UEH UNIVERSITY

UEH - COLLEGE OF ECONOMICS, LAW AND

GOVERNMENT

“HUMAN RIGHTS IN THE CONSTITUTIONAL

LAW BETWEEN VIETNAMESE LAW AND
UNITED STATES CONSTITUTION”

FINAL ESSAY

COURSE: COMPARATIVE LAW

FULL NAME: NGUYỄN THỊ THỦY TIÊN

TP Ho Chi Minh, 17 November 2023

 UEH UNIVERSITY

UEH - COLLEGE OF ECONOMICS, LAW AND

GOVERNMENT

FINAL ESSAY

COURSE: COMPARATIVE LAW

Lecturers: Dr. Dao Gia Phuc

Course code: 23C1LAW51107602

Student: Nguyễn Thị Thủy Tiên

Course – Class: K48 – LKC02

Student ID: 31221026613

TP Ho Chi Minh, 17 November 2023

2
 CONTENTS


INTRODUCTION--------------------------------------------------------------------------------------4
1. Fundamental legal issues concerning Human Rights.-------------------------------5

1.1. The definition of Human rights.----------------------------------------------------5

1.2. Why are Human rights important?------------------------------------------------5

2. Ensure Human Rights – Goal of the Constitution.-----------------------------------6

3. Human Rights in Constitutional Law of Viet Nam and the United States.-----7

3.1. Analyze the origins of human rights.----------------------------------------------7

3.2. Comparing measures for the protection of human rights.--------------------9

3.3. Examining particular human rights in Viet Nam and the United States.- 11

3.3.1. Human rights in Vietnamese Constitution.--------------------------------11

3.3.2. Human rights in the United States Constitution.-------------------------13

CONCLUSION---------------------------------------------------------------------------------14

REFERENCES--------------------------------------------------------------------------------- 15

3
 INTRODUCTION


Human rights are one of the natural rights, which are inherent and objective to
human beings and are recognized and protected in the laws of countries and
international documents initiated by the United Nations. The state's tool for ensuring
and protecting human rights is the law, which plays a particularly important role.
Human rights are specifically stipulated in each country's Constitution, as it is the
supreme law in the legal system. The Constitution is the governing document of the
country. Establishing the basic structure of government and establishing the rights and
freedoms of citizens are its objectives. The Constitution is made to safeguard human
rights by restricting the government's authority and guaranteeing that everyone is
treated equally under the law. Legal systems must prioritize the protection of human
rights. Both Vietnam and the United States have a constitution that protects human
rights. Nevertheless, there are significant differences in the way human rights are
protected between the two legal systems.

With the desire to have an overview of the Constitution and International

Human rights between Vietnamese Law and a foreign country’s law, the author
decided to choose the research topic: “Human Rights in the Constitutional Law
between Vietnamess Law and United States Constitution” as the final essay of my
Comparative Law course.

The essay will contain numerous errors that are incorrect and flawed because of
my limited knowledge. I really hope that teacher will sympathize, correct and give me
suggestions to help me improve my knowledge. Thank you sincerely!

4
 1. Fundamental legal issues concerning Human Rights.
1.1. The definition of Human rights.

Human rights are fundamental rights and freedoms that all people in the world are
entitled to, from birth to death. Regardless of where you are from, what you believe, or
how you choose to live your life, these principles are applicable. Human rights involve
being treated with dignity and respect. The focus is on being capable of making your
own decisions and pursuing a life that is free of fear and violence. Human rights are
one of the natural rights, which are inherent and objective to human beings and are
recognized and protected in the laws of countries and international documents initiated
by the United Nations. Everyone is entitled to these rights, without discrimination.1

1.2. Why are Human rights important?

Tolerance, equality and respect are values that can aid in reducing friction in
society. The creation of the society we can be achieved by putting human rights
concepts into practice.2 The Human rights provide a framework within which people
can live free and fulfilling lives. There are multiple reasons why Human rights are
important:

Firstly, Human rights protects us from abuse and mistreatment. Rights that are
part of these include the right to life, the right to liberty, and the right to be free from
torture.

Secondly, Human rights promote equality and non – discrimination. The principle
behind Human rights is that every person is equal and should be treated with respect
and dignity. Discrimination is prohibited under their rules, regardless of race, ethnicity,
gender, sexual orientation, religion, or any other status.

1
“Global issue Human Rights”, https://www.un.org/en/global-issues/human-rights (last accessed on 21
November 2023).
2
“An Introduction to Human Rights”, https://humanrights.gov.au/our-work/education/introduction-human-rights
(last accessed on 21 November 2023).

