Protection of the rights to customary land tenure for ethnic minorities: reflection on M’Nong, Ma and ede groups in Daknong province of Vietnam

However, in recent years the state has issued guidelines on developing and implementing regulations on forest protection and development in villages (cited in resolution No.70/2007/TT-[r]

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PROTECTION OF THE RIGHTS TO CUSTOMARY LAND TENURE FOR ETHNIC MINORITIES: REFLECTION ON M’NONG, MA

AND EDE GROUPS IN DAKNONG PROVINCE OF VIETNAM

Nguyen Ngoc Lan

Center for Governance Science Research and Consultancy, Vietnam

Abstract

Customary tenure systems exist in many countries with significant rural populations where access to, control, and use of land are determined through long-standing principles defined as “customary law” that operate outside the formal, or state, legal system Customary land tenure has been formed in the practice of social development since ancient times Vietnamese law does not include the term “tenure,” “tenure rights” or “customary tenure.” In Vietnam, customary tenure or tenure rights refer to a collection of rights, how they are allocated to community in terms of who has rights to different land and forests, and the terms and conditions for exercising each right The Constitutions of 1946 and 1959 stipulate a multi-ownership regime for land and public and private ownership The Land Law of 2013, the Forestry Law of 2017 also has very specific provisions on protection of the right to customary land tenure for ethnic minorities The M’nong, Ma and Ede groups in Dak-Nong province pilot a model for local ethnic management, forest protection and forest land, which addressed customary land tenure, contributes to protection of the economic, social and spiritual life of ethnic minorities, promoting the socio-cultural development The author argues that protection of the rights of ethnic minorities to customary land tenure is important to ensure equality rights for people and, although it has been recognized in the legislation of many countries, in Vietnam it is quite a complicated issue, as there is no specific guidance on customary land tenure for ethnic minorities stipulated in specialized laws such as the Land Law The author argues that the revision of the Land Law of 2013 should regulate the guideline on customary land tenure for ethnic minorities Strengthening the recognition of customary tenure of ethnic minorities in Vietnam is crucial to the social and economic wellbeing and development of ethnic communities, as well as for the country as a whole

Keywords: customary tenure, ethnic minorities, Vietnam

I Theoretical and Legal issues on Protection of the right to the customary land tenure of ethnic minorities in Vietnam

1 The concept of protecting the right to customary land tenure of Vietnam ethnic minorities

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law” that operate outside the formal, or state, legal system Customary systems are associated with traditional land administration institutions and customary law that define how rights are ruled, allocated, and preserved

Customary law (or customary rules) is a system of unwritten rules and regulations that are formed and exist in the social development process The content of customary law covers the fields of social life, such as: regulations on protection of natural resources, social management, community relations, customs, rituals, beliefs, rights and the responsibilities of members of society The customary law is accepted by all ethnic minorities, voluntarily complied with the principles of democracy, publicness and transparency It is an important role in community governance, social security, family relations, male-female relationship, beliefs, rights and responsibilities of commune members Those who violate the customary law principles are deemed to have hurt social relations between people and people They will be condemned, brought to trial and suffer penalties according to the customary law.1

Customary law stems from and is sustained by the living communities Thus, it can be clearly seen that customary law pays attention first to the harmony of the whole community, including equality among individuals; it is formed by the gradual construction of the whole community, beginning a long time ago, and is popularized mainly by word of mouth and recorded in memory of each individual in the community Customary law has been applied at the local level, and penalties are often flexible and dynamic, depending on the circumstances of the individual and society.2

Furthermore, according to the definition of the United Nations’ Food and Agriculture (FAO), customary tenure is a set of rules and norms that govern community allocation, use, access, and transfer of land and other natural resources The term “customary tenure” invokes the idea of “traditional” rights to land and other natural resources: “The tenure usually associated with indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial period” (FAO 2002)

Customary rules covering a larger region of quy tac (regulations) and more specific sets of rules applying to a village or commune huong uoc(village/commune rules) have been documented for large numbers of ethnic groups in Vietnam There has been less focus, however, on documenting case studies and stories which give a better picture of the dynamism and diversity of local communities, as opposed to the more static representation of customary law as a collection of rules

Land tenure is the relationship, whether legally or customarily defined, between people, as individuals or groups, and land (For convenience, “land” is used here to include other natural resources such as water and trees.) Land tenure is an institution, i.e., rules invented by societies to regulate behavior Rules of tenure define how property rights to land are to be allocated within societies They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and restraints In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions

Land tenure is an important part of social, political and economic structures It is multi-dimensional, bringing into play social, technical, economic, institutional, legal and political aspects that are often ignored but must be considered Land tenure relationships may be well-defined and

1 Buon Kroong Tuyet Nhung (2016), the Center for Social Sciences and Humanities, Tay Nguyen University.

440 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS enforceable in a formal court of law or through customary structures in a community Alternatively, they may be relatively poorly defined with ambiguities open to exploitation

Vietnam only uses the term “use right” to land and natural resources, which is not the same meaning as tenure In the Cambridge Dictionary, tenure is “being the legal owner of land.”1 Land use

rights in Vietnam is detailed in the Land Law of 2013, as below2:

- To be granted the certificate of land use rights, houses and another land-related asset ownership - To enjoy the results of the labor and investment on land

- To enjoy the benefits derived from facilities constructed by the State for protecting and improving agricultural land

- To receive the State’s guidance and assistance in the improvement and fertilization of agricultural land - To be protected by the State against others’ infringements of their lawful rights and benefits related to land

