Environmental controls in Vietnam.I. INTRODUCTION Environmental controls in Vietnam are recent phenomena. It is now evident that the Vietnamese Government recognizes the importance of its unique environment and the need to have in place environmental controls to protect it. This recognition has been caused by a combination of factors, including the introduction of the Doi Moi (the renovation policy, or shift from a centrally planned economy to a market economy), the impact of international environmental law, and the opening of Vietnam to foreign investment. This Article provides an overview of environmental controls in Vietnam. Part II describes background environmental policy, programs, and strategies. Part III outlines the legal and administrative framework behind the various forms of environmental control. Part IV explains the techniques, procedures, and documentation associated with environmental impact evaluation and licensing of various activities that may affect the environment, and briefly outlines the regulation of specific environmental problems. Part V discusses the means of ensuring compliance with the environmental law regime. Part VI examines the preventative mechanisms recently implemented. Part VII critically evaluates the effect of these environmental controls. Part VIII examines some of the societal factors that will impinge upon the success of the implementation of this new environmental regime. This Article concludes by noting that, despite valid criticism, Vietnam's efforts are worth praise even though the positive effects of their efforts may not emerge for some time due to the societal and cultural history of the country. This Article will not, however, address in any detail international environmental law issues and their effect on Vietnam's municipal environmental laws. II. HISTORICAL BACKGROUND: ENVIRONMENTAL POLICIES, PROGRAMS, PLANS, AND STRATEGIES The concern for environmental degradation and the government's adoption of policies that address the problem can be traced back to 1980. Prior to that time, there were no formal environmental policies or controls in operation in Vietnam. In fact, there was no governmental body directly responsible for the environment. However, from 1980 onward, a series of strategic documents and research papers on the environment were undertaken. These provided the basis for the implementation of a framework for environmental protection and conservation in Vietnam. In 1981, the Vietnamese Government set up the National Resources and Environment Research Programme, whose task was to identify the major environmental problems and the means of overcoming them.(1) It found that there was a need for environmental protection legislation and therefore recommended the establishment of the infrastructure to implement various environmental controls.(2) In 1985, the Council of Ministers of Vietnam decided to prepare a study on environmental protection and the use of the country's natural resources. A variety of Ministries and bodies prepared both an evaluation and an inventory of existing conditions addressing these matters. Also in 1985, the National Resources and Environment Research Programme, with technical assistance from the International Union for the Conservation of Nature (IUCN), prepared a National Conservation Strategy. This strategy proposed: 1. The maintenance of ecological processes and life support systems in Vietnam, namely the maintenance of forests, midlands, croplands, freshwater, estuarine and coastal [and] deep sea ecosystems, 2. The preservation of genetic diversity by development of protected areas, identification of protected species, establishment of hunting regulations, control of the wildlife trade and ex situ conservation, 3. The sustained utilization of renewable resources, the maintenance of environmental quality for human life, and 4. The international implementation of conservation in Vietnam.(3) In the late 1980s, the government asked Vietnamese scientists to prepare a National Environment Action Plan.(4) This Plan was to be prepared with the assistance of international organizations with relevant expertise, such as the United Nations Development Programme (UNDP), Swedish International Development Authority (SIDA), and IUCN. A conference on the environment and sustainable development was organized and held in Hanoi in December of 1990,(5) and resulted in an important strategic planning document entitled the National Plan for Environment and Sustainable Development 1991-2000: Framework for Action (National Plan).(6) The chairman of the Council of Ministers(7) approved the National Plan in June 1992.(8) The National Plan addressed the issues that had been raised in the National Conservation Strategy and set out the means of providing a national and provincial framework for environmental planning and management. The component elements of this framework included: "the institutional, legislative and policy framework, giving orientation [to] the establishment of environment authorities, development of environmental policy and law, monitoring [and] information management; integrated and sectoral strategies for sustainable development, EIA (Environmental Impact Assessment), and environmental disaster management."(9) This framework also identified seven action programs: "(1) urban development and population control, (2) integrated watershed management, (3) integrated coastal and estuarine zone management, (4) protection of wetlands, (5) maintenance of genetic diversity, (6) national parks, protected areas and wildlife reserves and (7) pollution control and waste management."(10) The National Plan was to be implemented in two stages over two five-year periods.(11) Stage one, which was to cover the period from 1990 to 1995, aimed to develop environmental policy, draft new legislation and integrate it with existing legislation,(12) establish a single environmental authority, develop population control, control soil erosion, commence reforestation, curtail agricultural pollution, and initiate estuary protection.(13) Plans were also made for the development of environmental standards, policy, and procedures, which included impact assessment regulations. While this stage also included new programs,(14) it was primarily intended to establish the administrative structure to implement the previously passed environmental laws, including a new single environmental authority to manage the environment.(15) Stage two of the National Plan, designed to run from 1996 to 2000, is to include population control and watershed management along with the protection of reefs, wetlands, and inland waters.(16) III. LEGAL AND ADMINISTRATIVE FRAMEWORK A. Legal Framework 1. Introduction There was no specific broad-based national environmental legislation in place in Vietnam before 1993.(17) However, the research and strategic documents dealing with stage one of the implementation of the National Plan for Environment and Sustainable Development(18) indicated that the first step in the protection of the environment was the passage of a major national law that set the framework for environmental controls in Vietnam. On December 27, 1993, the National Assembly passed such a law: the Law on Protection of the Environment.(19) 2. The Law on Protection of the Environment The Law on Protection of the Environment has seven chapters and fifty-five articles and broadly covers the following major areas of environmental protection: the general duties of various administrative bodies; protection and abatement of pollution generally; the requirement for environmental impact evaluation; the establishment of environmental standards; broad import and export criteria; the requirements for exploration, transportation, processing, or storage of various toxic or hazardous substances; the location of potentially hazardous industries; a list of prohibited behavior or activities; remedies for environmental degradation or pollution; the system for addressing noncompliance and for rewarding compliance; and the implementation of international treaties and international cooperation. Specific articles or provisions of this law are discussed at length in the remainder of this Article. The finer detail regarding the implementation of this law is set out in a number of subsequent underlaws,(20) the most important being the Decree on Protection of the Environment.(21) 3. The Decree on Protection of the Environment The Decree on Protection of the Environment has seven chapters and forty-eight articles and sets out in some detail the following issues: the powers and duties of various government agencies and local organizations;(22) broad details of Environmental Impact Evaluation (EIE)(23) procedures;(24) mechanisms such as standards and permits for preventing, combating, and rectifying environmental hazards, pollution, and degradation;(25) the types of environmental standards; methods of financing activities to protect the environment;(26) and the establishment of an inspectorate and a compliance system.(27) 4. Other Important Underlaws There are also a range of principal laws and regulations which, while they are not entirely devoted to environmental protection, do contain some general framework provisions or cites to prohibitions on that subject.(28) Some important Vietnamese underlaws on protecting the environment include the Regulations on the Organization and Operation Councils for Appraisal of Environmental Impact Evaluation Reports and Issuance of Environmental Licenses,(29) the Decree on Administrative Offenses in Relation to Environmental Protection (Decree on Administrative Offenses),(30) the Circular on Administrative Offenses in Relation to Environmental Protection (Circular on Administrative Offenses),(31) the Circular on Providing Guidelines on Procedures for Issuance, Extension and Withdrawal of Environmental Evaluation Certificates for Industrial Establishments (Circular for Industrial Environmental Evaluation Certificates),(32) the Decision on Application of Vietnamese Environmental Standards,(33) the Circular on Pollution Control,(34) the Regulations on Environmental Protection in Prospecting, Exploration and Development of Petroleum Fields; Exploitation, Storage, Transportation and Processing of Petroleum and Other Relevant Services (Petroleum Environmental Protection Regulations),(35) and the Circular Providing Guidelines for Preparation and Appraisal of Environmental Impact Evaluation Reports in Respect of Investment Projects.(36) B. Administrative Framework 1. Introduction In Vietnam it is the State which has the responsibility, "nationally and uniformly,"(37) for the management of the protection of the environment, formulating investment policies to encourage domestic and foreign organizations and individuals to protect the environment, and protecting national interests in respect of natural resources and the environment.(38) There are, however, a number of central and local government departments or agencies that are crucial to the administration or implementation of the legal framework, the most important being the Ministry of Science, Technology, and the Environment (MOSTE). 2. Ministry of Science, Technology, and the Environment MOSTE was created in 1992 and is in control of the overall management of the environment.(39) Among MOSTE's functions and duties are the following: 1) preparation and submission to the government of all environmental protection legislation plans and policies; 2) evaluation of the current environmental situation of Vietnam; 3) appraisal of EIE reports and listing types of establishments and projects that must complete such reports; 4) preparation, organization, promulgation, and application of environmental standards; 5) issuance and revocation of environmental and import permits; 6) organization and training of environmental protection manpower; 7) overseeing of the entire environmental inspection process; 8) submission to the government of proposals for the signing of, and participation in, international treaties; 9) resolution of various disputes; 10) amelioration of serious environmental hazards; 11) preparation and implementation of plans for preventing environmental degradation and pollution; 12) implementation of the government's administrative function in the respect of protection of the environment;(40) 13) preparation of lists of low-level waste materials that meet environmental standards; 14) imposition of various penalties for environmental offenses; 15) organization of research into environmental protection; and 16) participation in the management of the natural reserve fund to prevent environmental hazards. 3. National Environment Agency Within MOSTE, the most important agency is the National Environment Agency (NEA). NEA was established in 1993(41) to assist MOSTE in its administrative functions at the national level.(42) NEA's duties, powers and organizational structure are the responsibility of MOSTE. NEA has the following duties and responsibilities:(43) 1) promulgation of legislation and a system of environmental standards; 2) formulation and implementation of policy guidelines; 3) implementation of the National Plan; 4) coordination of the environment protection plans of other ministries and provincial agencies; 5) preparation of lists of low level permissible waste; 6) provision of plans for the prevention and rectification of environmental hazards or pollution; 7) construction and management of projects; 8) settling environmental disputes; 9) periodic evaluation of the current environment; 10) supervision, inspection and control of the implementation of environment protection laws; 11) coordination of all environmental inspections; 12) forecasting of possible environmental changes; 13) evaluation of EIE reports; 14) issuing and revocation of environmental permits (also known as certificates of compliance with environmental standards), Certificates of Pollution Control, and import and export permits, and resolution of disputes concerning these certificates; 15) the training of environmental staff; 16) management of public awareness; 17) organization of research; and 18) formation of international relations and specialized inspections.(44) 4. People's Committees and Departments of Science, Technology, and the Environment At the provincial and city levels, the People's Committees are responsible for the implementation of State management of environmental protection, including the majority of MOSTE's roles.(45) The People's Committees also promulgate environmental legislation at the city and provincial levels.(46) Each of the fifty-three People's Committees have a Department of Science, Technology, and Environment (DOSTE) to carry out environmental management at the local level(47) This department is sometimes referred to as COSTE.(48) DOSTE is responsible to the
[P]eople's [C]ommittees of provinces and cities under central authority for
the implementation of State management of the protection of the environment
within each particular locality.
