Overview of Vietnam's environmental laws

OVERVIEW OF VIETNAM'S ENVIRONMENTAL LAWS

Vo Trung Tin, Ph.D Candidate

Deputy Head of Department of Land - Environment Law

Faculty of Commercial Law, HCM City University of Law

Abstract

Environmental protection has got much attention and been prioritized in

policy making for economic – social development of countries worldwide, including

Vietnam. The policies have been gradually institutionalized into law. Environmental

Law comes into existence as late in Vietnam as in other developing countries, which

could be affirmed the latest legal field. Before Environmental Protection Law was

issued as an independent legal document by the National Assembly, other

environmental regulations in Vietnam have covered some aspects of environmental

protection, to meet the authority’s management need without targeting at protecting

environmental factors. Regulations on environment or environment-related have

been found in many separate legal documents. In order to meet the growing demand

for integration, Vietnam needs to continue to reform environmental regulations. The

paper analyzes the Vietnamese environmental regulations and practical

implementation, thereby giving some suggestions.

Keywords: Environment, environmental regulations, environmental

protection law, sustainable development.

1. Introduction

The paper uses a number of theoretical foundations such as: The theory of

environmental economics, the theory of basic principles regulating the conflict

between economic development and environmental protection in a market economy,

the theory of sustainable development and views of the Socialist Republic of Vietnam

on sustainable socio-economic development, ensuring social progress, building a

consistent and transparent legal system. There are environmental laws to meet the

integration needs and implement international commitments stemming from

international treaties that Vietnam has participated in.

On the basis of assessing the legal regulations and practical implementation, the

paper interprets and proposes solutions to improve Vietnam's environmental law.

2. Method

During the study, the author uses many specific methods such as systematic

methods, analytical and synthesized methods, comparative law methods, statistical

methods, especially analytical methods breaking the law.

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3. Result

3.1. The development of Vietnam’s environmental laws

Environmental protection in Vietnam has become the real concern since the

1990s of the 20^thcentury with the official institutionalization into the Constitution.

Article 17 and Article 29 of the 1992 Constitution are the constitutional bases for the

incorporation of environmental protection obligations into other fields of economic

life¹. Articles 43, 53, and 63 of the 2013 Constitution also provide for environmental

protection². The appearance of Environmental Protection Law 1993 (later replaced

with the Environmental Protection Law 2005 and the Environmental Protection Law

2014), as an independent legal document on environment, continued to confirm the

deep concern of Vietnam Government to environmental protection. The regulations

on environmental protection are not only found in Environmental Protection Law, but

also in other legal documents, governing every human activity which has effects upon

on nature, causing certain impacts on living environment. The system of legal

documents in environment in Vietnam is categorized into two groups: (i) Group of

documents on environmental protection, and (ii) group of documents on exploitation

and management of environmental factors (including statutes issued by the National

Assembly; Decrees issued by the Government; Circulars, Decisions issued by the

specialized Ministries)³.

General as well as specialized legal documents in Vietnam impose obligations to

protect environment on every relevant individuals and organizations. When mentioning

to environmental protection, specialized legal documents normally refer to measures to

prevent, to fight, to overcome environmental pollution, environmental degradation, and

environmental incident as being regulated in Environmental Protection Law, or apply

¹Acording to Article 17, The 1992 Constitutions: “The land, forests, rivers and lakes, water supplies, wealth

lying underground or coming from the sea,… and all other property determined by law as belonging to the

State, come under ownership by the entire people”; Acording to Article 29, The 1992 Constitutions: “State

organs, units of the armed forces, economic and social bodies, and all individuals must abide by State

regulations on the rational use of natural wealth and on environmental protection. All acts likely to bring about

exhaustion of natural wealth and to cause damage to the environment are strictly forbidden”.

²Acording to Article 43, The 2013 Constitutions “Everyone has the right to live in a clean environment and

has the obligation to protect the environment”; Acording to Article 53, The 2013 Constitutions: “Land, water

resources, mineral resources, resources in the sea and airspace, other natural resources, and property

managed or invested in by the State are public property, owned by all the people, and represented and

uniformly managed by the State”; Acording to Article 63, The 2013 Constitutions: “1. The State shall adopt

environmental protection policies; manage and use natural resources in an efficient and sustainable manner;

conserve nature and biodiversity; and take the initiative in preventing and controlling natural disasters and

responding to climate change. 2. The State shall encourage all activities for environmental protection and the

development and use of new energy and renewable energy. 3. Organizations and individuals that cause

environmental pollution, natural resource exhaustion or biodiversity depletion shall be strictly punished and

shall rectify and compensate for damage”.

