Protection of the right to customary land tenure for ethnic minorities in vietnam reflection on the m’nong, ma and e de groups in dak nong province

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

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

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

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

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

1.1.The concept, the necessity, the meaning of protecting the right to customary land tenure of Vietnam ethnic minorities 8

1.1.1 The concept of customary land tenure of ethnic minorities 8 1.1.2 The concept of protection of the right to customary land tenure of ethnic minorities 14 1.1.3 The necessity and significance of protection of the customary land tenure for ethnic minorities 19

1.2.Subjects, content, methods and conditions to protection of the right to customary land tenure of ethnic minorities in Vietnam 23

1.2.1.Subject of the protection of the right to customary land tenure of ethnic minorities in Vietnam 23 1.2.2.The content and methods to protection of the right to customary land tenure for ethnic minorities 26 1.2.3.The conditions to protection of the right to customary land tenure for ethnic minorities 29

1.3.The current Vietnamese Legal framework on protection right to the customary land tenure for ethnic minorities 34

1.3.1.Overview of Vietnam’s current legal framework on land right for ethnic minorities 34 1.3.2.The current legal provisions of Vietnam related to protection of the right

to customary land tenure for ethnic minorities 40

1.4.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 45

1.4.1.International Laws related to protection of the right to customary land tenure for ethnic minorities and requirements for Vietnam 45 1.4.2.Laws of some countries related to the protection of the right to customary land tenure for ethnic minorities and values for Vietnam 50

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 54

2.1.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 54 2.1.1.Natural characteristics 55

2.1.2.Social – economic characteristics 56

2.2.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 58

2.3.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 80

3.1.Viewpoints to protect the right to customary land tenure for M‟Nong, Ma and Ede in Dak Nong Province 80

3.2.Solutions for protecting the right to customary land tenure for M‟Nong, Ma and Ede in Dak Nong Province 88

3.2.1.Solution on law and policies 88

3.2.2.Solutions on organizations, system and human resource 92

3.2.3.Inspection, monitoring 94

CONCLUSION 96

LIST OF REFERENCES 101

LIST OF ABBREVIATIONS

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

CT The Direction/ Directive

EASRD East Asia and Pacific Region

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

NGOs Non-Government Organizations

SFEs State Forest Enterprises

SPERI Social Policy Ecology Research Institute

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

INTRODUCTION

1 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

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

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

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”

2 Research Situation

In recent years, in our country, there have been many projects and research works on land tenure which have been carried out by experts under different angles and in different areas, such as: Research topic “Study on customary use rights of ethnic communities to forest and forest land in Vietnam” (CIRD 2018); Thematic study of Mekong Region Land Governance, 2017 “The Recognition of Customary Tenure in Vietnam”, The Rural Development and Natural Resources East Asia and Pacific Region – EASRD, May, 2014 “Vietnam‟s Customary Land Tenure”; Andrew Wells-Dang, Pham Quang Tu and Adam Burke, May 2015 with “Agrarian Change and Land Tenure in Vietnam through a Political Economy Lens” (presented in the International Academic Conference, Chiang Mai University)…and also have many research and peoject works on customary law and ethnic minorities, such as: Research on customary law of Vietnam ethnic minorities and forest land policies Dr Lương Thị Thu Hằng, Dr Phan Triều Giang, Dr Trương Quang Hoàng (August 2015); Report on legal analysis as a basis for assessing the impact of Laws, policies and institutional framework for ethnic minorities and local communities in the conservation and development of natural resources, VUSTA (2018), …

These studies have provided great knowledge and information about the position and role of law in the state management of land in Vietnam in general, as well as preliminary references to the land tenure, but until now, there has not been any work or study specifically on customary land tenure of ethnic minorities subject to the regulation of Forestry Law 2017 and Land Law 2013 Therefore, this is a new work of systematic research and in-depth practice of customary land tenure of M‟Nong, Ma and E-de at Dak Nông Province in accordance with relevant laws to propose orientation and solutions to ensure the rights of ethnic minorities in general and customary land tenure in particular

3 The Purpose and Mission of the Study

3.1 The Purpose

This thesis performs the research and analysis of basic theoretical issues

of the customary land tenure, legal situation of this right under international laws, laws of some countries and Vietnamese laws Based on such theories and practices, the thesis proposes solutions and recommendations to ensure human rights in general and customary land tenure in particular in the coming time through the amendment of the Land Law 2013 provisions and implementing the Forestry Law 2017

- Analysis of the legal situation of customary land tenure of M‟Nong,

Ma and E-de in Dak-Nong Province

- Propose the orientations, solutions and recommendations to guarantee implementation of customary land tenure of ethnic minorities in the future

