The principle of limitation of human rights under the international covenant on economic, social and cultural rights and its reflection in Vietnam’s constitution and law

However, to ensure the implementation of human rights within this group of rights in practice, we need further studies on the principle of limitation of this group of rights, as Articl[r]

THE PRINCIPLE OF LIMITATION OF HUMAN RIGHTS UNDER THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND ITS REFLECTION

IN VIETNAM’S CONSTITUTION AND LAW

Bui Thi Huong

LLM., Institute of State and Law, Vietnam Academy of Social Sciences

Abstract

Human rights have been codified in international law since the Second World War and have become a compulsory international legal standards for all nations Respecting and protecting of human rights have become a tool of measurement for the level of civilization of all nations in the world Essentially, human rights are the natural rights of every person, however, a widely accepted view is that the majority of human rights are relative,1 therefore in certain cases these rights might be restricted The

limitation of human rights could be understood as the fact that the State prohibits all entities from exercising their rights at the absolute (highest) level.2 As such, restriction of rights is a common and

popular phenomenon in all countries

The limitation of human rights is acknowledged in the Universal Declaration of Human Rights (UDHR) 1948 and a number of international human rights conventions that allow member states to impose certain provisions necessary for the enjoyment of certain rights

Based on the studies of general principles of the limitation of human rights in the International Convenant of Economic, Social and Cultural Rights, this article will make some recommendations for the reduction of limitations for the implementation of a number of economic, social and cultural rights in Vietnam

Keywords: Convenant of Economic, Social and Cultural Rights, limitation of human rights,

constitution, Vietnam

1 The principle of limitation of human rights in the International Covenant on Economic, Social and Cultural Rights

Article 29.2 of UDHR stated that ‘in the exercise of his rights and freedom, everyone shall be subject only to such limitations as are determined by law’ for the purpose of securing freedoms of others as well as morality, public order and general welfare

1 Some absolute rights are: the right to respect human dignity, the right to not be tortured See Aharon Barak,

Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press 2012) 27

458 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Unlike the International Covenant on Civil and Political rights (ICCPR) on the restriction of human rights in certain cases, Article of the International Covenant on Economic, Social and Cultural Rights (ICESCR) on the limitation of rights with general limitation conditions states:

‘The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’

According to this Article, any measure that member states intend to take to restrict any human rights must comply with these following conditions:

First, the restrictions must be clearly determined by law According to this principle, any restriction of human rights must be prescribed by law This principle is to avoid arbitrary restrictions of human rights Presribed by law or in accordance with the law (law may include common law and administrative regulations and international treaties).1

Article of ICESR stipulates that the restriction of human rights must be in accordance with the law, and the interpretation of what is considered to be the law depends on each country In some countries, the limitation is set by the law, other set in bylaws or court decisions However, a requirement for the law is that it must be in accordance with international treaties, and must be available, transparent, and without any discriminations

Also, the provisions of the law on the limitation of the exercise of rights must: (i) be public with the people and have appropriate interpretation so that anyone can understand; (ii) the limitation of rights must be accurate and precise, so that people can understand and adjust to it; (iii) have appropriate measures to prevent the abuse of regulations on the limitation of rights

Second, the limitation must be compatible with the nature of the limited rights.

This principle is to ensure that the limitations set by the State must not alter or affect the nature of rights in any way Certainly, it is no easy task to evaluate whether a limitation could affect or be incompatible with the nature of a right in a specific scenario This must be evaluated in the context of each individual rights The 1986 Limburg Principles on the implementation of the International Covenant on Economic, Social and Cultural Rights also have some interpretations of this principle It stated that the limitation set forth must not be interpreted or applied to cause harm to the nature of the rights involved For example: Absolute rights must not be limited If these right were to be limited, obviously the nature of these rights would have been affected

Third, the limitations must be set solely for the purpose of promoting the general welfare in a democratic society.2

+ General welfare: Based on Article of ICESCR, states may only apply limitations when the above conditions are met, and cannot limit human rights on the basis of a lack of resources; instead, states must step by step maximize the available resources to gradually implement the articles of ICESR Also, the sole purpose of the limitations of economic, social and cultural rights according to

