Legal mechanism to protect the rights of children in vietnam

8 2.1.2 Definition o f the child's rights 10 2.1.3 The rights o f the children in relation with the rights o f women 13 2.2 The legal mechanism to protect the rights of the children 13 2

HANOI LAW UNIVERSITY LUND UNIVERSITY

1.4 The content of the theme - matters need solving 7

2 THE OVERVIEVV ON CHILDREN’S RIGHTS AND THE

LEGAL MECHANISM TO PROTECT THE RIGHTS OF

2.1.1 Who is the child? 8 2.1.2 Definition o f the child's rights 10 2.1.3 The rights o f the children in relation with the rights o f women 13

2.2 The legal mechanism to protect the rights of the children 13

2.2.1 What is the legal mechanism to protect the rights o f the child 13 2.2.2 The role o f the legal mechanism to protect the rights o f the

2.3 International legal mechanism to protect the rights of the children 17

2.3.1 The system o f International Instruments o f the children 's rights 17

2.3.1.2 The Convention on the Rights of the Child 1989 (CRC) 18

2.3.2 The International institutio ns to protect the rights o f the child 20

2.3 2.2 The protessional orgnizations of the UN 20 2.3.2.3 The Committee on the rights of the child 21 2.3.2 4 Non.Governmendal orgnizations (NGOs) 22

3 THE NATIONAL LEGAL MECHANISM TO PROTECT THE

RIGHTS OF THE CHILD IN VIETNAM 23

3.1 Vietnamese laws on the protection on the rights of the Child 23

3.1.1 Regulations o f law on the survival o f the child 23 3.1.2 Regulations o f law on the rig h t to protection 24 3.1.3 Regulations on the participation rights o f the child 27

3.1.4 Regulations o f lau/ on the right o f the child to development 28

3.2 The institutions to protect the rights of the child in Vietnam 30

3.2.1 The role o f the tamilies 30 3.2.2 The role o f school 32 3.2.3 The role o f the Social organizations 33

4 PERFECTING THE LEGAL MECHANISM OF PROTECTION FOR THE RIGHTS OF THE CHILD IN VIETNAM 44

4.1 Necessity for perfecting the legal mechanism of protection for the

4.1.1 An overview about good points o f the legal mechanism o f

protection fo r the Rights o f the Child in Vietnam 44 4.1.2 Shortcom ings o f the legal mechanísm o f protection fo r the

Rights o f the Child in Vietnam 46

4.2 steering view point and períecting direction 49

4.2.1 steering view p o int 49

4.3.1 F o rth e la w 51 4.3.2 For in stitutio ns 53 4.3.3 Other solutions 56

I hold it as a great honour to participate in The Svvedish/Vietnamese M aster Programme in International and Comparative Law ]t is a pleasure to express my gratitude to all the persons who helped me in pursuing my study and research First, I devote my very particular thanks to the Board o f Directors, Prof.Dr Per-OleTraskman o f Lund University, Prof.Dr Doan Nang o f The Hanoi Law University and all professors o f the project who helped and gave me invaluable knowỉedge I would like to extend my words

o f appreciation to Librarians o f Lund University, H um an Right Librarians, Librarians o f Hanoi Law University and all my friends Finally, I am indebted to Lund University and The Hanoi Law ưniversity for supporting

my study

To my family whose love and com íòrt encouraged me to complete this academic pursuit

the Rights o f the Child 1989

Union

Academy

Education for the Child

Social Affairs

Committee

Fund

5

at nation wide level Nevertheless, in some places o f rural and mountanous areas, the question o f ensure children’s right is still limited Many problems such as child labor exploitation, Street children, child criminals and being on

as a result o f strong inAuences from back ward thinking and socio-economic conditions So, the issue o f researching, setting up and step by step improving legal provisions on children’s rights are necessary in order to create favourable conditions for children to gain their social proíit

On the 26lh January 1990, Vietnam signed the Convention on the Rights of the Child and after that, on 20th February, 1990, ratiíĩed the Convention without reservation

Vietnam became the earlist o f Asia countries and the second in the vvorld adopting the Convention It can be said that, the ratiíìcation o f the Convention on children’s rights has lad down an International legal framework for children protection in Vietnam The practice o f Vietnam obligation implement under the Convention on the Rights o f the Child and the children’s rights protection status in Vietnam require a systematic researching and this íĩeld to find out effective measure for children’s rights protection This requiremení, at the same time, is the reason for my thesis namely: Legal mechanism to protect the rights o f the children in Vietnam

1.2 Scope and aims of the theme

I will consider rights o f the children in human rights history By this analisys process, the necessity o f children’s rights protection shall be clarified As a result, it is said that, there must be a legal mechanism to protect children This mechanism, o f course consists o f National legal mechanism and International legal mechanism

I will deal with look through Vietnamese legal provisions on children’s rights I will refer to deeply to Vietnamese children protecting institutions in different aspects and point out the relations among those institutions in Vietnam

I will consider International obligations and responsibilities o f Vietnam and the signiíicance o f worldwide community aid in the process o f children’s rights protections as well

Through the consideration o f legal provisions, the status and the role o f National institutions I will suggest some possible measure and method to promote children’s rights protection activities in Vietnam.

To protect the rights o f child are not only National duty but also International responsibility because Vietnam is One o f the member countries which have concluded and ratifíed the Convention on the Rights o f the Child

Children is speciíĩc subject, they are seen as immature, not yet competent so that they are in need of protection The issue concerning to children are quite wide and complex That’s the reason why I am not ambitious to íĩgure out it in all perspectives, my thesis ju st focus on the mechanism o f protection o f children’s rights, more details as follow:

- International mechanism o f protection o f children’s rights under Convention on the Rights o f the Child

- National mechanism to protect the rights o f the children in Vietnam

- Achievements and weak points, well as solutions to improve mechanism to protect the rights o f the children in Vietnam

On the other hand, I analyze Vietnamese legislation based on it, books and research Vietnamese writer

Synthetic method will be use to point out fruits and clariíy weak points on protecting the rights o f the child in Vietnam

1.4 The content of the theme - matters need solving

In chapter 2, 1 try to give broad picture o f children’s rights and legal mechanism to protect children’s rights Its gold is to clariíy the necessity to protect children and their rights Thereíbre, mechanism to protect including International and National mechanism must be íòrmed In other words, in this chapter, I attempt to mention mechanism to protect children’s rights on International side in common

In Chapter 3, I íòcus on mechanism to protect children’s rights in Vietnam The íĩrst is Vietnamese legal provisions o f children’s rights The second is institutions to protect children’s rights and relationship betvveen them The third, defme International legal obligation o f Vietnam thought out Vietnamese National report submitted committee on the rights o f the child

In Chapter 4, I generalize ữuits and make clear the weak points in mechanism to protect the rights o f the child in Vietnam On that ground, I vvill make a suggestion contributing in to improve mechanism to protect the rights o f the children in Vietnam

