The current state of factors influencing the operation of mechanisms ensuring the exercise of the right to association of citizens in Vietnam.. However, no research has yet delved deeply
Trang 1MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE
HANOI LAW UNIVERSITY
NGUYEN THI NU
MECHANISM TO ENSURE THE ENFORCEMENT OF CITIZEN’S
RIGHT TO ASSOCIATION IN VIETNAM
Major: Constitutional Law and Administrative Law
Code: 9380102
SUMMARY OF DOCTORAL THESIS ON LAW
HANOI, 2024
Trang 2The project was completed at:
Hanoi Law University
Supervisors: ASSOC.PROF PHAN TRUNG LY
Trang 3TABLE OF CONTENTS
HEADING 1
1 Reason for choosing the topic 1
2 The purpose and task of the thesis 2
3 Objects and scope of research 3
4 Theoretical foundation, approach, methodology, and research methods of the dissertation 4
5 New contributions of the thesis 5
6 Theoretical and practical significance of the dissertation 5
7 Structure of the thesis 6
LTERATURE REVIEW 6
1 National scientific research works 6
1.1 Research on human rights 6
1.2 Research on the right to association 6
1.3 Research on mechanisms for ensuring the right to association 6
2 Foreign scientific research works 6
3 Evaluation of results of research works related to the dissertation 6
3.1 Research achievements to be built upon and further developed in the dissertation 6
3.2 Outstanding issues and unresolved challenges necessitating further research 7
4 Research hypothesis and research question 7
4.1 Research hypothesis 7
4.2 Research question 8
SUMMARY OF RESEARCH OVERVIEW 8
Chapter 1 THEORETICAL FRAMEWORK ON MECHANISM TO ENSURE THE ENFORCEMENT OF CITIZEN’S RIGHT TO ASSOCIATION 9
1.1 Concept and nature of associations 9
1.1.1 Concept of an association 9
1.1.2 Nature of an association 9
1.2 Concept of the right to association, guaranteeing the right to association, and characteristics 9
1.2.1 Concept of the right to association 9
1.2.2 Concept of guaranteeing the right to association 9
1.2.3 Characteristics of guaranteeing the right to association 9
1.3 Concept and characteristics of the mechanism to ensure the enforcement of citizen’s right to associations 9
1.3.1 Concept of the mechanism for ensuring the right to association 9
1.3.2 Features of the mechanism for ensuring the right to association 10
1.4 Components of the mechanism for ensuring the right to association 10
Trang 41.4.1 Legal framework for ensuring the right to association 10
1.4.2 Obligated entities ensuring the right to association 10
1.4.3 Entities entitled to the right to association 10
1.5 Factors affecting the operation of the mechanism to ensure the enforcement of citizen’s right to associations 10
1.5.1 Political regime 10
1.5.2 Degree of perfection of the legislation 10
1.5.3 State capacity 10
1.5.4 Awareness of the right s of citizens and society 10
1.5.5 Material resources 10
1.5.6 Cultural traditions of the community and nation 10
1.6 Mechanism to ensure the enforcement of citizen’s right to associations of several states and suggestions for Vietnam 10
1.6.1 Mechanism to ensure the enforcement of citizen’s right to associations in developed countries 11
1.6.2 Mechanism to ensure the enforcement of citizen’s right to associations in developing countries 11
1.6.3 Suggestions for Vietnam 11
CONCLUSION OF CHAPTER 1 12
Chapter 2 THE CURRENT STATE OF MECHANISMS TO ENSURE THE ENFORCEMENT OF CITIZENS’ RIGHT TO ASSOCIATION 13 IN VIETNAM 13
2.1 The current state of the legal framework on ensuring citizens’ right to association 13
2.1.1 Overview of current legal provisions on associations in vietnam 13
2.1.2 Current legal framework ensuring citizens’ right to association 13
2.1.3 Overview of the draft law on associations in vietnam 14
2.2 The current state of ensuring the exercise of citizens’ right to association by responsible agencies and the current state of Vietnamese citizens’ right to association 14
2.2.1 The current state of ensuring the enforcement of citizens’ right to association by responsible agencies 14
2.2.2 The current state regarding the exercise of the right to associations by Vietnamese citizens 15
2.3 The current state of factors influencing the operation of mechanisms ensuring the exercise of the right to association of citizens in Vietnam 16 2.3.1 Political regime 16
2.3.2 Material resources 16
2.3.3 The cultural heritage of ethnic communities 17
2.3.4 The awareness of citizens’ rights 17
Trang 52.4 Evaluation of the current mechanism to ensure the enforcement of the
right to association in Vietnam 17
2.4.1 Advantages of the mechanism ensuring to ensure the enforcement of the right to association in Vietnam and its reasons 17
2.4.2 Limitations, shortcomings of the mechanism ensuring to ensure the enforcement of the right to association in Vietnam and its reasons 18
CONCLUSION OF CHAPTER 2 18
Chapter 3 ORIENTATIONS AND PROPOSALS FOR DEVELOPING MECHANISM TO ENSURE THE ENFORCEMENT OF CITIZEN’S RIGHT TO ASSOCIATION IN VIETNAM 19
3.1 Criteria and requirements for building and perfecting the mechanism to ensure the enforcement of citizens’ right to association in Vietnam 19
3.1.1 Criteria for building and perfecting the mechanism to ensure the enforcement of citizens’ right to association in Vietnam 19
