INTRODUCTION
Communities in Vietnam effectively manage natural resources by leveraging customary law, as recognized in the Law on Forest Protection and Development This legislation emphasizes the importance of prioritizing forest assignments to village populations, aligning with the customs and traditions of ethnic minority groups (Art 20(2)(a), Decree N° 23/2006).
Customary laws play a crucial role in regulating social relations among ethnic groups that live in harmony with forests and depend on jungles for their livelihoods These laws, which have evolved over centuries, focus on safeguarding traditions, customs, festivals, and agricultural practices Indigenous people adhere to these customary laws voluntarily, regardless of their recognition by state laws These compulsory rules govern the actions of community members, outlining what is permissible and what is not According to Ngo Duc Thinh, a prominent researcher in folk culture, customary laws reflect the behavioral experiences of society and the natural environment, passed down through generations through social and productive practices.
Vietnam is a multi-ethnic country with 54 distinct ethnic groups, each characterized by unique languages, lifestyles, and religions The diverse geographic features and cultural practices lead these groups to adhere to their own customs and laws Since the 1990s, the Vietnamese government has increasingly focused on customary law, driven by significant economic and social changes stemming from the Doi Moi policy initiated in 1986 This policy transitioned Vietnam from a centrally planned economy to a multi-sector economy, resulting in new civil and commercial relations that require regulation As state law struggles to address these evolving social relations—such as inheritance, marriage, and land transactions—customary law has emerged as a vital regulatory framework It plays a crucial role in managing social relations among Indigenous peoples, covering areas like land and forest management, property disputes, and family matters Customary law not only establishes rules but also provides mutually agreed-upon dispute resolution methods, fostering voluntary compliance among community members.
1 See more details in Chapter 5 ‗The Vietnamese Legal System
2 Duy Nghia Pham, 'Confucianism and the Conception of the Law in Vietnam' in John Gillespie and Pip Nicholson (eds), Asian
In "Socialism & Legal Change: The Dynamics of Vietnamese and Chinese Reform" (ANU E Press, 2005), it is highlighted that customary law exists alongside state law, irrespective of its official recognition This perspective was notably discussed during two conferences on Customary Law held in Dak Lak Province in 1997 and Lao Cai Province in 1999, where researchers emphasized the co-existence of these legal systems.
In 1997, the Justice Department of DakLak Province presented a paper discussing the relationship between customary law and state law, highlighting the significance of integrating local legal practices with current legal frameworks This presentation emphasized the need for a cohesive understanding of how traditional laws can coexist with modern legal systems, reflecting the unique cultural context of DakLak Additionally, the insights from the Justice Department of Lam Dong further contributed to this discourse, illustrating the complexities of legal relationships in the region.
3 Huy Tuan Hoang, 'Decentralization and Local Politics of Forest Management in Vietnam: A Case Study of Cơ Tu Ethnic Community'
4 Quoc Anh Tran, above n 713, 101–6; Xuan Tien Ha, 'Tap Quan va Thuc Tien Xet Xu Cac Vu An Dan Su cua Toa An Nhan Dan Tinh
Customary law serves as the primary method for resolving disputes within minority ethnic communities in Lao Cai Province However, the relationship between indigenous peoples and forests contrasts sharply with the government's top-down approach to forest management, which often neglects local needs and dynamics This disconnect frequently leads to conflicts with local values and customary laws, ultimately undermining the self-determination and cultural rights of ethnic minorities, rendering them outsiders in their own development.
Recent studies on customary laws of various ethnic groups, including the Ede, Mnong, Xre, Ma, Stieng, and Jrai, have revealed their significance in cultural preservation and the historical context of these communities With detailed analyses comprising numerous chapters and articles, these studies highlight the essential role of customary law in forest management and conservation practices among ethnic groups like the Cống.
The Cơ Tu, Khơ mú, and other minor ethnic groups in Vietnam have limited information available about their customs and practices To gain deeper insights, a case study titled "Customary Law of the Kho Mu Community in Forest Protection, Co Cuom Village, Pa Khoang Commune" was conducted, focusing on the local level.