7

2 The overvievv on childrerTs rights and the legal mechanism

to protect the rights of children

in Vietnam

2.1 Rights of the Children

2.1.1 Who is the child?

Who is the child? It is not easy to answer the question as the children are considered from different angles: Sociology, Psychology, andJurisprudence Furthermore, concepts o f nations in the world are different Under the angle o f Sociology1, the children are the components o f the social structure divided on Males and Females, the old and the young, the adult and the children, people’s cultural Standard is high or low Following the view, social structure is divided on sex, cultural Standard, and level o f one’s share to the society

Under the angle of Psychology definition o f the children is based on the age and psychology of every developing period As a whole, psychologists o f the children

on over the would have the same division of developing periods o f the children2 Psychologists say that defmition o f developing periods o f the children is based on their physical, intellectual and psychological development Thereíore the parents, schools and society must have suitable educational measures The age o f 18 is the end o f the children Because in the period is enough for them to became the adult the physical, intellectual, mental development o f the children They are active in thought action and have behavior suitable to the society, morals and law

Under the angle o f Jurisprudence, the question: "What is the child?”was given, but that is the dehumanising approach because the child is simply a hum an3 So the question is: "Who is the child?” Under that angle the child

is the person having not enough abilities On the other hand, way the children are traditionally deíĩned as the negative comparison: A child is a human individual, not grown up yet4 That is the deíĩnition including factors

o f religion, culture and belief That has two main points: the beginning and the ending to become the adult

' Mai Quynh Nam, Children- Family- Society, National Polictical Publishing House, Ha

Noi 2004, p.5

2 Human Rights Reseach Center, HCMNPA- UNICEF, Children’s Rights, National Political

Publishing House, Ha Noi 2003, p 154

3 Ibid, p 67

4 Geraldine Van Bueren, The International Law on the Rights o f the Child, Martinus

N ijhoff Publisher, p.33

For the beginning point o f the child we can see in the foreword o f the Declaration o f the Rights o f the Child 19595: Being weak physically and intellectually, the children need to be protected and cared by special way including suitable legal protection beíbre and after their birth However, that Declaration is not legally forced to every nation Furthermore the law o f every nation deals with this question by different ways.

According to CRC and the laws o f all nations, the children have the right and are protected from the point o f their birth It is the beginning point o f the child before the international laws The right to a name and registration after birth is the fírst right to affirm that every child is the distinct individual7 So that, the children are provided by many different terms, such

as Baby, Infant, Juvenile, Adolescence, Youth, Minor

The Juvenile was seen in the UN minimum rules to protect legitimate íreedom o f Juvenile The Juvenile used by the UN has a legally important role The UN put the children in regulated objects by the international laws and national laws to protect the rights o f the children and the minors to l«vc peacefully in their family and community and also the rights o f them when they break the laws So the term Juvenile is closely related to the children as the minors under the angle o f jurisprudence Being different from the adults the juveniles are understood are the smaller, incomplete people because they can not themselves define the best way to participate in legal regulation.The laws in every nation regulate the limit of age in every fíeld Most of national laws regulate that the age o f 14 is the end o f compelled education and

is also the legal minimum limit to marriage, the age o f 15 is the age permitted

to participate in labor relations by the regulations o f ILO8 In some States, such

as Austria, Spain and Uruguay the child is deíìned as the end o f 18 and the minimum limit to mobilize into the army and the armed conílicts9 The UN Commission on Human Rights also provides that the CRC does not State the adult age It is recognized by each nation in relation with its economic social and cultural conditions10 Laws o f almost nations provide that the adult age is

18 In some nations, the adult age is 20 such as Switzerland'1

In Vietnam the child is a citizen under age o f 1612 Such age is regulated like that because under Vietnamese laws the age o f compelled education is 14, the age o f participating in labor relation is 15 and the age to be responsible for criminal charge is 14, 1613 So that regulating the child as Vietnamese citizen under 16 creates a consistency in legal system and also suits to the possibility

o f the budget and the socio-economic condition o f Vietnam and CRC

Through the above analysis, we can see that the children are deíĩned as the people under 18 unless the law applies lower age o f grown u p 14

In our opinion, under the angle o f psychology or jurisprudences, the age of

18 is a Standard form15 However, there one some diíĩerent things: Under the angle of Jurisprudence the child is approached as the subjects having legal status It means that: the child is the object protected by the International and National law In every nation, the children are citizens o f the nation and their legal status are provided by National laws Therefore, the concepts o f the age’s limit of the children and the legal status are different in countries That objective fact because the legal status o f citizens in general and o f the children

in particular is defmed by the socio-economic conditions o f every nation

On the International scope, the children are the human having full human rights Therefore, though the concept o f the child is different in nations but this concept is still United in International law and the Article 1 o f CRC is the result o f an Intem ationalagreem ent on the child This agreement is the decisive íactor to define the children’s rights and legal addition replicable to the child who is part o f the society16

2.1.2 Definition of the chilcTs rights

The rights o f children are recognized by the nations and international community in the international instruments However deíĩning the rights o f the children is not simple because the deíĩnition is approached from many different angles

Under the angle o f pity, the children are understood as the subjects needed

to be entitle to the pity o f society It is expressed by the kind actions, calling sense o f responsibility, preventing the children from starve, poverty and diseases These actions have strong iníluences on people’s pity but they are only temporary In the other word, the action is periodic, not permanent So that, under the angle the children are subjects had rights but they are passive Those children have to completely depend on the adults and society

in which they are the received Othenvise, under the angle the causes iníluencing the children life and especially measures to solve the question relating to children are not dealt with So the approach is more moral than legal Under the humanitarian angle o f the children are understood as the objects needed to be protected, especially when they are in the dangerous situation This opinion is different from the opinion o f pity in the nature o f the question solved by it the emergency situation Hovvever they are the same in the vvay to solve the problem In both cases, actions are only to finish immediately pities and danger suffered by the child In our opinion, the approach mainly concentrates on preventing the child ííom being dangerous So that it can not express enough objects having the rights - all the children Furthermore, the weak point o f this opinion is that they do not see the things causing for the children dangers and prevention from them

So that, being very important in the children’s life, the children’s rights under the angles pity and humanity only stop at the share o f adoles to children Under the angle o f development the child need to have the suitable conditions to develop and grown up and become the good and useful

15 Thomas Hammarberg, M aking Reality o f the Rights o f the Child, Svvedish Save the

children, p 6

16 Supra note 4, p 32

citizens as the adult So that the children needs are always seen from the adults needs Comparing to the concepts, the different but active characteristics o f the view o f development is that: We have to have, created conditions, environments for children's development Under the angle o f survival and development, the children’s rights consist of the íactor o f humanitarian and the view o f development So that, the rights o f the children are approached from many angles and every approach have its reasonable factors The approach o f pity and humanity expresses the human values o f the man kind society That’s the relation o f person to person the adult's priority for the children because the children are to be protected That’s very important in our life However these views do not see the activeness o f the subjects needing to be protected They only recognize the children as the subject’s receiver o f rights In the approach o f survival and development appears the active and reasonable view According to the children fưst need to have survival and it is the base for thèm to develop and grow up So that, that view shows the way for children’s ’ development, recognizes the children as the active subjects receiving rights Hovvever, its weakness is seeing the children’s rights from the adult's needs and directing the childrenY development to the needs.