The duties, powers and organizational structure of [DOSTE] in each
particular locality in respect of protection of the environment [is]
determined by the [P]eople's [C]ommittee of the particular province or city
under central authority in accordance with guidelines stipulated by
[MOSTE].(49)
DOSTEs in each locality are also responsible for pollution control activities, EIE appraisals, issuing import permits, inspections of projects and establishments, imposing penalties, and also has a role to play (along with NEA)(50) in dispute resolution with regard to penalty decisions.(51) 5. Other Ministries or Agencies with a Peripheral Interest in Protecting the Environment While the Ministry of Planning and Investment (MPI) has mainly nonenvironmentally related legal functions, it is responsible for disbursing central funds to all projects, including environmental projects.(52) To this end, there is an environmental unit within MPI known as the Department of Science, Education, and Environment. This department also has an important role to play in issuing investment licenses as a preliminary step in the evaluation of environmental impact procedures.(53) Various other ministries have ancillary roles to play in the protection of the environment. For example, the Ministry of Transport is responsible for inspection of any form of transport to see that it complies with environmental standards.(54) The Ministry of Finance is partly responsible for setting the fees or charges for issuing and extending an environmental permit.(55) Additionally, either the Ministry of Agriculture and Rural Development (MARD), or the Ministry of Aquatic Resources has the task of listing valuable and endangered animals and plants that are illegal to export or trade.(56) Apart from MOSTE, there are approximately twenty other central government ministries or institutions that have some role to play in environment protection.(57) Within those bodies, that role is usually given to the Department of Science or the Department of Science and Technology.(58) The management of natural resources is not within the jurisdiction of any agency or ministry dealing primarily with environment protection. For example, the management of forest protection and water resources falls within MARD,(59) mineral resources within the Ministry of Industry, petroleum resources within the Oil and Gas General Department, and the management of fisheries lies with the Ministry of Fisheries. General responsibility for the prevention of marine pollution lies with the National Maritime Bureau, although the responsibility for dealing with the discharge of pollution from ships falls to the Ministry of Transport.(60) Research on environmental matters is conducted by the National Research Program for Environmental Protection (formerly the Resource and Environment Research Programme).(61) IV. MECHANISMS WITHIN THE VIETNAMESE LEGISLATIVE REGIME AIMED AT PROTECTING THE ENVIRONMENT A. Techniques, Procedures, and Documentation Employed for the Evaluation of Planned Projects or Licensing of Any Use of the Environment 1. Environmental Standards An environmental standard, in the context of Vietnamese environmental law, means "a stipulated standard or allowed limit which is used as a basis for environmental management."(62) These standards are one of the main yardsticks against which various government agencies critically evaluate any application for construction of a new project that may affect the environment.(63) The government has a general duty(64) to promulgate(65) environmental standards regarding environmental protection and MOSTE has the overall responsibility for the organization, development and application of environmental standards.(66) There are twenty-one subjects for which MOSTE must prepare environmental standards(67) and to date there are ninety-seven individual environmental standards.(68) Commercial and manufacturing establishments are under a statutory duty to comply with environmental standards.(69) All projects implemented within Vietnam are subject to the Vietnamese Environmental Standards issued by MOSTE, though if the applicable standards are yet to be promulgated, then the investor must apply the provisional standards issued by that agency.(70) Vietnamese and foreign organizations and individuals must apply these standards in the development of their projects and when carrying out production and business activities within Vietnam.(71) NEA must consider any requests about both matters not covered by the existing ninety-seven standards as well as technical methods to be used in the application of these existing standards.(72) NEA must make submissions to MOSTE about such requests. Two examples of the application of these standards in the petroleum industry include: requirements that all petroleum storage tanks, pipelines, and related equipment must be produced according to Vietnamese or international standards;(73) and all forms of waste discharged from petroleum facilities must be executed according to Vietnamese environmental standards(74) 2. Environmental Impact Evaluation (EIE) Procedures a. Introduction MOSTE recently issued new EIE procedures in the Circular Providing Guidelines for Preparation and Appraisal of Environmental Impact Evaluation Reports in Respect of Investment Projects (April 1998 Circular).(75) These procedures cover most types of investment projects including domestic, joint venture, "business cooperation contracts with foreign partners, [and] one hundred percent of foreign owned projects."(76) MOSTE has divided all these different types of investment projects into two separate groups. b. The Two Groups of Investment Projects Group I investment projects are those that can potentially cause wide scale environmental pollution, easily cause environmental pollution, or are difficult to control and for which it is difficult to determine environmental standards.(77) There are twenty-five different categories of these Group I investment projects(78) and they must prepare and submit environmental reports for evaluation and approval.(79) MOSTE decides which projects fall into the Group I category.(80) Group II investment projects are all the remaining projects and the applicant must prepare and analyze its own EIE reports in order to receive a certificate of "registration of satisfaction of environmental standards."(81) c. The Role of Environmental Impact Documentation Before a person or organization can be permitted to proceed, investment projects need to have the relevant environmental impact documentation appraised and approved by the particular State bodies. In the case of Group I projects, the document sent for approval is the EIE report, while for Group II projects it is the registration of satisfaction of environmental standards.(82) Before the relevant environmental impact documentation is appraised, an investment license must be obtained for the particular investment project. However, the environmental impact documentation plays a role in the process of granting an investment license. d. Application for an Investment License. The agencies responsible for handling and issuing investment licenses are MPI and the People's Committees. The actual application file for an investment license for a Group I project must contain a summary of the potential impact of the particular project on the environment. Appendix II of the April 1998 Circular sets out the key factors that must be included in this summary. With Group II applications, a registration of satisfaction of environmental standards must be prepared and this registration must contain a description of the following matters: the proposed site, a summary of the production technology, any sources of pollution, all measures to minimize that pollution, the environment supervision program, and all undertakings to satisfy environmental standards.(83) e. Appraisal and Approval of Environmental Impact Documentation After the investment license has been issued and the project site determined, an application file containing various environmental impact documentation must be submitted to the relevant State body for appraisal and approval. Group I application files must include an application for appraisal of the EIE report set out in the form provided in Appendix IV.1 of the April 1998 Circular, seven copies of the EIE report-the contents of which are set out in Appendix I.2 of the Decree on the Protection of the Environment-and one copy of the feasibility study or technical explanatory statement of the project.(84) In the case of petroleum projects the EIE report has to also include plans for controlling oil spills.(85) With Group II projects, when applying for approval of the registration of satisfaction of environmental standards and the granting of the resulting certificate of registration of satisfaction of environmental standards, the application file must contain the application for registration,(86) three copies of the registration and one copy of the feasibility study or technical explanatory statement of the project.(87) For Group I projects, appraisal councils, the State bodies responsible for appraisal and approval of the environmental impact documentation,(88) first check the documentation and make a recommendation to MOSTE or the relevant local People's Committee, which in turn makes the final decision on approval and issuance of permits.(89) However, the preamble to the Regulations on Organization and Operation of Councils for Appraisal of Environmental Impact Evaluation Reports and Issuance of Environmental Licenses suggests that NEA may have also some role in the appraisal of EIE documentation.(90) As for Group II projects, the Office of Environment under MOSTE or DOSTE(91) is responsible for appraisal of the registration documentation and issuing the certificate of registration of satisfaction of environmental standards. However, in some instances, "a local State body in charge of environmental protection may appraise Group I projects and consider Group II projects."(92) The process of appraisal involves, inter alia, checking the EIE report or registration documentation against the relevant Vietnamese environmental standards issued by MOSTE. However, if local standards are stricter than those issued by MOSTE, the former will apply.(93) If there is no appropriate MOSTE, local or other Vietnamese standards, the standards of some other advanced country may be used, as long as MOSTE agrees.(94) There are time limits for appraisal of both EIE reports (sixty days from the date of the receipt of the application file) and registration of satisfaction of environmental standards documentation (twenty days from receipt).(95) There is a standard format for the document that contains the decision to approve an EIE report(96) as well as for the Certificate of Registration of Satisfaction of Environmental Standards.(97) f. Appeals Against EIE Appraisal Decisions Investors, project team leaders, or directors of an establishment or enterprise have a right to appeal the appraisal of the EIE report. This appeal can initially be made to the body that appointed the particular council that undertook the initial appraisal and, if unsuccessful, then to NEA at a higher level. This appeal must be decided within one to three months of the receipt of the appeal application.(98) g. Certificate of Pollution Control. The Certificate of Pollution Control(99) is issued if all the necessary environmental prerequisites are met and, in particular, if all the waste treatment facilities have been put into operation in accordance with the approved EIE report. All business and production establishments are required to obtain this Certificate within six months of the date when waste treatment activities commenced.(100) In practice, the process of supervision and inspection necessary for issuing this Certificate occurs in the time period after the date of approval of the EIE report but before the issuance of the environmental permit. There are separate application procedures for the Certificate.(101) Within one month of receipt of the application, NEA must either refuse the application or grant the Certificate. Other delegated agencies also have the power to issue these Certificates.(102) Where difficulties arise in the approval process, agencies have the power to refer the matter to MOSTE for settlement. The Certificate is valid for no more than eighteen months(103) and during that period NEA may conduct periodic or unannounced inspections of the pollution control activities of any establishments that hold a Certificate.(104) In addition, establishments with Certificates are required to submit quarterly reports on pollution control to NEA.(105) h. Procedures Immediately Upon Completion of Construction Prior to commissioning(106) any construction works or the issuing of a Construction permit or a land use permit,(107) the relevant State body must do three things. It must first coordinate with the body that is responsible for issuing the construction permit to inspect waste treatment and other safety facilities to ensure that they comply with the relevant environment protection provisions. Second, where the inspection shows the works do not meet these provisions, the responsible body must request that the investor take all measures necessary to meet the conditions of the previously approved EIE report (Group I projects) or approved certificate of registration of satisfaction of environmental standards (Group II projects). Third, it must issue a permit to the project when all the environmental protection standards have been met.(108) This permit is known as the environmental permit i. Environmental Permit MOSTE has the overall responsibility for the issuance and revocation of environmental permits, alternatively referred to as certificates of compliance with environmental standards.(109) Organizations or individuals importing or exporting toxic materials, microbiological products,(110) animals, plants, seeds, genes, or biological vaccinations(111) must first obtain an environmental permit from the relevant administrative body and NEA. Various industrial establishments and operations must possess an environmental permit when carrying out production activities. Examples include small industrial and handicraft establishments, industrial establishments, operations engaged in collection, transportation, and treatment of wastes,(112) or operations listed in Appendix I of the Circular Providing Guidelines on Procedures for Issuance, Extension and Withdrawal of Environmental Evaluation Certificates for Industrial Establishments.(113) The relevant state body in charge of environmental protection or empowered to appraise EIE reports has the power to issue the environmental permit.(114) The amount of fee or charge for issuing and extending an environmental permit is determined by the Ministry of Finance and MOSTE.(115) The application for an environmental permit must include: an application form, a notarized copy of the decision approving the EIE report or a written opinion on the environmental impact of the production activities, a notarized copy of the Certificate of Pollution Control,(116) and a statement of the actual condition of the operation or establishment environment.(117) On receipt of the application, the relevant appraising State body (MOSTE, NEA,(118) or the Chair of the relevant People's Committee) must issue a receipt and then has forty days to either grant or refuse the environmental permit.(119) The same body can request further information from the applicant and any failure to supply this additional data within thirty days can render the application invalid.(120) The decision maker must notify the applicant of its decision.(121) MOSTE is responsible for informing the relevant People's Committees of the names of those industrial operations that have been granted environmental permits.(122) The environmental permit, once granted, is valid for three years in the case of industrial establishments that utilize toxic and radioactive substances and five years for other establishments.(123) There is provision for extending the validity period of the permit, but the maximum period for each extension is three years.(124) When applying for such an extension, the applicant must provide a notarized copy of the existing environmental permit and Certificate of Pollution Control, along with a statement of the actual current condition of the environment.(125) The procedures for granting or refusing the extension are basically the same as for the initial permit.(126) Environmental permits must be amended whenever environmental standards change.(127) Where permits are transferred the legal successor must notify the issuing body.(128) Unsuccessful applicants for an initial environmental permit or an extension of that permit may appeal to the relevant State administrative body, which must determine the matter within thirty days. If that body refuses the appeal, the applicant has a further right of appeal "in accordance with [the] law."