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MINISTRY OF EDUCATION AND TRAINING
HO CHI MINH CITY UNIVERSITY OF LAW
-----------***-----------MANAGEMENT BOARD OF
SPECIAL TRAINING PROGRAMMES

HO VU MINH DIEN

HUMAN RIGHTS PERCEPTION OF
VIETNAM IN THE NATIONAL REPORTS
AT THE UNIVERSAL PERIODIC REVIEW

BACHELOR THESIS
Faculty: Administrative Law
Course: 2013 - 2017

HO CHI MINH CITY
2017


MINISTRY OF EDUCATION AND TRAINING
HO CHI MINH CITY UNIVERSITY OF LAW
-----------***-----------MANAGEMENT BOARD OF
SPECIAL TRAINING PROGRAMMES

HO VU MINH DIEN

HUMAN RIGHTS PERCEPTION OF
VIETNAM IN THE NATIONAL REPORTS
AT THE UNIVERSAL PERIODIC REVIEW

BACHELOR THESIS


Faculty: Administrative Law
Course: 2013 - 2017

Instructor: Dr. Do Minh Khoi
Student: Ho Vu Minh Dien
Student’s code: 1353801011023
Class: CLC38A

HO CHI MINH CITY
2017


ACKNOWLEDGEMENT
I would like to express my sincere appreciation to Dr. Do Minh Khoi, whose supervision
and knowledgeable comments have made great contribution to this thesis.
Above all, I would like to thank my family and my good friends, who are a constant
source of inspiration, encouragement and support to me.


TABLE OF CONTENTS
Page
LIST OF ABBREVIATIONS ....................................................................................... i
INTRODUCTION .......................................................................................................iii
CHAPTER 1: GENERAL ISSUES ON HUMAN RIGHTS PERCEPTION ...... 1
1.1 Concept of human rights perception and its importance ............................ 1
1.1.1 Concept of perception, human rights and human rights perception............ 1
1.1.2 Content of human rights perception ............................................................ 4
1.1.3 Importance of human rights perception ...................................................... 5
1.2 Aspects of human rights perception ............................................................... 6
1.2.1 Different views on human rights in history ................................................. 6

1.2.2 Perception of core values and characteristics of human rights ................. 10
1.2.3 Perception of State’s obligations in promoting human rights ................... 13
1.2.4 Perception of specific human rights .......................................................... 17
1.2.5 Perception of UPR mechanism and its role ............................................... 43
CHAPTER 2: HUMAN RIGHTS PERCEPTION OF VIETNAM IN THE
NATIONAL REPORTS AT UPR ......................................................................... 46
2.1 Vietnam’s participation in UPR ................................................................... 46
2.2 Human Rights Perception of Vietnam in National Reports at UPR ......... 46
2.2.1 Vietnam’s approach to human rights ........................................................ 46
2.2.2 Vietnam’s perception of human rights fundamental values and
characteristics ..................................................................................................... 48
2.2.3 Vietnam’s perception of State’s obligations ............................................. 50
2.2.4 Vietnam’s perception of specific rights .................................................... 53
2.3 Vietnam’s perception of UPR mechanism ................................................... 58
CONCLUSION ............................................................................................................. v
LIST OF REFERENCES ........................................................................................... vii


LIST OF ABBREVIATIONS
CAT

Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment

CESCR

Committee on Economic, Social and Cultural Rights

CPED


International Convention for the Protection of All Persons from Enforced
Disappearance

CRC

Convention on the Rights of the Child

CRPD

Convention on the Rights of Persons with Disabilities

ICESCR

International Covenant on Economic, Social and Cultural Rights

ICCPR

International Covenant on Civil and Political Rights

ICRMW

International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families

ICSPCA

International Convention on the Suppression and Punishment of the
Crime of Apartheid

HRC


United Nations Human Right Council

NGO

Non-governmental organization

OHCHR

Office of the United Nations High Commissioner for Human Rights

UDHR

Universal Declaration of Human Rights

UN

United Nations

UNHRC

United Nations Human Rights Committee

UPR

Universal Periodic Review

VIETNAM Socialist Republic of Viet Nam

i



ii


INTRODUCTION
1. Urgency of the topic
Human rights are the most sacred values of humanity. They are echoes of the common
voice, the common goal and the common instrument of humankind to protect human
dignity and liberty of all persons. Since being codifed in international law after World
War Two with the adoption of the UN Charter and the UDHR, human rights have
become a common and dominant issue of the international community. Numerous
human rights treaties have been adopted to respect, protect and promote human rights
on a global scale, most notably the ICCPR and the ICESCR. Together with an
international legal framework, the UN assigned the UNHRC as a specialized body in
charge of issues regarding human rights. This body was later substituted by the HRC in
2006. The new council then established the UPR as a new mechanism to promote human
rights worldwide. Currently, UPR is considered one of the most effective mechanism
of promoting human rights of the UN.
Vietnam has a long tradition of respecting and promoting the values of human rights.
Having been a victim of wars and aggressions which are the most serious violations of
human rights throughout its history, the Vietnames people is fully aware of the sacred
values of human rights. Since becoming a member of the UN in 1977, Vietnam has
acceded to most core international human rights instruments. In February 2015, the
National Assembly of Vietnam ratified the CAT, marking another milestone in
Vietnam’s consistent policy of protecting and promoting human rights. Fulfiling its
obligations under international treaties, Vietnam has actively implemented the
international standards of human rights through its legislation and policies. The country
has aslo participated in numerous human rights mechanisms, including the UPR. The
achievements of Vietnam in protecting and promoting of human rights have received

recognition and praises from the international community.
In order to fulfil and implement international human rights effetively in pratice, it is
essential for States, including Vietnam to have a clear and appropriate perception of
human rights. As the content of human rights perception covers a wide range of issues
and differ significantly according to different States, possessing a full and appropriate
perception as universally accepted is an urgent requirement of States. Hence, this is the
reason that author chose to explore this issue in the thesis.

