International human right law on the family – looking from the past and policy and legal implications for Vietnam in a changing world

Công ước quốc tế về bảo vệ các quyền của tất cả người lao động di cư và thành viên gia đình của họ (ICRMW) 452 (các điều 4, 44, 45 và 50) đề cập rõ ràng là người lao động di cư và ―c[r]

INTERNATIONAL HUMAN RIGHTS LAW ON THE FAMILY – LOOKING FROM THE PAST AND POLICY AND LEGAL

IMPLICATIONS FOR VIETNAM IN A CHANGING WORLD

Mr Vu Ngoc Binh Senior Adviser Institute for Population, Family and Children Studies (IPFCS)

1 International human rights instruments on the family - looking from the past

Although families all over the world have transformed greatly over the past decades in terms of their structure and as a result of global trends and demographic changes, the United Nations (UN) still recognizes the family as the basic unit of society409 The following UN international human rights instruments determine standards for the right to marriage and family:

The Universal Declaration of Human Rights (UDHR) 410 (article 16) upholds family as the natural and fundamental unit in society It establishes the right of men and women to marry and found a family; their equal rights as to the marriage, and that consent to marriage should be freely given411

The International Covenant on Economic, Social and Cultural Rights (ICESCR)412

(article 10) elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions Article 10 reiterates some basic rights concerning family life and then goes on to establish further rights of pregnant mothers to maternity leave and social security

The International Covenant on Civil and Political Rights (ICCPR)413 (article 23)

elaborates the principles laid out in UDHR414 and guarantees the right to a family

The Declaration on Social and Legal Principles relating to the Protection and Welfare

of Children, with special reference to Foster Placement and Adoption Nationally and Internationally415 provides important guidelines for the fostering and adoption, including inter-country adoptions of children who lack appropriate parental care

The Convention on Consent to Marriage, Minimum Age for Marriage and Registration

of Marriages and the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages416 reiterate the right to full consent and also require states to establish a minimum age for marriage

409

https://www.un.org/en/events/familyday/

410

https://www.un.org/en/universal-declaration-human-rights/

411 The UDHR was adopted by the UN General Assembly as a resolution, which is not itself formally legally binding despite common assumptions to the contrary However, it did establish important principles and values which were later elaborated in legally binding UN treaties Moreover, a number of its provisions have become part of customary international law

412 https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

413 https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

414 All the three – UDHR, ICCPR and ICESCR are often referred to as the international bill of human rights

415 https://www.un.org/documents/ga/res/41/a41r085.htm

416

https://www.ohchr.org/EN/ProfessionalInterest/Pages/MinimumAgeForMarriage.aspx

The Convention Relating to the Status of Refugees417 (article 12) includes guidelines and principles established under the auspices of the UN High Commissioner for Refugees (UNHCR)418 strengthen provisions regarding refugee rights to family

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)419 is a very relevant treaty when it comes to discrimination and unequal treatment of women vis-a-vis their status in the family and includes provisions on marriage and nationality (article 9), equality and consent, rights and responsibilities within marriage, family planning, guardianship and adoption, women's right to choose a family name, a profession and an occupation, ownership and property, minimum age for marriage, and compulsory registration

of marriages (article 16)

The Convention on the Rights of the Child (CRC)420 (articles 9, 10, 20, 21, 22)

addresses the separation from parents (article 9), family reunification (articles 10 and 22) and measures for children lacking parental care (articles 20, 21) Although under international human rights law, it is the State which is primarily obliged to implement the CRC, the Convention highlights the important role the family, guardians or others who are legally responsible for the child, play in protecting children‘s rights and ensuring their well-being The CRC Preamble states that the family is the fundamental group of society and the natural environment for the growth and well-being of its members and, as such, should be afforded the necessary protection and assistance It does not refer to a single form of family, instead referencing a variety of different forms The CRC clearly recognizes children as rights-holders, which entails the right of children not to be discriminated against on any grounds, including the type of family in which they grew up; the right to be heard; and the right to preserve their identity, including nationality, name and family relations as recognized