(129) j. Post-Construction Monitoring Chapter V of the April 1998 Circular suggests that MOSTE has delegated to DOSTE the power to verify that projects continue to comply with environmental standards. The EIE reports on registration documentation well after the particular project is completed.(130) Also, in the case of the petroleum industry, petroleum organizations are required by law to carry out environmental observation and analysis after the EIE report has been approved for the particular petroleum facility.(131) 3. Other Forms of Environmental Authorization or Certification a. Import and Export Permits Before importing any equipment or technology for a development project that affects the environment, the developer must 1) conduct a feasibility study, 2) have the EIE for the project approved by NEA, 3) in the case of importing items necessary for the protection of the environment, have NEA approve the importation of such items, and 4) obtain an import permit from MOSTE or DOSTE depending on the nature of the project.(132) b. Miscellaneous Certificates and Permits Among the environmentally related certificates not yet mentioned are the technical certificates necessary for the usage of toxic and harmful chemicals(133) and the radiation emission permit required before the relevant premises can operate.(134) Petroleum organizations also must obtain a license from MOSTE before they can use drilling muds or toxic or dangerous chemicals.(135) A permit is also required for all sightseeing tours and scientific research that is conducted in wilderness conservation areas.(136) B. Regulation of Specific Environmental Problems and Their Controls 1. Waste Disposal There is a general duty placed on all establishments to appropriately treat all forms of liquid, toxic, and other forms of waste prior to their disposal.(137) MOSTE is required to provide guidance in the preparation of lists of low quality raw materials or waste materials that meet environmental standards and are imported for use in local production.(138) Any establishment that produces solid, liquid, or gaseous "waste"(139) must ensure that such waste is treated prior to being disposed of, and that the disposal process conforms to environmental standards.(140) The relevant state body must inspect the technology and methods used in these processes. "Waste from daily activities in cities, towns, and industrial zones must be collected, transported, and dealt with in accordance with regulations on management of wastes."(141) Biological or disease-related waste must be treated properly before being disposed of in public dumps,(142) but toxic wastes cannot be disposed of in these types of dumps.(143) Furthermore, "[o]rganizations and individuals must, when carrying out production, business, or other activities ... install technical equipment for waste disposal in order to comply with environmental standards and to prevent environmental degradation, pollution, or environmental hazards."(144) NEA must list all forms of waste that shall be treated appropriately prior to disposal.(145) Petroleum organizations are severely restricted as to the type of waste that can be dumped into the sea.(146) Such organizations are subject to tight regulations as regards the collection and processing of solid and liquid waste from land-based operations.(147) 2. Noise Pollution All mechanical means of transportation must not exceed the noise level standards set out in the Decree on Protection of the Environment.(148) Petroleum organizations are required to control their noisy activities during their exploration or prospecting activities by keeping the levels within the standards set out within their approved EIE reports.(149) 3. Emissions and Air Pollution "As of 1 April, 1995, all means of transportation within cities must have a smoke emission level of less than sixty (60) hartridge units, [and] must not discharge any ... polluting agents into the environment."(150) Where permits for vehicles to operate were issued prior to the commencement of the Law on Protection of the Environment, those vehicles "must apply technical measures to limit the maximum emission level of smoke and toxic waste into the environment."(151) Vehicles that fail to meet these standards cannot be used.(152) Petroleum organizations cannot directly discharge hydrocarbon gas into the surrounding environment without prior authorization from the relevant state body.(153) 4. Water Pollution There are restrictions on petroleum organizations regulating direct discharges into the sea.(154) Also, such organizations must not cause harmful effects to the structure of the seabed or coastal areas through their pipelines.(155) There are several prohibitions involving water pollution.(156) 5. Transportation, Storage, and Exploration There is a general duty requiring any transportation, exploration, or processing of oil or gas to be carried out using the appropriate environmentally sensitive technology and measures to protect the environment.(157) All forms of transport must comply with environmental standards.(158) When transporting goods or materials by rail, road, or sea, the carriers "must not emit toxic smoke, dust, oil, or gas into the environment which exceeds" the standards set out in Appendix IV of the Decree on Protection of the Environment.(159) Also, "all mechanical means of transportation must not exceed" the noise levels permitted by the standards set out in Appendices V.1 to V.4 of the Decree on Protection of the Environment.(160) 6. Nuclear Power, Petroleum, Radioactive, or Toxic Substances All aspects of production, transportation, storage, and usage of toxic or nuclear substances must comply with environmental protection regulations.(161) Technical certificates are required for the usage of toxic and harmful chemicals.(162) The laws in relation to the safety and control of radiation(163) must be complied with when petroleum operations use radioactive materials.(164) 7. Protection of flora and Fauna, Combating Deforestation, and the Preservation of Biological Diversity As a general principle, "organizations and individuals shall be responsible for the protection of various species, plants, animals, biological diversity, forests, oceans and ecosystems."(165) MARD and the Ministry of Aquatic Resources have the task of drawing up lists of valuable and endangered animals and plants that it is illegal to exploit or trade.(166) The now defunct Council of Ministers issued a decree of a similar nature.(167) In response to Vietnam's tragic difficulties with deforestation, various laws have attempted to address the problem.(168) For example, the Law on Forest Protection and Development obliges all Vietnamese to be responsible for the protection of forests. "[E]xploitation of forests must be carried out in accordance with a master plan and the provisions of the Law on Forest Protection and Development."(169) The Protection Department of MARD has a ranger system to, inter alia, protect the forests.(170) There is also a system of administrative fines aimed at protecting the forests.(171) Utilization of farmland, forestry, and marine resources must comply with land use and land improvement plans so that ecological balance is ensured. The application of chemicals, fertilizers, insecticides, and other biogeochemical products are also regulated by law.(172) Appendix III of the Decree on Protection of the Environment lists rare and precious plants and animals.(173) The Council of Ministers issued a decree that determined the lists of these plants and animals as well as methods for regulating their management and protection.(174) Article 23 of the Decree on Protection of the Environment references the Convention on International Trade in Endangered Species,(175) the Law on Protection and Development of Forests, and the Ordinance on Protection of Marine Resources, but the relationship between the article and the references is not clear. The Vietnamese forests are categorized according to their primary uses as Environmental Protection Forests, Conservation Forests, and Production Forests.(176) There are provisions pertaining to the development and use of each of these three categories of forest.(177) In addition, there are various prohibitions governing the use of wilderness conservation areas and forests.(178) 8. Imports and Exports There is a general requirement that the "importing or exporting of technology, machinery, biological or chemical products, toxic or radioactive substances, and microorganisms related to the protection of the environment must be approved by the relevant administrative body" or NEA.(179) Importing and exporting species of animals, toxic materials, and technical equipment requires permits from NEA or the relevant state bodies.(180) There are various prohibitions regarding importing and exporting wastes containing toxic materials or disease-related microorganisms.(181) Anyone who imports or exports any quantity of microbiological products, animal and plant species, or genetic sources that exceeds the permit conditions must either destroy or re-export the excess amount.(182) When entering Vietnam, "[o]rganizations, individuals, or owners of transportation facilities must ... apply for a permit and declare any goods that could be a source of environmental hazard or pollution."(183) Breaches of such a requirement will be dealt with under the laws of Vietnam.(184) Article 4(2) of the Decree on the Transfer of Foreign Technology to Vietnam also prohibits the transfer of any technology into Vietnam that is detrimental to the environment.(185) V. COMPLIANCE A. Inspections MOSTE has the overall responsibility for organizing environmental inspections(186) and ensuring that actual inspections are executed according to the relevant environmental standards. The inspectors themselves are drawn from agencies such as NEA,(187) MOSTE, the State General Department of Inspection,(188) the People's Committees,(189) and customs bodies.(190) The powers of these inspectors vary,(191) but they are basically determined by, or are conditional to, the size of the penalty. MOSTE and the State General Department of Inspection are also responsible for the organization, powers, and scope of the inspections according to the provisions of the Law on Protection of the Environment and the Ordinance on Inspection. The Ministry of Transport is responsible for inspecting all methods of transport to ensure that they comply with environmental standards.(192) NEA officials are to inspect and supervise toxic chemical establishments(193) and also must check that establishments are complying with their Certificates of Pollution Control.(194) During the inspection process, the inspection committee or inspector have rights to: 1) request the organization or individual being inspected to provide all the relevant documentation and answers to questions, 2) implement on the spot any recommended technical control measures, 3) suspend temporarily any detrimental actions, 4) report to the relevant authority the alleged detrimental behavior, 5) petition the relevant dispute resolution body, 6) deal with any breaches for which it has jurisdiction, and 7) where it does not have the power, to refer the matter on to the relevant authority.(195) Commercial, petroleum,(196) and manufacturing establishments are under a statutory duty to provide documents, create favorable conditions for inspections and comply with decisions of the inspectors.(197) However, these inspected bodies do have the right to complain, or appeal against, decisions of inspectors,(198) The state petroleum management body is responsible for organizing the inspection of petroleum operations and these inspectors have various powers including that of temporary suspension of operations and dealing with breaches of the law.(199) B. Compensation and Damages Commercial and manufacturing establishments have to make financial contributions for the protection of the environment, pay compensation for any damage they cause by theft activities(200) and rectify any environmental degradation they cause.(201) Vietnam therefore follows the principle of "polluter pays." Where an individual or organization commits an administrative offense in relation to the environment, compensation for damage caused by that offense is to be determined by mutual agreement between the offender and the offended.(202) Where parties cannot reach such an agreement and the damage is valued up to one million Dong, the person who has authority to impose a penalty decides the rate of compensation. If the amount is over one million Dong and no agreement is reached, then the matter is resolved in accordance with civil procedure.(203) Petroleum establishments must pay compensation for any damage caused by explosions(204) or any other form of pollution they have caused.(205) They are also liable for the cost of cleaning up the environment after any pollution that results from theft activities.(206) However, they are not liable for damages or expenses that result from a natural calamity, war or terrorism, or the unrelated actions of a third party.(207) Ship owners are liable for costs incurred in the cleanup of environmental pollution (excluding nuclear radioactivity) caused by theft vessels.(208) Holders of mineral prospecting, mining, processing, or exploration licenses must pay damages for all damage caused by such activities.(209) C. Rectification of Environmental Accidents MOSTE must present any cases of serious environmental hazards(210) to the Prime Minister and submit proposals for rectification of these problems to that person for his or her approval.(211) There are also procedures for dealing with an environmental hazard.(212) Various Ministries(213) have the responsibility for organizing special units to overcome these hazards. Provision is also made for financing mobilization of other organizations and individuals to combat such hazards.(214) Petroleum organizations are required to submit plans for fire and explosion control(215) as well as for potential oil spills.(216) Such organizations are also required to locate their plants so that the adverse effects on the environment are minimized,(217) as well as carry out their operations to minimize the risk of oil spills and the pollution of surface or groundwater.(218) These organizations must keep an adequate labor force, equipment, and contact with the relevant bodies so as to minimize the damage that may arise from environmental hazards.(219) When serious incidents occur (for example, large oil spills or petroleum fires), the petroleum establishment must immediately take the necessary salvage measures(220) and notify the appropriate agencies.(221) Any petroleum contractor(222) must implement measures to protect the environment.(223) Inspectors of petroleum operations have the power to temporarily suspend, or recommend to the appropriate authority, the suspension of all operations where there is a likelihood of environmental pollution.(224) All holders of mineral prospecting, exploration, mining, or processing permits must protect the environment during their activities.(225) Generally, any organization or individual causing environmental degradation or hazards through production, business, or other activities must implement remedial measures in accordance with the provisions set down by NEA or People's Committees.(226) D. Prohibitions The following environmentally related activities are prohibited under various Vietnamese laws: 1) "[a]ny act which causes environmental degradation, or pollution, or environmental hazards;"(227) 2) all acts likely to be causing damage to the environment;(228) 3) production factories in special economic processing zones that cause pollution to the environment;(229) 4) all acts of destroying forest resources and damaging or causing pollution to the ecological environment of forests;(230) 5) disposing of all forms of harmful waste into water sources;(231) 6) exporting or importing of toxic materials or disease related microorganisms;(232) 7) organizations and individuals producing loud noises or vibrations in excess of the permitted limits and that harm the health and daily lives of the surrounding people;(233) 8) emitting smoke, dust, toxic gas, and putrid fumes into the surrounding environment;(234) 9) discharging toxic and radioactive substances into water sources;(235) 10) discharging gas, liquid, or solid waste into the environment, in excess of proscribed limits, during the implementation of petroleum projects;(236) 11) petroleum organizations carrying out seismic explosions or causing sudden noises in national conservation areas where rare and valuable animals are nesting and reproducing;(237) 12) exploiting and trading rare species that are stipulated in government lists;(238) and 13) importing technology or equipment that does not meet environmental standards.