iii


2. Object of the thesis
In the scope of the bachelor thesis, the author wishes to explore in depth the two
following legal issues: (i) the concept of human rights perception and its content and
(ii) human rights perception of Vietnam manisfested in the National Reports at UPR.
With this thesis, the author aims to achieve the four following research goals:
(i)

Research on and understand the theory regarding the human rights perception

(ii)

Research and understand the content of human rights perception under
international human rights law

(iii)

Explore and analyse Vietnam human rights perception in the National
Reports at UPR to understand the country perception in comparsion to the
general international perception of human rights.


(iv)

Recommend measures to facilitate Vietnam’s human rights perception to be
in line with international perception of human rights.

3. Scope of research
This thesis focuses on the following main contents: (i) the concept of human rights
perception, (ii) the content of human rights perception, (iii) Vietnam’s human rights
perception in the National Reports at UPR, and (iv) recommendations relating to the
research issues.
4. Research methodology
Apart from the traditional research methods such as objective physicalism method,
historical physicalism method of Marxism - Lenism, the author actively utilizes the
specific methods such as: logical - systematic method, comparison method, analysis
method, synthesis method,…
-

-

Logical – systematic method: is used frequently in the theory section to present
the concept from different approaches.
Comparison method: is used to compare Vietnam’s human rights perception with
the international perception of human rights to find the similarities and
differences and make appropriate recommendations.
Analysis method: is used to clarify the content of the concepts as well as the
content of the National Reports of Vietnam at UPR.
Synthesis method: is used to make conclusions regarding the research issues,
based on the results of the research. Hence, the author can make appropriate and
relevant recommendations to the research issue.

iv


CHAPTER 1: GENERAL ISSUES ON HUMAN RIGHTS PERCEPTION
1.1 Concept of human rights perception and its importance
1.1.1 Concept of perception, human rights and human rights perception
1.1.1.1 Concept of perception
In general, perception is a concept that may have various meanings depending on the
field we approach. Most people today understand perception as a psychological
concept. Accordingly, perception is the organization, identification, and interpretation
of sensory information in order to represent and understand the environment.1
Perception deals with human senses that generate signals from the environment through
sight, hearing, touch, smell and taste, thus forming a mental representation of the
environment.2
However, perception has historically been a concept belonging to philosophy. The
philosophy of perception is among the fundamental issues of philosophy. Philosophers
from different philosophical schools have their own ideas about perception.
Subjective idealism philosophers believe that, the world is just a “mixture” of human
feelings. Accordingly, “the existence of the world is nothing but a subjective
imagination of humans”.3 Consequently, perception is not the reflection of reality but
is just a subjective “feeling” of humans.
Objective idealism admits the existence of “world of ideas” or “absolute idea” and the
world is just a “shadow” of the “absolute idea”. As a result, perception is the “recall”
of the soul about the “absolute idea” that it has experienced or the “self-reflection” of
the “absolute idea”.4
Adherents to skepticism criticize the existence of the world. Therefore, they are skeptic
about the perception of humans. In the early modern period, the theory of skepticism
was illustrated under the theory of agnosticism. Agnosticism believes that humans, in
principle, can only perceive the surrounding world but cannot understand the “thing-initself”.
The old physicalism admitted the existence of the objective world and the ability of

human beings to perceive the world. However, due to being intuitive and metaphysical,
1

Daniel Schater (2011), Psychology, Worth Publishers, New York, p. 5.
Matthew O. Ward et al (2015), Interactive Date Visualization: Foundations, Techniques, and Application 2 nd
Edition, CRC Press, Florida, p. 73.
3
G. Berkeley (1978), An Essay towards a New Theory of Vision, Moscow, p. 47.
4
Nguyen Huu Vui (1998), History of Philosophy, National Politics Publishing House, Hanoi, p. 44.
2

1


the theory could not explain in a scientific way the origin, nature and features of
perception. They also did not see the relationship between perception and the real world.
According to Karl Marx and Frederick Engels, perception is a philosophical concept
which means the mental activity of human beings to reflect the surrounding world
(nature, society and humans themselves). This is the definition that the author is going
to use in this thesis.
Based on the approach of subjective physicalism, perception bears the following
characteristics:
First, the nature of perception is the reflection of the objective world into human mind
but it is not an arbitrary reflection but an active and creative reflection of humans to
create a “subjective image of the objective world”.5
Second, as perception is the reflection of the natural world by human beings, the subject
of perception is human beings. However, not everyone can be the subject of perception.
In order to be the subject of perception, human beings need to have certain qualifications
such as health, age, knowledge, experience…

