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Official Gazette

Tuesday, June 15, 2021

Resettlement needed for overseas Vietnamese upon land recovery

Updated: 17:32’ - 26/04/2013

Phan Trung Hien, LL.D[1] and Nguyen Thi Huynh Nhu[2]

According to Ministry of Construction statistics, by June 2012, only nearly 170 overseas Vietnamese owned homes in Vietnam, including 118 in Ho Chi Minh City[3]. This figure is too low compared to over 4 million Vietnamese currently living abroad.

This reality can be attributed to various reasons, including fears for the frequent revision of laws and regulations and legal risks. Though Vietnam’s current land law has more or less protected the legitimate interests of overseas Vietnamese, many provisions remain unclear and difficult to implement. Vietnam’s laws have permitted overseas Vietnamese to own homes and have land use rights over their residential land in the country, but Vietnam’s laws still lack a mechanism to protect these two rights. Particularly, Vietnam has promulgated many legal documents on land recovery but none of them addresses the resettlement for overseas Vietnamese when their residential land is recovered.

Overseas Vietnamese’s rights to use residential land in Vietnam

Articles 25 and 75 of the 1992 Constitution, which was amended in 2001, stipulate that the Vietnamese State protects the legitimate interests of overseas Vietnamese and creates favorable conditions for them to invest in the country. To specify these constitutional provisions, Law No. 34/2009/QH12 of June 18, 2009 revising Article 121 of the Land Law and Article 126 of the Housing Law (Law 34) permits overseas Vietnamese to own homes in Vietnam.

Concretely, overseas Vietnamese falling into the following cases who are permitted by Vietnamese authorities to reside in Vietnam for three months or longer may own homes associated with land use rights in Vietnam:

- Persons bearing Vietnamese nationality;

- Persons of Vietnamese origin who make direct investment in the country under the investment law; who have made meritorious contributions to the country; who are scientists or cultural activists or have special professional skills needed by Vietnamese agencies or organizations and are working in the country; or who have Vietnamese spouses living in the country;

Persons of Vietnamese origin other than those mentioned above who possess visa exemption papers granted by Vietnamese authorities and are permitted to reside in Vietnam for three months or longer may each own a home or a condominium apartment in the country.

Government Decree No. 71/2010/ND-CP of June 23, 2010, detailing and guiding the implementation of the Housing Law (Decree 71) and Ministry of Construction Circular No. 16/2010/TT-BXD of September 1, 2010 (Circular 16), more clearly stipulate that overseas Vietnamese may only buy, sell, receive as gifts, exchange or inherit homes and may only acquire the rights to use land areas within commercial housing projects for building homes in Vietnam.

The number of homes or land areas overseas Vietnamese may buy also varies in different cases as provided in Article 1 of Law 34 and Article 66 of Decree 71. Accordingly, overseas Vietnamese may buy an unlimited number of homes if they still retain Vietnamese nationality and hold valid Vietnamese passports. Those holding foreign passports must produce papers evidencing that they still bear Vietnamese nationality. For persons of Vietnamese origin, in addition to having foreign passports and Vietnamese nationality-evidencing papers, they must make direct investment in Vietnam, be scientists or cultural activists, have special professional skills or have Vietnamese spouses.

Those not falling in the above cases may each own only one home or condominium apartment in Vietnam. If they inherit or are given as gift another house, they may sell it.

Necessity of regulations on resettlement for overseas Vietnamese whose land is recovered?

Firstly, the addition of these regulations is in line with the Vietnamese State’s commitments and the Constitution of Vietnam.

As we know, the Xth Party Central Committee’s Political Report presented at the XIth National Party Congress stresses that: “Overseas Vietnamese constitute an inseparable part of the Vietnamese community. The State promulgates mechanisms and policies to assist overseas Vietnamese in stabilizing their life and developing economic activities, contributing to promoting the cooperation and friendship between our people and peoples of other countries; and creates conditions for overseas Vietnamese to preserve and promote the nation’s cultural identities, think of the Fatherland, and make contributions to the national construction.”

Furthermore, at the second conference for overseas Vietnamese held in September 2012, Foreign Minister Pham Binh Minh said the Vietnamese Party, State, Government and people always respect valuable sentiments of overseas Vietnamese for the country and consider them an integral part of the Vietnamese nation.

This demonstrates that the Party and State treat overseas Vietnamese like Vietnamese citizens living in the country and fully protect the legitimate interests of overseas Vietnamese. This also means the legitimate rights of overseas Vietnamese over their lawful assets in Vietnam, including land, are also protected by the State.

