Protection of the right to customary land tenure for ethnic minorities in vietnam reflection on the m’nong, ma and e de groups in dak nong province

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 do things that
are meaningful to society.
Ha Noi, June, 2019

Nguyen Ngoc Lan


TABLE OF CONTENTS
INTRODUCTION ................................................................................................. 1
CHAPTER 1
THEORETICAL AND LEGAL ISSUES ON PROTECTION OF THE
RIGHT TO THE CUSTOMARY LAND TENURE OF ETHNIC
MINORITIES IN VIETNAM ............................................................................ 8
1.1.The concept, the necessity, the meaning of protecting the right to customary
land tenure of Vietnam ethnic minorities .............................................................. 8
1.1.1. The concept of customary land tenure of ethnic minorities ........................ 8
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 2
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 3
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
1. 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

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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

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deeply intertwined with their customs, culture, and political practices; it is the
expression of their social wholeness. In their opinion, living, working and
nurturing the land with full control and tenurial security is key to living fully
and surviving as a people. Taking land from them implies losing their distinct
identity, a serious deprivation of their sense of what makes them unique.
Recognition by legislation of their struggle for land and life as an expression
of their self-determination to carve their own destinies is a basic prerequisite

for the fulfilment of their rights and cultural development [55].
Rights to use forest resources, land of communities has to recognized
by the state; traditional use rights had not been recognized. This limits the
ability of the community to manage and use resources. Although the Forestry
Law has established a community of forest owners, showing respect for the
living space and community customary practices, and prioritized the forest
allocation to local ethnic minorities. Meanwhile, in fact, among ethnic
minorities in Vietnam in general, and in Dak Nong Province in particular,
people have been managing and using customary land to produce a lot of
goods. Many National Assembly delegates think that it is necessary to expand
the right to use the allocated land and forest area to the community, especially,
laws need to recognize the traditional/customary forest land resources tenure
by the community.
It is important to clarify the definition of customary tenure, its influence
on forest management, and how policies impact on customary tenure. These
points need to be analyzed from a theoretical and practical perspective to
provide information and social critics to the Ethnic Council of the National

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Assembly for review and verification of policies on customary tenure of
ethnic communities in Vietnam.
Therefore, in the framework of the master‟s thesis in the Law of Human
Rights, the writer decided to choose topic “Protection of the rights to
customary land tenure for ethnic minorities in Vietnam: Reflection on the
M’nong, Ma and Ede groups in Dak Nong province”.
2. Research Situation
In recent years, in our country, there have been many projects and
research works on land tenure which have been carried out by experts under

different angles and in different areas, such as: Research topic “Study on
customary use rights of ethnic communities to forest and forest land in
Vietnam” (CIRD 2018); Thematic study of Mekong Region Land
Governance, 2017 “The Recognition of Customary Tenure in Vietnam”, The
Rural Development and Natural Resources East Asia and Pacific Region –
EASRD, May, 2014 “Vietnam‟s Customary Land Tenure”; Andrew WellsDang, Pham Quang Tu and Adam Burke, May 2015 with “Agrarian Change
and Land Tenure in Vietnam through a Political Economy Lens” (presented in
the International Academic Conference, Chiang Mai University)…and also
have many research and peoject works on customary law and ethnic
minorities, such as: Research on customary law of Vietnam ethnic minorities
and forest land policies Dr Lương Thị Thu Hằng, Dr Phan Triều Giang, Dr
Trương Quang Hoàng (August 2015); Report on legal analysis as a basis for
assessing the impact of Laws, policies and institutional framework for ethnic
minorities and local communities in the conservation and development of
natural resources, VUSTA (2018), …

