customs and community needs, leading to conflicts that undermine the rights of ethnic minorities to self-determination and cultural preservation Consequently, such top-down initiatives can marginalize indigenous peoples, making them outsiders within their own development processes.
Recent studies have extensively analyzed the customary laws of various ethnic groups, including the Ede (11 chapters, 236 articles), Mnong (8 chapters, 215 articles), Xre (9 chapters, 92 articles), Ma (13 chapters, 68 articles), Stieng (4 chapters), and Jrai (15 chapters) These studies enhance our understanding of how customary laws contribute to cultural preservation and reflect the history of these communities Moreover, customary law plays a vital role in forest management and conservation efforts among ethnic groups such as the Cống, highlighting its importance in sustainable environmental practices and indigenous governance.
The small ethnic groups in Vietnam, including Cơ Tu, Khơ Mú, and other minority communities, remain underrepresented with limited detailed research To enhance understanding, a field study titled “Customary Law of the Khơ Mú Community in Forest Protection, Co Cuom Village, Pa Khoang Commune” was conducted, providing valuable insights into their traditional practices and indigenous knowledge related to forest conservation.
5 Ngoc Trach Nguyen, 'Mot Vai Van De Luat Tuc va Van Dung Luat Tuc Tren Co So Phap Luat Thong Qua Phong Trao Xay Dung Nep
Song Van Hoa discusses the cultural practices of Gia Dinh Van Hoa in the mountainous region of Quang Ngai Province, highlighting the importance of integrating traditional customs with modern legal frameworks The paper emphasizes how customary law is applied in conjunction with state law to promote cultural development and strengthen family and community life in highland areas It explores the movement towards building a cultural lifestyle that respects indigenous traditions while aligning with national legal standards These insights, presented at the conference on the relationship between customary and state law in Lao Cai in 1999, underscore the significance of preserving local cultural identities within the legal system.
6 Nha Y, Loc Nguyen and Phi Y, 'Giai Quyet Tranh Chap Dan Su Trong Luat Tuc Ê Đê — M'Nông' (2001) 2
Tap Chi Nghien Cuu Lap Phap 51, 51–8 [Trans: Nha Y, Loc Nguyen and Phi Y, ‗Civil Dispute Settlement in Customary Law of Ê Đê – M‗Nông (2001) 2 Journal of Legal Studies].
GOAL AND OBJECTIVES
This project aims to enhance understanding of the role of customary law in forest protection among an ethnic minority group in Co Cượm village, Pá Khoang commune, Dien Bien province The study investigates how traditional legal practices influence sustainable forest management and conservation efforts within the community By examining the interplay between customary laws and environmental preservation, the project seeks to identify effective natural resource governance strategies Ultimately, this research contributes to developing culturally appropriate policies that support forest protection and ethnic minority rights in the region.
1 To identify customary law in forest protection of Kho mu community
2 To assess current situation of applying of Kho mu customary law in forest protection
3 To give recommendation for enhancing the role of Kho mu customary law
METHODOLOGIES
Study site
Figure 3.1 Pá Khoang commune location
Pá Khoang commune is situated in the outskirts of Dien Bien district, approximately 40 km from Dien Bien Phu, the capital of Dien Bien province This mountainous area is bordered by Armor Na Swallow to the north, Pu Nhi commune to the south, Armor Muong Phang to the east, and Ta Leng and Thanh Minh communes to the west Located at an altitude ranging from 880 to 1,635 meters above sea level, Pá Khoang experiences a tropical monsoon climate with distinct wet and dry seasons—rainy from April to October and dry from November to March The region receives an average annual rainfall that supports its diverse ecosystem and agricultural activities.
Pa Khoang is a water-rich area characterized by abundant streams and rivulets, with an average temperature of 21.5 to 22.5°C, and annual rainfall ranging from 1600 to 2000 mm The region's largest water reservoir, Pa Khoang, holds 40 million cubic meters of water, supporting the 1200-hectare Muong Thanh rice fields that supply both domestic and international markets, making the area vital to the local economy With predominantly alluvial, black, and red soils, Pa Khoang is ideal for cultivating industrial crops, short-term plants, and raising livestock such as pigs and buffalo However, recent livestock diseases have caused declines in populations of chickens and ducks The ethnically diverse community includes Thái, Hmong, Kinh, and Kho Mu groups, each with unique languages, customs, and living traditions The Kho Mu people have historically developed sophisticated irrigation systems—canals, dams, and waterwheels—that support wet rice cultivation, which remains the main crop; they also grow maize, bamboo, cassava, soybeans, and peanuts to ensure food security Many households maintain fishponds, but despite the variety of crops, the average land area used per person (about 0.1 ha) suggests that most households experience food shortages lasting one to two months annually.
