LLD Nguyen Quang Tuyen
Hanoi Law University
1. Overview of the process of formation and development of Vietnam’s legal system on water resource protection (WRP)
The formation and development of the legal system on WRP proceed together with the formation and development of the human perception of the role of water. In the past, people thought that water was an infinite natural resource and, therefore, paid more attention to exploitation and use of water for domestic consumption and production than to its protection. Hence, the then legislation seemed to only provide for the exploitation and use of water sources (including groundwater and surface water). As the society develops, human awareness about water resources has gradually changed. Water is not an infinite but finite natural resource. Humans’ careless activities have been polluting water sources, which, as a precious natural resource, will be exhausted unless people know how to exploit and use as well as protect them. The shortage of clean water has become a global concern. This constitutes one of the main conditions giving rise to the regulations on WRP. Today, WRP legislation not only provides for the rational exploitation and use of water sources but also attaches importance to protecting them against contamination.
In Vietnam, the WRP legislation had not strongly developed until the promulgation of the 1993 Environment Protection Law, which clearly stipulates, among other things, the prevention, combat and overcoming of water pollution. Particularly, on May 20, 1998 the Xth National Assembly, 3rd session, passed the Law on Water Resources, regulating the unified and comprehensive management as well as rational exploitation and stringent protection of water resources. Then, a series of legal documents on WRP have been promulgated, including:
- Decree No. 179/1999/ND-CP of December 30, 1999 providing for the implementation of the Water Resources Law;
- The 2000 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Flood and Storm Prevention and Combat;
- The 2000 Ordinance on Dikes;
- The 2001 Ordinance on Exploitation and Protection of Irrigation Works;
- Decree No. 91/2002/ND-CP of November 11, 2002 defining the functions, tasks, powers and organizational structure of the Ministry of Natural Resources and Environment (MoNRE);
- Decision No. 600/2003/QD-BTN&MT of May 8, 2003 defining the functions, tasks, powers and organizational structure of the Water Resources Management Department under the MoNRE;
- Decree No. 67/2003/ND-CP of June 13, 2003 on environment protection charges for waste water;
- Decision No. 05/2003/QD-BTN&MT of September 4, 2003 issuing the Regulation on licensing groundwater exploration, exploitation and drilling practice;
- Joint Circular No. 125/2003/TTLT-BTC-BTNMT of December 18, 2003 of the Ministry of Finance (MoF) and the MoNRE, guiding the implementation of Decree No. 67/2003/ND-CP of June 13, 2003 on environment protection charges for waste water;
- Decree No. 149/2004/ND-CP of July 27, 2004 providing for the licensing of exploration, exploitation and use of water resources and discharge of waste water into water sources.
2. Assessment of Vietnam’s legislation on WRP
2.1. Achievements:
Over the past years, Vietnam’s legislation on WRP has been further improved, actively contributing to mobilizing all social resources for WRP. The active role of the WRP legislation can be seen in the following:
First, the promulgation of WRP legislation shows the Party’s and State’s concern about the creation of a viable legal framework for the strict management of water resources. The enforcement of the Water Resources Law has step by step put the water management and use into order, raised the people’s awareness about the rational and thrifty use of water and protection of water sources from pollution, contamination and exhaustion.
Second, the WRP legislation, together with other legal documents on land, forest, mineral and aquatic resource protection…, has contributed to perfecting Vietnam’s legal system on environment protection under the conditions of market economy. This has manifested not only the Party’s and State’s concern about the acceleration of economic development and improvement of people’s living standards but also their special attention to the rational exploitation and sustainable protection of natural resources, assuring the people’s right to live in a clean environment.
Third, Vietnam’s WRP legislation has approached and “localized” the integrated water resource development and management viewpoint of the United Nations Conference on Environment and Development (“Earth Summit”) in Rio de Janeiro in 1992. Chapter 18.8 of Agenda 21 on protection of the quality and supply of freshwater resources reads: “Integrated water resource management is based on the perception of water as an integral part of the ecosystem, a natural resource and a social and economic goods, whose quantity and quality determine the nature of its utilization. To this end, water resources have to be protected, taking into account the functioning of aquatic ecosystems and the perenniality of the resource, in order to satisfy and reconcile needs for water in human activities.” This viewpoint emerged when mankind came to realize that water is a finite natural resource while the demand for qualitative and quantitative water exploitation and use is increasing. The integrated water resource management is enshrined in the Water Resources Law’s provisions on:
- The establishment of a system of agencies exercising uniform management over water resources;
- The contents and competence of State management over water resources;
- The protection of water quality; prevention, combat and overcoming of consequences and harms caused by water;
- The licensing of water resource exploitation and use;
- The adoption of financial policies on water resources.
