ENSURE AND PROMOTE CHILDREN'S RIGHTS IN VIETNAM UNDER A LEGAL PERSPECTIVE

ABSTRACT

Ensuring and promoting children's rights is one of the deep concerns in modern international human rights law. International standards require member countries to further promote and ensure children's rights in aspects such as living, learning, culture... Vietnam is the second country in the world and the first country in Asia to ratify the United Nations Convention on the Rights of the Child. Since then, many legal documents have been issued to transpose the above international standards into domestic laws. This has shown the Vietnamese government's efforts and concern for children's rights. However, reality shows that the children’s rights abuse remains a concerning issue with thousands of child abuse cases each year. This article aims to analyze the current situation and improve legal regulations in ensuring and promoting children's rights in Vietnam.

АННОТАЦИЯ

Обеспечение и продвижение прав детей является одной из глубоких проблем современного международного права в области прав человека. Международные стандарты требуют от стран-членов дальнейшего продвижения и обеспечения прав детей в таких аспектах, как жизнь, обучение, культура... Вьетнам является второй страной в мире и первой страной в Азии, ратифицировавшей Конвенцию Организации Объединенных Наций о правах ребенка. С тех пор было выпущено множество юридических документов, трансформирующих вышеуказанные международные стандарты во внутреннее законодательство. Это продемонстрировало усилия вьетнамского правительства и его заботу о правах детей. Однако реальность показывает, что нарушение прав детей остается серьезной проблемой: ежегодно регистрируются тысячи случаев жестокого обращения с детьми. Целью данной статьи является анализ текущей ситуации и совершенствование правового регулирования в сфере обеспечения и продвижения прав детей во Вьетнаме.

Keywords: ensuring, promoting, children's rights, Vietnam.

Ключевые слова: обеспечение, продвижение, права детей, Вьетнам.

Children are a subject of special concern in international law. The Geneva Declaration of the Rights of the Child in 1959 pointed out that this is a "physically and mentally immature creature" that needs special protection and care. It can be seen that, as children are a "vulnerable" group of people, children's rights is of relatively long-term concern.

The 1989 UN Convention on the Rights of the Child is the first legal document that addresses the assurance and protection of children's rights in the most progressive, equal and comprehensive manner. For the Convention to take effect, member states must take all appropriate measures to protect children from all forms of physical and mental violence, abuse and neglect...

In addition, ensuring children's rights is also recognized in international human rights law: Universal Declaration of Human Rights 1948; International Covenant on Civil and Political Rights 1966, International Covenant on Economic, Social and Cultural Rights 1966,  and Convention on the Elimination of All Forms of Discrimination Against Women in 1979.  Vietnam is a member to all of these conventions, meaning that the Vietnamese Government is committed to respecting, protecting and implementing children's rights, regardless of gender, religion or ethnicity...

In the above documents, regarding the issue of children's rights, there are four basic principles: non-discrimination in ensuring the implementation of all children's rights; the interests of children must be the primary concern in all activities; every child has the right to survive and develop; children have the right to express their own opinions, and that right must be respected.

These four principles are closely related to each other and are a prerequisite for realizing children's rights, and are also the foundation for member states to incorporate into national law. When a State recognizes children's rights, it also means that that State must impose certain obligations to best emplement those rights. Typically, those obligations are those of respect (not to interfere rudely with the enjoyment of rights); protect (prevent violations of rights from the society); implement (have measures to support the enjoyment of rights).

Protecting, taking care of and educating children is a good tradition of the Vietnamese nation and a task of special importance in Vietnam's human resources development strategy, because children are the happiness of the family and the future of the country. This has been clearly stipulated in the documents of the Communist Party of Vietnam as well as in the 1946 Constitution - the first Constitution of the Democratic Republic of Vietnam, the 1959 Constitution, the 1981 Constitution, the 1992 Constitution and the current 2013 Constitution. Based on the Constitutions, the State has issued many relevant laws regulating and enforcing specific rights of children such as the Law on Universalization of Primary Education in 1991, the Law on Protection, Care and Education of Children Act 1991 (amended and supplemented in 2004) which is considered a fairly comprehensive law, including 5 chapters and 60 articles regulating the basic rights and duties of children; responsibilities of the family, the State and the society in protecting, taking care of and educating children.

In the 2013 Constitution, in addition to general provisions on human rights and civil rights, there are specific provisions on the protection of children's rights. According to Article 37 of the 2013 Constitution [6], children are protected, cared for and educated by the State, family and society, and are entitled to participate in children's issues. Harassment, torture, maltreatment, neglect, abuse, labor exploitation and other acts that violate children's rights are strictly prohibited. On that basis, in 2016, the 13th National Assembly passed the Children's Law to supplement new provisions and regulations to resolve practical problems in implementing children's rights; ensure the synchronization and unity of the legal system; ensure the compatibility with socio-economic conditions; learn from the legislative experience of other countries in developing and perfecting laws on ensuring children's rights.