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These studies have provided great knowledge and information about the
position and role of law in the state management of land in Vietnam in
general, as well as preliminary references to the land tenure, but until now,
there has not been any work or study specifically on customary land tenure of
ethnic minorities subject to the regulation of Forestry Law 2017 and Land
Law 2013. Therefore, this is a new work of systematic research and in-depth
practice of customary land tenure of M‟Nong, Ma and E-de at Dak Nông
Province in accordance with relevant laws to propose orientation and
solutions to ensure the rights of ethnic minorities in general and customary
land tenure in particular.
3. The Purpose and Mission of the Study

3.1. The Purpose
This thesis performs the research and analysis of basic theoretical issues
of the customary land tenure, legal situation of this right under international
laws, laws of some countries and Vietnamese laws. Based on such theories
and practices, the thesis proposes solutions and recommendations to ensure
human rights in general and customary land tenure in particular in the coming
time through the amendment of the Land Law 2013 provisions and
implementing the Forestry Law 2017.
3.2. Mission
In order to achieve the above objectives, the thesis must cover the
following tasks:
- Analyzing and clarifying theoretical issues about customary land
tenure.

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- Analysis of the legal situation of customary land tenure of M‟Nong,
Ma and E-de in Dak-Nong Province.
- Propose the orientations, solutions and recommendations to guarantee
implementation of customary land tenure of ethnic minorities in the future.
4. Subject and Scope of the Study
Study on customary land tenure of Vietnamese ethnic minorities
according to the current laws, including the Land Law 2013, the Forestry Law
2017, and the regulatory documents on land tenure in Ma, M‟Nong and Ede
minorities in Dak Nong.
Provide an overview of the empirical experience of protecting
customary land tenure of M‟Nong, Ma and Ede minorities in Dak Nong
Province and propose the recommendations to protect the right to customary
land tenure of ethnic minorities through the amendment Land Law 2013 and

the implementation of the Forestry Law 2017.
5. Methodology and research methods
The thesis applies an methodology in combination with method of
analyzing, synthesizing, interview, case study analyzing, comparing
documents and ensuring the chronological logic, which attaches the
importance to the summarization of practices and policies/laws on customary
land tenure, and at the same time, inherits the results of the works of the
earlier authors to clarify the objectives and tasks of the thesis.
6. Scientific and practical significance of the thesis
The first step is to clarify the current situation and some urgent issues in
the implementation of protecting the right to customary land tenure for ethnic
minorities under Vietnamese Laws.

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Secondly, it attempts to find some suitable and feasible orientations and
solutions to contribute to protecting the right to customary land tenure in a
more effective way.
The result of this study will provide scientific arguments on the right to
customary land tenure for ethnic minorities to contribute to protecting this
right of ethnic minorities in accordance with the laws.
7. Thesis structure
In addition to the Introduction, Conclusion and List of References, the
main content of this thesis consists of three chapters:
Chapter 1: Theoretical and legal issues on protection of the customary
land tenure of ethnic minorities in Vietnam.
Chapter 2: Current situation of protecting the right to customary land
tenure of M‟Nong, Ma and Ede ethnic minorities in Dak Nong Province.
Chapter 3: Approaches and solutions to protect the right to customary

land tenure of M‟Nong, Ma and Ede ethnic minorities in Dak Nong Province.

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CHAPTER 1
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
Customary tenure systems exist in many countries with significant rural
populations where access to, control and use of land are determined through
long-standing principles defined as "customary law" that operate outside the
formal, or state, legal system. Customary systems are associated with
traditional land administration institutions and customary law that define how
rights are ruled, allocated, and preserved.
Customary law (or customary rules) is a system of unwritten rules and
regulations that are formed and exist in the social development process. The
content of customary law covers the fields of social life, such as: Regulations
on protection of natural resources, social management, community relations,
customs, rituals, beliefs, rights and the responsibilities of society members.
The customary law is accepted by all ethnic minorities, voluntarily complied
with the principles of democracy, publicness and transparency. It is an
important role in community governance, social security, family relations,
male – female relationship, beliefs, rights and responsibilities of commune
members. Those who violate the customary law principle are deemed to hurt
the social relations. They will be condemned, brought to trial and suffer
penalties according to the customary law [38]. Customary law stems from and