In our opinion, the children, being weak physically, having not abilities yet, need to be protected17 This view is expressed by other approaches, because the children are not independent as the adults, have less abilities and opportunities to define the questions impacting them Saying about that is not to reject to childrenY active role, but to have the right view to their capacities and values in the society With above perception and under the angle o f International law, seeing the child's rights need start from the nature and content o f the children’s rights

Human rights are the component o f the human nature That means all people have the same right18 So that the human rights are not only for the adults, but also for the children The point o f view that the children’s rights as the human rights are promoted by the obịective reality The children are people, members o f society and citizens o f the nation; they have fundamental rights

o f a person, a citizen So the children have the same rights as the adults Dignity and status o f a person begin not only when it becomes an adult but when it was born19

Hovvever, in the special period o f a person-the childhood children need the special concern, care and help In the íĩeld o f human rights it is understood that guarantying human rights o f children has to rely on children characteristics and needs20 The child is the person erýoy the human rights but being weak physically and intellectually, it has the limited human rights The children are the special citizens and the íloated characteristic o f children rights is that they can not implement and protect their right and they mainly depend on adults Family and society have to create the best condition to protect them There are special rights only the children have, such as the right

Sandy Ruxton, Implementing Childreris Rights, Save the Children, p.5

18 The Declaration o f Human Rights 1948, Art I

19 Supra note 4, p.34

20 Human Rights Reseach Center- HCMNPA, Human Rights, Ha Noi 2000, p.30

11

of not being applied with the highest sentence, or priority rights such as the rights o f children separately stated in the International instruments.

Being limited o f abilities o f activities, the children may have yet the human rights, citizen rights, such as rights to marry, to vote and to be a candidate But it must to be understood that the limitation begins from objective physical and metal characteristics o f the children to guarantee comprehensively their development and also the operation o f the society That’s not discrimination o f treatment on the bases o f ages So, that naturally the children’s rights are the human rights concretized to meet the need, developing characteristics and children’s life’s property

In content seeing the rights o f the children closely connect to the political, economic, social and cultural situation o f every nation So that level o f concerning the children raising in history shows that concept on the children closely sticks the way society recognize them and the results o f mutual acts

of political, economic and social forces The view, that the children have their right springs from the perception that the children make their contribution in recreating the society on life, organization and culture Thereíore the children have reasonable need o f sharing all íields o f cultural

- social life with the adults The children are the masters o f the present and the constructors o f the future Children’s rights are the way to guarantee for the children not to become the passive receivers o f the adults, but to become the subjects o f the rights having the capacities to create - the suitable life

So that, on the content the children rights are all things erỹoyed, done, respected and implemented21 By the chiỉdren on bases o f the đifferent approaches, starting írom the own nature and contents the children’s rights are deíĩnite as the entire thing necessary for children to live and developed

by healthy and safe way

This definition, in our opinion, embraces all o f the aspects relating to children rights as foIlows:

- Firstly, the children are the social group easy to be harm and necessary to

be protected by all people, social community and laws That’s why all the dangers effecting the children and the ways to guarantee implementing children’s rights are seen, refer to bring the best interests for the children

- Secondly, the children are object had the rights by the laws and we usually approach the children by their needs Hovvever, under the angle o f Jurisprudence approaching the children has to rely on rights o f the children

- Thirdly, to guarantee the children's rights we need the legal mechanism, International and also National, because the childrens' rights, in particular are the values recognized by the International community but the implement and guarantee o f them happen in every nation That's why the legal mechanism to protect the children's rights in every nation is alvvays suitable

to it's political, economic and social conditions

21 Supra note 2, p.81

2.1.3 The rights of the children in relation with the rights of women

Like the children, woman is a very important social group especially easy to

be prejudiced, but for the long time o f the history they are not concemed and saved In almost nations in the world, the women always have worse status than the men just because they are women Women and children are not only the same in being the prejudiced but also in close relation in many aspects Firstly, in the Convention on the Rights o f the Child, the children are understood as the people under 18 It means that the children include boys and girls Girls have physically and mentally weak characteristics o f the children, they have also the gender and sex characteristics o f women Sex is the deíinition showing the medical biological difference betvveen male and female Gender is a concept expressing the relation and correlation o f the status between male and female in a concrete social circumstance So, female children at the same time need to be guaranteed with both the rights

o f children and equalities o f women

Secondly, reproduction is the function o f women If during the time o f pregnancy, mothers are not guaranteed by human rights o f nutrition, medical help; the working and relaxed tim e the baby born will not developed by normal healthy way Science studies show that in general mothers having permanent job, stable income, and high education level vvill take o f their babies better than those having lower education level and live

in difficult economic condition

Thirdly, being the weak physically and mentally entity, children can not guarantee their life to protect themselves, especially during the small age

So survival and development depend on much the care o f State, family, school, society (especially o f their mothers)

From the above mentioned analysis, it may be defined that the human rights

o f women and children have the unrepeated relationship In other words, the rights o f the child can not be protected comprehensively and efficiently if the complete rights o f women equal to those o f men are not ensured This is the basis o f the relationship betvveen the Convention on the Rights o f the Child and Convention on Elimination o f Discriminations o f Women These two Conventions are International legal instruments in protecting and promoting human rights o f women and children

2.2 The legaỉ mechanism to protect the rights of the children

2.2.1 What is the legaí mechanism to protect the rights of the child

One o f the key principles o f International law is Pacta Sunt Ser Vanda This principle requires that all States and entities o f International law have to fulfíll all obligations deíĩned by the law However, in certain cases and for different kinds o f obligations the requirements may be very different In the

13

ĩield o f the rights o f the child, the study o f the legal mechanism to protect the rights o f the child in general and the duties to carry out the provision stated in the International Instruments are essential actions.

First and íòremost, the mechanism "is usually used with other" terms to make specialize concepts in different sciences For instance, in economics "economic mechanism", in politics "mechanism to implement the power" etc In content, mechanism is explained with divergent understandings In English, this term has two meanings Mechanism is a system o f units operating together in the same and mechanism is a natural or established process, because o f which a kind o f action is conducted and carried out22 In Vietnamese, mechanism is understood as the manner in vvhich a process is happening23

Thereíore, mechanism is interpreted in relation with the operation o f a system Accordingly, the term o f mechanism has two aspects as follows: The structure o f períect whole including many closely related components and the operating way o f the whole to reach a deíìnite result In International legal Science: Looking into relationship betvveen International law and National law, there are unified points o f views as follows: International law and National law are two independent legal systems having the dialectical relationship24 Accordingly, International law is implemented by nations in their territories, directly or indirectly through National law

In the Science o f Theory on State and law, there is a concept: "Legal monitoring mechanism" As we know the National laws are constructed by nations them selves to control social relationships in National territorial íìeld In other words, the State is the subject to the National law and also is the subject promulgating them, therefore controlling laws using them to effectively regulate social relationships are through two ways: Odder- compliance and equal co-ordination So that, though promulgated lavvs, the State not only starts operation o f legal controlling mechanism but directs all subjects o f social relationships to implement the laws