- To receive compensation when land is recovered by the State in accordance with this law - To complain about, denounce or file lawsuits over violations of their lawful land use rights and other violations of the Land Law

Examining land use from the perspective of this regulation, it seems people have full rights and power over their land, but Article of the Land Law of 2013 states: “Land belongs to entire people with the State acting as the owner’s representative and uniformly manages the land The State shall grant land use rights to land users in accordance with this law.” In Vietnam, land and forests are owned by the state, not by private units or individuals Therefore, when “tenure” is interpreted in Vietnam, it is understood not to include private ownership of land and forest

Vietnamese law does not include the term “tenure”, “tenure rights” or “customary tenure.” For this study, and to adapt to the situation in Vietnam, customary tenure or tenure rights refer to a collection of rights (but without the private ownership right to land and forests), how they are allocated to communities in terms of who has rights to different land and forests, and the terms and conditions for exercising each right

2 The concept of protection of the right to customary land tenure of ethnic minorities

Human rights are global legal guarantees that protect individuals and groups against actions or negligence that harm the human dignity and basic freedom

Land is a cross-cutting issue that impacts directly the enjoyment of a number of human rights For many people, land is a source of livelihood, and is central to economic rights Land is also often linked to peoples’ identities, and so is tied to social and cultural rights3, and is not simply a resource

intended to satisfy one human right in the international legal framework And yet, while rights have

1 Tenure, https://dictionary.cambridge.org/vi/dictionary/english/tenure. 2 The Vietnamese land law 2013, art 166.

3 The United Nations Human rights office of the high commissioner, Land and Human Rights.

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been established in the international legal framework that relate to land access for particular groups (e.g indigenous people and, to a more limited extent, women), numerous rights are affected by access to land (e.g., housing, food, water, work), and general principles in international law provide protections that relate to access to land (e.g., equality and nondiscrimination in ownership and inheritance), an explicit consideration of the legal implications of access to land for a broad range of human rights is necessary.1

Customary land tenure is a branch in the right to land access The condition of landlessness threatens the enjoyment of a number of fundamental human rights Access to land is important for development and poverty reduction, but also often necessary for access to numerous economic, social and cultural rights, and as a gateway for many civil and political rights However, there is no right to land codified in international human rights law The numerous economic, social and cultural rights in the UDHR and ICESCR are intimately connected to access to land, including the rights to housing, food, health and work.2

Land tenure, in the form of formal legal, customary or religious rights, can provide more clearly fundamental rights, including those to food, housing, water and health The right to housing is related closely to land access and has been defined in numerous international documents (eg ICCPR) but access to land remains imprecise Land access is frequently tied to the spiritual, cultural and social identities of people As such, land rights have been more fully developed in the sphere of indigenous rights.3

In Vietnam, the term “indigenous people” began to be used when the country was colonized by French colonialists (1884-1945) At that time, France used the word “indigenous people” to collectively refer to the communities living in Vietnam, regardless of Kinh people or other ethnic minorities After 1945, the Vietnamese people owned the country, and the concept “indigenous people” was no longer used.4 The Vietnamese State implements a policy of equal development, preservation and promotion

of ethnic traditions This is recognized in the Vietnamese Constitution of 2013 Instead of the concept “indigenous people” and “rights of indigenous people”, a new concept – that of civil rights – was implemented: the right of all Vietnamese people, irrespective of whether they belong to an ethnic minority or majority It recognized 54 official ethnic groups, of which the Kinh majority accounts for 87 percent of the population.5 The United Nations (UN) has noted the difficulty in arriving at a

common definition of ethnic minorities because of the diversity of situations in which minorities live and the history of different groups In 1992, the UN adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities The United Nations Minorities Declaration defines minorities based on national or ethnic, cultural, religious and linguistic identity, and provides that states should protect their existence In 2007, the United Nations Declaration on the rights of indigenous peoples was adopted by the General Assembly, which recognizes the need to respect and promote the rights of indigenous people, especially their rights to their lands, territories and resources

1 Elisabeth Wickeri and Anil Kalhan, land rights Issues in International Human Righrs Law – Institute for Human

Rights and Business, page -https://www.ihrb.org/pdf/Land_Rights_Issues_in_International_HRL.pdf

2 United Nations, Universal Declaration of Human Rights, art 23,25, http://www.un.org/Overview/rights.html#a25. 3 International labour Organization, Convention 169, Indigenous and Tribal People Convention

https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169

4 Mr Quoc Tuan (6th January 2017), Discussion on “Rights of indigenous people” in Vietnam.

5 FAO and MRLG (2018), Challenges and opportunities of recognizing and protecting customary tenure systems in

442 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS On 14 January 2011, Decree No 05/2011/ND-CP, which addressed the affairs of ethnic minorities, was adopted by the Government The decree indicates ethnic minorities are ethnic groups with a population smaller than that of the ethnic majority group within the territory of the whole country.1

The area of ethnic minorities is where many ethnic minorities live in harmony as a community in the territory of Vietnam During the formation and development of the country, migration over thousands of years led to the fragmented habitats of ethnic groups interspersed in valleys and mountains Most of them reside in rural, mountainous areas such as the Central Highlands and the Northern Mountains, in particular Vietnam has 53 ethnic minorities, with a combined population of 13.4 million people, accounting for 14.6% of the country’s population; these minorities live in communities in 51 provinces, cities, and 548 districts Ethnic minorities reside mainly in the Central Highlands, Northwest, Southwest and Central Coastal regions, accounting for 75% of the total area of the country.2 While

these communities only constitute 14.6% of total population in Vietnam, customary tenure issues affect a large number of people due to the country’s overall population