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Article of ICESCR is ‘to promote general welfare’ This purpose of the limitation of human rights could be viewed as narrower than other international conventions on human rights.1 This content

came from the joint opinions of 72 countries in the draft version of the UN Covention that the reasons for national defense, security and freedom of others could be acceptable

To better illustrate this principle, for example, the freedom of movement can be limited due to public order When facing natural disasters, terrorist attacks or armed conflicts that severely affect public order, the freedom of movement can be limited to ensure the safety of the people However, the same limitation cannot be applied to the rights to food or health care

Therefore, concepts such as ‘national security’ or ‘economic development’ are not sufficient to justify the limitations, unless the states can provide enough evidence that in a specific situation, these concepts are identical to the concept of general welfare It is the state’s responsibility to prove which situations are considered to be general welfare

For example, in the case of a domestic or international armed conflict, the state can justify the limitation of food if it can explain that the limitation is necessary to maintain ‘general welfare’, as well as a means of maintaining ‘public order’ through ensuring fair distribution

Although ICESCR has never made a direct provision for ‘general welfare’, in some general comments such as the right to health care, there are some provisions that allow national security or public order to act as bases for the limitation of the right to health care For example, the limitation of movement or detention of people with infectious diseases such as HIV/AIDS, or not vaccinating against basic infectious diseases in the community for reasons of national security or public order, must have convincing evidence that show these serious measures are in accordance with the terms in Article These limitations must be in accordance with the law, including international standards of human rights; be compatible with the nature of the rights protected by the covenant, and solely for the purpuse of promoting the general welfare in a democratic society.2

+ In a democratic society: For a long period of time there was a difference between the East

and the West on the concept of a democractic society In the documents of the United Nations, there is no mention of the concept of a democratic society, but mainly directs to Article 21, 22 of the International Covenant of Civil and Political Rights However, despite the difference in interpretation of the concept, a democratic society is one that respects basic human rights and freedom and ensures transparency in the process of decision making of the State

Nonetheless, through research and studies, it is clear that there are very few studies on the principle of limitation of economic, social and cultural rights compared to that of civil and political rights.3 In fact, there are very little information, ideas and practices on the implementation of the

principle of limitation of economic, social and cultural rights in the world Among the various reasons for this, the first and foremost reason to be mentioned is because according to the guidelines of the

1 ICCPR or other regional human rights conventions all recognize the limitation of human rights for the purpose of

national defense, security, public interests,…

2 CESCR ‘General Comment No.14: The Right to the Highest Attainable Standard of Health (Art.12)’ (11 August 2000)

Document E/C.12/2000/4, s.28

3 Amrei Muller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9(4) Human Rights

460 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Convention Committee, in the periodic reports are no reports of the limitations imposed on economic, social and cultural rights This shortcoming has recently been overcome with the application of a new report form with this content included, yet it has not been widely applied, especially in federal countries.1 The committee also rarely requires member states to provide this information when they

were asked to respond to a list of national issues

On the limitation of rights, among the group of economic, social and cultural rights, the right to strike, the right to form and join unions, labor rights are some of the most vulnerable rights that can be easily limited due to the state of emergency.2 In fact, many countries admitted that they had limited

the right to strike or some other rights related to labor right in Article 6,7,8 of ICESR.3

This can be seen in the example of the state report from Slovenia, explaining the process under Slovenian law, whereby workers may be required to perform compulsory labor in a state of emergency if it is necessary to deal with the consequences of a natural disaster or other serious disasters, or to protect the State if it encounters a direct military threat.4

In short, member states can still justify their implementation of such limitations in case of ‘national security’ or ‘public order’ with the reason to ‘promote general welfare’ The contents of national security and public order can be interpreted and implemented in accordance with the Limburg principles on the Implementation of the International Covenant of Economic, Social and Cultural Rights

2 The implementation of the principle of limitation of human rights in ensuring certain economic, social and cultural rights in Vietnam

The 2013 Constitution of Vietnam recognizes economic, social and cultural rights as the following:

First, the Constitution of 2013 recognizes economic rights, including: Economic rights according to the Constitution of 2013 can be understood as the right of ownership with regard to his lawful income, savings, housing, private possession, capital and assets in enterprises or other economic organizations These rights include: Ownership (Article 32), Freedom of business (Article 33), Right to work (Article 35).5 Second, the Constitution of 2013 recognizes social rights, including: Citizen

have the rights to social security (Article 34) Everyone is entitled to health care and protection, is equally entitled to medical services (Article 38) Males and females have the rights to marry and divorce Marriage shall conform to the principles of free consent, progressiveness, monogamy and

1 ibid. 2 ibid, 598.