5
 Thirdly, Human rights promote democracy. They guarantee that everyone has the
right to speak, gather, and join together, along with the ability to vote and run for
office.

Finally, Human rights are necessary for economic and social development. The
foundation for creating just and equitable societies that foster prosperity and well-being
for all is provided by them.

The respect for human rights can lead to peace, prosperity, and development. The
violation of human rights can lead to suffering, injustice, and conflict. Human rights
are an essential part of the modern world. They are the foundation for a more just and
peaceful world for all.

2. Ensure Human Rights – Goal of the Constitution.

Law is a crucial factor in guaranteeing the protection and enforcement of human

rights, alongside other important factors such as economics, culture, education, and
politics. This is because law serves as a tool for the state to ensure the safeguarding and
implementation of human rights. “The Universal Declaration of Human Rights”,
adopted by the United Nations General Assembly in 1948, is a significant international
document that has played a vital role in promoting and strengthening the human rights
movement globally. “The Universal Declaration of Human Rights” states that human
rights must be upheld and that all nations must commit to their implementation.

In addition to the Universal Declaration of Human Rights of 1948, the Declaration

of the Rights of Man and of the Citizen of France of 1789 was adopted with the solemn
declaration: "The French people are committed to the Declaration of the Rights of Man
and of the Citizen of 1789."3 This declaration highlights the significance of the
Declaration of the Rights of Man and of the Citizen of France of 1789 as a fundamental

3
Học viện chính trị quốc gia Hồ Chí Minh – Trung tâm nghiên cứu quyền con người (1997), Các văn kiện quốc
tế về quyền con người, NXB Thành phố Hồ Chí Minh, Thành phố Hồ Chí Minh.

6
component of the Constitution. Similarly, the English Bill of Rights of 1689 holds
great importance as a source of the unwritten constitution of the United Kingdom.4

Although each country has its own way of regulating human rights and civil
rights, it is undeniable that human rights are one of the most fundamental and
indispensable contents of the Constitution. The recognition, protection, and guarantee
of human rights is the mission and goal of the Constitution.

3. Human Rights in Constitutional Law of Viet Nam and the United

States.
3.1. Analyze the origins of human rights.

Vietnam and the United States share a lot in common when it comes to the origins
of human rights, but there are also some differences. Both countries experienced
significant effects due to the doctrine of natural rights. The notion of human rights has
its historical roots in ancient Greece and Rome, when Greek Stoicism's natural law
doctrines played a significant role. This is where most scholars studying human rights
begin their research.5 There are two main schools of thought that present different
perspectives on the history of human rights. According to proponents of the theory of
natural rights, every person has the inherent right to certain freedoms just by virtue of
being a member of the human race. Thus, human rights are independent of societal
norms, cultural practices, individual preferences, or the intentions of any group within
a state or society. Consequently, nobody, not even the government, has the authority to
give or take away a person's inalienable human rights. The expression "human rights"
is relatively recent, having come into everyday parlance only since World War II and
having only become commonplace since the United Nation's foundation in 1945, it
took the catalyst of World War II to propel human rights onto the international scene
and into the global awareness.6

4
Hoàng Lan Anh (2014), Bảo đảm quyền con người trong Hiến pháp Việt Nam (Luận văn Thạc sĩ Luật học, Khoa
Luật, Đại học Quốc gia Hà Nội).
5
Burns H. Weston, “Human Rights”, Human Rights Quarterly, Vol. 6, No. 3 (Aug., 1984), p. 258.
6
Ibid. p.257.

7
 Human rights are recognized by laws in both Vietnam and Untied States. It is the
2013 Constitution of Vietnam as well as other legal texts. It consists of the United
States Constitution of 1787, the Declaration of Independence of 1776, and other legal
texts for the United States.

Vietnam and the United States have different origins for human rights, although
sharing parallels in their history:

Vietnam is influenced by Confucian ideology, which emphasizes the role of the

collective and community. Vietnamese people have always had to struggle for their
basic human rights - the freedom and right to live in independence - as well as for the
opportunity to live compassionate lives marked by mutual love and care. Human rights
and compassion are always combined in Vietnamese social reality. That "Our
Vietnamese ancestors have come close to today's international human rights
standards"7 is another belief that some opinions affirm. Vietnam's human rights history
can be separated into two primary eras: The period before The August Revolution of
1945 and the period after The August Revolution of 1945. The August Revolution of
1945, led by our Party and President Ho Chi Minh, opened a new era for the
Vietnamese people - the era of national independence linked to socialism. From the
perspective of human rights, it can also be said that the August Revolution opened the
era of national self-determination linked to civil rights and Human rights established in
our country.8 During this period, human rights in Vietnam were enshrined in the legal
documents of the new state, especially the Constitution of 1946. The Constitution of
1946 recognized fundamental human rights, including the right to life, liberty, equality,
and the pursuit of happiness.