4 Subject and Scope of the Study

Study on customary land tenure of Vietnamese ethnic minorities according to the current laws, including the Land Law 2013, the Forestry Law

2017, and the regulatory documents on land tenure in Ma, M‟Nong and Ede minorities in Dak Nong

Provide an overview of the empirical experience of protecting customary land tenure of M‟Nong, Ma and Ede minorities in Dak Nong Province and propose the recommendations to protect the right to customary land tenure of ethnic minorities through the amendment Land Law 2013 and the implementation of the Forestry Law 2017

5 Methodology and research methods

The thesis applies an methodology in combination with method of analyzing, synthesizing, interview, case study analyzing, comparing documents and ensuring the chronological logic, which attaches the importance to the summarization of practices and policies/laws on customary land tenure, and at the same time, inherits the results of the works of the earlier authors to clarify the objectives and tasks of the thesis

6 Scientific and practical significance of the thesis

The first step is to clarify the current situation and some urgent issues in the implementation of protecting the right to customary land tenure for ethnic minorities under Vietnamese Laws

Secondly, it attempts to find some suitable and feasible orientations and solutions to contribute to protecting the right to customary land tenure in a more effective way

The result of this study will provide scientific arguments on the right to customary land tenure for ethnic minorities to contribute to protecting this right of ethnic minorities in accordance with the laws

CHAPTER 1 THEORETICAL AND LEGAL ISSUES ON PROTECTION OF

THE RIGHT TO THE CUSTOMARY LAND TENURE OF

ETHNIC MINORITIES IN VIETNAM 1.1.The concept, the necessity, the meaning of protecting the right

to customary land tenure of Vietnam ethnic minorities

1.1.1 The concept of customary land tenure of ethnic minorities

Customary tenure systems exist in many countries with significant rural populations where access to, control and use of land are determined through long-standing principles defined as "customary law" that operate outside the formal, or state, legal system Customary systems are associated with traditional land administration institutions and customary law that define how rights are ruled, allocated, and preserved

Customary law (or customary rules) is a system of unwritten rules and regulations that are formed and exist in the social development process The content of customary law covers the fields of social life, such as: Regulations

on protection of natural resources, social management, community relations, customs, rituals, beliefs, rights and the responsibilities of society members The customary law is accepted by all ethnic minorities, voluntarily complied with the principles of democracy, publicness and transparency It is an important role in community governance, social security, family relations, male – female relationship, beliefs, rights and responsibilities of commune members Those who violate the customary law principle are deemed to hurt the social relations They will be condemned, brought to trial and suffer penalties according to the customary law [38] Customary law stems from and

is sustained by the living community of today Thus, it can be clearly seen that customary law pay attention first to the harmony of the whole community, including equality among individuals; it is formed by the gradual construction

of the whole community, since long time ago, popularized mainly by words of mouth and recorded by memories Customary law has been applied at the local level, and penalties are often flexible and dynamic, depending on the circumstances of the individual and society [50, page 15]

Besides, according to the definition of the United Nations‟ Food and Agriculture (FAO), customary tenure is a set of rules and norms that govern community allocation, use, access, and transfer of land and other natural resources The term “customary tenure” invokes the idea of “traditional” rights to land and other natural resources: “the tenure usually associated with indigenous communities and administered in accordance with their customs,

as opposed to statutory tenure usually introduced during the colonial period” (FAO 2002)

Customary rules covering a larger region of “Quy tac” (Regulations) and more specific sets of rules applying to a village or commune “Huong uoc” (village/commune rules) have been documented for large numbers of ethnic groups in Vietnam There has been less focus, however, on documenting case studies and stories which give a better picture of the dynamism and diversity

of local communities, as opposed to the more static representation of customary law as a collection of rules There are some similarities in customary tenure systems, particularly in upland areas These include: [75]

- Communities‟ sense of ownership come from claims established

by ancestors, often remembered as spirits that continue to oversee and protect the community

- Forest and other areas are imbued with spirits This creates a collective responsibility for their welfare and a management approach which is perhaps more conservative and precautionary than economically oriented scientific regimes This perspective also highlights the inter-linkages between land, forest and water, which are customarily recognized and respected

- With varying arrangements, villages traditionally own or have collective rights to residential land, cemetery areas, lowland rice fields, shifting cultivation land (including fallow areas), grazing areas, forest land (including sacred areas, areas for watershed protection), fisheries, etc Strong rules prevent one village encroaching on the land of another