3 CESCR ‘Report of Azerbaijan (Second Periodic Report)’ (1 December 2003) E/1990/6/ Add.37 para.154; CESCR

‘Report of Ukraine (Fifth Periodic Report)’ (4 August 2006) E /C.12 /UK R/5 Para 195, 199; CESCR ‘Report of India (Second Combined Periodic Report)’ (1 March 2007) E /C.12 /IND/5 para.173 See section D (ii) below for the exceptions of the International Labor Organization (ILO)

4 CESCR ‘Initial Report – Slovenia’ (26 May 2006) E/1990/5/Add.62.

5 Regarding the classification of economic rights groups: through the study, the author found that economic rights should

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equality and mutual respect between husband and wife (Article 36) Everyone has the right to live in a clean environment (Article 43)

Third, the Constitution of 2013 recognizes cultural rights, including: Citizens have the right to learn (Article 39) Everyone has the right to carry out scientific and industrial research, engage in literary and artistic creation and enjoy benefits from those activities (Article 40) Everyone has the right to enjoy and access cultural heritage, participate in cultural life and make use of cultural facilities (Article 41) A citizen has the right to determine his or her nationality, use his or her mother language and select his or her language of exchange (Article 42)

However, it should be emphasized that the division of economic, social and cultural rights is relative because human rights are interdependent and interrelated with each other The division of rights into group of economic, social and cultural rights is relative because even within economic rights, there are links to cultural and social rights For example, the right to work is the premise of the right to life

In this section, we follow the provision on the limitation of rights of the International Covenant on Economic, Social and Cultural rights to analyze the protection of some economic, social and cultural rights in Vietnam Due to the large scope of these rights, we will focus on the freedom of business, the right to work, employment, and the right to education

2.1 Freedom of business

The Constitution of 2013 stated that all economic sectors are equal This has contributed greatly to freedom of business and equality in business activities among economic sectors Freedom of business has taken a new step with the principle: ‘Everyone enjoys freedom of business in industries and trades that are not banned by the law’ (Article 33) This Article contains two important notion: Everyone enjoys freedom of business; and the limitation of such freedom is what the law bans In other words, if the State wants to ban something, it must be prescribed by law

The Law on Enterprise of 2014 and Investment Law of 2014 were established with an approach to freedom of business in the direction of simplifying licensing conditions and procedures, removing a number of limitations and shortcomings of the old provisions, expanding enterprises’ self-determination The law recognizes the principle of freedom of business of investors in Article of the Law on Enterprise 2014 Accordingly, investors may freely conduct business in industries which are not prohibited by the law, instead of being able to conduct business only in industries that are stated in the certificate of business registration as prescribed in the Law on Enterprise 2005 This can be seen as a fairly progressive rule, freeing enterprises from the worry about whether their businesses are in accordance with the registered industry, or whether the signed contract could be appealed in court for invalidation since the content of the business is not within the registered industry Moreover, the Penal Code of 2015 has also removed charges of conducting business without business registration, in contravention of the registered contents or without separate license The State advocates avoiding the criminalization of economic – civil relations, respects and protects the principle that people and enterprises can conduct business that are not prohibited by the law

1 Minh D Nguyen, ‘Khai niem quyen kinh te’ in Vinh K Vo (ed), Nhung van de ly luan va thuc tien cua nhom quyen

462 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS However, in reality, freedom of business still encounters many barriers because of business conditions prescribed in bylaws, sub-licenses for business registration procedures and restricted industries (conditional businesses)

First, on conditional business investment: Article of the Investment Law of 2014 stated that:

