APCEL Report : Vietnam
Back to : Index : Environmental Law (ASEAN-10) : Vietnam
PRELIMINARY ASSESSMENT OF VIET NAM'S ENVIRONMENTAL LAW Alan K.J. Tan, Faculty of Law National University of Singapore
The Socialist Republic of Viet Nam occupies a land area of 325,360 square kilometres, with a coastline some 3,444 kilometres in length. The population of 75 million (July 1997 estimate) is concentrated mainly in the rural areas, with only 20 percent of the people living in urban areas. The largest cities are Ho Chi Minh City (population 4 million), the national capital Hanoi (population 2.5 million), the port city of Haiphong (population 1.5 million) and the central city of Da Nang (population 1 million). The economy is largely agricultural, and major exports include rice, crude oil and natural gas, marine products, textiles and garments, and manufactured goods. Viet Nam’s per capita gross domestic product (July 1996 estimate) is US$1470.1. INTRODUCTION
In the past twenty years, Viet Nam’s socio-economic development has been characterised by a shift from a centrally-planned economy to a market-oriented one. The adoption of the doi moi (renovation) policy has resulted in rapid industrialisation, political and economic liberalisation and the influx of foreign investments into Viet Nam. In the process of economic development, Viet Nam is increasingly facing problems commonly associated with a developing country’s move towards industrialisation. These include the exhaustion of the natural resource base and the degradation of the natural environment. Together with the environmental destruction caused by years of war, these problems have highlighted to the Vietnamese government the critical need to pursue its developmental policies in a manner compatible with the principle of sustainable development.
2. INSTITUTIONAL ARRANGEMENTS
Since the promulgation of the 1992 Constitution, the division of power in Viet Nam is often analysed as a "triumvirate" of the President, the Prime Minister and the Secretary-General of the Communist Party. The President is the Head of State, and leads the Office of State. The Prime Minister is the head of the Government (the 1992 Constitution provides for the Government to replace the Council of Ministers). The Secretary-General of the Communist Party in turn, has an important role in policy formulation. The National Assembly is the supreme law-making body which also elects senior governmental figures, including the President and the Prime Minister. Executive powers are vested largely in the Prime Minister, the Ministers and other officials of ministerial rank.2.1 Structure of Government
The structure of national governance comprises the central government in Hanoi and subsidiary levels of government at the provincial, city, town and local levels. At the provincial level (there are 61 provinces, including the city municipalities of Hanoi, Ho Chi Minh City and Haiphong), the People’s Committees are the effective organs which implement and enforce laws. There is a substantial amount of provincial autonomy, even though the central government has recently, following the emphasis on the rule of law, reasserted centralised policy formulation through the use of legislation.
Environmental management in Viet Nam is administered on a national level by the Ministry of Science, Technology and Environment (MOSTE). The environmental arm of MOSTE, the National Environmental Agency (NEA), is the body specifically tasked with the environmental protection mandate. Apart from MOSTE, the various line Ministries have Science, Technology and Environment Divisions within their hierarchy. The Environment Divisions within these Ministries are entrusted with the environmental issues arising in the course of their respective Ministries’ activities or jurisdiction. In addition to these Ministries, there are a host of agencies, committees, general departments and research centres which may have powers and jurisdiction equivalent to those of a conventional ministry. These do not normally come under the supervision of any particular ministry, even though cooperation amongst these bodies inter se and with the ministries is very common.2.2 Environmental Institutions
At the provincial level, the relevant management authorities are the Departments of Science, Technology and Environment (DOSTEs), which carry out the environmental protection activities through their respective Environment Divisions. The DOSTEs come under the purview of the central MOSTE only in relation to administrative matters and technical guidance. For all other purposes, the DOSTEs operate under the direct control of the provincial governments, known as the People’s Committees.
