The values of human rights in customary laws of thai ethnic minority in the northwest of Vietnam

Systematizing customary laws

Systematizating customary laws is the way of assessment,

classification, order and content of customary laws in groups and fields and

towards ratification and promulgation of customary laws. Besides, it is

compared with customary laws with human rights laws as a basis for

proposing solutions to formulate regulations. In this content, the Commune

Steering Committee should closely guide the Consultancy Council of

customs and practices, the Consulting Group of customs and traditions in

the implementation process and can invite professional staffs in the district

to assist

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book "Human rights" by GS. Dr. Vo Khanh Vinh, in the chapter of Human Rights: The concept and nature presents that “needs to approach the content of human rights by specific historical methods”. Research on values of human rights Some international research as follow: The essay "Human rights and Asian values" by Amartya Sen at Carnegie Council on Ethnics and Internatinonal Affairs had been translated and printed in “được dịch và in trong cuốn: About the rule of law and Constitutionalism: Some essays by foreign scholars, Labor - Social Publishing House (2012) provided an overview of Asian values and human rights, in which he disagreed with theories that human rights and freedoms are incompatible with Asian culture as well as the arrogant attitude of those (Western) who believe that they have brought the light of civilization (human rights, self do) to Asians. Some domestic research as follow: The research "On values and Asian values" by Ho Si Quy; the book “Human Rights: Interdisciplinary and Law interdisciplinary access”, Vo Khanh Vinh (2010), Social Sciences Publishing House; The article "Some basic contents and values of human rights in the National criminal law” by Nguyen Thanh Binh emphasized that Hong Duc Code contains many positive and progressive values, in which it is necessary to emphasize and affirm to a prominent value that the minimum but basic human rights, especially of the people were recognized, respected and protected by law; 7 The article "Human rights: social values, universality and specificity" of the author Vo Khanh Vinh analyzed the social value of human rights which are of mixed values including: dignity - freedom - equality - humanity - tolerance - ethics and responsibility. 1.1.3. Research on values of human rights in Thai customary laws in Northwest Vietnam It can be seen that in studies of human rights values in Thai customary law, the authors have listed and analyzed the contents and provisions of customary law to show that in the Thai customary law, there are certain values which can be applied in law implementation in reality. 1.2. Overview of the research situation and the issues that need further study 1.2.1. Studied issues and its levels In general, the studies of customary law in Vietnam and foreign countries have introduced the theories about social progress and customary law that have become an important step in the development process of mankind and State institutions. Studies on human rights values have interpreted and clarified extensively about the relationship between human rights and culture, between cultural values and human rights concepts and its practices. 1.2.2. Matters need to be studied further in the thesis Today, there are a few studies on the current situation of Thai regions in the renovation period, especially those in areas where Thai people are resettled and freely migrated. There is no intensive research which has been conducted to systematize and clarify the value of human rights in history and approachs from comparative perspective from international law on human rights. The study about "The values of human rights of customary law of Thai ethnic minority in the Northwest of Vietnam" which under the approach of jurisprudence is a relatively innovative and practical approach to contribute to supplementing the previous studies‟ limitations. At the same time, it meets the urgent requirements of both theory and practice of combining customary law with law in social management and constantly improving the legal system in our country today. 8 Chapter 2 THEORETICAL ISSUES AND HISTORY OF VALUES OF HUMAN RIGHTS IN THAI CUSTOMARY LAW IN NORTHEST OF VIETNAM 2.1. Definition of human rights and values of human rights 2.1.1. Definition of human rights The origin of human rights Human rights are closely linked to human history which are products of certain socio-economic conditions and are influenced by those socio-economic facilities. Since the United Nations officially recognized human rights in 1948, with the introduction of the Universal Declaration of Human Rights, many national political and legal documents on human rights have acknowledged its natural origin. However, it has also emphasized the role of the state and the law in human rights protection and promotion. Hence, human rights have developed as a moral, political, legal and moral framework to develop the world which is free from fear. The definition of human rights The most common definition belongs to Office of High Commissioner for Human Rights (OHCHR). According to this definition: Human rights are universal legal guarantees protecting individuals and groups against actions and omissions that interfere with fundamental freedoms, entitlements and human dignity. Definition of human rights in some other Vietnamese materials is not totally the same but generally, huan rights can be understood as “human needs, natural and inherent human interests that are recognized and protected in national laws and international legal agreements”. 2.1.2. Conception of values of human rights Conception of value According to Vietnamese dictionary: “Values are principles, standards, norms that guide human actions. It is important for an individual or an organization to be used as a criterion to assess whether one action can be considered better than another”. 