The urgency of studying the topic Protection of citizens POC in general and POC going to work abroad according to international treaties on labor cooperation LCs in particular are the o
Trang 1GRADUATE ACADEMY OF SOCIAL SCIENCES
NGUYEN THI HUONG LAN
PROTECTION OF VIETNAM CITIZEN TO WORK ABROAD ACCORDING
TO INTERNATIONAL TREATIES ON LABOR COOPERATION
Specialization: Constitutional Law and Administrative Law
Code: 9.38.01.02
SUMMARY OF JURISPRUDENCE DOCTORAL THESIS
Hanoi, 2021
Trang 2Vietnam Academy of Social Science
Scientific instructor 1: Assoc.Prof.Dr Dinh Ngoc Vuong
Scientific instructor 2: Assoc.Prof.Dr Le Mai Thanh
Reviewer 1: Assoc.Prof.Dr Nguyen Van Quang
Reviewer 2: Dr Tran Quoc Toan
Reviewer 3: Dr.Nguyen Van Quan
The dissertation will be defended in the presence of the Thesis Dissertation Council of the Academy, meeting at the Graduate Academy of Social Sciences
on:
The thesis can be found at:
- National Library of Vietnam
- Library of Graduate Academy of Social Sciences
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PREFACE
1 The urgency of studying the topic
Protection of citizens (POC) in general and POC going to work abroad according to international treaties on labor cooperation (LCs) in particular are the obligations and responsibilities of each State towards its citizens me Citizens have the right to be protected by the State while residing in their own territory as well as when they reside abroad The Constitution of Vietnam in 2013, in addition to a clearer and more specific recognition of human rights and
citizenship: “In the Socialist Republic of Vietnam, human rights, civil rights in
politics, people economic, cultural and social affairs are recognized, respected, protected and guaranteed according to the Constitution and the law ” [3; Clause
1, Article 14 ], also directly affirms: “Vietnamese citizens abroad are protected
by the State of the Socialist Republic of Vietnam” [3; Clause 3, Article 17 ]
In Vietnam, after 30 years of Doi Moi, along with an active and proactive open-door policy, the labor migration of Vietnamese citizens has increased rapidly In fact, Vietnamese citizens going to work abroad under the ITOLC still face risks such as political instability, natural disasters, epidemics
in host countries; working in a toxic, dangerous environment, being beaten, exploited or abused ; being paid disproportionately, being discriminated against
in terms of wages compared to workers in the host country, there are many legal issues arising that require protection from the State In addition, the difference in cultural qualifications, language limitations, untrained vocational skills, uncertainty in the laws and customs of the host country, etc are barriers for Vietnamese workers So they need to be protected From that practice, the study
of the content: "Protecting Vietnamese citizens going to work abroad under
international treaties on labor cooperation" has profound theoretical and
practical significance
2 Purpose and research tasks of the thesis
The purpose of the thesis is to provide a theoretical and practical basis for proposing views and solutions to improve the effectiveness of Vietnamese CDs working abroad according to ITOLC in the current context Therefore, the tasks
of the thesis include:
- Identify and clarify theoretical issues and legal bases for the protection
of Vietnamese citizens going to work abroad in accordance with international treaties on labor cooperation;
- Assess the current status of the law and practice of implementing the law
on Vietnam's unemployment insurance when going to work abroad according to the ITOLC in the past years Clearly analyze the achievements, limitations and causes of those limitations
- Proposing viewpoints and solutions to improve the effectiveness
of Vietnam's CDs to work abroad in accordance with the ITOLC in the current context
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3 Subjects and scope of research of the thesis
- Research object: The thesis studies the basic theories, theories and laws
on the protection of Vietnamese citizens going to work abroad in accordance with international treaties on LCs from the perspective of the Constitutional Law Law and Administrative Law; Situation Protection of citizens Vietnam to work abroad under the international agreements on LCs and propose solutions to improve the efficiency of protection of citizens working abroad under the Treaties employees of international cooperation ng in the present context
Research scope :
+ Regarding the content, the thesis researches on the issue of protecting Vietnamese citizens going to work abroad according to international treaties on LCs The subjects of illegal exiting citizens, without labor contracts, experts or workers without Vietnamese nationality are not considered in this thesis
+ About time: The thesis researches and evaluates the current state of citizen protection
Vietnam to work abroad under the international treaties on LCs of ng from 1992
to present
+ About space: Thesis on practical research on Protection of Vietnamese citizens going to work abroad according to international treaties on LCs in countries/territories where many Vietnamese citizens work and abroad jurisdiction of Vietnam
The thesis is made on the basis of the theory of people's sovereignty, the theory of modern state governance; theory of rights-based approach and research
method; Statistical methods
5 New contributions and significance of the thesis
Theoretically, the thesis has analyzed and fully and scientifically
explained the content of the protection of Vietnamese citizens going to work abroad according to international treaties on LCs Clarifying the legal basis and law enforcement practice on this issue through citizen protection measures such as protecting the legitimate rights and interests of citizens
