overview of land rights in vietnam

8/14/2019 Overview of Land Rights in Vietnam

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Mr. Le Trong Hai


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Changes in legal framework from 1980 to present focus on changes in land use rights - emphasise 5 landuse rights (1993)

Changes in land holders from state to private, SOEs,households Cooperative, community

Market liberalization, investment and migrationaccelerate transfer of land among different land holders

(coffee, shrimp) (between rich and poor, kinh and ethnicminority)


3/19

Some ethnic minorities (Thai, Tay, Nung, Ede, Hmong,etc.) has customary land laws examples aboutspiritural forests, water sources, etc.

Customary land laws and community land ownershiphas not been recognized properly by state lawRecently, some efforts have been made to integratecustomary laws into state laws: hamlet regulation(huong uoc), land laws and forest protection anddevelopment law recognize community ownership over land and forest (civil code does not recognizecommunity as a legal entity)


4/19

The Hmong s customary law. In this custom, they give moreand remind conventions of forest protection, they re-defineways of punishment if somebody breaks it. Someone does notrespect this custom, they will punished as same as the cattledestroys crop, forbidding strickly someone burns off land for

cultivation. If someone penetrates free into a forest to cut treedown, he will punished one pig or from 50.000VND to100.000VND.The Thais customary law: If somebody wants to burn off landfor cultivation, he must allowed by the hamlet head; If hemakes themselves, he will punished from one to three a bar of silver, wine, and meat. Every year, in the end of lunar Maypeople are allowed to penetrate into a forest to get bambooshoot, but they only get the first and forth broods. If someonebreaks, he will punished a bar of silver, wine, and meat. Atimber or cinnamon tree in the forest is small or big, if in thebody of tree is marked by(+) or (x), it means this tree belongsto someone, nobody is allowed to cut that tree down.


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The Tays customary law: forbid to fire the forest , someonesteals forest tree of other one, he will punished threefold of the loss.

The Nungs customary law (Ha Giang): households are notallowed to cut the forest tree down, to burn off land in theriverhead areas. Not to pick bamboo shoot up or let buffaloeat the other ones bamboo shoot. If somebody breaks, hewill punished by five kg of paddy and one bamboo shoot.

The Kho Mus customary law: someone cuts tree down in theforbidden forest, he will punished by money or seized toconfiscate, If someone breaks into G ostforest [1], he willpunished by chicken, wine, rice, first is to worship following isfor people eating and to remind that not break again.


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The E Des customary law (Tay Nguyen) defines behaviors of theforest destruction and burning . 80 th clause of E Des customarylaw defines: Men usually burn uncontrolled, women usually burnunseemly , someone burns as a crazy man or stupid man. Cay le

is budding, they cut top of tree down, cay lo o is budding, they cut young shoot down. If they are arrested, they will brought to arich house of tribe head, they will tied their hands and feet at once So that there are a serious problem, they need to be

judged. 231 th clause of E Des customary law defines: Land,

river, stream, and forest tree are basket, large basket, and back of our grandparents who are people to keep a cave, to care theforest, Ktong and Kdjar trees , someone encroaches the forestand the forest land of the other one, he will judged.


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For village regulation, Intercircular No 03/2000/TTLT/BTP -BVHTT-UBT UMTTQVN dated March 31 st ,2000 , of Interministry of Justice- Culture and Information-Vietnamese Fatherland Front Central Committee on

issuing and implementing the regulations of village,hamlet, small village, population groups, etc.. : theregulation is a social normative act that defines commonbehavior regulations and they are issued and aggreed byall people to adjust the social relations that areselfmanagement of people in order to preserve and bringinto play good manners and customs and tradditionalculture in the village, hamlet, small village, populationgroups so it gives a positive contribution to the statemanagement by the law .


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Article 29.- Assignment of forests to village populationcommunities

a/ The village population communities have the same

customs, practices and traditions of close communityassociation with forests in their production, life, cultureand belief; are capable of managing forests; havedemand and file applications for forest assignment;

b/ The assignment of forests to village populationcommunities must be in line with the approved forestprotection and development plannings and plans; andmatch the capacity of the local forest funds.


