Doctor of Philosophy
Faculty of Law
Phan, Nhat Thanh, Recognising customary law in Vietnam: legal pluralism and human rights, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3455
This thesis examines whether customary law should be more effectively recognised in Vietnam. By exploring how customary law is treated in different parts in the world, the thesis provides a survey overview of the position of customary law in a number of legal systems. Customary law is regarded as law, infra state law, or non-law depending on social circumstances and the attitude of the state. Legal pluralism and human rights are considered as key arguments for the recognition of customary law. However, by approaching via the various paradigms of law (including legal centralism and legal pluralism) the evidence reveals that customary law has some advantages and disadvantages. A serious examination of the impacts of recognition of customary law is needed if this position is ever to be adopted. Customary law may also have positive or negative impacts on human rights. On the one hand, it may be the best instrument for protecting and developing human rights for minority groups and Indigenous people. On the other, it may also cause violations of human rights because it provides different laws for people in regard to the same issues or disputes with such differentiation generally based on the ethnicity of the persons concerned. Via an examination of the Vietnamese legal system and the country‘s social circumstances, this thesis considers: whether customary law could enjoy more effective recognition; what might be the drawbacks of such a plan; and how could implementation benefit the country‘s development?