The activities of non-governmental organisations (NGOs) are relatively limited compared to NGOs in other countries. NGO activity in Viet Nam is largely confined to private centres (e.g. the Institute of Ecological Economics), university-related research centres and institutes (staffed by academics and students), youth bodies, women’s organisations and associations for natural resource protection. There are also "self-help" bodies such as farmers’ associations and cooperatives which are formed by indigenous peoples. These mainly exist to assist the indigenous communities in the remote mountain regions develop better agricultural techniques.3. NON-GOVERNMENTAL ORGANISATIONS
Several international NGOs are active in Viet Nam in the area of environmental protection. These include the World Conservation Union (IUCN), the World Wildlife Fund (WWF) and BirdLife International. All NGOs with specific environmental agendas are required to obtain permission from MOSTE to carry out their activities. In this regard, MOSTE maintains a register of environmental NGOs and monitors their activities.
Amongst the international institutions with major environmental programmes in Viet Nam are the World Bank, the United Nations Development Programme (UNDP), the Asian Development Bank (ADB), and the Food and Agricultural Organization (FAO). The international development agencies of many developed countries also have environmental programmes and projects in Viet Nam. These include the Swedish International Development Agency (SIDA) and the Canadian International Development Agency (CIDA).
Business concerns operated by foreign investors are also involved in environmental protection efforts. To the extent that all foreign investors are required by the Law on Foreign Investment 1987 to protect the environment, the activities of these concerns contribute significantly to environmental protection.
The local NGOs are essentially organisations operating outside the formal governmental structure, although many of them are government-affiliated, receive government funding and work closely with government officials. Others are self-funding, either through direct assistance from international organisations, or through consultancies for the government or foreign investors needing assistance in preparing EIA reports. The role of such organisations in environmental protection has been significant. The government has often sought the opinions of experts working within such organisations. For instance, the committee which prepared the initial drafts of the Law on Environmental Protection (LEP) consisted of government officials, as well as scientists, university academics, lawyers, and other non-governmental groups. NGO representation is also present in the Appraisal Councils which review EIA reports (see Regulation No. 1807/QD-MTg). In general, NGOs play critical roles in promoting environmental awareness amongst groups of students, women, youth, and indigenous peoples as well as private individuals.
NGOs are slowly becoming full-fledged participants in environmental protection efforts. However, progress is often hampered by the lack of financing. The NGOs need continuous financial and moral support from the government, as well as from donor countries and international organisations. The role of NGOs can be enhanced to promote greater environmental awareness and to provide greater input to the government. In some cases, it is expected that NGOs may be able to provide the manpower to monitor and report on the state of the environment, especially in the more remote areas of the country.
4. ENVIRONMENTAL LEGISLATION IN VIET NAM
Presently, laws and regulations in Viet Nam are enacted in several forms:4.1 Types of Legislation
The framework Law on Environmental Protection (LEP) was passed by the National Assembly on 27 December 1993, and came into effect on 10 January 1994. The 55 articles of the LEP broadly establish the country’s policies on environmental protection. The LEP is a very broad and general document which sets out only a basic framework. Chapter II provides for the prevention of and combat against "environmental degradation, pollution and incidents". Chapter III outlines the remedies to be adopted against these environmental threats. The state apparatus and institutions for environmental protection are set out in Chapter IV, and the country’s international obligations with respect to environmental protection treaties are established by Chapter V. Chapter VI deals with breaches and violations of the LEP, and Chapter VII anticipates implementing provisions to enforce the LEP.4.2 Framework Laws and Provisions
Subsequently, numerous decrees have been promulgated by the government for the implementation of the LEP. The most significant of these is Government Decree No. 175/CP on Providing Guidance for the Implementation of the Law on Environmental Protection (Decree 175/CP), dated 18 October 1994. This Decree establishes in greater detail the responsibilities of the NEA in environmental management, and further clarifies many of the LEP provisions. Chapter III of Decree 175/CP contains requirements for the submission of environmental impact assessments (EIAs) by investors and enterprises. The appendices to Decree No. 175/CP also contain fairly-detailed provisions prescribing the format and content of EIA reports. Several provisions on vehicular emission standards are also included in Decree No. 175/CP.
Various other regulations have been issued by MOSTE to implement the LEP and Decree 175/CP. One of the most important of these is Decree No. 26/CP on Sanctions against Administrative Violations in Environmental Protection, dated 26 April 1996 (Decree 26/CP). This recent Decree prescribes the administrative punishments for violations of the LEP and other environmental protection laws. Most of the other regulations issued pursuant to the LEP relate to either the EIA system or pollution discharge standards. The most recent environmental legislation is Instruction No. 490/1998/TT-BKHCNMT, dated 29 April 1998 – this Instruction replaced an earlier instrument known as Instruction No. 1100/TT-MTg on Guidance for the Preparation and Appraisal of Environmental Impact Assessment Reports for Investment Projects, dated 20 August 1997.
One major problem facing environmental protection in Viet Nam is the lack of specificity in the framework LEP and its implementing legislation. This is of course, due in part to the fact that the LEP is relatively new. As a consequence of this lack of specificity, many environmental issues are left without legal regulation. These include overlapping jurisdiction amongst governmental bodies, EIA requirements for specific industries, international treaty obligations, harmonisation of liability for environmental violations and new issues such as trade and the environment and the use of economic instruments to motivate compliance. Hence, many of the environmental problems discussed in this report can be linked to the fact that the framework LEP and its regulations have yet to be finetuned to redress these issues. A selection of Vietnamese environmental legislation is found in the Appendix.
The EIA system in Viet Nam is implemented through Article 18 of the LEP and a series of implementing regulations, particularly Decree 175/CP and Decree 26/CP. Chapter III of Decree 175/CP contains requirements for the submission of EIAs by investors and enterprises, both foreign and local. Provisions prescribing the format and content of EIA reports are set out in the appendices to Decree 175/CP.4.3 The Environmental Impact Assessment (EIA) Process
Other relevant EIA legislation which have been passed to date include:
5. PROBLEMS IN IMPLEMENTING ENVIRONMENTAL LEGISLATION
Overlapping jurisdiction amongst MOSTE and other government ministries and bodies can make implementation of laws difficult. Such overlap occurs between different levels of government, e.g. between the central and provincial authorities ("vertical" overlap), or between MOSTE and other central government ministries ("horizontal" overlap).5.1 Problems of Overlapping Jurisdiction
Often, not only do the different sectoral legislation prescribe differing rules, they also prescribe overlapping powers for their respective State management agencies. In Viet Nam, mining, forestry, wildlife, fisheries, marine environment, and oil and gas exploration issues all come under ministries other than MOSTE. For sure, such administrative division of responsibility is not peculiar to Viet Nam - as a measure of specialisation, it customarily occurs in other countries. However, governments worldwide have begun to realise that pollution issues are invariably intertwined with forestry, fishing, mining and marine environment concerns, as well as with the clearing of land for agriculture and population settlement. It is thus essential for all the concerned government ministries and agencies in Viet Nam to plan and coordinate their policies such that the lines of communication and consultation are always open amongst them, and the protection of the environment can be pursued as an integrated whole.
Unfortunately, few clear rules and procedures exist, either in the framework LEP or in other laws, to coordinate and delineate the respective ministries’ jurisdiction, or to ensure that the sectoral laws and regulations governing these activities are consistent with the LEP and with the regulations issued under the LEP. There is thus a critical need for the LEP to be harmonised with the other laws which have direct or indirect application to environmental protection. Ideally, once this clarification is done, the respective scope of the different laws, the duties of the government ministries as well as the powers of the central and provincial authorities can be more clearly set out. A comprehensive planning and zoning programme, incorporating planning laws and enforcement procedures, would conceivably go a long way in addressing these issues.
At the central level, the environmental wing of MOSTE (i.e. the NEA) is understaffed. MOSTE has a total complement of approximately 1,000 people, of which only about 45 work under the NEA. The scientific and technological departments take up the major share of MOSTE’s budget and manpower, and the resources channeled to the NEA are largely insufficient. Presently, only 1 to 2 per cent of the government budget allocated to MOSTE is directed to environmental protection efforts. It is thus clear that greater manpower and financial resources are needed for more effective implementation of environmental laws. With respect to the drafting and implementation of environmental legislation, there is a lack of legal expertise at the NEA, where the great proportion of staff are engineers and scientists.5.2 Proposal for a Ministry of the Environment
In light of the above problems, there are some officials who believe that the best solution would be to create a separate Ministry of the Environment. A proposal has already been made to this effect. Whilst the creation of a separate Ministry of the Environment would signal high governmental priority for environmental protection, the experience of other countries like the Philippines and Indonesia demonstrates that this does not always solve the problem. A separate Ministry can only be effective if adequate human and budgetary resources are allocated to it, so that it has all the necessary financial, technical and political capacities which it needs for optimal performance.
The DOSTEs in the individual provinces and their Environment Divisions generally experience a lack of trained manpower to carry out inspection and monitoring activities. On the average, each Division has only three to five persons engaged in the DOSTE’s environmental management programmes. The poorly-staffed Environment Divisions within the DOSTEs are expected to shoulder the numerous tasks of inspecting factories, collecting samples, appraising EIAs, recommending penalties for violators, etc. Often, these tasks are not effectively performed due to the lack of manpower and transparency. The shortage of equipment and laboratories for testing and the dearth of reliable data on pollution add to the problems of insufficient finances and trained manpower.5.3 Implementation Problems in the Provinces
In relation to implementing centrally-enacted laws, the DOSTEs in provinces nearer to Hanoi generally experience fewer problems compared to those in more remote provinces. Due to the lack of communications infrastructure, skilled manpower and efficient management, environmental problems in remote areas often take a long time to receive the necessary attention and response from MOSTE headquarters in Hanoi. Generally, it is very difficult for DOSTEs in the remote provinces to obtain advice and guidance from the NEA or to have recourse to outside technical expertise.
Ideally, provincial regulations should be consistent with centrally-enacted laws. However, it is commonly the case that provincial regulations may be different from, or even wholly inconsistent with the central government’s laws. There are apparently several reasons for this. First, communication problems often delay the transmission of central laws to the remote regions. Second, even if these laws are received in the provinces, the provincial authorities may not have the technical or financial capacity to implement and translate them into meaningful action programmes. Third, following the decentralised war effort in the 1960s, provincial governments in Viet Nam have traditionally enjoyed a great deal of local autonomy, including the authority to enact and enforce their own regulations.
MOSTE experts attempt to address some of these problems by travelling around the country and organising workshops in the provinces to explain new legislation and enforcement efforts. Insufficient financing and the lack of trained MOSTE personnel however, have stifled the potential benefits of these efforts. It is thus obvious that human and financial resource development in the provinces is absolutely critical. Innovative efforts by international donors are already underway to directly empower the provincial authorities with sufficient resources to effectively implement environmental legislation.
As in many developing countries, a comprehensive EIA procedure is viewed by some as an obstruction to the efficient approval of investment projects. One of the biggest problems appears to be that the EIA report for a particular project is appraised only after the license for the project has already been issued by the Ministry of Planning and Investment. Thus, the site and scope of the project are determined before the EIA report is appraised. Hence, the EIA procedure is only relevant with respect to prescribing the pollution abatement measures to be installed by the industry concerned, and not to deciding whether the project should be allowed in the first place (the "no-action" option), or deciding whether it should be located at an alternative site.5.4 Practical Problems in Implementing EIA Legislation
Another significant problem with the EIA process relates to existing industries with outdated technology which are polluting the environment. Legislation may be needed to phase out old factories utilising outdated Soviet and Chinese installations and to progressively retrofit others with modern environmental technology. However, in actual practice, this involves complicated problems such as the loss of employment for workers, the huge amounts of money needed for retrofitting/relocation, etc. The problems are complicated by the fact that many of these old and pollutive industries are state-owned enterprises employing large numbers of people in certain provinces.
Another problem is the lack of trained personnel for preparing and evaluating EIA reports. Whilst proposals for projects with the largest environmental impact are currently submitted to the National Assembly and appraised by a committee of experts appointed by it (pursuant to Article 18 of the LEP), small-scale projects are appraised at the provincial levels. In many cases, DOSTE officials have to give advice to the investors formulating the EIA reports, and then appraise the reports themselves. This creates manpower and transparency problems for the provincial DOSTEs.
The administrative fines for failure to comply with EIA procedures are manifestly inadequate. These should be increased to sufficiently deter potential polluters. Otherwise, the polluters will consider the amounts to be relatively affordable as compared to the costs of installing environmental protection measures.
There is also a need for MOSTE to develop detailed EIA guidelines for specific projects. Problems have arisen because of a lack of detailed guidelines in the LEP and its implementing legislation. MOSTE may insist on an EIA being conducted before giving its approval for projects involving industrial and urban development. However, the Ministry of Construction, which oversees planning and zoning, and the Ministry of Planning and Investment, which oversees foreign investment, will in turn insist on proper EIA guidelines from MOSTE. In this regard, MOSTE often has few guidelines for specific development projects. The provisions of the LEP, Decree 175/CP, Instruction 490/1998/TT-BKHCNMT, Decree 26/CP and other subsidiary regulations are far too general to afford guidance for specific developmental projects.
The legislation for prescribing liability and penalties for environmental damage is in need of review and systemization. In theory, the same act of polluting the environment could give rise to three different types of liability and penalties in Viet Nam. First, it could result in an administrative penalty being imposed. Second, it could give rise to a civil liability under the Civil Code for the environmental damage caused. Third, it could be an offence under the Criminal Code.5.5 Administrative, Civil and Criminal Liability
In addition, several sectoral laws also contain provisions prescribing liability for environmental damage, e.g. the 1987 Law on Foreign Investment, the 1990 Maritime Code, the 1993 Law on Land and the 1993 Law on Petroleum. Therefore, there is a need to reconcile all the provisions on liability and penalties. Presently, it is not wholly certain which laws on liability apply whenever an environmental violation occurs.
Under Decree 26/CP, a range of administrative fines is prescribed for 14 types of violations in diverse areas ranging from nature protection to oil and gas exploration and waste management. Most of the monetary fines prescribed by Decree 26/CP are in the range of US$10 to US$40. These amounts may appear to be considerable for the average Vietnamese operator. However, they are too small to deter the large foreign enterprises. For instance, the US$5,000 maximum fine for oil companies causing oil spills is manifestly inadequate. Therefore, it does not appear that the administrative fines will act as effective deterrents against environmental violations.
Even though the amount of the fines is small, Decree 26/CP is relatively new, and it could well have been intended that the initial experiment with administrative penalties should involve smaller sums. Under Article 4 of Decree 26/CP, it appears that the system was designed to give local inspectors and officials the power to take quick action against violators. To this end, the imposition of large fines might cause unwarranted economic hardship to the operators. Given that there exist few clear guidelines as to when and how the fines should be imposed, the small sums involved may reduce somewhat these problems of economic hardship.
Additional sanctions under Decree 26/CP include a revocation of the environmental license for up to six months, forcible cessation of the violation, forcible application of measures to overcome the adverse consequences or the imposition of forcible compensation. However, these alternative sanctions should be considered only after their precise scope and meaning have been made clear. Decree 26/CP is new - there is not, as yet, adequate information on how the administrative fines are being meted out, nor the circumstances under which forcible compensation or forcible cessation of violations are being imposed.
There is also considerable overlap between the administrative fines prescribed by Decree 26/CP and the fines to be imposed under other decrees. For example, Decree 26/CP contains provisions on breaches of regulations governing biodiversity and the protection of nature, as well as those governing unlicensed exploitation of natural resources and endangered species. However, there exists Government Decree 14/CP dated 5 December 1992 on Administrative Fines in the Management and Protection of Forests, which establishes administrative fines for general violations of regulations on forest protection. Hence, there appear to be some overlaps between Decrees 26/CP and 14/CP. The LEP and its regulations (Decree 26/CP in particular) would therefore have to be reconciled with other overlapping legislation.
Most of the pollution problems in Viet Nam are of three types - air pollution , water pollution, and noise pollution. The problems of pollution are particularly serious in urban areas and industrial zones. In cities with growing populations like Ho Chi Minh City and Hanoi, the lack of environmental infrastructure has contributed to large-scale pollution concerns.5.6 Pollution Control
The most serious problem is that of waste treatment. Viet Nam has no effective waste treatment facilities and lacks sufficient landfill space. Consequently, solid and liquid wastes, including household and industrial wastes, are discharged directly into the environment without being treated. In the cities, the sewerage and sanitation systems are in extreme states of disrepair. Years of poverty and neglect, combined with the added pressures of a growing population and migration from the rural areas, have led to massive environmental and health problems.
The absence of incineration facilities leads Viet Nam to rely on landfills for the disposal of household wastes. However, the system for collection of household wastes is inconsistent and inefficient. Also, landfills in urban areas are fast approaching their capacity. In addition, hazardous materials have been improperly disposed of in these landfills, which has led to concerns that these materials may leach into underground water sources and cause severe contamination. Therefore, an alternative to landfills, such as incineration, is needed for the disposal of household wastes, and adequate treatment facilities are needed for the proper disposal of hazardous wastes.
The factories in older industrial zones often employ outdated technology which does not provide for proper treatment of industrial wastes. Hence, wastes are often dumped into rivers, and gaseous emissions emitted into the air. Some of these wastes and emissions contain chemicals which are highly toxic. There is also a significant problem with respect to hazardous wastes from hospitals and laboratories.
Air pollution is also a serious problem, as factories emit smoke and ash into the air, often without adhering to emission standards (if there are any). Rotting or burning household wastes also add to the air pollution problem due to the lack of proper landfill space. In addition, the growing number of vehicles has caused significant air and noise pollution problems, especially in the cities. The presence of many older polluting vehicles results in significant air pollution from motor vehicles. Unleaded fuel has yet to be widely introduced.
More effective regulations need to be issued under the LEP to establish pollution standards. One of the biggest tasks which MOSTE presently faces is the drafting of specific environmental guidelines and regulations for the different sectors of the economy. Viet Nam already has in place several industrial standards on ambient air, surface water and ground water quality. However, these prevailing standards need to be reviewed for their efficacy, and new standards enacted to govern other types of pollution, especially pollution by hazardous wastes emitted by specific industries.
It would appear that the existing standards are not being enforced effectively. To begin with, several of these standards appear to be too stringent in Viet Nam’s context. Meeting them would be expensive and unrealistic for many industries, given the limitations in financial and technical capabilities. Further, the government bodies responsible for enforcement do not have sufficient resources for comprehensive inspection and monitoring activities. A review should be made of all the existing standards to ensure that they are practical, realistic and coherent, and that they meet Viet Nam’s current needs and level of development.
For many industries, there are no laws or regulations which set out clear pollution control standards. Even where such laws exist, they are usually lifted from the standards of other countries, and may prove to be impractical in Viet Nam’s context. The number of skilled personnel to monitor and enforce the laws that do exist is insufficient to ensure compliance. Thus, the few standards that exist are seldom enforced and violations of the standards are common.
Apart from enacting improved laws, skilled manpower is needed to implement technical regulations such as emission standards. Only then can there be effective enforcement. For instance, trained MOSTE officers and scientists are needed to gather samples, to monitor the particle content of pollutants, to conduct laboratory analysis of pollutants, and to identify safe methods of disposing wastes. When a violation has been identified, the administrative machinery must be set in motion to penalise the offender so as to deter future violations. In other words, effective institutions must be put in place which can implement and enforce regulations in a satisfactory manner. On the whole, technical and institutional expertise is lacking in Viet Nam, making effective enforcement of regulations extremely difficult.
5.7 Use of Economic Instruments
One such economic mechanism is the "polluter pays" principle, which is gaining world-wide acceptance today. In line with this principle, MOSTE’s Policy Division is currently drafting a pollution tax regulation pursuant to the LEP. This regulation will identify the types of pollutants to be taxed and the precise formula for computing the quantum of the tax. From preliminary discussions, it appears that air emissions, industrial wastewater and solid wastes will all be subject to the tax. Both local and foreign industries will be subject to the tax.
Economic mechanisms also play a part in the EIA process, which guarantees tax and other benefits to the investor who brings in clean technology and who provides treatment facilities for generated wastes. MOSTE is also considering asking foreign investors to contribute to an Environmental Fund to be set up pursuant to the LEP which will provide resources for emergency response, training and education. Donor countries and international institutions will also be approached to contribute to this Fund. MOSTE is also looking into the feasibility of introducing unleaded gasoline to the country and placing a tax on leaded gasoline. MOSTE is also considering imposing a charge per household on the amount of daily garbage collected.
However, it should be borne in mind that compliance promotion through the use of economic instruments and incentives is premised largely upon the existence of a fairly well-developed system of pollution control. This system includes, for instance, waste treatment facilities and incineration plants. Otherwise, there can be no real incentive for smaller-scale investors and industry owners to engage in clean practices. In addition, economic incentives can work well only if pollutive industries can be prevented from escaping undetected (the "free-rider" syndrome). This calls for an effective enforcement system.
Viet Nam is a densely populated country, and 80 per cent of the Vietnamese people live in rural areas. Land use pressures have led to serious environmental problems, including severe deforestation, soil erosion, sedimentation of rivers, flooding in the deltas, declining fish yields and pollution of the coastal and marine environment. In addition, biological diversity in the forests and oceans is threatened.6. LAWS RELATING TO NATURAL RESOURCES
For the most part, the LEP (and MOSTE) do not directly deal with natural resource exploitation and management. The framework legislation relating to natural resource management are to be found in laws administered by other government ministries. The key legislation governing the natural resource sectors in Viet Nam include the following:
The deforestation problem in Viet Nam has worsened to such an extent that the Government recently declared a complete ban on the export of timber. There are reports that illegal logging is being conducted in the country, even in the national parks and forest reserves. The government does not have sufficient funds to maintain teams of wardens or rangers to effectively patrol these forested areas. Also, shifting cultivation employing the "slash-and-burn" technique is still practiced in many remote parts of Viet Nam. There is also the common problem of encroachment by farmers and settlers.
Forest protection issues are covered by the 1991 Law on Forest Protection and Development, which is administered by the Forest Protection Department of the MARD. The Law, together with its regulations, are by themselves fairly comprehensive pieces of legislation, with details addressing the roles of the provincial authorities. However, there is a need to ensure better implementation of these laws. Consistency should also be ensured between these laws and the LEP, e.g. in relation to the imposition of penalties.
The MARD also oversees the management of protected areas and the protection of endangered species. It is noteworthy however, that the point ministry for the 1971 Ramsar Convention on Wetlands and the 1992 UN Convention on Biological Diversity is MOSTE. There is thus a critical need for stronger coordination between the MARD and MOSTE, particularly since wetlands and biodiversity issues are closely intertwined with MARD’s responsibilities in protecting forests and endangered species.
Mining activities are regulated under the 1996 Law on Minerals by the Ministry of Industry. Mining is a major source of pollution in Viet Nam. The present laws on mining in relation to environmental degradation are inadequate, and are not being enforced effectively. Thus, the environmental provisions in these legislation should be reviewed, as should the problems with their enforcement. There are also problems in enforcing laws governing mining activities in the ocean areas within Viet Nam’s maritime zones. Some of these problems relate to the uncertainty as to which ministry or agency is responsible for regulating marine pollution from off-shore oil activities.
There also appear to be problems with the laws and regulations relating to pollution of the sea from ships. The laws are largely inadequate, and there is some confusion amongst the port authorities and relevant line ministries like MOSTE and the Ministry of Transport in determining exactly which agency is responsible for dealing with pollution of the sea from ships. Generally, it is understood in Viet Nam that the issues of port regulation and marine pollution come under the purview of the Viet Nam National Maritime Bureau (VINAMARINE) and the Ministry of Transport.
Since the regulation of the different sectors are conducted by separate specialised legislation and ministries, it must be ensured at the least, that close coordination between the MOSTE and the ministries responsible for the natural resource sectors is established to ensure consistency of legislation and effective overall protection of the environment. Otherwise, the environmental management efforts of these agencies will continue to proceed in a piecemeal and incoherent fashion.
The environmental legislation in Viet Nam and the institutions tasked with enforcing them have thus far made reasonable progress in the country’s environmental protection efforts. Many challenges and problems remain, primarily the inconsistencies in legislation, the lack of coordination amongst government agencies and provincial governments and the lack of financial, technical and manpower resources. The framework LEP as it stands, needs to be further bolstered by specific regulations to meet new environmental concerns, as well as to be reconciled with other laws which have application to environmental protection.7. CONCLUSION
It is hoped that with greater political will and assistance from international organisations and donor agencies, more effective laws can be enacted and implemented to ensure greater protection for the environment.
APPENDIX SELECTION OF MAJOR ENVIRONMENTAL LAWS
Major Legislation on Environmental Protection
Other Environment-Related Legislation
General Policy Instruments
last updated 15th September, 1998
Asia-Pacific Centre for Environmental
Law
Faculty of Law
National University of Singapore
© 1998