In terms of practice, the thesis is a monograph on the issue of
protecting Vietnamese citizens going to work abroad under international treaties
on LCs The content of the thesis provides additional reference information for law-making agencies and state management agencies in the process of summarizing, evaluating and proposing solutions to further improve the law, improve Effectively Protect Vietnamese citizens going to work abroad under current international treaties on LCs Besides, the thesis is also a reference for research institutes, universities and academies when researching and teaching on this issue
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6 Structure of the thesis
The thesis includes: Introduction; Four chapters; Conclusion, Appendix and List of References
Chapter 1 OVERVIEW OF RESEARCH SITUATION RELATED TO THESIS AND
RESEARCH QUESTIONS POSED 1.1 Overview of research related to the thesis
1.1.1 Overview of research on theoretical issues on the protection of Vietnamese citizens working abroad
Protection of citizens going to work abroad is an issue that attracts the attention of many domestic and foreign researchers Therefore, research papers at home and abroad on this issue are quite rich and diverse In line with the scope of this thesis, the survey of research works on the protection of citizens going to work abroad under international treaties on LCs is focused on the following issues: such as: Concept, conditions and methods of citizen protection , current needs of citizen protection and issues raised However, the above works only stop at the theoretical study of Citizen Protection in general and National Citizen Protection ; The issue of protecting Vietnamese citizens going to work abroad under international treaties on LCs has not been mentioned This is the content that needs to be further researched and implemented in the thesis
1.1.2 Research situation on the status of protection of Vietnamese citizens working abroad
Research works on the current situation of protecting Vietnamese citizens working abroad are quite rich and diverse However, the above documents mainly focus on labor export issues, not on the content of protecting Vietnamese citizens going to work abroad The mentioned data helps the researcher visualize the reality of sending Vietnamese workers to work abroad over the years However , studies have not fully shown the difficulties faced by Vietnamese citizens working abroad as well as the current state of the law protecting the rights and interests of Vietnamese workers in another country This is a big practical gap that the thesis needs to address
1.1.3 Research situation on orientation and solutions to protect Vietnamese citizens working abroad
Stemming from different research purposes, the above studies only propose orientations and solutions to protect citizens in accordance with the research content Therefore, the content of views and solutions to improve the
under international treaties on LCs have not been clearly mentioned
1 2 Researched issues related to the thesis and problems posed for the thesis
1.2.1 Researched issues related to the thesis
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It can be said that the issue of protecting Vietnamese citizens going to work abroad has been mentioned by many domestic and foreign researchers Accordingly, at different levels, a number of theoretical issues related to the thesis topic have been studied by scholars As follows:
Firstly, the relationship between the state and the citizens in the work of supporting citizens The need to protect Vietnamese citizens going to work abroad, including workers;
Second, the concept of Citizen Protection ;
Third, some aspects of citizen protection and the practice of insurance work from these aspects
1.2.2 Dissertation issues that need further research
Based on the results of the overview of the research situation, the thesis needs to continue to research and identify the following issues:
Firstly , theoretically, it is necessary to study and clarify the need
to protect citizens going to work abroad according to international treaties on LCs; Distinction between the concept of citizen protection and the concept of diplomatic protection, consular protection/assistance; To clearly define the characteristics and conditions for protection of Vietnamese citizens going to
cooperation; Identify the legal basis and institutions to protect Vietnamese citizens going to work abroad in accordance with international treaties on LCs in the current context;
Secondly , in terms of practice, the thesis needs to clarify the current state
of law, practice as well as the legal mechanism for the protection of Vietnamese citizens going to work abroad in accordance with international treaties on labor cooperation motion ; clarify the relationship between international law and Vietnam, especially in activities to protect citizens' rights against foreign violations
Third, the thesis needs to continue to research and recommend some
complete solutions to improve the effectiveness of the protection of Vietnamese citizens working abroad in accordance with international treaties on LCs in the context of labor cooperation deep and wide international integration today
1.3 Research question, research hypothesis
Through surveying and evaluating the research situation related to the thesis topic, the PhD student poses the research questions that the thesis needs to solve as follows:
Firstly , protection of citizens Vietnam to work abroad under the
international agreements on LCs was interpreted like? What is the legal basis for the protection of Vietnamese citizens going to work abroad under the current international treaties on LCs?