3.1.2 Requirements for building and perfecting the mechanism to ensure the enforcement of citizens’ right to association in Vietnam 19
3.2 Orientation for enhancing mechanism to ensure the enforcement off citizen’s right to association in Vietnam 19
3.2.1 Upholding, safeguarding, and facilitating citizens’ right to association is essential for the respect, protection, and fulfillment of human rights and civil liberties, as enshrined in the 2013 Constitution 19
3.2.2 Supporting and guaranteeing citizens’ right to association is a core principle of a socialist state governed by the rule of law 19
3.2.3 Defending and promoting the right to association exemplifies the fundamental nature of the Socialist Republic of Vietnam - a government of the people, by the people, and for the people 19
3.2.4 Ensuring the right to association must go hand in hand with preserving the leadership role of the Communist Party 19
3.3 Solutions to perfect the mechanism to ensure the enforcement of citizens’ right to association in Vietnam 19
3.3.1 Solutions to perfect legislations on the guarantee of the citizen’s right to association in Vietnam 19
3.3.2 Solutions to perfect the institutions ensuring the enforcement of citizen’s right to association in Vietnam 19
3.3.3 Solutions to enhance the factors ensuring the enforcement of citizens’ rights to association in Vietnam 20
CONCLUSION OF CHAPTER 3 21
CONCLUSIONS 22
LIST OF PUBLICATIONS RELATED TO THESIS 24
Trang 6HEADING
1 Reason for choosing the topic
The right to association is a fundamental human right recognized in the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights (ICCPR) In our country, human rights and citizens’ rights, including RIGHT TO ASSOCIATION, have consistently been valued, respected, and safeguarded by the Party and the State
In Vietnam, the right to association was first enshrined in the country’s inaugural Constitution - the 1946 Constitution Following the spirit of this foundational document, subsequent Constitutions continued to recognize citizens’ right to asscociation The current 2013 Constitution states: “Citizens have the right to freedom of speech, freedom of the press, access to information, assembly, association, and protest The exercise of these rights is regulated by law” (Article 25) Over the years, the provisions in the Vietnamese Constitution have marked significant progress in ensuring human and citizens’ rights, including the right to association
The law on right to asscociation was issued by the President of the Democratic Republic of Vietnam in 1957 Compared to that period, today’s Vietnam has seen the emergence and existence of various types of associations, including legal entities, non-legal entities, registered and unregistered groups, encompassing a diverse array of scales, purposes, and roles However, the formalization of the Constitution’s provisions regarding citizens’ right to association remains slow, fragmented, and lacks systematic coherence Drafting
a Law on Associations has been included in the National Assembly’s legislative program The 13th National Assembly discussed and provided feedback on the Law on Associations at its 10th session in late 2015 However, to date, the Law
on Associations remains in draft form The constitutional provisions related to citizens’ right to association mentioned above are primarily governed by sub-legal documents, specifically Decree No 45/2010/ND-CP dated April 21, 2010, regulating the organization, activities, and management of associations, and Decree No 33/2012/ND-CP dated April 13, 2012, amending and supplementing certain articles of Decree 45/2010/ND-CP The requirements of the 2013 Constitution regarding respect for, protection of, and assurance of human and citizens’ rights, including right to association, have yet to be fully concretized Compared to the pre-renovation period, the Party and State of Vietnam’s stance on associations has shifted considerably towards a more respectful and open approach Nonetheless, a significant concern remains that the development
of associations may lead to “peaceful evolution,” posing substantial obstacles to efforts at policy and legal reform on associations The prolonged drafting process
of the Law on Associations, which has been ongoing for decades without finalization, clearly illustrates this challenge Consequently, the right to association in Vietnam currently faces considerable barriers, foremost among which are legal obstacles
Trang 7The renovation efforts led by the Party have achieved substantial successes
in all areas of social life, spurring democratization and encouraging broader public participation in social activities through various social organizations As associations have rapidly grown in number, they have made positive contributions across many fields, including poverty alleviation, environmental protection, public education, humanitarian aid, human rights protection, and involvement in the socialization of healthcare, culture, education, training, science, and technology Notably, many associations have also engaged in providing public services delegated by the State, as well as consulting and evaluating proposals and policies, contributing to an enhanced State management role