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is sustained by the living community of today. Thus, it can be clearly seen that
customary law pay attention first to the harmony of the whole community,
including equality among individuals; it is formed by the gradual construction
of the whole community, since long time ago, popularized mainly by words of
mouth and recorded by memories. Customary law has been applied at the
local level, and penalties are often flexible and dynamic, depending on the
circumstances of the individual and society [50, page 15].
Besides, according to the definition of the United Nations‟ Food and
Agriculture (FAO), customary tenure is a set of rules and norms that govern
community allocation, use, access, and transfer of land and other natural
resources. The term “customary tenure” invokes the idea of “traditional”
rights to land and other natural resources: “the tenure usually associated with
indigenous communities and administered in accordance with their customs,
as opposed to statutory tenure usually introduced during the colonial period”
(FAO 2002).
Customary rules covering a larger region of “Quy tac” (Regulations)
and more specific sets of rules applying to a village or commune “Huong uoc”
(village/commune rules) have been documented for large numbers of ethnic
groups in Vietnam. There has been less focus, however, on documenting case
studies and stories which give a better picture of the dynamism and diversity
of local communities, as opposed to the more static representation of
customary law as a collection of rules. There are some similarities in
customary tenure systems, particularly in upland areas. These include: [75]

9

- Communities‟ sense of ownership come from claims established
by ancestors, often remembered as spirits that continue to oversee
and protect the community.
- Forest and other areas are imbued with spirits. This creates a
collective responsibility for their welfare and a management
approach which is perhaps more conservative and precautionary
than economically oriented scientific regimes. This perspective also
highlights the inter-linkages between land, forest and water, which
are customarily recognized and respected.
- With varying arrangements, villages traditionally own or have
collective rights to residential land, cemetery areas, lowland rice
fields, shifting cultivation land (including fallow areas), grazing
areas, forest land (including sacred areas, areas for watershed
protection), fisheries, etc. Strong rules prevent one village
encroaching on the land of another.
- Communities are led by a village head (generally a man) and
elders with authority over the management and use of land,
including allocation of rice paddies and upland agricultural fields to
families and/ or groups. Land guardians also supervise religious
matters related to land.
- Customary law is flexibly adjusted to specific village situations.
Community members accept and observe this law voluntarily and
generally support their elders and clan leaders in developing rules
and in resolving land and other conflicts.

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- Individuals can use and inherit land but are generally not allowed

to sell it without the consent of the community. The community may
exchange, lease or sell land to other communities. Sacred areas,
cemetery forests, and watershed protection forests are usually
inalienable.
- All community members have equal access to land and resources.
Private rights apply to land such as rice paddies and in -use shifting
cultivation fields. Internal, generally participatory, decision making
determines benefit sharing arrangements and who may use land for
what purpose.
- Outsiders are generally excluded but may ask permission to use
forest or land resources.
The gap between government policies and traditional concepts of tenure
and use rights has been one of the major causes of conflict in upland regions
in the recent past (IUCN, 2008). Customs, such as the worship of nature
spirits, are often seen by officials as superstitious and an obstacle rather than a
tool for achieving forest management policy goals (IUCN, 2008).
Land tenure is the relationship, whether legally or customarily defined,
among people, as individuals or groups, with respect to land. (For
convenience, “land” is used here to include other natural resources such as
water and trees.) land tenure is an institution, i.e., rules invented by societies
to regulate behavior. Rules of tenure define how property rights to land are to
be allocated within societies. They define how access is granted to rights to
use, control, and transfer land, as well as associated responsibilities and