Fourth, the viewpoint on water resource protection, exploitation and use has been deeply embedded in the WRP legislation, which states that the prevention, combat and overcoming of consequences and harms caused by water must comply with the catchment basin plannings, ensuring the systematic distribution of catchment areas, not splitting them by administrative territory.
Under the Water Resources Law, the catchment basin planning management is regarded as a task of State management over water, covering: “(i) The elaboration, submission for approval, and monitoring of the implementation of, catchment basin plannings, ensuring the uniform management of catchment basins according to such plannings in association with management based on administrative territories; (ii) Coordination between the relevant agencies of ministries, branches and localities in conducting basic surveys, inventorying and assessing water resources in the catchment areas as well as in elaborating, submitting for approval, and monitoring the execution of, sub-basin plannings; (iii) Proposals on the settlement of disputes over water resources in the catchment basins.” (Clause 1 of Article 64).
Fifth, the WRP legislation has also provided for international relations on water resources. This is an issue of paramount importance for Vietnam to make use of the cooperation and assistance from non-governmental organizations and international community in general and the coordination of the countries sharing the same water sources in particular in the rational use and sustainable protection of water resources. Under the current legislation, international cooperation on water resources will comply with the following basic principles: “(i) Respect for the sovereignty, territorial integrity and interests of the countries sharing the same water sources; (ii) Ensuring equity, rationality, mutual benefits and sustainable development in the exploitation and use of transboundary water sources; (iii) Causing no harms to the rights and interests of the countries sharing the same water sources in accordance with international agreements which Vietnam has signed or acceded to; (iv) Complying with Vietnamese laws and implementing international agreements which Vietnam has signed or acceded to; and respecting international law.” (Article 53 of the Water Resources Law).
The WRP legislation has also established a legal mechanism for the settlement of disputes over transboundary water sources. Accordingly, all disputes over sovereignty in protection, exploitation and use of such water sources; prevention, combat and overcoming of consequences and harms caused by water sources between the countries sharing the same water sources, including Vietnam, will be settled by the State of Vietnam and related States through negotiations in accordance with international agreements which Vietnam has signed or acceded to and with international practices (Clause 1, Article 56 of the Water Resources Law).
2.2. Shortcomings and limitations:
Besides its obvious benefits, Vietnam’s WRP legislation has also revealed shortcomings and limitations, which should be redressed to satisfy the requirements of State management over water resources in the period of accelerated industrialization and modernization. These shortcomings and limitations can be seen in the following aspects:
First, the lack of legal documents guiding the Water Resources Law, which diminishes the effectiveness of State management over water resources. The required documents and regulations include:
- Documents guiding the order and procedures for registration, declaration, and licensing of the exploitation and use of groundwater and surface water as well as discharge of waste water.
- Regulations on application forms for registration, declaration and use of water sources; forms of permit for exploitation and use of water sources; and criteria and norms for discharge of waste water.
- Documents on the establishment of a specialized system for inspection of water resources as well as regulations on functions, tasks and powers of inspectors;
- Regulations on administrative sanctions in the domain of water management and use;
- Detailed guidance on basic surveys and assessment of water resource reserves, quality and planning.
- Regulations on protection of water quality; prevention of acts of exhausting water sources;
- Regulations on natural resources charges, fees and taxes applicable to organizations, households and individuals exploiting and using water.
Second, the lack of specific regulations on functions, tasks and powers of the catchment basin-management boards; on coordinative and cooperative relations between these boards and State management bodies in charge of water resources at all levels (the MoNRE, the Water Resources Management Department and the local People’s Committees) in water resource management and protection; and the lack of a transparent mechanism for combination of water resource management based on catchment basin planning with that based on administrative territories.