‘An industry or trade in which business investment is conditional means an industry or trade in which conduct of business investment activities must satisfy conditions for the reason of national defense or security, public order or safety, social ethics and public health’ However, currently many conditional businesses are subjected to business conditions that lack legal basis

For example: Business conditions for the rice export business include: at least specialized warehouse to store rice and grain that meet national standards and technical regulations; at least establishment for grinding, milling or processing grain and rice that meet national standards and technical regulations on storage, grinding, milling and processing establishments for grain and rice.1

Evidently, even if the above conditions are not specified for the rice export business, it will not in anyway adversely affect national defense, security, public order and safety, or public health This demonstrates that the above conditions set for the rice export business are unfounded Similar to the rice export business, many other businesses also have conditions on qualifications, degrees, expertise and experience for managers and workers that are complicated yet unfounded, such as: commercial inspection services, international travel businesses…2 Currently we have up to 243 conditional

businesses.3 Since we are establishing regulations on business conditions and conditional businesses

while not having a common standard to assess the reasonability and necessity of the regulations, not stemming from the requirements for the limitation of rights…, many industries that not need to be controlled by conditions but are still identified as conditional business lines This has unintentionally limited the freedom of business enterprises

According to Article 14.2 of the Constitution of Vietnam as well as the provisions on limitation of rights in the ICESCR, the State can only limit rights when all of the following conditions are met: These limitations are necessary for common welfare, in a democratic society, compatible with the nature of the rights, and are determined by the law

Basically, we can observe that the provisions on conditional business are restraining businessmen on: Business size (ex: rice storage), interfering with enterprises self-determination (ex: business plans of transport business enterprises must be approved by competent state agencies)4; business activities

are intervened by administrative orders Business activities of enterprises are to be only limited by business conditions in some cases for public interests However, many current business conditions cannot justify this cause for limitation, but instead directed at the quality of business and business performance – issues inherently regulated by the market For example: requirements for the profession of service staff on inland ships and vehicles; requirements for service staff on tourist transportation to be trained in tourism profession; enterprises are constrained by many licenses (sub-licenses)

1 Decree No 107/2018/ND-CP dated 15 August 2018 on Conditions for rice export business, art 4. 2 See also Law on Tourism 2017, art 31.2(c).

3 Previously, according to the Investment Law 2014, we had 267 conditional businesses, these businesses was no

longer suitable with the current facilities, so the National Assembly passed Law no 03/2006/QH14 amending and supplementing the list of sectors and trades subject to conditional businesses of the Investment Law, greatly reduced the number of conditional businesses from 267 to 243, the law has been in effect since 1/2017

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In short, these limitations are all stipulated in legal documents, meeting the criterion of being ‘determined by law’ in the principle of limitation of rights, in a democratic society However, on the purpose of promoting general welfare and the nature of rights, there are still some shortcomings:

When considering the purpose of the limitation of rights as to promote general welfare since they violate the issues of national security, public order… then the regulations on the size of business traders are not intended to ensure the safety of the business process for the purpose of ensuring national security, public order: for example, conditions for rice trading originate from the needs of traders to have minimum reserves, ensuring that traders have goods to supply the market Clearly, these purposes not conform with the regulation in Article 7.1 of the Investment Law of 2014

Currently, 5,719 business conditions related to 243 conditional business lines1 is a relatively

large figure On this list, there are still many unsuitable industries, some of which not have any significant impact on public interest Most of these industries resemble normal business activities A notable example is the rice export industry, which should only need to manage the regulation on balancing grain and rice source for export, circulation and reserves… so it is not necessary to have business conditions for this industry

Some other industries can substitute business investment conditions with other management methods These industries need State management because business conditions are not the best management tool For instance, we could manage with technical regulations, standards, other management regulations or quality control of products

In addition, many industries on the list not have pronounced special characteristics compared to common business lines of the same type; being put under excessive control Especially, some industries are not business industries, for example ‘logistic services’, which includes many activities such as transportation, packaging, tax, customs procedures…; or ‘commercial arbitration services’ for non-profit purposes; ‘franchising’, which is a form of business but not a business line…