³See Law on Cultural Heritage 2001 (amended in 2009); Law on Minerals 2010; Law on Food Safety 2010;

Law on Water Resources 2012; Law on Environmental Protection 2014; Law on Natural Resources and

Environment of Sea and Islands 2015, Law on Forestry 2017, Law on Fisheries 2017.

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environmental quality standards, environmental impact assessment provided for in

implementing documents of the Environmental Protection Law.

From constitutional principles of Constitution 2013, the come out of

Environmental Protection Law, the basic changes in environmental protection

awareness are manifested through criminalization of conduct of destroying

environment under Criminal Code 1999 (amended in 2009)⁴and Criminal Code

2015⁵. It can be concluded that Vietnam has initially established a system of legal

documents on environmental protection with the target to contribute into the

protection of natural resources, environment purity, and sustainable development.

3.2. Dealing with environmental violation exampled with a specific case

Setting up an environmental court in Vietnam is quite a new question. This

originates from the aversion of litigation of the majority of Vietnamese people.

Conflicts, disagreements are usually resolved by negotiation or mediation. Legal

responsibilities impose on breach of environmental law depend on the level of such

breach and include: (i) Administrative responsibility; (ii) Civil liability; (iii) Disciplinal

responsibility; (iv) Criminal responsibility. Accordingly, it is popular to apply

administrative sanction to deal with environmental breaches. Vietnam Government has

issued quite many Decrees on administrative sanctions for breaches on environment

protection, exploitation of natural resources, environmental hygiene, and destruction of

heritages… However, the application thereof is not thorough (due to lacking of

mechanism to ensure the enforcement of law; no effective measures in dealing with

violations of environmental law - especially in dealing with administrative violations);

The case of Vedan Corporation discharging waste water to Thi Vai River is a

typical example. This is a case of environmental pollution which was jointly

uncovered by the Environmental Policeman Agency - the Ministry of Police and the

Ministry of Natural Resources and Environment in September 2008. The installation

of the waste exhausting system by Vedan is a serious violation of environmental

protecting regulations. The investigation has published 10 violations by Vedan,

including: exceeding waste water discharges standard, not fully implementing

environmental monitoring, not registering the commitment to protect the

environment, not doing the report on environmental impact assessment, not

complying with regulations on hazardous waste management... A weak

administrative sanction of 267.5 million VND⁶imposed on these violations shall lead

⁴Chapter XVII, from Art. 182 to Art. 191a.

⁵Chapter XIX, from Art. 235 to Art. 246.

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Chief Inspector of Ministry of Natural Resources and Environment made decision on sanction against

Vedan’s administrative violations in the field of environmental protection with the amount of 267,5 million

VND, collecting environmental protection fee arrears of more than 127 billion VND

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many other companies to cause serious environmental pollution and accept the

sanctions instead of investing in waste water treatment systems because of manyfold

high cost in operating these systems. This rooted from the application of Decree 81 in

2006 by the Government on administrative sanctions for violations against the

environmental protection. Accordingly, the highest fine imposed on a violation is only

70 million VND. After this case, Decree 81 was replaced by Decree 117 in 2009, Decree

179 in 2014 and Decree 155 in 2016 on dealing with violations against the environmental

protection, providing the administrative sanction up to 2 billion VND⁷.

Vietnamese Prime Minister had urgently and decisively directed the functional

bodies to implement the measures in dealing with environmental protecting violations

towards Vedan Corporation. However, the case had continued to 2011 with the issue

of compensation by Vedan to residents along Thi Vai River. This was a long-lasting

environmental dispute due to the disagreement of the parties on the value of damages

as well as the joint responsibility by Vedan. 220 billion VND compensation by Vedan

to residents in Dong Nai, Ba Ria - Vung Tau and Ho Chi Minh City had reflected the

intervention of the authorities and the pressure by the mass media instead of voluntary

agreement by Vedan.

In Vietnam, environmental disputes are settled by one of three methods: (i)

Negotiation, mediation; (ii) Court hearing; (iii) Arbitration, among which

negotiation, mediation are commonly referred. There is no separate procedure for

environmental cases but trials are done mainly by civil proceedings in Civil Court.