- Communities are led by a village head (generally a man) and elders with authority over the management and use of land, including allocation of rice paddies and upland agricultural fields to families and/ or groups Land guardians also supervise religious matters related to land

- Customary law is flexibly adjusted to specific village situations Community members accept and observe this law voluntarily and generally support their elders and clan leaders in developing rules and in resolving land and other conflicts

- Individuals can use and inherit land but are generally not allowed

to sell it without the consent of the community The community may exchange, lease or sell land to other communities Sacred areas, cemetery forests, and watershed protection forests are usually inalienable

- All community members have equal access to land and resources Private rights apply to land such as rice paddies and in -use shifting cultivation fields Internal, generally participatory, decision making determines benefit sharing arrangements and who may use land for what purpose

- Outsiders are generally excluded but may ask permission to use forest or land resources

The gap between government policies and traditional concepts of tenure and use rights has been one of the major causes of conflict in upland regions

in the recent past (IUCN, 2008) Customs, such as the worship of nature spirits, are often seen by officials as superstitious and an obstacle rather than a tool for achieving forest management policy goals (IUCN, 2008)

Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land (For convenience, “land” is used here to include other natural resources such as water and trees.) land tenure is an institution, i.e., rules invented by societies

to regulate behavior Rules of tenure define how property rights to land are to

be allocated within societies They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and

restraints In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions

Land tenure is an important part of social, political and economic structures It is multi-dimensional, bringing into play social, technical, economic, institutional, legal and political aspects that are often ignored but must be considered Land tenure relationships may be well-defined and enforceable in a formal court of law or through customary structures in a community Alternatively, they may be relatively poorly defined with ambiguities open to exploitation Land tenure thus constitutes a web of interesting interests, include [63]:

- Overriding interests: when a sovereign power (e.g., a nation or community has the powers to allocate or reallocate land through expropriation, etc.)

- Overlapping interests: when several parties are allocated different rights to the same parcel of land (e.g., one party may have lease rights, another may have a right of way, etc.)

- Complementary interests: when different parties share the same interest in the same parcel of land (e.g., when members of a community share common rights to grazing land, etc.)

- Competing interests: when different parties contest the same interests in the same parcel (e.g., when two parties independently claim rights to exclusive use of a parcel of agricultural land Land disputes arise from competing claims.)

Vietnam only uses the term “use right” to land and natural resources, which is not the same meaning as tenure In the Cambridge Dictionary, tenure

is “Being the legal owner of land” [76] Land use rights in Vietnam is detailed

in the Land Law 2013, as below: [24, art 166]

- To be granted the certificate of land use rights, houses and another land-related asset ownership

- To enjoy the results of the labor and investment on land

- To enjoy the benefits derived from facilities constructed by the State for protecting and improving agricultural land

- To receive the State‟s guidance and assistance in the improvement and fertilization of agricultural land

- To be protected by the State against others‟ infringements of their lawful rights and benefits related to land

- To receive compensation when land is recovered by the State in accordance with this law

- To complain about, denounce or file lawsuits over violations of their lawful land use rights and other violations of the Land Law

If seeing in light of this regulation, it seems people have full rights and

power with their land, but if we see in the article 4 of Land Law 2013, “land is belonging to entire people with the State acting as the owner’s representative and uniformly managing land The State shall grant land use rights to land users in accordance with this law” In Vietnam, land and forests are owned by

the state, not by private units or individuals Therefore, when “tenure” is interpreted in Vietnam, it is understood not to include private ownership of land and forest

Vietnamese law does not include the term “tenure”, “tenure rights” or

“customary tenure” For this study, and to adapt to the situation in Vietnam,

customary tenure or tenure rights refer to a collection of rights (but without the private ownership right to land and forest), how they are allocated to community in terms of who has rights to different land and forests, and the terms and conditions for exercising each right

It is difficult to advocate for customary tenure rights in Vietnamese land and forest policies in the current context However, based on the above definition of customary tenure and land-forest use rights in the law, we can understand that the recognition of customary tenure means the recognition of the customary land-forest use rights of local and ethnic communities

1.1.2 The concept of protection of the right to customary land tenure

of ethnic minorities

Human rights are global legal guarantees that protect individuals and groups against actions or negligence that harm the human dignity and basic freedom

Land is a cross-cutting issue that impacts directly on the enjoyment of a number of human rights For many people, land is a source of livelihood, and

is central to economic rights Land is also often linked to peoples‟ identities, and so is tied to social and cultural rights [70], and is not simply a resource for one human right in the international legal framework And yet, while rights have been established in the international legal framework that relate to land access for particular groups (e.g indigenous people and, to a more limited extent, women), numerous rights are affected by access to land (e.g., housing, food, water, work), and general principles in international law provide protections that relate to access to land (e.g., equality and nondiscrimination

in ownership and inheritance), an explicit consideration of the legal

implications of access to land for a broad range of human rights is necessary [78, page1]