VCCI’s report has identified 16 unsuitable industries and trades on the list such as: Service activities of commercial arbitration organizations, debt trading, production and repair of liquefied petroleum gas cylinders, rice export, re-exportation of frozen foods, logistic services, car warranty and maintenance services, shipping agency service, management of cremation establishment, helmet production…2

If Vietnam continues to recognize the authority and apply the business conditions specified in ministerial and ministerial-level agencies’ documents, it will lead to the following consequences: (i) The number of business conditions set by these agencies would be overwhelming, thus hindering the right to freely enter the market of business entities; (ii) Overlap and conflict of provisions of business conditions set by ministries and ministerial-level agencies on the same issue could cause difficulty for business entities to conform; (iii) Business conditions are scattered in different legal documents, under the authority of various agencies, making it challenging for business entities to access information on business conditions; to complete all procedures related to business conditions and to contact competent agencies

Therefore, based on the evaluation and identification of the existing problems, to make accurate recommendations and suggestions on the elimination of unnecessary business conditions, we may

464 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS have to start again from the core content of business freedom and its limitations in the Constitution of 2013, as well as the principle of limitation of rights in the ICESCR for this case

Next, on business registration procedures: The provisions of the Law on Enterprise 2014

and the Investment Law stipulate that there is no need to record the line of business in the business registration certificate But according to Article 24 of the Law on Enterprise 2014 and other decrees guiding business registration: contents of the request for enterprise registration must have information on the line of business

In addition, for lines of business that are not on the list: Article 7.4 and 7.6 of Decree No 78/2015/ NĐ-CP have required the recording of lines of business that are not on the list of Vietnamese economic industries If the business entity conducts business that is not on the list and also not included in either of the categories stipulated in Article 7.4 and 7.6 of Decree No 78/2015/NĐ-CP, it will encounter difficulty when registering for the establishment of a business Business entities, especially foreign investors will struggle to fill in the application form to establish a business and determine whether or not they can get acceptance for lines of business that are not on the list It is easy to understand why business entities often have “trouble” on this matter, since they have to wait for “business registration office to review and supplement the national database on business registration”

Administrative procedures and sub-licenses are also some of the redundancies that limit enterprises’ rights to conduct business This limitation is not to ensure general welfare but is the result of the shortcomings of resources in society, which is one of the reasons why the rights to conduct business are not guaranteed

2.2 Labor rights, right to work and trade union participation

Labor rights, employment: The right to employment (or the right to work) is a basic group of rights in labor law and is one of many rights of workers The right to work holds an important position because ‘the right to work is the key to exercise other human rights and constitutes an inseparable, important part of human dignity’ The right to work is regarded as a constitutional right in international law, specifically, Article 23 of the Universal Declaration of Human Rights 1948 stated that: ‘Everyone has the right to work, to free choice of employment…’; Article 6,7,8 of ICESCR also identified the elements of the rights to work The right to work is narrower compared to the rights of worker, however, this is the most basic, important rights in the field of labor and employment The right to work is the premise and an important condition to exercise other rights of workers in particular and other human rights in general, such as the right to housing, the right to education, cultural right… Only when the right to work is guaranteed, other human rights will be meaningful

Currently, the Labor Code has some provisions regarding the protection of workers’ right to work However, there are still many provisions that limit labor rights:

First, the specific provisions to protect female workers are meant to protect the rights of female workers in theory, but in fact, these protections and priorities may be detrimental to female workers as employers would have prejudices, and not want to employ female workers because of the extra costs

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are 60 years old does not affect public order, general welfare or any aspects of national security… this limitation is only based on the biological difference between male and female to ensure their development, thus make the limitation of their right to work irrelevant Therefore, in the draft for the revised Labor Code, we are amending in the direction that if a work adversely affects childbirth and childcare ability then it would not be favorable for both sexes, hence, the Government should create a list and the employer must provide enough information and protective equipment to employees when they are working on a job on that list The decision to work depends on the employee This provision would be better than the current announcement of professions that prohibit the employment of female worker because it also affects the worker’s freedom to choose a profession when it does not violate any principle of limitation of human rights