by law without unlawful interference Families can be dangerous places for children, who could experience and/or witness physical and sexual violence, and harmful traditional practices such as child, early and/or forced marriage, so-called honour killings and female genital mutilation In that context, the CRC in its article 19.1 obliges States parties to take all appropriate measures to protect children from all forms of physical or mental violence, injury

or abuse, including sexual abuse or neglect

The International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families (ICRMW)421 (articles 4, 44, 45, 50) explicitly refers to migrant workers and "members of their family", which are defined as "persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or

417

https://www.unhcr.org/1951-refugee-convention.html

418

https://www.unhcr.org/

419

https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

420 https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

421

https://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx

multilateral agreements between the States concerned" (article 4) The treaty recognizes that

"the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers" States are also expected to facilitate family reunification and the treaty stipulates that states "shall favourably consider granting equal treatment, as set forth in paragraph 2 of the present article, to other family members of migrant workers" (article 44) Members of the families of migrant workers shall enjoy equality of treatment with nationals with regard to access to education, social and health services and participation in cultural life States also have to facilitate integration of children of migrant workers in the local school system, particularly in respect of teaching them the local language and the mother tongue and culture (article 45) Finally, the treaty stipulates that in case of death of a migrant worker or dissolution of marriage, the state of employment shall favourably consider granting family members of that migrant worker residing in that state an authorization to stay (article 50)

The Convention on the Rights of Persons with Disabilities (CRPD)422 is the first comprehensive human rights treaty of the 21st century and is the first human rights convention to be open for signature by regional integration organizations Family takes a significant place within the CRPD It states that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities For many persons with disabilities, their family has been, and remains, a source of empowerment For others, their family has perhaps been overprotective, restricting their growth as individuals Tragically, for others still, their family has viewed them with stigma or shame, and has even become a source of abuse and neglect Society has a responsibility to persons with disabilities and their families The community, as well as local and national governments should assist families to empower fully their members with disabilities and to provide them the necessary support to flourish as individuals

In article 23 of the Convention, governments agree to protect persons with disabilities against discrimination in matters relating to marriage, relationships and the family They also agree to ensure the equal rights of children with disabilities with respect to family life, and to ensure that children with disabilities are not separated from their families against their will except when necessary for the best interests of the child Should the immediate family be unable to care for a child with disabilities, Governments agree to undertake every effort to provide alternative care within the wider family or, failing that, within the community in a family setting

2 Other international commitments related to marriage and family

UN key documents including the 1968 Tehran Declaration on Human Rights423, the

1994 Cairo Conference on Population and Development Programme of Action424, the 1995

422

https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html

423 https://www.unfpa.org/events/international-conference-human-rights

424

https://www.unfpa.org/publications/international-conference-population-and-development-programme-action

Beijing Fourth World Conference on Women425, all contain provisions regarding the rights of individuals to family planning

 Right to marry and found a family

The family is recognised as the most natural and fundamental unit of society and therefore the right of all to marry and found a family is protected in human rights law Human rights law does not dictate the types of family unit that are deemed acceptable and in the world today there are many diverse forms of families and marriages, as recognized in the legislation

of many countries That family diversity comprises single-parent families formed by choice or resulting from divorce, separation, or death; child-headed households; extended and intergenerational families; and same-sex couples, all of which require different support

Whether these rights apply to same-sex couples has become a matter of discussion in recent times Although human rights law does not make explicit reference to this, a number of its provisions concerning the right to marry and have a family, right to equality and non-discrimination etc can be interpreted to mean that gay and lesbian couples should enjoy the protection of human rights law

 Equal rights of men and women in the family

Human rights law asserts the equal rights and responsibilities of both men and women at marriage, during the marriage and at its dissolution However, in many countries round the world, women do not have equal status compared to men in marital and family life Laws and practices governing the status of women in the family often circumscribe their role in the unit and their legal capacity The status of women is often determined by their relationship to male family members and may affect their rights and entitlements e.g right to inherit family property

