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Theoretical and practical issues in building a national human rights agency in Vietnam

(LLCT) - The national human rights agency plays a crucial role in the institutional system of dealing with human rights issues. This article focuses on clarifying the need of building a national human rights agency and the United Nations’ policies on this issue, also proposes major directions in building a human rights institution in Vietnam today.

Vietnam was the second country in the world and the first country in Asia to ratify the United Nations Convention

on the Rights of the Child on February 20, 1990

Keyword: National human rights agency.

1. The necessity of building a national human rights agency and the policy of the United Nations

The emergence of the United Nations marks a turning point in the process of fighting for human rights. From being protected by individual countries, human rights are then officially protected on a global scale.

In its Charter of Establishment, the United Nations has formally pledged to protect human rights(1) in addition to the pursuit of protecting common peace and security globally. Human rights protection is inseparable from peace and is considered the most effective way to neutralize conflict, war, and protect global security. With that spirit, the international communities commit together “To create all necessary conditions to preserve justice and to respect obligations set forth by treaties and other international laws; to promote social progress and improve living conditions in broader freedom (...), to utilize international mechanisms to promote the economic and social progress of all peoples”(2). The Charter also defines the basic principles of the relations among nations such as conditions for the preservation of peace and the protection of human rights.

Three years later, the United Nations issued the Universal Declaration of Human Rights (1948), which was proclaimed as “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance…”(3).

On the basis of the Declaration, the United Nations has passed hundreds of human rights documents, including nearly forty legal documents binding on member states. Up to now, most member states of the United Nations have joined the international human rights system at different degrees(4). International human rights law not only serves as the basis for building and perfecting the law, but also becomes the reference system for all activities of the state and society in member countries.

Building international human rights standards is a great achievement of the United Nations. But the most important, practical thing is how to realize those moral aspirations, political commitments, and legal responsibilities.

The United Nations Charter and human rights instruments have created a political and legal basis for the establishment of national and international structures in human rights protection; at the same time, it is the responsibility of each nation to first define and protect human rights.

Over the past 75 years, the United Nations has devoted a great deal of effort in building, perfecting, and effectively operating global human rights mechanisms; actively support the improvement of human rights mechanisms in the regions; along with encouraging all national and international actors to participate in the protection and promotion of human rights.

The United Nations soon recognized the role of a national human rights mechanism in promoting and protecting human rights. In 1946, the United Nations Economic and Social Council (ECOSOC) asked member states to consider “the urgent need to establish information groups or local human rights committees in each country to coordinate the activities of these agencies with the activities of the United Nations Human Rights Commission”(5).

Human rights are referring to the relationship between the individual and the state. The state is the main actor in the defense and promotion of human rights, but also the main human rights violations. To limit human rights violations, every state must take appropriate measures such as building and perfecting laws to enhance the capability of state institutions in protecting citizens in society as well as all citizens under their jurisdiction.

The ways to protect human rights in each country are quite diverse, based on the specific political institutions of each country. In capitalist countries, human rights protection is primarily reflected in the division and restraint among branches of power (legislative, executive, judicial) and civil society’s participation in the protection of human rights. Meanwhile,in socialist countries, the protection of human rights belongs to state agencies (organized on the principle of democratic centralization, with the function of mutual control) and organizations of the political system.

Protecting human rights is the main responsibility of each nation - the subject of international law. The degree of enjoyment of human rights depends on many factors such as the level of social democracy, economic, social, cultural conditions of the country, the efforts of the government. However, like any other social entity, the state also makes mistakes. Therefore, the question is how to effectively limit the state’s intervention for individuals in the civil and political aspects?

In each country, whether power is divided according to the model of “separation of powers” or the model of “Unified state power with division, coordination, and control between state agencies in exercising the legislative, executive, and judicial powers”, it is still not enough to protect individuals against rights violations.

Hence, national human rights institutions are seen as a good complement to the aforementioned shortfall. These “agencies” could be the media, trade unions, non-governmental organizations, in other words, all the entities of society. Due to their own characteristics, the above subjects are everywhere in society, so they can easily detect violations of state organizations and individuals and can effectively support the victims to different degrees. The more society develops, the more diverse subjects participating in human rights activities, contributing to the strong development of society.

The reason why the United Nations to persevere its position on the need to build a national human rights institution is the fact that law is not sufficient to protect specific rights if the legal documents do not guarantee the legal nature and authority of agencies are unable to ensure the effective exercise of those rights. On the other hand, United Nations human rights mechanisms are limited in terms of both resources and the ability to act directly, especially in cases involving individuals(6).

Since 1990, the Human Rights Commission has strived to promote international cooperation and a consensus on the principles of the national human rights body incorporated with the Conclusions of the Paris Conference (October 1991). These conclusions were adopted by the Second World Human Rights Conference in Vienna in 1993, often referred to as the “Paris Principles”, creating the foundation and direction for the building national human rights institutions in all countries.