For the International laws, their distinguish characterizes are the objects regulated by the laws system In the íbrmality, the object is the relationships

o f subjects o f the International ỉaw In the content, International relationship regulated by the International laws are the relationships relied on equalities

o f the subject’s equal co-ordination It is to recognize equalities during subịects participating in social relationship together arguing their rights and duties on bases o f the laws25 That's why in International law, the term o f

m echanism is used in different situations

In m echanism , to construct the International law, there is the content about constructing the International laws through agreements Because all subjects

o f International laws are equal and have the rights to participate in constructing the International laws Moreover in the system o f International laws there is no International Legislative Organ26

22 O xpord University, The new Oxpord dictionary o f English, Claren Press, Oxpord 1998

23 Lingushtic Institution, Vietnamese Dictionary, The Center o f Dictinaristic, Da Nang

Publishing House 1997

24 The Hanoi Law University, Text book on International Law, People's Poiice Publishing

House, Ha noi 2003, p.27

25 Nguyen Q uoc Hoan, The Providing Mechanism ofV ieínam ese Law, Docteral Thesis o f

Law, The Hanoi Law University, p.20

26 Rebecca M.M W allace, International Law, London Sweet & Maxvvell, p.3

Implementation o f mechanism27: According to principles Pacta Sunt Servanda, implementation o f International law is the duty o f nations, so that, implementing mechanism o f International laws understood as all ways of implementing the International laws in every nation 8.

The enforcement mechanism in the International law is applying eníorcem ent ways when a subject o f the International law has act breaking the International laws, through individuals and collective eníbrcement29 Beside the mentioned definition, in the International law, especially in those

on the rights o f the child We see many deíĩnitions such as international mechanism, national mechanism, supervising mechanism

International mechanism30 is understood as International regulations, institutions founded to help and supervise implementation o f International law in general and International Conventions in particular

In the aspect o f the rights o f the child, there are divisions: The Charter mechanism; The Convention mechanism and off Convention mechanism31 National mechanism is understood as the way the nation implements the International duties Supervising mechanism is íounded by every International Convention and supervises the implementing process o f the Convention32 Thereíbre, the term o f mechanism used in International law contacts to different aspects in the implement eníbrcement o f International laws or only tilts onto organism, structure and íimction o f the institutions That decreases the value and the role o f the International laws in the

cognition as well as in the practice So, le ga ỉ mechanism to protect the rights

o f the child is understood as the system o f principles, ruỉes o f internationaỉ and national laws, the institutions (inlernational and national) and the relationship among them to promote andprotect the rights o f the children

Legal mechanism to protect the children consists o f International mechanism and National mechanism International mechanism is the system

o f the International instruments coníìrming the right o f the child and also duties o f their nations The International institutions aim at monitoring and helping the implementation o f the rights o f the child in every nation National mechanism consists of systems o f National law, relating to the rights o f the child This mechanism aims at implementing, promoting the right o f the child The protection o f the rights o f the children is the aim o f International community by the International mechanism but implementing the rights happens in nation by the National mechanism Thereíbre, the Legal mechanism to protect the rights o f the child creates the link between nations and the intemational community to promote and protect the rights o f the child

27 C.Davel, Children's Rights in a Transitional Sociely, Protea Book House 1999, p.21

28 Nguyen Kim Ngan, /mplementation o f International Law in Nation, Jurisprudence Joural

2002 (4), The Hanoi Law University, p.35-41

29 Supra note 24, p.7

30 Supra note 2, p.30

31 Clara Sominmarin, Advocating Children's Rights in the Human Rights System o f the

U nitedN ations, Save the Children Svveden 1999, p 19

32 Radda Barnen, M onitoring Mechanism in Sweden United Nalions Conventìon on the

Rights o f the Child, 1995, p.5

15

2.2.2 The role of the legal mechanism to protect the rights of the children

Nowadays, human rights in general and children rights in particular are recognized by the International community Hovvever, guaranteeing the implementation o f the rights o f the child happens in every nation It means that socio-economic conditions o f every nation have deĩmite iníluence the progress o f implementation o f the right Thereíòre the legal ties for nations are the guarantees for their child's rights That is the role o f the legal mechanism to protect the rights o f the child

Forming the legal mechanism means íorming the International principle, legal rules to protect the children's rights creating the tools to regulate the International relations in the field o f children' rights At the same time that is the base for organization and operation o f the International institution to promote the chilcTs rights

In the international scope, the legal mechanism is the essential condition for nations to implement the International integration at different levels It becomes the connection to understand the relationship during nations in the globalization It encloses distances o f differences and inequalities during nations through intemational criterion and standards about children's rights agreed in content o f International legal normative acts Agreeing the articles every nation makes the own interests suit to the international one

In the national scope, the legal mechanism to protect the childreris rights is legal basic operation and belongs to executive aspect o f the national sovereignty So that the legal mechanism in general and national mechanism in particular are the first and íòremost on base and for interests o f every nation Through the legal mechanism to protect the child's rights every nation has bases and also conditions to developed and perfect the systems o f national legal rules The duty o f the legislative activities o f every nation is to create the legal frame stable and suitable to implement the child's rights At the same time, on its bases a system o f institutions is íòrmed to step by step take the guarantee o f the child's rights into the real ỉife

In sum, the rights o f the child, to a deíinitive extent, have close ties to the own and practical interest o f every nation Therefore, guaranteeing the child's rights not only ties every nation to International legal duties but also

is prompted from the survival and developing requests o f nation The mechanism not only aims to guarantee the implement o f child's rights but also is the connection o f a nation to the intemational community in intem ational relationship

2.3 International legal mechanism to

protect the rights of the children

2.3.1 The system of International Instruments of

the children's rights

2.3.1.1 The period beíore 1989

During the longtime o f history, the children were considered as a dependent

individual, and even the properties o f their parents That led to bad result

when many tragedies for the children happened

In Europe, from century XIV to XV appeared some public prọịects for

children, such as the Hospital, Spedole Dgli Innocenti Flovent, Italia33

ỉn Asia, Hong Duc Code by the King Le Thanh Tong has the acts providing the

duties of the local heads and servants in helping the invalids children and orphans34

The vigorous development o f the industrialization in Europe during

centuries XVI, XVII and XVIII resulted in the popular exploitation o f child

labor Moreover, the First World Was (1914-1918) pushed millions o f

children into the poor condition That problem seriously upon the public and

that protection o f the child became the question seriously concemed by the

international communities35 In 1919 some save the children organizations

were established in the UK and Svveden At that same time ILO eníorced

some intemational instruments referring to protecting children in the ílelds of

labor, job and armed conílict However, these instruments had not put the

question under the angle o f children's rights The year o f 1923 was recognized

as an important point o f time in the íìeld o f protecting the children with the

event that Ms Eglatyne Jebb, the fưst women establishing the Save the

Children Fund in the UK had a famous Declaration: "I think we need request

some deíinitive rights for children and try to have popular recognition o f the

rights” Than Ms Eglantyne Jebb founded the Save the Children International

Union and started the draft o f the Children's Charter36

In 1924, the Declaration o f the Rights o f the Child was adopted by the

League o f Nations The Declaration consists o f 7 points stating the

children's rights in the economic and social íĩelds That's the point o f time

the children's rights were officially recognized in the international law

In 1948 the General Assembly adopted the Declaration on Human rights

That is the íìrst international instrument on the human rights and íreedom

including the children's rights Although that is not intemational instrument

own for children some provisions o f the Declaration directly referring to

some own special needs o f children in the Article 25 (3) it states: Mothers

and children are guaranteed to carry and help specially All children inside

33 N ational Assembly office- UN1CEF, The Rights o f the C hild & The Rights ofW om en

P rovided in International Legal Documents and Vietnamese Law, Ha Noi 2003, p 16

34

N ational Criminal Act, National Political Publishing House, Ha Noi 1995, Art 295

Supra note 27, p 16

A.Glenn Movver Jr, The Convention on the Rights o f the Child- Intemational.Law

Support for Children, Greenwood Press House, London, p 11

or outside marriage have the same welfare, the education is free, at least in Primary and secondary level.