5 Ngoc Trach Nguyen, 'Mot Vai Van De Luat Tuc va Van Dung Luat Tuc Tren Co So Phap Luat Thong Qua Phong Trao Xay Dung Nep
In 1999, a paper titled "Customary Law and Customary Law Application in Accordance with State Law through the Movement of Building Cultural Lifestyle and Cultural Family in the Highland Areas in Quang Ngai Province" was presented at the conference on the relationship between state law and customary law in Lao Cai The work, translated by Ngoc Trach Nguyen, explores the interplay between traditional practices and legal frameworks in the mountainous regions of Quang Ngai.
6 Nha Y, Loc Nguyen and Phi Y, 'Giai Quyet Tranh Chap Dan Su Trong Luat Tuc Ê Đê — M'Nông' (2001) 2
Tap Chi Nghien Cuu Lap Phap 51, 51–8 [Trans: Nha Y, Loc Nguyen and Phi Y, ‗Civil Dispute Settlement in Customary Law of Ê Đê – M‗Nông (2001) 2 Journal of Legal Studies].
GOAL AND OBJECTIVES
This project aims to enhance the understanding of customary law's role in forest protection for an ethnic minority group in Co Cượm village, located in Pá Khoang commune, Dien Bien province The specific objectives focus on examining the relationship between traditional legal practices and environmental conservation efforts within this community.
1 To identify customary law in forest protection of Kho mu community
2 To assess current situation of applying of Kho mu customary law in forest protection
3 To give recommendation for enhancing the role of Kho mu customary law
METHODOLOGIES
Study site
Figure 3.1 Pá Khoang commune location
Pá Khoang commune, situated 40 km from Dien Bien Phu in Dien Bien district, is characterized by its mountainous terrain and altitude ranging from 880 to 1635 meters above sea level Bordered by Armor Na Swallow to the north, Pu Nhi to the south, Armor Muong Phang to the east, and Ta Leng and Thanh Minh to the west, it experiences a tropical monsoon climate with distinct rainy (April to October) and dry (November to March) seasons The average annual rainfall in this region varies significantly, contributing to its unique ecological environment.
Pá Khoang, with an annual rainfall of 1600 to 2000 mm and an average temperature of 21.5 to 22.5˚C, is a water-rich area featuring abundant streams and the largest water reservoir, which holds 40 million m³ and supports the 1200 ha Muong Thanh rice fields for both national and international markets The region's economy greatly benefits from its fertile alluvial, black, and red soils, making it ideal for growing industrial crops and short-term plants, as well as livestock such as pigs and buffalo However, recent outbreaks of diseases have affected livestock populations, particularly chickens and ducks The commune is home to four ethnic groups—Thái, Hmong, Kinh, and Kho Mu—each with rich cultural diversity and unique customs The Kho Mu people have developed sophisticated irrigation systems, including canals and dams, to cultivate wet rice, the primary crop in Pá Khoang, alongside maize, bamboo, cassava, soybean, and peanuts to mitigate food shortages Despite this agricultural diversity, households typically face 1 to 2 months of food scarcity annually, with an average of 0.1 ha of land used for agricultural production per person.
Since being classified as a poor commune in Dien Bien province in 2010, Pá Khoang has received government support through poverty reduction programs, leading to improvements in infrastructure such as power lines, roads, and water supply systems Despite these efforts, only 15% of the population currently has access to electricity, and many roads remain low quality and impassable during the rainy season Water sources are polluted, prompting residents to dig wells, while the gravity water supply system reaches just 36% of the community Tourism is on the rise, particularly due to the historical significance of the area as the headquarters of the Dien Bien Phu campaign, which has attracted visitors and spurred local economic activity, including the sale of medicinal products This growth has led to improved living standards, with families investing in motorcycles and televisions, and the emergence of small businesses in the service sector However, increased development has also strained local resources and traditions, exemplified by the unregulated sand exploitation since 2008, which has contributed to soil erosion and biodiversity loss in the area.
3.2 Overview the Kho mu in Vietnam
The Kho Mu ethnic group, part of the Mon-Khmer linguistic family, is believed to be one of the original inhabitants of northern Laos, with a history spanning over four centuries Currently, there are approximately 900,000 Kho Mu people globally, with 600,000 residing in Laos, making them the country's second-largest ethnic group Significant populations are also found in Vietnam (73,000), Thailand (20,000), China (20,000), and the United States (10,000) In Laos, the Kho Mu primarily inhabit the provinces of Luang Prabang and Xieng Khoang Traditionally, they practice swidden agriculture, focusing on upland rice cultivation, utilizing slash-and-burn techniques to prepare their fields Historically, the fallow period for their fields was around 15 years, but it has now decreased to three to five years, alongside supplementary activities like fishing.
