RIGHTS OF VULNERABLE GROUPS IN VIETNAMESE LAW

ABSTRACT

Vulnerable groups are also known as weak groups, disadvantaged groups, marginalized groups, and minority groups. These are people with lower political, social, or economic status, which puts them at higher risk of being neglected or having their human rights violated, and therefore, they need special attention and protection compared to other groups and communities. This article analyzes in depth the rights and issues related to the implementation of the rights of this group of people in Vietnam today.

АННОТАЦИЯ

Уязвимые группы также известны как слабые группы, обездоленные группы, маргинализированные группы и группы меньшинств. Это люди с более низким политическим, социальным или экономическим статусом, что подвергает их более высокому риску пренебрежения или нарушения их прав человека, и поэтому они нуждаются в особом внимании и защите по сравнению с другими группами и сообществами. В этой статье подробно анализируются праваи проблемы, связанные с реализацией прав этой группы людей во Вьетнаме в настоящее время.

Keywords: Vulnerable groups; stateless people; migrant workers; indigenous people; victims of war; people deprived of liberty, the elderly

Ключевые слова: Уязвимые группы; лица без гражданства; рабочие-мигранты; коренные народы; жертвы войны; люди, лишенные свободы, пожилые люди.

Vulnerable groups is an open concept, with rich, broad connotations and difficult to define specifically. In the late 1980s, this term began to be widely used, especially in international legal documents related to human rights. This concept also has other names such as weak groups, disadvantaged groups, marginalized groups, minority groups, etc. However, the popular term and also chosen by many researchers and in international reports, as well as even those in this group, is "vulnerable groups". This term does not separate them from the majority (compared to those considered to have a normal status) and creates equality on the basis of application. Vulnerable groups “have a lower political, social or economic status which puts them at greater risk of being neglected or having their human rights violated, and therefore they need special protection compared to other groups or communities”.

Thus, the scope of defining vulnerable people is quite broad, commonly including: women; children; people with disabilities; people living with HIV or AIDS victims; displaced people or people seeking asylum; stateless people; migrant workers; minorities (ethnic, racial, religious...); indigenous people; victims of war; people deprived of liberty, the elderly; LGBT... In Vietnam, the only legal document that regulates the concept of vulnerable people is the 2013 Law on Natural Disaster Prevention and Control. Accordingly, “Vulnerable people are groups of people whose characteristics and circumstances make them more likely to suffer adverse impacts from natural disasters than other groups in the community. Vulnerable people include children, the elderly, women who are pregnant or nursing children under 12 months old, people with disabilities, people with serious illnesses, and the poor.”Although no convention or international document has ever defined vulnerable people, the spirit of protecting the rights of this group of people is expressed through important international documents on human rights as well as a number of specific international treaties for each group of people. General international documents on human rights include the United Nations Charter on Human Rights in 1945; the Universal Declaration of Human Rights in 1948; the Vienna Declaration and Programme of Action in 1993; the United Nations Millennium Declaration in 2000... Specific documents on basic human rights and freedoms include: the International Covenant on Civil and Political Rights in 1966; The International Covenant on Economic, Social and Cultural Rights 1966... ​​Vulnerable people are among the groups that receive many priority protections under international law when most of the international human rights documents adopted by the United Nations after the above documents are to codify the rights for this group of people. These documents add specific rights for each group, which are essentially special priorities or protection mechanisms for vulnerable groups based on their characteristics, nature and circumstances.

One of the special rights generally emphasized in international documents related to vulnerable groups is the right not to be discriminated against. This stems from the fact that without special protection, vulnerable groups (all or some members) can fall into very tragic situations, while discrimination, abandonment or neglect of any group is against human conscience and unacceptable in a civilized society. Recognizing the rights of vulnerable groups does not mean equalizing rights for all subjects. Equality of rights means that all members of the human community have the opportunity to enjoy the same rights under the same conditions, circumstances and available capacities. For vulnerable groups, which are disadvantaged and have a lower starting point, they are at higher risk because they are easily forgotten or easily violated in their human rights. Therefore, they need specific rights to achieve substantive equality in the enjoyment of universal human rights. This is also considered a vertical justice approach. In addition to the general right to non-discrimination, for each vulnerable group there are also international treaties that stipulate specific rights for each specific group, such as:

- Women: This is a vulnerable group of people with a common nature because more than half of humanity is women. The key and most comprehensive treaty recognizing the rights of this group is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The main groups of rights of women can be mentioned as the right to equality before the law and equal protection of the law; the right to respect for life and physical and mental integrity; the right not to be subjected to slavery, slavery, forced labor and compulsory labor and trafficking; equality in marriage and family relations...

- Children: Children are people under 18 years of age, unless otherwise provided by national law. They are the most vulnerable group of people concerned in international law when there are many documents recognizing the rights of children, of which the United Nations Convention on the Rights of the Child (UNCRC) in 1989 is the most basic and important document. For children, specific rights include: The right to life; the right to sexual safety; the right to freedom and personal security of children; the right to care, nurturing and healthy development...

- People with disabilities: This is a group of people with long-term physical, mental, intellectual or sensory impairments that, when interacting with various barriers, may hinder their full and effective participation in society on an equal basis with others. The 2017 Convention on the Rights of Persons with Disabilities is one of the main conventions and in the group of conventions on vulnerable people, this is the latest convention. In addition to basic rights, people with disabilities have specific rights such as the right to inclusion and support to integrate into the community; the right to support in mobility; the right to support for rehabilitation; the right to an adequate standard of living and social protection;...

