Summary of doctoral thesis in Law: The values of human rights in customary laws of Thai ethnic minority in the northwest of Vietnam

The thesis‟s objects are Thai‟s customary law in the Northwest Vietnam and the value of human rights contained in Thai‟s customary law; the ability to inherit and promote those values on making and practicing current law on the implementation of human rights for Thai‟s community in Northwest Vietnam; political, economical, cultural, social, and legal factors that have influences on the application of Thai human rights in Thai‟s customary law on ensuring and enforcing human rights for Thai‟s community in Northwest Vietnam.

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

LU VAN TUYEN

THE VALUES OF HUMAN RIGHTS

IN CUSTOMARY LAWS OF THAI ETHNIC MINORITY

IN THE NORTHWEST OF VIETNAM

Major: Constitutional law and Administrative law Code: 9 38 01 02

SUMMARY OF DOCTORAL THESIS IN LAW

Scientific supervior: Assoc Prof Dr NGUYEN THI VIET HUONG

HA NOI – 2020

The Doctoral thesis was completed at:

GRADUATE ACADEMY OF SOCIAL SCIENCES

Scientific supervior: Assoc Prof Dr Nguyen Thi Viet Huong

Reviewer 1: Prof Dr Dao Tri Uc

Reviewer 2: Assoc Prof Dr Dinh Xuan Thao

Reviewer 3: Assoc Prof Dr Le Thi Huong

The doctoral thesis will be examined by Examination Board of

Graduate Academy of Social Sciences at ………

The doctoral thesis can be found at:

- National Library of Vietnam;

- Library of Graduate Academy of Social Sciences

LIST OF AUTHOR’S PUBLISHED WORKS

RELATED TO THE THESIS

1 Lu Van Tuyen (2015), Protecting, taking care and educating

children complying with Thai customary law, Journal of Education and

Society, no 7/2015, Hanoi

2 Lu Van Tuyen (2015), Promoting the value of customary rules

aims to security Thai Ethnic’s cultural rights in Viet Nam, Journal of

Education and Society, no 8/2015, Hanoi

3 Lu Van Tuyen (2015), Equal rights of women in Thai customary law in

Northwest Vietnam, Journal of Theoretical Education no 234/2015, Hanoi

4 Lu Van Tuyen (2015), The rights of ethnic minorities in

international law and Vietnamese law, Journal of Political Theory no

10/2015, Hanoi

5 Lu Van Tuyen, Do Thi Minh Thu (2015), Values of ownership rights in customary laws with the good implementation of land and natural resources management and use in Thai ethnic minority in Northwest Vietnam, Journal of Theoretical Education, no 235/2015, Hanoi

6 Lu Van Tuyen (2016), Preventing and combating bureaucratic

corruption in Thai customary law in Northwest Vietnam, Internal affairs

magazine, no 31/2016, Hanoi

7 Lu Van Tuyen (2016), Rights-based approach in formulating and

implementing policies and laws on the rights of ethnic minorities in

Vietnam, monographs “Human Rights-Based Approach – Theories and Pratices”, Faculty of Law – Vietnamese National University, National

University Press, Hanoi

8 Lu Van Tuyen, Lo Thi Viet Ha (2016), Preventing crimes

according to the customary law of Thai in North West Vietnam, Journal of

Education and Society, no 9/2016, Ha Noi

9 Lu Van Tuyen (2016), National self-determination rights and the

rights of ethnic minorities according to international and Vietnamese law,

Internal affairs magazine no 11/2016, Hanoi

10 Lu Van Tuyen (2017), Ensuring the rights of ethnic minorities in

the 2013 Constitution, monographs “Implementing constitutional rights in the 2013”, Faculty of Law – Vietnamese National University, Political

Publishing House, Hanoi

11 Lu Van Tuyen (2018), Protection of ownership rights in Thai

customary law in Northwest Vietnam, Journal of Education and Society no

5/2018, Hanoi

INTRODUCTION

1 Rationale

The obligation of promoting and protecting human rights both in legislation and reality needs all contributions of nations, classes and individuals but not every single one To achieve that goal, we are creating a

“human rights culture” at all levels that specific and traditional values align

with international legal standards recognized of human worth and dignity It

is also considered as a solution to promote human rights implementation effectively