In some countries, women‘s rights in various areas e.g nationality and citizenship are curtailed

or denied by law upon entering a marriage

 Right to give full and free consent to marriage

Human rights treaties say that no marriage should be entered into unless consent is freely given by the intending spouses Forced marriages for economic or cultural reasons continue to be practiced in many countries in the world today Forced marriage of girls under 18

is an area of particular concern Child marriage is a human rights violations Studies have shown the health risks and prevalence of domestic violence linked to early marriage There are

a number of human rights campaigns aimed at preventing early and forced marriage of children States are also required by a 1965 treaty to specify a minimum age for marriage It does not stipulate a minimum age Nor does the Convention on the Rights of the Child which defines a child as all persons under 18 but allows states to specify their own age limits for different matters under national law

 Right to family planning

This right of individuals to freely determine the number and spacing of their children

425

https://www.un.org/womenwatch/daw/beijing/platform/

has been recognised by major UN conferences on population and development in Tehran in

1968 and in Cairo in 1994 However, the right has not been enshrined in a legally binding human rights treaty and the whole issue of family planning remains a controversial one for a variety of reasons: fear of coercive family planning programmes; idea that family planning promotes promiscuity; abortion debate and status of the unborn child

 Rights of children to parental care

The rights of children to parental care are specifically protected in children‘s rights treaties and governs the obligations of states to ensure children are not separated from the parents without a due judicial process, and to provide support for the parent and family unit Provisions governing maternity rights no doubt stem from the basic principle that the fundamental bond between mother and child should be supported A number of treaties emphasise the need to states to provide extra provision for pregnant women, to allow them maternity leave before and after childbirth which is either paid leave or leave with adequate social security benefits

Human rights law lays down a number of standards governing the treatment of children who do not have parents and covers such issues as fostering, adoption, inter-country adoption At the heart of these principles is the need to ensure the best interests of the child are met and to guard against the exploitation and abuse of this especially vulnerable category of children The duty of parents to ensure provisions are made for children at the dissolution of a marriage is also prescribed

 Right to family reunification

Where parents and children are residing in different countries, states are obliged to facilitate contacts and deal with requests to enter or leave a state party for the purpose of reunification in a humane and expeditious manner Such rights are only to be restricted for reasons of national security and public order This is a particularly important right for refugees and special procedures exist in most countries to reunify refugee parents with their children Human rights treaties oblige states to take special measures to trace the parents of an unaccompanied refugee child and to reunite them together

Other individuals within families also need and are entitled to protection, as they are the rights-holders, not the family, and as such, States bare the primary responsibility to ensure that their rights are adequately protected, no matter what form their family takes In fact, the violence that can occur within families in all regions of the world, and the family is not always the safest place for individuals, especially women, children and the elderly Specific examples include forcing female victims of sexual assault to marry the perpetrator of the assault, and child, early and forced marriages, as violations, abuse or impairment of human rights Lesbian, gay, bisexual and intersex persons (LGBTIs)426 are often vulnerable to being disowned, abused

or forced to undergo involuntary psychological or medical treatment by their families

426

https://www.coe.int/en/web/commissioner/thematic-work/lgbti

3 The 2030 Agenda for Sustainable Development and family laws

On 25 September 2015, the 193 UN member states unanimously adopted the 2030

Development Agenda427 with the Sustainable Development Goals, a set of 17 goals and 169

targets aiming to eliminate poverty, discrimination, abuse and preventable deaths, address environmental destruction, and usher in an era of development for all people, everywhere Families and family-oriented policies and programmes are vital for the achievement of many

of these goals

The Agenda sets forth numerous lofty objectives that are expected to drive the UN and its Member State policies, programming and spending for the next 15 years The SDGs are also expected to drive legal reforms in many areas, and billions of dollars in funding will support their implementation in countries around the world The 2030 Agenda is nonbinding for

