Legal mechanism to protect the rights of children in vietnam

HANOI LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW LEGAL MECHANISM TO PROTECT THE RIGHTS OF CHILDREN IN VIETNAM SP E C IA L T Y : IN TER N A TIO N A L AND C O M PA R A TIV E LAW CODE: 60 38 60 MASTER OF LAW THESIS STƯDENT: CHU MANH HUNG ~~ THƯ VIỆ N ĨRƯONG ĐA! HOC lŨÂĨ HÀ NÒI PHÒNG GV _= ã ầ ± = i SUPERVISORS: P R O F D R D O A N NANG D R PR O F PER -O LE TR A SK M A N HÀ NỘI - 2004 Contents PREFACE ABBREVIATIONS INTRODUCTION 1.1 Sirencfiic basic and reality of the theme 1.2 Scope and aims of the theme 1.3 Method of study 1.4 The content of the theme - matters need solving THE OVERVIEVV ON CHILDREN’S RIGHTS AND THE LEGAL MECHANISM TO PROTECT THE RIGHTS OF CHILDREN IN VIETNAM 2.1 Rights of the Children 2.1.1 Who is the child? 2.1.2 Definition o f the child's rights 2.1.3 2.2 The rights o f the children in relation with the rights o f women The legal mechanism to protect the rights of the children 8 10 13 13 2.2.1 What is the legal mechanism to protect the rights o f the child 13 2.2.2 The role o f the legal mechanism to protect the rights o f the children 16 2.3 International legal mechanism to protect the rights of thechildren 17 2.3.1 2.3.1.1 The period before 1989 17 2.3.1.2 The Convention on the Rights of the Child 1989 (CRC) 18 2.3.2 3.1 The International institutions to protect the rights o f the child 20 2.3.2.1 The United Nations ( UN ) 20 2.3 2.2 The protessional orgnizations of the UN 20 2.3.2.3 The Committee on the rights of the child 21 2.3.2 The system o f International Instruments o f the children 's rights 17 Non.Governmendal orgnizations (NGOs) 22 THE NATIONAL LEGAL MECHANISM TO PROTECT THE RIGHTS OF THE CHILD IN VIETNAM 23 Vietnamese laws on the protection on the rights of the Child 23 3.1.1 Regulations o f law on the survival o f the child 23 3.1.2 Regulations o f law on the right to protection 24 3.1.3 Regulations on the participation rights o f the child 27 3.1.4 3.2 The institutions to protect the rights of the child in Vietnam 28 30 3.2.1 The role o f the tamilies 30 3.2.2 The role o f school 32 3.2.3 The role o f the Social organizations 33 3.2.4 The State 36 3.2.4.1 The National Assembly 36 3.2.4.2 The Government 36 3.2.4.3 The Courts 38 3.2.5 The Vietnamese save the children Fund 38 3.3 The s c s in Vietnam 39 3.4 International commitments and their implementation inVietnam 40 3.4.1 Legal basis/ground 40 3.4.2 The national reporsts on the rights o f the child 42 PERFECTING THE LEGAL MECHANISM OF PROTECTION FOR THE RIGHTS OF THE CHILD IN VIETNAM 44 4.1 Necessity for perfecting the legal mechanismof protection for the Rights of the Child in Vietnam 4.1.1 4.1.2 4.2 44 An overview about good points o f the legal mechanism o f protection fo r the Rights o f the Child in Vietnam 44 Shortcom ings o f the legal mechanísm o f protection fo r the Rights o f the Child in Vietnam 46 steering view point and períecting direction 49 4.2.1 steering view point 49 4.2.2 Direction 50 4.3 Regulations o f lau/ on the right o f the child to development Solution 51 4.3.1 F o rth e la w 51 4.3.2 For institutions 53 4.3.3 Other solutions 56 CONCLUSION BIBLIOGRAPHY 58 59 Preíace I hold it as a great honour to participate in The Svvedish/Vietnamese Master Programme in International and Comparative Law ]t is a pleasure to express my gratitude to all the persons who helped me in pursuing my study and research First, I devote my very particular thanks to the Board o f Directors, Prof.Dr Per-OleTraskman o f Lund University, Prof.Dr Doan Nang o f The Hanoi Law University and all professors o f the project who helped and gave me invaluable knowỉedge I would like to extend my words o f appreciation to Librarians o f Lund University, Human Right Librarians, Librarians o f Hanoi Law University and all my friends Finally, I am indebted to Lund University and The Hanoi Law ưniversity for supporting my study To my family whose love and com íịrt encouraged me to complete this academic pursuit Abbreviations CRC CHR HCMCYU HCMNPA ILO LPCEC MOLISA MOH MOET NGOs PFCC ECOSOC scs UN UNICEF VFF vwu The United Nations Convention on the Rights o f the Child 1989 Commission on Human Rights Ho Chi Minh Communist Youth Union Ho Chi Minh National Political Academy International Labour Organization The Law on Protection, Care and Education for the Child Ministry o f Labour Invalid and Social Affairs Ministry o f Health Ministry o f Education and Training Non-Government Organizations Population, Family and Children Committee Economic and Social Council Save the Children Svveden United Nations United Nations Children Emergency Fund Vietnam Patherland Front Vietnamese W omen's Union Introduction 1.1 Sirencíiic basic and reality of the theme In the innovation circumstancy, the consitstant point of view o f Vietnamese Government is that: People are the Central o f every socio-economic policy According to this, the matters o f human rights promotion, human rights protection, especially those o f children are most important respects It is the prerequisite for ensuring substanable development and to successfully implement industrialization and modernization o f the country In fact a mechanism for children’s rights protection has been established in Vietnam, at nation wide level Nevertheless, in some places o f rural and mountanous areas, the question o f ensure children’s right is still limited Many problems such as child labor exploitation, Street children, child criminals and being on as a result o f strong inAuences from back ward thinking and socio-economic conditions So, the issue o f researching, setting up and step by step improving legal provisions on children’s rights are necessary in order to create favourable conditions for children to gain their social proíit On the 26lh January 1990, Vietnam signed the Convention on the Rights of the Child and after that, on 20th February, 1990, ratiíĩed the Convention without reservation Vietnam became the earlist o f Asia countries and the second in the vvorld adopting the Convention It can be said that, the ratiíìcation o f the Convention on children’s rights has lad down an International legal framework for children protection in Vietnam The practice o f Vietnam obligation implement under the Convention on the Rights o f the Child and the children’s rights protection status in Vietnam require a systematic researching and this íĩeld to find out effective measure for children’s rights protection This requiremení, at the same time, is the reason for my thesis namely: Legal mechanism to protect the rights o f the children in Vietnam 1.2 Scope and aims of the theme I will consider rights of the children in human rights history By this analisys process, the necessity o f children’s rights protection shall be clarified As a result, it is said that, there must be a legal mechanism to protect children This mechanism, o f course consists o f National legal mechanism and International legal mechanism I will deal with look through Vietnamese legal provisions on children’s rights I will refer to deeply to Vietnamese children protecting institutions in different aspects and point out the relations among those institutions in Vietnam I will consider International obligations and responsibilities o f Vietnam and the signiíicance o f worldwide community aid in the process o f children’s rights protections as well Through the consideration o f legal provisions, the status and the role of National institutions I will suggest