Criminal responsibility by Vedan in the above-mentioned case has not been addressed,

due to the Vietnam legislation, i.e. no criminal responsibility is applied for legal entities

(enterprises) but for individuals (specific person) only. This is an issue debated among

legal researchers before the adoption of the Criminal Code 2015.

3.3. Management authorities on environment in Vietnam

Organizational structure and environmental management apparatus in most

countries around the world may be one among four following forms: (i)

Environmental Protection Authority is an independent ministry; (ii) Environmental

Protection Authority is a ministerial body or under the Government Office; (iii)

Environmental Protection Authority under a multifunctional ministry; (iv) no

individually specialized agencies for Environment, hence environmental

management functions belonging to some related ministries. In Vietnam, the

Government is the consolidating management authority on environment. The

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Decree No. 179/2013/ND-CP dated November 14, 2013 on the sanction of administrative violations in the

domain of environmental protection, Decree No. 155/2016/NĐ-CP dated November 18, 2016 on the sanction

of administrative violations in the domain of environmental protection, being effective on February, 01, 2017

and replacing Decree 179/2013/NĐ-CP).

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environmental management function is assigned to many different ministries (such

as Ministry of Science and Technology, Ministry of Agriculture and Rural

Development, Ministry of Health, etc.). Ministry of Natural Resources and

Environment is the Government body directly under the Government, performing the

function of state management of land, water resources; mineral and geological

resources; environment; meteorology, hydrology; surveying, mapping; general and

consolidating management of the sea and islands. Despite the fact that the Ministry

of Natural Resources and Environment is considered the body taking primary

responsibility for performing the state management function on environment, other

Ministries are also in the position of management authority (for example, Ministry of

Agriculture and Rural Development manages forest and fisheries resources; Ministry

of Culture, Sports and Tourism takes care of Heritages; Ministry of Science and

Technology manages standardization…). This leads to the dispersion of management

responsibilities and the overlapping in jurisdiction among the competent authorities.

The fact that many specialized ministries perform or coordinate to provide

guidelines for the implementation of legal documents in environmental protection

results in the overlapping, conflicts in functions and duties or even the status of “tranh

công đổ lỗi” (“Everybody's business is nobody's business”) in applying law of

environmental protection to real life. Even though the law of environmental

protection is formed with the reform process of the country, many issues in its

management model are not asymptotic to the advanced model of environmental

management. In fact, it is still a traditional state management model, in which the

enforcement of the law of environment protection has burdened the bureaucratic

administrative based government. According to this traditional management model

of Vietnam, one ministry not only plays a key role in managing one specialized area

but also shares its functions and cooperates with the other ministries to manage other

fields. That model is also applied to the local levels, specifically provincial and

district levels. The conflicts and overlaps in functions and duties in addition to the

lack of coordination are among the challenges arisen from this model. Furthermore,

the assurance of unanimity in the interpretation of law of environmental protection

by sectors, agencies and localities throughout the country also challenges the

performance of this model. Besides, the transparency, explanation accountability as

well as the public participation in these authorities’ activities should be improved.

The self-government and civil society play a quite blur role in guaranteeing the

common administrative targets.

From the international experience, environmental issues could be settled

effectively not only by state power but also the strength of the whole society,

especially the 3 main pillars: the government, the market and the civil society

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(including civil society organizations and the communities). However, many legal

issues and enforcement measures need to be improved for promoting the synergy of

all 3 pillars. For instance, it is necessary to change the mechanism for the

communities and civil society organizations to effectively supervise the enterprises’

observance of the environmental protection laws as well as to file lawsuits against

enterprises to stop their violations and ask for compensation for damages caused.

New mechanism to publicize the observance of law (especially the violation of the

environmental legislation by enterprises) should be more transparent. The data should

be announced publicly and nationally connected to facilitate the update, monitoring

and evaluation by the public.

3.4. Participation of Vietnam in international environmental treaties

In recent years, Vietnam has attempted to implement its obligations as a

member of the international environmental treaties, specifically:

- Carrying out legislative activities:

Before and after participating in international environmental treaties, Vietnam

has built a lot of legal documents to protect its environment and, contribute to the

implementation of international environment treaties. These documents have created a

legal framework to enforce environmental protection activities in Vietnam, implement

the international environmental treaties as well as contribute to the global environmental

protection. However, a number of obligations arising from the international

environmental treaties are not fully stipulated in current legal documents.