Third, the reflection of the perception is long process, from feeling to understanding,
from little to much, from phenomenon to nature… As a result, perception develops
continuously to create concepts, ideas, principles to better reflect the perception
objective.
Fourth, the process of perception is based on the reality and only in reality can human
test the accuracy of their knowledge. There exists a unified relationship between theory
and reality.
1.1.1.2 Concept of human rights and human rights perception
In the history of human’s ideology, there have been many views and ideas on human
rights and these rights have been studied in many fields such as politics, legal science,
philosophy, ethnics or religion.6 In the modern day, human rights have largely remained
a legal concept and human rights are defined mainly by legal scholars. Human rights is
a multi-facet concept. Depending on field we use to approach, we can have various way

5

V. I. Lenin (2005), Works Vol. 29, National Politics Publishing House, Hanoi, p.192.
Faculty of Law, Hanoi National University (2011), Textbook on the theory and law of human rights, National
Politics Publishing House, Hanoi, p. 49-55.
6

2


to define human rights. According to statistics of the UN, there are currently over fifty
definitions of human rights.7
In legal science, the concept of human rights began to surface in the ancient times and
the original idea of human rights was heavily influenced by the theory of natural rights
(“lex naturalis”). In ancient Greece, philosopher Zeno (436 – 333 BC) stated that human
rights are inherent and natural rights of human beings. He wrote that no one was born

as slave, their slavery is the result of the deprivation of their inherent rights and
freedoms.8 The main advocates of this theory are Thomas Hobbes (1588 – 1679), John
Locke (1632 – 1704) and Thomas Paine (1731 – 1839). The common characteristics of
natural rights is that they are inherent rights of a person. These rights exist
independently from traditions, customs, cultures or will of any organizations and States.
They are rights that are not granted by any subjects, even the States. The natural rights
are also called moral rights or inalienable rights.9
In contrast to the theory of natural rights, the theory of legal rights claims that human
rights are not inherent and natural rights of human beings. Human rights are regulated
by the States and they are codified into legislation which has obligatory force on every
person in the society. The typical proponents of this theory are scholars Edmund Burke
(1729 – 1797) and Jeremy Bentham (1784 – 1832). These scholars criticized that the
idea of natural rights is “nonsense upon stilts” and there is no right that is inalienable.
10

According to the theory of legal rights, human rights are influenced by the will of the
ruling class and other factors such as traditions, customs, cultures of the society and
therefore, human rights are politically and culturally relative. Legal rights are also
known as civil rights or statutory rights.11
Nowadays, on the international level, there has been a compromise of these two theories
of human rights. As such, human rights are both natural and inherent rights of human
beings but at the same time, they are influenced by legal factor and political difference.
According to the definition prescribed by the Office of the High Commissioner for
Human Rights: “human rights are commonly understood as being those rights which
are inherent to the human being. The concept of human rights acknowledges that every

7

The United Nations (1994), Human Rights: Questions and Answers, Geneva, p. 41.
Faculty of Law, Hanoi National University (2011), Textbook on the theory and law of human rights, National

Politics Publishing House, Hanoi, p. 44.
9
Malcome N Shaw (2008), International Law, Cambridge University Press, p. 248-249.
10
Malcome N Shaw (2008), International Law, Cambridge University Press, p. 249-250.
11
Faculty of Law, Hanoi National University (2011), Textbook on the theory and law of human rights, National
Politics Publishing House, Hanoi, p. 43.
8

3


single human being is entitled to enjoy his or her human rights without distinction as to
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. Human rights are legally guaranteed by human rights
law, protecting individuals and groups against actions which interfere with fundamental
freedoms and human dignity”.12
In Vietnam, there are many textbooks and research materials which have defined human
rights in a similar way. The textbook of International Law of Hanoi University of Law
defines “In a legal sense, human rights are dignity, capacity and lawful interests of
human beings that are codified and protected by national legislation and international
laws”.13 The textbook on the theory and law of human rights published by Faculty of
Law, Hanoi National University defines human rights as natural and inherent capacity
and interest of human beings provided in national legislation and international law”.14
Author Tran Ngoc Duong added that the concept of human rights are natural and
founded on the universal values of humanity. However, human rights are relative in
terms of the political-social and historical situation of a nation, a people.15
Although human rights can be approach from different fields, they bear certain similar
features. First, they are standards regarding human dignity, capacity and lawful interests

of human beings. Second, they are rights inherent to all human beings and universally
recognized by the international community. Third, human rights are values guaranteed
to human beings, both individually and collectively as a member of a society. Fourth,
human rights are recognized and guaranteed by national and international laws. Fifth,
human rights includes both natural and legal rights.
In conclusion, the author defines that Human rights perception is the mental activity of
perception subjects reflecting the content of human rights.
1.1.2 Content of human rights perception
Regarding the perception subject, with distinction to the subject of human rights, which
includes rights-bearers (individuals and groups) and duties (State and third parties), the
perception subject of human rights comprises individuals, groups and States. In the
content of this thesis, the perception subject concerned is the State of Vietnam.
12