Since 2010, Pá Khoang has been classified as a poor commune in Dien Bien province, with 21.1% of households living below the poverty line, prompting government support through poverty reduction programs Despite infrastructure investments such as power lines, roads, water systems, schools, and healthcare facilities, development remains limited, with only about 15% access to electricity and poor-quality dirt roads that are unusable in rainy seasons Water sources are polluted and scarce, leading residents to dig wells, while a government-operated gravity water system now serves 36% of the population Historically significant as the headquarters of the Dien Bien Phu campaign, Pá Khoang is experiencing a tourism boom that boosts the local economy through activities like selling medicinal herbs Increased tourism and government assistance have improved access to essential services like water, healthcare, and transportation, resulting in better living standards, income growth, and the emergence of small service sector businesses However, development has also heightened pressure on local resources and the environment, exemplified by illegal sand exploitation since 2008, involving around 22 unlicensed stations that cause soil erosion, floods, and loss of aquatic biodiversity.
3.2 Overview the Kho mu in Vietnam
The Kho Mu ethnic group belongs to the Mon-Khmer language family and is believed to be the original inhabitants of northern Laos for the past four centuries Today, approximately 900,000 Kho Mu people reside worldwide, with the majority in Laos (around 600,000), making them the second-largest ethnic group in the country They also have communities in Vietnam, Thailand, China, and the United States In Laos, the Kho Mu predominantly settle in Luang Prabang and Xieng Khoang provinces Traditionally, the Kho Mu are upland rice cultivators practicing slash-and-burn agriculture with a fallow period that has decreased from around 15 years in the past to three to five years currently Besides rice farming, they engage in fishing and other subsistence activities to sustain their livelihood.
The Khmu people primarily rely on hunting and gathering as key components of their household economy They are also renowned for their basket weaving, a skill predominantly performed by men, which serves both domestic purposes and intercultural exchanges with other ethnic groups Culturally, the Khmu practice animism, with a strong emphasis on taboo; villagers believe that violating these sacred prohibitions can lead to spiritual vengeance, reinforcing their spiritual and cultural identity.
The 1999 Vietnam population census reports approximately 56,542 Kho Mu ethnic people residing mainly in six border provinces in northwest Vietnam As of 1989, they ranked as the 23rd among Vietnam’s officially recognized ethnic groups.
The Kho Mu in Vietnam are closely linked to the Thai in terms of residence patterns and cultural practices, reflecting significant cultural connections (Chung, 2005; Son, 2006) Their origins in Vietnam remain a subject of debate, with some Vietnamese scholars suggesting that they migrated to present-day Vietnam during ancient times.
The origins of the Khmu people are subject to historical debate, with some scholars suggesting they migrated from their original land in Laos after it was conquered by Thai or Yunnan Chinese forces 200 years ago, while others believe they are indigenous to northwest Vietnam Despite these differing views, there is a consensus that the Khmu share strong cultural ties with the Thai people Historically, before 1954, the Khmu held a dependent relationship with neighboring Thai communities, often needing to rent cultivation land from them Both Thai and Khmu legends highlight a shared origin, claiming that their ancestors were born from the same cucurbit, symbolizing a deep-rooted cultural connection.
The traditional livelihood of the Kho Mu people in Vietnam relies heavily on natural resources, including shifting cultivation, hunting, gathering, fishing, and the production of basket ware for trade with other ethnic groups Individual households serve as the fundamental economic units, engaging in both household-based activities and collective labor exchanges at the beginning and end of crop cycles Within families, a clear division of labor exists, with men typically responsible for strenuous tasks such as clearing rice fields, reflecting their central role in agricultural work.
The Khmu people traditionally engage in farming, hunting, and ritual practices, with women primarily responsible for domestic tasks such as cooking and harvesting Their traditional homes are built from bamboo with thatch roofs, although such houses are now rare Unlike other groups, Khmu weaving crafts are either underdeveloped or have faded long ago, with most traditional costumes being purchased from neighboring ethnic groups, especially the Thai Social organization centers around the village, called “cung,” which comprises several clans; households of the same totemic clan tend to live close to each other Elders and kin-heads manage social affairs internally and externally Marital practices include temporary matrilocal residence, where the husband resides in the wife’s house for a period after marriage, and one-way marriages are traditional The Khmu are animistic, with rituals linked to their agricultural lifestyle, such as planting and harvesting ceremonies The most communal religious event is the village ghost ritual (hroi cung), where every household participates in praying for good luck in the coming year.