In 1959 General Assembly adopted the Second Declaration o f the Rights o f the Child The contents o f the Declaration consist of 10 points and developed,

enlarged the content of the Geneva Declaration o f the Rights o f ứìe Child 1924 1

The Declaration 1924 and 1959 are recognized as the basic recourses for the later International instruments on the rights o f the Child On December 16,

1966 the General Assembly adopted two International Conventions

During this time, the UN also adopted some international instruments, such

as the Declaration on Protecting W omen and Children in emergency and armed conílict 1974, the Convention on the Elimination o f All forms o f Discrimination against W omen 1979, UN Standard minimum rules for administration o f juvenile justice 1985

During the period from 1959 to 1980, the UN and Inter-Govemmental Organizations adopted series o f intemational instmments on human rights including the rights o f the Child However, those instruments had no legal ties or not yet paid comprehensive attention to specific needs o f children Especially there was a lack o f appropriate mechanism for ensuring the childrerís rights 8

2.3.1.2 The Convention on the Rights of the Child 1989 (CRC)

The year o f 1979 was chosen by General Assembly as the International Year

o f Children and the idea o f Poland on draữing the proper intemational Convention on the rights o f children to protect and promote effectively the life o f the world children was adopted A working group consists o f representatives o f 43 countries parties o f the CHR led by the Polish lavvyer Lopatke and the representatives o f the UN specialized organs and organizations are appointed to draft the Convention The draft also get the active participation o f about 50 non-govemmental organizations over the world A ữer 10 years o f working with many amendments collections o f ideas

o f govemments, intemational organizations, the draft o f CRC was completed and passed on November 26, 1989 by the General Assembly On September

2, 1990 the Convention entered into force Nowadays, CRC has 192 countries parties (the USA and Somalia had not ratiíĩed yet)39 Vietnam is the fírst o f the nation in Asia and the second nation in the world ratiíying CRC

CRC provides the collection o f the rights o f the children and the guarantees

to protect care the children effectively: CRC not only deals with the rights

o f the children in general but also with groups o f children o f especially difficult situations such as disabled children and in armed conílicts40

CRC ties the duties o f all nations ratifying or participating in the implement

o f the right o f the child M oreover CRC established the legal m echanism to watch supervise the implement o f the rights o f the child in every nation

” Ibib, p 11

N Cantvvell "The origins, Development andSignificance o f the UNConverìlion on the Righís o f the

Child' in UB CRC: A guide to the Travaux Preparetoires, s Detrick (ed), Dordrecht, Martinus

39 http://www.Unicef.org/crc/fag.htm

40 James R.Himes (ed), Thom as Hammarberg, Im plem enting the C onvention on the Rights

o fth e Child, M artinus N ijhoff Publishers the Hague/Boston/London, p.5

That's why we can define that CRC is the most basic and comprehensive international legal instrument on the rights o f the children.

The rights o f the children are the deíĩnition in the International laws as the human rights CRC approaches the rights o f the child from the speciíication

in the physical and mental development o f the child Furthermore, CRC has concrete reference to the factors and situations, iníluencing the guaraiitee o f children's rights The Convention highly valuated the role o f the íamily, the most important environment for survival development and happiness o f the child CRC refers to the iníluence o f the cultural tradition for the children's life and development At the same time it pays strong attention to the International cooperation in this íĩeld

The rights of the child are cleared in CRC and they level the lack fields In the íồrmer legal instruments on the children rights Those are the basic factors making the CRC become ửie intemational legal tools in the protection of the childrerís rights

CRC refers the system o f the child's rights in different fíeld o f social life According to the traditional classiíĩcation, the rights o f the child consist o f the rights as follows: Civil, political, economic, cultural, social rights However being different from the Conventions o f human rights promoted

by international/speciíic characteristics o f the children CRC pays attention

on the fíeld such as guarantying survival o f the child, protecting the child and their participation That's why grouping the rights o f the Child, researches have the different acknowledge According to E Verheller author the child's rights are divided in to 3 rights (Provision, protection and participation)41 The UNICEF rnore simply understands that CRC is consists

o f 4 large íìelds: The right o f survival, development, protecting and participation42 In Vietnam the views o f many authors are the same as ƯNICÈF43

In our opinion, the system o f children's rights are not divided traditionally as the division o f human rights because of the child's essential needs to survival and development o f the child On the other side, the child's life is continuing development but not separated factor So that the groups o f rights have close relationship The division only relative iníòrmal but it has important mean in research, practice and expressly the media about the children's rights

In summary, CRC Corning to the reality life is not single and easy but is the long and difficult process In fact, violating the rights o f the child is popular

in every where However, the contents o f CRC are always the intemational standards for action o f every nation and is the most important international legal Instruments to promote and protect the children's rights44

41 Understanding Children's Rights- Collectecd papers presented at the firt international Interrdisciplinary Course on Children's Rights, University o f Ghent Belgium, 1996, p 35

42 M.G Flekoy, Eugeen Verhellen and F.Spiesschaert, CMdrerís Rights: Moniloring Issues, 1994, p.23

43 The Population, Family and Children Committee- UNICEF, The Necessary Knowledge

About ihe Rights o f the Child, Ha Noi 2002, p 11

44 Supra note 17, p 12

19

2.3.2 The International institutions to protect the rights of the child

2.3.2.1 The United Nations ( UN )

The General A ssem bly: is the highest representative and consists o f all nations parties o f the UN and has the right to m onitor all questions in the scopes o f the Charter including the questions o f the child right45 CRC is passed on N ovem ber 26, 1989

The Economic and Social Council (ECOSOC): The Council consists o f 52 members with the 3 years term o f office passed by the General Assembly having the duties to examine and recommend the questions o f economic, culture, social and human rights íĩelds46

To implement its duties, the Council established some functional committees, including the Human Rights Committees Any questions connecting children's rights are examined by the Committee then it sends the report and recommendation to the ECOSOC The ECOSOC signed the agreements on cooperation with all intemational organizations conceming, at the same time permits NGOs to have consultative regulation at different levels