Office of the High Commissioner for Human Rights (2000), A Basic Handbook for UN Staff, p. 2-3.
Đại học Luật Hà Nội (2007), Giáo trình Luật Quốc tế, NXB Công an nhân dân, p. 135.
14
Faculty of Law, Hanoi National University (2011), Textbook on the theory and law of human rights, National
Politics Publishing House, Hanoi, p. 42.
15
Tran Ngoc Duong (2004), Human rights, citizen rights in the Socialist State of Vietnam, National Politics
Publishing House, Hanoi, p.12-25.
13

4


The object of perception is human rights.
Regarding the content of perception, perception of human rights includes three main
aspects: (i) perception of core values and characteristics of human right, (ii) perception

of State’s obligation in promoting human rights and (iii) perception of specific human
rights such as political, civil, economic, social and cultural rights.
Human rights perception of State differs from other perceptions in the following
respects:
First, in the human rights perception of State, human rights are the most fundamental
and important values of the perception subject. If human rights are not the most
fundamental and important, States can sacrifice human rights for other interests and
purposes.
Second, human rights perception of States is proclaimed in policy and legislation.
Third, human rights perception of State is more important than human rights perceptions
of other subjects such as individuals or organizations.
1.1.3 Importance of human rights perception
That States possess a full and appropriate human rights perception is essential to the
development and promotion of human rights on both national and international level.
On national level: Having a full and appropriate perception of human rights can guide
States to develop and enact policies as well as legislation that respect, protect and
promote fundamental human rights and freedoms for all citizens. Guaranteeing human
rights on the national level is an essential condition leading the development of the
economy, an effective administration and a democratic society.
On international level: possessing a proper human rights perception ensures that States
can fulfil their obligations under international human rights law. Hence, the States can
gain credits and better international position within the international community. That
States have a proper human rights perception is an essential condition to implement
international standards of human rights in the world, thus leading to the protection and
promotion of human rights across the globe.

5


1.2 Aspects of human rights perception

1.2.1 Different views on human rights in history
In the history of human rights ideology, there are many ideas, viewpoints and doctrines
regarding the basic values of human rights. The author now designates section 1.2.1 to
summarize and analyse some important viewpoints on human rights which have great
influence on today perception of human right of many nations.
1.2.1.1 Universalism and cultural relativism
Although human rights have been recognized as universal values adopted by the
international community, there are also contradictory views regarding the interpreting
and implementing of human rights in specific countries. Hence, certain countries and
scholars have raised and supported the theory of cultural relativism, sparkling a
controversy with the proponent of universalism theory.
On the one hand, universalism is defined as asserting that culture is irrelevant to the
validity of moral rules and thus, reaffirms the universality, indivisibility, equality and
interdependence of all human rights. Nevertheless, some forms of universalism do
recognise a certain degree of “moral variability” in human rights practices to guarantee
the right of self-determination.16 As a result, universalism would agree on an
“interpretation”, for instance, of political participation or structure of the legal system,
while being aware of the economic costs that the fulfilment of rights entails.17
On the other hand, advocates of cultural relativism theory argues that due to the
differences regarding the culture of various nations, each nation shall have a different
standards of human rights and the implementation of human rights in different countries
vary accordingly. They believe that “the current definition of human rights as part of
the ideological patrimony of Western civilization and argue that the principles
enshrined in the Universal Declaration reflect Western values and not their own”.18
Consequently, cultural relativism “is a doctrine that hold that such cultural variations
are exempt from legitimate critism by outsiders and strongly supported of notions of
communal autonomy and self-determination”.19
Roger Lloret Blackburn (2011), “Cultural Relativism in the Universal Periodic Review of the Human Rights
Council”, ICIP Working Papers, p.9.
17

D. Otto (1998), “Rethinking the Universality of Human Rights Law”, Human Rights Quarterly at 5, supra note
1,3 et al.
18
C. Cerna (1994), “Universality and Cultural Diversity: Implemenation of Human Rights in Different SocioCultural Context”, Human Rights Quarterly, supra note 5, at 740.
19
J. Donnelly (1984), “Cultural Relativism and Universal Human Rights”, Human Rights Quaterly, 400 et al.
16

6


To conclude, the two theories of universalism and cultural relativism are not united but
at the same time, they are not totally contradictory to each other. Particularly, according
to advocates of cultural relativism, only a certain number of rights need to be in
compliance with the traditional culture. On the contrary, universalists, while asserting
that human rights are inherent and universal to all human beings, agree that cultural
sensitivity must be taken into account when implementing universal human rights
standards. As a consequence, both theories share certain similar aspects regarding the
interpreting and implementing of human rights.
1.2.1.2 Marxist approach to Human Rights
Karl Marx, one of the most important philosophers in human history, has argued
extensively about the concept of human rights perceived by Western scholars. In his
works, “On the Jewish question and human rights” and the later “Capitalism”, Marx
criticized the traditional concept of human rights in Western nations and established his
own concept of human rights. The view of Marx on human rights later had a great
influence on many socialist States which adopted Marxism. His ideas continues to hold
great importance in the modern perception of human rights in many countries.
The first important aspect of Marx perception of human rights is his critique of
contemporary emphasis on individual rights and liberties. In Marx’s view, man should
realize that he or she is a species-being belonging to a collective group, that is, the

human species. As such a species-being, man can realize that his or her powers is
derived from groups, not from individual. And a human being who recognises social
power considers his or her own powers as the same as social power, not separating the
two. According to Marx, only reaching such a state of mind can bring complete human
liberalisation.20
Marx stressed that human rights do not exist apart from a State because human rights
are not about an individual but a group, and are originally related to a group, especially
a State. Furthermore, he said that human rights were mere fictions if not protected by
the State. Such conceptualisation of the nature of society excluded the existence that
human rights as individual rights having their foundations on a natural status that existed
even before the State was created. Marx believed that human rights could not cast off
their hierarchical character due to their nature as no human rights was abstract due to
the relationship between a human being and human society. Regarding human rights as