With thousands of years of socio-economic development, ethnic minorities demonstrate the harmony, trust, relationships, mutual support and cooperation in work, spirituality, culture and marriage through their social structure and systems of customary tenure They have been fairly self-sufficient through collective land and forest use which has ensured both daily consumption and spiritual needs With differing types of organization, villages traditionally possess collective rights to an array of land used for various purposes, such as residential land, burial grounds, lowland rice fields, shifting cultivation land (including fallow areas), grazing areas, forest land (including sacred areas), and areas for watershed protection Certain forests and other areas are recognized as being inhabited by spirits.3

These relationships and collaboration among ethnic minorities in Vietnam are fundamental to strengthening relations between ethnic minorities and preventing conflicts relating to resources and culture, and to maintaining the unity and stability of society

It can be seen by the above analysis, that protection of the right to customary land tenure of ethnic minorities is to affirm basic human rights, the rights of ethnic minorities, which are specified in the Constitution of 2013, as well as to protect the survival space – “khong gian sinh ton” – of ethnic minorities Ethnic minority communities – villages created by the coexistence and association of families of the same blood and different families – together find their own land to establish a village corresponding to the determination of the territory ground, including the determination of forest land for agricultural production Land, water and forest resources are the three basic elements to create a friendly, healthy and sustainable social environment Thus, protection of this land tenure amounts to the protection of the living space of ethnic minorities, and the preservation and maintenance of their specific cultural identity and characteristics

1 Decree No 05/2011/ND-CP dated 14th January 2011 of the Government on Ethnic Minorities work, art 14.

2 National Committee for Ethnic Minorities (2019), Report on evaluating years of implementing policies to support

socio-economic development using ethnic minorities and mountainous areas in the period of 2016 - 2020, http://www cema.gov.vn/trang-chu-backup/kinh-te-xa-hoi-vung-dan-toc-thieu-so-mien-nui-da-dat-duoc-nhieu-ket-qua-quan-trong-toan-dien.htm

3 FAO and MRLG (2018), Challenges and opportunities of recognizing and protecting customary tenure systems in

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3 The current Vietnamese Legal framework on protection right to the customary land tenure for ethnic minorities

3.1 Overview of Vietnam’s current legal framework on land right for ethnic minorities

Land is an extremely valuable national resource, not a common commodity but a special means of production and life, an important component of the living environment, a place of activity of residential areas, construction of economic, cultural, social, security and defense facilities, etc With such an important role, the land policies are attracting more and more attention, especially towards the resolution of production for people in disadvantaged and ethnic minorities

Law on land rights in general and ethnic minorities in Vietnam from 1930 to 1987

In 1930, the Vietnamese Communist Party determined land ownership belongs to the Government of the workers and the farmers By 1949, President Ho Chi Minh signed a decree to reduce taxes and placed instruction on the allocation of land from plantations and farms which lacked owners to farmers In 1953, the Law on Land Reform was issued, whereby the land of landlords would be confiscated and given to farmers; it confirmed the ownership of farmers for those lands, “abolishing the empire’s possession of land in Vietnam, abolishing the feudalism of land possession by landlords, implementing the farmers’ land ownership, implementing the slogan of “farmers have fields.””1 In

1954, after the Dien Bien Phu Victory and the Geneva Agreement, the country was divided into regions, South and North Vietnam During this period, in North and Central of Vietnam, there existed public land, including state owned fields and public village fields Although these lands had different origins, they were all used by the villages according to the principles of village rules– “huong uoc,” which dictated that the benefits gained would be spent on worshiping and giving to old people, etc., and that the remaining portion would be divided among male members of the village who are 18 to 60 years of age Every to years, the land was be re-divided Consensus from all classes in the community had to be achieved, because people had land to cultivate, and bureaucrats had the right to benefit from the cultivation of said land “Huong uoc” stipulate the rules of use, land division, penalties, etc to achieve the fairness.2

In the period of 1954 – 1957, the Communist Party was to restore the economy, ensure people have fields, and the land reform was to be implemented The situation of the country at that time was that many economic sectors, communities and individuals were using land with different land ownership forms; in Article 11 of the 1959 Constitution, which addresses the possession of production, it is stated that “state ownership means the ownership of the entire people; cooperative ownership means the ownership of the collective of the farmers; individual ownership means bourgeois.” The State also protects the right to land ownership which is specified in article 12 of 1959 Constitution: “Mines, rivers and forests, wasteland and other resources belong to the State, regulated by the Law, and owned by the entire population.”

According to the 1959 Constitution, the State encourages farmers to join the cooperatives, with an agricultural production cooperative model, in which the State allowed to be exploited more for production development, but not be transferred to personal possession In addition, when reclaiming

1 The Vietnamese Civil Code 2015, episode 14.

2 Ms Doan Hong Nhung, “Processing land ownership through periods and solutions to strengthen state land

444 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS land, it was necessary to respect the rights and customs of the people, and to avoid encroaching on the graveyards of the people.1

After the reunification, Vietnam entered a period of transitional construction of socialism, the land policies were concretized by the nationalization of foreign plantations and land of foreign bourgeoisies, the recovery of nationally-owned land, the land of village bourgeoisies, and anti-landlord campaigns; land lease and confiscation of leased land was terminated, debts that farmers owed to previous landlords were erased This policy is specifically reflected in Decision 188-CP, dated 25 September 1976, of the Vietnamese Government