The United States is influenced by the ideology of individualism, which

emphasizes the role of the individual. In the United States, the idea of “human rights”
is historical; it does not exist or arise naturally; rather, it emerges only after American
7
Tạ Văn Tài (1988), “The Vietnamese Tradition of Human Rights (Truyền thống nhân quyền Việt Nam)”, p.44.
8
TS. Cao Đức Thái, “Cách mạng Việt Nam với vấn đề quyền con người”, https://tuyengiao.vn/tuyen-truyen/cach-
mang-viet-nam-voi-van-de-quyen-con-nguoi-4489 (last accessed on 23 November 2023).

8
society reaches a particular point, at least in terms of ideology. Although they were
aware of the rights to freedom and liberty, the original settlers in America were not
aware of the concept of "human rights". 9 The United States's human rights history can
be separated into two primary eras: The period before 1776, the doctrine of natural
rights influences human rights in the United States. Human rights were believed to be
inherent and innate by thinkers during this period, and believed that everyone is born
with them. And the period after 1776, The United States Constitution of 1787 and the
Declaration of Independence of 1776, in particular, both contain provisions that uphold
human rights in the country. All people are created equal and with certain inalienable
rights, such as the right to life, liberty, and the pursuit of happiness, according to the
1776 Declaration of Independence. The United States Constitution established a
republic that provided a number of rights and civil liberties when it was ratified in 1787
at both a national convention and colonial conventions.10

3.2. Comparing measures for the protection of human rights.

There are both similarities and differences in the ways that these foundational
documents protect fundamental human rights when comparing the measures for human
rights protection found in the Constitutional Law of Vietnam and the United States
Constitution.

Basic human rights are recognized and enshrined in both constitutions. These
constitute the cornerstone of human dignity and safeguarding individuals against
capricious or unfair treatment, and they include the rights to life, liberty, equality, and
the pursuit of happiness. The obligation of the state to preserve and defend human
rights is stated in both Vietnam and the United States. This duty includes establishing
the legal framework necessary to protect these rights, upholding the applicable laws,
and guaranteeing that those who violate them can seek redress. Mechanisms for
9
“Nhân quyền tại Hoa Kỳ”, https://vi.wikipedia.org/wiki/Nh%C3%A2n_quy%E1%BB%81n_t%E1%BA
%A1i_Hoa_K%E1%BB%B3 ((last accessed on 25 November 2023).
10
“Human rights in the United
States”,https://en.wikipedia.org/wiki/Human_rights_in_the_United_States#History (last accessed on 23
November 2023).

9
protecting human rights are stipulated in both constitutions, which include legal,
judicial, and social mechanisms. The implementation of these mechanisms is crucial in
ensuring that human rights are effectively enforced.

The Vietnamese Constitution and the United States Constitution both have
provisions on human rights protection. However, these two constitutions also have
significant differences in human rights protection measures, specifically as follows:

First, in terms of application scope: Human rights are guaranteed to all people by
the Vietnamese Constitution, irrespective of their race, religion, gender, social class,
political affiliation, or legal status. Human rights are guaranteed to all US citizens by
the United States Constitution, irrespective of their race, religion, gender, social class,
beliefs, political opinions, or legal status. But in actuality, some non-US citizens are
also covered by the US Constitution's human rights provisions, including: foreign
nationals who are lawfully residing in the US; asylum seekers and refugees; an
individual without state; people who are detained or arrested in the US. Those who are
"subject to the jurisdiction of the United States" and former slaves are recognized as
citizens under the 14th Amendment.11

Second, according to the Vietnamese Constitution, civil rights and human rights
are the highest forms of human rights that must be upheld, safeguarded, and guaranteed
by the law and the Constitution. Human rights are natural rights that are inalienable to
humans, according to the US Constitution.

