Protection of the right to customary land tenure for ethnic minorities in vietnam

VIETNAM NATIONAL UNIVERSITY, HANOI SCHOOL OF LAW NGUYEN NGOC LAN PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR ETHNIC MINORITIES IN VIETNAM: REFLECTION ON THE M’NONG, MA AND EDE GROUPS IN DAKNONG PROVINCE MASTER THESIS SPECIALIZED IN HUMAN RIGHTS HANOI - 2019 VIETNAM NATIONAL UNIVERSITY, HANOI SCHOOL OF LAW NGUYEN NGOC LAN PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR ETHNIC MINORITIES IN VIETNAM: REFLECTION ON THE M’NONG, MA AND EDE GROUPS IN DAKNONG PROVINCE MASTER THESIS SPECIALIZED IN HUMAN RIGHTS Codes: 8380101.07 TECHNICAL ADVISOR: AP PhD VU CONG GIAO HANOI - 2019 CONFIRMATION I assure you this is my own research The data and results presented in this thesis are honest and have not been published by anyone in any previous works or thesis The information referenced in the thesis is fully and carefully cited by the author Master’s Student Nguyen Ngoc Lan ACKNOWLEDGMENT While studying at the School of Law, Vietnam National University, Hanoi, I got many supports, advise and sharing from teachers and classmaters With deep appreciation and gratitude, I would like to express my sincere thanks to the lecturers, who have been working for the Vietnam National University, Hanoi Studying in here, we could have the best conditions to study and improve knowledge and skills In particular, I would like to express my gratitude to the Associate Professor, Dr Vo Cong Giao, the teacher, the mentor who help and support me to complete my master‟s thesis on Human rights I am also would like to express my gratitude to Professor, Doctor of Science Dang Hung Vo - former Deputy Minister of the Natural Resources and Environment, who advice me about the background of Land governance and sharing me his policy report on Land law 2013; Associate Professor.Dr Phan Dang Nhat, who sharing with me the back ground of customary law and ethnic minorities; Writer Nguyen Ngoc who supported and advise me on the connection between land and “living space” for ethnic minorities The last but not least, I would like to express my thank to my family, friends and colleagues for their support and help during the thesis With the knowledge and skills that I have learned, I promise to apply and things that are meaningful to society Ha Noi, June, 2019 Nguyen Ngoc Lan TABLE OF CONTENTS INTRODUCTION CHAPTER THEORETICAL AND LEGAL ISSUES ON PROTECTION OF THE RIGHT TO THE CUSTOMARY LAND TENURE OF ETHNIC MINORITIES IN VIETNAM 1.1.The concept, the necessity, the meaning of protecting the right to customary land tenure of Vietnam ethnic minorities 1.1.1 The concept of customary land tenure of ethnic minorities 1.1.2 The concept of protection of the right to customary land tenure of ethnic minorities 14 1.1.3 The necessity and significance of protection of the customary land tenure for ethnic minorities 19 1.2.Subjects, content, methods and conditions to protection of the right to customary land tenure of ethnic minorities in Vietnam 23 1.2.1.Subject of the protection of the right to customary land tenure of ethnic minorities in Vietnam 23 1.2.2.The content and methods to protection of the right to customary land tenure for ethnic minorities 26 1.2.3.The conditions to protection of the right to customary land tenure for ethnic minorities 29 1.3.The current Vietnamese Legal framework on protection right to the customary land tenure for ethnic minorities 34 1.3.1.Overview of Vietnam’s current legal framework on land right for ethnic minorities 34 1.3.2.The current legal provisions of Vietnam related to protection of the right to customary land tenure for ethnic minorities 40 1.4.International laws and laws of some countries related to protection of the right to customary land tenure for ethnic minorities and requirements and values implications to Vietnam 45 1.4.1.International Laws related to protection of the right to customary land tenure for ethnic minorities and requirements for Vietnam 45 1.4.2.Laws of some countries related to the protection of the right to customary land tenure for ethnic minorities and values for Vietnam 50 CHAPTER THE CURRENT SITUATION OF PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR M’NONG, MA AND EDE ETHNIC MINORITIES IN DAK NONG PROVINCE 54 2.1.Natural, economic and social characteristics in Dak Nong Province affecting the protection of the right to customary land tenure for M‟Nong, Ma and Ede 54 2.1.1.Natural characteristics 55 2.1.2.Social – economic characteristics 56 2.2.The methods, contents and results in the protection of the right to customary land tenure for M’Nong, Ma and Ede in Dak Nong Province in the last five years 58 2.3.General evaluation and issues with protection of the right to customary land tenure for M‟Nong, Ma and Ede minorities in Dak Nong Province 72 CHAPTER VIEWPOINTS AND SOLUTIONS ON PROTECTION OF THE RIGHT TO CUSTOMARY LAND TENURE FOR M’NONG, MA AND EDE IN DAK NONG PROVINCE 80 3.1.Viewpoints to protect the right to customary land tenure for M‟Nong, Ma and Ede in Dak Nong Province 80 3.2.Solutions for protecting the right to customary land tenure for M‟Nong, Ma and Ede in Dak Nong Province 88 3.2.1.Solution on law and policies 88 3.2.2.Solutions on organizations, system and human resource 92 3.2.3.Inspection, monitoring 94 CONCLUSION 96 LIST OF REFERENCES 101 LIST OF ABBREVIATIONS Art Article ASEAN Association of Southeast Asian Nations CEMA The Committee for Ethnic Minority Affairs CIRD The Centre for Indigenous Research Knowledge and Development CIRUM Culture Identity and Resources Use management CODE Consulting and Development Institute CP Government CT The Direction/ Directive EASRD East Asia and Pacific Region EU Europen Union FAO The United Nation‟s Food and agriculture GDLA The General Department of Land Administrative ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IUCN International Union for Conservation of Nature MARD Ministry of Agricultural and Rural Development MoNRE Ministry of Natural Resources and Environment MRLG Mekong Region Land Governance ND Decree NGOs Non-Government Organizations NQ Resolution SFEs State Forest Enterprises SPERI Social Policy Ecology Research Institute TT Circular UBDT Ethnic Minority Committee UDHR The United Nations Declaration on human rights UN The United Nations VGGT The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forest in the Context of National Food Security VNFOREST The Vietnam Administrative of Forestry VUSTA The Vietnam Union of Science and Technology Associations INTRODUCTION The necessary of the study The customary land tenure is one of the basic human rights which are recognized and protected by many countries‟ laws, as well as in important international human rights documents In Vietnam, customary laws and tenure systems have developed over centuries under varying influence from the feudalist Nguyen Dynasty (1802 – 1883), the French colonial period (1858 – 1954) After 1960 in the North and 1975 in the South, state centralization and collectivization began to seriously influence customary management system The collectivization period resulted in land being controlled by state cooperatives Large areas of forest land in the midland and upland regions of Northern and Southern Vietnam were assigned for forestry under the management of State Forest Enterprises (SFEs) This led to state policies overriding customary land management and resulted in a drastic decline in Vietnam‟s forest resources [67, page 2] In Vietnam, in the first Constitution - Constitution 1946, the Democratic Republic of Vietnam concretized the Declaration of Independence on 2nd September 1945 on basic human rights, which are right to life, right to freedom and right to seeking happiness The Constitution also affirms that everyone has their citizenship and freedom of residence Over time and through the development of the society, these freedoms rights at each period have been amended and supplemented to suit the new era, but still ensured to be regulated in the basic law, which is the Constitution and other relevant Laws Article 22 of the Vietnamese Constitution 2013 regulates: “Everyone has the right to inviolability of his or her home No one may enter the home of another person without his or her consent” Thus, from the early days of the establishment of the country, our state paid attention to and focused on ensuring the fundamental freedoms of citizens and expanding, further strengthening the social solidarity Since 2000, the economic and social context has changed, and policies on land and forest have changed accordingly The Land Law 2003 stipulates that communities are to be allocated forest land for cultural purposes, specifically sacred forests or spiritual forests [52, page 1] Use rights to community forests and land is recognized by the state, but customary tenure is not, which limits the role of the communities in forest management Nevertheless, the new Forestry Law (2017) for the first time recognizes communities as forest owners and mentions the need to respect the “living space” and “traditional customs” of communities It also prioritizes the allocation of forest land to ethnic minorities This reflects a growing recognition that it is necessary to broaden the forest use rights granted to communities Most ethnic minorities in Vietnam have a special relationship with the land, the elements and other living creatures This relationship goes beyond mere economic interests to become cultural and spiritual connections to the places they have inhabited for generations These connections have been diffused and nurtured from generation to generation and ethnic minorities still possess the belief that “Land is sacred, and land is life” Recognition of traditional and customary land rights is the basic foundation for emancipation of ethnic minorities and their development – economically, politically and culturally Their relationship with their land and resources is CONCLUSION The customary land tenure for ethnic minorities in Vietnam is a quite complicated issue Customary laws and tenure systems have developed over centuries in Vietnam under varying influence from the feudalist Nguyen Dynasty (1802 – 1883) After 1960 in the North and 1975 in the South, state centralization and collectivization began to seriously influence customary management systems (World Bank, 2004) The collectivization period resulted in land being controlled by state cooperatives (SPERI/CODE, 2011) Large areas of forest land in the midland and upland regions of Northern (early 1960s) and Southern (late 1970s) Vietnam were assigned to forestry sector under the management of State Forest Enterprises (SFEs) (World Bank, 2004) This was part of a broader effort to transform rural resource use and traditional social structures in mountainous areas that included large-scale resettlement and sedentarization programs This led to state policies overriding customary land management and resulted in a drastic decline in Vietnam‟s forest resources The analysis has partly reflected the fact that the customary law always associated with the living space of people, reflecting the spirituality and traditional culture of the ethnic minorities In each ethnic minorities community, there are customary laws to protect forest, manage and use different land and resources through community rule – quy uoc This right is also basically mentioned in some international documents and some specific conventions and guaranteed by the Constitution and laws of many countries in the world 96 In Vietnam, this right is also concerned by the Communist Party and the State, right from the early day of establishment