Our nation, Vietnam, has 54 ethnic groups Over 10 million people out of a population of nearly 100 million, there are 53 ethnic minorities, including Thai ethnic minority The statistics of the 2009 Population and Housing Census in Vietnam, there were 1.550.423 Thai ethnic people that accounted for 1,6% of national population and ranked third after the Kinh and the Tay In the past, Thai ethnic people in the Northwest of Vietnam owned progressive ideas with profound humanitarian values and human rights expressed by many different methods In these ideas, customary laws are the most quintessential one in the process of community awareness development and has a certain position in regulating the relationships in the

life of Thai ethnic people Customary laws, in the Thai, is “hít khoòng” That means “customs and traditions” or “rule” Customary laws are strictly

followed by members of the community

Nowadays, the implementation and assurance of human rights are being implemented, in which the promotion of traditional cultural values has been given special attention in developing policies and laws on ensuring human rights.In this context, the PhD candidate decided to choose the topic

“The values of human rights in customary law of Thai ethnic minority in the Northwest of Vietnam” to be a doctoral thesis in law with the desire to

contribute to studying comprehensively and systematically related contents

2 Purposes and missions of the thesis

2.1 Purposes

The overall purpose of the dissertation is building a scientific justification for a solutions system to ensure and enforce human rights, the

rights of ethnic minorities in Vietnam which is based on traditional values and always exists in the our country from the past until the present

2.2 Missions

- Systematize theoretical awareness of human rights values and human rights values in traditional history On that basis, focus on clarifying theoretical issues and contents on human rights values of Thai‟s customary laws in Northwest Vietnam

- Study and give some comments on current situation of the implementation of human rights in Thai‟s minority area in Northwest Vietnam Clearly identify the successes and limitations that exist and indicate the causes Besides, determine the application of human rights values in customary laws with the meaning of ensuring the implementation of human rights

- Propose recommendations and solutions to promote the human rights values of Thai‟s customary laws in Northwest Vietnam to ensure the implementation of human rights in Thai‟s community in Northwest Vietnam

3 The thesis’s objects

The thesis‟s objects are Thai‟s customary law in the Northwest Vietnam and the value of human rights contained in Thai‟s customary law; the ability to inherit and promote those values on making and practicing current law on the implementation of human rights for Thai‟s community in Northwest Vietnam; political, economical, cultural, social, and legal factors that have influences on the application of Thai human rights in Thai‟s customary law on ensuring and enforcing human rights for Thai‟s community

in Northwest Vietnam

4 The thesis’s scope

The research scope of customary laws approaches from the perspective of the concept and customary characteristics of Thai people; assess the value of Thai‟s customary law in the community; explores experiences that promote human rights values in the traditional history of the world and Vietnam

The research scope on inheriting and promoting human rights values

in customary laws to formulate and apply laws: focus on surveying and

assessing the real situation of economy, society, national defense and security, building the political system; surveying the enjoyment of human rights of Thai ethnic people in the Northwest; surveying results of implementing inheritance measures and promote human rights values in Thai‟s customary laws of some in Son La, Lai Chau, Dien Bien, Hoa Binh and Yen Bai From that point of view, propose the inheritance and promotion

of solutions to ensure the enforcement of human rights laws based on the values of Thai‟s customary laws

5 Methodology and research methods

5.1 Methodology

The thesis uses dialectical materialism and historical materialism of Marxism-Leninism; Ho Chi Minh Thought; guidelines and policies of Vietnamese Communist Party and the State of the Socialist Republic of Vietnam on building state and legislation; the doctrines, views of other progressive thinkers about the state and modern laws, especially about the rule of law state, the customs and the autonomous mechanism of communities

The research‟s scope requires social sciences interdisciplinary and multi-disciplinary approaches

5.2.2 Specific research methods

Method of document analysis; method of asking experts; comparative law method; the method of historical science research; aggregate method; statistical method and Methods of sociological investigation

6 New results of the thesis

The thesis is the first product that studies systematically, comprehensively and in depth both in the theoretical and practical aspects

of human rights values in Thai‟s customary laws and impacts of those on law implementation among Thai‟s community in the Northwest nowadays The thesis further clarifies issues of Thai‟s customary laws in traditional and current society; clarify factors and status of the influences of customary laws on law implementation in Thai‟s community

7 Scientific and practical meanings of the thesis

7.1 Scientific meanings

By resolving theoretical and practical issues, this dissertation contributes to specifying the basic characteristics of customary law, Thai customary law as well as its position and role in regulating community relations; at the same time, pointing out the values of human rights in customary law for their practical application

Research results also provide a comprehensive view of the human rights value of Thai customary laws in the Northwest which plays an important role in community life; supplement the theoretical basis for preserving and promoting the good traditional cultural values of the Thai ethnic minorities in Vietnam

7.2 Practical meanings

The thesis contributes to assessing the situation, bringing out positive values and limitations on human rights values in Thai customary law in social management at the studied area