(239) E. Administrative and Criminal Environmental Offenses 1. Categorization of Offenses There is a distinction between an administrative offense and a criminal offense with regard to the environment. An "administrative offense" includes "any intentional or unintentional act which violates the principles of State management of environmental protection ... [which is] subject to [an] administrative penalty if such [an] act does not warrant investigation for criminal liability."(240) Article 50 of the Law on Protection of the Environment makes a similar statement regarding the difference between criminal and administrative offenses. It states that any breach of environmental protection laws "shall, depending on the seriousness of the offence and the damage caused, be penalized administratively or subject to criminal prosecution."(241) Where it is difficult to ascertain whether the offense was administrative or criminal in nature, the People's Inspectorate determines the matter.(242) Where there are a number of administrative offenses under various environmental protection laws, the penalty or offense under the Decree on Administrative Offenses in Relation to Environmental Protection prevails.(243) The following discussion is confined primarily to administrative penalties. 2. Examples of Administrative Offenses There are far too many specific administrative offenses in Vietnamese environmental laws to mention them individually. However, they can be grouped together under the following categories: 1) failing to submit an EIE report for appraisal and failure to satisfy requirements of an NEA appraisal report,(244) 2) breaching an environmental provision of a Certificate of Pollution Control,(245) 3) breaching an environmental permit,(246) 4) failing to obtain an environmental permit when importing toxic and other hazardous substances,(247) 5) offenses concerning import and export permits,(248) 6) offenses relating to radioactive substances,(249) 7) offenses concerning biodiversity and endangered species of animals and plants,(250) 8) offenses relating to waste management and disposal,(251) 9) offenses concerning air(252) and noise pollution,(253) and 10) offenses relating to the consequences of environmental accidents.(254) 3. Categories of Offenders The Decree on Administrative Offenses divides offenses into mainly two categories, "organizations" and "individuals." Organizations include State bodies, the Fatherland Front of Vietnam and its member organizations, units of the armed forces and social and economic organizations.(255) Individuals include Vietnamese nationals with full capacity, persons between fourteen and sixteen years of age who intentionally commit the offending act, servicemen, and foreign individuals without a nationality who commit an offense within the territory of Vietnam (unless otherwise provided by an international treaty).(256) F. Penalties and Fines 1. Forms or Categories of Penalties Penalties for administrative offenses are either a warning or a fine.(257) Warnings are applicable "to any organization or individual committing an unintentional or minor administrative offence [sic] in relation to environmental protection for the first time with attenuating circumstances."(258) Warnings may be issued on the spot, but no official recording of that warning is required.(259) Fines may be imposed where the "nature and seriousness" of the administrative offense warrants it.(260) Additional penalties also may be imposed, again depending on the nature and seriousness of the administrative offense.(261) Examples of such penalties include the confiscation of physical evidence used to commit the offense and the withdrawal of environmental permits. These additional penalties cannot be imposed without either a warning or a fine. In addition, other measures may be imposed for administrative offenses, including forcing the offender to take remedial action, payment of compensation for damage caused, and restoration of matters to their preoffense status.(262) 2. Grounds for Imposing a Penalty Penalties imposed by the Decree on Administrative Offenses must be based on legal provisions, the actual extent of the damage, the personal characteristics of the offender, the nature and seriousness of the offense, and any attenuating(263) or aggravating(264) circumstances.(265) Where organizations and individuals commit multiple offenses at any time, they are to be penalized in relation to each offense. Where the offenses cumulatively put the offender into a higher bracket of offenses, the file shall be transferred to the appropriate higher authority for issuance of the penalty.(266) 3. Persons or Agencies with Jurisdiction to Invoke Penalties The persons or agencies that have power to impose penalties for administrative offenses are the People's Committees (within their respective localities); the inspectors within the MOSTE, NEA, and DOSTE (within their areas of responsibility); or the relevant government body.(267) If the offense is deemed to be of a criminal nature, the relevant agency must refer the matter to the People's Inspectorate or an investigation body.(268) Under the Ordinance on Dealing with Administrative Offenses,(269) inspectors specializing in science, technology, and environmental protection within DOSTE, MOSTE, NEA, and the People's Committees, as well as customs officer,(270) have varying powers to impose penalties.(271) 4. Liability of Persons Who Impose Sanctions Authorized persons are liable for their decisions regarding punitive administrative measures(272) and must keep records of any offender's equipment or materials they destroy.(273) The cost of enforcing a punitive decision must be borne by the offender.(274) Any person who is authorized to impose penalties for administrative offenses, but who extorts or protects an offender, or fails to impose a penalty, shall be disciplined or criminally prosecuted.(275) 5. Penalty Amounts Penalties for administrative offenses vary according to "the nature and seriousness of the offense, the education level of the offender, and any attenuating or aggravating circumstances."(276) The amount of the fine for an administrative offense is the average of all the range of fines stipulated for the offense, but it can either be lowered, if the offense involves attenuating circumstances (but must not be lower than the minimum fine), or raised in aggravating circumstances (but not to an amount higher than the maximum fine for that offense).(277) Additional penalties or measures can be applied in addition to the principal penalty, depending on the circumstances of the offense.(278) It is impossible to list here the amount of each fine for each offense. The lowest fine for any one particular offense is fifty thousand Dong, the highest fine is one hundred million Dong,(279) though there are several offenses that have a fifty million Dong fine.(280) Most fines are in the range of 500,000 to 8 million Dong, with aggravated offenses usually carrying an increased penalty. Some offenses also carry with them the additional penalty of withdrawal or revocation of the relevant permit, confiscation of the relevant illegal goods or equipment, or payment of compensation for the environmental damage caused. 6. Immunity from Penalty There are no penalties for administrative offenses in the following situations: the act occurs in cases of emergency or force majeure,(281) the perpetrator is incapable of being aware of or controlling his or her acts due to mental or other illness;(282) the offense is of a criminal nature; the offender is less than fourteen years old; or the statutory time limit for imposing the penalty has expired.(283) There are separate provisions dealing with the statutory limit issue.(284) 7. Procedures for Imposing Penalties There are also various procedures set down for the imposition of penalties. Where a warning is given, the authorized person must issue it on the spot.(285) Records must be kept when a fine is more than twenty thousand Dong.(286) Within fifteen days, (thirty days in complex cases) of the recording, the authorized person must send a notice of the decision to fine to the penalized person or organization. Where the penalty is more than two million Dong, a copy of the penalty must be sent to the People's Inspectorate.(287) Organizations or individuals fined for committing an administrative offense must pay the fine within the stipulated time limit and can be compelled to do so if they fail to meet that stipulation.(288) If the penalized person or body fails to comply within five days of receipt of the notice, the authorized person has the power to issue a compulsory compliance decision.(289) Persons authorized to impose fines are prohibited from personally collecting them.(290) G. Withdrawal and Revocation of Permits or Other Forms of Written Authorization Licenses can be withdrawn for an indefinite period if they have been granted by an unauthorized authority or person, the contents of the license are inconsistent with other environmental stipulations, or the offense is very serious.(291) Authorized persons in the People's Committees can also request that the licensing body revoke the license.(292) There are specified procedures for the withdrawal of permits, licenses, or certificates upon a breach of certification conditions.(293) For example, the decision to withdraw must be in writing and a copy sent both to the owner of the project and the licensing body. Upon the expiration of a withdrawal period, the authorized person must return the license to the licensed individual or organization. H. Dispute Resolution 1. Persons or Agencies Able to Settle Disputes There is a hierarchy of persons for settling disputes in relation to penalty decisions. First, the authorized person who imposed the actual penalty may settle any complaints made with respect to the penalty they imposed.(294) Second, general inspectors of MOSTE, DOSTE, and NEA are responsible for settling disputes over penalty decisions made by their own inspectors.(295) Directors of DOSTE are responsible for settling complaints made against penalty decisions issued by general inspectors of DOSTE. The Director of NEA and the Minister of Science, Technology, and the Environment are similarly responsible for settling complaints against general inspector's penalty decisions in their respective agencies.(296) District People's Committees chairpersons are responsible for settling disputes regarding penalty decisions made by People's Committees chairpersons at the ward, commune, and provincial town level.(297) In turn, chairpersons of provincial People's Committees are responsible for settling disputes over decisions of the chairperson's of district People's Committees.(298) Finally, the Minister of Science, Technology, and Environment reviews decisions of the chairpersons of provincial People's Committees. If those chairpersons are unhappy with the Minister's decision, they can appeal to the State General Inspectorate.(299) 2. Which Agency is Responsible for Settling Specific Types of Disputes? Disputes over difficulties or obstacles regarding issuance of a Certificate of Pollution Control are heard by MOSTE.(300) Disputes over inspections of establishments are handled by NEA or other state bodies.(301) Authority to hear disputes over environmental degradation, pollution or environmental hazards depends partly upon whether the event occurs in one or more provinces. If the event occurs in one province or city under central authority, the dispute is heard initially by the specialized inspection branch or that branch reports the matter to the chairperson of the People's Committee. Parties dissatisfied with the outcome can appeal to MOSTE. However, if the event is spread over two or more provinces or cities under central authority, the special inspection branch of MOSTE determines the matter initially and reports it to the Minister of Science, Technology, and Environment for consideration and decision. If persons are dissatisfied with the Minister's decision, it is resolved by the Prime Minister.(302) 3. Procedures for Hearing Disputes Offenders or their legal representatives may submit a complaint against the penalty decision by following procedures set out in the Ordinance on Dealing with Administrative Offenses.(303) There are also separate procedures for resolving disputes over the amount of compensation to be paid for damage caused by an offense(304) and also for an unsuccessful appraisal of an EIE report.(305) VI. PREVENTATIVE MECHANISMS A. Introduction Vietnam has both direct and indirect mechanisms aimed at preventing environmental hazards or pollution before they occur. "Direct" mechanisms are those that attempt to immediately confront the particular potential hazard or pollution,(306) while "indirect" mechanisms are those slower and more subtle forms of preventing pollution (for example, education, increasing public awareness, training of staff and raising of funds to finance antipollution activities).(307) B. Prevention of Environmental Hazards As a generalization, state bodies are responsible for the formulation of plans to prevent environmental degradation and hazards.(308) Oil and gas exploration, transportation, and processing establishments also must operate within plans that prevent spills, explosions or accidents.(309) In addition, Article 32 of the Law on Protection of the Environment lists various remedial actions that can be taken by organizations or individuals to limit or prevent environmental hazards.(310) Persons who discover an environmental hazard must immediately inform the relevant state body and People's Committee. Any organization or individual at the location of the hazard must undertake immediate measures to remedy the situation.(311) The chairperson of the relevant People's Committee and MOSTE both have the power to organize materials, facilities, and manpower to deal with the hazard.(312) If the hazard has a "significant impact on the environment," the Prime Minister must issue a decision on the application of emergency measures.(313) C. Reporting State bodies, "depending on their respective functions and duties ... [are] responsible [for] ... periodic reports on the environment to the National Assembly."(314) Citizens can report any administrative offense relating to environment protection to any competent state body.(315) Under the requirements of the Certificate of Pollution Control, establishments are required to submit quarterly reports on pollution control to NEA.(316) Petroleum organizations in particular are required to provide frequent and regular environmental protection reports as part of the monitoring process,(317) and submit plans for the control of any future oil spills.(318) D. Research Generally, the State has the responsibility for organizing scientific or industrial research relating to the protection of the environment.(319) MOSTE and various other governmental departments and ministries are responsible for research into the protection of the environment.(320) There is an apparent need for research into environmental sciences at Vietnam universities.(321) E. Training, Expertise, and Manpower The State has responsibility for organizing environmental training and education.(322) Unfortunately, there is a lack of manpower,(323) expertise,(324) and competent management(325) within the various environmental agencies. While "NEA staff numbers are increasing rapidly ... [and t]he majority of professional staff have an engineering and technical background [there are] no environmental lawyers presently employed by NEA."(326) Nguyen Ngoc Sinh has claimed that MOSTE has set up an environmental education and training network comprising more than six hundred people and two hundred agencies,(327) Alan Tan, however, is less glowing in his appraisal of NEA, claiming that there are only forty-five staff members and that it is inadequately funded.(328) In 1993, the United Nations Environmental Programme, Asian Development Bank, and MOSTE organized three training courses on environmental impact assessment, resulting in approximately two hundred people in Vietnam obtaining a basic knowledge of those procedures.(329) In the period from 1995 through 1997, a joint MOSTE and German Foundation of International Development program was conducted on the training of environmental administrators.(330) F. Technology and Data There is a need for more quality equipment(331) and far more critical and reliable data(332) in the field of environment protection in Vietnam, particularly in the area of monitoring and control.(333) Despite various legislative requirements to the contrary,(334) some overseas investors are bringing equipment into Vietnam that is not the cleanest or newest available.