some possible measure and method to promote children’s rights protection activities in Vietnam To protect the rights of child are not only National duty but also International responsibility because Vietnam is One of the member countries which have concluded and ratifíed the Convention on the Rights o f the Child Children is speciíĩc subject, they are seen as immature, not yet competent so that they are in need of protection The issue concerning to children are quite wide and complex That’s the reason why I am not ambitious to íĩgure out it in all perspectives, my thesis just focus on the mechanism of protection o f children’s rights, more details as follow: - International mechanism o f protection o f children’s rights under Convention on the Rights o f the Child - National mechanism to protect the rights o f the children in Vietnam - Achievements and weak points, well as solutions to improve mechanism to protect the rights o f the children in Vietnam 1.3 Method of study The thesis presents the rights o f the children and legal mechanism to protect Doing it, I use books and International instruments, especially Convention on the Rights o f the Child These materials have been found on internet, library o f Faculty o f law, library o f Human rights attitute (Raoul Wallenberg attitute) On the other hand, I analyze Vietnamese legislation based on it, books and research Vietnamese writer Synthetic method will be use to point out fruits and clariíy weak points on protecting the rights o f the child in Vietnam 1.4 The content of the theme - matters need solving In chapter 2, try to give broad picture o f children’s rights and legal mechanism to protect children’s rights Its gold is to clariíy the necessity to protect children and their rights Thereíbre, mechanism to protect including International and National mechanism must be íịrmed In other words, in this chapter, I attempt to mention mechanism to protect children’s rights on International side in common In Chapter 3, I íịcus on mechanism to protect children’s rights in Vietnam The íĩrst is Vietnamese legal provisions o f children’s rights The second is institutions to protect children’s rights and relationship betvveen them The third, defme International legal obligation o f Vietnam thought out Vietnamese National report submitted committee on the rights o f the child In Chapter 4, I generalize ữuits and make clear the weak points in mechanism to protect the rights of the child in Vietnam On that ground, I vvill make a suggestion contributing in to improve mechanism to protect the rights o f the children in Vietnam The overvievv on childrerTs rights and the legal mechanism to protect the rights of children in Vietnam 2.1 Rights of the Children 2.1.1 Who is the child? Who is the child? It is not easy to answer the question as the children are considered from different angles: Sociology, Psychology, and Jurisprudence Furthermore, concepts o f nations in the world are different Under the angle of Sociology1, the children are the components o f the social structure divided on Males and Females, the old and the young, the adult and the children, people’s cultural Standard is high or low Following the view, social structure is divided on sex, cultural Standard, and level o f one’s share to the society Under the angle of Psychology definition of the children is based on the age and psychology of every developing period As a whole, psychologists of the children on over the would have the same division of developing periods of the children2 Psychologists say that defmition o f developing periods o f the children is based on their physical, intellectual and psychological development Thereíore the parents, schools and society must have suitable educational measures The age o f 18 is the end o f the children Because in the period is enough for them to became the adult the physical, intellectual, mental development o f the children They are active in thought action and have behavior suitable to the society, morals and law Under the angle o f Jurisprudence, the question: "What is the child?”was given, but that is the dehumanising approach because the child is simply a human3 So the question is: "Who is the child?” Under that angle the child is the person having not enough abilities On the other hand, way the children are traditionally deíĩned as the negative comparison: A child is a human individual, not grown up yet4 That is the deíĩnition including factors o f religion, culture and belief That has two main points: the beginning and the ending to become the adult ' Mai Quynh Nam, Children- Family- Society, National Polictical Publishing House, Ha Noi 2004, p.5 Human Rights Reseach Center, HCMNPA- UNICEF, Children’s Rights, National Political Publishing House, Ha Noi 2003, p 154 Ibid, p 67 Geraldine Van Bueren, The International Law on the Rights o f the Child, Martinus N ijhoff Publisher, p.33 For the beginning point o f the child we can see in the foreword of the Declaration of the Rights o f the Child 19595: Being weak physically and intellectually, the children need to be protected and cared by special way including suitable legal protection beíbre and after their birth However, that Declaration is not legally forced to every nation Furthermore the law of every nation deals with this question by different ways According to CRC and the laws o f all nations, the children have the right and are protected from the point of their birth It is the beginning point of the child before the international laws The right to a name and registration after birth is the fírst right to affirm that every child is the distinct individual7 So that, the children are provided by many different terms, such as Baby, Infant, Juvenile, Adolescence, Youth, Minor The Juvenile was seen in the UN minimum rules to protect legitimate íreedom o f Juvenile The Juvenile used by the UN has a legally important role The UN put the children in regulated objects by the international laws and national laws to protect the rights o f the children and the minors to l«vc peacefully in their family and community and also the rights o f them when they break the laws So the term Juvenile is closely related to the children as the minors under the angle o f jurisprudence Being different from the adults the juveniles are understood are the smaller, incomplete people because they can not themselves define the best way to participate in legal regulation The laws in every nation regulate the limit of age in every fíeld Most of national laws regulate that the age of 14 is the end of compelled education and is also the legal minimum limit to marriage, the age o f 15 is the age permitted to participate in labor relations by the regulations of ILO8 In some States, such as Austria, Spain and Uruguay the child is dìned as the end of 18 and the minimum limit to mobilize into the army and the armed conílicts9 The UN Commission on Human Rights also provides that the CRC does not State the adult age It is recognized by each nation in relation with its economic social and cultural conditions10 Laws of almost nations provide that the adult age is 18 In some nations, the adult age is 20 such as Switzerland'1 In Vietnam the child is a citizen under age o f 1612 Such age is regulated like that because under Vietnamese laws the age of compelled education is 14, the age o f participating in labor relation is 15 and the age to be responsible for criminal charge is 14, 1613 So that regulating the child as Vietnamese citizen