The 1980s was the period during which the main economic policy was on subsidization, which reveals limitations and directly affects the socio-economic development This is underscored by the economic crisis in the early 1980s, in particular, in which food production did not meet demand In the face of these challenges, localities piloted initiatives and more or less achieved results in promoting productivity, raising awareness of production cost savings, etc These successes were institutionalized by a Directive of the Fifth Communist Party Central Committee, namely Directive 100/CT-TU, on results-based production contracted to groups and individual workers in agricultural cooperatives As a result, agricultural production had changed significantly in the direction of growth Then the 1980 Constitution was issued, affirming that the land belongs to the entire people (article 19 Constitution 1980) and is to be uniformly managed by the State

At this stage, there were no specific land policies for ethnic minorities, but the land policies were still applied in general The State implemented a farmers’ land ownership regime For ethnic minorities, customary laws still applied with specific provisions on the possession, use and disposal of forest lands that they already had Furthermore, Kinh people began moving to some mountainous areas where ethnic minorities lived, seeking economic development, and there were policies and regulations for the socio-economic development there, so the implementation of the customary laws changed It can be clearly seen that the Constitutions of 1946 and 1959 stipulate a multi-ownership regime for land, public ownership and private ownership By 1987, when the Land Law was issued, land belonged to the entire population and was subject to administration by the State in the spirit of the 1980 Constitution

Law on land rights in general and ethnic minorities in Vietnam from 1987 to present

This is the period of accelerating the industrialization and modernization of the country, building a socialist-oriented market economy In 1993, the new Land Law replaced the 1987 Land Law, which stipulated that “land is the property/belonging of the people, land use rights belong to land users.” The 2003 Land Law replaced the Land Law of 1993 Through many replacements and amendments Land use rights of the people were also expanded, from common and civic rights of land users (9, Article 105, 106 Land Law 2003, amended in 2009) The Constitution of 1992 also stipulated that land is the property/ belonging of the people and is subject to administration by the State: Article 17 of the 1992

Constitution regulated “the land, forests, rivers and lakes, water supplies, wealth lying underground

or coming from the sea, the continental shelf and the air, the funds and property invested by the State

1 Directive No 14-TTg dated 3rd February 1962 of the Vietnam Government Democratic Republic on regarding the

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in enterprises and works in all branches and fields … come under ownership of the entire people.” And in the Article (1) of the 2003 Land Law “land is the property/belonging of the people and is subject to administration by the State.”

In fact, land users have the right to donate, leave inheritance as land use rights, right to lease, mortgage or contribute capital with land use rights, meaning that the land user are entitled to land allocation in certain areas allowed by law The land management mechanism also changes in order to meet the reality Land users are granted land use right certificates, which can be assigned, exchanged, transferred, leased, inherited, etc

The 2015 Civil Code recognizes ownership of the land by the entire people, as managed by the state (Article 197), as well as private and collective ownership Article of the 2013 Constitution and Article of the 2015 Civil Code provide for the right of all ethnic groups to use their own language, to preserve their ethnic identity, and to promote and respect good customs, practices, traditions and culture Collective ownership is permitted, provided it is “in accordance with provisions of the law or in accordance with customary practice” (Article 208 Civil Code) Collective ownership by a community means “ownership by a family line, hamlet, village, tribal village, mountainous hamlet, ethnic hamlet, religious community or other community of property which is formed in accordance with customary practice” (Article 211 Civil Code) Boundaries of immovable property may also be determined “in accordance with customary practice or according to boundaries that have existed for thirty (30) or more years without dispute” (Article 175 Civil Code)

The process of formalizing private land use rights has been underway since the 1986 Reforms (“Doi moi”) Originally, farmers leased land from the state without formal Land Use Right Certificates It also enshrined the three categories of land rights in Vietnam: ownership, management, and use “Land use” rights allow individuals, family households, and organizations to transfer, lease, exchange, mortgage and pass on land as inheritance, and to dispose of the land use right, because land is a common property

At the 7th meeting of the 9th Central Committee of the Communist Party of Vietnam, Resolution

24-NQ/TW on ethnic affairs was issued which clearly shows the tasks, orientation and action plan for implementing the goal of hunger elimination, poverty reduction, livelihood maintenance, socio-economic development for mountainous and ethnic minorities areas, settling disputes on residential land and land production for ethnic minorities Article 27 of the 2013 Land Law has very specific regulations on the responsibilities of the State for residential and agricultural production land for ethnic minorities: “There is a policy on residential land and community activities for ethnic minorities in accordance with customs, practice, cultural identity and actual conditions of each region; There are policies to create conditions for the ethnic community to have land to directly engage in agricultural production in rural areas.”

Thus, by 2019, the general legal framework on land policy for ethnic minorities was issued, as shown below:

- 1959 The Constitution; The 1980 Constitution; The 1993 Constitution; The 2013 Constitution - The 1953 Law on Land Reform; The 1987 Land Law; The 1993 Land Law; The 2003 Land Law; The 2013 Land Law

446 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS - Decree 43/2014/ND-CP, issued by the Government on 15 May 2014, detailing a number of articles of the Land Law

- Circular 02/2015/TT-BTNMT, issued by the Ministry of Natural Resources and Environment on 27 January 2015, detailing a number of article of the Government’s Decree No 43/2014/ND-CP and Decree No 44/2014/ND-CP, dated 15 May 2014

3.2 The current legal provisions of Vietnam related to protection of the right to customary land tenure for ethnic minorities.