Despite these achievements in organizing and operating associations and their broad influence across social strata, some associations continue to operate ineffectively, showing numerous limitations Some associations are merely formalistic, lacking real impact, failing to reflect the aspirations and interests of their members, and facing significant limitations, difficulties, and obstacles in association management
In the current period of building a socialist-oriented market economy and a socialist rule-of-law state, expanding democracy, and promoting socialization within the context of international integration, it is essential to improve legal regulations on associations This improvement would create mechanisms to ensure the realization of citizens’ right to association, thereby establishing a legal framewok for associations to develop and operate effectively, enhancing the efficiency and effectiveness of the State’s management in this area
To meet these requirements, some researches at various levels have aimed to build a scientific basis for improving association laws in Vietnam However, no research has yet delved deeply into the mechanisms for guaranteeing citizens’ right to association in Vietnam, primarily focusing on regulations and the current state of right to association
As a consequence, it is essential to research on associations, association laws, and the mechanisms for ensuring citizens’ right to association in Vietnam, which provides citizens with the conditions to exercise one of their fundamental right - the right to association - while addressing State management, social management, and protecting human and citizens’ rights in line with the trends of international integration and globalization This is why the author has chosen the topic “The mechanisms for ensuring the citizen’s right to association in Vietnam” as the subject of their dissertation research
2 The purpose and task of the thesis
2.1 The purpose of research
This dissertation aims to illuminate the theoretical foundations underpinning mechanisms that safeguard citizens’ right to association Building upon this foundation, it delves into an in-depth analysis of the current state of these mechanisms From this analysis, the study offers insightful perspectives and
Trang 8practical solutions to strengthen and refine the frameworks ensuring citizens’ right
to association in contemporary Vietnam
2.2 The task of research
To achieve the above research objectives, this dissertation has the following specific tasks:
- Investigate fundamental theoretical issues concerning the mechanisms for ensuring citizens’ right to association in Vietnam today:
+ Clarify the concept of associations and the characteristics of associations
+ Define the right to association, ensuring the right to association, and the specific features of ensuring this right
+ Clarify the concept and characteristics of mechanisms for ensuring the right to association, including the key components that constitute these mechanisms, such as legal frameworks, the obligated entities to uphold the right
to association, the citizens entitled to this right, and factors influencing the operation of these mechanisms in Vietnam today
+ Examine mechanisms for ensuring citizens’ right to association in selecting countries worldwide, highlighting relevant insights for Vietnam
- Examine the current state of mechanisms ensuring citizens’ right to association in Vietnam:
+ Analyze the current legal framework that ensures citizens’ right to association
+ Examine the extent to which obligated entities fulfill their role in upholding citizens’ right to association
+ Assess the current exercise of the right to association of Vietnamese citizens
+ Identify the factors impacting the operation of mechanisms for ensuring citizens’ right to association
+ Evaluate the current state of these mechanisms in Vietnam, highlighting achievements, limitations, and the underlying reasons behind these outcomes
- Propose criteria, requirements, perspectives, and solutions to enhance the mechanisms for ensuring citizens’ right to association in Vietnam today
3 Objects and scope of research
3.1 Research objects
This dissertation examines both theoretical and practical issues related to the mechanisms that uphold citizens’ right to association in Vietnam today Specifically, it explores:
- Theories, ideologies, and scientific perspectives on the right to association
- Constitutional and legal frameworks in Vietnam concerning the right to association
- Core theoretical aspects of the mechanisms that safeguard the right to association, including key concepts, characteristics, structural components, influencing factors, and relevant international insights
Trang 9- Practical dimensions of these mechanisms in Vietnam, including the current state of legal provisions for the right to association, the effectiveness of responsible institutions, citizens’ exercise of this right, and the factors that shape these mechanisms in the present context