The Commission on Human Rights (CHR): CHR is the íunctional organ o f the ECOSOC founded by the Resolution V (I) on February 2, 1946 It consists o f 53 members and representatives o f nations with the 3 years term

o f office and is voted by ECOSOC

According to the Resolution on June 21, 1946 by ECOSOC, the main function o f the CHR is to draft the legal Instruments, Declarations, to examine situations violating the human rights, the child rights in the nations,

to submit reports and recomm endation to the ECOSOC

2.3.2.2 The proĩessional orgnizations of the UN

The International Labour Organization (ILO)

ILO was founded in 1919 as the dependent organization beside UN and in

1946 ILO became the professional organ o f the UN by the Resolution 50(1)

on December 14,1946

ILO constructs the system o f the basic Conventions on Labor, in vvhich there are many articles, relating to the human rights such as Prohibitions o f forced Labor o f discrimination o f treatment in work and employment, improving work condition; guarantee o f equality and safe In the operations o f the UN and the CHR, the standards o f the ILO are given as the bases to refer to and resolve.The United Nation Children's Emergencv Fund ( UNICEP)

On D ecem berl 1,1946 the General Assem bly passed the Resolution 57(1) established UNICEF The UNICEF having the following functions:

- To care supporting and protecting interests o f developm ent o f children on over the world, concerning the developing countries children

-T o participate in emergency aids to help the children and the world victims

o f the wars, co n ílicts

45 The Charter o f the United N ations 1945, Art 13

46 Ibid, Art.62

In 1996, to suit the new world condition and circumstance supporting effectively the children, the Executive Council o f the UNICEF offícially passed "The Declaration o f U n ic e f" having the basic contents47:

- To implement all recom mendations o f the UN on protection o f the children, to support meeting the basic needs o f the children

- To support the Nations implementing their agreements on the children given by the UN Summit on the children 1990

- To collect all political will and material sources, helping the countries to construct capacities to recommend the suitable polices to hands over the

children's Service to their fam ilies.

-T o agree to guarantee the special protection for the children suffering from the top diffícult situations, such as: The children victims o f the armed conílicts, the poor children

- T o pass the nation programs to promote equal rights for women and girls children, at the same time support them to participate in the acts o f economic and political o f the nations and community The ƯNICEP cooperates with all govemments, intemational organizations and NGOs in frame o f CRC to get the aims for the children recommended by the summit on the children 1990

The ƯNICEP had the relationship to Vietnam from the end o f 1975 It is the one o f the international organizations having relation to Vietnam aíter Vietnam was compactly United Vietnam was high valuated by international community and the UNICEP as a nation seriously im plementing the agreements with the UNICEP and effectively spending aids programs from

U M C E P for the children and also making the big contribuíion into the programs for the future o f children in Vietnam and on over the world

2.3.2.3 The Committee on the rights of the child

According to the Article 43 o f CRC The Committee on the Rights o f the Child has the function to watch the progress o f nation parties getting in the impỉement

o f the Convention The Committee consists o f 10 specialists48 (today 18 specialists)49 reliable in moral and abilities o f many specific íields, such as politics, medicine, religious, traditions, social, Science and social work The specialists have 4 year term o f office and work as an individual but not as the representative to nations The Committee has 3 main tasks:

- To watch the periodical reports submitted by the nation parties on implementing the Convention

-T o give the recommendations to nations parties on implementing the Convention

- T o send to the UNICEP, professional organs or other com petent organs o f the UN proposal nations parties to implement CRC with the committee's recommends o f help to the proposals

W atching the nation reports50, the Committee has the right to ask the nations

to give the iníòrm ation relating to im plementing the Convention o f the nations ííom many sources such as the ƯN, NGOs The Committee can also invite the UNICEF, specialized organs, other organs in the UN system to

advise speciíic íìelds or give the iníbrmation, reports o f implementing the children's rights concerning to it's function.

The differences between the Committee on the rights o f the Child and the other Committee founded by the international convention on human rights are that the Committee creates opportunities for the NGOs The NGOs have the rights to submit the iníorm ation relating to the nations reports to the committee (Radda Barnen submitted the report in the years 1992-1997)51 The committee has no right to examine the complains and denounces relating to violating the children' rights recognized in the Convention The Committee has duty to report it's operation every 2 years to the UN through the Economic and Social Council

2.3.2.4 Non.Governmendal orgnizations (NGOs)

The nature o f NGOs is the groups charity, the criteria o f vvhich is the human aids for victims o f war and natural disasters and the poor

According to the deíĩnition o f the UN, NGOs is any organizations established not by intergovernmental agreements

It is the general characteristics o f NGOs that they are established by voluntary and legitimate way, not belong to the State administration and not for the aims

o f profit Under the UN Charter, NGOs enjoys consultative regulations in Economic Social Council, such as to participate in the discusses in meetings and to recommend the conceming questions into the meeting program

Through the work o f the groups o f NGOs for the Convention on the rights

o f the Child the NGOs has technical supported and Consulting in different periods such as drafting, passing ratiíĩcation and im plementing the Convention NGOs with the large o f representatives in every nation will eontinue llie work o f the Committee on the right o f the Child To gi ve the iníbrmation with documents to the Committee about questions relating to the nation Report52, having special support the sim ians53 N GOs are the active íòrces in forcing and maintain the people’s wide attention to CRC and implementing the Convention at the nation and international levels

In sum, CRC is the most important legal instrument on human rights o f the child

in the system o f intemational laws on hunian rights That is the first intemational legal instrument comprehensively dealing with and legally deíìning the rights of the child on the Progressive direction and on bases o f principles recognizing that the children have to be cared protected helped specially Beside the deíinition o f the Rights o f the children the Convention regulates the duties o f the Nation parties to guarantee the implement o f the Convention

Being together with the Charter o f the UN and the other International Convention

on the human rights, the CRC creates the system o f the International institutions

to watch, monitor and help the implement of right o f the children So that the system o f the International instruments on the Rights o f the Child is the legal premise of formation, organization and operation of the International mechanism

o f children's right Furthermore the presence and activities o f the institutions are tiie assurance for the realization o f ửie rights of the children It has had a great contribution to the fulfillment o f the Convention

51 Supra note 31, p.25

52 http://w w w U n.O rg/esa/sicdev/ebabke/ruggts/uncontrib-U nicef.htm

53 http://www.Ununh.ch/htm l/m enu2/6/crc

3 The National legal

mechanism to protect the rights

Base on the principles o f the Constitution, the Vietnamese legal system has institutionalized the rights o f the Child in various legal documents, creating

a system o f the legal documents on the rights o f the child54

3.1.1 Regulations of íaw on the survival of the child

It is obvious that wom en and children are interrelated naturally and legally With the believe that the protection o f health o f the Child has to be carried out since the fetal period, Vietnamese law has plenty o f regulations on the protection o f health o f the m other during pregnancy, birth giving and care- taking o f the baby The aim o f the protection o f health o f the program is to decrease the death rate o f children55 According to the 1989 Lavv on Protection o f the Public Health, women can have check-ups during the pregnancy; can enjoy health Service while giving birth at the health centers/units The MOH is responsible for strengthening, developing the network o f the matem ity and infancy departments to the grassroots level So

as to assure medical Service for the women What is more under the Labor law, w om en do not have to do any heavy and harmful work, affecting maternity health during pregnancy and care taking o f the child These regulations have created good working conditions so that the mother is able

to look after the child better

To ensure health o f the women during pregnancy is to make sure that the child is bom healthy and develop normally and to decrease the mortality among the infants According to CRC, the right to life is the íĩrst right that