For this research, interviews and focus groups are two most useful tools of primary data collection
Before conducting fieldwork, I reviewed secondary data from various sources, including the Forestry University of Vietnam, the Department of Forestry Development Dien Bien, the Department of Agriculture and Rural Development Dien Bien, and the Vietnam Bureau of Statistics, to gain a comprehensive understanding of the study site, local community characteristics, and research objectives I identified key themes from these documents to guide my investigation and planned to compare these insights with on-the-ground realities during the field visit.
A survey was conducted using paper-and-pencil questionnaires among 30 randomly selected households out of 49 in the village to assess villagers' awareness of the role of customary law in their lives The questions explored their perspectives on the importance of customary law in forest protection, their willingness to maintain traditional practices, and their compliance with customary regulations regarding forest conservation The survey also investigated how villagers perceive the preservation of their customary laws, their knowledge of state laws, and their understanding of which legal system to follow when conflicts arise between customary law and state law The results provide insights into the villagers’ attitudes toward legal pluralism and the potential conflicts or harmony between customary and state legal frameworks in forest management.
I conducted two types of focus groups: one with Kho Mu village leaders, clan leaders, and elders to gain in-depth insights into their beliefs, perceptions of customary law, and attitudes toward its application through commune conventions; the other with forest rangers, FMB, and CPC staff to discuss their views on the effectiveness of integrating customary law for forest protection Scheduling meetings was challenging, requiring me to stay in the village for a week to build rapport with villagers and have individual meals with village and clan leaders The second group was highly active, mainly available from Monday to Wednesday mornings, as they left their offices early in the afternoons While some older participants may have experienced memory bias, all 30 respondents provided clear, descriptive information about customary law.
The face-to-face interview method was ideal for this research, allowing me to elicit detailed responses and better understand participants' perspectives I conducted 30-minute interviews with key figures such as the Director of FMB and the Vice Chairman of CPC, individuals with in-depth knowledge of the current situation and extensive experience working with ethnic minority groups This approach provided valuable insights into the challenges and opportunities faced by these communities.
Methods
Customary law, as understood by Vietnamese scholars, encompasses a broader scope than Western legal concepts, regulating not only traditional practices but also morality and behavior Unlike Western law, adat in Indonesia governs law, morality, conduct, character, and behavior, reflecting its comprehensive role in society (Nhat, 2001) Nhat emphasizes that customary law among ethnic minority groups is created collectively by all members of the community, serving as an intellectual product of multiple generations, continuously renewed to meet communal needs Unlike state or ruling class law, which is enacted by representatives for their interests, customary law is deeply rooted in the cultural values and collective consciousness of the people, promoting social stability and peace Thinh (2000) categorizes existing forms of customary law into three distinct types, illustrating its diversity and significance in contemporary society.
- Customary law codified in oral poetry
- Customary law recorded in written forms
- Customary law realised in social practice
4.2 Customary law and State law
There is a Vietnamese saying, which reflects popular relationship between two forms of law in the past and partly at the moment The saying ―phep vua thua le lang‖ is
LITERATURAL REVIEW
Concepts
Vietnamese scholars describe customary law as broader than Western legal concepts, encompassing traditional practices, morality, and behavior Recent research into adat in Indonesia highlights that, unlike Western law, adat governs not only legal matters but also morality, conduct, character, and social behavior Nhat (2001) notes that customary law among ethnic minority groups is created collectively by the community, representing an accumulated intellectual product of many generations, adapted over time to meet communal needs Unlike state or ruling class law, customary law is deeply rooted in the community’s culture, serving as a stable foundation for social harmony Thinh (2000) identifies three distinct types of customary law that currently exist, illustrating its diversity and enduring significance in maintaining social stability.
- Customary law codified in oral poetry
- Customary law recorded in written forms
- Customary law realised in social practice.
Customary law and State law
A Vietnamese saying, "phep vua thua le lang," reflects the traditional relationship between royal laws and local village regulations, highlighting the historical and ongoing influence of hierarchical legal systems in Vietnam Different scholars have translated this saying to emphasize that "the king's legislation is subordinate to village regulations" (Tri, 2000: 93), illustrating the historically embedded hierarchy where local community rules often hold sway over national edicts.