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restraints. In simple terms, land tenure systems determine who can use what
resources for how long, and under what conditions.
Land tenure is an important part of social, political and economic

structures. It is multi-dimensional, bringing into play social, technical,
economic, institutional, legal and political aspects that are often ignored but
must be considered. Land tenure relationships may be well-defined and
enforceable in a formal court of law or through customary structures in a
community. Alternatively, they may be relatively poorly defined with
ambiguities open to exploitation. Land tenure thus constitutes a web of
interesting interests, include [63]:
- Overriding interests: when a sovereign power (e.g., a nation or
community has the powers to allocate or reallocate land through
expropriation, etc.)
- Overlapping interests: when several parties are allocated different
rights to the same parcel of land (e.g., one party may have lease
rights, another may have a right of way, etc.)
- Complementary interests: when different parties share the same
interest in the same parcel of land (e.g., when members of a
community share common rights to grazing land, etc.)
- Competing interests: when different parties contest the same
interests in the same parcel (e.g., when two parties independently
claim rights to exclusive use of a parcel of agricultural land. Land
disputes arise from competing claims.)
Vietnam only uses the term “use right” to land and natural resources,
which is not the same meaning as tenure. In the Cambridge Dictionary, tenure

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is “Being the legal owner of land” [76]. Land use rights in Vietnam is detailed
in the Land Law 2013, as below: [24, art 166]
- To be granted the certificate of land use rights, houses and
another land-related asset ownership

- To enjoy the results of the labor and investment on land
- To enjoy the benefits derived from facilities constructed by the
State for protecting and improving agricultural land
- To receive the State‟s guidance and assistance in the
improvement and fertilization of agricultural land
- To be protected by the State against others‟ infringements of their
lawful rights and benefits related to land.
- To receive compensation when land is recovered by the State in
accordance with this law.
- To complain about, denounce or file lawsuits over violations of
their lawful land use rights and other violations of the Land Law.
If seeing in light of this regulation, it seems people have full rights and
power with their land, but if we see in the article 4 of Land Law 2013, “land is
belonging to entire people with the State acting as the owner’s representative
and uniformly managing land. The State shall grant land use rights to land
users in accordance with this law”. In Vietnam, land and forests are owned by
the state, not by private units or individuals. Therefore, when “tenure” is
interpreted in Vietnam, it is understood not to include private ownership of
land and forest.
Vietnamese law does not include the term “tenure”, “tenure rights” or
“customary tenure”. For this study, and to adapt to the situation in Vietnam,

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customary tenure or tenure rights refer to a collection of rights (but without
the private ownership right to land and forest), how they are allocated to
community in terms of who has rights to different land and forests, and the
terms and conditions for exercising each right.
It is difficult to advocate for customary tenure rights in Vietnamese

land and forest policies in the current context. However, based on the above
definition of customary tenure and land-forest use rights in the law, we can
understand that the recognition of customary tenure means the recognition of
the customary land-forest use rights of local and ethnic communities.
1.1.2. The concept of protection of the right to customary land tenure
of ethnic minorities
Human rights are global legal guarantees that protect individuals and
groups against actions or negligence that harm the human dignity and basic
freedom.
Land is a cross-cutting issue that impacts directly on the enjoyment of a
number of human rights. For many people, land is a source of livelihood, and
is central to economic rights. Land is also often linked to peoples‟ identities,
and so is tied to social and cultural rights [70], and is not simply a resource for
one human right in the international legal framework. And yet, while rights
have been established in the international legal framework that relate to land
access for particular groups (e.g. indigenous people and, to a more limited
extent, women), numerous rights are affected by access to land (e.g., housing,
food, water, work), and general principles in international law provide
protections that relate to access to land (e.g., equality and nondiscrimination
in ownership and inheritance), an explicit consideration of the legal