As analyzed above, the protection of the right to customary land tenure for ethnic minorities was regulated by the Constitution and specialized laws It must be affirmed that ethnic minorities have the same rights as all people, because “everyone is born with equal rights The Creator gives them the rights no one can infringe on; among these rights is the right to life, freedom and the pursuit of happiness” (Vietnamese Declaration of Independence in 1945) The 2013 Constitution affirmed that “land, water resources, mineral resources, resources in the sea and airspace, other natural resources, and property managed or invested in by the State are public property, owned by all the people, and represented and uniformly managed by the State,” and that “land use rights are protected by law” to affirm that any peoples and organizations using land are protected by the State and ensured conditions to exercise their rights Currently, all Vietnamese citizens, including ethnic minorities and mountainous people, are allocated long-term, stable land use rights and are equal before the law.1

One of the current legal documents that regulates the above-mentioned issue is the 2013 Land Law It was issued at the same time as the 2013 Constitution to mark the reforms in land policies in order to meet the socio-economic development requirements in the period of acceleration of the national industrialization and modernization; it bolstered international integration and helped ensure the maintenance of socio-political stability of the country The Land Law has institutionalized the orientations specified in Resolution No 19-NQ/TW of the 6th Central Committee of the Communist

Party of Vietnam The Land Law of 2013 was more concerned with customary land tenure for vulnerable groups, including ethnic minorities, and included regulation on State responsibilities for residential land, agricultural production land for ethnic minorities, exemption of land use fees and land rent for the poor and ethnic minorities

After the Land Law of 2013 came into force, the government issued 13 Decrees, the ministries issued 50 circulars, among which the Ministry of Natural Resources and Environment has advocated issuing 35 circulars Along with that, Provincial-level People’s Committees issued more than 1141 specific documents for 41 issues/topics as assigned As a result, land management has achieved positive results

The most important point for ethnic minorities in terms of land use right is stipulated in Article 133 (2) of the 2013 Land Law: “Provincial-level People’s Committees shall direct the review and approval of plans for land use; allocate or lease land in accordance with the approved plans for land use; During the process of land allocation or land lease, ethnic minority households and individuals in the locality that have no land or lacking production land, shall be prioritized.”

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In addition, the 2013 Land Law and the 2017 Forestry Law also have very specific provisions on the protection of the right to customary land tenure for ethnic minorities The forest owners consist of types: i) Forest owned by the State as the owner representative and ii) Forest owned by organizations, households, individuals and communities Thus, when forest production is invested in by organizations and individuals, the investors will be the owners of the forests Ethnic minorities are recognize with forest land allocation, specifically in Article 4(6) of the 2017 Forestry Law: “The State shall allocate forest and land to ethnic minority people and communities whose income mainly comes from forests for combined forestry-agricultural-fishery production; …” This provision has shown improvement compared to the provisions of Article 27(2) of the Land Law of 2013 which has a policy to create conditions to allocate agricultural land for production in rural areas to ethnic minorities who actually conduct agricultural production

The Prime Minister signed Decision No 2085/QD-TTg dated 31 October 2016, approving the specific policy to support socio-economic development for ethnic minorities in the 2017-2020 period, with the purpose of settling land production for more than 80% ethnic minorities households and poor households in extremely difficult areas lacking land production Recently, the Ethnic Minorities Committee issued Circular No 02/2017/TT-UBDT to guide the implementation of Decision No 2085/QD-TTg dated 31 October 2016 There are also policies and laws to support land for ethnic minorities in some specific geographical areas.1

The legal framework and regulations of the current law on this issue are quite complete and comprehensive, but there are still some limitations, as below:

- In terms of structure, the legal system on land and land rights is too complicated with many types of documents, about 57 legal documents, including law, resolutions of the National Assembly, decrees (including amended and supplemented decrees), resolutions of the Prime Minister, 37 circulars, joint resolutions of the Farmers’ Association and the Minister of Natural Resources and Environment.2 This does not include other legal documents related to forests and forest land In the

Vietnamese legal system, forests and forest land are governed by laws: The Land Law regulates relations related to forest land while forests as resources and assets on land are subject to the Forestry

1 Decision No 132/QD-TTg dated 8th october 2002 of Prime Minister on settling land production and residential land

for local ethnic minorities in the Central Highlands;

Decision No 134/2004/QD-TTg dated 20th July 2004 of Prime Minister on support people who poors and has difficult life;

Decision No 304/QD-TTg dared 23rd November 2005 of Prime Minister on piloting forest allocation and contracting forest protection to households and communities in ethnic minority villages in the provinces in central Highlands; Decision No 33/QD-TTg dated 5th March 2007 of Prime Minister on policies to support migrants to implement

sedentarization and settlement for ethnic minorities in the 2007-2010 period;

Decision No 74/QD-TTg dated 9th June 2008 of Prime Minister on supporting settlement of residential land, production land and employment for poor ethnic minority people whose has difficult life in the delta Mekong River; Decision No 1342 / QD-TTg dated August 25, 2009 of the Prime Minister approving the plan of sedentarization and

sedentarization for ethnic minority people in shifting cultivation and nomadic migration to 2012;

Decision No 1592/QD-TTg dated 12th October 2009 of the Prime Minister, on continuing to implement a number of policies to support production land, residential land, housing and domestic water by 2010 for the ethnic minorities (from 2009 to 2010)

2 The system of legal regulations in the field of land, electronic information portal, http://phapdien.moj.gov.vn/qt/tintuc/

448 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Law The reality shows that although forests and forest land are closely related – as land, natural resources and properties – they are separated and adjusted by different laws, assigned to different agencies in charge of management, which results in difficulties in the implementation process At the same time there are inadequacies and contradictions in some provisions between the laws.1