The customary land tenure is a branch in the right to land access The condition of landlessness threatens the enjoyment of a number of fundamental human rights Access to land is important for development and poverty reduction, but also often necessary for access to numerous economic, social and cultural rights, and as a gateway for many civil and political rights However, there is no right to land codified in international human rights law [78, page 2] However, numerous economic, social and cultural rights in the UDHR and ICESCR are intimately connected to access to land, including the rights to housing, food, health and work [72, Art 23, 25]

Land tenure, in the form of formal legal, customary or religious rights, can provide more clearly fundamental rights, including to food, housing, water and health Right to housing is related closely to land access, have been defined in numerous international documents, but access to land remains imprecise Land access is frequently tied to the spiritual, cultural and social identities of people As such, land rights have been more fully developed in the sphere of indigenous rights [66]

In Vietnam, the term “Indigenous people” began to be used from the period when the country was colonized by French colonialists (1884-1945)

At that time, France used the word “indigenous people” to collectively refer to the communities living in Vietnam, regardless of King or other ethnic minorities After 1945, the Vietnamese people owned the country, the concept

“Indigenous people” was no longer used [49] The Vietnamese State implements a policy of equal development, preservation and promotion of

ethnic traditions This is recognized in the Vietnamese Constitution 2013, instead of the concept “indigenous people” and “Indigenous people‟s rights”

as a concept of civil rights – the right of all Vietnamese people, irrespective of whether they are ethnic minorities or majority [2, Art 5] It recognized 54 officially ethnic groups, of which the Kinh majority accounts for 87 percent of the population [62, page 3] The United Nations (UN) has noted that the difficulty in arriving at a common definition of ethnic minorities because of the diversity of situations in which minorities live and the history of different groups In 1992, the UN adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities The United Nations Minorities Declaration defines minorities based on national or ethnic, cultural, religious and linguistic identity, and provides that States should protect their existence In 2007, the United Nations Declaration on the rights of indigenous peoples was adopted by the General Assembly, which recognizes the need to respect and promote the rights of indigenous people, especially their rights to their lands, territories and resources In 2007, the United Nations Declaration on the Rights of indigenous peoples was adopted

by the General Assembly The Declaration recognizes the need to respect and promote the rights of indigenous peoples, especially their rights to their lands, territories, and resources

On 14 January 2011, the Decree No 05/2011/ND-CP was adopted by the Government on ethnic minorities affairs The decree indicates ethnic minorities are ethnics with a population smaller than that of the ethnic majority group within the territory of the whole country [19, Art 14] The area of ethnic minorities is where many ethnic minorities live in harmony as a

community in the Vietnamese territory During the formation and development of the country, migration over thousands of years led to the fragmented habitats of ethnic groups interspersed in valleys and mountains Most of them reside in rural, mountainous areas such as the Central Highlands and the Northern Mountains, in particular Vietnam has 53 ethnic minorities, with 13,4 million people, accounting for 14,6% of the country‟s population; living in communities in 51 provinces, cities, 548 districts Ethnic minorities reside mainly in the Central Highlands, Northwest, Southwest and Central Coastal regions, accounting for ¾ of the total area of the country [30] While these communities only constitute 14,6% of total population in Vietnam, customary tenure issues affect a large number of people due to the country‟s overall population

With thousands of years of social – economic development, ethnic minorities demonstrates the harmony, trust, relationships and mutual support and cooperation in work, spirituality, culture and marriage through their social structure and systems of customary tenure They have been fairly self-sufficient through collective land and forest use which has ensured both daily consumption and spiritual needs With differing types of organization, villages traditionally possess or have collective rights to an array of land used for various purposes, such as residential land, burial grounds, lowland rice fields, shifting cultivation land (including fallow areas), grazing areas, forest land (including sacred areas), and areas for watershed protection and forest collection Certain forests and other areas are recognized as being inhabited

by spirits [62, page 3]

These relationships and collaboration among ethnic minorities in Vietnam are fundamental to strengthening relations between ethnic minorities and preventing conflicts relating to resources and culture, and to maintaining the unity and stability of society