20

Karl Marx (2000), Karl Marx: Selected Writings, Oxford University Press, p. 57.
7


just a product of social relations, he also vigorously denied inherent human rights,
claiming that concept as a product of idealism.21
Another aspect of Marx’s perception of human rights is that he viewed human rights as
relativized by class struggle and history, that is, by historical materialism.22
Human rights shall be subject to the development level of the society, in particular the
development of the producing force.23 Rights and benefits cannot exceed the economic
and social situation and the cultural development level founded on such situation.24 The
history of human beings has proven that human liberties are restricted within the
development of the producing force, not the simple idealism. Human rights have
characteristics of social class and are bound to national independence and the

mastership of the people. Human rights cannot be placed upon the right to exist and
develop of a nation.
With the establishment of the Soviet Union and later the socialist States in Eastern
Europe and Asia, Marxism has been adopted as a sole ideology of many countries and
Marx’s perception of human rights has been a central part of many socialist states’
perception. The perception of all socialist States have many foundations in Marx’s
perception. First, the socialist States have place great emphasis on the role of the State
in protecting and promoting human rights within its jurisdiction.25 Second, socialist
States stress the importance of many collective rights, which they consider as
preconditions to ensure individual rights, such as the right to peace and the right to selfdetermination.26 Third, socialist States emphasize the roles of economic, social and
cultural rights, in comparison to civil and political rights. They spearheaded the efforts
to promote and codify these rights in international law, resulting in the adopting of
ICESCR.
Marx’s view on human rights remains one of the most influential viewpoint on human
rights in history. Marx’s perception of human right laid the foundation to develop the
concept of human rights by socialist countries, which added many progressive aspects
to the modern concept and content of human rights. Marx concept of rights contributes
Korean Bar Association (2015), “Report on Human Rights in North Korea 2014”, Seoul, p. 20.
Anteneh Geremew (2015), “Marx and Human Right”, p. 13, available at SSRN:
https://ssrn.com/abstract=2442165, last access dated 16 July 2017.
23
Karl Marx and Ph. Engels (1995), Works Vol.2, National Politics Publishing House, Hanoi, p. 173.
24
Hoang Van Hao (2003), Human rights in China and Vietnam, National Politics Publishing House, Hanoi, p. 34.
25
Franciszek Przetacznik (1977), “The Socialist Concept of Human Rights: Its Philosophical Background and
Political Justification”, De la Revue Belge de Droit International, p. 16.
26
Franciszek Przetacznik (1977), “The Socialist Concept of Human Rights: Its Philosophical Background and
Political Justification”, De la Revue Belge de Droit International, p. 24.

21
22

8


greatly in the modern theory of human rights and continues to have influence in many
countries, both socialist and capitalist.
1.2.1.3 Human rights and “Asian values”
Human rights have long been studied in the West. Human rights are equal, universal
and inalienable.27 While Western countries emphasized individual rights, Asian
countries tend to stress the importance of group’s rights, cultural rights and national
sovereignty. Asian countries follow the theory of cultural relativism and most of them
argue that Western values and ideas of human rights are not suitable to implement in
Asian societies. One of the most striking difference is the contrast of Western
individualism and Asian communitarianism.28 Asian countries consider human rights
as individual rights placed in a societal context. Therefore, they cannot be separated
from the society, the State and the nation. While Western scholars argue for the
application of universality standard for human rights, Asian countries criticized that the
notion of universality is different from Western and Asian perspectives.29
In the Vienna Conference 1993, Asian countries proposed the concept of “Asian values”
as a counter argument against Western universalism on human rights. According to
scholars Ole Bruun and Michael Jacobsen, there are four main arguments constituting
“Asian values”: cultural argument, collective argument, disciplinary argument and
organic argument.30
Firstly, there is a so-called cultural argument. According to the theory of cultural
relativism, human rights is closely associated with the right of self-determination of a
people or a nation. They must correspond with the economic, political situation and the
culture of that country.31 In the 1993 Bangkok Declaration on Human rights, Asian
nations emphasized that while human rights must be considered in the context of a

dynamic and evolving process of international norm-setting, bearing in mind the
significance of national and regional particularities and various historical, cultural and