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Second, what is the status of the protection of Vietnamese citizens going
to work abroad under international treaties on LCs? What are the achievements and limitations?
Third, what viewpoints and solutions should be taken to improve the
effectiveness of the protection of Vietnamese citizens going to work abroad in accordance with international treaties on LCs?
To solve the above research questions, the research hypothesis posed y the thesis is: Protecting Vietnamese citizens in general and protecting Vietnamese citizens working abroad in particular are obligations and responsibilities of each state to its citizens At present, the theory of the protection of Vietnamese citizens going to work abroad has not been clarified Although the legal system and practice of law enforcement on Citizenship Protection in Vietnam have been gradually improved, it has not yet met the requirements of the new situation To further improve your efficiency Protection of citizens to work abroad under the international treaties on cooperation in labor , should have the same opinion, the solution improve the law and organize the implementation of the law
on Protection households of Vietnamese citizens going to work abroad in accordance with international treaties on LCs, strengthening the self-protection
citizens working abroad under international treaties on LCs in practice
CONCLUSION CHAPTER 1
under international treaties on LCsis the obligation and responsibility of the State towards its citizens Citizens have the right to be protected by the State while residing in their own territory as well as when they reside abroad In fact, Vietnamese citizens going to work abroad always face risks, becoming a disadvantaged group in the host country and need protection from the State Therefore, the study of the protection of Vietnamese citizens going to work abroad in accordance with international treaties on LCs is a matter of profound theoretical and practical significance
under international treaties on LCshas attracted the attention of many domestic and foreign scholars Theoretical and practical studies on citizen protection over the past time have focused on clarifying a number of issues such as: the relationship between the state and citizens in the work of citizen protection The need to protect Vietnamese citizens going to work abroad, including
protection ; practice of protecting citizens abroad However, the issue of citizen protection Vietnam to work abroad under the international agreements on LCsnot yet be clear about the concept, characteristics, conditions and methods of
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protection and legal mechanisms Protection of citizens Vietnam Men go to work abroad according to international treaties on LCs compared to other subjects Therefore, this content needs to be further researched and clarified in the thesis
3 As the content is inherited, the basic problem that needs to be further solved in the thesis is not only the theoretical issues of citizen protection , the protection of Vietnamese citizens going to work abroad according to law the international agreements on LCs, which also includes the issue of the status of the law on protection of citizens Vietnam to work abroad under the international agreements on LCs, practical implement these provisions and propose to improve the law on the protection
of Vietnamese citizens working abroad in accordance with international treaties on LCs in the current context Therefore, the research results of domestic and foreign works are useful references in the process of thesis research The thesis uses and develops a number of viewpoints, evaluations and comments in these research works in order to systematically and comprehensively understand the issues of protecting Vietnamese citizens going to work in Vietnam foreign countries according to international treaties on LCs as the topic set out
Chapter 2 THEORETICAL ISSUES ON PROTECTION OF VIETNAM CITIZEN TO WORK ABROAD ACCORDING TO INTERNATIONAL
TREATS ON LABOR COOPERATION
1.1 Concept, characteristics and needs of protecting citizens working abroad according to international treaties on labor cooperation
1.1.1 The concept of protection of citizens going to work abroad according toInternational treaties on labor cooperation
under international treaties on LCs is the State's use of intervention measures to protect the legitimate rights and interests of Vietnamese citizens going to work abroad or provide assistance in all aspects to Vietnamese citizens going to work abroad in accordance with international treaties on labor cooperation when they encounter difficulties, tribulations or risks abroad that they cannot overcome by
measures; provide financial support to citizens when they face difficulties, assist citizens in transferring information, preserving papers and property ; visit consular offices when citizens are arrested or detained, and apply necessary measures to protect the legitimate rights and interests of their citizens on the basis of compliance with the laws of the host country or the laws of the host
country international
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1.1.2 Features of Protection of citizens going to work abroad
under international treaties on labor cooperation