(335) G. Funding of Activities to Protect the Environment As a general principle, "[a]ny organization or individual utilizing any of the environmental elements for production or business purposes must, where necessary, pay costs related to protection of the environment. The Government shall stipulate the level and method of payment...."(336) The main funding sources are allocated state funds, EIE appraisal fees, fees paid by organizations and individuals for the protection of the environment, and fines paid for breaches of legislation. Article 34 of the Decree on Protection of the Environment lists the various sectors of the economy that must pay fees for the protection of the environment.(337) The amount of the fee is based on the degree of pollution of the environment.(338) The government must establish a national reserve fund to prevent environmental hazards, and it is the role of MOSTE and the Ministry of Finance to draft and promulgate regulations for the management and usage of that fund.(339) The funds collected for the protection of the environment shall be used for activities such as environmental and pollution studies, the implementation of "measures to protect, restore, and improve the environment," the restoration of the ecosystem, and sustaining biological diversity.(340) Pending the passage of laws that will create fees for environmental pollution and a national fund to deal with environmental damage, the cost of pollution control activities must be funded by the MOSTE budget.(341) Several critics have stated that the lack of domestic or foreign finance(342) will hinder the speedy implementation of these laws.(343) Some of the domestic environmental legislation is aimed at using money from certification or penalties in order to finance environmental protection measures.(344) The "polluter pays" principle may help remedy the lack of funds for such protection.(345) In September of 1998, Vietnam was drafting environmental or pollution tax regulations as part of the polluter pays principle.(346) In addition, MOSTE is considering placing a tax on leaded gasoline and imposing a charge on the amount of daily household refuse.(347) MOSTE is setting up an environmental fund(348) that will be funded by environmental tax revenue, fines for breaches of environmental laws, domestic funding from the Ministry of Finance, and donations from the wealthier developed nations and international organizations.(349) This fund will be used to subsidize training, education, and emergency environmental measures. H. Public Awareness The National Plan for the Environment and Sustainable Development states that there is a need for greater public awareness of the environment.(350) As recently as 1994, it was felt that there was still a need for public awareness.(351) Some grass roots awareness programs have been organized by the Women's Union and Youth Union, the Voice of Vietnam, and other mass media outlets.(352) There is also a "Green-Clean-Beautiful" movement and the celebration of the World Environment Day.(353) MOSTE also travels around the countryside conducting workshops to explain new legislation and enforcement efforts.(354) There have also been some media attempts to create an awareness of the importance of the environment.(355) Commercial and manufacturing establishments are under a statutory duty to educate their personnel about the need to protect the environment.(356) Recommendations have also been made to include environmental education in primary and secondary school curricula to instill in the young a high degree of environmental consciousness. Apparently, some of the universities are offering environmental science courses to train undergraduates and postgraduates.(357) I. The Reward or Incentive System There is an incentive system in Vietnam discouraging people from harming the environment. "Any organization or individual that has a good record in the protection of the environment ... shall be rewarded."(358) There is also a reward system for those who succeed at protecting the forests.(359) VII. CRITICAL EVALUATION OF VIETNAM'S ENVIRONMENTAL LAW REGIME A. Introduction There are some difficulties in attempting adequately to evaluate the Vietnamese environmental control legislative regime. For example, it would seem superficial just to analyze the provisions within the various pieces of environmental legislation in discrete isolation, because for most people the true litmus test of such legislation is whether it has been successful at reducing pollution and other environmental harms. All environmental legislation operates in an economic, social, cultural, political, and historical context. Therefore, there are problems in determining whether a particular effect has been the narrow result of a specific piece of legislation. An additional difficulty is the lack of recent environmental data upon which some assessment of the success of Vietnam's environmental legislation can be made. Finally, there is the issue of choosing the appropriate criteria with which to evaluate the environmental legislation. Even given these problems, however, it is possible to evaluate Vietnam's recent legislation on environmental protection under the following six criteria: 1) coverage, internal logic, and clarity of the Vietnamese environmental control legislation; 2) environmental impact evaluation; 3) enforcement provisions within the Vietnamese environmental control legislative regime; 4) efficacy in control of all forms of pollution; 5) attempts to overcome deforestation problems; and 6) environmental laws as part of the investment and land use process. B. Coverage, Internal Logic, and Clarity of the Vietnamese Environmental Control Legislation Quantitatively speaking, the subject matter coverage of Vietnam's environmental legislative regime seems to be generally adequate. It includes many different facets of environmental protection, including environmental impact assessment, the control of all forms of pollution, biodiversity, reforestation, endangered species, toxic and hazardous substances, controls over foreign investment, all types of primary and secondary industry development, and environmental standards. The issue of coverage also implies the degree of detail within the various legislative provisions, and to this extent, the coverage contains both extremes. On the one hand, the detail is so great that it makes the procedures rather confusing and potentially bureaucratic.(360) On the other hand, there are instances where there is insufficient detail in the legislation, particularly in the main framework laws or codes.(361) As for clarity and logic within the legislative regime, most of the Vietnamese environmental control legislation is generally less than satisfactory. Examples include the vagueness of some of the language used in the principle laws,(362) illogical statements within some underlaws,(363) the uncertainty(364) or lack of coordination(365) between the major environmental laws regarding which government agencies or political groups are responsible for particular environmental controls, the use of different terminology to describe what seems to be the same procedure.(366) certificate, or control mechanisms.(367) Some of these shortcomings may lie in the problems associated with accurately translating the legislation into other foreign languages such as English. In addition, there are inconsistencies between the centrally promulgated legislation and provincial legislation,(368) which perhaps arises because both the central and provincial political and environmental agencies have the power to pass similar legislation.(369) This latter shortcoming may also be a result of the complex and dualistic nature of Vietnam's bureaucratic and political structures.(370) C. Environmental Impact Evaluation (EIE) 1. Introduction Many critics view environmental impact evaluations (EIEs) as a crucial criterion for evaluating any nation's environmental control legislation.(371) There have been serious criticisms of environmental impact evaluations in the context of Southeast Asia. Some critics maintain that EIEs in developing countries are mere mechanisms of environmental imperialism and the means by which westerners can charge exorbitant consultancy fees and encourage democratization.(372) Interestingly though, some of the Southeast Asian countries with no current EIE legislation have the least amount of pollution. This may indicate that effective implementation is more important than legislation alone.(373) 2. Criteria for Evaluation of EIE Procedures Literature evaluating Southeast Asian procedures most frequently cite six criteria. The first criterion states that EIEs need to be considered as part of the nation's overall strategic planning and design process.(374) There is evidence of this in the Vietnamese regime because an investment license is required from the planning ministry (MPI) before the appraisal of environmental impact documentation can occur.(375) The application for an investment license must include such documentation, and an environmental permit is required before a construction permit or a land use permit can be issued.(376) The second criterion requires that the EIE should be carried out early in the overall development process, as well as after approval for the project has been given.(377) The Vietnamese EIE procedures meet both these aspects.(378) However, it is sobering to note that even though postconstruction monitoring is being carried out,(379) recent literature shows that this does not necessarily mean that Vietnamese companies are adhering to environmental or operating standards.(380) The third criterion is that EIEs should not to be executed on a project-by-project basis. The Vietnamese environmental regime only partly satisfies this criterion as the EIE process is divided into two separate types of procedures, according to the two different categories of project.(381) The fourth criterion is that all EIEs should involve public participation(382) and not just be a command and control process from the top down.(383) Unfortunately, Vietnam does not fulfill this criterion at all. Critics have demanded far greater public and grass roots participation in the EIE process.(384) The fifth criterion is that there be adequate training and education of the assessors;(385) but Vietnam does not meet this criterion,(386) despite the fact that there have been recent attempts to improve the training of assessors.(387) The last criterion is that the EIE process should be modified to meet local needs and culture.(388) Vietnam has partly fulfilled this criterion by using the existing bureaucratic and political organizations to execute the EIE process.(389) In addition to an examination of these six criteria, other comments need to be made in relation to Vietnam's EIE processes. 3. Adverse Criticisms of Vietnam's EIE Procedures While Vietnam is to be applauded for its very detailed procedures regarding the process of environmental impact assessment,(390) there are potential shortcomings within these procedures. Such shortcomings include the excessive number of steps and certificates in the process of environmental impact assessment, the potential for subjective(391) and inconsistent appraisals by agencies with a vested interest in the particular project, and the red tape and confusion caused by the potential overlap between agencies that perform the assessment. Some critics have felt that the task of EIE appraisal should be further decentralized and that MOSTE should only handle the major projects.(392) This would also allegedly permit greater public participation in the process of appraisal. In a recent survey of EIE procedures and legislation in eleven Southeast Asian countries (including Vietnam), it was concluded that the implementation, control, enforcement, monitoring, and auditing processes are not fully effective, although it seems that the information collected on Vietnam for this particular survey was extremely limited.(393) Alan Tan has been very critical of specific project guidelines and transparency within existing guidelines in Vietnam's EIE procedures, as well as the lack of expertise and staff to execute them.(394) 4. Successful Aspects of Vietnam's EIE Process Despite these shortcomings there are many examples of successful environmental impact assessments undertaken in manufacturing, hydroelectric power, and oil and gas exploration projects.(395) As a result of overseas funded training courses and domestic university and college degrees, there has been an increase in the training of staff in environmental impact assessment procedures.(396) 5. Recommended Changes to the EIE Process Le Thac Can has recommended the following changes to the EIE process: 1) consolidating and improving the performance of the Division of Project Appraisal within NEA, 2) setting up within NEA an office for implementing EIE procedures for all major development projects, 3) issuing more regulations and guidelines for EIE reports,(397) 4) the establishment of independent EIE centers by MOSTE that can carry out EIE reports for projects, 5) better training of EIE drafters and assessors, 6) the development of international and regional cooperation in EIE procedures, and 7) research on improving EIE procedures.(398) D. Enforcement Provisions Within the Vietnamese Environmental Control Legislative Regime Several observers consider enforcement provisions as vital factors in evaluating environmental control legislation.(399) Looking initially at the issue of penalties, critics have said that although the amount of each administrative penalty may be too high for local Vietnamese, it is insufficient to act as a deterrent to large foreign investors.(400) Although there is an interesting and varied range of penalties,(401) experts have noted that some of the alternate sanctions are not clear in their meaning, scope, and application.(402) On the other hand, Vietnam has introduced the intriguing approach of rewards or incentives to encourage both individuals and corporations to carry out various environmental protection practices.(403) There are also criminal sanctions for serious offenses against the environment.(404) Tan is highly critical of the lack of system in the penalty provisions.(405) He notes that for any one example of miscreant environmental behavior there may be three different types of penalties: an administrative penalty, civil liability under the Civil Code, and a criminal sanction under the Criminal Code. Similarly, he feels that there are too many different sectoral laws containing provisions on the liability for environmental damage(406) and too many laws that contain administrative fines for the same type of offense.(407) An ancillary part of the enforcement process is inspection. There are many provisions within the Vietnamese legislative regime dealing with inspection.(408) They have many laudable qualities such as the broad powers given to the various inspectors and the obligation placed upon developers to cooperate with inspectors. E. Efficacy in Control of All Forms of Pollution. Unfortunately, there is not enough data available for us to assess the success of the environmental control legislation in controlling all forms of pollution. However, in the area of water pollution there has allegedly been an increase in the proportion of population with access to clean water.(409) Some progress has been made in ridding the water supply system and farmlands of chemical residues caused by chemical spraying during the Vietnam War of 1965 to 1975.(410) Recent advances have also been made in pollution abatement activities in Hanoi, Ho Chi Minh City, and other large urban centers.(411) Tan thinks that a major pollution crisis still exists as a result of the failure of state-owned factories to remove outdated Chinese and Soviet equipment.(412) The lack of effective waste treatment facilities is still a serious problem in the major cities(413) and high percentages of waste are currently being discharged into the environment without treatment.(414) Air pollution is a still a significant problem because of an increase in motorized transport and a lack of lead-free gasoline.(415) In the major cities, the presence of more than fifty toxic or hazardous gases has been registered,(416) while dust(417) and sulfur dioxide(418) pollution has reached alarming levels.(419) Even though Vietnam did introduce various standards in 1995 dealing with water quality, air quality, noise pollution, soil quality, and waste reduction, there is still a need for more pollution standards.(420) In addition, some of the existing standards are impossible for Vietnamese people to meet given their parlous and under-resourced situation.(421) F. Attempts to Overcome Deforestation Problems To judge the effect of Vietnam's forestry protection laws on combating deforestation, the problem must be explored prior to, and after, the introduction of forestry protection laws.