Trade union rights: Most international conventions contain provisions that require member states, upon ratifying or joining the convention, to respect and create favorable conditions for all workers to participate or form a trade union to protect their rights in labor relations with employers

Article 23.4 of the Universal Declaration of Human Rights 1948 acknowledged: ‘Everyone has the right to form and to join trade unions for the protection of his interests’

Article 22.1 of the International Covenant on Civil and Political Rights 1966 acknowledged: ‘Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests’

Article 8.1 of the International Covenant on Economic, Social and Cultural Rights 1966 also acknowledged the freedom of trade union of everyone:

‘The States Parties to the present Covenant undertake to ensure the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.’

Thus, under the provisions of the international documents of the United Nations, all workers, even foreign workers, have the right to form and participate in trade unions of their choice for the purpose of ensuring their economic, social and cultural interests

In addition to the United Nations International Human Rights Code, the conventions of the International Labor Organization (ILO) also show particular interest in the freedom of trade union of workers Article of the Convention no 87 on the freedom of association and protection of the right to organize convention 1948 stated that: ‘Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorization’.

466 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS The National Assembly of Vietnam has ratified the ILO Convention No 98 on the right to organize and collectively bargain on 14/6/2019, under the pressure of international integration During the process of discussion and revision of the Labor Code 2012, we have made an important amendment related to the issue of multiple representative organizations However, there are many concerns that the establishment of non-trade union representative organizations for workers would lead to multiple trade unions, causing political complications; other concerns revolve around what would become of the role of the General Confederation of Labor when there are multiple trade unions? How to resolve disputes between representative organizations, who will supervise the representative organizations, the establishment procedure likely becoming unnecessarily tedious, workers coming from the supply and demand of the Vietnamese labor market with a limited level of education will also lead to many problems… Through multiple workshops, a difficulty we are currently facing in the process of amending the Labor Code is that we are attached to the idea of the sole trade union when discussing about representative organizations.1 Therefore, due to the principle of limitation of human rights, the

establishment of multiple representative organizations does not violate any of the principles of limitation of human rights Hence, we need appropriate regulations on multiple representative organizations for workers that are relevant to the Vietnamese context, to ensure the right to work of workers

Therefore, due to the limitation of human rights, having multiple representative organizations does not violate any of the principles that restrict human rights, therefore, the introduction of the Labor Code in 2019 with the provisions on multiple representative organizations is one of the important premises to ensure labor rights and employment of workers

2.3 Right to education

There are many issues around the right to education, however, in the content of this article, I will present some issues related to children’s right to education due to off-stream education and overcrowding of students in major cities

In the mid-term period of every school year, parents without household registrations in major cities will have to worry about household registration, bribing to apply to study off-stream… This is what rural citizens who came to live in the cities must in order to get a chance for their children to go to public schools.2 By the enrollment season, the public announcements of preschools and primary

schools all contain conditions for student enrollment: Household registration, applicants must have a certificate of temporary residence (confirmed by local authorities before March of the enrollment year), after that if the quota is still not met then other candidates may be considered

Thus, without household registration or bribery, obviously our children may not be enrolled Of course, so far no children coming to the age of the first grade have failed to go to school There will always be another school for children to enroll but it will be much further away from home

Due to the principle of the right to primary education, all children must be allowed to go to school However, with current regulations on enrollment based on household registration, children’s right to

1 ILO experts, Speech at Consultation Workshop on Workers’ Representative Organization and Workplace Dialogue in

Labor Code Revision (Viet Nam Ministry of Labor, Invalids and Social Affairs, July 2019)

2 Dang Chung, ‘Dan tinh le lo ‘chay’ hoc cho con, mong bo ‘rao can’ ho khau’ (Hanoi, 22 November 2017) <https://

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education will be limited Without household registration or if parents not act, their children would not be able to automatically go to primary school after finishing preschool

Analyzing the requirement of having a household registration to be able to go to school, otherwise it will not be possible to enroll, this is a limitation of human rights since it is also regulated in a legal document in a democratic society

However, this limitation does not serve the purpose of promoting general welfare, instead serving the purpose of management for the education sector