9 Different expressed levels of values include: personal values which are the values applied in personal life (respect for love, friendship, family); social values which are values recognized by members of the community and are standards for regulating social relations. Conception of value of huan rights Value of human rights is “the standards, norms, desires, expressions of individual or social needs, and become the purpose of action of such individuals and social groups”. The value of human rights guides for action, can be considered as a standard to specify value; is the code of conduct, defines how individuals and groups act; manifest in the form of written institutions (like the State’s laws) or unwritten forms (like customs and traditions). These are patterns of behavior in specific situations for individuals and social groups and it is associated with the extremely diverse and abundant reality of life. 2.2. Definition, characteristics of Thai customary laws in Northwest Vietnam and its position and role in the life of ethnic communities 2.2.1. Definition of Thai customary laws in Northwest Vietnam Thai customary laws are constituent parts of the villages‟ laws and the life customs of each person and the community. They forms the customary law of Thai people. This is similar to the customary laws of other ethnic minorities, and somewhat different from the Vietnamese Convention. 2.2.2. Characteristics of Thai customary laws in Northwest Vietnam Thai customary laws prioritizes education, deterrence and prevention. Although it includes death penalty, hardly do they use it. If any, before the death penalty, there were forms of education from low to high. Thai customary law pays attention to deal with social relations. 2.2.3. Position and role of Thai people in Northest Vietnam in the life of ethnic communities Firstly, Thai customary law plays an important role in social management for Thai comunity. 10 Secondly, Thai customary law upholds the interests of the ruling classes in Thai society. Thirdly, Thai customary law clearly demonstrates the role of intermediaries that harmonizes interests and obligations among members of the Thai community. Fourthly, Thai customary law maintains order in the Thai community. 2.3. Relationships between Thai customary law in Northwest Vietnam and value of human rights 2.3.1. Value of human rights are regulations in Thai customary law in Northwest Vietnam Although the village of Thai people in the Northwest is a caste- dominated society, it doees not mean that the ruled class is unable to enjoy basic human rights. When studying Thai customary laws, the author found that many regulations on respecting and protecting human rights were recorded in Thai customary laws (women's equality, children's rights, property of the individual...). It can be seen that human rights are an important component of some Thai customary laws. 2.3.2. Thai customary law protects value of human rights First, customary law is the most highly regulated document in the Thai community. Entire ruling class and all people must comply with the provisions of customary law. Therefore, the rules of human rights in customary law mean that it is required to force all ruling classes, individuals and citizens to comply and implement. Second, customary law prescribes the suppression of the power of the ruling class to oppose the arbitrariness of the ruling class while performing its functions and protecting the interests of the people. Third, customary law serves as a basis for reference to the ruling class in case of violations of customary recognized rights. 2.4. Relationships between laws and values of human rights in Thai customary laws in Northwest Vietnam 2.4.1. Relationships between laws and Thai customary laws in Northwest Vietnam 11 The influence of Thai customary law to the law The impact of customary Thai law leads to the formation of legal provisions that are appropriate to the awareness of lawmakers about the role of law as well as the role of Thai customary law. The influence of law to Thai customary law The law recognizes and protects the progressive provisions of Thai customary law. The law excludes backward customs and traditions of Thai customary law. The law contributes to preventing the formation of customs, traditions and regulations of Thai customary law contrasting to the society progress, the law, and contributes to the formation of new customs and traditions. 4.2.2. The influence of value of human rights in Thai customary law in Northwest Vietnam to the law The value of human rights in Thai customary law has an impact on the law, consistent, supplemented and replaced to make the most powerful adjustment to the social relations among the Thai ethnicity. This is an indispensable and objective impact which needs to be researched and developed in the appropriate direction to contribute to the improvement of the legal system as well as improve the efficiency of the law implementation process in reality. 2.5. Applying values of human rights in customary laws and traditions to the implementation of human rights in the world and in Vietnam 2.5.1. Applying values of human rights in customary laws and traditions to the implementation of human rights in some nations In countries where customs and traditions are an important source of laws (like the United Kingdom), the State considers customs and traditions. If it is in accordance with the common interests of the ruling class and towards social development, the State recognizes it as an integral part of the legal system. 12 In Malaysia, custom is one of the most important sources of law. Each locality has its own traditions, some of which are valid and recognized by courts and applied as legal provisions in written documents and case laws. In Indonesia, the Aat custom plays an important role in legal system of this country. The traditions adjust a great range of social relations in the fields of land, family marriage, inheritance. 