- Regarding the subject and content of rights, the limitation of the right to dispose of land in certain areas in the Land Law of 2013 has been narrower than that stated in international law Even the concept of “community” is not consistent between the Land Law and the Forestry Law, making it difficult to identify the beneficiaries of rights In addition, there is an inconsistency between the concept of Spiritual Land and Spiritual Forest The Spiritual Forest is part of special forests, as defined in article 2(8) of the 2017 Forestry Law, but in Article 10(2) of the 2013 Land Law, Spiritual Land is part of non-agricultural land This inconsistency of concept can lead to inconsistency in land use purpose and land resources use purpose

- Regarding the policy of agricultural land allocation to ethnic minorities, people residing in mountainous areas with large natural areas but very little land can be employed in agriculture; measures to support land for compatriots only meet a very small part of the demand, and up to a fourth of households which receive land support are not poor households or ethnic households.2

In general, the provisions for land in the Land Law of 2013 and the Forestry Law of 2017 and relevant legal documents still favor the administrative agencies, restricting the rights of people in general, as well as the rights of ethnic minorities in particular Policies are available, but the implementation of land policies is still inadequate This is the reason many international organizations and national governments have recommended the Vietnamese State “continue to promote and protect the rights of ethnic minorities,”3 or “protect women’s land rights in the Land Law.”4 Or,

in the concluding remarks on Vietnam’s third periodic report from the Human Rights Committee, the committee was really concerned about the rights of ethnic minorities: “The committee is still concerned that these communities are not fully consulted in the decision-making process on issues affecting them, including land allocation, land acquisition and ancestral land traditions.”5

In summary, although there are still limitations as shown in the above analysis, Vietnam has a quite adequate legal framework to regulate the land issues and land rights of people, including ethnic minorities The legal framework and legal documents have affirmed plans to protect the land rights of ethnic minorities This is an important point for recognizing the effectiveness of land management and use by ethnic minorities, thus realizing customary land tenure for ethnic minorities by revising the 2013 Land Law; these points, including specific provisions on this issue, have been approved for revision in 2020 by National Assembly Standing Committee

1 Mr Dang Hung Vo (2018), Report on proposing amendment to Land Law 2013.

2 Mr Nguyen Danh Ut – Vice chairman of National Council of National Assembly (28th November 2013), interviewed the

Banking Times about the Gaps of Land policy, http://thoibaonganhang.vn/bat-cap-cua-chinh-sach-dat-dai-2823.html

3 The Recommendation No 143.208 of Ecuador; 143.209 of Iran in UPR 2014. 4 The Recommendation No 143.87 of Netherlands in UPR 2014.

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II The current situation of protection of the right to customary land tenure for M’Nong, Ma and Ede ethnic minorities in Dak Nong province

1 Natural, economic and social characteristics of Dak Nong province affecting the protection of the right to customary land tenure for M’Nong, Ma and Ede

Ethnic minority groups reside along the border in the North, West, and Southwest of Vietnam since there are many border gates for trading between Vietnam and other countries in the region and internationally These areas have potential in mining (such as coal, iron, copper, lead, zinc, gold, silver and gem mining), hydropower, forest, and ecology

Dak Nong is one of five provinces of the Central Highlands, located in the southern part of the Central Highlands The province has a total area of 653,300 of land Currently, forest coverage in Dak Nong Province is lower than other provinces, at 38.8% (252,820 ha) Authorities plan to increase forest coverage to 348,625 ha, accounting for 53.5% of the province

Dak Nong Province has 15 communes in area I, 44 communes in area II (difficult socio-economic conditions but temporarily stable), and 12 communes in area III (extremely difficult socio-economic conditions) Area III is ranked as being especially disadvantaged The result of a survey in 2016 indicates that the percentage of the poor in the province was 19.2% (28,739 households) The main crops are industrial perennials such as rubber, coffee, pepper, and cashew

Dak-Nong is an area in which thousands of ethnic people live, it is a living space for people from many regions, as well, so the spiritual life, religions and beliefs are rich There are Catholics, Buddhists and Protestants

In addition, the people in Dak-Nong also worship many gods, especially Yang (heaven), the God of the Mountain, the God of the River, etc., and there are many festivals such as ones celebrating new houses, new seasons, commemoration ceremonies, etc

The province’s socio-economic situation as of 2018 continues to achieve many positive results, which can sustainably develop all three fields of agriculture, industry processing, mining and tourism; the socio-economic indicators were relatively high [5], accounted for 93.75%, GRDP growth beyond the planned 8.2% The agriculture sector is estimated at 8,288 billion VND, up 5.96% compared to the plan; construction industry is estimated at 3,137 billion VND, up 12.04% compared to the plan, … Economic growth exceeded the plan, shifting the economic mechanism in the right direction In addition, the province also announced Resolution No 50/NQ-CP dated 10 May 2018 of the Government on adjusting land use planning to 2020 and the province’s land use plan for the 2019-2020 period; approved district land use planning; adjusted compensation and resettlement support on land acquisition in the provincial level by State regulations; implemented Plan No 437 on use and management of 63,000 hectares of land derived from forest land

2 The content and results of the protection of the right to customary land tenure for M’Nong, Ma and Ede in Dak Nong province in the last five years

450 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS a forest block (brii) It is from this landfill that they not only extract the materials they need to dress, build housing, produce tools, but most notably secure their food source by fishing, hunting, picking vegetables and cultivating crops.”1

Thus, customary law plays an important role in adjusting the relationships in the lives of ethnic minorities; it is strictly followed by the community, because it is both a religious virtue, belief and religion, associated with people Even in many cases, customary laws are still more effective than law; trial by customary laws is more acceptable to the village than any other sentence.2