The Khmu people engage in hunting and gathering as integral components of their household economy They are recognized for their craftsmanship in weaving basket-ware, primarily created by men, which serves both domestic purposes and trade with other ethnic groups Culturally, Khmu animism highlights the significance of taboos, with villagers believing that breaching these taboos can provoke the wrath of spirits.
According to the 1999 nationwide population census in Vietnam, there are 56,542 Kho Mu ethnic people primarily residing in six northwestern border provinces In the 1989 numerical ranking of officially recognized ethnic groups, the Kho Mu were listed as the 23rd group in Vietnam (Son, 2006).
The Kho Mu people in Vietnam share significant cultural and geographical ties with the Thai community (Chung, 2005; Son, 2006) However, their origins in Vietnam remain a topic of debate among scholars, with some suggesting that they migrated to present-day Vietnam at various points in history.
Two centuries ago, the original land of the Khmu people in Laos was conquered by groups from present-day Thailand and Yunnan, China, while some scholars argue they are the indigenous inhabitants of northwest Vietnam Despite differing origins, there is a consensus on their connection to Thai culture Prior to 1954, the Khmu were in a dependent position, often renting agricultural land from neighboring Thai communities Both Thai and Khmu legends suggest that the two cultures share a common ancestry, tracing back to the same cucurbit.
The Kho Mu people of Vietnam rely heavily on natural resources for their traditional livelihood, engaging in shifting cultivation, hunting, gathering, and fishing, while also producing basket ware for trade with other ethnic groups Individual households serve as the primary economic units, although collective labor exchange occurs during the planting and harvesting seasons Within each household, there is a distinct division of labor based on gender and age, with male members typically responsible for physically demanding tasks such as clearing rice fields.
The Khmu people are an ethnic group primarily found in northern Laos, where they practice agriculture, hunting, and rituals, with women handling domestic tasks such as cooking and harvesting Traditionally, their houses were made of bamboo and thatch, although such structures are now rare In Vietnam, Khmu people have largely abandoned weaving, opting instead to purchase clothing from neighboring ethnic groups, particularly the Thai Their social structure is organized into villages, known as "cung," which consist of multiple clans, with elders managing both internal and external affairs A unique aspect of their marriage customs includes temporary matrilocal residence, where the husband lives with his wife's family after marriage The Khmu adhere to animistic beliefs, with rituals closely tied to their agricultural lifestyle, including planting and harvesting ceremonies The village ghost ritual, known as "hroi cung," is a significant communal event aimed at ensuring good fortune for the upcoming year.
For this research, interviews and focus groups are two most useful tools of primary data collection
Prior to fieldwork, I examined secondary data from various sources, including the Forestry University of Vietnam, the Department of Forestry Development in Dien Bien, the Department of Agriculture and Rural Development in Dien Bien, and the Vietnam Bureau of Statistics This research helped me gain insights into the study site, the local population's characteristics, and the objectives of my project I identified key themes from the literature to compare with real-world observations.
I conducted a survey with paper and pencil, distributing questionnaires to 30 randomly selected households out of 49 in the village The survey aimed to assess villagers' awareness of the significance of customary law in their lives, particularly regarding forest protection Key questions included whether they believe customary law is essential for safeguarding the forest, their desire to maintain it, and their compliance with its regulations Additionally, the survey explored how they can preserve their customary law, their awareness of state law, the relationship between the two legal systems, and any potential conflicts that may arise between customary law and state law.
I organized two focus groups to gather insights on customary law and its application The first group consisted of Kho Mu village leaders, clan leaders, and elders, aimed at understanding their beliefs and perceptions regarding customary law as implemented through commune conventions The second group included forest rangers, FMB, and CPC staff, focusing on their views about the effectiveness of integrating customary law for forest protection Coordinating meeting times proved challenging; I spent a week in the village to build rapport with the first group, sharing meals with village and clan leaders The second group had more structured schedules, working actively from Monday to Wednesday mornings While some older participants may have experienced memory bias, 30 respondents provided clear and descriptive insights on customary law.
The face-to-face interview method proved to be the most suitable approach for this research, allowing for in-depth responses and detailed explanations from participants Notably, I conducted interviews with the Director of FMB and the Vice Chairman of CPC, each lasting approximately 30 minutes Their extensive experience and deep understanding of the current situation regarding ethnic minority groups provided valuable insights for the study.