27

Jack Donnely (2013), Universal Human Rights in Theory and Practice 3 rd edition, Cornell University Press,
p.10.
28
Joanne R. Bauer and Daniel A. Bell (1999), “Introduction” in Joanne R. Bauer and Daniel A. Bell (eds), the
East Asian Challenge for Human Rights, p. 6.
29
Bilahari Kim Hee P.S Kausikan, “An East Asian Approach to Human Rights” (1995-1996) 2 Buffalo Journal
of International Law, p. 265.
30
Ole Bruun and Michael Jacobsen (2000), Human Rights and Asian Values: Contesting National Identities and
Cultural Representation in Asia, Curzon Press, p. 3.
31
Jack Donnely (1984), “Cultural Relativism and Universal Human Rights”, 6 Human Rights Quarterly, p. 400.
9


religious backgrounds.32 While accepting the universality of human rights, these nations
stated that they do not accept inconsistent values and human rights must be considered
within the specific situation of the country.
Secondly, there is a collective argument. While Western nations stress the importance
of individual liberties, Asian countries tend to adopt communitarism. The interest of the
society, community must be place upon the interest of individuals.33 This view
corresponds with the traditional cultures of Asian countries which value the role of
family and the community. Accordingly, if there is any conflict between individual and
collective interest, the collective interest shall prevail.

Third, there is the disciplinary argument, stressing the importance that Asians allegedly
attribute to voluntary discipline in all social life, including family relations, labour
relations and politics. Instead of emphasizing civil and political rights, Asian nations
believe that economic development plays an importan role in ensuring and promoting
human rights and civil and political rights are incidental.34
Fourth, there is the organic argument. Asian countries view the State and the society as
a unified body and therefore, individuals or organizations with State power shall assume
the role to govern in the best interest of the society. Consequently, the State is obligated
to enact legislation and policies to handle the interests of the entire society.35
Nowadays, the debate on Asian values remains a heated issue between Western and
Asian countries regarding human rights. The modern world is approaching human rights
in a more harmonious way, which respect and compromise the interest of individuals,
communities as well as States36 in interpreting and implementing human rights.
1.2.2 Perception of core values and characteristics of human rights
Human rights, as a political, social and legal concept, have their own characteristics.
These characteristics are widely recognized by the international community, having
General Assembly of the United Nations (1993), “Report of the Regional Meeting for Asia of the World
Conference on Human Rights”, para. 8.
33
Phan Nhat Thanh (2013), Customary Law and Human Rights , Hong Duc Publising House, Ho Chi Minh City,
p. 116.
34
Michel Rosenfield, “Can Human Rights Bridge the Gap Between Universalism and Cultural Relativism? A
Pluralist Assessment Based on the Rights of Minorities (1998-1999)” 30 Columbia Human Rights Law Review,
p. 254-258.
35
Ole Bruun and Michael Jacobsen (2000), Human Rights and Asian Values: Contesting National Identities and
Cultural Representation in Asia, Curzon Press, p. 3.
36
Eckart Klein, “General Comments on the Universality of Human Rights”, Presentation at the Conference on the

Universality and Particularity of Human Right 2010, Hanoi, p. 9.
32

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been inscribed in international legal documents such as the Vienna Declaration and
Program Action 1993. Perception of these fundamental characteristics constitutes an
important part of the perception of human rights in general as all the international
standards of human rights are based profoundly on these characteristics and principles.
According to the latest document published by OHCHR37, the most important
characteristics of human rights include:
1.2.2.1 Human rights are founded on respect for the dignity and worth of each person
Human dignity is values and dignity which only human beings possess and therefore, it
distinguishes human beings from other animals. Dignity is equally inherent in every
person. The concept of dignity itself includes ideas of human rights, the uniqueness and
identity of every single person, which are respected by all people, organizations and
society.38
Human rights are founded on human dignity and they are special instruments invented
by the humankind to protect human dignity. With the codification of human rights into
international and national legislation, human dignity is now officially protected. The
constitutions of most countries in the world include provisions directly or indirectly
upholding the inviolability of human rights and that all entities have an obligation to
respect and protect the dignity of others. The UN Charter, in its preamble, “...reaffirm
faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women...”.39 The UDHR also cited human dignity in its
preamble and affirmed its recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family.40 Both core Covenants on human
rights (the ICCPR and the ICESCR) continued to assert that human rights “…derive
from the inherent dignity of the human person…”.41

1.2.2.2 Human rights are universal
The principle of universality of human rights is the cornerstone of international human
rights law. This principle, as first emphasized in the UDHR in 1948, has been reiterated
in numerous international human rights conventions, declarations, and resolutions. The
1993 Vienna World Conference on Human Rights, for example, noted that it is the duty

37

Office of the High Commissioner for Human Rights (2000), A Basic Handbook for UN Staff, p. 5.
V. E. Davidovich (2002), Under the philosophical kaleidoscope, National Politics Publisher, Hanoi, p. 591.
39
UN Charter, Preamble.
40
UDHR, Preamble.
41
ICCPR and ICESCR, Preamble.
38