The Ede, Ma and M’Nong communities are ethnic minorities which live in the forest In the framework of this research, the author has researched and addressed customary land tenure of the above-mentioned communities through models in Hung Binh, Nghia Thang Communes, Dak R’Lap District and Dak Nong Province with the case study of Cat Tien national park (in 2017)

The Hung Binh Commune in Dak R’Lap District was established in 2007 It has a total natural area of 8,890 ha, in which 5,000 is natural forest protection forest by the buffer zone of Nam Cat Tien National Park The Nam Cat Tien Protection Forest Management Board manages this area In 2008-2009, the District People’s Committee assigned this area to 18 local ethnic poor households to protect and manage 120 They managed the area well and prevented illegal logging and forest encroachment In Hung Binh Commune, as well as the whole Dak R’Lap District, most of the natural forest area is allocated to the Protection Forest Management Board, so there is no more forest land to allocate to households, individuals or communities However, local villagers want more forest land assigned to them to increase their income

Nghia Thang Commune in Dak R’Lap District has no natural forests to allocate to households or communities However, there are 123 of Nam Cat Tien protection forest in Dao Nghia Commune which is allocated to 17 households in Buzarah Village, Nghia Thang Commune In the past, Dao Nghia and Nghia Thang Communes were one commune Therefore, the forest area of Dao Nghia Commune was allocated to villagers who live in Buzarah Village of Nghia Thang Commune because their residential area is close to the forest area Therefore, those who live in another village could manage the forest – this is a special feature of forest land management in this area

In Nghia Thang, there are nine villages belonging to area II, in which there are three villages ranked as having especially difficult conditions: Quang Loi, Quang Tin, and Buzarah villages

Agricultural land is mainly used for industrial crops For example, Buzarah village has 266 of agriculture land, including 22 used for rice, – for pepper, 101 – for rubber, 74 – for coffee, and 64 – for mixed coffee and cashew

Chau Ma Village was established in 1982 by several households who migrated from Lam Dong and Binh Phuoc Provinces Currently, there are 69 local M’Nong households living there The education level of local villagers is low; most of them have only finished primary school Before 1975, local M’Nong people lived there, including respected elders The population at that time was small, natural resources were quite abundant, and many kinds of animals, such as tigers and elephants

1 Georges Louis Condominas (1997), Social space in Southeast Asia, page 377, Culture Publishing.

2 The presentation of Dak Lak Justice Department (1997): In the book “The Thematic on customary law, proceedings

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still lived in the forest Land and forests were managed by the village, not by the state In 1962, when American soldiers burned the village houses, local M’Nong fled to Lam Dong Province In 1982, these peoples returned to their hometown with 16 households and lived in the natural forest At that time, the Government did not manage said forest, but managed the demography Customary law was quite strict Since the village is near the Nam Cat Tien protection forest, in 2000-2006, Nam Cat Tien protection forest management board assigned forest land to households and the community for protection Each household was assigned 30 of forest on average Every five years, the management board renews and reassigns the forest again to all households, including new households Due to the growth in a number of households, each household is currently assigned 15-20 of forest

The village established protection groups When they seized illegal loggers, they would transfer them to the management board for punishment The protection groups receive an allowance for their work, and they can collect non-timber products like bamboo shoots and vegetables Regulations on forest protection are strictly adhered to by villagers to prevent deforestation

Buzarah village, Nghia Thang commune was established with links to the sacred forest and cemetery area of their ancestors After the establishment of the Nam Cat Tien protection forest management board, 123 of protection forest was assigned to 17 local ethnic households to manage and use Although 17 households officially registered in Nghia Thang commune, they were assigned this forest area and ancestor graves area in Dao Nghia commune The reason is that these areas are near to the 17 households of Nghia Thang commune, and in the past, they were in the same community Sacred forests and spiritual forests are meaningful to ethnic minority groups, and because of this, they continue maintaining and protecting their ancestral lands and forests

3 General evaluation and issues with protection of the right to customary land tenure for M’Nong, Ma and Ede minorities in Dak Nong province

The model observed in Cat Tien national forest to allocate forest attached to land partly shows the superiority of the customary management method However, there are still issues that need to be addressed to protect land tenure in the future The allocation of forest land to ethnic minorities for protection and management has created a premise for real forest owners to develop their household economy Households and individuals who use the appropriate resources for protection or management of forests could make a positive impact on forestry development, development of farm economy and forestry production, as well as socio-economic development in rural mountainous areas

In the past, ethnic minorities formed effective regulations on protecting community forests and holy and sacred forests However, in recent years the state has issued guidelines on developing and implementing regulations on forest protection and development in villages (cited in resolution No.70/2007/TT-BNN dated August 2007 of MARD)

452 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS A major barrier for the recognition of customary tenure in Vietnam is that the commune is the lowest administrative unit The village has no legal status While the government has more recently recognized the value of communal forms of management, these have been seriously weakened and rebuilding them will take special effort and piloting Recreating concepts of community management that follow customs and are clearly differentiated from models of collectivization is an important first step Strong, well-organized communities have been able to claim back forest land allocated to households

III Viewpoints and solutions on protection of the right to customary land tenure for M’Nong, Ma and Ede in DakNong province

1 Viewpoints to protection the right to customary land tenure for M’Nong, Ma and Ede in DakNong province

It is clear that a key issue for the recognition of customary tenure in Vietnam is centralized decision making, given the state’s dominant role in managing land Despite this centralized structure, there is a lack of legal and jurisdictional harmony Multiple laws and decrees prepared under different ministries result in conflicting and overlapping institutional mandates and these are interpreted and acted on in a variety of ways at the local level