Methods
Vietnamese scholars argue that customary law encompasses a broader scope than Western law, as it regulates traditional practices, morality, and behavior Recent studies on adat in Indonesia highlight that it governs not only legal matters but also moral conduct and community behavior (Nhat 2001: 57) Nhat identifies key characteristics of customary law among ethnic minority groups, noting that it is collectively created by the community rather than enforced by a specialized organization This law evolves over generations, adapting to the needs and desires of the community to form a more complete code (2001: 63) Unlike state law, which is often crafted by ruling classes to serve their interests, customary law is deeply ingrained in the cultural values of the community, promoting stability and peace Thinh (2000: 22) categorizes existing forms of customary law into three distinct types.
- Customary law codified in oral poetry
- Customary law recorded in written forms
- Customary law realised in social practice
4.2 Customary law and State law
There is a Vietnamese saying, which reflects popular relationship between two forms of law in the past and partly at the moment The saying ―phep vua thua le lang‖ is
LITERATURAL REVIEW
Concepts
Vietnamese scholars argue that customary law encompasses a broader scope than Western legal systems, as it governs traditional practices, morality, and behavior Recent studies on adat in Indonesia reveal that it similarly regulates law, morality, conduct, and character Nhat (2001) identifies key characteristics of customary law among ethnic minority groups, noting that it is collectively created by the community rather than by a specialized organization This law evolves over generations, adapting to the community's needs and desires, contrasting with state law, which is often designed to serve the ruling class Customary law, deeply rooted in cultural values, contributes to the stability and peaceful coexistence of communities Thinh (2000) categorizes existing forms of customary law into three distinct types.
- Customary law codified in oral poetry
- Customary law recorded in written forms
- Customary law realised in social practice.
Customary law and State law
A Vietnamese proverb highlights the historical relationship between two forms of law, stating that "the king's legislation is secondary to village regulations." This saying, interpreted by various scholars, emphasizes the enduring influence of local customs and regulations over formal legal systems.
The relationship between the feudal government and village customs in Vietnam highlights the dominance of local regulations, known as huong uoc, over the king's rules (Thinh 2000: 34) Customary law possesses unique strengths that statutory law often lacks, serving not only as a replacement but also as a complement to state laws, which cannot account for every specific circumstance (Huong 2000: 89) This evolution of customary law occurs naturally, adapting to the specific needs of local communities while also aligning with the acceptance of the ruling government.
The importance of customary law in rural development
In exploring the relationship between tradition and economic growth, Hoselitz (1961) highlighted that traditional norms can hinder social and technical change while also providing stability in times of economic development that may lead to social disorganization Customary law plays a crucial role in preserving a community's long-standing beliefs and practices, fostering harmony among members and with nature, often invoking spiritual elements (Nhat 2001) This law not only serves as guidance but also functions as an organizing mechanism that influences education and social management through training, encouragement, and discipline Thinh emphasized that the survival and adaptation of traditional law depend on principles that prioritize beneficial aspects and discard those that no longer fit contemporary social contexts (2000) Ultimately, customary law is integral to community identity and promotes active participation in development, making its preservation essential for building local capacity and achieving sustainable rural development.
RESULTS
Description of Kho mu community
Since 1954, the Kho Mu people have migrated to this region, actively participating in the national resistance against French colonialism for nine years Their commitment to the struggle continued for nearly 21 years as they fought against American forces, ultimately contributing to the establishment of peace in Vietnam.
In contemporary times, local communities, particularly in Co Cượm village, thrive under governmental policies by cultivating terraced fields, gathering fruits, and hunting wild animals To diversify their livelihoods and combat poverty, they also engage in raising livestock and poultry for transportation, food, and religious purposes The residents speak a language from the Mon-Khmer language group, and basketry is a highly developed skill among them, showcasing their rich cultural heritage.
Co Cượm, meaning 'Chinese black olive' in Thai, refers to a significant tree with a remarkable 2-meter width, believed to harbor a benevolent spirit that benefits the local villagers This unique tree is a vital part of the community, which includes 49 households and 231 household registers.