under 16 creates a consistency in legal system and also suits to the possibility o f the budget and the socio-economic condition of Vietnam and CRC Through the above analysis, we can see that the children are deíĩned as the people under 18 unless the law applies lower age o f grown up14 lbid CRC, Art 6-7 Tran That, Vietnamese Lavv on Nationality and Nationality registration in respect o f protecting the rights o f the child, National Political Publishing House, Ha Noi 2000, p.24 Supra note 4, p 36 Supra note 4, p.36 10 sũ p note 4, p.38 11 Supra note 4, p.37 12 LPCEC 2004, Art 13 The Labour Code 1994, Art 6; The Criminal Code 1999, Art 12 14 CRC, Art VND 11,790 billion account for 12.21% o f the total State expenditure Vietnam has also actively cooperated and taken advantage of the efficient assistance from other countries and International Organizations O f those, the support from the UNICEF itself for Vietnam in 10 years (ữom 1991 2000) was U SD110 million103 It can be strongly deữned that after approval of CRC and the establishment o f the law system in general and LPCEC in specifíc as well as the íbrmation o f institution system create a legal frame and íavorable environment for execution o f the Rights o f the Child National Action Plans assured the Child to entitle to their rights These are íbundations to vigorously develop the implementation o f the child’s right in Vietnam 4.1.2 Shortcomỉngs of the legal mechanỉsm of protection for the Rights of the Child in Vỉetnam Besides the success and good points, the legal mechanism o f protection for the Rights o f the Child in Vietnam still has many shortcomings Firstly (regarding the law system): Presently, The law system o f Vietnam has over 100 legal documents including law and guideline documents The main document among those is LPCEC which has instructive provisions to represent great policies o f the Party and State It shows the preeminent of the regime and the care o f the whole society for the child Hovvever, it lacks o f some assuring mechanism for implementation In the other hand, the law only deĩines basic rights and responsibilities o f the child other than any further detail Many provisions just show as principles or general direction other than concrete ones The relating laws not regulate synchronously and adequately the matters o f Street children, HIV infected children, etc Thus, those matters are not solved under any legal basis and thereíbre, the rights o f the child especially the difficult children are not fully assured In the other hand, that many detail guideline documents for the law neither exist nor is unsuitable results in obstacles o f implementation o f the law The article o f Law on Protection, Care and Education for the Child provided the exemption o f health check fee for the child under years old in public health Service centers However, in accordance with the Decree No 95/1994/ND-CP dated 28th July 1994 o f the Government, only the child under years old are entitle to that exemption These provisions not create a consistence in the implementation process Furthermore, PLCEC has only 60 articles so the implementation o f this law must result in extracting other relating laws For example, the Civil Code has 38 articles relating to the rights o f the child This causes an overlap and complex in propaganda, quoting and application o f the law Thus, it can be said that the system o f law documents relating to the child’s rights is quite adequate but there are much existing limitation One o f the clear examples is that the promulgation o f the guideline documents is slow compared to the requirement o f application in practice especially the documents need the inter-cooperation by many branches Meanwhile, the 103 Sources: The PFCC 46 rights o f the child are relating to almost all o f the íielcls o f society In the other hand, the relating laws such as Criminal Code and Civil Code not concretize the articles o f LPCEC as well as regulate adequately the matters relating to the child Thereíore, it does not meet and solve the matters of the child’s rights in time in practice Secondly (the system o f institutions) • For íầmilies: Based on the provisions of the law and through the activities o f propaganda o f law and originating from the responsibility of parents, the families recognize almost fully their responsibilities for protection, care and education of the child (80% of families) know LPCEC104 The parents understand that they are the íirst to be responsible for their children and it is needed to reserve the best condition for the development o f their children However, in fact we see that the role o f the family still fails to meet the requirement of implementation o f the child’s rights Some families still not take their children to the health care center when they get sick The attention to the study for the child is still substantially different among areas and ethnic groups o f people Many families have their children who wander in the Street or join the labor force and then get hooked in to social evils • For school: School is the environment for the child to study and practice Hovvever, the school still plays a limited role There are only 50% of children entering kindergarten; more than 10% o f children not go to primary school, the ratio o f children who left school is still high, the quality of comprehensive education is not high • For organizations: the VFF and the HCMCYU are an important part in the institution system of child’s rights protection to create a system to propagandize and enhance the efficient implementation o f LPCEC I Iovvever, the propagaiida and education o f the law is not deep and does not reach to each individual family and just be done in íavorable places, project funded places or the places receive investment The supervising and speeding up the implementation of the law is still limited The violation of the child’s rights in somewhere is not detected or stopped in time • For the State: it only pays attention to the management The propaganda and dissemination o f the law are not carried out regularly and constantly and just íịcus on the íịrmality other than fmd out the method, content and the way o f dissemination efficiently The promulgation of the law documents is still inefficient and many documents are overlapped and cause an obstacle to the implementation The execution o f policy is slow The State budget invested for the íield of protection, care and education for the child is scattered Some localities not allocate the budget for the Children Programs at commune level The budget allocation for children objective is still different from province to province The specialized body does not play as a cooperation point in implementing LPCEC The supervision and monitoring have not been implemented regularly and the effect is not high The professional and deep inspections are still far from the targeted objective The cooperation between 104 Supra note 101, p 50 47 responsible organizations, m inistries, branches, Central and local bodies is not tight but heavily íocuses on report Therefore, these limitations in no doubt result in a consequence o f that the child’s rights are not assured in practice For the aspect o f theory, as the analysis of the legal mechanism of protection for the rights o f the child in Vietnam, that is the combination o f two factors: the law system and institutions The tight combination between these two íactors is the base for implementation o f the child’s