This thesis can be used as referenced materials in teaching, training, intensive fostering for cadres; in formulating ethnic policies of the Party and the State; in social management, ensuring rural security at ethnic minority areas in the Northwest provinces in coming years

8 The structure of the thesis

In addition to the introduction, conclusion, references and

appendices, the thesis consists of 4 chapters, 11 subsections

Chapter 1 OVERVIEW ABOUT RESEARCH RELATED TO THE THESIS 1.1 Related research

1.1.1 Research on customary laws, Thai customary laws in the Northwest of Vietnam

1.1.1.1 Research on customary laws

Typical authors include: A Wantson with "An approoach to

becomes law only if it is recognized by a statute or a court decision and it is known as law, accepted as law and enforced as law

In India, the study “Tribal cCustomary law in Northeast India" by Shinbani Roy and S H M Rizvi; or "Public land and customary law" by

Minoti Charcravarty-Kaul, referring to the issue of customary land tenure in the North of India

1.1.1.2 Research on Thai customary laws

The book “Customary law and rural development in Vietnam today" brings together a number of articles by many authors on the application of customary law, namely: "Customary law and rural

development strategies in Vietnam" by Nguyen Duy Qui; "The role of

mountainous customary law in forest land allocation and natural resource

the inheritance of customs and traditions in law making"; "Customary law and natural resource management: Suggestions to harmonize written and customary law in Asia" by John Ambler; "Traditional Thai law: An overview of the “hiít khoòng” law in Laos" by Oliver Raendchen

The authors Ngo Duc Thinh and Cam Trong published the book

“Thai customary laws in Vietnam” written both in Thai and Vietnamese Its

main contents about the overview of customary laws and Thai customary laws; basic contents of Thai Den customary laws in Thuan Chau, Son La and some contents of Thai customary law in the Northwest collected by co-

author Cam Trong

1.1.2 Research on human rights and values of human rights

1.1.2.1 Research on human rights

The book "Understanding Human Rights: A Guide for Human

Rights Education" by Wolfgang Benedek

The paper "Human rights in the Hong Duc Law - the pride of the

nation" by Prof Dr Hoang Xuan Hao (USA) emphasized: The Hong Duc

Law is truly worthy of the pride of the Vietnamese people both in international and national perspectives

In Vietnam, studying aboout human rights has started since the 90s

of 20th century, including:

The book "Human rights ideology (collection of world and

Vietnamese literature)" by Law Faculty - Hanoi National University, Labor

- Social Publishing House, (2011); The book "Human rights" by GS Dr

Vo Khanh Vinh, in the chapter of Human Rights: The concept and nature

presents that “needs to approach the content of human rights by specific historical methods”

1.1.1.2 Research on values of human rights

Some international research as follow:

The essay "Human rights and Asian values" by Amartya Sen at

Carnegie Council on Ethnics and Internatinonal Affairs had been translated and printed in “được dịch và in trong cuốn: About the rule of law and Constitutionalism: Some essays by foreign scholars, Labor - Social Publishing House (2012) provided an overview of Asian values and human rights, in which he disagreed with theories that human rights and freedoms are incompatible with Asian culture as well as the arrogant attitude of those (Western) who believe that they have brought the light of civilization (human rights, self do) to Asians

Some domestic research as follow:

The research "On values and Asian values" by Ho Si Quy; the book

“Human Rights: Interdisciplinary and Law interdisciplinary access”, Vo

Khanh Vinh (2010), Social Sciences Publishing House; The article "Some

basic contents and values of human rights in the National criminal law” by

Nguyen Thanh Binh emphasized that Hong Duc Code contains many positive and progressive values, in which it is necessary to emphasize and affirm to a prominent value that the minimum but basic human rights, especially of the people were recognized, respected and protected by law;

The article "Human rights: social values, universality and specificity" of the

author Vo Khanh Vinh analyzed the social value of human rights which are

of mixed values including: dignity - freedom - equality - humanity - tolerance - ethics and responsibility

1.1.3 Research on values of human rights in Thai customary laws in Northwest Vietnam

It can be seen that in studies of human rights values in Thai customary law, the authors have listed and analyzed the contents and provisions of customary law to show that in the Thai customary law, there are certain values which can be applied in law implementation in reality