Customary law in forest protection of the Kho mu
The Kho-mu people practice animism, believing that all entities possess a soul and are influenced by various spirits, particularly the powerful deities of heaven, earth, water, and forest They revere the heavenly genie and its assistants, such as the spirits of thunder and ancestors, who are believed to bless them with abundant crops, health, and safety Annually, the Kho-mu conduct rituals to honor village spirits and ancestors, seeking prosperous harvests and reinforcing their commitment to forest conservation This spiritual connection fosters respect for nature and prohibits harm to the forest, ensuring its protection for future generations.
In Co Cượm village, the Kho Mu people classify their forests into two categories: the forbidden forest (brị đặm đà), which is sacred and located near the headwater forest, and the forest designated for the deceased These supernatural and forbidden forests are strictly protected, prohibiting residents from entering for any purpose, including collecting firewood or searching for lost livestock Access is only permitted during shaman-led forest ghost rituals, adhering to customary laws that impose penalties for unauthorized entry This forbidden forest is also recognized as a special use forest by the Pa Khoang Commune Forest Management Board.
Figure 5.1 Forest for the community
Customary law is reflected in rituals, where any wrongdoing by a villager leads to punishment from the village leader Each year in August, according to the lunar calendar, the Kho Mu community celebrates the forest ghost ritual, praying for peace, good fortune, bountiful harvests, and safety Notably, the Kho Mu recognizes a week as consisting of ten days Prior to the ritual, offerings are made, including two chickens (one rooster and one hen) and a pig.
In a traditional village setting, community leaders will prepare bamboo shoots infused with white wine, measuring 20 cm in length, alongside four cups made from 5 cm bamboo shoots The labor tools crafted from wood include swords, crossbows, knives, and double sets of necklaces and bracelets, complemented by four baskets with a specified diameter.
The construction of a tent for offering ceremonies requires four bamboo poles, which are used to support a roof made of alang grass Additionally, the tent must have a base measuring 20 cm in width and 40 cm in height, lined with banana leaves and filled with husks Strong men are specifically chosen to assist in the building process.
Figure 5.2 Basket for the ritual
The ritual begins at sunrise, where the shaman performs a dance and recites spells to communicate the villagers' hopes to the forest spirits for about 30 minutes Two men then carry a bamboo hammock filled with offerings as the shaman leads them to the village, where the community gathers A man boils a shell-less egg and touches it to the heads of family members, followed by the shaman blessing each individual before dropping the egg into the hammock This process continues as the shaman prays for each villager Finally, the shaman instructs the men to circle the village three times with the hammock before casting it out of the village, completing the ritual.
After the ritual concludes, villagers must remain in the village for three days, with strict penalties for any rule violations Preparations for the next year's ritual include gathering offerings, and those who cut trees in the ghost forest face fines, which may include a 50-60 kg pig, a couple of chickens, and offerings to honor the ghost forest The village leader emphasizes the importance of adhering to these principles, warning that further violations will result in severe consequences To deter outsiders from approaching the village, a shaman places a protective symbol as a warning.
The Kho Mu community benefits from a public forest that provides essential resources such as building materials, cooking wood, and vegetables for families This forest also serves as a designated hunting area, where the Kho Mu people are required to follow regulations to ensure the protection of the forest and its wildlife.
Co Cượm village is uniquely defined by the ridge of mountains that forms its boundary The village leader is responsible for creating a detailed map, which is then distributed to the leaders of neighboring villages This system plays a crucial role in the management and protection of the village's resources and territory.
The Kho Mu community safeguards their revered supernatural forest through a collective effort led by village and clan leaders, particularly from the dominant Quàng, Lường, and Lò clans in Co Cuom village Prior to the annual forest ghost ceremony, this group convenes to plan and organize the event, selecting three or four strong young men, around 20 years old, to assist the shaman (Mo môn), who possesses the ability to connect with supernatural forces These chosen individuals follow the shaman's directives during the rituals, while the group also designates families responsible for providing offerings, primarily consisting of chicken and alcohol.
The Kho Mu community has established a comprehensive forest protection regulation system that combines traditional customs and guidelines on acceptable behaviors This system not only outlines actions to take and avoid but also incorporates community prayers and regulations that impose penalties for violations The primary goal of these regulations is to safeguard the forest by promoting responsible behavior among the Kho Mu people.