Third, Regulations concerning human rights: Many fundamental human and civil
rights are outlined in the Vietnamese Constitution, such as the freedom of speech and
the press, the right to equality, the right to life, and the right to participate in social and
governmental decision-making. Rights to health care, education, and environmental
protection; freedom of choice; freedom of religion and belief; freedom of assembly and
association; freedom of business; ownership rights; etc. Many fundamental human and
11
“Hiến pháp Hoa Kỳ”, https://vi.wikipedia.org/wiki/Hi%E1%BA%BFn_ph%C3%A1p_Hoa_K%E1%BB%B3
(last accessed on 25 November 2023).

10
civil rights are outlined in the United States Constitution, such as the following: the
freedom of speech, the press, the right to life, liberty, and property; the freedom of
assembly, association, and movement; the right to a fair trial; and the right to freedom
of religion or belief.

Human rights are evidently defined more precisely and explicitly in the
Vietnamese Constitution than they are in the United States Constitution.

3.3. Examining particular human rights in Viet Nam and the United States.
3.3.1. Human rights in Vietnamese Constitution.

President Ho Chi Minh stated human rights and the people's right to independence
and self-determination in his Declaration of Independence, which was read aloud in Ba
Dinh Square on September 2, 1945, before the Vietnamese Constitution was created.
Vietnamese people, and from there he confirmed that the national independence
movement of the Vietnamese people is legitimate. President Ho Chi Minh suggested
that we construct the Constitution as one of our six urgent tasks at the time, following
the August Revolution's victory in 1945. He made the following observation: "Our
nation lacks a constitution and its citizens are deprived of democratic freedoms
because it was first ruled by a monarchy and subsequently by colonialism, both of
which were equally despotic. A democratic constitution is essential.”12

The 1946 Constitution was the first to sincerely acknowledge human rights, and
the concept of human rights is present throughout the document. In Article 1 of the
1946 Constitution, it is written: “Vietnam is a democratic republic. All power in the
country belongs to the entire Vietnamese people, regardless of race, gender, rich or
poor, class or religion.”13 Through many Constitutions, right from the first
Constitutions of our country, the spirit of respect for human rights values has been
expressed through regulations on citizenship. Since then, Vietnam's constitutions have
gradually improved and expanded upon civil and human rights. If the basic rights and
12
Cao Đức Thái (2005). Tư tưởng quyền con người trong Tuyên ngôn độc lập năm 1945 của Chủ tịch Hồ Chí
Minh. Tạp chí Cộng sản, (17), p.23-26.
13
Hiến pháp 1946, Điều 1.

11
obligations of citizens were covered in eighteen articles in the 1946 Constitution, then
they were covered in twenty-one articles in the 1959 Constitution, 29 articles in the
1980 Constitution, and 34 articles in the 1992 Constitution. Inheriting the ideas of
previous Constitutions on human rights, the 2013 Constitution recognized human rights
in Chapter II: "HUMAN RIGHTS, FUNDAMENTAL RIGHTS AND OBLIGATIONS
OF CITIZENS". One could argue that this is how the 1946 Constitution's "position"
has been passed down. Furthermore, the 2013 Constitution has reaffirmed the
fundamental ideas of acknowledging, upholding, and protecting human rights in a
clearer manner.

The 2013 Constitution adds several new human rights that were not included in
earlier versions, in addition to making the principles of respecting, ensuring, and
defending human rights in Vietnam more explicitly stated. Human rights and
fundamental citizen rights and obligations have undergone significant modifications as
a result of the 2013 Constitution. Vietnam has ratified international treaties, and the
revisions and additions made to recognize new rights are entirely compliant with those
treaties as well as the global movement toward greater awareness of human rights
issues. From there, it goes on to reaffirm its unwavering dedication to seeing that
human rights are implemented.

3.3.2. Human rights in the United States Constitution.

The obvious truth that all men are created equal and that they are endowed by
their Creator with certain unalienable rights, such as the right to life, freedom, and the
pursuit of happiness, was affirmed in the American Declaration of Independence in
1776.

The Constitution of the United States is the supreme law of the United States of
America.14 The U.S. Constitution is made up of the Preamble, seven articles, and 27

14
Maier, Pauline (2010), Ratification: The People Debate the Constitution, 1787–1788, New York: Simon &
Schuster, p.35.

12
amendments, starting with the phrase "We the People". The Bill of Rights consists of
the first ten amendments.15 Here is a brief summary of the ten amendments' contents:

“First amendment is about the Freedom of Religion, Speech, Press, Assembly,

and Petition.

Second amendment is about the Right to Bear Arms.

Third amendment is about the Quartering of Soldiers.

Fourth Amendment is about the Search and Seizure.

Fifth Amendment is about the Grand Jury, Double Jeopardy, Self Incrimination,
Due Process, Takings.