UN member states; nevertheless, it is expected to have a profound influence on laws and policies across the world Indeed, a number of the goals and targets call for changes in national legislation The 2030 Agenda provides a more holistic, coherent and integrated approach at the national, regional and global levels with several inter-linkages within the social sectors The implementation of the SDGs on the ground will require better collaboration between different entities, including civil society and the private sector (SRV, 2018)

Around the world, family laws428 govern family relations and seek to protect the vulnerable family members, including women, children and older persons Fair family law frameworks are especially vital to ensure gender equality and tackle various forms of violence

in families

In many countries family law became key to ensure and to expand women‘s rights Other countries have outlawed gender discrimination and made better provisions to protect children within families but urgent family law reforms and policy initiatives are still needed to ensure better protection of women and children from various forms of violence and abuse Custody and inheritance laws, in particular, are in need of urgent reform Importantly, national family laws should comply with international standards and ensure the rights of all family members

Nevertheless, in some regions, discrimination against women, often perpetuated at the family level, is built into legal frameworks and government policies Family laws may actually codify discrimination against women and girls and place them in a subordinate position to men in families, replicated at the community and society level Societal customs, often reflected in existing laws may condone practices reinforcing inequality and violate children‘s rights, such as dowry or early, enforced and child marriage, leading to various forms of gender inequality and injustice Gender inequality within families may also be perpetuated for economic reasons and due to social norms such as the desire for sons, who have filial obligations to care for their ageing parents or dowry-related financial reasons What‘s more, family relations are often regarded as a private domain with family laws lacking specific provisions of intervention by the State

427 https://www.un.org/sustainabledevelopment/development-agenda/

428 https://iclg.com/practice-areas/family-laws-and-regulations/the-practice-of-international-family-law

Despite progress in reforming laws, discrimination against women in the law remains pervasive in several areas, particularly in the area of family law in many countries429 For example, data from the UN Women Progress Report 2015–2016 shows that over 115 countries have passed laws on domestic violence, on sexual harassment, equal pay and guaranteed paid maternity leave Similarly, women have equal rights to own property in over 100 countries, by law Nevertheless, these numbers also indicate that there are a host of other countries that need

to reform their laws in the same areas No matter how small the number of countries, the presence of discriminatory laws can hinder substantive equality For example, 27 countries discriminate against women in their ability to confer nationality on their children In addition, over sixty countries deny women equal rights with men to acquire, change or retain their nationality, or confer their nationality on their non-national spouse In many cases this has resulted in ―statelessness‖ for their spouse and children Statelessness negatively impacts education and employment opportunities because securing jobs and going to school often requires proof of citizenship and residence Family laws are not based on the principle of gender equality, especially with respect to divorce, custody of children and inheritance and tend

to discriminate against women

4 Legal changes and reform are needed for Vietnam in a changing world

The family is the basic social unit in Vietnam and is regarded as the foundation of the country‘s culture and society430

Traditionally, the vast majority of Vietnamese families consisted of three generations living together under one roof But modernisation, social change and economic forces are changing this family structure There is a growing tendency for more nuclear families and fewer multi-generational ones There are more female-headed households and family breakdown is increasing (Vu Ngoc Binh, 2014) According to the 2006 Family Survey431, the pattern of households with two generations stands at 63 per cent and the proportion of three-generation households is decreasing The traditional Vietnamese family still gives power to the male head of the family

For the past decades, there have been four following main national trends of family formation and family structure in Vietnam (IFGS, 2014):

 Facing changes in structure leading towards smaller size households, delayed marriage and childbearing, increases in divorce rates and single parenthood;

 Undergoing demographic transformation characterized by aging;

 Affected by a rise in migration; and

 Trying to cope with the effects of globalization

The current 2013 Constitution432 affirms in its Article 36.2: ―The State protects marriage and family, and protects the interests of mothers and children‖ (NA, 2013)

429 http://www.unwomen.org/en/news/stories/2017/2/take-five-begona-lasagabaster-discriminatory-laws