First of all , the protection of Vietnamese citizens going to work abroad in accordance with international treaties on LCsis the protection of fundamental rights and freedoms, life, health, honor, dignity, property of Vietnamese citizens
while they are legally abroad
countries according to the international agreements on LCsare also set out to
individuals in need of completion of administrative procedures, legal agencies diplomatic and consular representations (similar to how Vietnamese citizens in the country perform them at competent state agencies in other countries)
abroad under international treaties on LCs is still carried out when individuals, organizations or competent state agencies of the host country have acts contrary
to international law, causing harm to the lawful rights and interests of foreign citizens; when citizens encounter difficulties that cannot be overcome by themselves
Fourth, the legal basis for the protection of Vietnamese citizens going to work abroad under international treaties on LCs is determined on the basis of national laws; international law and domestic law
Fifth, about the subject who is competent to protect citizens going to work abroad under international treaties on LCs: domestic competent agencies and overseas competent agencies (with the Ministry of Industry and Trade) labor department)
1.1.3 The need to protect Vietnamese citizens going to work abroad
according to International treaties on labor cooperation
Firstly, the increase in the risk of violating legitimate rights and interests
for Vietnamese working abroad
Second, the constant increase in the number of Vietnamese citizens going
to work abroad
Third, the limitations in the work of protecting Vietnamese citizens going
to work abroad under international treaties on LCs pose a requirement to
improve the efficiency of this activity in practice
1.2 Conditions and measures to protect citizens going to work abroad according to theInternational treaties on labor cooperation
1.2.1 Conditions for the protection of citizens going to work abroad
under international treaties on labor cooperation
First, the nationality condition
Second, citizens are protected by having continuous citizenship
Third, based on the close relationship between countries, a country can protect people who are not citizens of its own country
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Fourth, a number of other conditions to protect citizens going to work abroad, including: 1) Violating acts; 2) Exhausting all measures in the host country
under international treaties on labor cooperation
Protective measures are diverse, including all activities that the State undertakes to help and manage its citizens working abroad It may be the simplest activities, carried out as soon as citizens have not exited their country's borders such as issuing passports, exit visas, providing information about a country they are going to until more complicated activities such as bringing the case to the International Court or using force to protect citizens
1 3 Contents of protection for citizens going to work abroad according
to International treaties on labor cooperation
1.3.1 Protecting the legitimate rights and interests of citizens going to work abroad according toInternational treaties on labor cooperation
1.3.2 Support citizens to work abroad according to the LCs in difficult situations
1.3.3 Support citizens to work abroad according to LCs in crisis situation
1.4 Legal basis and competent authority to protect citizens going to work abroad according to the following regulations: International treaties
- Competent authorities in the country
- Competent authorities in foreign countries
CONCLUSION CHAPTER 2
The protection of citizens in general and the protection of citizens going to work abroad in accordance with international treaties on LCs in particular is a particularly important task, which is always concerned andthoroughly understood by all countries presently H OAT active citizen protection can include activities that the nature of services such as: allocating passport, administrative papers or activities taking help such as financial aid for citizens when they encounter difficulty difficult, disseminating necessary information for their citizens to learn about the country they intend to go to…
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for personal aspiration; to activities of a more complex nature such as consular visits when citizens are arrested, detained or conducting activities to protect and ensure that their citizens enjoy the minimum rights and benefits
in accordance with local or international law
In order to be protected, the protected object must satisfy the following conditions: (i) be a citizen of the country where protection is carried out However, in practice there are cases where a person who has the nationality of that country is not protected (as in the case of a person with two or more nationalities, not protected if the protection is against the country in which he or she is not protected) also have nationality); there are also cases where a person who is not a national of this country is protected by that country in the event of an infringement (as in the case of a citizen of the European Union); (ii) When the legitimate interests of the protected object are infringed; (iii) Self-protection measures have been applied in practice according to the laws of the host country: such as: claiming compensation to remedy the damage, but there are no results