2.5.2. Applying value of human rights in customary laws and traditions in the implementation of human rights in Vietnam Currently, the value of human rights in customary law has been applied in a number of fields, namely establishing cultural village conventions, formulating reconciliation teams, managing environmental resources... As a consequence, in fact, both foreign countries and Vietnam have been using human rights values in customary law in their own way. This proves that the value of human rights in the legislative history is an indispensable content in the social life of multi-ethnic and multi-religious nations. 2.5.3. The meaning of applying human rights values in customary laws and traditions in implementing human rights First, it will ensure the implementation of principle of "people's power" in reality. Second, it will meet the need to build a served state. Third, it is a method that some local governments act really for the people‟s interests. Chapter 3 THE IMPACTS OF HUMAN RIGHTS VALUES OF THAI’S COSTUMARY LAWS TO THE IMPLEMENTATION OF HUMAN RIGHTS IN THAI’S COMMUNITY IN THE NORTHWEST VIETNAM NOWADAYS 3.1. Some values of human rights of Thai's customary laws in Northwest Vietnam 3.1.1. Respect and protect children's rights according to Thai’s customary laws 13 Firstly, Thai‟s customary laws protects children. It shows special care, protection children when they are still in the womb until birth, and growing up. Secondly, Thai‟s customary laws cares about children. Parents not only have to work to earn food and clothes, but also have the responsibilities to raise their children and look after them until they reach maturity. Thirdly, Thai‟s customary law cares about education for children. Methods of education must be based on age and gender and need to be persistent, supple and regular. The content of education for children is very diverse, including the contents of obedience, eating and saving, and solidarity; especially, Thai people attach importance to the education of labor willings. 3.1.2. Respect and protect the equal rights of women according to Thai’s customary laws In the past, Thai society is patriarchal system, so that Thai‟s women in general are not promoted, but they still have an important position and role in creating, transmitting, preserving and developing cultural values of this ethnic group. 3.1.3. Respect and protect cultural rights according to Thai’s customary laws. Customary laws protect and preserve the language and spiritual culture of the Thai people (preserve the treasure of Thai folk knowledge; preserve the culinary culture; preserve the residential culture; preserve the costume culture). Many activities of Thai people have contributed to preserving and promoting the traditional values, these activities are operated according to the strict rules of customary laws, and customary laws has a role to preserve the traditional values, protecting the inherent cultural rights of Thai people. 3.1.4. Protect human life, honor and dignity of human beings according to Thai’s customary laws - About murder crime, “committing murder in any form, burning village, making aggression and destroying village will be punished death penalty if the offender is caught”. That regulation shows that customary laws are not only very strict but also being humane nature. - About the crime of infringing upon the honor and dignity of 14 people, the customary laws pay much attention to words, voice, and behavior among family members or members of the village, so there are provisions in a separate chapter on crimes of “cruelly cursing people”, and identifies this as one of causes of crime, having a strong effect on building a strong community. It can be seen that most penalties in customary laws are mainly fines, few strong sanctions, compared with current criminal sanctions that are completely inconsistent and unsuitable for the situation of crime prevention. In addition, customary laws are very concerned about protecting petitioners and accusers of criminal acts, by prohibiting reciprocal action. About less serious matters, customary laws also define mediation in resolving disputes and disagreements between two or more parties by mediating and negotiating with the participation of third parties. 3.1.5. Respect, protect property rights according to Thai’s customary laws In Thai customary law, the concept of property as: human being, as a social entity, can exist and develop only when there are certain facilities. This ownership issue, there are not property relations in Thai‟s customary law. Thai‟s costumary laws mainly determines ownership of natural resources such as land, forests, mountains, rivers, etc and those ownerships are jointly owned by the community, individuals and families with the land and forest areas of Thai‟s ethnic community. 3.1.6. Protect land and environmental resources according to Thai’s customary laws Thai customary laws contain community knowledge about the proper management and use of natural resources, pay special attention to the ownership and right to use natural resources. In some respects, the determination of public ownership of personal property and individual use rights is one of the important factors contributing to the good management and proper use of forest and land resources, water sources, other forest products. Regulations on the protection of water sources, forbidden forests, watershed forests, hunting, exploitation of forest bees, etc. in the direction of rational exploitation of these resources also contribute to the exploitation and protection of natural resources. sustainably. 15 3.2. Impact of human rights regulations in Thai’s customary laws on the implementation of human rights in Thai’s community in Northwest Vietnam nowadys. 3.2.1. Overview of the political, economic and social situation in the Northwest provinces of Vietnam where Thai’s communities reside Nowadays, the Northwest provinces of Vietnam include 06 provinces: Hoa Binh, Son La, Dien Bien, Lai Chau, Lao Cai and Yen Bai, which are particularly important strategic areas of economy – society, defense, security, foreign affairs of the Northwest region and the whole country. There are many ethnic minorities living together, of which Thai majority. The central orientation in upcoming time of the Northwest provinces is focusing on rational and effective exploitation of the potentials and strengths to accelerate the economic growth rate; to clearly and synchronously improve the socio-economic infrastructure system to meet the requirements of economic development, people's daily life and national defense and security. 