of the Democratic Republic of Vietnam, as evidenced by the Constitution, land rights in general, land right 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 Land Law In fact, practicing of this right is done in many province (Cao Bang, Thua Thien Hue, Dak Lac, Dak Nong…) Through analysis, the forest management models in Dak Nong Province, the results of this practice, as well as restrictions on protection to customary land tenure, show the actual needs and urgency of this issue On the basis of studying the provisions of the international human rights laws and studying the laws of some countries in the world, as well as based on research results, analysis and assessment of the status of Vietnamese laws, through the researching and analyzing the forest management model according to the customary practices of M‟Nong, Ma and Ede in Dak Nong Province, the thesis has given opinions and proposed solution and recommendations to ensure this right in Dak Nong Province in particular and nationwide in general, with such solutions: Land Law 2013 revision, with specific revision and provision of guideline on customary land tenure for ethnic minorities, in accordance with the provision of the Forestry Law, as well as in accordance with the spirit of the Constitution; Ensuring consistency in management and responsibilities of relevant agencies from central to local levels; Strengthen monitoring and implementation 97 supervision of land policies 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 State authorities from the central level down also have wide discretionary powers over land, including access, allocation and valuation This often leads to companies being able to influence these decisions, which creates problems in a context of significant pressure on a limited land resource Long term leasing of land to companies is particularly an issue in the Central Highlands While maintaining central level oversight helps to regulate discretionary decision making at lower levels, better recognition of 98 customary tenure also requires local communities to be involved in decisions about land use and management in their areas International and regional integration will continue to have a major impact on land and forest management with trade and investment impacts such as the CPTPP, the EU-ASEAN Free Trade Agreement, and the ASEAN Economic Community, creating an uncertain future Vietnam‟s recognized comparative advantage in agriculture does offer some possibility that these agreements may expand thinking away from a single-minded focus on industrial development However, international investors will continue to be interested in land and this will undoubtedly have impacts on customary users Overall, policy change in Vietnam requires building relationships, and an understanding that considerable time may be needed for advocacy to result in desired changes To influence legislation and government functioning, NGOs, development partners and other organizations try to work with „reform champions‟ within and outside the government, including: present and former senior government staff, National Assembly representatives, members of government institutions, academia, and experts It is important to build on these networks for discussions around customary tenure National Assembly representatives, relevant committees and the Ethnic Minority Council are key groups because the Assembly is somewhat more sensitive to public opinion The Committee on Science, Technology and Environment has recently stressed the need for state authorities to enhance the rights of people when making decisions This includes giving priority to poverty alleviation, and people‟s participation and equity in land allocation However, despite the Assembly‟s important oversight role and interest in 99 forestry sector reform, it has limited information in an accessible form about the potential benefits of recognizing customary tenure 100 LIST OF REFERENCES A Documents of the Party and the State The Vietnamese Civil Code 2015 The Vietnam Constitution 1946, 1959, 1980, 1992, 2013; The Dak Nong Province People‟s committee, Report on Overall SocialEconomic development planning up to 2020; The Dak Nong provincial People‟s Committee, Report No 216/BC- UBND dated 25th April on Land Statistics results of Dak Nong; The The Dak Nong Provincial People‟s Committee, Report No 600/BCUBND dated 15th November 2018 on the social – economic development situation, national security and defense in 2018 and develop annual plan 2019; 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 161/QĐ-TTg dated 10th July 2006 on Approving the master plan on socio – economic development of Dak Nong Province up to 2020; 10 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; 101 11 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; 12 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; 13 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); 14 Decision No 1194/QD-TTg dated 22nd July 2014 of Prime Minister on The Construction planning of the Central Highland up to 2030; 15 Decision No 44/2016/QD-UBND dated 30th December 2016 of the Dak Nong‟s People‟s committee on “Responsibilities and handling of forest owners‟ responsibilities, State agencies, Organizations and Individuals are responsible for Forest management and protection in Dak Nong province; 16 Decision No 225/QD-UBND dated 13th February 2017 of Dak Nong Prople‟s Committee on ”Action plan to implementing Decision No 56/2016/NQ-HDND on Dak Nong province‟s sustainable poverty reduction program, 2016 – 2020 period; 17 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ON PROTECTION OF THE RIGHT TO THE CUSTOMARY LAND TENURE OF ETHNIC MINORITIES IN VIETNAM 1.1 .The concept, the necessity, the meaning of protecting the right to customary land tenure of Vietnam ethnic