54 Vu Ngoe Binh, An introduction to the U nitedN aíions Convention on the Rights o f the

Child, N ational Political Publishing House, Ha Noi 2002, p 181

55 The Constitution 1992, Art 63

23

the child can enjoy and that has to be protected In accordance with this idea, Vietnamese law has rigid regulations on the protection o f the right to the survival o f the child and the right to life o f the child particularly Children are entitled to the saíety o f their life, physical body and health56 This regulation considers the right to life o f the child as the first and protects

it the Criminal Code by saying that killing a natural newly born child is criminally liable57 These actions violate the inherent right to life o f the child This right is the basis o f other rights, as all other right can be fulfilled only with the presence o f the right to life - the right that totally depends on adults and parents

Children are physically and mentally immature; they can not bring up themselves Thereíòre, in the CRC, the concept o f ensuring the survival o f the child expanded It does not only mean ensuring not depriving o f life o f a child, but also mean ensuring the providing o f nutrition and the bets health care58 To have good health, children badly need special safeguards and care, íỉrstly, o f their families Legal regulations determine the responsibility

o f the íamilies in taking care o f the children

The comprehensive and harmonious development o f the child depends on health care, taken from birth to adulthood Consequently, it can be said that the right to health care is one o f the most important principles to ensure the right to the survival o f the child enshrined in the Vietnamese law

3.1.2 Regulations of law on the right to protection

Children are physically and mentally immature, so they need to be protected The protection o f children has drawn the special attention o f the international community and it is regulated by CRC In Vietnamese law, the right to protection o f the children occupies an important place in order to establish a legal framework for the living and development o f the children

Civil rights of the Child

C hild’s legal capacity: Children and adults are equal interims o f civil legal capacity, the capability o f the individuals to have civil rights and obligations The civil legal capacity o f an individual commences at birth and terminates at death59

Capacity for civil acts o f individuals: Obviously, Vietnamese law has provided the children with full capacity for civil acts vvhile they take part in civil relations so as they are able to exercise their capacity for civil acts and

to protect their best interests60

A child’s right to registration after birth The child shall be registered right after birth This right is aimed to conĩirm that a child is a special individual,

an independent subject and a citizen, equal to other citizens61 In practice dealing with this matter is not easy in Vietnam, especially in mountainous

56 The Civil Code 1995, Art 32

57 The Criminal Code 1999, Art 94

areas where the economic, cultural and social knovvledge o f the people are

at a low level In these places there are numerous children born without being registered after births

The right to a nationality: The 1998 Nationality Law provides that the identification o f a nationality o f a child is based on two principles: Principle

o f blood relation and principle o f the place o f birth: The combination o f the two principles is aimed at ensuring the right to a nationality and to avoid the phenomenon when a child may not have an identiíications

To ensure that children shall be taken cared o f and brought up in better material and spiritual conditions, Vietnamese law accepts the right to be adopted o f a child expressed62 Added to that, the laws also encourage the adoption o f orphaned, abandoned and disabled children in order to create better conditions for the children who are in especially difficult circumstances to be taken care o f and brought up properly6

Guardianship institution is another big institution o f the Vietnamese law Owing to this institution, children can be looked after and brought up in the cozy íamilies

The rights o f Inheritance: According to the Civil Code, an heir is a natural person, such person must be alive at the time o f commencement o f the inheritance, must have been conceived beíbre the person leaving the estate died and must survival birth64

The rights o f the child in the administrative sphere

Dealing with the administrative offences o f the children is considered as a preventative and educative measure; punishmení is only the secondary one Administrative offences, if not dealt with properly, may evolve to a more serious degree - crimes Thereíòre working with administrative juvenile delinquency is mentioned in the 2002 Ordinance on regulation o f administrative offences These rules have been originated from the human point o f view to administrative m inor’s offenders with the aim to educate them and to reduce the number o f minors who are prosecuted in criminal trials before courts

The rights o f the child in criminal sphere

For juvenile criminals: children are special subjects who are not able to fully recognize their behavious Accordingly, dealing with children's criminal offences should be based on special rules The principle o f dealing with juvenile criminals are aimed:

To educated children, help them develop fully and become useful citizens for the society

Juvenile delinquencies may be exempted from criminal liability if they commit less serious crimes, with mitigating circumstances and their families, institutions, organizations agree to supervise them

The determination o f criminal charges and application o f sentences are only in necessary situations and should be based on characteristics o f Crimes and personal records

62 The Civil Code 1995, Art 40

63 The Law o f Marriage and Family 2000, Art 60

64 The Civil Code 1995, Art 638(1)

25

Life im prisonm ent and Capital punishm ent are not im posed for any crim e

committed by Juveniles punishments for juvenile offenders must be lighter than for adults who commit crimes o f the same degree o f seriousness

The sentences for juvenile delinquencies who are under 16 are not taken into account determining repetition or serious repetition

For the violation o f the rights o f the child The 1999 Criminal Code contains harsh punishments for crimes that threaten life, honor and dignity

o f the children such as rape, kidnapping etc Crimes toward the children are one o f the aggravating circumstances o f the criminal liability

The rights o f the child in the economic and labor spheres

Vietnamese ỉaws have a lot o f regulations on protection o f the children in the economic and labor spheres by limiting m inim um ages for work and employment as well as for jo b training Laborers must be at least 15 years old, capable o f vvorking and signing an employment contract65 Learners niust be at least 13 years old to join vocational centres, except for some kinds o f jobs determined by the M ILOSA and must be healthy enough to meet the requirements o f the training66

To ensure that children should physically and mentally develop well, laws for bits juvenile laborers to do heavy, dangerous work or have contact with poisonoưs agents Juvenile laborers are not allowed to work more than 7 hours per day and 47 hours per week67

Protection o f children against exploitation and sexual exploitation

Children by the reason o f physical and mental unmaturity, are easily effected by violent actions, exploitation and sexuai exploitation These actions have deep negative effects on the children and cause long-term consequences Hence, Vietnamese laws have special measures on the protection o f the child against exploitations, including sexual exploitation6X For the sexual exploitation o f children, the 87Decree/1995/ND-CP dated

D ecem berl2,1995 determines different measures to regulate cultural activities and services The spread o f cultural Products and services that inspire sexual desire or sexual activities is strictly prohibited These rules have the purpose limiting the children's contacts with in appropriate sources

of information and restricting the possibility to encourage adults' sexual exploitation o f children those harm íul cultural Products

Protection o f the child from narcotize drugs use

Drug addiction is big danger o f the whole society For children, apart from bad effects on health, drugs also have serious iníluences on their study and moral So, the responsibility o f families in protecting the children against drugs69 For schools, the law provide that schools have to organize educational programs on prevention and protection against drugs and disseminate law concem ing prevention and protection against drugs70 Schools are supposed to co-operate w ith specialist organizations to do tests

to fínd out children addicts W ith the attempt to prevent and stop drugs in

65 The Labour Code 1994, Art 6

66 ibid, Art 22

67 ibid, Art 121-122

68 LPCEC 2004, Art 55

69 LPCEC 2004, Art 22; The 2000 Law on Prevention and Protection against Drugs, Art 6

70 The Law on Prevention and Protection against Drugs 2000, Art 10

general, the 1999 criminal Code has one chapter (Chapter XVII) deíìning drug-related crimes Especially, has provisions on íbrce encouragement o f other people to illegally use drugs main victims o f which are children.

