Law is a legitimizing authority. Legitimacy is ‘the acceptance and justification of shared rule by a community’ (Bernstein 2005), and it is one of the components for effective governance in sustainable development (Lockwood 2010). In liberal democratic systems, governments are typically legitimized through electoral processes, and their decisions are given weight by legislation (Boedeltje and Cornips 2004). In fact, as Sakamoto, G. et al. (2016) pointed out, legitimacy depends on acceptance by the community or people and the results of the acceptance, that is, the law. People's acceptance is permission for the law, which is the evidence of legitimacy. Issues, however, arise between the government and people because the recognition of law by the government and the acceptance of the law by the people are different. Even if people accept the law, it is possible that an issue of legitimacy may arise due to the inconsistency between the laws and their implementation.
This paper identifies the current legal rulings on genetic resource in Vietnam and the above-mentioned aspects focusing on the legal status of genetic resource using a mix of methods including legal interpretation analysis and interviews with the persons in charge of the relevant laws. Genetic resource was stipulated in international conventions, such as the Convention on Biological Diversity (CBD), and in the national law in Vietnam, such as the Biodiversity Law and the Seed Ordinance. CBD recognizes the sovereign rights of states over their natural resources, and their authority to control access to genetic resource. Falling under the jurisdiction of the national governments, genetic resource is therefore subject to national legislation. However, CBD does not refer to the legal status (such as the right to own, utilize, exchange, and transfer) of genetic resource because it is dependent on the national legislation and contract. Previous studies, such as Elisa Morgera (2013) and Kristin G. Rosendal (2016), have focused on the national ABS system in some countries but not studied about Vietnam and the legal status aspects in the country regarding genetic resource. This paper makes a special mention of the Vietnamese legal system because the legal status of its genetic resource drastically changed from being State-owned property to People-owned property, historically.
Survey results have shown that by reviewing the relevant law documents on genetic resource in Vietnam, such as the Civil Code (2015 revised), Biodiversity Law (2008), Intellectual Property Law (2009), and the Seed Ordinance (2004), genetic resource is now managed as a People-owned property since 2008 in accordance with the Biodiversity Law. Relevant laws on genetic resource are consistent with each other. However, on being interviewed, the person in charge of the Biodiversity Law revealed the potential issue in the implementation of the Biodiversity Law because the Biodiversity Conservation Agency assigns limited organizations and individuals, such as the national park, to manage genetic resource. According to the officer, there are no applications at the moment, and a potential risk of conflict arising between the people and government is possible if the Biodiversity Law is not implemented and hence, it is soon expected to implement the assignment to avoid conflict.
Keywords: Genetic Resource, Legitimacy, Vietnam, Biodiversity Law, legal status
9d. Law and sustainability