rights On the contrary, the existence o f the law and the limitations of the institutions will result in the weakness o f implementation o f the rights and responsibilities o f the child in Vietnam It is speciíically as follows: • For the group o f vital rights Presently, the malnutrition o f the child under years old and the death rate o f the child under year old are still high (31.1% and 32 %) and most o f those dropped in poor children and the children living in mountainous area The health check for the child under years old is íacing many diffículties and there are some irrational matters • For the group o f protected rights In the year 2002, the ratio o f the children given the birth certiíìcate timely was 87% and the rest of 13% was not registered or registered late The minority ethnic people were not received fully the health care, study or recreation, etc The difficult children such as HIV/AIDS infected children, drug addicted children and Street wandering children mostly were not enjoy the care and education • For the group o f participated rights The rights to represent and be respected the idea o f the chiỉd has not been implemeníed íully Regarding the social aspect, the participating rights o f the child are just shown as a movement or according to the requirement o f the adult • For the developed rights By now, there are only 50% of children going to kindergarten, 558 communes not have pre-primary education 10% of those are illiterate Secondary education reaches only over 80% Education for disable children has just deployed in 39 provinces and 499 districts The rights to play and entitle recreation still have limitations An average o f 51% o f districts and 10% o f communes has entertainment and recreation centers for children nationvvide Many Recreation centers and Children playground have poor facilities vvhich not meet the Standard With regard to responsibilities o f the child; many children not understand fully their responsibilities so they neglect the study, cause disorder in public area or violate the law Thus, these above-mentioned causes affect so much to the role o f legal mechanism o f protection for the rights o f the child in Vietnam and they are necessary to be overcome In the other hand, according to the Convention on the Rights o f the Child, the obligations committed must be implemented step by step based on the situation of the nation Thereíbre, perfecting the legal mechanism o f protection for the rights o f the child in Vietnam is indispensable and objective 48 4.2 steering view point and períecting direction 4.2.1 steering view point On the basis of analysis of achievement and limitation o f the legal mechanism o f protection for the rights o f the child and at the international legal demand, we think that the continuous improvement o f this mechanism is realistic in practice It not only aims to meet the implementation o f the chilcTs rights in Vietnam but also makes the law o f Vietnam as well as the rights of the child in Vietnam reach closely to the international Standard Based on that spirit, we presume that períecting the legal mechanism of protection for the rights o f the child in Vietnam must comply with the following points: • Pirstly, protection, care and education for the child are regular and constant duties to take care o f the future generation o f the country President Ho Chi Minh used to say: ”for the beneíĩt of 10 years, we will grow trees, but for the benefits o f 100 years, we should bring up humans” That saying one side reílects the tradition of Vietnamese national and the other side defines the responsibility of the Party and State o f Vietnam in the career of caring for the young generation The Party and State of Vietnam consider the human strategy (especially children) as the strategy for the future and for the development o f the country In the other way, the development o f each nation will depend on the young generation, on the care and protection for children With those signiĩicances, we should rescrvc thc child all o f the best so that they can grow and become the owner o f the country • Secondly: protection, care and education for the child are responsibility of each family, community, organizations and State bodies In the other way o f speaking, this is the responsibility o f the whole society so it is necessary to socialize the protection, care and education for the child and make all people, families, organizations and responsible people realize the importance of caring for the future generation In the other hand, through that we can mobilize all o f the resources for the strategy o f children development “care for children today will bring a better world tomorrow” • Thirdly, maximize all o f the internal available strength and at the same time receive the cooperation and assistance o f international community Over the past years, we have obtained socio-economic accomplishments and based on those, the system o f policies and programs for the child is more and more being widened Along with the renovation (or doi moi) progress in Vietnam, the trend o f globalization is strongly developing and it has active impacts to create a chance for Vietnam to open the ability of cooperation, take advantage of extemal resource to develop the internal strength That process creates a general strength for the career o f protection, care and education for the child • Fourthly, according to the dialectical point, perfecting the mechanism must originate ữom the existing problems and shortcomings o f the mechanism Defining the cause and írankly admitting the shortcomings are 49 the base to perfect the legal mechanism o f protecting the rights o f the child in Vietnam 4.2.2 Direction On thc basis o f good points and the limitation of the legal mechanism of protection for rights of the child in Vietnam, and originating from the instruction o f perfecting the legal mechanism of protection for rights o f the child in Vietnam, it should be based on the following directions: • Establish one legal system including comprehensive, synchronous and suitable provisions That system must satisíy the following requirements: Firstly, the rights o f the child are related to most o f the fields of social life and it is socializing Thereíbre, it is necessary to deíine that the law system is the legal base for implementation o f the child’s rights The binding of the law is the base for the whole society acts for the obịective o f the child Secondly, the rights o f the child are related to a majority o f social life and concentrate on four groups o f rights Therịre, the provisions o f the law must head to represent all o f the rights o f the child It should be kept away from considering the child as a passive subject and only concentrating on the rights that the adult reserve for the child and attach less important to rights implemented by children themselves In the other hand, the legal provisions should be detail other than general or directive, otherwise it is very difficult to apply in practice and shows a limited effect of propaganda and dissemination o f the law Concurrently, the sanction must be attached to the law to assure that the implementation o f the law is efficient Thirdly, the provisions relating to the child’s rights must go consistently other than conílict or overlap betvveen LPCEC and other lavvs ơr belvveen the law and guideline documents This requirement aims to create a system of consistent regulations to create a base for applying and implementing