In order to protect the right of ethnic minorities to land, in addition to developing policies at the national level, it is necessary to flexibly apply international law provisions and international standards into domestic policies/institutions related to the rights of ethnic minorities The State should internalize and concretize regulations related to the rights of ethnic minorities which are mentioned in Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

In order to protect the customary land tenure for M’Nong, Ma and Ede in Dak Nong Province, certain aspects need to be considered, such as politics, socio-cultural circumstances, economy and law This is because: i) protection of the right to customary land tenure for ethnic minorities is closely related to politics: land right in general and customary land tenure (customary law) are regulated by international law as well as by national Constitution and laws; ii) protection of the right to customary land tenure for ethnic minorities must be consistent with socio-economic conditions For ethnic minorities in Vietnam in general, life is closely associated with the customary laws and culture; iii) protecting customary land tenure for ethnic minorities must be consistent with Vietnamese legislation/laws

2 Solutions for protecting the right to customary land tenure for M’Nong, Ma and Ede in Dak Nong province

a Solutions on laws and policies

- Add a section on forest land to Article (definition) of the 2013 Land Law: x) Forestry land is land with natural forests or forest plantations meeting forest standards in accordance with the Forestry Law; land is zoned for forest restoration, this is new forest land but not yet forested; forest land currently planted or allocated, leased for afforestation and vacant land within the boundaries of forests have been decided according to the Forestry Law

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in accordance with the Forestry Law The forest land boundaries plots coincide with the boundaries of the forest area as determined by the Forest Law, for instance “special forest land” is a kind of forest land on which there are “special forests” as defined by the Forestry Law, the boundaries of special forests coincide with the boundaries of special forest land and are to be decided by forestry management agencies

- Amendment and supplementation of Article 160 of the 2013 Land Law: Article 160 Spiritual land

1 Spiritual land includes land with communal houses, temples, shrines, pagodas, churches and family lineages, belonging to non-agricultural land and spiritual forest land in accordance with the provisions of the Forestry Law

2 The use of religious land is non-agricultural land must comply with the following regulations: a) This land must be used for appropriate purposes in accordance with land use planning, plans, urban construction planning, rural residential construction planning approved by competent State agencies

b) The construction and expansion of communal houses, temples, shrines, pagodas, churches and family lineages of communities, households, individuals must be permitted by competent state agencies

3 The use of religious land is agricultural land must comply with the provisions of Forestry Law

b Solutions to organization, system and human resources

The responsibilities of legislative bodies need to be enhanced The National Assembly needs to fulfill its duties to protect the land right for ethnic minorities The clear separation of responsibilities of relevant state management agencies is necessary National Assembly representatives, relevant committees and the Ethnic Minority Council are key groups because the Assembly is somewhat more sensitive to public opinion

The Department of Policy and Legislation within General Department of Land Administration (GDLA) is a key agency as it deals with all issues related to Land Law

Ministry of Agriculture and Rural Development (MARD) is mandated to ensure the rights of smallholder farmers and forest users and links need to be built with this ministry Engagement with the Vietnam Administration of Forestry (VNFOREST under MARD) is also important because it was the entity which drafted the new Forestry Law

The Committee for Ethnic Minority Affairs (CEMA) is also a key government stakeholder Peoples’ Councils at the national, provincial, district and commune levels are another important stakeholder group with oversight of state policies and their implementation

Mass organizations such as the Fatherland Front also have a role in monitoring land allocation programs, and it is important to consider how to engage them The Fatherland Front has developed a monitoring framework that could be adapted to allow local communities a monitoring role in land allocation programs

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c Inspection, monitoring

The State’s mission is to exercise public power in two fundamental directions: maintaining public order and facilitating social development Therefore, in relation to protecting customary land tenure for ethnic minorities, the state management must include these two main points, arising from the public rights attribute of a modern State (State of the people, for people and by people) More specifically: a) Inspection, supervision and handling by the law to maintain public order, for the benefit of the community and the nation; b) Sharing responsibilities and resources with people, with people’s organizations in social management and development (i.e strengthening people’s participation – one of the basic attributes of the rule of law state) Therefore, the authorities need to implement activities to monitor the effectiveness of the models that apply the principles of land management according to the customary of ethnic minorities, and offer suitable recommendations for the legislature, detailing specific instructions on these issues

IV Conclusion

Customary land tenure for ethnic minorities in Vietnam is a quite complicated issue This analysis has partly reflected the fact that customary law is always associated with the living space of people, reflecting the spirituality and traditional culture of the ethnic minorities inhabiting it In each community of ethnic minorities there are customary laws to protect forest, manage and use different land and resources through community rule – quy uoc, similar with huong uoc This right is also basically mentioned in some international documents and some specific conventions and guaranteed by the Constitutions and laws of many countries in the world

In Vietnam, this right is also the concern of the Communist Party and the State, from the very early day of the establishment of the Democratic Republic of Vietnam, as evidenced by the Constitution that land rights in general and those of ethnic minorities have been regulated However, there is no specific guidance on customary land tenure for ethnic minorities stipulated in specialized laws such as the Land Law

It is clear that a key issue for the recognition of customary tenure in Vietnam is centralized decision making, given the state’s dominant role in managing land Despite this centralized structure, there is a lack of legal and jurisdictional harmony Multiple laws and decrees prepared under different ministries result in conflicting and overlapping institutional mandates and these are interpreted and acted on in a variety of ways at the local level

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