Kho mu customary law applying in local situation
a The current status of forest resource
In Pa Khoang commune, forests cover 3,397.83 hectares, representing approximately 60% of the land area, with production forests accounting for 1,017.31 hectares (18%), protection forests at 3.25 hectares, and special-use forests comprising 2,377.27 hectares (47%) However, recent reports indicate a concerning decline in both animal and tree populations due to forest destruction Between 2010 and 2014, the Forest Management Board documented 42 cases of deforestation and illegal land encroachment, totaling around 3,800 m², alongside 3 instances of illegal timber transportation The board confiscated 11.25 m² of logs and stored 1.55 m³ of illegal timber from 6 cases, highlighting the urgent need for effective forest management and enforcement of state laws to combat these issues.
The Land Law (1993, revision 2003), Law on Forest Protection and Development
(1991, revision 2004) and the related decrees (01/CP/1995, 02/CP/1994) and programs
(327 and 661) are meant to enable recovery and ensure a better protection of forests
State laws and policies focus on sustainable natural resource management, primarily concerning forest ownership Forest resources are managed by state institutions such as the FMB and CPC, which are responsible for enforcing these laws In contrast, the Kho Mu community traditionally allocated forest lands through customary laws However, following land reforms in the 1960s, forests were designated as state property and allocated to institutions like cooperative farms and SFEs This reform disregarded existing community boundaries and local customs, denying access to forests for those who relied on them, thereby infringing on their ancestral lands and sacred sites This loss has contributed to cultural erosion and increased conflict within the community.
Since 1995, the FMB has signed contracts with household groups in Pa Khoang for forest protection under programs 327 and 661, with some households also contracted under Decree 01/CP/1995 to safeguard natural forests in exchange for remuneration Despite not receiving payments since early 2009, these households remain dedicated to forest conservation Additionally, they are assigned restoration forest plots by the CPC for management and regeneration, allowing them to utilize non-timber forest products (NTFPs) and receive rice as remuneration However, the implementation of state laws has led to conflicts and the erosion of customary law due to overlapping regulations.
Advantages of Customary Law in Application
In a society governed by the state, the interplay between state law and customary law is influenced by various factors, particularly the dynamics of state-local relations For the state to acknowledge customary law, it must consider potential drawbacks that may arise from this recognition While the coexistence of these two legal systems can enhance social relations overall, it also has the potential to create conflicts in legal application.
Customary law is flexible and adaptable Though, according to many definitions
The recognition of customary law plays a crucial role in promoting self-determination for communities, aligning with human rights development It serves as a legal endorsement of diverse cultures, allowing indigenous peoples and ethnic groups to practice their traditions and adhere to their social norms This framework fosters an environment free from language barriers and cultural differences, enabling a deeper understanding and interpretation of customs within their communities.
Customary law is a fundamental aspect of indigenous communities, deeply intertwined with their cultural identity However, conflicts often arise between these traditional laws and the regulations of the modern nation-state, complicating their recognition and integration Issues governed by customary law, such as ownership, inheritance, and family matters, reflect the community's desire to uphold their own legal frameworks rather than conform to state-imposed laws Changing these entrenched customs is not a simple legislative process, highlighting the complexities of harmonizing customary law with national legal systems.
Customary law operates within specific local jurisdictions and often involves traditional leaders, enhancing its credibility among ethnic communities It encompasses various social relations, including civil, marriage, family, criminal, and administrative matters Additionally, customary law can complement the state legal system by addressing customary cases, thereby alleviating the burden on courts.
Certain ethnic groups often choose to apply customary law exclusively to civil cases, while it also governs a restricted range of minor criminal matters, particularly those involving children or common assault.
Customary courts provide significant advantages by aligning with the expectations of Indigenous peoples and minority groups, facilitating swift decision-making through mutual consent based on local customs Typically led by community-elected judges, these courts ensure simpler enforcement of decisions, as appeals are rare Their procedures are characterized by simplicity, affordability, accessibility, and speed, making them easily understood by users who receive prompt case outcomes Additionally, customary tribunals offer geographic proximity and relevance, fostering a sense of ownership among community members Unlike state courts, which may require extensive reforms, customary courts demonstrate resilience, practice restorative justice, and maintain flexibility in their operations.
Conflict between state law and customary law is a common issue in legal applications, arising from various sources and impacting areas like jurisdiction, scope, and procedures The primary challenges revolve around two key conflicts: state sovereignty and the judiciary.