the law Fourthly, the legal provisions relating to the rights o f the child should be suitable to the socio-economic condition and reílect the socio-economic development level o f Vietnam Also, it should be under the coverage of international law in general and intemational commitments in speciíic • Strengthen institutions and create and develop the new institutions to enhance the socialization o f protection, care and education for the child These obligations should be met the following requirements: Fỉrstly, strengthening the current institutions and establishing new institutions should be originated from the practice to meet the increasing requirements o f implementation o f the child’s rights It should try to keep away from the ineffícient operation o f institutions or just merely look for the help from the Government Secondly, the institutions should head to propaganda, education and supervision o f the implementation o f the chilcTs rights At the same time, the violation o f the chikTs rights should be strictly punished The operation purpose o f these institutions is to mobilize the resources o f the vvhole society for the child’s development Thirdly, the child is officially given rights and regulated the responsibilities by the law but those are executed through the adult Thereíbre, the adult 50 must lay the íịundation for the rights and responsibilities o f the child Thus, the adult must aware o f and take a responsibility if the child is not fully entitle to rights and implement responsibilities completely Thereíbre, the role and responsibility of the family to rights and responsibilities o f the child must be defined as the íĩrst and final place • Synchronously perfect the mechanism and put it in the strategy o f socioeconomic development of the nation The requirement is set out as follows: Firstly: perfecting the legal system should go together with reinforcement of institutions This argument comes from the fact that the legal system creates a legal frame to define the rights that the child is entitle to and the responsibilities that they must implement The process o f execution and putting the law into practice must have respective institutions to assure that the rights and responsibilities of the child are implemented On the contrary, the uncontrollable establishment o f institutions while the legal system is not perfect will result in overlapping operation or the child can not fully receive their rights Secondly, the socio-economic development is the base for implementation of the child’s rights Thereíbre, perfecting the mechanism should be based on the socio-economic development strategy o f the nation and concretized in each locality to make it suitable for the socio-economic condition and custom o f that area to assure a possibility o f implementation in practice Thirdly, perfecting the mechanism is attached to socializing the protection, care and education for the child This requirement aims to keep away from the thoughí that implementation o f the chilcTs rights only waits for the State budget support or it is the obligation o f an organization It should become the responsibility o f the whole society and the vvhole society should be responsible for it Fourthỉy, perfecting the mechanism should be suitable and meet the requirements o f international Standard especially the obligations established in the Convention on the Rights o f the Child Fifthly, it should be aware o f that the child does not passively receive the rights but actively receive the rights and carry out the responsibilities Therefore, perfecting the legal mechanism o f protection for the chilcTs rights does not mean to make light o f the role of children themselves 4.3 Solution Originate from the directive point and assure to implement exactly as the direction set out, the progress o f perfecting the legal mechanism o f protection for the child’s right in Vietnam should be implemented with the following solutions: 4.3.1 Forthelaw • Screen, systemize and amend, supplement laws and the relating documents The matter of the chilcTs right is not only provided in LPCEC but also in various laws Presently, the Rights of the child are scattered in many legal documents and it is one o f the reason to make the implementation o f the 51 child’s rights diíTicult and inefficiently From that fact, that perfecting the law system of the rights of the child is one o f the important missions that the authorized State bodies must carry out in the Corning time To perfect the law system on the rights o f the child, we need implement different methods First o f all, the authorized bodies have to screen and systemize all o f the legal documents regulating the child’s rights This is very signiĩicant to detect all of the overlapped and contradict contents which are not suitable in practice Based on that, the authorized bodies have to make plan, amendment and supplement to the law to make them synchronous with Law on Protection, Care and Education for the Child For example, Article 13 of LPCEC provided that Children have the rights to live with their parents, no body has the right to separate children with their parents except for the beneíĩts o f them Article 13 was assured by Article 25 regarding the responsibility o f assuring children to live with parents However, to make article 13 fully assured in all aspects, it should be referred to some factors: what action will be applied if parents can not assure to implement this responsibility? Is the term o f family replacement in LPCEC mentioned in other laws? What action should be referred if the child was relocated out of the place where he/she lives with his/her parents? To ansvver those questions, it is necessary to amend and supplement other relating laws such as making amendment to the “Guardian part” o f Civil Code o f 1995, supplement to Criminal Code o f 1999: intentionally or forcefully take the child out o f the place where he/she is living with neither an agreement o f the guardian nor the order o f the authorized body Or article 7, item of LPCEC regulated that it is prohibited to hinder the study o f the child The question o f the regulation is that if the child’s study is hindered, what action vvill be takcn and who is cligible to takc action on this violation? By now, there has been no document regulating this matter so it is necessary to supplement into the Ordinance on Administrative Violation Settlement regarding punishment o f the person who hinders the study o f the child Thereíore, LPCEC just regulates generally without sanction to assure the implementation of itself but some articles refeưing to the sanction o f other laws Thus, the amendment, supplement to a law will result in amendment and supplement to series o f other laws even the legal documents o f localities will have to be amended and supplemented to be suitable • Promulgate new legal documents Besides the amendment, supplement o f the relating laws, the Government should quickly promulgate Decree to detail the Law on Protection, Care and Education for the Child This law dìnes the responsibility o f family, local authorities but not stimulate the responsibility of Ministries, Branches and the coordination betvveen Ministries and Branches and local authorities Thereíore, a detailing Decree will be a solution to put this Law into life • Research and establish the Code o f Protection, Care and Education for the Child in the future The amended Law on Protection, Care and Education for the Child has 60 