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of States to promote and protect all human rights and fundamental freedoms, regardless
of their political, economic and cultural systems.
The Vienna Declaration and the subsequent Program of Action reaffirmed that all
human rights are universal and the international community must ensure the enjoyment
of human rights on a global scale in an equal, fair and non-discrimination manner. All
human rights are considered as sacred values of humankind, becoming the common
goal of the humanity. They are applied in all stages of development in history without
any discrimination with regards to race, ethnicity, sex, religion, age or social origin. The
universality of human rights is inscribed in many international legal documents on

human rights. Hence, human rights are not just domestic affair within one nation’s
jurisdiction. Human rights have become an international issues governed by
international law. However, the universality of human rights does not mean the extreme
equalization on the rights enjoyment level, it must be construed as equality in terms of
the legal position of the right-bearers.
1.2.2.3 Human rights are inalienable
Human rights are inalienable and therefore, they cannot be taken away or limited
arbitrarily. Human rights are inherent and basic dignity of each person. Consequently,
no States, organizations or individuals can infringe on these rights. All international
human rights instruments as well as recognized studies on human rights assert that
human rights are sacred and valuable rights of human beings and promoting human
rights is one of the main goal of the whole humankind. The preamble of the UDHR has
stressed the “recognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family”. 42 However, certain rights can be limited in special
circumstances, for instance, the right to liberty may be restricted if a person is found
guilty of a crime by a court of law. The logical reason of this limitation is to protect the
rights of other people, and in a higher level, the interest of a nation or a community. The
restriction or deprivation of human rights are limited to only certain rights and may only
last for a specified period of time.
1.2.2.4 Human rights are indivisible
Human rights are equally important and there is no right which are of more value than
other rights. The foundation of this characteristics is that all human rights exist due to
their interrelated and interdependent relationship, not a physical combination.
42

UDHR, Preamble.
12


Although, the civil and political rights were construed before the economic, social and

cultural rights, they are not considered as more important. Both group of rights reflect
all the need of a person both physically and mentally and together ensure the survival
and development of a human being. However, depending on the stage of development
and a specific economic, social and cultural situation of a country, one group of rights
may be prioritized over another. Lastly, international human rights law has also adopted
the rights of groups such as those of women, person with disabilities, children… These
people have difficulties exercising and enjoying their rights due to their health, age or
certain physical features. As a consequence, they require certain rights and better
protection. These priority rights are not inconsistent with the indivisibility of human
rights and they do not create any discrimination between different groups of people in
the society. In fact, these rights bring fairness and opportunities for these group of
people to access and enjoy human rights more equally.
1.1.2.5 Human rights are interrelated and interdependent
All human rights bear an interrelated and interdependent relationship with one another.
Consequently, they should be considered as a unified body of rights. If one right is
violated, other rights are also infringed as a direct or indirect result. On the contrary, if
one right is guaranteed, it will lead to the guarantee of other rights. For instance, when
the economic rights are effectively implemented, they will pave the way for the
development of social and cultural rights. Similarly, when the economic and social
conditions are well developed and people are enjoying the economic, social and cultural
rights in a better way, civil and political rights will also experience an extensive
development. As such, to better guarantee a specific civil or political right, the State
also need to guarantee the corresponding economic, social and cultural rights. For
example, to ensure the right to vote and be nominated, the rights to education, healthcare
and an affordable living must be first guaranteed.
1.2.3 Perception of State’s obligations in promoting human rights
Human rights entail both rights and obligations. States assume obligations and duties
under international law to respect, to protect and to fulfil human rights. Perception of
State’s obligations in ensuring human rights constitutes an important part of human
rights perception.


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1.2.3.1 Content of State’s obligations in ensuring human rights
In general, State’s obligations in ensuring human rights include three particular
obligations:43
First, States assume the obligation to respect. This obligation requires States to refrain
from, either directly or indirectly, interfering with the enjoyment and exercising of
human rights by their people. It is considered a negative obligation as it does not require
the States to actively propose and implement initiatives, measures or programmes with
the purpose of assisting its citizens in enjoying human rights. This obligation is closely
concerned with civil and political rights.
Second, States have the obligation to protect. This obligation requires States to prevent
any violation of human rights by third parties. It is a positive obligation as States have
to take measures and propose mechanisms to prevent and address human rights
violations within its jurisdiction. This obligation is applied to all human rights, in
particular, the civil and political rights.
Third, States have the obligation to fulfil or facilitate. This obligation requires States to
have measures with purpose to help the citizens better enjoy human rights. It is also a
positive obligation as it requires States to have specific plans and programmes to ensure
that all citizens can enjoy their rights to the highest standards. This obligation is
particularly associated with the economic, social and cultural rights.
Regarding the States’ obligation, the general perception is that the implementation of
civil and political rights shall be immediate as it does not require much resources. On
the other hand, economic, social and cultural rights may be implemented by the way of
progressive realization, depending the available resources of each State.
Furthermore, in terms of States’ obligations in ensuring economic, social and cultural
rights as well as rights of vulnerable groups, there are also obligation to conduct and
obligation to result. For instance, in order to implement the rights inscribed in ICESCR,

obligation to conduct requires States to propose and carry out measures and
programmes such as banning forced labour, providing public healthcare or free
education to children… The obligation to result requires that the measures and
programmes of States must be possible and effective. Both obligations imply that, to