In this direction, the United Nations has already stipulated in conventions, for example, the Convention on the Rights of Persons with Disabilities (2006) emphasizes: “State members of this convention, based on the legal system of its administration and legislation, shall maintain, strengthen, designate or establish within a member country a framework comprising one or more appropriate independent mechanisms to promote, protect, and supervise the implementation of this convention. In designating or establishing such a mechanism, member states shall consider provisions relating to the role and functions of national bodies in the protection and promotion of human rights”(7).

In its General Comment No. 2 (2002), the Committee on the Rights of the Child “welcomes the establishment of independent national human rights institutions, children’s ombudsmen, children’s commissioners and similar independent bodies for the promotion and monitoring of the implementation of the Convention in a number of States parties”(8). Committees on Civil and Political rights; Committee on Economic, Social and Cultural rights; Committee on Elimination of Discrimination against Women, etc. also have similar recommendations.

Nearly 30 years have elapsed since the United Nations recommended the establishment of a National human rights agency, this process has made remarkable progress together with efforts to implement the major directions on the protection of human rights outlined in the Vienna Declaration and Program of Action (1993). Till now, more than 100 countries have established national human rights institutions, many other countries are in the process of preparing for the establishment, in which, many types of national human rights agencies coexist in some countries. This mechanism has increasingly proven its effectiveness in protecting and promoting human rights and shows that building a national human rights agency is becoming an inevitable trend in the protection of human rights.

2. Orientations on building a national human rights agency in Vietnam

After becoming a member of human rights conventions, Vietnam has fulfilled national obligations to protect human rights. Legislative, judicial activities as well as law enforcement and national action programs have been focused onto ensure better human rights in reality. Besides varied and flexible forms of human rights education, research activities are also has been paid attention to, aiming to improve the human rights protection mechanism.

In addition to State agencies, socio-political organizations, social organizations, educational and training institutions are also increasingly participating in the protection and promotion of human rights. Human rights protection and promotion activities in Vietnam also receive effective support from specialized agencies under the United Nations, other countries, and international NGOs. Thanks to that, for nearly 30 years, activities in this field haveachieved new “appearance” in many new ways and measures...

The results in human rights protection have promoted and positively contributed to the overall achievement of our country in the renovation era. Though, completing the human rights protection mechanism still needs more attention and regular implementation.

When reviewing human rights reports in Vietnam, the United Nations specialized agencies always recommend solution to this issue. With regard to the Third Report of the International Covenant on Civil and Political Rights, the Convention Committee recommends Vietnam to “Consider establishing an independent mechanism to monitor children rights”(9).

In the Second Universal Periodic Review (UPR), Vietnam accepted 6/12 recommendations on building a national human rights body, and by the third UPR, nine more countries recommended this subject(10). Among these countries, there are many from developing countries, which means that these countries have completed the construction of their national human rights institutions.

Vietnam is in the process of innovation and deeply integration into international activities, on a global and regional scale. Such context further puts Vietnam to construct and complete human rights protection mechanism, especially to find a model of a national human rights agency that is appropriate to historical and political practices, economy, and society of the country.

In addition to the above international proposals, both in theory and development practice of Vietnam, there is a great need of adding mechanism to maximum protection of human rights. The process of national renovation and development is raising many new human rights issues. Human rights are seen as the driving force of the country’s development, but the development of the country also raises problems for human rights issues (relationships among individuals, social groups, as well as between individuals, social groups, and the State).

In fact, an agency that specializes in one issue will become increasingly professional. On the other hand, when the agency organized in way that separated from the responsibilities of state management, it will have an objective, more comprehensive view of one or more human rights issues. By maintaining a certain distance from government agencies, such organization can play an important role in defending rights and contributing to a culture of human rights in each country.

Moreover, the process of deep regional and international integration as well as the internal development of the country arecreating the need to establish a national human rights institution. The 2013 Constitution has created a constitutional basis for the formation of this institution.

To institutionalize the principles of the 2013 Constitution in all activities, the Government made public and transparent human rights activities. The White Paper on Protecting and Promoting Human Rights in Vietnam outlines the priorities and commitments to “strengthen national institutions that protect human rights, including consideration to establish the National Human Rights Agency”(11).

In the Report on Acceptance and Denial of Recommendations for the Third UPR, Vietnam stated: “Regarding to recommendations on the national human rights body, Vietnam cannot accept recommendations or factors that predetermine outcomes or place unreasonable pressure on ongoing research and preparations for the establishment of a national human rights institution in Vietnam”.

In Decision No. 1975/QD-TTg, dated December 31, 2019, On the approval of the Master Plan to implement the accepted recommendations under the Mechanism of the UPR’s Human Rights 3 of the United Nations Human Rights Council, the Prime Minister assigned the Ministry of Public Security to preside over, in coordination with the Ministry of Justice and the Ministry of Foreign Affairs, to study the building of a national human rights agency in Vietnam.

These are the important political and legal basis for promoting human right activities. In fact, over the past years, Vietnam has constantly improved the State apparatus and promoted international cooperation to enrich knowledge of human rights protection.

To build a national human rights agency in Vietnam, it is necessary to affirm the following points:

First, the goal of establishing a national human rights agency is to better ensure human rights in Vietnam. Therefore, every search and study for the model, organization and operation of this agency must be oriented towards reality and feasibility.