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Forest land areamanaged bycommunities

Protection and Special use forests Production forests

Total Naturalforest

Plantationforest

Bare land Total Naturalforest

Plantationforest

Bare land

In total:2.792.946,3

1,968,500.4 1,404,829.4 40,953.7 522,710.0 824,445.9 426,802.9 43,583.2 354,059.8

1.643.254,1 ha

allocated

1,164,515.0 803,191.6 18,546.6 342,776.8 478,739.1 134,735.5 30,566.5 313,437.1

247.029,5 ha

Not yet

allocated

146,338.7 107,093.0 5,786.3 33,459.4 100,690.8 55,142.1 7,373.8 38,174.9

902.662,7 hafor contracting

657,646.7 494,544.8 16,620.8 146,473.8 245,016.0 236,925.3 5,642.9 2,447.8

Source: Forest Department Synthesized from reports prepared by 37 provinces, cities in March 2008


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Region Forest land area managedby communities in differentregions and the percentage

compared to the figuresnation wide

Forest land area managed by communities categorized according to origin, and percentagecompared to the entire region

Allocated Not yet allocated Contracting

Nation wide 2,792,946.3 100 1,643,254.1 100 247,029.5 100 902,662.7 100

North West 1,893,300.9 67.8 1,263,675.6 66.7 45,248.4 2.4 584,376.9 30.9

North East 760,131.1 27.2 319,859.9 42.0 181,932.9 24.0 258,338.3 34.0

North Central 58,541.7 2.1 40,489.1 69.2 18,052.6 30.8 0 0

South Central 5,737.3 0.2 0 0 1,124.4 19.6 4,612.9 80.4

South West 62,422.3 2.2 19,229.6 30.8 671.2 1.1 42,521.5 68.1

North East 0 0 0 0 0 0 0 0

Mekong riverdelta

12,813.1 0.5 0 0 0 0 12,813.1 0

Source: Forest Department Synthesized from reports prepared by 37 provinces, cities in March 2008


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Changes in state law, marketliberalization and late recognition of

customary law have resulted in someconsequences


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Landlessness, forest loss and land conflicts(Central highlands, Mekong Delta, landmortgage in Soc Trang/Ca Mau)Changes in farming techniques (shiftingcultivation to resettled) and land-use (foodcrop to industrial crops (coffee, rubber)

This leads to: increasing income gaps higher risks, less opportunity for the poorand EM


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Before 1975

2009


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Community and customary lawNatural resouces: forest landObsession

Hamlet: Losing land ownership,, living space/narrowedculture, component of changed population, institution of traditional selfmanagement is winded up, customary lawis denied.


15/19

Three fulcrums of Traditional culture subject

Obsession

VillageCom-mu-nity

Nature

- Nature- God/Ghost

- Death - Being abandoned- Morality

Culturesubject

- Ethnic group

- Blood relationship- Ownership- Customs- Sublimation- Belief - Hand down

------------ Rule- Auto-control

institution

- Land

- Forest- Floral- Fauna- Water- Annual

cycleof climate,weather

Human:- Skill- Lifestyle

-Behaviorthreshold

Time

Alien impact isselected, recreated

and made village-like by the culturesubject. At thesame time, ethnicvillage culture alsoscatters, spreadand affect other

ethnic groups.


16/19Culturesubject ofethnicminorities

Underimpactofdevelopmentpolicies

VillageCom-

munity

Nature

Policies:- Land- State Management- Labour re-arrangement- New culture

- Development- Public servicesMarketIndus. Modern.-Global.CommunicationImmigrants

New knowledgeMultidisciplinary skillMultilateral relationsDiversified lifestyleNew consumption cultureiDenied or deformedobsession

Obsession

SocietyMarket


17/19

National assembly: law makingMONRE and MARD: executiveCEMA: ethnic minorities focusesVietnamese Fatherland Front: solidarity andunity promotion


18/19

Customary law has been undermined anderodedCivil code has not recognized community as a

legal entityCustomary law has been recognized fully bystate law there are deviationEthnicity and sovereignty are sensitive issues inVietnamUnbalanced power relation between EM andother actors


19/19

State commit to support ethnic minority: 135program, 30a resolution, 134 program on land,tam nong

Land law revision (i) Recognition for specificityof region/ethnicity in land law revision (ii)Consultation process to input this law revision(MONRE, MARD, IPSARD, iSEE)State Forest Enterprises reformsPrivate Public Partnership (forestation, cacao,rubber)

overview of land rights in vietnam

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