Article 25 of the 1992 Constitution, revised in 2001, states: “The State… guarantees the lawful ownership of capital, assets and other interests of foreign organizations and individuals… The State encourages and creates favorable conditions for overseas Vietnamese to invest in the country.” Clause 3, Article 56 of the draft revision of the 1992 Constitution, which amends Articles 22, 23 and 25 of the 1992 Constitution, reads: “Lawful assets of organizations and individuals are recognized, protected and not nationalized.” Individuals referred to in this article include Vietnamese citizens living in Vietnam, overseas Vietnamese and foreigners. It can be drawn from these provisions that lawful assets of overseas Vietnamese in Vietnam are recognized and protected by the Vietnamese State.

Moreover, Article 75 of the 1992 Constitution, revised in 2001, and Article 19 of its draft revision both affirm that that overseas Vietnamese constitute part of the Vietnamese community and the State protects their legitimate interests.

The State encourages and creates conditions for overseas Vietnamese to preserve Vietnam’s cultural identities and maintain their close ties with their families and the homeland, and contribute to the national construction.”

So, these articles can be regarded as the State’s commitments to protect overseas Vietnamese’s lawful assets, including their rights to use land in Vietnam.

In Vietnam, land is a national asset under all-people ownership. The State, in the capacity as a representative of all-people ownership, manages the use, allocation and lease of land and transfer of land use rights. However, in the process of international integration and investment promotion, the term “land user” has an increasingly broader meaning as defined in Article 9 of the 2003 Land Law and in Article 6 of its draft revision. Law 34 also prescribes that land users being overseas Vietnamese have similar land use rights as Vietnamese citizens. These provisions are in conformity with Articles 25 and 75 of the 1992 Constitution, revised in 2001 (or Articles 56 and 19 of its draft revision).

The current land law also contains provisions protecting the legitimate interests of overseas Vietnamese; even in case they have residential land in Vietnam recovered, they will be entitled to compensations or supports under Article 42 of the 2003 Land Law (or Article 68 of its draft revision). Point d, Clause 2, Article 167 of the draft revision of the 2003 Land Law further stipulates that overseas Vietnamese who own homes associated with land use rights in Vietnam are entitled to compensation upon land recovery by the State. Also, Point dd, Clause 1, Article 26 of the draft revision states: “1. State guarantees for land users: … dd/ Protecting the land use rights and land-attached lawful assets of land users. When the State recovers land for defense and security purposes, national and public interests or economic development, land users will be entitled to compensations and supports as prescribed by law.”

Overseas Vietnamese’s land use rights are also their assets in Vietnam. Some groups of overseas Vietnamese may only use limited residential land areas but they are not entitled to resettlement policies if such land areas are recovered by the State. This affects the implementation of the provision: “The State protects the legitimate interests of overseas Vietnamese.” All individuals, including both local and overseas Vietnamese, must return their land areas to the State for use for defense and security purposes or national and public interests. Though their lawful homes and residential land areas are recognized by the State, overseas Vietnamese have to seek by themselves other land areas when their residential land recovered by the State under Clause 1, Article 38 of the 2003 Land Law. This has posed a great concern.

Should there be provisions on resettlement for overseas Vietnamese having residential land in Vietnam recovered by the State, they would have a law-prescribed choice to protect their interests. Since resettlement is a right, overseas Vietnamese may or may not exercise it. The addition of this right would further reflect the State’s protection of the legitimate interests of overseas Vietnamese over their assets being land use rights and would also conform to the Constitution.

Secondly, the addition of the provisions on resettlement for overseas Vietnamese having their residential land recovered will assure justice and equality.

As per Article 18 of Ministry of Natural Resources and Environment Circular No. 14/2009/TT-BTNMT of October 1, 2009 (Circular 14), individuals and households having land recovered may be offered other places for resettlement. Why aren’t overseas Vietnamese entitled to resettlement when they have their land use rights recovered?

The land law does not define whether “individuals” are Vietnamese individuals or citizens or include both locals and foreigners, but since it stipulates that overseas Vietnamese can have their land recovered by the State, “individuals” may be understood as Vietnamese citizens living in Vietnam.

Article 52 of the 1992 Constitution, revised in 2001, states: “All citizens are equal before law,” and Article 17 of its draft revision reaffirms: “… No one is discriminated against in political, civil, economic, cultural and social lives.”

So, in order to better demonstrate the equality and justice between individuals and households and overseas Vietnamese, it is necessary to add provisions on resettlement for overseas Vietnamese when their residential land in Vietnam is recovered

Thirdly, the addition of provisions on resettlement for overseas Vietnamese when having their residential land recovered aims to attract their investment in the country.