(422) Between 1945 and 1985, the proportion of Vietnam that was covered by natural forests had decreased from forty-three to twenty-three percent.(423) In the period from 1985 to 1997, Vietnam's forested areas were further reduced by almost half, from 14.3 million to 8.6 million hectares.(424) "Deforestation has led to serious impacts on water resources, soil erosion, loss of wildlife, and deterioration of landscape and climatic factors."(425) A recent multiorganizational report claims that half of Vietnam can be claimed as a "wasteland" due to deforestation, agricultural encroachment, eroded soils, and unsustainable wood cutting.(426) Vietnam's first major forestry protection law was introduced in August 1991.(427) Some of the post-1991 remedial measures, such as the closing of Vietnam's natural forests in 1996(428) and the placing of a complete ban on timber exportation,(429) was partly due to this new legislative regime. There has also been an extensive reforestation program.(430) Vietnamese environmental laws cannot take all the credit for reforestation, however, because some of these efforts occurred prior to 1991.(431) In 1994, reforestation efforts were estimated to be at the rate of 100,000 to 150,000 hectares of land per year.(432) Even so, these efforts were not keeping pace with deforestation. There has been some recent successful reforestation and agri-forestry projects in the northern, central, and southern coastal regions of Vietnam. Additionally some 87 natural, scenic, historical, and cultural reserves have been established amounting to greater than 1.1 million hectares, or 5.7% of Vietnam's total forest area.(433) Problems in the Cuc Phuong and Cat Ba National Parks have also been ameliorated.(434) G. Environmental Laws Should Be Part of the Investment and Land Use Process In Vietnam there is some evidence of the integration of the laws and procedures on environmental law, foreign investment, and land use. For example, both the Law on Land and the Law on Foreign Investment contain provisions requiring compliance with the protection of the environment.(435) All planned foreign investment projects require an environmental impact assessment of some kind, though this requirement is usually imposed only after the investment license has been granted.(436) Tan is extremely critical of granting a license prior to the submission of an EIE,(437) though it should be remembered that these projects must submit an environmental report when applying for the investment license.(438) VIII. NON-ENVIRONMENTAL LAW ISSUES AFFECTING THE SUCCESSFUL IMPLEMENTATION OF VIETNAM'S ENVIRONMENTAL CONTROL LEGISLATION A. Introduction While this Article is primarily concerned with evaluating Vietnam's environmental legislation, it would be myopic not to consider various nonenvironmental issues, such as historical, economic, social, and cultural issues. No matter how good an environmental legislation regime may be, in the end it may well be other societal factors that will primarily determine whether or not that legislation is successful. B. Effect of the Various Vietnam Wars Vietnam suffered hideously from the effects of wars that occurred between 1945 and 1975,(439) and despite some successful rehabilitation programs,(440) the fallout of those thirty years is still being seriously felt by the environment today.(441) When making an assessment of the success of Vietnam's environmental control regime, such historical factors need to be kept in mind. C. Recent Commencement of the Legislative Regime to Protect Vietnam's Environment Vietnam only commenced its legislative regime to protect the environment in the early 1990s.(442) Given the fact that it normally takes several years to raise a nation's level of awareness of environmental protection and properly to establish the administrative and legal infrastructure to implement a regime of environmental legislation, such "legislation in Vietnam, and the institutions tasked with enforcing them, thus far [have] made reasonable progress in the country's environmental protection efforts."(443) D. Bureaucracy and Political Organization Critics have charged that the complicated bureaucratic procedures and organizational structures within Southeast Asian governments and agencies impede the satisfactory compliance with legislation.(444) These procedures and structures cause delays, hinder integration among agencies, create confusion, make tasks unnecessarily complex, and invite corruption.(445) Vietnam is no exception to this generalization. At present there appears to be an overlap between the jurisdictions of various environmental agencies.(446) Perhaps this overlapping jurisdiction problem is simply a result of two aspects of the Vietnamese political and administrative infrastructure, namely the complex vertical arrangement of the country into different levels of government (central, city, provincial, district, or ward units), and the horizontal arrangement of government ministries, agencies, and political party organizations that often perform the same tasks.(447) An example of the horizontal overlap is that mining, forestry, wildlife, fisheries, oil and gas exploration, and the marine environment all come under ministries other than the main environmental department, MOSTE.(448) In fact, in addition to MOSTE, there are at least twenty other central government agencies or ministries that have some jurisdiction over environmental protection. There has been some debate as to whether a separate Ministry of Environment should be created to avoid overlapping jurisdictions in environmental control in order to ensure uniformity within legislation and law enforcement. However, Vu Thu Hanh and Alan Tan Khee Jin feel that the creation of such a separate Ministry may not necessarily overcome other important shortcomings, such as the lack of expertise, equipment, and financial resources.(449) Some have argued that there is a need for better communication between the central authorities and the outlying provinces.(450) Also, there are in some cases far too many steps involved in various environmental control procedures, such as the approval of new projects before operations can commence.(451) Clearly some regulatory steps are essential for protection of the environment and to discourage rampant foreign exploitation of Vietnam. However, if there are too many procedural steps in processes like environmental evaluation, it is likely that either project will not proceed, or that the environment will not be satisfactorily protected if it does. E. Corruption and Nepotism Various observers have commented on the culture of corruption within and without the administration, the party, and the government in Vietnam,(452) and in other developing countries generally.(453) While writers like Gillespie have put a less negative light on this phenomenon, it still may prove a major impediment to the successful implementation of the environmental control regime.(454) F. Foreign Investment Concerns are often expressed that in the quest for large western development, underdeveloped countries like Vietnam will allow enterprises funded by foreign investment to bypass domestic environmental laws.(455) Vietnam has attempted to avoid this problem in several ways, for example by placing an obligation on such enterprises to take all precautions to protect the environment,(456) by promulgating specific laws forcing foreign investors to abide by environmental assessment procedures,(457) and by placing the onus on the Prime Minister to initially ratify the largest foreign investment projects.(458) G. Demographic, Growth, and Development Issues Western critics of Vietnam's lack of overwhelming success with its recent environmental regime should keep in mind the enormous growth in population, urbanization,(459) and industrialization(460) within Vietnam in the post-World-War-II period and the problems that such growth creates when there is insufficient infrastructure to handle its effects on the environment. For example, in the last 50 years, Hanoi's population has grown from 200,000 to over 3,000,000 people. In the same city in 1996, over one million tons of waste was produced per day. The effect of this type of population growth can be seen in the enormous demand for food--such as fish(461)--and wood, all of which is reflected in the unsustainable use of the wetlands,(462) agricultural lands, mangrove swamps(463) and forest land. One only need look to enormous degradation of rich agricultural production areas like the Red River delta to see the damage that has been done.(464) Apart from population growth and its associated demands on the environment, the Vietnamese Government's policy of opening up the economy (Doi Moi) has led to an increase in local and foreign capitalist development.(465) This new policy has also led to an enormous demand on the strained environment due to the surge in mining and secondary industry.(466) IX. CONCLUSION Prior to the commencement of Vietnam's new environmental legislative regime in the early 1990s, the significant environmental problems(467) were water pollution, solid waste, sewage, noise pollution, air pollution,(468) deforestation, degradation of land resources, irrational use of mineral resources, inefficient conservation of fresh water, over exploitation of biological resources, serious loss of biodiversity,(469) the long-term effects of war,(470) high levels of chemical and pesticide usage, and the lack of cohesive planning.(471) One indicator of how successful this Vietnamese environmental law regime has been in reducing these environmental problems was the April 1997 report by the United Nations Commission on Sustainable Development(472) that compared Vietnam's regime against the forty chapters in Agenda 21. Although this report suffers from a lack of detail(473) and objectivity,(474) it does claim that some of the recent progress made in environmental protection in Vietnam is due to various local legislative controls. For example, the Law on Protection of the Environment and its regulations were considered to be a significant factor in integrating decision making in the fields of environment and development.(475) The Law on the Protection of Underground Water was claimed to have facilitated improvements in the quality of freshwater, and the Prime Minister's decrees on the environmental management of toxic and dangerous products and hazardous wastes(476) allegedly promoted the environmentally sound management of toxic chemicals and such wastes.(477) At a comparative level, some have felt that the Vietnamese environmental law regime has been successful,(478) and when judged against the efforts of other Southeast Asian countries, very progressive.(479) This reflects well on Vietnam, given its slow developmental growth when compared to other more wealthy countries in that region.(480) Finally, Vietnam is to be commended greatly for attempting to introduce a legal and administrative infrastructure to address the vital issue of environmental protection, particularly given its recent shift to a more developmental, open market, and foreign-investment-oriented society and economy. However, given the fact that this infrastructure has only been in operation for several years, it may be a struggle for Vietnam adequately to protect the environment given its past culture of excessive bureaucracy and nepotism and its present lack of funding, expertise, and manpower. (1) Le Thac Can & Vo Quy, Vietnam: Environmental Issues and Possible Solutions, 2 ASIAN J. ENVTL. MGMT. 69, 74 (1994). (2) Id. at 73. The National Resources and Environment Research Programme apparently was successful in identifying the major environmental problems and their possible solutions. (3) Id. at 74. (4) Id. (5) Id. at 74. (6) U.N. DEVELOPMENT PROGRAMME ET AL., NATIONAL PLAN FOR ENVIRONMENT AND SUSTAINABLE DEVELOPMENT 1991-2000: FRAMEWORK FOR ACTION (1989) [hereinafter NATIONAL PLAN]. (7) The role of the Council of Ministers is now performed by the government. VIETNAM CONST. art. 109. (8) Le Thac Can & Vo Quy, supra note 1, at 74. (9) Id. (10) Id. (11) NATIONAL PLAN, supra note 6, at 5-6. (12) In 1993, the Law on Protection of the Environment was passed and the Environment Protection Assessment Provisional Regulations were issued by the Ministry of Science, Technology, and Environment. Le Thac Can & Vo Quy, supra note 1, at 74. (13) NATIONAL PLAN, supra note 6, at 5-6 (14) This stage also included programs such as the Biodiversity Action Plan for Vietnam (1994), which not only built on past strategies, but also aimed to integrate existing and future programs for environmental protection and conservation. See generally U.N. DEVELOPMENT PROGRAMME GLOBAL ENVIRONMENT FACILITY, VIET NAM; CONSERVATION TRAINING AND BIODIVERSITY ACTION PLAN (1993). (15) Le Thac Can & Vo Quy, supra note 1, at 69. (16) NATIONAL PLAN, supra note 6, at 5-6. (17) Some provisions within various Vietnamese laws passed before 1993 related to environmental protection. See Law on Forest Protection and Development (1991). However, no prior law was entirely devoted to environmental protection. (18) See supra Part II. (19) Law on Protection of the Environment (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (20) Vietnam categorizes its legislation into the main framework laws know as "laws" or "codes" and then into a series of more detailed "underlaws," which usually implement the laws and codes. These underlaws are broken up into several groups: 1) "resolutions," "ordinances," and "acts" passed by the Standing Committee of the National Assembly; 2) "government decrees" passed by the Prime Minister or Vice Prime Minister, 3) "regulations," "rules," "directives," and "ordinances" passed by the relevant Minister; and 4) "regulations" passed by local and provincial governments. Alan K.J. Tan, Preliminary Assessment of Vietnam's Environmental Law [sections] 4.1 (1998) (unpublished manuscript, on file with author). (21) Decree No. 175-CP (1994) (Draft Official English Translation, State Committee for Cooperation and Investment & Phillips Fox trans.) [hereinafter Decree on Protection of the Environment]. (22) Id. ch. II. (23) While most nations adopt the abbreviation "EIA" to describe environmental impact assessment procedures, the authors have chosen the abbreviation "EIE" for this Article when describing those procedures because many of the Vietnamese laws refer to them as an "environmental impact evaluation." (24) Decree on Protection of the Environment, supra note 21, ch. III & app. I-II. (25) Id. ch. IV. (26) Id. ch. V. (27) Id. ch. VI. (28) See The People's Health Care Law (1989); Maritime Code of Vietnam (1990); Law on Forest Protection and Development (1991); VIETNAM CONST.; Regulations on Management of the Tourism Industry (1992); Petroleum Law (1993) (Official English Version, State Committee for Co-operation and Investment & Phillips Fox trans.); Law on Land (1993); Mineral Law (1996) (Official English Translation, Phillips Fox trans.); Law on Foreign Investment in Vietnam (1996) (Official English Version, Ministry of Planning and Investment & Phillips Fox trans.); Government Decree Providing Detailed Regulations on the Implementation of the Law on Foreign Investment in Vietnam, Decree No. 12-CP (1997) (Official English Version, Ministry of Planning and Investment & Phillips Fox trans.). (29) Regulation No. 1807-QD-Mtg (1994) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.) (establishing the appraisal councils that make recommendations to Ministry of Science, Technology, and the Environment (MOSTE) or the People's Committees regarding the appraisal of EIE reports). (30) Decree No. 26-CP (1996) (translated by the Ministry of Planning and Investment and Phillips Fox) (setting out most of the civil or administrative offenses in relation to the environment and their penalties) [hereinafter Decree on Administrative Offenses]. (31) Circular No. 2433-TT-KCM (1996) (Ministry of Planning and Investment, and Phillips Fox, trans.) (similar to the Decree on Administrative Offenses in Relation to Environmental Protection) [hereinafter Circular on Administrative Offenses]. (32) Circular No. 2781-TT-KCM (1996) (Ministry of Planning and Investment, and Phillips Fox, trans.) (content of circular explanatory from title) [hereinafter Circular for Industrial Environmental Evaluation Certificates]. (33) Decision No. 2920-QD-MTg (1996) (Ministry of Planning and Investment & Phillips Fox, trans.) (listing ninety-seven Vietnamese environmental standards). (34) Circular No. 276-TT-MTg (1997) (Ministry of Planning and Investment & Phillips Fox, trans.) (setting out the procedures, eligibility criteria, and other requirements for the Certificate of Pollution Control) [hereinafter Circular on Pollution Control]. (35) (1998) (Ministry of Planning and Investment & Phillips Fox trans.) (setting out the new regime of requirements, prohibitions, offenses