The saying “the king’s rules are defeated by village customs” highlights the influence of local village regulations over feudal authority within Viet communities, reflecting the strong role of customary law Customary law possesses unique strengths that statutory laws often cannot replicate, offering vital supplementary functions alongside State laws While State laws aim for universality, they cannot anticipate every specific situation, making customary law essential for addressing localized needs and circumstances The evolution of customary laws occurs naturally to adapt to specific contexts, influenced by both community needs and the acceptance of the ruling government, ensuring their continued relevance and effectiveness.
The importance of customary law in rural development
Traditional norms can act as both obstacles to social and technological change and as stabilizers during periods of social disorganization, as noted by Hoselitz (1961) Customary law plays a vital role in reflecting and preserving a community’s long-standing beliefs and practices peacefully, fostering harmony among community members and with nature through spiritual invocations (Nhat, 2001) It influences various aspects of life by serving not only as advice but also as an organizational mechanism that trains, encourages, rewards, or punishes individuals, making it effective in education and social management Thinh emphasizes that the continuation and mobilization of traditional law depend on principles like “gan duc khoi trong,” which involve highlighting positive aspects and eliminating negatives unsuitable for contemporary society (2000) Overall, customary law, rooted in the community’s identity, works alongside statutory law to promote active local participation in development decisions, making its preservation and enhancement crucial for sustainable rural growth.
RESULTS
Description of Kho mu community
The Kho Mu people have been residing here since 1954, showcasing their deep-rooted presence in the region They heroically participated in the Vietnamese resistance movement, fighting against French colonialists for nine years following the Appeal for National Resistance Their resilient spirit continued as they battled American forces for nearly 21 years, ultimately contributing to the establishment of peace in Vietnam.
Today, many Kho Mu communities settle based on governmental policies and primarily sustain themselves through cultivating terraced fields, gathering fruit, and hunting wild animals They diversify their livelihoods by raising livestock and poultry, which helps them avoid poverty, provides transportation, food, and supports religious practices The Kho Mu people speak a language belonging to the Mon-Khmer language group, reflecting their rich cultural heritage Additionally, basketry is a highly developed craft among the Kho Mu, showcasing their traditional skills Co Cượm village is a notable hub where most Kho Mu households are concentrated, preserving their unique cultural identity.
Co Cượm, which means "Chinese black olive" in Thai, is named after a historic, centuries-old tree with a diameter of two meters that stands in the area This remarkable tree is believed to host a benevolent spirit, bringing good fortune and positive energy to the local villagers The community comprises 49 households and maintains 231 household registers, reflecting a close-knit and culturally rich neighborhood anchored around this sacred tree.
Customary law in forest protection of the Kho mu
The Kho Mu people practice animism, believing that everything has a soul, including various types of spirits known as hrôi, with deities of heaven (hrôi Ivang), earth (hrôi ptê), water (Chưn đrai), and forest (hrôi brị) being the most revered They believe that spirits of the heaven, thunder, earth, forest, fields, villages, houses, and ancestors bring blessings such as good crops, protection from illness, and ensuring a prosperous and safe life for the community Annually, the Kho Mu conduct rituals to worship these spirits and ancestors, praying for bountiful harvests and good fortune These rituals reinforce the spiritual protection of forests and cultivate respect for nature, discouraging the destruction of sacred areas.
In Co Cượm village, the Kho mu categorizes forests into forbidden, worshipping, and death forests, with the supernatural and forbidden forests being strictly protected areas Access is prohibited to all villagers, who are not allowed to enter for firewood collection or livestock tending, except during sacred rituals conducted by shamans This prohibition is upheld by customary law, and violators face penalties The forbidden forest is recognized as a special use forest under the management of the Pa Khoang Commune Forest Management Board.
Figure 5.1 Forest for the community
Customary law is deeply rooted in Kho Mu rituals, where any misconduct by villagers or leaders results in punishment Each August, according to the lunar calendar, the Kho Mu communities hold the Forest Ghost Ritual to pray for peace, good luck, bountiful crops, and safety Interestingly, the Kho Mu observe a week of ten days, which differs from the conventional seven-day week Prior to the ritual, offerings typically include two chickens (one rooster and one hen) and a pig, reflecting their traditional spiritual practices.
In villages, local leaders and clan heads highlight traditional practices involving bamboo shoots, such as preparing 20 cm long bamboo shoots containing white wine, and smaller 5 cm shoots yielding four cups of bamboo wine These processes are carried out using labor-intensive tools carved from wood, including swords, crossbows, knives, and jewelry items like necklaces and bracelets, often crafted in pairs Additionally, villagers utilize baskets with a diameter of up to 50-60 kilograms to gather and store these bamboo shoots and related products, reflecting their rich cultural heritage and traditional craftsmanship.
