It will be demonstrated how these violations are denying the Montagnards the right “to enjoy their own culture” and “to use their own language” as stated in Article 27 of the ICCPR. Article 27 states:  

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.  

The Human Rights Commission (HRC) has previously ruled on such violations in relation to indigenous peoples and notably ruled that  economic activities and expropriations of lands fit within the scope of Article 27. These HRC rulings involve the ‘Saami’ an indigenous peoples of Scandinavia and indigenous Indians in Canada. 

These cases are:

In summary it will be fully documented that these violations deny the Montagnard peoples the right to enjoy their own culture and use their own language. It is noted that these violations contribute both singularly and as overlapping processes to the cultural genocide of the Montagnard Peoples. Further these violations will also breach norms of human rights in other instruments such as the Universal Declaration of Human Rights and United Nations Charter.  

These breaches of Article 27 (Violations 3, 4, 5, 6, and 7) will however, each be specifically addressed and documented below.

VIOLATION 3: PROHIBITIONS OF TRADITIONAL CULTURE

Since 1975 the SRV has enacted extensive policies preventing Montagnards from practicing traditional ‘Swidden’ or ‘slash and burn’ agriculture (which is an essential and defining element to Montagnard culture) and forces them into practicing ‘fixed field’ or Vietnamese style farming.   

The SRV also has enacted extensive policies preventing Montagnards from living in traditional long houses (which are also an essential and defining element to Montagnard culture).  

Background:

The ‘centuries old’ Swidden agriculture practices are notably, a defining element of Montagnard society and their connection to the land, i.e. an essential part of their traditional culture. All adult members of the Montagnard community take part in planting and harvesting where the Swidden plots are planted around the outskirts of the villages. The entire Montagnard community revolves around these traditional farming practices.  The SRV however, has sought to prevent these practices by forcibly relocating Montagnard villages and compelling them to farm fixed/permanent fields (Vietnamese style) in new locations. These relocations result in Montagnards receiving inferior and inadequate croplands where authorities can keep close watch over their practices through government collectives. Further Montagnards are often forced into starvation and suffer from resulting malnutrition. The SRV also prohibits the use of traditional long houses, another defining element of Montagnard culture, i.e. an essential part of their traditional culture. This is done by forcing Montagnards to live in (Vietnamese style) or single-family on the ground houses at the relocated villages. Villages which have not been relocated are also subject to having the long houses destroyed or forcibly rebuilt into single family houses. These policies are destroying Montagnard culture.  

The Evidence:

1. The SRV has enacted the widespread policy of  “Fixed Field/ Fixed Residence” specifically targeting the Montagnard Peoples of the Central Highlands. This policy is administered by the Committee for Ethnic Minorities and Mountainous Areas. Montagnards throughout the SRV are prohibited from practicing traditional ‘Swidden’ agriculture. In 1991 the Deputy Director of the Department for Fixed Cultivations and Settlement of the Ministry of Forestry reported that 70% of the Montagnard population have been resettled under this ‘Fixed Field/Fixed Residence’ policy [Salemink, Research Report: Vietnam’s Central Highlands, March – June 1991, WOTRO Doss. No. W52-456 Cooperation Program VH 26 at 3].

2. The UNDP reported in 1997 that the “Fixed Field/Fixed Residence” policy has “not always been favorable for the ethnic people mainly because of the limits on land allocations and land use but also because the planners have ignored the realities of the ethnic minority household economy and the great variety of its farming systems. The resettlement of ethnic people often disrupted their social organization and their traditional farming systems” [Highland Peoples Program, Management Team-Regional Workshop, “Country Comparisons on Highland Peoples Development Issues – Vietnam,” Inter-Ministerial Committee for Highland Peoples Development in the North East of Cambodia, UNDP 1997 at section Migration, settlement and resettlement].   

3. The UNDP reported in 1997 that 20,000 ethnic minorities have been further relocated under Decree 327 [For reference see point (2) above].

4. Five Year plans have called for the relocations of hundreds of thousands (of   Montagnards) [Lundberg, Vietnam, in Stokke, Suhrke, Tostensen, Human Rights in Developing Countries Yearbook 1997, Nordic Rights Publications The Hague/London/Boston at 370-371].  

5.  Montagnard Long houses have officially been discouraged and villages rebuilt with single family/Vietnamese style dwellings. Montagnard elders have reported resisting this prohibition upon their traditional practices [Evans “Central Highlanders of Vietnam”, in Barnes, Gray and Kingsbury, Indigenous Peoples of Asia (1995) Association of Asian Studies, Chapter 12 at 264-265].  

6. The goals of “Fixed Field/Fixed Residence” policy has officially been stated as “to turn nomads into sedentary farmers” and allowing Montagnards to, “join the advance to socialism” [Vu Can “Farewell to Primitive Life” Vietnam Courier, No 10 (1986) 17-19].  

Rulings by the Human Rights Commission (HRC):

The HRC in Lansman et al. v. Finland observed that economic activities are protected by Article 27, provided these activities are essential elements to their culture. This case involves the indigenous Saami peoples of Finland. The HRC here relied on Kitok v Sweden where it was stated,  

“The regulation of an economic activity is normally a matter for the state alone. However, where that activity is an essential element in the culture of an ethnic community, its application to an individual may fall under article 27.” [See Lansman and Kitok cases both at 9.2]  

In Lansman the HRC found that Article 27 was not violated in this case because the impact upon cultural rights was not so substantial that it effectively denied to the Saami peoples the right to enjoy their own culture. However, the HRC made important findings applicable to the Montagnard situation.  

Notably the HRC observed that future activities must not infringe upon the rights of the indigenous Saami Peoples or prevent them from continuing to practice their traditional culture [Lansman at 9.7, 9.8, and 10].  