The attributes of security of tenure may change from context to context For example, a person may have a right to use a parcel of land for a 6 month growing season, and if that person is safe from eviction during the season, the tenure is secure By extension, tenure security can relate to the length of tenure, in the context of the time needed to recover the cost of investment Thus the person with use rights for 6 months will not plant trees, or invest in irrigation works or take measures to prevent soil erosion as the time is too short for that person to benefit from the investment The tenure is insecure for long-term investments even if it is secure for short-term ones

People in parts of the world where there are strong community-based tenure regimes may enjoy tenure security without wishing to sell their land, or without having the right to do so, or having strictly limited rights to transfer (e.g., transfers may be limited to heirs through inheritance, or sales may be restricted to members of the community)

The customary laws of various ethnics have all confirmed the public ownership of arable land, forest land, rivers and streams, as well as other natural resources by hamlet communities, to which all hamlet inhabitants have access to

With analysis as above, it can be seen that protection of the right to customary land tenure of ethnic minorities is to affirm the rights of ethnic minorities, which are specified in the Constitution 2013, as well as protection

to the survival space – “khong gian sinh ton” of ethnic minorities, as well as protection to the basic human rights Ethnic minority communities – villages created by the coexistence and association of families of the same blood and different families, together they find their own land to establish a village corresponding to the determination of the territory ground, including the determination of forest land for agricultural production Land, water and forest resources are the three basic elements to create a friendly, healthy and sustainable social environment Thus, protection of this land tenure is the protection of the living space, to preserve and maintain a specific cultural identity and characteristics of ethnic minorities

1.1.3 The necessity and significance of protection of the customary land tenure for ethnic minorities

Customary law is understood as codes of conduct of compulsory nature created by village communities and transferred from generation to generation [68]; it is the law of village communities or of an ethnic minority community Customary law is also recognized in many countries around the world, especially in Asia and Africa [57] Later on, when colonial governments around the world were primarily interested in controlling trade centers, they

continued to have more contact with indigenous people, partly in order to achieve the purpose of government control In this process, they restrained from interfering with family law, but they also did not allow customary laws

to regulate all social relations, especially for penal law and Land Law, as 2 laws are closely related to the political and economic positions of colonial governments and their economic relations with local people Every great nation (cường quốc) has its own policies, France is in favor of policy to reduce the power of the current law system of the colonial state, Britain wants

to dominate indirectly and acknowledge the customary law [43]

The basic characteristics of the rule of law state in this sense is the concentrated expression of a democratic regime: (1) the rule of law is a concentrated expression of democracy; (2) democracy is both the nature of the rule of law and the condition and premise of the state regime; (3) the rule of law is organized and operated within the framework of the constitution and law; (4) State power in the rule of law is organized and implemented according to democratic principles: power assignment and power control; (5) the rule of law is associated with a mechanism to protect the constitution and appropriate laws; (6) In the rule of law state, state power is always limited to the relations: State and economy; State and society; and specially (7) the rule

of law state always respects, promotes and protects the human rights in all areas of the state and society [65] Human rights are the criteria for evaluating the rule of law of the state regime All state‟s activities must start with respects and assurances of human rights, creating conditions for citizens to exercise their rights in accordance with the provisions of law Among the human rights, the land tenure of ethnic minorities in general, customary land

tenure of ethnic minorities in particular has a position and importance in the rule of law state Protection this right is necessary for the civic society development

As analyzed above, customary land tenure has been formed in the practice of social development since ancient times In Vietnam, it originated from the recognition, respect and application of customary laws Customary laws and tenure systems have developed over centuries in Vietnam under varying influence from the feudalist Nguyen Dynasty (1802 – 1883), the French colonial period (1858 – 1954) and the Communist Party from the 1930s onwards Prior to 1960, communities‟ customary systems were only slightly altered by these influences Customary laws are traditional, informal rules and practices that have developed over time that are followed by people within their ethnic groups, and which impact on ways of thinking and behaving In Vietnam, laws are recognized as the laws of people, by people and for people, so people are encouraged to respect the laws based on self-discipline However, in reality, such self-discipline is not always excercised because not all provisions of the laws express the will and aspirations of people, for people and by people In addition, the law is uniform and applies equally to territories, while the development of regions have many differences Therefore, policies and laws have been issued but they are not likely to be implemented in certain areas

In the meantime, the customary law, though not a law, has a role that is equivalents to the law in regulating communal relations, and protecting the order of the community As analyzed above, customary laws are social norms, conferring the behavior of each individual as well as the community in order

to protect the common interests of the whole community Thus, customary laws do not reflect any will and aspiration of any specific class, but instead express the will and aspirations of the whole community Customary laws include criteria of ethical standards and social criteria, creating spiritual and cultural values of the nation The rules of customary laws are naturally accepted by everyone It exists from life to life Any violation of customary laws can be considered as anti-divinity behavior In fact, customary laws play

a part in replacing the law in social relations adjusting within the ethnic communities‟ scope, which is quite clear It contributes to social stability in the ethnic community