The United Nations currently sponsors the work of the Global Alliance for National Human Rights Institutions (GANHRI), which uses the Paris Principles as a criterion for evaluating organizational and operational compatibility. However, this does not prevent us from building a national human rights institution that is consistent with Vietnam’s political, economic, social, and cultural realities, as an implication of national self-determination.

In the long run, the national human rights body needs to be compatible with a broad pattern shared by the international community; which means using the Paris Principles as a reference for the national human rights institution, although there might be a transitional phase taking place in the short term.

Second, the establishment of a national human rights agency is a supplement but not a replacement for existing mechanisms, organizations, and apparatus in the protection of human rights. Therefore, the establishment of a national human rights agency in Vietnam needs to be consistent with political, social, legal, and cultural practices in Vietnam; especially inheriting the current principles, organizational apparatus, and modes of operation.

Third, to build a national human rights agency associated with the process of building the law-governed State in Vietnam.

Continuing to strengthen the organization and operation of State agencies is one of the most important measures to ensure human rights. The 2013 Constitution has clarified the functions of State agencies on this task. Thus, the search and addition of new mechanisms only work when the powerful institutional themselves are aware of and constantly innovating their functions. On the contrary, if the State apparatus itself is not changing, the new mechanisms will also lose their effect and become meaningless no matter how many new mechanisms are added.

Therefore, the building and consolidation of human rights agencies must be associated with the renewal of State agencies themselves, associated with the building of the country today.

In practice, it is difficult for an organization to fulfill its responsibilities when being given many functions, while an organization specializing in one certain field will easily fulfill its assigned tasks. Accordingly, a national human rights agency, with certain powers and necessary conditions, will create a breakthrough in human rights protection in Vietnam.

Some requirements on the legal status of this agency or the overlap between this agency and state agencies can all be resolved with the process of perfecting the law in Vietnam.

It should also be noted that the Paris Principles are designed from the practice of capitalist countries, so the independence of this institution is absolutely appreciated and liberalized. In Vietnam, the operation of any organization must comply with the principle of democratic centralization. Therefore, the “independence” of the national human rights agency in Vietnam only has a relative meaning, that is, this agency has an independent point of view, but share the same direction towards the common goal of socialist rule of law in Vietnam.

Fourth, Vietnam is cooperating with other countries to pursue a new world order, in which compliance with international law is required for all countries. Therefore, compliance with the regulations and general trends of International Human Rights Law is an important step. As a result, Vietnam would be able to receive positive support from the international community in other important areas to best protect the national interests.

From the above orientations, an appropriate national human rights agency model is expected to receive the consensus of all classes in society, for a peaceful and developed Vietnam with increasingly human rights protection.

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l Endnotes:

(1), (2) Charter: “Declaring once more the belief in basic rights, human dignity and values, equal rights between men and women, equal rights between great and small nations” (Conventions on Human Rights, Human Rights Research Center, 2002, p.19).

(3) Human Rights Government Steering Committee Standing Office: Basic human rights conventions, Political - Administrative Publishing House, Hanoi, 2011, p.8.

(4) For instance, by July 2020, there are 173 countries are members of the International Covenant on Civil and Political Rights, 171 countries are members of the International Covenant on Economic, Social and Cultural rights; 170 countries are members of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 189 countries are members of the Convention on the Elimination of All Forms of Discrimination against Women; 196 countries and territories are members of the Convention on the Rights of the Child. See details at https://indicators.ohchr.org.

(5) The basic content of human rights (Fact Sheet No.19), Human Rights Research Center, 2002, p.426. Since 2006, the Human Rights Commission has been replaced by the United Nations Human Rights Council.

(6) op. cit, p.423-425.

(7) Basic Human Rights Conventions, op. cit, p.232.

(8) Human Rights Research Institute: General comments and recommendations of Human Rights Convention Committees of the United Nations, People’s Public Security Publishing House, Hanoi, 2008, p.600.

(9) In the Third Report of the International Covenant on Civil and Political RightsRights of Vietnam (August 28, 2019), the Human Rights Councilrecommended: “In acknowledging the existence of domestic government agencies with functions related to human rights, the Council remains concerned about the absence of an independent body that adheres to the principles and status of national bodies in promoting human rights protection (according to Paris Principles). The Council regrets the lack of actions and a certain timeframe for the establishment of such an agency (Article 2). Recalling the previous recommendation (CCPR/CO/75/VNM, paragraph 11), the Council urges the State party to promptly establish a national human rights agency to promote and protect human rights, in accordance with the Paris Principles”.

(10) Vietnam accepted: 4; Partially accepted: 1; Unaccepted: 4. Unaccepted recommendations are all regarding the request to establish this agency under the Paris Principles.

(11) Ministry of Foreign Affairs: Protecting and Promoting Human Rights in Vietnam, Hanoi, 2017, p.79.

Assoc. Prof., Dr. Dang Dzung Chi

Dr. Le Thi Thu Mai

Ho Chi Minh National Academy of Politics

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