In Lubicon Lake Band v Canada the HRC stated that, “The rights protected by article 27 include the right of persons in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.” [Lubicon at 32.2].

The HRC further identified the importance of the individual to preserve their right to have access to their culture in Lovelace v Canada.  

Remedial Measures:

The “Fixed Field, Fixed Residence” policy enacted by the SRV logically compares to the Lansman case.  As ‘Swidden’ agriculture is a defining and essential element of Montagnard culture it appears clear that restrictions imposed upon Montagnard agricultural practices (economic activities) will violate Article 27. Likewise, prohibitions upon residing in traditional long houses are denying the right to enjoy one’s own culture, thus clearly violating Article 27.  

In conclusion it can be said that these restrictions on economic activities and residing in long houses deny the Montagnards the right to enjoy their own culture.  

 Rulings by the Human Rights Commission (HRC):

In Lubicon Lake Band v Canada the issue was how the Canadian government was permitting the provincial government of Alberta to expropriate Indian lands for the benefit of private corporate interests. The HRC stated here that, “The rights protected by article 27 include the right of persons in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.” [Lubicon at 32.2]    

Notably the HRC further stated that, “Historical inequities” and these “recent developments threaten the way of life and culture” of the Indian Band and therefore constitute a violation under article 27 [Lubicon at 33].

 Thus it is clear that expropriation of tribal lands fit within the scope of Article 27. As per the facts in Lubicon it appears governments cannot forcibly expropriate tribal lands and threaten the culture of a community.  

  Remedial Measures:

These policies are forced assimilation and in violation of international law, namely Article 27 of the ICCPR and the general principals of the Universal Declaration of Human Rights. Further this violation breaches Article 15, 1 (a) of the International Covenant on Economic, Social and Cultural Rights   (ICESCR), “To take part in cultural life”. Further the HRC’s “General Comment 23” on Article 27, states “those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them”. The Montagnard peoples request these rights and their traditional culture be protected. 

VIOLATION 5: REPRESSION OF INDIGENOUS LANGUAGES 

Since 1975 the SRV has enacted policies prohibiting and restricting Montagnards from using and practicing their own indigenous languages. 

The Evidence:

1. The SRV burned and destroyed virtually all Montagnard literature and books after taking over the Central Highlands in 1975.  

2. In 1991 the SRV government (Department of Minorities Education) reported that, “the use of minority languages was not appropriate for anything except for recitation of folklore.”       

3. The SRV has enacted an official policy requiring there must be 500,000 persons of an ethnic group to qualify for development of written script or literature within the SRV. This population requirement is a repression of indigenous languages as it excludes all Montagnard groups. The various tribal groups all speak different languages and do not have populations of this number.  

4. There are reportedly no specific educational materials relating to indigenous peoples or minorities having been developed or encouraged by the SRV.     

Remedial Measures:

Rulings by the Human Rights Commission (HRC):

The extensive deforestation is destroying the culture and traditional way of life of the Montagnard people. The Montagnard peoples are being forced off their lands and their forests are being destroyed. The HRC has however ruled on such issues.  

In Lubicon Lake Band v Canada, the issue was how the Canadian Government was permitting the provincial government of Alberta to expropriate Indian lands for the benefit of private corporate interests. The HRC stated, “The rights protected by article 27 include the right of persons in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.” [Lubicon at 32.2].  

The HRC further stated that, “Historical inequities” and these “recent developments threaten the way of life and culture” of the Indian Band and therefore constitute a violation under article 27.   [Lubicon at 33].  

Deforestation of Montagnard forest lands in the Central Highlands logically apply to the facts in the Lubicon case as these logging policies expropriate the Montagnard’s traditional lands. In conclusion it can be said; the deforestation of Montagnard lands deny the Montagnards the right to enjoy their own culture.

  Remedial Measures:

These policies result in forced assimilation and the destruction of Montagnard culture and are in violation of international law, namely Article 27 of the ICCPR and the general principals of the Universal Declaration of Human Rights. Further this violation breaches Article 15, 1 (a) of the International Covenant on Economic, Social and Cultural Rights  (ICESCR), “To take part in cultural life”. Further the HRC’s “General Comment 23” on Article 27, states “those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them”. The Montagnard peoples request they be granted land rights and this deforestation of their traditional lands immediately cease.

Rulings by the Human Rights Commission (HRC):

The population transfers are displacing Montagnards thus resulting in the expropriation of their homelands, which further results in the erosion of Montagnard culture. 

In Lubicon Lake Band v Canada, the issue was that the Canadian Government was permitting the provincial government of Alberta to expropriate Indian lands for the benefit of private corporate interests. The HRC stated, “The rights protected by article 27 include the right of persons in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.” [Lubicon at 32.2].   

The HRC further stated that, “Historical inequities” and these “recent developments threaten the way of life and culture” of the Indian Band and therefore constitute a violation under article 27.   [Lubicon at 33].  

Population transfers which displace Montagnards would logically apply to the facts in the Lubicon case as this policy expropriates their traditional lands. In conclusion it can be said; the population transfers which displace Montagnards deny them the right to enjoy their own culture.

Remedial Measures:

These policies result in forced assimilation and the destruction of Montagnard culture. And are in violation of international law, namely Article 27 of the ICCPR and the general principals of the Universal Declaration of Human Rights. Further this violation breaches Article 15, 1 (a) of the International Covenant on Economic, Social and Cultural Rights  (ICESCR), “To take part in cultural life”. Further the HRC’s “General Comment 23” on Article 27, states “those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them”. We the Montagnard peoples request we be granted land rights as indigenous peoples and that pressure be brought on the SRV to immediately halt these transfers and resulting displacement of our indigenous peoples.