A tent measuring 20 cm in width and 40 cm in height (Figure 5.2) is constructed using a banana leaf liner and contains husks for added insulation Skilled men are selected to build the tent and prepare offerings, with four bamboo poles used to create the roof structure, which is covered with alang grass for durability and protection.
Figure 5.2 Basket for the ritual
The sacred ritual begins at dawn with the shaman dancing and reciting spells to communicate with forest spirits, reflecting the villagers' hopes and expectations Approximately 30 minutes later, two men carry a bamboo hammock filled with offerings as the shaman walks down to the village Upon arrival, villagers gather around while a man boils an unpeeled egg, which is then used to bless each family member by touching their forehead before being dropped into the hammock The shaman offers prayers to all villagers, blessing them individually Finally, the shaman instructs the men to circle the village three times while carrying the hammock before throwing it out of the village, symbolizing the completion of the ritual.
After the ritual concludes, villagers are prohibited from leaving the village for three days to preserve the sacred period Breaking this rule results in penalties, including fines such as pigs weighing 50-60 kg, chickens, and offerings to honor the ghost forest, which is also the site of communal preparations for the next year’s ritual Village leaders remind residents to adhere strictly to these principles, warning of severe punishments for violations To prevent outsiders from approaching the village, the shaman places symbolic markers around the area, clearly signaling that entry is restricted during this sacred time.
The Kho Mu community benefits from a public forest that provides essential resources such as timber for building houses, wood for cooking, and vegetables for daily consumption In addition to utilizing the forest’s resources, the Kho Mu also organize regulated hunting activities within this public area, ensuring they adhere to conservation rules to protect the forest and its wildlife This sustainable approach helps preserve the environment while supporting the community’s livelihoods.
Among other village, the boundary of Co Cượm village determines basing on ridge of mountains The village leader draws a map and copy for other village leaders c System of management and protection
The supernatural and worshipping forest of the Kho mu are protected by the group of people including village leader and clan leaders Quàng clan, Lường clan and Lò clan are dominant in Co Cuom village Normally, the group hold meeting to share works before annual forest ghost ceremony They choose three or four 20-year-old strong man to assist shaman (Mo môn) who has ability to communicate with supernatural power The man listen orders of shaman while processing ritual In addition to, the group determines which family will contribute the offerings consisting of mostly chicken and alcohol
The Kho Mu community has established a comprehensive forest protection regulation system rooted in local customs and traditional practices These regulations serve as guidelines for appropriate behavior, outlining what actions are acceptable and what are prohibited to preserve the forest's sustainability The system combines customary practices, community regulations, and spiritual prayers to reinforce the importance of conservation Penalties are enforced for violations, emphasizing the community’s commitment to safeguarding the forest Overall, the Kho Mu's regulations aim to protect the forest through culturally rooted practices and collective responsibility.
Kho mu customary law applying in local situation
a The current status of forest resource
According to statistics from Pa Khoang commune, forests cover approximately 3,397.83 hectares, representing about 60% of the land area Production forests account for 1,017.31 hectares (18%), protection forests cover only 3.25 hectares, and special-use forests comprise 2,377.27 hectares (47%) Recently, forest destruction has led to a decline in wildlife and trees within the commune Between 2010 and 2014, the Forest Management Board recorded 42 cases of illegal deforestation and forest land encroachment, totaling around 3,800 m², along with three instances of illegal timber transportation involving 0.7 m³ of timber Additionally, confiscations included 11.25 m² of logs and 1.55 m³ of illegal timber across six cases, highlighting ongoing issues of forest law violations and the impact of state policies on customary land rights.
The Land Law (1993, revision 2003), Law on Forest Protection and Development
(1991, revision 2004) and the related decrees (01/CP/1995, 02/CP/1994) and programs
(327 and 661) are meant to enable recovery and ensure a better protection of forests
State laws and policies aim to manage natural resources in a sustainable and stable manner, primarily involving state ownership of forest resources managed by institutions like FMB and CPC Traditionally, the Kho Mu community viewed forest lands as belonging to the community, governed by customary laws and institutions However, land reforms in 1960 transformed forests into state property, allocating them to institutions such as cooperative farms, FMBs, and SFEs, often disregarding local boundaries, cultures, and customs This shift denied local communities, who relied on forests and considered them integral to their ancestral and sacred sites, access to lands they traditionally owned The confiscation of land and sacred areas has led to a loss of local culture and triggered conflicts, highlighting the negative impact of these reforms on communities rooted in traditional land rights.