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implications of access to land for a broad range of human rights is necessary
[78, page1].
The customary land tenure is a branch in the right to land access. The
condition of landlessness threatens the enjoyment of a number of fundamental
human rights. Access to land is important for development and poverty
reduction, but also often necessary for access to numerous economic, social

and cultural rights, and as a gateway for many civil and political rights.
However, there is no right to land codified in international human rights law
[78, page 2]. However, numerous economic, social and cultural rights in the
UDHR and ICESCR are intimately connected to access to land, including the
rights to housing, food, health and work [72, Art 23, 25].
Land tenure, in the form of formal legal, customary or religious rights,
can provide more clearly fundamental rights, including to food, housing,
water and health. Right to housing is related closely to land access, have been
defined in numerous international documents, but access to land remains
imprecise. Land access is frequently tied to the spiritual, cultural and social
identities of people. As such, land rights have been more fully developed in
the sphere of indigenous rights [66].
In Vietnam, the term “Indigenous people” began to be used from the
period when the country was colonized by French colonialists (1884-1945).
At that time, France used the word “indigenous people” to collectively refer to
the communities living in Vietnam, regardless of King or other ethnic
minorities. After 1945, the Vietnamese people owned the country, the concept
“Indigenous people” was no longer used [49]. The Vietnamese State
implements a policy of equal development, preservation and promotion of

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ethnic traditions. This is recognized in the Vietnamese Constitution 2013,
instead of the concept “indigenous people” and “Indigenous people‟s rights”
as a concept of civil rights – the right of all Vietnamese people, irrespective of
whether they are ethnic minorities or majority [2, Art. 5]. It recognized 54
officially ethnic groups, of which the Kinh majority accounts for 87 percent of
the population [62, page 3]. The United Nations (UN) has noted that the
difficulty in arriving at a common definition of ethnic minorities because of

the diversity of situations in which minorities live and the history of different
groups. In 1992, the UN adopted the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities. The
United Nations Minorities Declaration defines minorities based on national or
ethnic, cultural, religious and linguistic identity, and provides that States
should protect their existence. In 2007, the United Nations Declaration on the
rights of indigenous peoples was adopted by the General Assembly, which
recognizes the need to respect and promote the rights of indigenous people,
especially their rights to their lands, territories and resources. In 2007, the
United Nations Declaration on the Rights of indigenous peoples was adopted
by the General Assembly. The Declaration recognizes the need to respect and
promote the rights of indigenous peoples, especially their rights to their lands,
territories, and resources.
On 14 January 2011, the Decree No. 05/2011/ND-CP was adopted by
the Government on ethnic minorities affairs. The decree indicates ethnic
minorities are ethnics with a population smaller than that of the ethnic
majority group within the territory of the whole country [19, Art. 14]. The
area of ethnic minorities is where many ethnic minorities live in harmony as a

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community in the Vietnamese territory. During the formation and
development of the country, migration over thousands of years led to the
fragmented habitats of ethnic groups interspersed in valleys and mountains.
Most of them reside in rural, mountainous areas such as the Central Highlands
and the Northern Mountains, in particular. Vietnam has 53 ethnic minorities,
with 13,4 million people, accounting for 14,6% of the country‟s population;
living in communities in 51 provinces, cities, 548 districts. Ethnic minorities
reside mainly in the Central Highlands, Northwest, Southwest and Central

Coastal regions, accounting for ¾ of the total area of the country [30]. While
these communities only constitute 14,6% of total population in Vietnam,
customary tenure issues affect a large number of people due to the country‟s
overall population.
With thousands of years of social – economic development, ethnic
minorities demonstrates the harmony, trust, relationships and mutual support
and cooperation in work, spirituality, culture and marriage through their social
structure and systems of customary tenure. They have been fairly selfsufficient through collective land and forest use which has ensured both daily
consumption and spiritual needs. With differing types of organization, villages
traditionally possess or have collective rights to an array of land used for
various purposes, such as residential land, burial grounds, lowland rice fields,
shifting cultivation land (including fallow areas), grazing areas, forest land
(including sacred areas), and areas for watershed protection and forest
collection. Certain forests and other areas are recognized as being inhabited
by spirits [62, page 3].

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