- Temporal scope: The research primarily covers the period from 1945 to the present, with a particular focus on developments since 1986
4 Theoretical foundation, approach, methodology, and research methods of the dissertation
4.1 Theoretical foundation
The dissertation is grounded in the theories of natural and positive rights, interwoven with rule of law and social contract theories This scientific and methodological framework is applied throughout the dissertation to objectively evaluate the mechanisms ensuring citizens’right to association in Vietnam today
4.2 Research approach
This study adopts an interdisciplinary approach combined with a based perspective By employing this approach, the research assesses the mechanisms for ensuring the right to association not only through legal foundations and content but also through a practical lens This dynamic perspective enables a comprehensive view of how these mechanisms function in practice
rights-4.3 Methodological framework
The dissertation is guided by the principles of dialectical and historical materialism as per Marxist-Leninist philosophy, providing a robust framework for examining the research issues in depth
4.4 Research Methods
The dissertation uses various research methods, including analysis, synthesis, statistical methods, comparative law, and a blend of theoretical and practical examination, to derive conclusions aligned with the research objectives
To achieve the intended goals, specific methods are applied in different sections of the dissertation:
Literature Review: This section synthesizes findings from domestic and international studies Using analytical, synthetic, historical, and logical methods,
it identifies key theoretical and practical issues already explored by scholars, as well as gaps for further research
Chapter 1: This chapter delves into theoretical issues around mechanisms for ensuring citizens’ right to association Key methods here include textual analysis, normative examination, synthesis, comparison of legal texts, and historical
Trang 10research Section 1.6 also utilizes comparative methods combined with normative analysis to explore how the right to association is ensured in different countries Chapter 2: This chapter analyzes the current mechanisms ensuring citizens’ right to association The primary research methods include textual analysis, secondary data statistics, and synthesis
Chapter 3: As this chapter focuses on solutions and recommendations, the main research methods applied are analysis, synthesis, and interpretation
This combination of methodologies and research approaches enables a thorough investigation and provides actionable insights into the mechanisms safeguarding citizens’ right to association in Vietnam today
5 New contributions of the thesis
- This dissertation is a doctoral-level scientific study that systematically and comprehensively examines theoretical issues regarding the mechanisms ensuring citizens’ right to association To date, no study has fully addressed this topic in a comprehensive manner
- The dissertation provides an in-depth analysis and assessment of current association laws in Vietnam, the state of mechanisms enabling citizens’ right to association, and the challenges faced in establishing mechanisms for citizens to exercise this right This issue has not yet been comprehensively addressed in Vietnam
- The dissertation offers perspectives and proposed solutions that can serve
as valuable references for developing mechanisms to ensure Vietnamese citizens’ right to association in the future
6 Theoretical and practical significance of the dissertation
Theoretical significance:
The findings and contributions of this dissertation will help build a scientific theoretical foundation regarding mechanisms for ensuring the right to association Specifically, the dissertation enriches and refines the understanding of the concept
of mechanisms ensuring citizens’ right to association, their characteristics, and constituent components It analyzes the factors influencing these mechanisms and provides an overview of legal provisions on the right to association in several countries, drawing valuable insights from successful models that may be applicable in Vietnam
Practical significance:
The dissertation addresses limitations in the current mechanisms for ensuring citizens’ right to association in Vietnam by proposing scientifically grounded and practical solutions tailored to the conditions and strategic direction of building a socialist rule-of-law state
It can serve as a reference for policymakers and administrators
The research outcomes can aid local authorities in developing localized solutions to ensure citizens’ right to association within their jurisdiction
The findings can also be used as reference material for academic research and training in law and related social sciences
Trang 117 Structure of the thesis
In addition to the introduction, conclusion, list of references, and appendices, the thesis shall be structured in 3 chapters:
Chapter 1 Theoretical framework on mechanism to ensure the enforcement
of citizen’s right to association