Since 1995, the FMB has been contracting household groups under programs 327 and 661 to ensure forest protection, with some households also receiving remuneration under Decree 01/CP/1995 for natural forest conservation Despite not receiving payments since early 2009, these households remain committed to protecting the forests and are entrusted with managing designated plots for forest regeneration In addition to rice remuneration, households are permitted to utilize Non-Timber Forest Products (NTFP), fostering sustainable livelihoods However, these government policies have led to conflicts and overlaps with customary laws, resulting in the erosion of traditional legal frameworks governing forest management.
Advantages of Customary Law in Application
In societies with an active state presence, the interaction between state law and customary law is heavily influenced by the nature of state-local relations Recognizing customary law requires the state to address potential disadvantages that may arise from its formal acknowledgment While the coexistence of state and customary legal systems can strengthen social relations, it also has the potential to create conflicts in law enforcement and application.
Customary law is flexible and adaptable Though, according to many definitions
Recognizing the enduring value of customary law can significantly contribute to transformational change by affirming communities' rights to self-determination Customary law serves as a legal endorsement of diverse cultures, allowing indigenous peoples and ethnic groups to practice their traditions and uphold their social mores within a supportive legal framework This acknowledgment fosters cultural preservation and respect, particularly when there are no language barriers or cultural differences hindering the interpretation and application of customs within their communities.
Customary law is an integral part of indigenous communities, deeply embedded in their cultural identity While it governs essential civil matters like land ownership, inheritance, and family issues, aligning these customary practices with the modern nation-state presents complex challenges Recognition of customary law by the state is often difficult and cannot be easily changed through legislation, especially when conflicts arise between traditional practices and national legal frameworks Indigenous communities prefer to uphold their own rules and legal systems rather than adopting the statutes imposed by the state, highlighting the importance of respecting their cultural autonomy within a broader legal context.
Customary law is predominantly applied within specific local jurisdictions and often involves traditional leaders, making legal decisions more culturally acceptable to ethnic communities It governs a wide range of social relations, including civil, marriage, family, criminal, and administrative cases Additionally, customary law complements the state legal system by handling customary cases, thereby alleviating the workload of formal courts and enhancing the efficiency of judicial processes.
Some ethnic groups choose to apply customary law exclusively to civil cases, while its jurisdiction extends to a limited range of minor criminal offenses, such as those involving children or common assault.
Customary courts offer numerous advantages by aligning with the expectations of Indigenous peoples and minority groups, resulting in quicker mutual agreements based on traditional customs Decisions are often made by locally elected customary leaders or judges, making enforcement straightforward and reducing appeals Their procedures are typically simple, inexpensive, accessible, and fast, with proceedings easily understood by community members Customary tribunals are characterized by geographic proximity, familiarity, and relevance, fostering a strong sense of ownership among community members Unlike state courts, which may require lengthy reforms, customary courts demonstrate resilience, flexibility, and the ability to practice restorative justice, ensuring they remain effective and culturally appropriate.
Conflicts between state law and customary law are a common challenge in legal systems worldwide, often arising from differences in jurisdiction, scope of application, and procedures The most significant issues revolve around the tension between state sovereignty and the authority of customary courts Understanding these conflicts is essential for navigating the complexities of legal integration and ensuring effective law enforcement Addressing these tensions can facilitate better coexistence of statutory and customary legal frameworks, promoting justice and social stability.
The primary issue stems from the conflict between the sovereignty of the state and the right to autonomy of ethnic communities While the state shares legislative, executive, and judicial powers with these communities to incorporate customary laws, this partnership is inherently unequal due to the imbalance in relationships State law typically serves political objectives, whereas local communities view laws—whether state or customary—as tools to empower and protect individuals rather than advance political agendas Additionally, customary law can be susceptible to manipulation by powerful groups within communities, risking abuse or misuse to serve interests that do not promote justice.
The recognition and application of customary law can lead to significant judicial conflicts, undermining the consistency and unity of the legal system When custom is externally imposed through state-sanctioned courts, it risks losing its original internalized value and purpose, transforming into a tool of formal enforcement rather than a reflection of enduring community practices This dynamic sparks a struggle between conservatives advocating for the strict application of pre-colonial customs and reformists seeking to adapt customs to contemporary societal needs without compromising their core spirit Additionally, the use of customary law can create confusion over jurisdiction, procedures, and enforcement, complicating the implementation of judgments by Indigenous courts.