From the author’s point of view, students who have to study off-stream, without a household registration of the area and certificate of temporary residence can still have the right to enroll, since the enrollment not affect general welfare, national security, public order… Thus, these discriminations in the enrollment conditions are limiting the right to education but are not in accordance with the principle of limitation of rights Regardless, the implementation of this right depends on the State’s resources Therefore, we need to study other countries’ experience on this matter

For example, Mrs To Chinh, a Vietnamese currently living in Dresden, Sachsen state, Germany, said that families in Germany not have a household registration like in Vietnam, but a certificate of registration, declaring each time there are any changes related to accommodation When the time comes for children to have compulsory education (usually at the age of 3), they can enroll at a school in the area where they live without any need of household registration, and at secondary school, there are places with specialized schools that enroll students based on their performance.1 Through

this method, the authority can figure out the educational needs in local areas to better address any possible issues at the school In Vietnam, preschools will hand out annual report forms to parents to fill in information of the family, such as: information of parents, age of children, parents’ jobs This is also a fine channel for the State to grasp the educational needs in local areas, however, in reality, the limitation on the right to education of children can be explained by the lack of resources: facilities, human resources, but not due to the weakness in management

In fact, in the process of implementing rights related to human rights in the group of economic, social and cultural rights; we have observed a lot of concerns on the discriminatory impact of the household and residence registration system on immigrants’ access to social services and to rights such as housing, water and sanitation, healthcare services, right to education.2

In short, the implementation of social, economic and cultural rights in different countries varies because it depends on certain social contexts and conditions However, to ensure the implementation of human rights within this group of rights in practice, we need further studies on the principle of limitation of this group of rights, as Article 14(2) of the Constitution as well as other legal documents and regulations adopted to implement these rights have imposed wider limitations on the exercise of business freedom, labor rights, trade union rights and the right to education in Vietnam

First, in order to implement the limitation of economic, social, cultural rights in accordance with international regulations, we need to have an official explanation from the highest legislative body in Vietnam - The National Assembly, on what are the conditions to:

• limit human rights for the reason of national defense, security

1 ibid.

2 CESCR ‘Concluding Observations on the Second to Fourth Periodic Reports of Viet Nam on the implementation of

468 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS • limit human rights for the reason of public order and safety

• limit human rights for the reason of social moral • limit human rights for the reason of community health

Second, we need to have a comprehensive and synchronous review of legal documents in the economic, social and cultural fields, to see if there are currently any legal documents that recognize the limitations of human rights; thus review and reassess if there are any limitations that violate the principle of limitation of rights in order to promptly amend and supplement them, or establish new legal documents in the related fields on limiting human rights

Third, with current conditions, we need to study in detail the nature of each right to conclude whether the limitation of that right is in accordance with the law At the same time, we need to identify our goals and the corresponding rights to limit

References Legal documents

Universal Declaration of Human Rights 1948

International Covenant on Civil and Political Rights 1966

International Covenant on Economic, Social and Cultural Rights 1966

CESCR ‘General Comment No.14: The Right to the Highest Attainable Standard of Health (Art.12)’ (11 August 2000) Document E/C.12/2000/

CESCR ‘Report of Azerbaijan (Second Periodic Report)’ (1 December 2003) E/1990/6/ Add.37 CESCR ‘Report of Ukraine (Fifth Periodic Report)’ (4 August 2006) E /C.12 /UK R/5

CESCR ‘Report of India (Second Combined Periodic Report)’ (1 March 2007) E /C.12 /IND/5 CESCR ‘Initial Report – Slovenia’ (26 May 2006) E/1990/5/Add.62

CESCR ‘Concluding Observations on the Second to Fourth Periodic Reports of Vietnam on the implementation of the International Covenant on Economic, Social and Cultural Rights’ (15 December 2014) E/C.12/VNM/CO/2-4

Articles

Muller A, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9(4) Human Rights Law Review 557

Books

Barak A, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press 2012) ILO experts, Speech at Consultation Workshop on Workers’ Representative Organization and

Workplace Dialogue in Labor Code Revision (Vietnam Ministry of Labor, Invalids and Social Affairs, July 2019)

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