According to the report on forestry community in Gia Lai province, the

Ba Na and Gia Rai communities have a long tradition of the community management Each village has certain land boundaries including land, forests, water resources, rivers and streams … The choice of location for village establishment is decided by the village owner and the village council based on the main living conditions of water resources and cultivated land/ soils Within the scope of villages, rivers, forests, grasslands, water resources … belong to the village‟s collective ownership and are governed by an autonomous system headed by the village patriarch The village‟s members have the freedom to choose a piece of forest for shifting cultivation, or to develop fields According to the customary law, a person who has marked a forest, or a first forest tree, considers its belongs to that person Other people are not allowed to violate [46] In this place, land is considered a common property, but everyone respects the land reclaimation efforts and use rights of others The principle of social behavior here clearly shows the spirit of

solidarity, mutual support and love [50, page 40] Customary law expresses the strength of community spirit, becomes a law, shows praise, criticism, reward and punishment

The necessity as well as the meaning of protection to the customary land tenure of ethnic minorities is clearly in the overall development of the whole society It contributes to protection of the economic, social and spiritual life of ethnic minorities, promoting the culture - social development, poverty reduction, and raising people‟s awareness, and improve living standards for ethnic minorities in areas with difficult socio – economic conditions in particular and the society in general… Besides, for economic – cultural – social rights such as freedom of belief and religion; rights of ethnic minorities; citizens‟ freedom of movement and freedom of residence, protection of the right to customary land tenure has significantly improved the enjoyment of these rights Respect, protection and promotion of these rights is the responsibility and obligation of all individuals, organizations, the state and the whole society

1.2.Subjects, content, methods and conditions to protection of the right to customary land tenure of ethnic minorities in Vietnam

1.2.1.Subject of the protection of the right to customary land tenure

of ethnic minorities in Vietnam

Subject of legal relations are individuals and organization that have subject capacity, under the conditions prescribed by the law, participating in certain legal relations This is regulated in Article 1 of the Civil Code of Vietnam 2015 “The Civil Code provides the legal status, legal standards for the conduct of natural and juridical persons …” In order to have the status of

an individual, the individual must have sufficient conditions for legal capacity and legal personality Accordingly, legal personality is the ability of the subject to have rights and obligations prescribed by law, while the legal capacity is the ability of subject to establish and exercise rights and obligations through actions

Legal personality of a natural person commences at birth and terminates

at death The legal personality of a natural person may be limited in certain cases prescribed by law In order to have legal capacity or have totally legal capacity of a natural person, natural person must reach a certain age depending on each field prescribed by law In addition, the individual must also be able to perceive and control her/his behavior

Land use subjects are regulated in the Land Law 2013, including: i) Domestic organizations, ii) Domestic households or individuals; iii) Communities, iv) Religious institutions, v) Foreign organizations with diplomatic functions, vi) Overseas Vietnamese as prescribed by the nationality law and vii) Foreign-invested enterprises

These are the land users in general, and for the subjects in customary land tenure of ethnic minorities, and within the scope of this thesis, it is ethnic minorities community, w hich is the ethnic community of Ede, M‟Nong and

Ma in Dak Nong Province

Ethnic minorities are recognized in Vietnamese law and international law The United Nations (UN) has noted that the difficulty in arriving at a common definition of ethnic minorities because of the diversity of situations

in which minorities live and the history of different groups In 1992, the UN adopted the Declaration on the Rights of Persons Belonging to National or

Ethnic, Religious and Linguistic Minorities The UN Minorities Declaration defines minorities based on national or ethnic, cultural, religious and linguistic identity, and provides that States should protect their existence

In 2011 the Vietnamese government adopted Decree No

05/2011/ND-CP dated 14 January 2011 on ethnic minority affairs The decree indicates ethnic minorities are ethnicities that have a smaller population than the majority in the whole country “The area of ethnic minorities” is where many ethnic minorities live in harmony as a community in Vietnam territory

During the formation and development of the country, migration over thousands of years led to the fragmented habitats of ethnic groups interspersed

in valleys and mountains This meant ethnic minorities in Vietnam were concentrated in particular villages, communes, districts, and provinces A region or province may have local ethnic minorities who have lived there for a long time, with other ethnicities also migrating there more recently According to statistics, there is no province or district in Vietnam that has only one ethnicity present In the mountainous areas of the north, only 2.8%

of total communes have only one ethnicity Ethnic minorities are scattered in different provinces or areas For example, the Dao ethnic group live in 17 provinces, H‟Mong ethnic group in 13 provinces, Tay ethnic group in 11 provinces and Thai ethnic group in eight provinces