The conflict between state sovereignty and the right to autonomy presents a significant issue, as the state shares its legislative, executive, and judicial powers with ethnic communities in shaping and applying both state and customary law However, this sharing is inherently unequal due to the power dynamics between the state and these groups While the state views law as a means to achieve political objectives, local communities seek laws that empower and protect their rights, rather than serving political interests Furthermore, customary law can be susceptible to manipulation by influential factions within communities, leading to potential abuses where it is used to serve the interests of the powerful rather than delivering justice.
The conflict surrounding the recognition and application of customary law can undermine the consistency and unity of the legal system, as it risks transforming customs into externally imposed regulations enforced by state courts, rather than being administered internally as they once were This tension reflects a broader struggle between conservatives advocating for the strict adherence to traditional customs and reformists seeking to adapt these customs to contemporary societal needs while preserving their essential spirit Furthermore, the application of customary law can lead to confusion regarding jurisdiction and procedures, complicating the enforcement of judgments from Indigenous courts.
To some extent, customary law may be inconsistent, unpredictable and discriminatory‗ For example, equal access to the law (irrespective of age or gender) may not be an embedded principle
State law functions as a dynamic series of activities, making it impossible to maintain a completely stable identity In socialist and democratic states, it typically manifests as legislation proposed to the elected government, which can later be amended or repealed Additionally, court decisions are made, appealed, and either overturned or upheld, leading to an evolving understanding of the law.
Customary law is an empirical phenomenon rooted in long-established community practices Its application relies on stable rules that have evolved over time, making them resistant to change.
Recognizing customary law emphasizes cultural uniqueness and acknowledges the community as a distinct entity entitled to uphold its traditions While this empowerment benefits the community, it may also create challenges within the diverse contemporary multi-ethnic society in which it exists.
CONCLUSION AND RECOMMENDATION
Customary law is a dynamic set of rules that governs social interactions within a community, evolving through a bottom-up process where customs become norms over time It aims to maintain social order, promote collective benefits, and ensure community survival This flexible framework adapts to contextual changes and is rooted in a value and belief system that encourages adherence to expected norms In Pa Khoang, for instance, the worship of various spirits, including forest ghosts, illustrates the community's deep-seated beliefs The perceived severity of punishments linked to these customs often outweighs those imposed by state law, such as imprisonment or fines The Kho Mu people continue to uphold their beliefs, values, and norms, particularly regarding natural resources, as evidenced by the customary laws in Co Cuom village that guide harmonious interactions with nature.
The Kho Mu people's strong beliefs in customary law continue to influence their forest protection practices, with traditions being orally transmitted by village elders and clan heads However, in recent decades, these traditional institutions have faced pressure from government-established formal structures, leading to a diminished role for customary law Changes in forest land management since 1960 have empowered district authorities and formally appointed leaders, while socio-economic and technological advancements have further impacted cultural values Despite the presence of attitudes favoring a harmonious relationship with nature, the survival of customary law is increasingly threatened by ongoing social and technological progress.
State laws and programs have largely overlooked customary law and indigenous knowledge, failing to recognize their beneficial roles for both nature and society Since 1960, government initiatives have transferred forest ownership to cooperatives and state organizations without considering local rules and structures in Pa Khoang commune Recent policies continue this trend, neglecting to create conditions for community forest ownership Additionally, the Kho Mu people have limited awareness of state laws and policies due to insufficient access to information, resulting in their exclusion from the development process and challenges in managing state-initiated plans effectively.
At the time of research, local authorities had not effectively implemented a land reallocation program, resulting in limited rights for individuals to access and utilize land and forest resources Furthermore, confusion and conflicts regarding boundaries have contributed to the ineffective use, protection, and development of forests.
The study concludes that customary law is diminishing while state policies and programs are failing to operate effectively, creating an unsustainable situation for both the community and the environment in Co Cuom village To address these issues, the following recommendations will be proposed.
Policymakers and legislators must prioritize the study of customary law, recognizing its spiritual values and contributions to social development and environmental conservation It is essential to amend existing land and forest laws to bridge the gap between customary and state law, such as by permitting community ownership of forests and acknowledging local classifications of forest boundaries Additionally, the spiritual significance of forests should be formally recognized in natural resource management and conservation planning By integrating customary and state law, awareness and acceptance of formal regulations will increase, making state interventions more attuned to the genuine needs of local communities Furthermore, customary law can offer valuable insights for state law, promoting a more behavioral approach that enhances its effectiveness.