Chapter 2 The current state of mechanisms to ensure the enforcement of citizens’ right to association in Vietnam
Chapter 3 Orientations and proposals for developing mechanism to ensure the enforcement of citizen’s right to association in Vietnam
LTERATURE REVIEW
1 National scientific research works
1.1 Research on human rights
The body of research concerning human rights encompasses a wide array of publications, including scholarly books, ministry-level projects, and master’s theses, contributing to a comprehensive understanding of this crucial topic
1.2 Research on the right to association
The field of research on the right to association is expanding rapidly, featuring an increasing number of works such as books, ministry-level studies, journal articles, doctoral dissertations, and master’s theses, all of which delve into various aspects of this essential right
1.3 Research on mechanisms for ensuring the right to association
In the realm of mechanisms, it is often difficult to locate specialized studies focused exclusively on associations Instead, much of the research tends to address legal mechanisms across diverse sectors of society Nonetheless, these works provide valuable insights, allowing the author to discern scientific perspectives on mechanisms as presented in doctoral dissertations and academic journals
2 Foreign scientific research works
The right to association has been a subject of global inquiry for many years, with research predominantly centered on analyzing human rights This includes thorough evaluations of the right to association in various countries, shedding light on its implementation and implications worldwide
3 Evaluation of results of research works related to the dissertation 3.1 Research achievements to be built upon and further developed in the dissertation
The body of research, particularly that conducted by domestic scholars, has made significant contributions to the theoretical foundations pertinent to the enhancement of legal frameworks governing the freedom of association This scholarship provides a critical basis for the author to interpret and evaluate the existing legal infrastructure concerning associations in Vietnam
Trang 12Through a comprehensive examination of both domestic and international literature, the researcher has acquired a well-rounded understanding of the various perspectives surrounding the concept, role, and substantive content of the right to association This foundational knowledge allows the author to elucidate the definition, characteristics, and essential components of the mechanisms that facilitate the exercise of citizens’ right to association
The insights garnered from research conducted both in Vietnam and internationally afford the author a holistic perspective on the mechanisms designed to ensure the right to association Furthermore, the analysis of scholarly works significantly informs the dissertation by providing a detailed overview of the current legislative landscape governing the freedom of association in Vietnam Domestic studies evaluating the implementation of citizens’ right to association serve as vital scientific resources, enabling the author to synthesize and compare existing knowledge This synthesis not only identifies the limitations and challenges faced in guaranteeing this right in Vietnam but also underscores areas requiring further inquiry
Moreover, these research endeavors have put forth various directions, perspectives, and solutions aimed at bolstering the effectiveness of citizens’ right
to association
3.2 Outstanding issues and unresolved challenges necessitating further research
Despite the current reseaches, several critical issues remain inadequately addressed or unexplored within the context of mechanisms ensuring citizens’ right
to association in Vietnam:
The concept of “mechanisms for ensuring citizens’ right to association” lacks thorough and convincing elucidation in current Vietnamese research, as it is predominantly encapsulated within studies focused on the legal status of associations While some literature has attempted to discuss the mechanisms for ensuring citizens’ right to association, these discussions are often disjointed and superficial, revealing a pressing need for more in-depth analysis and clarification
The factors that influence the effectiveness of these mechanisms have not been sufficiently examined in the scholarly literature, indicating a significant gap that warrants further investigation
Additionally, the current status of the various constituent components that comprise the mechanisms ensuring citizens’ right to association has not garnered adequate attention in existing research
Finally, studies addressing the perspectives and proposed solutions for enhancing the effectiveness of these mechanisms in Vietnam are limited and superficial, often mentioned only in passing within broader scholarly discussions
4 Research hypothesis and research question
Trang 134.2 Research question
To support the aforementioned scientific hypothesis, the dissertation directly addresses the following research questions:
- How is the right to association understood in Vietnam?