430 the Vietnam Family Development Strategy through 2020, with a 2030 Vision

431 http://tapchikhxh.vass.gov.vn/he-gia-tri-gia-dinh-viet-nam-truyen-thong-va-doi-moi-n50123.html

432

http://constitutionnet.org/sites/default/files/tranlation_of_vietnams_new_constitution_enuk_2.pdf

The 2014 Law on Marriage and Family433 has many significant changes, representing

a new perspective on the issue of marriage and having children of married couples, especially the adjustment on marriageable age and the brand-new regulation of altruistic surrogacy (NA, 2014) One of the most intense debates is about whether to recognize ―same-sex marriage‖ in Vietnam The Law repealed the ban on marriage between people having same gender in order

to avoid discrimination However, that marriage basically is the combination of two different genders, the Law cites in its article 8.2 ―the State shall not recognize marriage between persons of the same sex"

In fact in Vietnamese society, lesbian, gay, bisexual and intersex persons (LGBTIs)434

as a group are marginalized and have faced significant gender inequalities, in terms of access

to health care, social, economic and legal services, and are the target of stigma, discrimination and violence because of their sexual orientation and identity Many LGBTI children face challenges as they do not conform to traditional male and female roles As a result of negative attitudes towards the families of LGBTIs, many are reluctant to ‗come out‘ as they worry about the ―ill reputation for their families‖ and violence against themselves Many of them are subjected to discrimination and humiliation or are forced by their parents or relatives to undergo ―counseling‖ to change their sexual orientation or gender identities Those children are very anxious and heavily depressed because they often cannot share their emotions and mental status with others Therefore, many of them feel discouraged and leave their families

to become wandering people, leave school to be at risk of alcohol abuse, cigarette smoking, drug use and sexual exploitations and abuse

The 2005 Youth Law435 identifies the responsibilities of the State, families and society

to protect and nurture young adults aged 16-18 The law further stipulates that the State shall apply the CRC to all persons under 18 years of age (NA, 2005)

The 2006 Law on Gender Equality 436 provides principles on gender equality in all areas of society including politics, the economy, labour, education, and family life In education, for example, female government staff with children under three years old will be supported when taking part in training courses (NA, 2006) The law also stipulates the responsibilities of institutions, families and individuals in implementing gender equality (UN Women, 2009)

The 2007 Law on Prevention and Control of Domestic Violence437conveys the message that domestic violence is a violation of the law rather than an internal family affair It provides measures to prevent and control domestic violence, and to protect and support its victims The responsibilities of different agencies, families and individuals in preventing domestic violence and measures to handle domestic violence are also stipulated (NA, 2007)

433 https://vietnamlawenglish.blogspot.com/2014/06/vietnam-marriage-and-family-law-2014.html

434 https://vietnam.oxfam.org/lgbti-rights

435 https://vanbanphapluat.co/youths-law-no-53-2005-qh11-of-november-29-2005

436 https://vanbanphapluat.co/law-no-73-2006-qh11-of-november-29-2006-on-gender-equality

437https://luatminhkhue.vn/en/law-no-02-2007-qh12-dated-december-05 2007-of-the-national-assembly-on-domestic-viole nce-prevention-and-control.aspx

The 2016 Law on Children 438 sets out the principle that the rights of children should

be the first consideration in all activities implemented by agencies, organisations, families and individuals The law clarifies the responsibilities of state agencies, families and the society with regard to children (NA, 2016a)

Under the 2016 Law on International Treaties (article 6)439, international treaties cannot be directly enforced in Vietnam unless they have been incorporated or codified into the national law International treaties are considered as an integral part of Vietnamese legislation In cases where a national legal document, except the Constitution and an international treaty to which Vietnam is a party contains different provisions on the same matter, the provisions of the treaty shall prevail, In addition, the promulgation of legal documents must ensure that they do not obstruct the implementation of international treaties

to which Vietnam is a party440 The codification of international treaties has become a principle in the development and promotion of the national legal system, and efforts have been made to ensure compliance with the principles and provisions of relevant international instruments through improving its national legal framework and systems (NA, 2016b)