- Older persons: Current international instruments on older persons are only “soft law”, not legally binding. However, “in a world characterized by an increasing number and proportion of older persons”, this is identified as a vulnerable group that needs attention. Regarding the rights of older persons, the 1991 United Nations Principles on Older Persons include four groups of principles: independence, participation, care and dignity. In addition to the above groups, vulnerable people, according to some current international views, can also be refugees or asylum seekers, minorities, people living with HIV-AIDS, prisoners of war, homosexuals or transgender people...

In criminal law, human rights are a part of human rights in the field of criminal justice in general, with the task of internalizing international criteria on human rights. As analyzed above, recognition by national law is a mandatory element in creating human rights. Criminal law is a branch of law that regulates socially dangerous acts that are considered crimes and the penalties that can be applied to such crimes. Protecting human rights, specifically vulnerable people, by criminal law is expressed from two perspectives. The State protects the human rights of victims when crimes violate these rights to a significant extent. At the same time, criminals who may be subject to the most severe coercive measures of the State, which are penalties, also need to ensure their human rights. Thus, the internalization of international standards on vulnerable people in criminal law also needs to be approached from two perspectives, when they are victims of crime and when they are the subjects of crime. Criminal law naturally recognizes provisions for strict punishment of any criminal acts that violate the human rights of vulnerable social groups, but at the same time there are special leniency and mitigation policies in handling and punishing criminals in this group when they commit crimes and the 2015 Penal Code is considered the sole source of Vietnam's criminal law, clearly demonstrating the policy of protecting vulnerable people of the Vietnamese State.

The 2015 Penal Code has internalized international standards related to vulnerable groups, and protects the rights of these groups, as subjects of crime. Accordingly, the crime committed against a vulnerable group is a sign of conviction, or a sign of aggravating the framework or a circumstance that increases criminal liability.

- Protecting women who are victims of crime For women, the 2015 Penal Code has protected women's rights as stipulated in international standards. Regarding the right to equality before the law, the 2015 Penal Code not only eliminates unfair and discriminatory provisions, but Article 165 also specifically stipulates the crime of violating gender equality. Regarding the right to respect for the life and physical and mental integrity of women, this group of rights includes very specific rights such as the right to motherhood, the right to personal freedom and security, the right to sexual freedom and safety.

Regarding the right to motherhood, the 2015 Penal Code criminalizes the act of violating women's motherhood, affecting their reproductive health, psychology, and even their lives through Article 316, which stipulates the crime of illegal abortion. Point i, Clause 1, Article 52 of the 2015 Penal Code continues to stipulate that “committing a crime against a pregnant woman” is an aggravating circumstance of general criminal responsibility applicable to all crimes as well as an aggravating circumstance of many criminal elements. In addition, the 2015 Penal Code for the first time criminalizes the act of organizing surrogacy for commercial purposes in Article 187 to protect women's right to motherhood from being exploited for profit. To combat acts of violating the right to sexual freedom and safety, which mainly target women and girls, the 2015 Penal Code defines the following acts as crimes and sets out strict criminal policies: Rape (Article 141), Forcible sexual intercourse (Article 143)... Regarding the right to equality in marriage and family relations, the 2015 Penal Code prohibits acts of forcing marriage, divorce or preventing voluntary, progressive marriage, preventing voluntary divorce (Article 181); Violating the monogamy regime (Article 182), Organizing child marriage (Article 183)... in which the main protected subjects are- Protection of children who are victims of crime For children, the 2015 Penal Code stipulates that point i, clause 1, Article 52 "committing a crime against a person under 16 years old" is an aggravating circumstance of general criminal responsibility applicable to all crimes. In addition, the 2015 Penal Code stipulates that committing a crime against “a person under 16 years old” is a sentencing circumstance and an aggravating circumstance in many criminal elements or a child under 7 days old is a sentencing circumstance for the crime of killing or abandoning a newborn child (Article 124)...

- Protecting disabled people who are victims of crime. The 2015 Penal Code has added the subject of abuse as “a person with severe or especially severe disabilities, a person with limited cognitive ability” to the aggravating circumstance of criminal responsibility prescribed in Point k, Clause 1, Article 52 of the 2015 Penal Code.

- Protecting the elderly who are victims of crime The elderly according to the 2009 Law on the Elderly are people aged 60 years or older30. In the current 2015 Penal Code, for the elderly, the term “old and frail” or “people aged 70 or older” can be used. For the elderly, the 2015 Penal Code stipulates that point i, clause 1, Article 52 “committing a crime against a person aged 70 or older” is an aggravating circumstance of criminal liability. In addition to the above groups of people, the 2015 Penal Code also has other provisions aimed at protecting other groups of subjects, for example, the provision on “performing other sexual acts” in sexual crimes to protect homosexuals or transgender people when they are victims of sexual abuse women.

References:

1. National Assembly (2013), Constitution of the Socialist Republic of Vietnam;
2. National Assembly (2015), Criminal Procedure Code 2015, amended and supplemented in 2021, Hanoi;
3. National Assembly (2015), Penal Code 2015, amended and supplemented in 2017, Hanoi.