articles and its provisions are írame law only Thereíore, in the coming time, the amendment, supplement to the relating laws and issuance o f new documents should be carried out immediately However, for a Iong-term strategy, we should upgrade it to a Code to prevent from that the Law on the 52 Rights o f the Child is scattered The Code will have detail content including both general principle provisions and detail provisions The detailing provisions shall have content provisions, sanction provisions and procedure o f application It is speciíically as follows: - Provide specifically rights and responsibilities o f the child as well as the responsibilities o f the adult - Provide speciíĩcally obligations o f State bodies and social organizations - Establish speciíĩc provisions on the responsibility o f socialization - Establish provisions o f legal sanction applied to the child - Establish provisions o f legal sanction applied to violations to the child - Establish provisions o f legal sanction applied to family, school, social organization, State body if they not carry out their responsibility for the child - Establish articles o f compensation - Establish articles o f providing the sanctions needed to be established In concỉusion, the establishment of the Code of Protection, Care and Education for the Child in the future will help solve completely the matter o f legal base for implementation o f the child’s rights and it will be assured better in practice This is a good chance for the law makers to set up a system o f sanction in the Code because with the general provisions like a political program at present, it is impossible to bring speciíĩc sanctions into the law In the other hand, that the Code o f Protection, Care and Education for the Child is concretized will less depend on issuance o f guideline by the local authorities so it will be kept away from slow issuance o f guideline documents as well as the overlapped and contradicted documents 4.3.2 For institutions • Increase the role and responsibility o f the family For families, the State has a supporting policy for families and creates conditions for families to develop the economy In fact, in Vietnam, the rights o f the child are not assured by the family because o f two reasons Firstly, the child is not entitle to the rights fully due to the difficulty o f the family’s economy; secondly, the child fails to fulfill their responsibility or even he/she violates the law due to the loosen management and irresponsibility o f parents Therịre, the plan o f socio-economic development o f each locality should take care o f creating more jobs and income for families The State should have a supporting policy for rural families when they send their children to school and will not ask for the fee of birth declaration and health care fee for the child under years old when they go for health check To so, the State should reserve part o f its budget to implement these regulations Together with those solutions, it is necessary to heighten the awareness o f parents and families regularly Finally, parents are the persons who have to be aware themselves o f the responsibility for their children This is the decisive factor to assure for the rights o f the child because in any situation, the family, responsibility of parents will be the best conditions for the development o f the child • Investment for school system 53 Besides íầmily, the system o f school must be strengthened by mobilizing more resources to assure that all of the communes will have school and kindergarten to solve the situation of studying in poor condition classrooms To so, the State budget should be invested for building a system o f school in the regions where are not satisíĩed as demand In the other hand, the studying program should be stable to keep away ííom changing year by year The system o f text book, studying equipment should be brought to the school before the new academic year starts to keep away from the situation o f that the pupil has to study vvithout materials and the book just come right beíore the end o f studying year Also, further training for teachers especially the ones working in mountainous area should be provided Concurrently, it is continuous to increase the quality of teachers through the improvement training courses and in other forms • Increase the operation quality of the organizations The HCMCYU, especially Ho Chi Minh Pioneer Teenager Union should not only concentrate on the pupils who study in school but also pay attention to all o f the children in society The other organizations such as VFF, v w u , etc should assign specialized cadres to take a responsibility for the child The matter o f children should be put into the operation content o f the organizations to assure the consistency and regularity and keep away from the periodical operation when having support That strengthening and expanding the Consulting offices for children should be more developed and in cooperation with free legal assistance centers for the poor and unconditional people and these centers should be under the management of Justice section The Children Foundation should be reiníorced at every level and diversiíĩed the receiving resource and calỉed for contribution by society • Strengthen State activities The State plays an important role in implementing the child’s rights in Vietnam Besides strengthening the socialization in protection, care and education for the child, the State should strengthen its activities with the following solutions: - Promote the socio- economic development especially in difficult areas to increase the budget contribution, develop the economy, create more jobs and improve the intellectual Standard o f people This is the material base for implementing the rights of the child - T o quickly put LPCEC in practice, the authorities should quickly issue guideline documents for LPCEC as well as amend and supplement the law to keep away from overlapping for a long time - Use part of State budget to support the implementation of the rights o f the child according to the regulation o f the Law on Protection, Care and Education for the Child and the relating documents - Attribute the duty o f each level o f the local authority, give out methods o f assuring implementation o f the law such as material base, conditions for the subjects to be able to implement; mechanism o f íỉnance allocation, intercoordination, housing and land policy In the other hand, it should create a mechanism and đeíine clearly the responsibility o f branches - Supplement mechanism and policy for protection, care and education for the child in mountainous and difficult areas; policies for toxic infected 54 children, HIV/AIDS infected children; policies for the teacher o f kindergarten • Bring into play o f the role o f the local authority The People’s Committee and People’s Council at all levels need direct the authorized bodies to set up and put the General Action Program for the Child into the socio-economic plan and speciíĩc assignments o f the locality They should promulgate documents which are the legal base for deploying the implementation o f policies and laws to make sure they are suitable to the condition o f the local authority In the other hand, the locality should increase the local budget resource to invest for the child, manage and utilize effíciently the budget resources granted by the Central authority to build a material resource o f the Central and local authorities and o f