3.2.2. Awareness of Thai’s customary laws of officials, civil servants, public employees and awareness of the implementation of human rights in Thai ethnic minority area in Northwest Vietnam. Situation of survey subjects Students conducted a sociological survey with the main subjects are officials, civil servants and public employees working at commune level. The reasons for this choice is officials, public servants and public employees have been implementing policies and laws, so that they are close to people and have necessary knowledge about the customs and habits of Thai people. Awareness of officials, public servants and public employees at commune level about Thai’s customary laws Raising awareness on the role of Thai‟s customary laws has been concerned by commune authorities in Thai ethnic areas, expressed in some specific contents through the summary of sociological survey. The total number of people who clearly know Thai‟s customary laws accounts for 9%, the number of people who know Thai‟s customs accounts for 64%; 9% of people know few of Thai‟s customary laws and 18% people did not know Thai‟s customary laws. Thus, the number of people who know Thai‟s customary laws is quite high (73%). This confirms that most of the 16 communal cadres, civil servants and officials have basic knowledge of Thai‟s customary laws, which is a favorable factor in the implementation of Thai human rights according to Thai‟s customary laws in the Northwest Current situation of application of human rights values in Thai’s customary laws to protect human rights of communal officials in ethnic minority areas in Northwest Vietnam nowadays When being asked about the need to understand Thai‟s customary laws of commune officials in implementation of human rights, the responses were 100%. There is no opinion that official have not to know about Thai‟s costomary laws on implement human rights based on the values of Thai customary laws. This is the basis for proposing solutions to improve Thai people's awareness of customary laws for civil servants. Answering questions about the internal difficulties of commune officials working in ethnic minority areas, the comments showed that 100% answered that there were difficulties. The causes of these difficulties are: 20% of language barrier; lack of knowledge of Thai‟s customary laws is 41%; professional qualifications, working capacity accounts for 40%; other reasons are 20%. This is also one of the important information for the author to propose suitable solutions in this thesis. Awareness of exercising human rights in Thai’s community based on the values of Thai’s customary laws of civil servants The survey on the awareness of applying Thai‟s customary laws in the implementation of human rights showed that: 23% of respondents applied a lot; 54% of the respondents partially applied; 15% of respondents did not applied; and 8% of unclear ideas. 3.2.2. Current status of implementation of human rights in Thai’s community in Northwest Vietnam nowadays Survey subjects Students selected 11 communes in 5 provinces: Son La, Lai Chau, Dien Bien, Hoa Binh and Yen Bai to survey. The main criteria for selection are those of ethnic Thai areas, where the majority of Thai people live. Results of human rights A survey of 11 communes with the majority of Thai residents shows that a number of Thai officials, public servants and officials, especially leaders, heads and some specialized officials, have applied customary law in their work (accounting for more than 60%). 17 About environmental resource protection: The surveyed communes propagandized and mobilized people to manage and protect forests, afforestation, most of the afforestation movement was focused. Social order and safety: The total number of violations of social order and safety in 11 surveyed communes in 5 years is 595 cases, so on average, each commune had 11 violations. Regarding to education and training: Through the general policy of the Party, the State and the creativity of the Party committees, the district and commune authorities in Thai villages, some localities have built plan to organize Thai‟s letters, Thai‟s language as well as customs, habits of Thai people. Limitations of the application of Thai’s customary laws about human rights in some ethnic minority communes in Northweste Vietnam The percentage of people who know Thai‟s customary law is not high, only 17%; The number of people who know Thai „scustomary laws is less than half (1/2) of the surveyed population and the fact that there is still some ignorant knowledge of Thai‟s customary laws. The situation of potential social safety and order is complicated, drug evils grow rapidly, the number of addicts increases gradually, the rate of successful detoxification is still low. Some fields of cultural management have not met the requirements, the situation of evangelization to remote areas remains, child marriage in Thai people has not been completely overcome. Economic in Thai ethnic minority area is underdeveloped, currently lacking resources for development, especially in the implementation of policies to support and ensure the rights of disadvantaged group. in society. Education and training are still inadequate compared to other areas in the delta, teaching and learning quality is limited, and the percentage of schools meeting national standards is low. 3.2.4. Causes of results and limitations on application of human rights values in Thai’s customary laws in implementation of human rights of Thai ethnic in Northweste Vietnam Causes of the achieved results - Objective reasons 18 Because of correct guidelines and policies of the Party and the State on economic development, hunger eradication and poverty reduction, on the preservation and promotion of cultural identities of ethnic groups, on the construction of a political system that has had a profound impact decisively to the thoughts and actions of officials, party members and people. In addition, the funding of socio-economic a

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