Along with that, a series of legal documents have regulations related to children's rights such as Decree No. 80/2017/ND-CP dated July 17, 2017 of the Government on safe, healthy and friendly educational environment, domestic violence prevention; Penal Code 2015 (amended and supplemented in 2017);  Law on Handling Administrative Violations 2012 (amended and supplemented in 2020); Law on Marriage and Family 2015; Law on Prevention and Control of Domestic Violence 2007; Gender Equality Law 2007... The fact that the law has complete and clear regulations on this activity has contributed to creating a "safe space" for children, helping them have a comfortable and stable mentality and actively participate in activities.

All of the above shows Vietnam's interest and efforts in ensuring and promoting children's rights from the legal aspect, creating conditions for ensuring the enforcement of children's rights in practice. However, in reality, child rights abuse is still a grave concern with thousands of violations each year. From a legal perspective, the issue of ensuring and promoting children's rights still has certain gaps, such as:

First, the 2015 Penal Code (amended and supplemented in 2017) does not regulate sexual harassment but only regulates sexual abuse. During the trial of sexual abuse cases, it is difficult to determine acts of lewdness and sexual abuse. In addition, the Penal Code has not yet defined a number of very dangerous acts as crimes such as possession of child pornography and sexual abuse related to homosexuals, leading to an increasing number of cases involving homosexuals.

Second, in administrative law, the level of penalties for administrative violations of "domestic violence prevention and control" is currently too light, not deterrent enough, and not commensurate with the nature and level of danger of behavior.

Third, the criminal procedure law does not contain specific regulations on investigation, prosecution, and trial of cases of child violence and child abuse; not pay enough attention to the vulnerable characteristics of children; not contain detailed regulations on information security and privacy for children in proceedings; not contain regulations on the authority and procedures for separating children from their parents and caregivers in cases where these people commit acts of sexual abuse against children.

Fourth, the implementation of the Children's Law is still fragmented, too many agencies and organizations are responsible but the law does not stipulate a coordination mechanism, so implementation is ineffective and not strict.

Fifth, currently, we still lack standards, regulations and procedures for the child protection system, from prevention, early detection, reporting, intervention to physical and psychological recovery treatment activities, helping children reintegrate into the community, or specialized services and long-term monitoring and support for children; or national database on children and implementation of children's rights.

To ensure and promote children's rights in Vietnam, in the coming time, from a legal perspective, it is necessary to focus on the following contents:

First, there needs to be specific and strict punishments for criminals. The current criminal law is heavily focused on formal education without practical measures, thus invisibly condoning and even abetting criminals.

Second, administrative law needs to add additional regulations to enhance the ability to prevent and stop the risks of child abuse and violence, and increase penalties for acts of child abuse, especially child sexual abuse.

Third, criminal procedure law should pay more attention to children participating in the case resolution process in any capacity; there should be specific regulations on procedures for investigation, prosecution and trial of cases of child violence and child abuse; there should be detailed regulations on information security and privacy for children in legal proceedings.

Fourth, it is necessary to regulate the coordination mechanism between agencies in the state apparatus, between agencies and relevant organizations such as Central Committee of the Ho Chi Minh Communist Youth Union and the Vietnam Women's Union... in ensuring and promoting children's rights.

Fifth, it is proposed to develop a set of standards, regulations and procedures for the child protection system, national database on children and implementation of children's rights; code of conduct on social networks for service providers and social network users in Vietnam to have a healthy and safe online environment in Vietnam for everyone, especially children – a special civil group./.

References:

1. Convention on the Elimination of All Forms of Discrimination Against Women 1979. Article 1, 10, 11, // URL: https://www.un.org/ru/documents/decl_conv/conventions/cedaw.shtml  (date of application 22.02.2024)
2. International Covenant on Economic, Social and Cultural Rights Article 10, 1966 // URL: https://www.un.org/ru/documents/decl_conv/conventions/pactecon.shtml  (date of application 22.02.2024)
3. International Covenant on Civil and Political Rights Article 23, 24 1966 // URL: https://www.un.org/ru/documents/decl_conv/conventions/pactpol.shtml  (date of application 22.02.2024)
4. UN Convention on the Rights of the Child Article 19 1989 // URL: https://www.un.org/ru/documents/decl_conv/conventions/childcon.shtml  (date of application 22.02.2024)
5. Penal Code 2015 (amended and supplemented in 2017) Article 150, 151// URL: https://www.policinglaw.info/assets/downloads/2015_Criminal_Code_of_Vietnam_(English_translation).pdf  (date of application 22.02.2024)
6. Constitution of the Socialist Republic of Vietnam 2013 г. // URL: https://worldconstitutions.ru/?p=26  (date of application 22.04.2024)