Vietnam has strong family and community values that provide a solid foundation for

creating a protective environment for all children and the Vietnam Family Development

Strategy through 2020, with a 2030 Vision441 recognises the need for greater focus on parenting skills and parenting education, and outlines the obligations of government ministries, mass organisations, communities and families to help achieve this objective The challenges facing families in Vietnam nowadays demand a comprehensive, family-based approach to many social and development issues at the national and international levels Supporting the family, sheltering it from poverty, providing social protection, ensuring work-family balance and furthering social integration through the strengthening of intergenerational solidarity are important objectives of social policy and social development

There is a need to identify various problems that emerged due to the changes in functions and the structure of the family unit Reduction of emotional and physical support by the family would directly affect the personality development of children and their health There are unmet needs of social security provisions and care for older persons, which result in additional social costs at macro-levels These are key issues in the policy making process particularly in Vietnam There is a need for policy-making, taking in to consideration the needs of the family at the grass root level, which would be different from a ―top down‖ approach, but tending towards a ―bottom up‖ technique of planning and the recognition of sociological aspects of family life in policy and law making (Vu Ngoc Binh, 2016)

438 https://ilo.org/dyn/natlex/docs/ELECTRONIC/103522/125796/F-1725767197/VNM103522%20Eng.pdf

439 https://luatminhkhue.vn/en/law-no-02-2007-qh12-dated-december-05 2007-of-the-national-assembly-on-domestic-viole nce-prevention-and-control.aspx

440 Vietnam has been a State Party to many relevant international treaties, including ICCPR, ICESCR, ICERD, CEDAW, CRC, ICRPD, and CAT

441 https://vanbanphapluat.co/decision-no-629-qd-ttg-approving-the-vietnam-family-development-strategy

REFERENCES

1 Institute for Family and Gender Studies 2014 The Vietnamese Family in the Process

of Industrialization, Modernisation and Integration from Comparative Approach

Social Sciences Publishing House Hanoi: IFGS

2 National Assembly 2005 Youth Law Hanoi: NA

3 National Assembly 2006 Law on Gender Equality Hanoi: NA

4 National Assembly 2007 Law on Prevention and Control of Domestic Violence

Hanoi: NA

5 National Assembly 2013 Constitution of Vietnam Hanoi: NA

6 National Assembly 2014 Law on Marriage and Family Hanoi: NA

7 National Assembly 2016a Law on Children Hanoi: NA

8 National Assembly 2016b Law on International Treaties Hanoi: NA

9 National Assembly 2017 Law on Promulgation of Normative Legal Documents

Hanoi: NA

10 Socialist Republic of Vietnam 2018 Vietnam‘s Voluntary National Review on the

Implementation of the Sustainable Development Goals Hanoi: SRV

11 USAID & UNDP 2014 Being LGBT in Asia: Vietnam Country Report Bangkok:

USAID & UNDP

12 United Nations Entity for Gender Equality and the Empowerment of Women 2009

CEDAW and the Law: A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW Hanoi: UN Women

13 Vu Ngoc Binh 2013 The Family in International Human Rights Law (presented at the

International Conference on Vietnamese Families in the Context of Industrialization, Modernization and Integration in Comparative Perspective Hanoi, 7-8 November

2013 organized by the Institute for Family and Gender Studies under the Vietnam Academy of Social Sciences in Hanoi, 7 November 2013) Hanoi: Vu Ngoc Binh

14 Vu Ngoc Binh 2016 Marginalized and Venerable Groups in the World and

Vietnam – from an International Human Rights Law (Paper prepared for a ministerial

research project in 2015-2016 on Interests Groups in Law-making – Actual Situations, Causes and Solutions executed by the Institute of Legal Science in the Ministry of Justice) Hanoi: Vu Ngoc Binh