- Planning and implementing the protection of environment and natural resources:

Vietnam has built and implemented programs, short-term and long-term plans

to enforce the protection of its environment and natural resources. After participating

in the international environmental conventions, Vietnam has adopted the Action Plan

on biological diversity in 1995, Action Plan for the implementation of the Framework

Convention on Climate Change, National Strategy on Environmental Protection of

period 2001-2010… In addition, Vietnam has also established a system of nature

conservation areas to protect biological diversity.

- Establishing agencies to implement international environment treaties:

After participating in these international environment treaties, Vietnam has

defined its state agencies as “Vietnam agencies” for specific conventions, eg, Forest

Protection Department (FPD) under the Ministry of Agriculture & Rural

Development (MARD) is the agency for the Biological Diversity Convention and

CITES, Environment Protection Department (EPD) under the Ministry of Natural

Resources and Environment (MONRE) is the agency for Basel Convention, etc.

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Through legal system, management authorities are given powers to manage the

environment and natural resources, contributing to implementation of international

treaties on the environment.

Up to now, Vietnam has become member of about 20 international

environment treaties, namely the Convention on the Law of the Sea 1982, Vienna

Convention for the Protection of the Ozone Layer 1985, United Nations Framework

Convention on Climate Change 1992, The Basel Convention on the Control of Trans-

boundary Movements of Hazardous Wastes and Their Disposal (Basel Convention

1989), Convention on International Trade in Endangered Species of Wild Fauna and

Flora (CITES 1973), The Convention on Wetlands of International Importance,

especially as Waterfowl Habitat (RAMSAR Convention 1971), The International

Convention for the Prevention of Pollution from Ships (1973 MARPOL Convention),

Convention on Biological Diversity 1992, Convention concerning the Protection of

the World Cultural and Natural Heritage 1972,…

Besides, Vietnam has also actively participated in the other international

projects and institutions on biological diversity such as the Advisory Board of Science

and Technology of the Convention on Biological Diversity 1992, Project on “Reversing

Environmental Degradation Trends in the South China Sea and the Gulf of Thailand

(SCS), The Mekong Wetlands Biodiversity Conservation and Sustainable Use Program

(MWBP), Vietnam - Laos - Cambodia biodiversity Forum, Global Tigers Forum (GTF),

etc. In addition to the above agreements, Vietnam has also participated in regional and

sub-regional forums and organizations, especially treaties of ASEAN, including

agreements relating to environment protection in general and nature conservation and

biodiversity in particular. Within the ASEAN’s framework of environmental

cooperation, Vietnam also participated in other institutions such as the ASEAN

Ministerial Meeting on the Environment (AMME), ASEAN Senior Officials on

Environment (ASOEN) and the working groups of ASOEN on the following areas:

multilateral environmental treaties and conventions, marine environment and coastal

areas, nature conservation and biodiversity, sustainable development of urban areas ,

integrated management of water resources and the ASEAN Haze Technical Task Force

(HTTF). Vietnam is also an active member of ASEAN Regional Centre for Biodiversity

Conservation (ARCBC) based in the Philippines.

3.5. Review on the Vietnam legal system on environment and

recommendations

Firstly, the legal system on environment in Vietnam has grown in both

substance and procedures, covering almost all environmental components. Legal

documents on environmental protection have specified functions, duties and powers

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of the management authorities on the environment, as well as basic rights and

obligations of individuals and organizations in environmental exploitation, use and

protection. The system of environmental standards has been promulgated as legal

basis for determining legal responsibilities and obligations of stakeholders in

environmental protection. Legal documents have focused on global aspects of

environmental problems, clearly identifying that environmental protection is the

obligation of not only the Government but also the entire population. However, legal

documents on environment with regard to each environmental factor or governance

of human activities creating impact on the environment have not been issued

concurrently and consistently.

Secondly, the legal provisions on environmental protection cover relatively all

elements, content of which has promptly and fully spelt out the obligations of

international environmental protection that Vietnam has committed. However, the

mechanism of enforcement of national laws and international commitments are not

effective. Generally, the sanctions are not appropriate and strong enough for

punishment and deterrence against violations. In addition to active promulgation of

legal documents relating to environmental protection, Vietnam has gradually joined

the international conventions on environmental protection. The ratification of these

conventions is an important prerequisite for the integration of Vietnamese legal

system into the international common standards and rules governing human activities

creating impact on nature and environment.