Sixth Amendment is about the Right to Speedy Trial by Jury, Witnesses, Counsel.

Seventh Amendment is about the Jury Trial in Civil Lawsuits.

Eighth Amendment is about the Excessive Fines, Cruel and Unusual Punishment.

Ninth Amendment is about Non-Enumerated Rights Retained by People.

Tenth Amendment is about the Rights Reserved to States or People.”16

The United States Bill of Rights, or simply the United States Bill of Rights, is the
name given to the first ten Amendments later on. Human rights are recognized as
universal and enforceable by US law and US courts. They are safeguarded by the
federal government in the United States Constitution and the Fourteenth Amendment,
by each state in their bill and declaration of individual rights, and by law those nations
are included in the Union and subject to all state laws.17

15
“The United States Constitution”, https://constitutioncenter.org/the-constitution (last accessed on 25 November
2023).
16
Ibid.
17
M.N.S. SELLERS, “Universal Human Rights in the Law of the United States”, The American Journal of
Comparative Law, Vol. 58 (2010), p.553.

13
 CONCLUSION


One of a person's most fundamental rights is the protection and upholding of their
human rights, which is also one of the State's most significant duties. Human rights are
therefore the main objective of each nation's constitution. The Constitution guarantees
the application of human rights in addition to governing how the state is organized. As
a result, the application of human rights is guaranteed by the application of the
Constitution.

It is evident that the human rights provisions of both the United States
Constitution and the Vietnamese Constitution are rather extensive and comprehensive.
The two constitutions do, however, also differ significantly, reflecting the unique
historical, cultural, political, and economic features of each nation. Comparing the two
constitutions is crucial to comprehending and learning from other nations' best
practices for defending human rights. By doing this, Vietnam will be able to better
uphold its human rights legal system, fulfill its obligations under international
integration, and develop a society that is just, democratic, and civilized.

14
 REFERENCES


“An Introduction to Human Rights”,

https://humanrights.gov.au/our-work/education/introduction-human-rights (last
accessed on 21 November 2023).

Burns H. Weston, “Human Rights”, Human Rights Quarterly, Vol. 6, No. 3

(Aug., 1984), p. 258.

“Global issue Human Rights”, https://www.un.org/en/global-issues/human-rights

(last accessed on 21 November 2023).

“Human rights in the United States”,

https://en.wikipedia.org/wiki/Human_rights_in_the_United_States#History (last
accessed on 23 November 2023).

M.N.S. SELLERS, “Universal Human Rights in the Law of the United States”,
The American Journal of Comparative Law, Vol. 58 (2010), p.553.

Maier, Pauline (2010), Ratification: The People Debate the Constitution, 1787–
1788, New York: Simon & Schuster, p.35.

“The United States Constitution”, https://constitutioncenter.org/the-constitution

(last accessed on 25 November 2023).

Cao Đức Thái (2005). Tư tưởng quyền con người trong Tuyên ngôn độc lập năm
1945 của Chủ tịch Hồ Chí Minh. Tạp chí Cộng sản, (17), p.23-26.

“Hiến pháp Hoa Kỳ”, https://vi.wikipedia.org/wiki/Hi%E1%BA%BFn_ph

%C3%A1p_Hoa_K%E1%BB%B3 (last accessed on 25 November 2023).

Hiến pháp 1946, Điều 1.

15
 Hoàng Lan Anh (2014), Bảo đảm quyền con người trong Hiến pháp Việt Nam
(Luận văn Thạc sĩ Luật học, Khoa Luật, Đại học Quốc gia Hà Nội).

Học viện chính trị quốc gia Hồ Chí Minh – Trung tâm nghiên cứu quyền con
người (1997), Các văn kiện quốc tế về quyền con người, NXB Thành phố Hồ Chí
Minh, Thành phố Hồ Chí Minh.

“Nhân quyền tại Hoa Kỳ”, https://vi.wikipedia.org/wiki/Nh%C3%A2n_quy

%E1%BB%81n_t%E1%BA%A1i_Hoa_K%E1%BB%B3 (last accessed on 25
November 2023).

Tạ Văn Tài (1988), “The Vietnamese Tradition of Human Rights (Truyền thống
nhân quyền Việt Nam)”, p.44.

TS. Cao Đức Thái, “Cách mạng Việt Nam với vấn đề quyền con người”,
https://tuyengiao.vn/tuyen-truyen/cach-mang-viet-nam-voi-van-de-quyen-con-nguoi-
4489 (last accessed on 23 November 2023).

16