The way in which ethnic groups are scattered across Vietnam is a symbol of the unity of the people of Vietnam It demonstrates the harmony, trust, relationships and mutual support and cooperation in work, spirituality, culture, and marriage The relationships and cooperation between ethnic groups in Vietnam are fundamental to strengthening relations between ethnic

groups and preventing conflicts relating to resources and culture, and to maintaining the unity and stability of society

In terms of distribution, historically most ethnic groups in Vietnam reside in mountainous and border areas that are important locations for policies relating to the economy, security, defense and the environment

1.2.2.The content and methods to protection of the right to customary land tenure for ethnic minorities

One of the basic characteristics of the rule of law state is a rule of law that respects, values and protects human rights in all areas of the state and society The human rights are the criteria for evaluating the rule of law of the state regime All state activities must start from the respect and assurance of human rights, creating conditions for citizens to exercise their rights in accordance with the law provisions The relationship between individuals and the State is closely defined in terms of law and is equal The relationship model between the State and Individual is determined on the principle: For state agencies, only do what the law allows, for citizens to do all except those prohibited by law

Land rights are one of the basic rights of people in general and of ethnic minorities in particular in the rule of law state, so the Constitution and laws of the countries all recognize and protect the fulfillment of this right This right

is also regulated in the international human right law, in the International Covenant on Civil and Political Rights (ICCPR) under the right to self-determination, in recognition and protection of the right of people in the possession of land and territory, rights of ethnic minorities…

According to the general perception, land tenure in generally defined in Article 167 of Land Law 2013, including the following rights: right to exchange, transfer, lease, sublease, inherit, donate, mortgage land use rights and contribute land use rights as capital Thus, for customary land tenure, it also includes all rights mentioned above Within the scope of this thesis, the author only wants to mention some basic rights, which are the right to possess, use and dispose/ determine

- Ethnic minorities have the right to land possession: As analyzed above, the lives of ethnic minorities are closely linked to forest and spirituality Land is considered a common property Everyone respects the effort in exercising rights by others, and yet having the common land appropriation For Raglai people, forest, mountains, rivers and streams belonging to the community; house, fields and gardens are owned by the ancestors of a family residing of matriarchal form No one has the right to invade land, houses or garden of family/parentage [51, page 135] Thus, everyone respects and acknowledges a family‟s right to land possess

- Ethnic minorities have the right to land use and dispose/ determine This right is understood as an ethnic minority has the right to decide how, method and purpose of use for the land area that they have acquired, including the decision to use that land for farming purpose, planting or building a house, complying with customary laws; and others must respect it The State must have appropriate legal provisions to create favorable conditions for ethnic minority communities to protect this right

Customary land management includes land behaviors that are recognized in the rules and practices of a community through written or non-written form Each nation has its own practices of land management Kinh

people have the village conventions (“huong uoc”) These rules protect

autonomy over land management within a certain limit, adjusting social relations within the village according to State and Laws regulation [48] Ethnic minorities have customary laws Its describe in detail the relationship between the community and the natural environment, how to use the land and forests to maintain life and spiritual needs [46, page 8-9]

The 2015 Civil Code of the Socialist Republic of Vietnam has regulate provisions on customs, “Customs mean rules of conduct obvious to define rights and obligations of persons in specific civil relations, forming and repeating in a long time, recognized and applying generally in a region, race

or a community or a field of civil” [1, Art 5(1)] The Civil Code also indicates that customs are valid only when not contravene to the basic principle of Civil Code, while some specialized laws recognize the value of customs In the Land Law 2013, Article 26 regulates that the land use of ethnic minorities need to be implemented “consistent with customs, traditions, cultural identify and practical conditions of each area”, but does not provide the details Meanwhile, the subjects of adjustment of land use are mainly individuals and households In particular, the sovereignty of the community for forest land is very important with ethnic minorities

In order to protect this right of ethnic minorities, the State primarily performs it through the recognition and fulfillment of the State‟s obligations

to this right: Obligation to respect, protect and promote the customary land tenure right

- Obligation to respect: The State is required not to intervene, impose

arbitrary limits on enforcing rights However, in some countries, the State obligation still faces many limitations, reflecting from the regulation of customary land tenure to the contents of rights and regulations on limited rights performance

