Ownership over TKaGRs and associated GRs

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same family line".¹⁶⁹ Accordingly, "community" is recognizable on the basis of territorial and socio-cultural factors, such as customs, habits and family lines. However, it is further noteworthy that, despite the existence of “communities” in relevant legal documents as illustrated, the Civil Code of 2015 does not recognize community as a legal entity,¹⁷⁰ amounting to excluding this de facto entity from civil transactions, liability or disputes that actually have its involvement.

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representative of such right.¹⁷¹ Accordingly, the State allocates land,¹⁷² forest¹⁷³ and accords the right to manage GRs¹⁷⁴ to individuals, households, communities and

171 See Art. 53 of the Constitution of Vietnam, which states: “The land, water resources, mineral resources, resources in the sea and airspace, other natural resources and property invested and managed by the State are public properties, coming under ownership of the entire people represented and uniformly managed by the State.” (emphasis added).

172 Art. 13 of the Land Law states that the State shall exercise the following rights as the representative of the land owner:

1. To decide on land use master plans and plans.

2. To decide on land use purposes.

3. To prescribe land use quotas and land use terms.

4. To decide on land recovery and land requisition.

5. To decide on land prices.

6. To decide on grant of land use rights to land users.

7. To decide on financial policies on land.

8. To prescribe the rights and obligations of land users.

173 Regarding rules for forest allocation, “Forest allocation, lease, repurposing and appropriation shall be in compliance with the national forestry planning, land use planning and forest area of provinces.” (Art.

14(1) – Forestry Law) and “Forest allocation or lease terms and limits shall be consistent with land allocation or lease terms and limits.” (Art. 14(6) – Forestry Law). As such, rules for land allocation with primary authority of the State actor is applicable to forest allocation.

174 According to Art. 55 of the Biodiversity Law, the State uniformly manages all genetic resources in the Vietnamese territory. It assigns organizations and individuals to manage genetic resources following the rules as follows:

a/ Conservation zone management units and organizations assigned to manage conservation zones shall manage genetic resources in conservation zones;

b/ Heads of biodiversity conservation facilities, scientific research and technological development institutions, and genetic resource storage and preservation establishments shall manage their own genetic resources;

c/ Organizations, households and individuals assigned to manage or use land, forests or water surface shall manage genetic resources assigned to them for management or use;

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organizations based on national master plans, preferential policies, actual demands of resource users and other criteria determined in specific situations. Interpreting those legal provisions all together, it inferred that individuals or communities as holders of TKaGRs may physically hold and manage associated GRs only if they are accorded with the use rights over land, forest or water surface where GRs are found.

Rooted in the spirit of national unity, the Vietnamese political system does not uphold the concept of “ethnic territorial autonomy” as previously discussed. Resultantly, despite the existence of customary rule systems governing relations associated with land and other resources within ethnic communities, the authority to allocate or recover land and other resources in relation to ethnic minorities is absolutely vested in the State based on the formal legal system. As a country adhering to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)¹⁷⁵, Vietnam has demonstrated its respect to ethnic minorities’ rights through plenty of preferential policies, including those related to land and resources associated with ethnic minorities’ livelihood, cultures and beliefs.¹⁷⁶ However, d/ Commune-level People’s Committees shall manage genetic resources in their localities, except cases specified at Points a. b and c.

As such, individuals or communities as holders of TKaGRs may physically hold and manage associated GRs if they are accorded with the use rights over land, forest or water surface where GRs are found.

175 Article 27 of the UNDRIP reads: “States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.” (emphasis added).

176 Taking the Land Law, among others, as evidence, Article 5 of the 2013 Land Law prescribes land allocations to “Vietnamese communities”. Article 27 also affirms state responsibilities for adopting policies “on residential land and land for community activities for ethnic minorities in conformity with their customs, practices and cultural identities and the practical conditions of each region”, and for providing ethnic minorities with land for agricultural production. Article 100 allows for state allocation of land use right certificates over agricultural land to communities. One of the priorities (or purposes) of land allocation to communities is “to preserve national identities associated with the traditions and

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given various constraints, including the conflicting demands on limited land for which priorities sometimes are given to economic development,¹⁷⁷ it is not always the case with legal guarantee over the rights associated with land, forest and other resources of ethnic minorities. Therefore, TKaGRs holders may not always be the holders of land use rights that define the right to manage GRs to which such knowledge is linked.

4.2. Overview of TKaGRs in Vietnam