To some extent, customary law may be inconsistent, unpredictable and discriminatory‗ For example, equal access to the law (irrespective of age or gender) may not be an embedded principle
State law is a dynamic chain of activities that prevents maintaining a completely stable legal identity In socialist and democratic countries, law typically manifests through legislation enacted by elected governments, which can later be amended or repealed Court decisions further shape the legal landscape by being made, appealed, overturned, or upheld, allowing the understanding of the law to continually evolve over time.
Customary law is an empirical phenomenon rooted in long-standing community practices Its application relies on rules that have been established over extended periods, reflecting the traditional ways of the community These laws are generally stable and resistant to change, ensuring their continued relevance and influence within the society.
Recognizing customary law emphasizes the cultural uniqueness of communities, acknowledging their right to preserve and practice traditional customs This recognition empowers communities by affirming their identity as distinct entities with the authority to uphold their traditions However, in multi-ethnic societies, honoring customary law can present challenges, potentially leading to conflicts between traditional practices and national legal systems Balancing respect for cultural diversity with the requirements of a unified, modern legal framework remains a complex issue.
CONCLUSION AND RECOMMENDATION
Customary law is a dynamic set of rules that develops organically within communities over time, guiding social interactions to maintain order, promote collective benefits, and ensure community survival These rules are flexible and evolve with changing contexts, rooted in deep values and belief systems that serve as strong enforcement mechanisms, encouraging voluntary adherence to expected norms In Pa Khoang, such beliefs are expressed through the worship of various spirits, including forest ghosts, which reinforce the community's moral fabric The perceived punishments associated with violations of customary law—such as spiritual consequences—are often considered more severe than formal state sanctions like imprisonment or fines Evidence shows that the Kho Mu community in the studied areas continues to uphold their traditional beliefs, values, and norms, especially in their interactions with natural resources Specifically, in Co Cuom village, customary law provides guidelines for sustainable and harmonious relationships with nature, demonstrating the community’s commitment to environmental stewardship rooted in their cultural practices.
The beliefs underpinning customary law remain strong among the Kho Mu people, with traditional rules and practices still being recognized to some extent, reflecting a deep connection between their beliefs and forest protection Customary law is mainly preserved through oral transmission by key community figures such as village elders, clan heads, and priests However, over recent decades, the authority of these traditional institutions has diminished due to the rise of formal government structures like district authorities, Forest Management Boards, and officially appointed village leaders Socio-economic developments and technological advancements have also increasingly influenced local cultural values and community behaviors Despite an enduring attitude towards a harmonious relationship with nature, these rapid social and technological changes pose significant threats to the survival of customary laws among the Kho Mu people.
Current state laws and programs have largely overlooked customary law and indigenous knowledge, failing to recognize their positive roles in supporting nature and society Since 1960, government initiatives have transferred forest ownership to cooperatives or state agencies without considering local rules, boundaries, and social structures in Pa Khoang commune Despite recent policy updates, the government continues to neglect customary laws, such as facilitating community ownership of forests Additionally, low awareness and limited access to information about laws and policies have marginalized the Kho Mu people, hindering their participation in development processes and creating challenges in managing state-led initiatives effectively.
During the research, it was identified that local authorities had not effectively implemented land reallocation programs, resulting in limited access and usage rights for communities over land and forest resources Additionally, confusion and disputes over boundaries have led to inefficient management, protection, and development of the forests, hindering sustainable resource utilization.
This study highlights that customary law is gradually fading, while state policies and programs are not functioning effectively This unviable situation adversely impacts both the local community and the environment in Co Cuom village To address these issues, the study recommends revitalizing customary laws, improving the implementation of state policies, and fostering community-based conservation efforts for sustainable development.
Policy makers and legislators must prioritize understanding customary law, highlighting its spiritual values and positive contributions to social development and environmental conservation Adjusting existing laws to bridge the gap between customary and state law—such as recognizing community ownership of forests and respecting local classifications of natural boundaries—can enhance conservation efforts Formal recognition of the spiritual and non-economic functions of forests is essential for effective natural resource management and conservation planning Integrating customary and state legal systems will foster greater public awareness and acceptance of laws, making government interventions more aligned with local needs and aspirations Additionally, customary law offers valuable lessons for adopting a behavioral approach, promoting behavior change, and increasing the effectiveness of state legislation.
Effective national and local planning should prioritize creating space for communities to develop, regularly revise, and practice their own rules on natural resource management, rooted in their cultural values and customary laws Understanding and integrating indigenous knowledge into customary law is crucial to prevent its loss and to maintain social order, while also empowering communities to manage and protect their resources collaboratively with state institutions When implementing state programs at the local level, it is essential to thoroughly assess potential conflicts between different initiatives and ensure meaningful participation of local people to address these issues effectively.