and penalties in relation to all aspects of the petroleum industry) [hereinafter Petroleum Environmental Protection Regulations]. (36) Circular No. 490-1998-TT-BKHCNMT (1998) (Ministry of Planning and Investment & Phillips Fox trans.) (containing vital details of the new system of evaluation of the environmental impact aspects of all newly planned investment projects in Vietnam). (37) Law on Protection of the Environment arts. 3, 5 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (38) Id. art. 3. (39) Decree on Protection of the Environment, supra note 21, art. 4.1. (40) Law on Protection of the Environment art. 38. (41) Dr. Nguyen Ngoc Sinh & Dr. Hans Friederich, The Institutional Framework for Environmental Policy and Management in Vietnam, in ENVIRONMENTAL POLICY AND MANAGEMENT IN VIETNAM, 31, 35 (Hinrich Mercker & Vu Phi Hoang eds., 1997). (42) Decree on Protection of the Environment, supra note 21, art. 4,2. (43) Law on Protection of the Environment art. 37. (44) Id. art. 40 (45) Decree on Protection of the Environment, supra note 21, art. 6.1; see also Law on Protection of the Environment art. 38; supra Part III.B.2. (46) Decree on Protection of the Environment, supra note 21, art. 6.1(a); Julia Pitts, Environmental Law in Viet Nam, in ENVIRONMENTAL OUTLOOK NO 2: LAW AND POLICY 85, 88 (Ben Boer et al. eds., 1996). (47) Sinh & Friederich, supra note 41, at 33. (48) Pitts, supra note 46, at 88; Melanie Beresford, Economy and the Environment, in DILEMMAS OF DEVELOPMENT: VIET NAM UPDATE 1994 69, 86 (Benedict J. Tria Kerkvliet ed., 1995). (49) Decree on Protection of the Environment, supra note 21, art. 6.2; Law on Protection of the Environment art. 38. (50) Circular on Pollution Control, supra note 34, arts. 12, 13. (51) Circular on Administrative Offenses, supra note 31, art. V.2. (52) Pitts, supra note 46, at 87-88. (53) See discussion infra Part IV.A.2. (54) Decree on Protection of the Environment, supra note 21, art. 26.4. (55) Id. art. 34. (56) Decree on Administrative Offenses, supra note 30, arts. 4, 8.1, 8.3. (57) Sinh & Friederich, supra note 41, at 32. (58) Id. at33. (59) Ministry of Agriculture and Rural Development (MARD) has a Forest Protection Department which is responsible for the management of protected areas. Sinh & Friederich, supra note 41, at 40. (60) Tan, supra note 20, [sections] 6. (61) Le Thac Can & Vo Quy, supra note 1, at 23. (62) Law on Protection of the Environment art. 2 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (63) For example, an April 1998 circular stated the following: Any project implemented within the territory of Vietnam must apply the Environmental Standards of Vietnam issued by the Minister [who heads] MOSTE. Projects implemented in localities where separate environmental standards already exist may apply the local environmental standards [that already exist] provided that those standards are stricter than those issued by MOSTE. Where the relevant environmental standards ... are yet to be provided in the Environmental Standards of Vietnam, the investor may apply the ... standards of advanced countries subject to the written permission of MOSTE. Circular Providing Guidelines for Preparation and Appraisal of Environmental Impact Evaluation Reports in Respect of Investment Projects, No. 490-1998-TT-BKHCNMT (Apr. 29, 1998) art. IV [hereinafter April 1998 Circular]. (64) Law on Protection of the Environment art. 16. (65) "Promulgate" has various legal and nonlegal meanings, but in this context the authors have taken it to mean to pass a law or to bring a law into effect in Vietnam. 66 Decree on Protection of the Environment, supra note 21, art. 4.1(g). (67) Id. art. 22. (68) These 97 standards are listed by title, date, and identifying code in MOSTE's Decision on Application of Vietnamese Environmental Standards, Decision No. 2920-QD-MTg (1996) (Ministry of Planning & Phillips Fox trans.). (69) Decree on Protection of the Environment, supra note 21, art. 8.1. (70) April 1998 Circular, supra note 63, art. IV. (71) Decision on Application of Vietnamese Environmental Standards art. 2 (1996). (72) Id. art. 3. (73) Petroleum Environmental Protection Regulations, supra note 35, art. 20. (74) Id. arts. 30.1, 33.1. (75) See April 1998 Circular, supra note 63. (76) Id. art. I.1. (77) Id. art. I.2.1. (78) Id. app. I. (79) Id. art. 1.2.1. (80) Government Decree Providing Detailed Regulations on the Implementation of the Law on Foreign Investment in Vietnam, Decree No. 12-CP art. 39.1 (1997) (Official English Version, Ministry of Planning and Investment & Phillips Fox trans.). (81) April 1998 Circular, supra, note 63, arts. I.2(2), I.3. (82) Id. art. I.3. (83) Id. app. III. (84) Id. art. II.3. (85) Petroleum Environmental Protection Regulations, supra note 35, art. 8. (86) The format of this application is set out in Appendix IV.2 of the April 1998 Circular, supra note 63. (87) Id. art. II.1(2). (88) Appraisal councils consist of scientists and managers with the relevant experience, plus representatives of organizations and the local community. Each council cannot exceed nine members. Regulation No. 1807-QD-Mtg, supra note 29, art. 2. (89) Id. arts. 1, 7, 8. (90) Regulations on Organization and Operation of Councils for Appraisal of Environmental Impact Evaluation Reports and Issuance of Environmental Licenses, Regulation No. 1807-QD-Mtg, pmbl. (1994). (91) April 1998 Circular, supra note 63, ch. V. (92) Id. art. III.4. (93) Id. art. IV.1. (94) Id. art. IV.2. (95) Id. art. III.6. (96) Id. app. V. (97) Id. app. VI. (98) Decree on Protection of the Environment, supra note 21, art. 18. (99) Circular on Pollution Control, supra note 34, app. 3. (100) Id. art. 10. (101) When applying for the Certificate of Pollution Control, the applicant must, on the relevant application form, include the following information or documentation: the code number of the approved EIE report, a detailed report on various aspects of the implementation of that report, details about the type of establishment, and the number of the Certificate of Registration of Operation issued by MOSTE. Id. app. 1. (102) The Department of Environment is authorized to issue Certificates of Pollution Control where the EIE reports have been approved by MOSTE. The Department of Science, Technology, and Environment (DOSTE) has the same power where local authorities have approved the EIE reports, and the Ministries of Defense and Interior where they approved them. Id. art. 6. (103) Id. art. 7. (104) Id. art. 8. (105) Id. art. 9. (106) The term "commissioning" is used, but not defined, in chapter II, article 3 of the April 1998 Circular. April 1998 Circular, supra note 63, art. II.3. While in English-speaking cultures "commissioning" would usually be a pre-construction term, in the context of the April 1998 Circular it clearly is a post-construction term. An example of the English use of the term "commissioning" would be where architects are given the authority to draw up a design for a proposed new building. (107) Le Thac Can, The Development of Environmental Impact Assessment in Viet Nam, in ENVIRONMENTAL POLICY AND MANAGEMENT IN VIET NAM 101, 111 (Hinrich Mercker & Vu Phi Hoang eds., 1997). (108) April 1998 Circular, supra note 63, art. II.3. (109) Decree on Protection of the Environment, supra note 21, art. 4.1(g). (110) Id. art. 24. (111) Id. art. 23. (112) Circular for Industrial Environmental Evaluation Certificates, supra note 32, art. 1. (113) Id. app. I. (114) Id. art. 2. (115) Id. art. 4. (116) See discussion supra Part IV.A.2.g. (117) Circular for Industrial Environmental Evaluation Certificates, supra note 32, art. 1. (118) The Decree on Protection of the Environment, supra note 21, art. 21, indicates that it is the NEA that has the task of approving and granting the environmental permit. (119) Circular for Industrial Environmental certificates, supra note 32, art. 2. (120) Id. art. 2.3. (121) Id. app. 4 (containing a copy of the form on which the applicant must be notified of the decision on the permit application). (122) Id. art. 2.4. (123) Id. arts. 2, 3.1. (124) Id. art. 3.3. (125) Id. art. 4.1 & apps. 3, 6. (126) Id. arts. 4.2-4.4. (127) Id. art. 5.1. (128) Id. art. 7. (129) Id. ch. III. (130) Decree on Protection of the Environment, supra note 21, art. 11.1. (131) Petroleum Environmental Protection Regulations, supra note 35, art. 5.2. (132) Decree on Protection of the Environment, supra note 21, art. 25. (133) Decree on Administrative Offenses, supra note 30, art. 12.2(a). (134) Id. art. 14.3(a). (135) Petroleum Environmental Protection Regulations, supra note 35, art. 12. (136) Law on Forest Protection and Development, art. 35 (1991). (137) Law on Protection of the Environment art. 26 (1993) (Draft Official English Translation, State Committee for Cooperation and Investment & Phillips Fox trans.). (138) Decree on Protection of the Environment, supra note 21, art. 28.2. (139) "Waste" is defined as "any waste matter produced as a result of daily activities, production processes and other activities [and] ... can be in solid, liquid, gas, or any other form." Law on Protection of the Environment art. 2. (140) Decree on Protection of the Environment, supra note 21, ch. IV, art. 27.1. (141) Id. art. 27.2. (142) Id. art. 27.3. (143) "Toxic wastes which require complex treatment processes must be treated using private technology and shall be prohibited from being dumped into public dumps." Id. art. 27.4. (144) Law on Protection of the Environment art. 16. (145) Id. art. 26. (146) Petroleum Environmental Protection Regulations, supra note 35, arts. 15-16. (147) Id. art. 17. (148) Decree on Protection of the Environment, supra note 21, arts. 26.2-26.3. (149) Petroleum Environmental Protection Regulations, supra note 35, art. 11. (150) Decree on Protection of the Environment, supra note 21, art. 26.3. (151) Id. (152) Id. (153) Petroleum Environmental Protection Regulations, supra note 35, art. 18.1. (154) Id. arts. 15-16. (155) Id. art. 21.4. (156) See discussion infra Part V.D. (157) Law on Protection of the Environment art. 21. (158) Id. art. 22. (159) Decree on Protection of the Environment, supra note 21, art. 26.1. (160) Id. art. 26.2. (161) Law on Protection of the Environment arts. 23-24. (162) Decree on Administrative Offenses, supra note 30, art. 12.2(a). (163) Petroleum Environmental Protection Regulations, supra note 35, arts. 4, 33.4. (164) Id. arts. 14-33.4. (165) Law on Protection of the Environment art. 12. (166) Decree on Administrative Offenses, supra note 30, art. 8. (167) Determining the List of Precious and Rare Wild Plants and Animals and Regulation Their Management and Protection, Decree No. 18-HDBT (1992) [hereinafter Decree for Determining Rare Plants and Animals List]. (168) See discussion infra Part VII.F. (169) Law on Protection of the Environment art. 12. (170) Law on Forest Protection and Development arts. 4548 (1991). (171) Decree on Administrative Fines in the Management and Protection of Forests Decree No. 14-CP (1992). (172) Law on Protection of the Environment art. 14. (173) Decree on Protection of the Environment, supra note 21, app. III. (174) Decree for Determining Rare Plants and Animals List, supra note 166. (175) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1993, 27 U.S.T. 1087. (176) Law on Forest Protection and Development art. 7 (1991). (177) Id. ch. IV, arts. 26-30 (covering the development and use of Environment Protection Forests); Id. ch. IV, arts. 31-35 (covering Conservation Forests); Id. arts. 36-39 (covering Production Forests). (178) See discussion infra Part V.D. (179) Law on Protection of the Environment art. 19. (180) Decree on Protection of the Environment, supra note 21, arts. 23-25; see also supra Part IV.A.3.a. (181) Id. art. 28; see also infra Part V.D. (182) Decree on Administrative Offenses, supra note 30, art. 10.4(b). (183) Law on Protection of the Environment art. 47. (184) Id. (185) Decree on the Transfer of Foreign Technology into Vietnam, Decree No. 49-HDBT, art. 4(2) (1991). (186) Decree on Protection of the Environment, supra note 21, art. 4.1(h). (187) Law on Protection of the Environment arts. 40-44. (188) Decree on Protection of the Environment, supra note 21, art. 38. (189) Id. art. 37. (190) Circular on Administrative Offenses, supra note 31, art. III. (191) Id. (192) Decree on Protection of the Environment, supra note 21, art. 26.4. (193) Decree on Administrative Offenses, supra note 30, art. 12.2(b). (194) Circular on Pollution Control, supra note 34, art. 8. (195) Law on Protection of the Environment art. 41. (196) Petroleum Environmental Protection Regulations, supra note 35, arts. 40-41. (197) Decree on Providing Guidance for the Implementation of the Law on Environmental Protection, Decree No. 175-CP, art. 8 (1994) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (198) Law on Protection of the Environment art. 43. See infra Part V for a further discussion of dispute resolution. (199) Petroleum Law ch. VII (1993) (Official English Version, State Committee for Co-operation and Investment & Phillips Fox trans.). (200) Decree on Protection of the Environment, supra note 21, art. 8.2; Law on Protection of the Environment art. 7. (201) Decree on Protection of the Environment, supra note 21, art. 8.1. (202) Decree on Administrative Offenses, supra note 30, art. 2. (203) Id. (204) Petroleum Environmental Protection Regulations, supra note 35, art. 11.4. (205) Id. art. 42.1; Petroleum Law art. 44 (1993) (Official English Version, State Committee for Co-operation and Investment & Phillips Fox trans.). (206) Petroleum Environmental Protection Regulations, supra note 35, art 42.2. (207) Id. art. 43. (208) Maritime Code of Vietnam art. 195.1(c) (1990). (209) Mineral Law arts. 23.3, 27.5, 33.7, 46.5, 52.2 (1996) (Official English Translation, Phillips Fox trans.). (210) A "serious environmental hazard" is defined as "one which has the potential to cause large scale damage with significant effects on: (a) the lives and properties of many people, (2) economic and social establishments, and security and national defence, (3) large areas affecting a number of provinces and cities, and (d) areas which affect international relations." Id. art. 30.2. (211) Decree on Protection of the Environment, supra note 21, art. 30.1. (212) The term "environmental hazard" is defined as any catastrophic event or risk which occurs in the life of a human being, or any sudden natural occurrence which causes serious environmental degradation. An environmental hazard may arise from: (a) typhoon, spate, flood, drought, ... earthquake, landslide, ... volcanic eruption, acid rain ... and other natural disaster; (b) fire ... and technical hazard resulting from production and business establishments, and economic, scientific, ... or national defence projects; (c) exploration, exploitation and transportation of mineral resources, oil and gas ...