For homeless children:

Family environment is the best place for children to be cared for, brought up and to form their personality However, in practice, by different reasons children are temporarily or permanently deprived o f their families In that case, children need a substitution environment or need bringing up at foster homes Due to the human tradition o f the nation and in accordance with CRC Vietnamese law states that all íbrms o f discrimination o f homeless and abandoned children should be eliminated71

- For disabled children: Vietnamese laws recognize that children who are

physically or functionally impaired have to face a lot o f difficulties in their lives72 In Vietnam, under the iníluence o f the wars, orange agent and epidemics there have been a lot o f disabled people To create good conditions for the children to join the community, Vietnamese law provides that they should enjoy special heath care MOH, MOLISA and MOTE are responsible for caring for disabled children and applying measures o f functional rehabilitation o f disabled children According to Vietnamese laws, disabled children are encouraged to study at schools for other children

as well as at exceptional schools for the disabled Disabled gifted children have the priority to join suitable schools for gifted children So, the

establishm ent o f the schools for disabled people by organizations and

individuals and it encourages such establishment to help those people rehabilitate, get knovvledge, learn job skills and merge into the community ĩife

3.1.3 Regulations on the participation rights of the child

Participation o f children is a process, during which children actively take part in making decisions relating to their lives Consequently, children need

an appropriate environment to exercise the participation rights It is necessary to create essential conditions for them to exercise these rights íully if there is no such an environment Children have the right to hold and express opinions, whishes o f issues relating to them74 This view point is enshrined in Vietnamese legal documents, children betvveen 6-18 years old have the rights to establish and períòrm civil transactions to meet the needs

o f daily life75 The family environment is always essential for the development o f children Thereíbre, to create better living conditions for children, Vietnamese law provides that children have the rights to be

71 LPCEC 2004, Art 42

72 Eva Lindskog and Nguyen Xuan Hai, Education for every Children, Save the Children

Svveden, National Political Pưblishing House, Ha Noi 2002, p.78

73 The Lavv on Education 1998, Art 58

74 LPCEC 2004, Art 20

75 The Civil Code 1995, Art 22

27

adopted Anyway, the adoption o f children who fully reach the age o f 9 must be agreed by them76.

Nationality is a legal relation between the State and citizens The right to a nationality o f children is protected by the international law and domestic law Normally, when the parents change their nationalities will result in such change o f the child Change o f a nationality o f children aged betvveen 15-18 must have their consent

In the administrative íìeld, if an administrative decision is unfair and violates civil rights, every citizen, including children, has the right to appeal against that decision The participation right o f the child is not only the right

to take part in legal relations, but is also the right to seek and receive iníormation, the íreedom o f association and peaceful assembly77

Obviously, the participation right o f the child is coníìrmed in Vietnamese Constitution and Law, reílecting essential needs o f children's comprehensive and healthy development The participation right in the intemational law is human rights and in the national law is a condition to ensure a democratic society

child to development

Children grow up with care and protection o f the families, school and society As a result, the right o f the child to development is aimed to enable the maximum development o f the child, both physically and intellectually The fírst and the íbremost environment for the development o f the child is the family Hence, the responsibilities o f the family for the development of the child are identiíĩed in Vietnamese legal documents to ensure the environment for the development o f the child 8

The child's development much depends on the educational environment The policy o f the State o f Vietnam "education and training are o f paramount national importance" has been institutionalized in the system o f ỉaws, concerning education and leaming in general and the right to educaíion of children particularly Primary education is compulsory and tuition free79 This rule o f the Constitution is the legal ground for the right to education o f the children and it establishes conditions for the right to be carried out Together with the rule o f the Constitution, the 1991 Law on Primary Education are the most comprehensive and unanimous instrument on the right o f the child to the universalization o f education Especially, the law determiner the responsibilities and duties o f the íamilies, the State and the social organizations in ensuring the compulsory primary education o f the children Under this law, Vietnamese children, aged 6-14 have the right to the primary education vvithout paying tuition fees The State and the society are in charge o f helping and establishing the conditions for the children who

76 The Law o f Marriage and Family 2002, Art 71

77 The Constitution 1992, Art 69

78 LPCEC 2004, Art 13

79 The Constitution 1992, Art 59

are in specially diffícult circumstances, the orphaned and homeless children the giíted children are supported to develop their talents.

In Vietnamese education system, under the 1998 Law on Education, beside the primary education, there are also other education levels, to vvhich children also have the right such as nursery education and secondary education

In Vietnam laws, the education o f values o f children is also paid a special attention The general objective o f the Vietnam education is to form and develop personality, dignity and abilities o f the citizens80 The 1998 Law on Edưcation is the details o f the rules o f the Constitution on the cultural, education regime o f Vietnam

Children are subject needing a special care in different aspects o f life Children not only need health care, study, but also need recreation and entertainment To ensure the recreation and entertainment o f the children means to ensure their comprehensive development, including health, intellectual and personality development To do that, Vietnam recognizes the right to recreation and entertainment to participation in cultural and artistic activities o f the children in the system o f laws, and deíines the responsibilities o f the State, society and families to ensure the rights81 To ensure this right, the State has studied and implemented study programs combined with healthy recreation appropriate to their age, so as to help them develop fully82.Besides, the State also encourage and supports the building, maintenance and effective use o f materials, technologies and other facilities that serve children's study and recreation

To promote the creativity and comprehensive development o f the youth, Vietnamese law respects and fully protects the right o f children to seek and receive the information appropriale to them83 However, by the reason o f unmaturity, their receiving information is not the same as that o f the adults Added to that, the contents o f the iníòrmation also have effects on the development o f the children Therefore it is necessary to ensure that they receive the iníbrmation relevant to their age, their cognitive level and the iníòrmation that reílects humanity values Under Vietnamese law, the State must ensure the composition, publishing and distribution o f books, films, music, artistic Products and the períbrmances o f songs, plays, circuses which are suitable to the children The State must also ensure that 15% o f the cultural Products published every year go to the children In the case, there are no special facilities for the children, 20% o f the capacity o f the public facilities must be provided for the children's use84

To ensure the right to receive iníbrmation o f the children does not only mean to create suitable conditions for them, but also prohibit harmíul sources o f information Vietnamese law has paid a lot o f attention to this aspect In publishing and press activities, the law has very detailed regulations on inappropriate iníòrmation which is necessary to be disseminated to the children The production, import, copying and provision

80 The Constitution 1992, Art 35

81 LPCEC 2004, Art 17

82 The Lavv on Education 1998, Art 2 1

83 The Constitution 1992, Art 69

84 The Decree 374/1994/HDBT date N ovl ], 1994

29