society for the programs and objectives for the child Moreover, the local authority shall coordinate more closely with the MOET and the MOH to develop the network o f school and health care centers, gradually assure basic conditions o f study and health care for the child especially for those who are living in mountainous area Also, it should implement absolutely the regulation o f assuring that the children who are studying at the level o f primary school and the one who are under years old will be entitle to accessing to a free Service o f health check Additionally, the local authority will have to strengthen, speed up and monitor the implementation process o f programs for the child to give out rational and timely solutions • Strengthen a system o f specialized bodies According to the regulation o f the law, Ihe PFCC is the consuiting body as vvell as connecting body for coordination o f deploying and implementing LPCEC and the relating programs and policies Thereíbre, the role o f this Committee should be heightened in coordination with other M inistries and Branches as well as localities, especially the role o f supervision and monitoring to keep away from the situation that the monitoring o f the committee is just depends on the report o f specialized bodies or that o f localities The training for specialized cadres who have a good capacity should be carried out synchronously in order to meet and high ten the quality o f monitoring and supervision activities It is needed to develop a specialized inspection system in the structure o f inspection body o f the PFCC In the other hand, so far, the system o f the PFCC has been established from the Central to the district level but not existed at the level o f commune In fact, the role o f specialized cadres at commune level is very important because they directly coordinate and supervise the implementation of the chilcTs rights even in each family Therefore, it is necessary to strengthen the organization system at this level, appoint at least one specialized cadre to undertake the deployment o f supervising the implementation of the rights o f the child at the commune level • Set up the National Center for Research, Information and Documentation The State should consider establishing the National Center for Research, Iníbrmation and Documentation on the Rights o f the Child This Center aims to help functional bodies research, review, evaluate the situation; plan the policy and propose solution in this íĩeld as well as archive and provide documents and data for the bodies, researchers systematically and coníidently 55 • Establish Juvenile Court Presently, that the children fail to implement fully their responsibilities and violate the law has been increasing in Vietnam Therefore, along with the justice reform process, it is necessary to set up a system ofjuvenile court In fact, the hearing of the cases relating to the juvenile (especially when the ịuvenile violates criminal law) shows that this is a special object which needs the care and special evaluation by experienced and specialized cadres so it can be assured by a principle o f attaching importance to re-educating and redeeming the chilcTs fault and getting re-integration o f the child to the society other than focus on punishment Additionally, though the Criminal Procedure Law provides some particular procedures for juvenile violators, these procedures are attached little importance to hearing in many courts in practice due to lacking o f a juvenile specialized court 4.3.3 other solutions • Strengthen the propaganda, dissemination and education of the rights of the child First o f all, it is needed to strengthen the propaganda and dissemination o f the Law on Protection, Care and Education for the Child and the relating documents This activity contributes a lot in implementing and complying with the law by the people To so, it is necessary to socialize the propaganda and dissemination o f the law and get people, organizations and bodies involved in this activity and keep away from thinking that this is the duty oí' íunctional bodies In the other hand, this activity should not depend heavily on the support from the State budget and keep away from the lliought o f that the propaganda is only organized when the budget is available but it is necessary to mobilize the possible resources for this activity Also, it is needed to widen the scale o f dissemination and head to rural, far and isolated regions to coordinate with other solutions to reduce the difference in understanding the rights o f the chiỉd Dissemination and propaganda should head to all o f the objects and focus on disseminating the responsibility o f the ĩamily to change the awareness of parents toward the child This is considered as one o f the factors deciding the success o f this activity In school, the propaganda, dissemination and education will focus on LPCEC because the pupil is one o f the objects that the Law aims to help them understand their rights and responsibilities • Socialize the protection, care and education for the child The objective o f socializing the implementation o f the rights o f the child is a strategic solution to mobilize strength o f the vvhole society All o f the State bodies and social organizations (within their authority and ĩunction) should have programs for the child The school needs approach the objective o f increasing the quality o f education especially the comprehensive education quality; widen the form o f integration education for the disable child; encourage organizations and individuals to establish centers for helping children In the other hand, it is necessary to set up more funds for children with a team of volunteers who both disseminate and propagandize the rights o f the child and mobilize contribution o f people for children The special prevention services, health care and social psychology 56 services should be established to meet the demand of protection, care and education for the child as well as to meet the demand o f children themselves Socialization of implementing the rights of the child should encourage people to take care of the child and help them self-implement their rights In the other hand, it is needed to take advantage of resources and assistance by international community for íĩnance, technique, skills and experience regarding children’s matter The State should create condition for International ChilcTs Rights Organizations to have more chances of approaching Vietnamese children • Increase the quality o f and carry out the dissemination o f National Report on the Rights o f the Child All o f the process o f implementing the child’s rights in Vietnam is reílected brieíly in the National Report on the child’s rights Presently, the PFCC and Children is responsible for the leading role o f preparing the National Report on the Child’s rights When having plan, the Committee will coordinate with relating Ministries, Branches to prepare the draft This is not a regular duty but carried out when having plan and the persons who join to prepare the draít can be changed from to time or those may not be the persons specializing in this matter Thereíbre, it is necessary to build up a team of experts in various ministries and branches to directly join to prepare the draft o f the National Report in order to increase quality o f the National Report on the child’s rights In the other hand, according to the regulation of CRC, the National Report must be widely disseminated