1.2 Overview of the research situation and the issues that need further study

1.2.1 Studied issues and its levels

In general, the studies of customary law in Vietnam and foreign countries have introduced the theories about social progress and customary law that have become an important step in the development process of mankind and State institutions Studies on human rights values have interpreted and clarified extensively about the relationship between human rights and culture, between cultural values and human rights concepts and

its practices

1.2.2 Matters need to be studied further in the thesis

Today, there are a few studies on the current situation of Thai regions

in the renovation period, especially those in areas where Thai people are resettled and freely migrated There is no intensive research which has been conducted to systematize and clarify the value of human rights in history and approachs from comparative perspective from international law on

human rights The study about "The values of human rights of customary

law of Thai ethnic minority in the Northwest of Vietnam" which under the

approach of jurisprudence is a relatively innovative and practical approach

to contribute to supplementing the previous studies‟ limitations At the same time, it meets the urgent requirements of both theory and practice of combining customary law with law in social management and constantly improving the legal system in our country today

Chapter 2 THEORETICAL ISSUES AND HISTORY OF VALUES OF HUMAN RIGHTS IN THAI CUSTOMARY LAW IN NORTHEST OF VIETNAM

2.1 Definition of human rights and values of human rights

2.1.1 Definition of human rights

2.1.1.1 The origin of human rights

Human rights are closely linked to human history which are products of certain socio-economic conditions and are influenced by those socio-economic facilities

Since the United Nations officially recognized human rights in 1948, with the introduction of the Universal Declaration of Human Rights, many national political and legal documents on human rights have acknowledged its natural origin However, it has also emphasized the role of the state and the law in human rights protection and promotion Hence, human rights have developed as a moral, political, legal and moral framework to develop the world which is free from fear

2.1.1.2 The definition of human rights

The most common definition belongs to Office of High Commissioner for Human Rights (OHCHR) According to this definition: Human rights are universal legal guarantees protecting individuals and groups against actions and omissions that interfere with fundamental freedoms, entitlements and human dignity

Definition of human rights in some other Vietnamese materials is not

totally the same but generally, huan rights can be understood as “human needs,

natural and inherent human interests that are recognized and protected in national laws and international legal agreements”

2.1.2 Conception of values of human rights

2.1.2.1 Conception of value

According to Vietnamese dictionary: “Values are principles,

standards, norms that guide human actions It is important for an individual

or an organization to be used as a criterion to assess whether one action can be considered better than another”

Different expressed levels of values include: personal values which

are the values applied in personal life (respect for love, friendship, family);

social values which are values recognized by members of the community and are standards for regulating social relations

2.1.2.2 Conception of value of huan rights

Value of human rights is “the standards, norms, desires,

expressions of individual or social needs, and become the purpose of action

of such individuals and social groups” The value of human rights guides

for action, can be considered as a standard to specify value; is the code of conduct, defines how individuals and groups act; manifest in the form of

written institutions (like the State’s laws) or unwritten forms (like customs

and traditions) These are patterns of behavior in specific situations for

individuals and social groups and it is associated with the extremely diverse and abundant reality of life

2.2 Definition, characteristics of Thai customary laws in Northwest Vietnam and its position and role in the life of ethnic communities

2.2.1 Definition of Thai customary laws in Northwest Vietnam

Thai customary laws are constituent parts of the villages‟ laws and the life customs of each person and the community They forms the customary law of Thai people This is similar to the customary laws of other ethnic minorities, and somewhat different from the Vietnamese Convention

2.2.2 Characteristics of Thai customary laws in Northwest Vietnam

Thai customary laws prioritizes education, deterrence and prevention Although it includes death penalty, hardly do they use it If any, before the death penalty, there were forms of education from low to high

Thai customary law pays attention to deal with social relations

2.2.3 Position and role of Thai people in Northest Vietnam in the life of ethnic communities

Firstly, Thai customary law plays an important role in social

management for Thai comunity

Secondly, Thai customary law upholds the interests of the ruling

classes in Thai society

Thirdly, Thai customary law clearly demonstrates the role of

intermediaries that harmonizes interests and obligations among members of the Thai community

Fourthly, Thai customary law maintains order in the Thai

caste-recorded in Thai customary laws (women's equality, children's rights,

property of the individual ) It can be seen that human rights are an

important component of some Thai customary laws

2.3.2 Thai customary law protects value of human rights

First, customary law is the most highly regulated document in

the Thai community Entire ruling class and all people must comply with the provisions of customary law Therefore, the rules of human rights in customary law mean that it is required to force all ruling classes, individuals and citizens to comply and implement

Second, customary law prescribes the suppression of the power of

the ruling class to oppose the arbitrariness of the ruling class while performing its functions and protecting the interests of the people

Third, customary law serves as a basis for reference to the ruling

class in case of violations of customary recognized rights

2.4 Relationships between laws and values of human rights in Thai customary laws in Northwest Vietnam

Northwest Vietnam