Third, the lack of a national long-term strategy and national plan of action for water resource management and protection to meet the national socio-economic development requirements. This is reflected in the absence of of:
- A comprehensive assessment and survey of the reserve and scale of water sources nationwide;
- A complete and comprehensive assessment of the quantity and quality of water sources;
- A regular and thorough planning of water resources for orienting the management and use of water in the country.
- A system of archived dossiers, information and database on water resources, serving as basis for State management over water. At present, data and information on water resources are updated late and inconsistent. Their publicity and transparency have not been ensured, causing difficulties to their exploitation, reference and access.
Fourth, the fragmented management over water resources. Currently, water resource management is undertaken by two agencies under two different ministries: (i) the Water Resource Management Department under the MoNRE, which performs the State management over natural resources and environment to ensure sustainable water resources; and (ii) the Irrigation Works Management Department under the Ministry of Agriculture and Rural Development- MoARD, which exercises the State management over water exploitation and use in service of agricultural and forestry irrigation as well as prevention and mitigation of harms caused by water to human life and production. However, so far the State has not yet promulgated any legal documents on coordination and cooperation between these agencies in water resource management. In fact, the two agencies independently perform their assigned tasks without close and regular coordination in water resource management, which also attributes to the poor effectiveness and efficiency of the State management over water resources.
Fifth, the unsuitability of a number of provisions of the 1998 Water Resources Law to the current practical situation. Under this Law “the MoARD shall take responsibility before the Government for performing the function of State management over water resources under the latter’s assignment” (Clause 2 of Article 58). This function, however, is designated to the MoNRE according to the XIth National Assembly’s Resolution No. 02/2002/QH11 of August 5, 2002 and the Government’s Decree No. 91/2002/ND-CP of November 11, 2002. Hence, the Water Resources Law should be revised to suit the practical requirements and create favorable conditions for the MoNRE to better manage water resources.
Sixth, the lack of regulations on water management, exploitation and use. Clause 1, Article 2 of the Water Resources Law stipulates: “Water resources include surface water, rainwater, groundwater and seawater sources in the territory of the Socialist Republic of Vietnam. Seawater and groundwater in exclusive economic zones and continental shelves are prescribed in other legal documents. Mineral water and natural hot water are prescribed in the Law on Minerals.” The current WRP legislation, however, provides for the management, exploitation and use of surface and underground water sources only, but not seawater, mineral water and natural thermal water sources.
3. Suggestions for the perfection of Vietnam’s legislation on WRP
Based on the above assessment and analysis of the current legal system on WRP, we think that to perfect this system it is necessary to undertake the following principal measures:
First, to soon enact legal documents detailing the implementation of the Water Resources Law so as to strictly manage and rationally use water sources. Such documents include:
- A decree on management, exploitation and use of surface water, groundwater and waste water;
- A decree on inspection, examination and handling of administrative violations in water management and use;
- A decision on planning and management of groundwater and surface water;
- A decision on protection of surface water;
- Documents guiding the order and procedures for registration, declaration and licensing of the exploitation and use of groundwater, surface water and waste water;
- Regulations on water resource charges, fees and taxes, etc.
Second, to expeditiously draft and pass a decree on catchment basin management, clearly defining the functions, tasks and powers of catchment basin-management boards and the coordinative and cooperative relations between these boards and State management bodies at all levels in water resource management activities.
Third, to elaborate a national strategy on water resource management and protection with a view to meeting the national socio-economic development requirements. In the immediate future, such strategy should focus on the following principal contents:
- Assessing and surveying the reserves, locations and scales of water sources nationwide;
- Assessing fully and comprehensively the quantity and quality of water sources;
- Assessing the current situation of management, exploitation and use of water sources; the contamination and pollution of water sources;
- Planning water resources with a view to orienting the future water management and use in Vietnam;
- Formulating and promulgating regulations on the establishment and management of a system of water resource information and database to serve as basis for State management over water resources, etc.
Fourth, to work out a regulation on coordination in water resource management between the Water Resources Management Department (the MoNRE) and the Irrigation Works Management Department (the MoARD) in order to raise the efficiency of State management over water resources.
Fifth, to expeditiously revise, amend and supplement the provisions of the Water Resources Law and relevant legal documents in order to meet the requirements of water management and use in the coming period. Simultaneously, to promulgate regulations on management, exploitation and use of seawater, mineral water and natural thermal water sources for the uniform management of all water resources in the Vietnamese territory.-