Legal basis for citizen protection : international law, national law and host country law In the absence of an international treaty, the community can limit the protection measure by current international practices The most important limitation on the use of protectionist measures
is the non-use of force in diplomatic protection In addition, the practice of citizen protection needs to pay attention to the real purpose of this activity and cannot use the principle of citizen protection as an excuse to serve the political purposes of the protecting country affect the relations of stakeholders and the image of the country in the international arena
Agencies competent to protect citizens : Based on the organizational structure, functions and scope of activities of state agencies competent
to protect citizens , these agencies can be divided into 2 types: competent authorities in the country and competent authorities in foreign countries How to protect citizens : In the process of implementing citizen protection , countries can protect their citizens through different ways, from simple issues such as issuing passports, exit visas to other ways of protecting citizens The protection is complicated and affects the diplomatic relations between the countries concerned, such as bringing the case to international courts, etc The choice of how to protect the level of protection depends on many factors such as which rights are violated violate the level of violation, the attitude of the host country
Currently, the issue of citizen protection is an issue of special significance not only for each country but also for the whole world
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Chapter 3 THE STATUS OF PROTECTION OF VIETNAM CITIZEN TO WORK ABROAD ACCORDING TO INTERNATIONAL TREATS ON
a) In terms of quantity: According to the report of the Ministry
of Labor, Invalids and Social Affairs , in the period 2007-2019, since the Law on Vietnamese workers going to work abroad under contract
No 72/2006/National Assembly 11 took effect, there have been over 1.3 million turns of Vietnamese workers going abroad to work, an average of about 110,000 people go abroad to work every year, accounting for 7% of the number of new jobs of the whole country [28] Vietnamese people working abroad are concentrated in main markets such as Korea, Japan, Taiwan, Middle East, Malaysia In which, Taiwan market: 18,013 workers (52.87%) , Japan: 11,700 employees (34.34%), Korea: 2,168 employees (6.36%), Saudi Arabia: 658 employees (1.93%), and other markets are 1,529 labor
b) Regarding the quality of Vietnamese laborers to work abroad : Vietnamese citizens working abroad are accepted by other
countries, and employers appreciate them well: skillful, industrious, capable grasp work quickly, eager to learn, creative, dynamic, productive, quality work Some countries such as Korea and Japan recorded Vietnamese workers
in a high position compared to other countries However , the level of labor is still low, mainly unskilled workers account for 60-70% The foreign language skills of employees are poor, so there are often conflicts between employers and employees When the employer is abusive, violent, or coercive (usually happens to domestic workers in Saudi Arabia, Taiwan), Vietnamese workers do not have the language skills to protect themselves Protect yourself or call the police
An outstanding practice today is that crime, violating the laws of the host country such as robbery, theft, drug trafficking, gambling, prostitution, illegal alcohol production, etc., are happening in some places with labor Vietnam movement
3.1.2 The need to protect Vietnamese citizens going to work abroad according to international treaties on labor cooperation
summarized in accordance with international treaties on LCs in the following common cases:
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(v) Support when you fall into a difficult situation such as illness, illness, accident that cannot be overcome by yourself or death that requires financial support from the State;
(vi) Support and protection when affected by a crisis situation in the host country such as armed conflict, natural disaster, epidemic, economic crisis leading to widespread job loss [ 83 ; p.26]
3.1.2.1 The need for permanent protection for Vietnamese citizens going to work abroad according to international treaties on labor cooperation
3.1.2.2 The need for support when Vietnamese citizens going to work abroad fall into a difficult situation, crisis
3.2 The current status of the law on protection of Vietnamese citizens going to work abroad according to International treaties on labor cooperation
the protection of citizens working abroad
a) The current status of provisions of the global treaty on workers' rights
From the 1930s to the present, there have been hundreds of legal documents adopted by many international organizations on the issue of migrant workers In terms of content, international legal documents in this field focus on three basic aspects, which are:
First, support employment and livelihoods and protect migrant workers from discrimination and ill-treatment (typically ILO Conventions 97 and 143 and including part of United Nations Convention on the Rights of Migrant Workers and their Families)
Second, to establish and protect the rights of migrant workers (typically the United Nations Convention on the Rights of Migrant Workers and their Families)