Thirdly, it is a right decision, yet thorough to have the functions of state

management on environment and natural resources assigned to the Ministry of

Natural Resources and Environment. The management of natural resources have been

assigned to several ministries, sectors while the coordination mechanism for state

management is not concurrent and efficient

The building and improving the legal framework on environment should be

based on an overall evaluation of legal policies relating to the environment and

environmental protection (including the consolidation and analysis of strategies,

guidelines, documents, policies and the scientific proposals to perfect the legal system

on the environment and environmental protection).

To meet the above specific requirements, the following solutions must be

reached, including:

Firstly, the establishment of legal framework on the environment in Vietnam

must be stemmed from the overall policies and national orientations of socio-economic

development, which is determined in two ways: (i) amending and supplementing the

existing laws in order to overcome the inconsistency, unspecific, unclear in the

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governance of social relations in environmental protection; and (ii) promulgating new

regulations to cover other social relations which have not been governed yet

Secondly, the trouble of governing scope and actors of environmental

legislations must be solved thoroughly. The former must be associated with views on

sustainable development, environmental integrity, prioritization of both the

prevention and remediation, environmental improvement and conservation of natural

resources. The latter should be covered in a large scale, not only in Vietnam, but also

in the global and regional interests, not only the State as the main actor taking charge

of environmental protection but also many others such as public authorities, those

extracting and using environmental resources.

Thirdly, comply with the principles of environmental law. Referring to any legal

area, it often refers to principle issues. Environmental law is not outside this approach.

Completing the Vietnamese law on the environment must comply with the principles of

environmental law. The principle of state recognition and protection of human rights to

live in a healthy environment requires the fulfillment of environmental law provisions

associated with ensuring the right to live in an unpolluted environment. The

precautionary principle poses a proactive requirement in risk estimation. The

environmental principle is a unified whole that requires the assignment and coordination

with the state management agencies on the environment in a synchronous way. The

principle of sustainable development is the combination of economic and environmental

objectives and ensuring social progress. The principle of polluters must pay for polluters

to bear the costs of remedying and treating environmental pollution.

Fourthly, international cooperation on environmental should be strengthened.

Environmental protection is a global issue, therefore, it is a need to strengthen

international cooperation in this area, particularly international cooperation on

legislation. Besides, it is necessary to focus and look for an appropriate mechanism to

incorporate international environmental treaties which Vietnam has signed into the

national legal system. Moreover, it’s also essential to determine legal effect of the

processes in the international treaties in order to decide which provisions will be

directly applied and which one should be incorporated into national legislations.

However, the basic issue is to develop a mechanism to ensure effective implementation

of international commitments on the environment in Vietnam.

4. Conclusion

Through the research results, the author concluded that Vietnam's

environmental law should continue to be perfected. This perfection is based on the

inheritance of previous laws and experiences from Vietnam's current laws and

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development conditions. The development of the legal framework on environment in

Vietnam needs to be considered in the overall national policies and orientations of

the country's socio-economic development and identified in two directions: fix

changing and supplementing existing documents to overcome the inconsistency, non-

specific, unspecified in adjusting social relations in the field of environmental

protection; Issuing new documents to adjust social relations in the field of

environmental protection has not been adjusted so far. Specific amendments include

increasing administrative penalties for violations of environmental laws, building a

unified governmental stewardship of the environment, proceeding to establish an

environmental court, continued effective implementation of international

environmental treaties in Vietnam participated. Besides, the mechanism to ensure

enforcement also changes accordingly. Because of how strict the law is, it is not

effective if it is not implemented well.

References

1. The 1992 Constitution of the Socialist Republic of Vietnam

2. The 2013 Constitution of the Socialist Republic of Vietnam

3. The Criminal Code 1999 (amended in 2009)

4. The Criminal Code 2015

5. The 2001 Law on Cultural Heritage (amended in 2009)

6. The 2010 Law on Minerals

7. The 2010 Law on Food Safety

8. The 2012 Law on Water Resources

9. The 2014 Law on Environmental Protection

10. The 2015 Law on Natural Resources and Environment of Sea and Islands

11. The 2017 Law on Fisheries

12. The 2017 Law on Forestry

13. Decree No. 81/2006/NĐ-CP dated August, 9, 2006 on the sanction of

administrative violations in the field of environmental protection

14. Decree No. 179/2013/NĐ-CP dated November 14, 2013 on the sanction of

administrative violations in the field of environmental protection

15. Decree No. 155/2016/NĐ-CP dated November 18, 2016 on the sanction of

administrative violations in the field of environmental protection

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