In national and local planning processes, it is essential to provide communities with the opportunity to develop, revise, and implement their own natural resource management rules, reflecting their cultural values and customary laws Authorities must recognize the significance of indigenous knowledge embedded in these customs to prevent its loss and to uphold social order This understanding fosters effective community control and protection of resources in collaboration with state institutions Furthermore, when implementing state programs at the local level, it is crucial to thoroughly assess and address any conflicting impacts of various programs through meaningful participation from local residents.
Local authorities must acknowledge and leverage the contributions of traditional institutions, such as village elders and priests, in managing, utilizing, and protecting natural resources, as well as in education and conflict resolution To enhance forest protection, it is essential to develop innovative tools that foster collaboration between formal and local institutions Additionally, local governments should establish clear and consistent information management systems to monitor and analyze forest-related indicators, ensuring that this information is systematically shared with local communities, including traditional institutions.
Research into customary law and indigenous knowledge among ethnic minority groups is essential, regardless of their social and economic conditions Understanding these elements can enhance state laws and policies for sustainable natural resource management This study serves as a preliminary step toward exploring the relationship between customary law and sustainable practices in a specific region.
I hope to continue my efforts to get a deeper understanding of customary law.
ANNEX
Customary law State law Culture Habits
Customary law represents a body of local knowledge developed over time through human experiences and interactions with one another and the natural world This legal framework is transmitted across generations via teachings and practices, serving to guide and regulate relationships among individuals and their environment.
Customary rules are recognized and accepted by the whole community and applied in daily practice to create unity and balance each community‘s society
Customary laws are spiritual and profound
State law is a system of reasoning closely with the procedures promulgated and strictly expressed in written form by the state
The legal system of the state was promulgated to maintain a stable order for the development of society State laws are regulations and laws regulating relations in the society y
Culture is the united collection of all products of human organization
Culture includes physical aspects such as housing, clothing and non-material aspects such as language, ideology and values and other philosophy
Habits are established behavioral patterns and lifestyles that are ingrained in our daily actions and repeated over time, making them challenging to alter Unlike customary laws, habits are not universally practiced or accepted by all members of a community.
Table 2: History of Pa Khoang commune managing
Forest resource status Human activities
Before 1960 Common proverty Abundant high value timber, diverse aminal and bird
Streams contain many fish and plenty water
- Shifting cultivation and exploring land for owning
- Small population, rich resources, no conflict
- Water use is almost from streams
- Agricultural land was managed by the cooperatives Only 5% of land did use by household farmer
- Forest land was managed by afforestation yards
- High value timber was over-exploited
- Shifting cultivation and exploring land for owning
- Slash and burn was spreaded out widely
- Residents and afforestation yard‘s stuffs together exploited timber
- Besides, illegal cutting timber without permission From 1990 to
Forest Land was managed by Dien Bien afforest yard (changed name in 2008 into Special Use forest Management Board)
- People‘s Committee of Dien Bien managed forest area
- Forest resource declined due to overexploitation
- Wild animals were over-hunted, large animal went extinct
If local residents want to cut tree with 5m 3 They have to ask village People‘s committee, if they want to cut higher volume of timber, they have to ask CPCs
- Freely to collect wild plants such as medicinal plants and herb
- Vilage convention and customary law
Source: Forest Ranger in Pá Khoang commune
Table 3: Question for how customary is applied in current situation
Authority and power What is the structure and function of authority?
What is its legitimacy? What power does it exercise?
Rights Who define the right? Who enjoy the right? Who benefit from this right?
Participation and decision making Who can participate and at what level? Who makes decision for whom?
The evolution of laws and policies has significantly shaped community governance from the past to the present Many villagers adhere to these regulations, though their reactions can vary, reflecting a mix of acceptance and resistance The implementation of these laws has led to the protection of substantial forest areas, highlighting their role in environmental conservation Understanding the relationship between villagers and these legal frameworks is essential for assessing their effectiveness and impact.
Local authorities face the challenge of integrating customary law (CL) with statutory law (SL), raising questions about their understanding and application of CL While some local authorities recognize the importance of CL, there are significant limitations in its integration, including potential conflicts with SL and varying levels of enforcement Additionally, local authorities' perspectives and attitudes towards CL can influence its effectiveness and acceptance within the community, highlighting the need for greater awareness and training regarding customary practices.