In recent years, overseas remittances to Vietnam have increased 10-15% annually. Annual remittances and investments in the country from the overseas Vietnamese community total approximately USD 20 billion. Particularly in the first half of 2012, remittances sent to Vietnam reached over USD 6 billion (compared to USD 9 billion in the whole year of 2011). Overseas Vietnamese have so far registered to invest in over 2,000 projects in Vietnam, capitalized at almost USD 6 billion, 60% of which are assessed as effective[4].

Though Vietnam has introduced more and more favorable policies for overseas Vietnamese to invest in the country, there remain hurdles to their investment, including those related to owning homes associated with land use rights in the country.

Vietnamese have a saying: “An cu lac nghiep” (Settle down to live and work in peace and contentment). So owning a home in Vietnam certainly has a great influence on a large number of overseas Vietnamese to make investement in the country. In attracting investment, Vietnam needs long-term projects with great contributions to growth but not short-term ones, so the country should expeditiously settle the problems related to land for building houses.

No overseas Vietnamese can feel secure acquiring the rights to use residential land in Vietnam when the contract between the State and land users remains unclear and unequal as at present. Therefore, equality between local and overseas Vietnamese should be assured by providing overseas Vietnamese with the right to resettlement when they have their residential land recovered. Only by doing this can the country attract more investment from overseas Vietnamese.

Fourthly, the addition of provisions on resettlement for overseas Vietnamese helps increase the anticipating capacity of Vietnamese law.

The issue of resettlement has been mentioned much in Vietnam’s regulations on land recovery but it has not yet been taken into consideration with regard to overseas Vietnamese having residential land in Vietnam recovered. With over 4 million Vietnamese currently living overseas and the provisions of Law 34, it is expected that more and more overseas Vietnamese will return to the country for investment, working and living and they all want to own homes in Vietnam. Though only nearly 170 overseas Vietnamese have bought their homes in Vietnam and none of them has their land areas recovered but it does not mean that the State will never recover their land areas under Clause 1, Article 38 of the Land Law.

Vietnam’s land law has provisions that overseas Vietnamese may have land areas recovered but it does not yet anticipate the case in which these overseas Vietnamese may wish to have resettlement places. Meanwhile we also know that amending a regulation or law is a time-consuming process, this issue would be difficult to deal with when it occurs in reality.

Conclusions

Land recovery is a complex issue and the recovery of land areas of overseas Vietnamese with the rights to use residential land in Vietnam is much more complex. Since Vietnam’s current legal system lacks provisions concerning this issue, it is necessary to add to the land law provisions on resettlement for overseas Vietnamese when their residential land in Vietnam is recovered. Specifically, the draft revision of the 2003 Land Law should be added with the following Point dd, to Clause 2 of Article 167:

“dd/ Being entitled to compensations and resettlement upon land recovery by the State in accordance with Vietnamese law”.

Otherwise, there should be specific guidance on resettlement for overseas Vietnamese when their residential land in Vietnam is recovered in another legal document concerning housing and residential land. At the same time, Clause 1, Article 70 of the 2003 Construction Law should be added with a provision that overseas Vietnamese may be provided with new stable residences when their land areas are cleared for the construction of public works.-

Laws and regulations concerning home ownership of overseas Vietnamese in Vietnam

- The 1992 Constitution of Vietnam which was amended in 2001;

- The 2003 Land Law;

- The 2003 Construction Law;

- Law No. 34/2009/QH12 of June 18, 2009, Amending Article 121 of the Land Law and Article 126 of the Housing Law;

- Government Decree No. 71/2010/ND-CP of June 23, 2010, detailing and guiding the implementation of the Housing Law;

- Ministry of Construction Circular No. 16/2010/TT-BXD of September 1, 2010, detailing and guiding the implementation of Decree No. 71;

- Ministry of Natural Resources and Environment Circular No. 14/TT-BTNMT of October 1, 2009, guiding cases eligible for resettlement upon land recovery by the State;

- The draft revision of the 1992 Constitution;

-  The draft revision of the 2003 Land Law.-



[1] Deputy Director, Law Faculty, Can Tho University

[2] Postgraduate student, Law Faculty, Can Tho University

[3] Figures taken from the article “Few overseas Vietnamese own homes in Vietnam” in Nguoi Lao dong (Laborer) newspaper at http://nld.com.vn/20120630095935206p0c 1014/qua-it-viet-kieu-so-huu-nha-o-viet-nam.htm , accessed on November 23, 2012.

[4] Figures from the article: “Remittances sharply rise despite of economic difficulties”, Vietnam Economic Forum, at http://vef.vn/2012-09-07-kinh-te-kho-khan-kieu-hoi-van-tang-manh , accessed on November 25, 2012.

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