43

CECSR (2000), General Recommendation No. 14, in Compilation of General Comments and Recommendations
adopted by human rights treaty bodies, New York, para. 33.
14


gradually implementing economic, social and cultural rights, States are obligated to
make their best efforts within their resources.
1.2.3.2 Derogation of human rights in case of public emergency
In principle, State’s obligations in implementing human rights are continuous.
However, under international human rights law, Article 4 of ICCPR in particular, allows
that in case of public emergency, States may take measures derogating from their
obligations under the Covenant and restrict the exercise and enjoyment of human rights
by its citizens for a specific period.
The measures, by its nature, are the temporary suspension of implementing the civil and
political rights in a certain period. These measures are usually implemented by States
in public emergencies such as declaring martial law, banning demonstration and
assembly of large crowds, banning or restricting the activity of mass media
organizations, restricting movement and travelling abroad…
However, when applying Article 4 in public emergency, there are certain requirements
that States must strictly follow:
First, the measures are taken in the time of public emergency which threatens the life
of the nation and the existence of which is officially proclaimed and these measures are
taken as the last solution to remedy the situation. The UNHRC has issued Siracusa

principles to serve as an instrument to determine the reasonability of the declaration of
public emergency by States.
Second, the measures are not inconsistent with other States’ obligations under
international law and do not involve discrimination solely on the ground of race, colour,
sex, language, religion or social origin.
Third, the measures are not inconsistent with Articles 6, 7, 8 (paragraphs 1 and 2), 11,
15, 16 and 18 of ICCPR. In other words, States are not permitted to derogate the rights
in these Articles even in public emergency. These rights are also known as nonderogable rights.
Last, when taking these measures, States shall immediately inform other States Parties
to the Covenant through the intermediary of the Secretary - General of the UN, of the
provisions from which it has derogated and of the reasons by which it was actuated. A
further notice shall also be made on the date on which it terminates such derogation.

15


Concerning the reasonability of these measures taken in public emergency, the UNHRC
has issued the “Siracusa principles on the limitation and derogation provisions in the
International Covenant on Civil and Political Rights”44, which can be summarized as
the following:
First, the measures are taken with a strict necessity as a final solution and the
implementation of these measures is temporary and limited to period of public
emergency.
Second, the implementation of the measures does not affect the exercise and enjoyment
of other human rights, in particular the non-derogable rights. In certain circumstances,
other measures shall also to be taken to protect non-derogable rights.
Third, the measures are taken as strictly required by the exigencies of the situation
where ordinary measures permissible under the specific limitations clauses of the
Covenant would be inadequate to deal with the threat to the life of nation. Furthermore,
a threat to the life of the nation is one that affects the whole of the population and either

the whole or part of the territory of the State.
1.2.3.3 Limitation of certain human rights
Limitation of rights, which is provided in certain international human rights instrument,
permits the States to issue conditions on the exercise and enjoyment of certain human
rights. Similar to the derogation of rights as mentioned in section 1.2.3.2, certain human
rights cannot be limited. These rights are generally known as absolute rights.
The limitation of human rights in different international treaties is different. Some
treaties such as ICESCR have a separate Article to address this issue. Article 4 of
ICESCR, which is called general limitation clause, applies to the human rights within
the Covenant. In other human rights treaties, the limitation of rights are regulated within
specific Articles on certain rights.
Under Article 4 of ICESCR, State Parties may subject such rights only to such limitation
if the following conditions are satisfied.
First, the limitations are determined in national laws. This requirement prevents States
from arbitrarily subject human rights to limitations. Even though the limitations are
44

United Nations Human Right Committee (1984), Siracusa principles on the limitation and derogation
provisions in the International Covenant on Civil and Political Rights, available at https://www.icj.org/siracusaprinciples-on-the-limitation-and-derogation-provisions-in-the-international-covenant-on-civil-and-politicalrights/ last accessed dated 15 July 2017.
16


determined in national laws, they are not inconsistent with the provisions of the
Covenant.
Second, the limitations shall be compatible with the nature of related rights. This
requirement ensures that the limitation of rights does not have any negative impact on
a person’s capacity of enjoying these rights. As the nature of many economic, social
and cultural rights is abstract, it is difficult to assess that whether a limitation of rights
is compatible with the nature of such rights and hence, it shall be assessed on a caseby-case basis.
Third, the limitation or rights must be solely for the purpose of promoting the general

welfare in a democratic society. Regarding this requirement, in other treaties, the list of
purposes includes other factors such as national security, public safety, public health,
moral values or protecting the rights and freedoms of others…
Some rights in the ICCPR and ICESCR, which are subject to limitation by States,
include: right to establish, participate in labour union and right to strike; right to freedom
of movement and residence; right to a public trial; right to freedom of thought, religion
and belief; right to freedom of expression; right to freedom of assembly and
association…
1.2.4 Perception of specific human rights
Together with the perception of human rights characteristics and State’s obligations,
perception of the content and international standards of specific human rights
constitutes the most important aspect of human rights perception. The author designates
this section of the thesis to analyse the content and international standards of important
human rights under the international human rights law. Generally, human rights can be
categorised into five groups: civil rights, political rights, economic rights, social rights
and cultural rights. Recently, scholars have argued about adding the rights of vulnerable
groups into human rights categories.
These rights are prescibed in UDHR and nine core international human rights
instruments (ICCPR, ICESCR, CRC, CEDAW, CRPD, CAT, ICERD, ICSPCA,
ICRMW). This part focuses on the rights prescibed in ICCPR, ICESCR, CRC, CEDAW
and CRPD, which are international treaties either signed or ratified by Vietnam to this
point. The content of these rights are analysed based on the provisions of treaties as well
as General Comments adopted by Treaty Committees. The author shall use a coherent

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