Local authorities should recognize the crucial role of traditional institutions such as village elders and priests in natural resource management, including the use, protection, education, and conflict resolution It is essential to develop innovative tools and mechanisms that foster closer cooperation between formal institutions and local communities to enhance forest protection efforts Implementing clear and consistent information management systems will enable local governments to monitor and analyze key forest indicators effectively Additionally, establishing systematic communication mechanisms that involve traditional institutions will facilitate the sharing of information with local populations, supporting sustainable forest management and community empowerment.
Understanding customary law and indigenous knowledge among ethnic minority groups is essential for strengthening state policies on sustainable natural resource management Despite varying social and economic conditions among ethnic minorities, research is crucial to gain a comprehensive understanding of their traditional practices This study serves as an initial step in exploring the link between customary law and sustainable resource use within a specific community Integrating indigenous knowledge into legal frameworks can enhance the effectiveness of natural resource conservation efforts and promote sustainable development for minority groups.
I hope to continue my efforts to get a deeper understanding of customary law.
ANNEX
Customary law State law Culture Habits
Customary law is a form of local knowledge that has developed spontaneously over centuries through human experiences, interactions among people, and the relationship between humans and nature It is transmitted across generations through teachings and practices, serving to guide and regulate human relations and interactions with the natural environment.
Customary rules are recognized and accepted by the whole community and applied in daily practice to create unity and balance each community‘s society
Customary laws are spiritual and profound
State law is a system of reasoning closely with the procedures promulgated and strictly expressed in written form by the state
The legal system of the state was promulgated to maintain a stable order for the development of society State laws are regulations and laws regulating relations in the society y
Culture is the united collection of all products of human organization
Culture includes physical aspects such as housing, clothing and non-material aspects such as language, ideology and values and other philosophy
Habits are established patterns of interactive behavior and lifestyles rooted in our actions that are repeated over time, making them an integral part of daily life and often difficult to change Unlike customary law, habits are not universally applied or accepted by all members of a community.
Table 2: History of Pa Khoang commune managing
Forest resource status Human activities
Before 1960 Common proverty Abundant high value timber, diverse aminal and bird
Streams contain many fish and plenty water
- Shifting cultivation and exploring land for owning
- Small population, rich resources, no conflict
- Water use is almost from streams
- Agricultural land was managed by the cooperatives Only 5% of land did use by household farmer
- Forest land was managed by afforestation yards
- High value timber was over-exploited
- Shifting cultivation and exploring land for owning
- Slash and burn was spreaded out widely
- Residents and afforestation yard‘s stuffs together exploited timber
- Besides, illegal cutting timber without permission From 1990 to
Forest Land was managed by Dien Bien afforest yard (changed name in 2008 into Special Use forest Management Board)
- People‘s Committee of Dien Bien managed forest area
- Forest resource declined due to overexploitation
- Wild animals were over-hunted, large animal went extinct
If local residents want to cut tree with 5m 3 They have to ask village People‘s committee, if they want to cut higher volume of timber, they have to ask CPCs
- Freely to collect wild plants such as medicinal plants and herb
- Vilage convention and customary law
Source: Forest Ranger in Pá Khoang commune
Table 3: Question for how customary is applied in current situation
Authority and power What is the structure and function of authority?
What is its legitimacy? What power does it exercise?
Rights Who define the right? Who enjoy the right? Who benefit from this right?
Participation and decision making Who can participate and at what level? Who makes decision for whom?
Historically, various laws and policies have been implemented to regulate land use and forest conservation, shaping the management of natural resources over time Villagers’ adherence to these laws varies, with many following regulations closely while some remain skeptical or unaware Overall, community reactions range from compliance and cooperation to resistance, depending on the perceived impact on their livelihoods Currently, a significant portion of the forest area is protected under these policies and laws, ensuring the preservation of natural ecosystems for future generations Effective enforcement and community engagement are essential for the success of these conservation efforts.
Local authorities often face challenges in integrating customary law (CL) with statutory law (SL), as their understanding of CL varies and may be limited While some local authorities recognize the cultural significance of customary law, there are often uncertainties regarding its enforceability within formal legal systems The integration of CL into mainstream governance can be constrained by legal limitations, lack of clear legal frameworks, and potential conflicts between customary practices and statutory regulations Despite these challenges, many local authorities acknowledge the importance of respecting customary laws to maintain social cohesion, though their perspectives and attitudes towards CL range from cautious acceptance to cautious skepticism Enhancing understanding and developing clear legal mechanisms are crucial for effective integration and enforcement of customary law at the local level.