for people to know but in iầct we fail to observe this regulation Therefore, the National Repoit should be part of the Programs on Dissemination and Education on the Rights o f the Child so every body can access to the iníịrmation mentioned in the Report • Join the relating International Treaties To perfect the legal mechanism of protection for the child’s rights, we should quickly join International Treaties relating to the child especially Lahaye Treaty o f 1993 regarding adoption and the Torture Prevention Treaty Also, it is continuous to widen intemational relations to take advantage o f the assistance and cooperation o f intemational community especially from UNICEF and other (NGOs) That implementing effíciently the assistance o f international community coordinates with the strength of the whole society will assure the best for the rights o f the child in Vietnam 57 Conclusion The popular said: " Children today is the world tomorrow " and " Give up all best thing that we have for children" is the motto of acts o f many nations The issues of protecting, taking care and educating children have never been strictly and urgently raised as novvadays The rights o f the child are considered as a part o f human rights Ensuring children's rights is one way to ensure human rights but due to special íeatures o f children, so they need a special mechanism to protect their rights The international Instruments, especially the Convention on the Rights o f the Child that was adhered by most nations in the world, is the stable legal ground to protect the rights of the child Furthermore, the system o f international institutions including international joint Government Organizations, Non-Government Organizations and Committee on the Rights o f the Child takes an important role in supervising the implementation the rights o f the child The rights o f the child are acknowledge in international law but the implementation of them is carried out in each nations So, each nation builds its own suitable mechanism to protect the rights o f the child basing on its condition o f economy, society, custom, culture tradition The rights o f the child is acknowledged in Vietnamese law as a legal protection of Vietnamese Government to the children's rights Moreover, the system of national institutions o f Vietnam and the process o f socialization o f the children's rights as well has contributed to make children's rights come to fact Generally, nation legal mechanism o f Vietnam to protect children's rights has been built In the aspect o f nation, this mechanism has ensured the practicalization of the children's rights In the aspect of internationai, the exist o f legal mechanism to protect children's rights is a strong commitment of Vietnam to international community to protect children's rights For over 10 years from the date o f ratiíication the Convention on the Rights o f the Child, Vietnamese children has got more fully their rights as well as much more results and interests that society reserve them Besides that, many problems have been raised and required solutions to continuously complete the legal mechanism to protect the rights o f the child in order to give them inore the best things Vietnam is a developing country and carrying out the process o f innovation in vvhich the children target is the premise for the nation's development in future vvith such meaning, the establishment and step-by-step to completing the legal mechanism to protect the rights o f the child in Vietnam is an Insurance for íuture It should the duty o f the whole society to the young generation to help Vietnamese children catching the children in the world and give contribution to building a better world for children 58 Bibliography I Laws and Treaties The Charter o f the United Nations 1945 The Universal Declaration o f Human Rights 1948 The UN Convention on the Rights of the Child 1989 The Constitution 1992 The Criminal Code 1999 The Civil Code 1995 The Labour Code 1994 The Law on Protection, Care and Education for the Child 2004 The Law on Maưiage and Family 2002 10 Act on G eneralizing Primary Education 1991 11 Education Act 1998 12 Nationality Act 1998 13 The Law on Prevention and Protection Against Drugs 2000 II Articles and Books Communist Party o f Vietnam, Documents o f the 9th National Representative Con/erence, National Political Publishing House, Hanoi 2001 Human Rights Research Center, HCMNPA- UNICEF, C hildren’s Rights, Hanoi 2003 Hanoi Law University, Text book on International Law, People’s Police Publishing House, Hanoi 2003 MILOSA-UNICEF, The issue o f Women and Children in the Period 2001-2010, Labour and Social Publishing House, Hanoi 2002 Mai Quynh Nam, Children- Famiỉy- Social, National Political Publishing House, Hanoi 2004 Nguyen Quoc Hoan, The Providing Mechanism o f Vìetnamese Law, Docteral thesis o f Law, The Hanoi Law University, Hanoi National Assembly Office- UNICEF, C hiỉdrens Rights and W om en’s Rights in International Legal Documents and Vỉetnamese Law, National Political Publishing House, Hanoi 2003 PFCC-UNICEF, The necessary knowledse about Children’s Riữhts, Hanoi 2002 Save the Children Sweden, Education fo r Every Children, National Political Publishing House, Hanoi 2002 10 Save the Children Sweden- Hanoi National University, Children Serving in Hanoi, National Political Publishing House, Hanoi 2000 11 Save the Children Sweden- Education Nevvspaper, Equality on Rights and Values, Youth Publishing House, 2001 12 A.Glenn Mower Jr, The Convention o f the Rights o f the Child International Law support fo r children, Greenvvood press - London 13 C.Davel, Children's Rights in a transitional society, protea Book House, 1999 59 14 Clara sominmarin, Advocating chỉlren's Righís in the Humcm Rights system o f ihe United Naíions, Save the Children Svveden, 1999 15 Eugeen Verhellen, Monitoring chilđreris Righís, Martinus N ijhoff publishers, the Hague/Boston/London 16 James R.Himes (ed), Thomas Hammarberg, Implementing the Convention on the Rights o f the Child, Martinus N ijhoff Pulishers the Hague/Boston/London 17 Geradine Van Bueren, The International Law on the Rights o f the Child, Swedish save the Children 18 M.G.Flekoy, Eugeen verhellen and F.speiesschaert, childrerís Rights: Monitoring issues, 1994 19 Oxíord University, the new Oxford dictionary o f English, claren press, Oxíịrd., 1998 20 Rebecca M.M.Wallace, International Law, London Sweet and Maxwel,.2002 21 Radda Bamen (1995), Monitoring Mechanism in Sweden United Nations Convention on the Rights o f the Child 22 Sandy Ruxton, Implementing childreris Righls, save the children 23 Thomas Hammarberg, Making Reality o f the Rights o f the chỉld, Svvedish save the children III VVebsite http://www.Unicef.org/crc/fag.htm http://www.Un.org/pubs/ourlives/Unicef.htm http://www.Unhchr.ch/html/menu 2/6/CRC http ://www.Un.org/esa/sicde/ebabke/ruggts/Uncontrib-Uncef.htm 60 ... contributing in to improve mechanism to protect the rights o f the children in Vietnam The overvievv on childrerTs rights and the legal mechanism to protect the rights of children in Vietnam 2.1 Rights. .. the child 42 PERFECTING THE LEGAL MECHANISM OF PROTECTION FOR THE RIGHTS OF THE CHILD IN VIETNAM 44 4.1 Necessity for perfecting the legal mechanismof protection for the Rights of the Child in. .. períecting the legal mechanism of protection for the Rights of the Child in Vietnam 4.1.1 An overview about good points of the legaỉ mechanism of protect? ??on for the Rights of the Child in Vietnam