- Obligation to protect: With the common sense of international

human rights law, the State‟s obligation to protect is a sense of initiative obligation in which the State must prevent infringement of human rights by third parties; sense of initiative/proactiveness in taking measures and developing mechanisms to prevent and handle violations

- Obligation to promote: This means that the State develop policies,

facilitates policies and mechanisms for ethnic minorities to exercise this right

in accordance with the law This is an important content that rule of law State must (possibly “non-stop”) establish favorable conditions for the ability of entities to exercise their rights and emphasize theimportance of customary land tenure in protecting the ethnic minorities rights, protecting equality in accessing the rights by ethnic minorities in relation with other ethnic groups

1.2.3.The conditions to protection of the right to customary land tenure for ethnic minorities

State management is carried out in the basis of promoting and protecting effective human rights, including land rights – one of basic human rights, in particular, customary land tenure for ethnic minorities through strategic planning, land allocation planning with scientific basis to serve the

socio-economic purpose of the country, protecting the right and effective use, helping land users take measures effective to protect the land use effectively;

to create a legal basis to protect legitimate rights and interests of land users…

In order for this social management function to be effective, land rights of people and of ethnic minorities must be ensured, especially the right to the customary land tenure

Land rights are stipulated in international legal documents for quite a long time, especially customary laws are quite common in both western countries and the Southeast Asia countries When United Nations was established and land rights were recognized in the International Convention

on Civil and Political Rights in 1966 However, the history and practice of exercising these rights in each period, each country are different, depending

on many factors, with the basic factors are politics, culture – society, economy, law

Political Factor

The land rights in general and customary land tenure (customary law) are recognized in international law as well as in national constitution and laws To understand and enforce this right are different in countries, depends

on the political characteristics of each country For democratic countries, respect for human rights, including land rights is one of the basic principles that the country needs to comply with Accordingly, land rights in general and customary land tenure (customary law) are applied to ethnic groups, including ethnic minorities and indigenous people This tenure is implemented fairly, based on the principles of customary law for each ethnic group, ensuring the equal rights of peoples, as well as the right to self-determination, or the right

to non-discrimination For example, in countries where indigenous people like Canada, the United States, New Zealand, human rights, especially the protection of the cultural rights and self-determination of indigenous people have become the focus of current debates Indigenous groups are trying to develop “native” forms of management for tropical forest, land and water, and advocate for recognition of the rights of local communities [55]

In contrast, in countries with underdeveloped democracies, human rights tent to be incomplete Accordingly, this land tenure will be strictly restrained, or not even recognized If so, the law will be built towards management and restricting the fulfillment of this right by administrative procedures, regulations on land use regime, basic rights in land use

Cultural – Social Factors

Culture is the whole of material and spiritual values created by the communities in the process of practical operation and with specific characteristics of each region In other ways, each society has its own cultural and traditional characteristics that help shape or influence the personality and activities of each individual, community in society, with thinking, information exchange, speech/ express, maintaining and developing communities based on the characteristics of their own culture … to ensure the needs of life as well as the demands for survival In well-developed democratic countries, ethnic groups and communities are recognized for their own cultural identities, recognized and respected of their customary laws, including ethnic customary laws and indigenous people, as long as they do not violate the limits set by law for these rights This is an important condition for the right of indigenous peoples/ethnic groups to be developed, namely, the right to customary land

tenure The application of customary laws on land tenure for ethnic minorities does not detract from the respect of the law, but on the contrary, it helps to affirm ethnic minorities are also ensured of their rights, and are respected by the law for these cultural values And, with the culture of ethnic minorities, customary law is a guideline, a legal corridor for people to survive and develop

For ethnic minorities in Vietnam in general, life as associated with customary laws and the culture The traditional village (buon-pley) of the Central Highlands has been established for a long time as a sustainable structure with a community spirit, strong vitality, community connection to extract and protect the natural resources, and ensure the lives of the people The writer Nguyen Ngoc assesses that “The Central Highlands is the place where most of the original cultural forms of the village have been preserved… The basic unit of the Central Highlands culture is the village, there is no individual below, no higher form” [51, page 145]

Economic Factor:

Economic conditions are also an important factor, affecting to land rights in general, customary land tenure in particular In developed countries, with market economy, many forms of production ownership, many economic sectors, multi-ownership of land are also confirmed and practiced In Vietnam, it has not been acknowledged that land ownership is largely due to historical factor, according to research on agricultural production, particularly

on land tax in the capitalist economy, and then Lenin who pointed out the unreasonable nature of land based private ownership regime, the origin of landlords, which made agricultural prices rise, hindering the agriculture