- What are the constituent components of the mechanisms for ensuring the exercise of citizens’ right to association?
- What achievements have been made, and what are the existing limitations and challenges of the mechanisms for ensuring citizens’ right to association in Vietnam today?
- What are the causes of the achievements and limitations in the mechanisms for ensuring citizens’ right to association in Vietnam today?
How can the mechanisms for ensuring the right to association be improved?
SUMMARY OF RESEARCH OVERVIEW
In a democratic society, ensuring the right to association for citizens is a fundamental condition for safeguarding human rights and civil rights In the overview of the research situation, the dissertation examines both domestic and international research related to the mechanisms for ensuring citizens’ right to association in Vietnam today The literature review encompasses both theoretical and practical aspects of the right to association, as published by scholars both nationally and internationally, including various research projects at different levels, monographs, theses, and articles in journals across multiple fields such as law and political science
Overall, these research works delve into the right to association; the legal framework governing it; theoretical analyses; evaluations of the current state of the right to association; and the need to enhance the mechanisms ensuring citizens’ right to association However, to date, no systematic, comprehensive, and thorough study has been conducted on the mechanisms for ensuring citizens’ right to association in Vietnam This gap represents a significant area that remains underexplored in the field of research on the right to association in Vietnam Therefore, based on this comprehensive perspective, the dissertation aims to inherit and develop the values and knowledge found in the published works, while also identifying issues that require further research and improvement, both theoretically and practically This foundation will allow for the proposal of scientific and valuable solutions aimed at refining the mechanisms for ensuring citizens’ right to association in the context of building a socialist rule-of-law state
in Vietnam today
Trang 14Chapter 1 THEORETICAL FRAMEWORK ON MECHANISM TO ENSURE THE ENFORCEMENT OF CITIZEN’S RIGHT TO ASSOCIATION
1.1 Concept and nature of associations
1.1.1 Concept of an association
There have been various perspectives on associations over time; however, based on different understandings, an association in Vietnam can be defined as follows: An association is a voluntary organization formed by citizens, with the formal participation of at least two or three individuals or entities, operating regularly without the aim of profit, with a purpose to protect the legitimate rights and interests of the association, its members, or to serve the community interest
It is legally recognized and operates within the framework of the law
1.1.2 Nature of an association
Based on the concept of an association, it can be identified several characteristics, namely voluntariness, self-governance, financial self-sufficiency, non-profit orientation, integration, and a social nature
1.2 Concept of the right to association, guaranteeing the right to association, and characteristics
1.2.1 Concept of the right to association
Based on international and Vietnamese legal documents, the author proposes the following concept of the right to association: “The right to association is the freedom of citizens to freely unite and gather into groups to pursue mutual interests, purposes, or concerns.”
1.2.2 Concept of guaranteeing the right to association
According to the Comprehensive Vietnamese Dictionary, the term
“guarantee” is understood as “creating conditions to ensure the preservation, fulfillment, or provision of necessary elements.” In the Legal Dictionary, it is defined as “the responsibility of an entity (individual or organization) to ensure that the right s and interests of another entity are definitively maintained or fulfilled, and if any damage occurs, to provide compensation.” In English, the term “guarantee” as a noun means “assurance,” and as a verb, it signifies “to ensure, take responsibility for something, creating conditions for its fulfillment.” Thus, the term “guarantee” broadly means “meeting necessary conditions and taking responsibility to ensure something is accomplished.”
1.2.3 Characteristics of guaranteeing the right to association
- Compliance with legal content, procedures, and formalities
- Complexity in its implementation
- Involvement of multiple entities
- Ensured through various methods and approaches
- Inseparability from the right to association itself
1.3 Concept and characteristics of the mechanism to ensure the
enforcement of citizen’s right to associations
1.3.1 Concept of the mechanism for ensuring the right to association
Drawing from research on rights assurance mechanisms, the mechanism ensuring citizens’ right to association can be defined as follows: