PHAM DIEM
State and Law Institute of Vietnam
Environmental law in Vietnam, as in other developing countries, remains a young body of law. In the 20th century, when economic growth was supposed to be the sole motive force for national development, the environment was not regarded as an important issue. At the turn of the century, when Vietnam and many countries had to face the danger of exhaustion of natural resources, ecological imbalance and repeated natural disasters, the environmental protection issue began to emerge as a social challenge. The promulgation of environmental law was one of the measures to surmount that challenge. The process of elaboration of environmental law in Vietnam has gone through two periods: Prior to 1993 and post 1993.
Before 1993: Environmental law did not exist as a separate legal domain or a separate legal branch. During this period, only some regulations on the environment were found here and there in separate legal documents. Decree No. 142/SL, dated December 21, 1949, of the Government of the Democratic Republic of Vietnam, stipulating the control and recording in writing of violations of forest protection regulations, was the earliest legal document touching upon environmental issues.
In addition to that Decree, the Government also issued some documents which, though not officially governing environmental issues, could also be considered relevant to this domain. They included:
Resolution No. 36/CP, dated March 11, 1961, on management and protection of underground natural resources;
Directive No. 07/TTg, dated January 16, 1964, on collection of proceeds from package sale of forest products and environmental levy;
Directive No. 127/CP, dated May 24, 1971, on basic surveys of natural resources and natural conditions; and,
Directive No. 183/CP, dated September 25, 1966, on tree planting and forestation.
On September 11, 1972, the National Assembly passed the Ordinance on Forest Protection.
The most remarkable development in this period was that the 1980 Constitution stipulated environmental protection was a constitutional duty, binding on all state agencies, enterprises, cooperatives, people’s armed forces units and citizens that have the duty to realize the policy on protection, improvement and regeneration of natural resources and on protection and improvement of the living environment (Article 36 of the Constitution).
Environment-related aspects occupied only a minor and derivative section of the legal documents issued during this period. As a result, no legal approach to environmental issues was boldly expressed in legal provisions. Environmental regulations were mainly found in sub-law documents. It can be said that Vietnam’s environmental law in this period was in process. Its underdevelopment was attributable to:
1. Vietnam had left behind thirty years of war with all resources concentrated on two resistance wars against French colonialists and American imperialists. During the post-war period, environmental issues were left almost untouched because the State’s top priority was given to healing the wounds of wars and rebuilding the economy, escaping from a socio-economic crisis and launching a national renewal.
2. During this period, the adverse impacts of environmental degradation were not yet acute. Environmental pollution in urban centers and rural areas was not so alarming as the number of automobiles, motorcycles, machinery and equipment giving off carbon dioxide and the volume of chemical fertilizers and pesticides used in agriculture were still small.
From 1993 to the present: On December 27, 1993 the National Assembly of the Socialist Republic of Vietnam passed the Environmental Protection Law, the country’s first-ever environmental law, marking the emergence of a new body of law in Vietnam’s legal system. The 1993 Environmental Protection Law consisted of 55 articles arranged in 7 chapters, and:
- Officially defined a number of environmental terms and their elements;
- Specified tasks and methods of state administration of environmental protection;
- Defined rights and obligations to prevent, combat and remedy environmental degradation, pollution and incidents;
- Laid basic principles for and principal contents of international cooperation in environmental protection;
- Specified forms of citation and measures for handling violations of environmental law.
After twelve years of implementation, the 1993 Environmental Protection Law needed to be revised to serve national renewal, economic development, industrialization and modernization, and international integration more effectively. The new Environmental Protection Law was passed on November 29, 2005, by the National Assembly to supersede the 1993 Law, and took effect on July 1, 2006. Compared to the 1993 Environmental Protection Law, the 2005 Law is not only much more voluminous (with 136 articles in 15 chapters) but also contains many new and substantively revised provisions.
Regarding the governing scope and subjects of application, the 2005 Environmental Protection Law provides for environmental protection, policies and measures and resources for environmental protection, as well as the rights and obligations of organizations, households and individuals in environmental protection. It applies to state agencies, organizations, households and individuals at home, overseas Vietnamese, and foreign organizations and individuals that conduct activities within the territory of the Socialist Republic of Vietnam. When a treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions different from those of this Law, that treaty prevails.
The 2005 Environmental Protection Law provides for:
- Environmental standards
- Strategic environmental assessment
- Conservation and rational use of natural resources
- Environmental protection in production, business and service activities as well as in urban centers and residential areas
- Protection of water sources
- Management of waste
- Environmental incidents, treatment of environmental pollution
- Environmental observation and information
- Resources for environmental protection
- International cooperation on environmental protection, etc.
The Law becomes the most fundamental source of Vietnam environmental law. Though separate laws such as the Mineral Law, the Law on Protection of Public Health, the Forest Protection and Development Law, the Petroleum Law, the Land Law, the Water Resources Law, the Enterprise Law, and even the Civil Code and Penal Code also contain provisions on environmental protection.
Vietnam law, therefore, has touched upon a variety of environmental issues in a more specific and explicit manner since 1993, linking socio-economic development policies and laws to environmental protection in order to obtain sustainable development.
The law now consists of more comprehensive and systematic provisions, which deal with almost all environmental elements and problems as well as environmental protection. It clearly defines the functions, tasks and powers of state administrative agencies in charge of environmental protection, as well as rights and obligations of organizations and individuals in exploitation and use of natural resources and environmental protection.
The new law has also attached importance to the global nature of environmental issues and the compatibility of Vietnam law with international law, confirming the superiority of treaties to which Vietnam is a contracting party over national laws dealing with environmental issues.-