[and] (d) accidents which occur in a nuclear reactor chamber ... or at a storage facility for radioactive materials. Law on Protection of the Environment art. 2 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (213) These are the Ministry of Defense, the Ministry of Interior, and MOSTE. See Decree on Protection of the Environment, supra note 21, art. 30.3. (214) Id. art. 31. (215) Petroleum Environmental Protection Regulations, supra note 35, art. 19. (216) Id. art. 8. (217) Id. art. 26. (218) Id. arts. 28, 29. (219) Id. art. 36.1. (220) All dispersal operations must follow the plans enclosed with the EIE report when it was approved. Id. art. 39. (221) Id. arts. 37.1, 38. (222) A "contractor" is any Vietnamese or foreign organization or individual who is permitted to conduct petroleum operations pursuant to a petroleum contract. Petroleum Law art. 3.8 (1993) (Official English Version, State Committee for Co-operation and Investment & Phillips Fox trans.). (223) Id. art. 30.5. (224) Id. art. 41.3. (225) Mineral Law arts. 23.2, 27.4, 33.3, 46.3, 52.3 (1996) (Official English Translation, Phillips Fox trans.). (226) Law on Protection of the Environment art. 30 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (227) Id. art. 9. (228) VIETNAM CONST. art. 29. One commentator argued that under this particular constitutional provision, an action could be brought in the Supreme People's Court against any person or body who breaches that provision, and that any law which permits environmental damage would be invalid. Pitts, supra note 46, at 86-87. (229) Regulations on Special Export Processing Zones arts. 8, 16, 24 (1991). (230) Law on Forest Protection and Development arts. 6, 35.3 (1991). (231) Law on Protection of the Environment art. 29.3. (232) Decree on Protection of the Environment, supra note 21, art. 28.1. (233) Law on Protection of the Environment art. 28. (234) Id. art. 29.2. (235) Id. art. 29.3. (236) Petroleum Environmental Protection Regulations, supra note 35, art. 5.1. (237) Id. art. 11.3. (238) Law on Protection of the Environment art. 29.5. (239) Id. art. 29.6. (240) Decree on Administrative Offenses, supra note 30, art. 1.1. (241) Law on Protection of the Environment art. 50. (242) Circular on Administrative Offenses, supra note 31, art. 1.6. (243) Id. art. 1.7. (244) Id. arts. 6.1-6.3. (245) Circular on Pollution Control, supra note 34, art. 11. (246) Decree on Administrative Offenses, supra note 30, arts. 5.2, 6, 10.2(b), 10.3, 10.4(a); Circular on Administrative Offenses, supra note 31, art. II.5; Circular for Industrial Environmental Evaluation Certificates, supra note 32, arts. II.5.2, II.6. (247) Circular on Administrative Offenses, supra note 31, arts. II.5, II.6; Decree on Administrative Offenses, supra note 30, arts. 10.2, 10.3. (248) Decree on Administrative Offenses, supra note 30, arts. 10.1-10.3; Circular on Administrative Offenses, supra note 31, art. II.6. (249) Decree on Administrative Offenses, supra note 30, arts. 13, 14; Law on Protection of the Environment art. 31 (1993) (Draft Official English Translation, State Committee for Cooperation and Investment & Phillips Fox trans.). (250) Decree on Administrative Offenses, supra note 30, arts. 7-8. (251) Id. arts. 9, 11-16; Circular on Administrative Offenses, supra note 31, art. II.8. (252) Decree on Administrative Offenses, supra note 30, art. 17. (253) Id. art. 9. (254) Id. arts. 12.1, 19; Circular on Administrative Offenses, supra note 31, art. II.7. (255) Circular on Administrative Offenses, supra note 31, art. 1.2(a). (256) Id. art. 1.2(b). (257) Id. art. II.1. (258) Id. art. II.1(a). (259) Id. art. IV.1. (260) Id. art. II.1(b). (261) Id. art. II.1(c). (262) Id. art. ILl(d). (263) "Attenuating circumstances" include instances of where the offender has prevented, remedied, or reduced the impact of the offense; where the offender is mentally agitated by the illegal act of another; where the offender is old, weak, pregnant, or suffering an illness or handicap that restricts the offender's awareness of his actions; where the offense results from an extremely difficult situation that has not been created by the offender; or where the offense results from "backwardness." Circular on Administrative Offenses, supra note 31, art. 1.4(a); Ordinance on Dealing with Administrative Offenses art. 7. (264) "Aggravating circumstances" include any organized offence; repetitive offenses; inciting minors or mentally disabled persons; abuse of power and position to commit an offense; taking advantage of wars, natural calamities or other special difficulties; committing an offense during the period of enforcement of penalty or concealment of an offense. Ordinance on Dealing with Administrative Offenses art. 8; Circular on Administrative Offenses, supra note 31, art. I.4(b). (265) Id. art. I.4. (266) Id. art. I.5. (267) Decree on Administrative Offenses, supra note 30, arts. 4.1-4.3. (268) Id. art. 4.5. (269) Id. arts. 26-28, 34. (270) Id. art. 21. (271) Id. art. 20; see also Circular on Administrative Offenses, supra note 30, art. I.3. (272) Decree on Administrative Offenses, supra note 30, art. 25.1. (273) Id. art. 25.3. (274) Id. art. 25.2. (275) Id. art. 27. (276) Id. art. 1.5. (277) Id. art. 5.1. (278) Id. art. 5.2. (279) This is for either failing to have a technical certificate for using toxic and harmful chemicals, refusing to allow NEA to inspect establishments that contain such chemicals, or illegally exploring, exploiting, or transporting petroleum or toxic substances. Id. art. 12. (280) This is the maximum penalty for importing or exporting certain types of prohibited waste or aggravated offenses regarding waste disposal. Id. arts. 9.4, 11. (281) "Emergency or force majeure" means natural calamities, wars, and other unforeseen objective impediments that, despite all remedial measures, cannot be overcome. Circular on Administrative Offenses, supra note 31, art. I.8. (282) Decree on Administrative Offenses, supra note 30, art. 1.6. (283) Circular on Administrative Offenses, supra note 31, art. II.2. (284) The normal statutory time limit for imposing penalties for administrative offenses in relation to environmental protection is two years from the date when the offense is committed, except where a criminal prosecution has been suspended in preference to an administrative proceeding. When an administrative proceeding is chosen, the time limit is three months from the date of the decision to suspend; however, if within the time limit of a previous offense, the person commits another offense, the time limit runs from the date of the new offense. Decree on Administrative Offenses, supra note 30, arts. 3.1-3.3. (285) Id. art. 22. (286) Ordinance on Dealing with Administrative Offenses art. 47. (287) Id. art. 55. (288) In instances where the penalty is both a fine and confiscation of evidence (of machinery, tools, etc.), failure of the offender to meet the stipulated time for satisfying the penalty can result in compulsory measures being taken. Inspectors must use the peoples' police force to assist in executing these compulsory measures. Circular on Administrative Offenses, supra note 31, arts. IV.3, IV.4. (289) Ordinance on Dealing with Administrative Offenses art. 55. (290) Decree on Administrative Offenses, supra note 30, art. 23. (291) Id. art. 24.3. (292) Id. arts. 20.4, 20.5, 20.6, 24.1. (293) Id. arts. 24.1, 24.2. (294) Circular on Administrative Offenses, supra note 31, art. V. 1. (295) Id. art. V.2. (296) Id. art. V.3. (297) Id. art. V.4. (298) Id. art. V.5. (299) Id. art. V.6. (300) Circular oil Pollution Control, supra note 34, art. 6. (301) Law on Protection of the Environment art. 43 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (302) Id. art. 44(2). (303) Decree on Administrative Offenses, supra note 30, art. 26.1. (304) See supra Part V.H. (305) See supra Part IV.A.2.f. (306) See infra Part VI.B. (307) See infra Parts VI.C-VI.I. (308) Law on Protection of the Environment art. 10 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (309) Id. art. 21. (310) Id. art. 32. (311) Id. art. 33. (312) Id. art. 34. (313) Id. art. 35. (314) Id. art. 10. (315) Decree on Administrative Offenses, supra note 30, art. 26.2. (316) Circular on Pollution Control, supra note 34, ch. II, art. 9. (317) Petroleum Environmental Protection Regulations, supra note 35, art. 7.1. (318) Id. art. 8. (319) Law on Protection of the Environment art. 4 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (320) Decree on Protection of the Environment, supra note 21, art. 5.2. (321) Le Quy An, Vietnamese Policy on the Environment and Sustainable Development, in ENVIRONMENTAL POLICY AND MANAGEMENT IN VIET NAM 45, 62 (Hinrich Mercker & Vu Phi Hoang eds., 1997). (322) Law on Protection of the Environment art. 4. (323) There are only 1000 people in MOSTE and 45 in NEA. Tan, supra note 20, [sections] 5.2. DOSTE lacks sufficient staff in the provinces to monitor and inspect sites. Vu Thu Hanh & Alan Tan Khee Jin, Environmental Legislation and Institutions in the Socialist Republic of Viet Nam 6, 9, 14 (unpublished paper) (on file with author); Sinh & Friederich, supra note 41, at 44. (324) Vu Vhu Hanh & Alan Tan Khee Jin, supra note 323, at 14; NATIONAL PLAN, supra note 6, at 106-08; The great proportion of MOSTE staff are engineers and scientists but they are not environmental experts. Tan, supra note 20, [sections] 5.2. (325) Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 7; Le Thac Can & Vo Quy, supra note 1, at 76. (326) Pitts, supra note 46, at 87. In mid-1996, there were 45 staff and 7 divisions within NEA. Sinh & Friederich, supra note 41, at 33. (327) Nguyen Ngoc Sinh et al., Putting the Law on Environmental Protection into Practice: Examples, Case Studies and Trends, in ENVIRONMENTAL PoLICY AND MANAGEMENT IN VIET NAM 83, 95 (Hinrich Mercker & Vu Phi Hoang eds., 1997). (328) Tan, supra note 20, [sections] 5.2. (329) Le Thac Can & Vo Quy, supra note 1, at 76. (330) Hinrich Mercker, Training for Environmental Administrators, in ENVIRONMENTAL POLICY AND MANAGEMENT IN VIET NAM 121 (Hinrich Mercker & Vu Phi Hoang eds., 1997). (331) Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 7. (332) Id.; NATIONAL PLAN, supra note 6, at 37. (333) Le Thac Can & Vo Quy, supra note 1, at 76; Tan, supra note 20, [sections] 5.3. (334) For example, all technology that is imported or transferred into Vietnam must not result in effects that are detrimental to the environment. Decree on the Transfer of Foreign Technology to Vietnam, Decree No. 49-HDBT art. 4(2) (1992). (335) Pitts, supra note 46, at 89. (336) Law on Protection of the Environment art. 7 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillips Fox trans.). (337) These sectors include mining, transport terminals, any commercial and manufacturing sector that pollutes the environment, and foreign organizations and individuals that pollute the environment. Decree on Protection of the Environment, supra note 21, art. 34. (338) Id. (339)Id. art. 33. (340) Id. art. 35. (341) Circular on Pollution Control, supra note 34, art. 14. (342) The director of NEA has commented on the increase in Official Direct Assistance and Foreign Direct Investment in 1994-95. However, the source of assistance was limited to the UN, some NGOs and a few bilateral donors. Viet Nam: Country Profile, Implementation of Agenda 21: Review of Progress Made Since the United Nations Conference on Environment and Development, 1992, U.N. Comm. on Sustainable Development, 5th Sess., ch. 33 (1997) [hereinafter Implementation of Agenda 21]. (343) Tan, supra note 20, [sections] 5.2 (claiming that only one to two percent of the central government budget is given to MOSTE); Pitts, supra note 46, at 92; Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 14; NATIONAL PLAN, supra note 6, at 26. (344) Decree on Protection of the Environment, supra note 21, art. 32. (345) See discussion supra Part V.B. (346) Tan, supra note 20, [sections] 5.7; Sinh & Friederich, supra note 41, at 40. (347) Tan, supra note 20, [sections] 5.7. (348) Id. (349) Sinh & Friederich, supra note 41, at 40. The FAO and UNDP have already contributed financially to various Vietnamese environmental programs. For example, the FAO provided $337,000 for the Forestry Policy and Legislation Programme. See Clean Water and Sanitation: Top Priority, UN NEWS, Aug. 1997, at 4. UNDP partly funded ($324,000) the project entitled Strengthening National Capacities to Integrate the Environment into Investment Planning and Public Policy Making. Tan, supra note 20, [sections] 5.7. The program began in November 1994. Id. (350) NATIONAL PLAN, supra note 6, at 106. (351) Le Thuc Can & Vo Quy, supra note 1, at 76. (352) Vo Quy, Environmental Issues in Viet Nam: An Overview, in ENVIRONMENTAL POLICY AND MANAGEMENT IN VIET NAM 5, 28 (Hinrich Mercker & Vu Phi Hoang eds., 1997). (353) Nguyen Ngoc Sinh et al., supra note 327, at 95. (354) Tan, supra note 20, [sections] 5.3. (355) Le Thac Can & Vo Quy, supra note 1, at 77. (356) Decree on Protection of the Environment, supra note 21, art. 8.4. (357) Le Quy An, supra note 321, at 61. (358) Law on Protection of the Environment art. 49 (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillip Fox trans.). This reward system specifically applies to the petroleum industry. Petroleum Environmental Protection Regulations, supra note 35, art. 44. (359) Law on Forest Protection and Development art. 49 (1991). (360) See, e.g., Part IV.A.2.a, supra (describing environmental impact legislation). (361) In fairness to the Vietnamese Government, the framework laws and codes are not intended to give much detail, because it is the role of the relevant underlaws to spell out the detail necessary to implement the laws and codes. (362) For example, Chapter I of the Law on Protection of the Environment sets out in very vague terms those agencies that are responsible for the implementation of, and ensuring compliance with, that Law. Law on Protection of the Environment ch. I (1993) (Draft Official English Translation, State Committee for Co-operation and Investment & Phillip Fox trans.). Likewise, the Decree on Protection of the Environment fails to state which bodies are to assist MOSTE with its tasks. Decree on Protection of the Environment, supra note 21, art. 5. (363) For example, within the procedures for appraisal of environmental impact documentation, there are two distinct groups of investment projects (i.e., Group I & II projects) and each has its own separate procedures and terminology. According to Appendix I of the April 1998 Circular, Group I projects that are established in industrial or export zones for which an EIE report has been approved are permitted to follow the procedures for approval of Group II projects. April 1998 Circular, supra note 63, app. I. (364) The preamble to the Regulations on Organization and Operation of Councils for Appraisal of Environmental Impact Evaluation Reports and Issuance of Environmental Licences states that the State Environment Protection Authority is responsible for the appraisal of EIE reports; however, according to those Regulations, and apart from one cite to a member of that Authority being a secretary to an appraisal council, the State Environmental Protection Authority has no part in the appraisal process. The appraisal is in fact done by appraisal councils, who in turn make a recommendation to MOSTE or to the People's Committee. It is these two bodies that actually make the final decision on whether or not to approve the EIE report. Another example of uncertain coordination is the April 1998 Circular article II.1, which implies that the same body that issues the investment license also appraises and approves the EIE report for Group 1 projects. April 1998 Circular, supra note 63, art II.1. In fact, it is the Ministry of Planning and Investment or the People's Committee that issues the investment license and MOSTE or the People's Committee that approves the EIE report. (365) There is a need to harmonize the Law on Protection of the Environment with other environmental legislation to ensure that these other laws are consistent in their procedures and delineation of ministerial responsibilities. Tan, supra note 20, [sections] 5.1. (366) For example, with Group II projects, a "certificate of registration of satisfaction of environmental standards" is issued if the reviewing agency finds that the environmental documentation meets the relevant environmental standards. April 1998 Circular, supra note 63, art. II. 1.2. However, at a later stage in any particular project, after the completion of construction, a "certificate of compliance with environmental standards" (or environmental permit) is issued if the project meets those standards. Circular for Industrial Environmental Evaluation Certificates, supra note 32, art. II.2. While these two certificates are issued at two quite distinct times for slightly different purposes, the similarity in their terminology is often confusing to the layperson. (367) For example, the permit issued upon a successful appraisal of a submitted EIE report is variously referred to as an "environmental permit," an "environmental evaluation certificate," a "certificate of appraisal of an environmental impact evaluation," or a "certificate of registration of satisfaction of environmental standards." See April 1998 Circular, supra note 63. (368) Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 7-8, 14; Tan, supra note 20, [sections] 5.3. (369) For a discussion on some of the provincial environmental legislation passed by the particular People's Committees, see Pitts, supra note 46, at 89. (370) See infra Part VIII.B. (371) Michael Holm & Elizabeth Wild, An Overview of Environmental Regulation in Asia, in ENVIRONMENTAL OUTLOOK: LAW AND POLICY 41 (B. Boer et al. eds., 1994); Pitts, supra note 46, at 85. (372) Clive Briffett, Monitoring the Effectiveness of Environmental Impact Assessment in Southeast Asia, 4 ASIAN J. ENVTL. MGMT. 53, 54 (1996); Time for a Correction to the EIA Process, NEW STRAITS TIMES MALAYSIA, Sept. 19, 1994. (373) Briffett, supra note 372, at 54. (374) Id. at 60. (375) See supra Part IV.A.2.d. (376) See supra Part IV.A.2.h. (377) Making Environmental Law in Asia More Effective: Participant's Report from a Regional Workshop, Hong Kong 4-8 March 1996, 4 ASIAN J. ENVTL. MGMT. 131, 138 (1996) [hereinafter Workshop Report]; Briffett, supra note 372, at 60. (378) See discussion supra Part IV.A.2.c. (379) NEA has set up nearly 20 stations in a national environmental monitoring network. Nguyen Ngoc Sinh et al., supra note 327, at 95. (380) In mid-1996, monitoring showed that only 25% of some 4000 companies were adhering to operating standards and some one hundred projects or operations were forced to close down or relocate. Additionally, attempts were made to close down, or at least improve, the environmental performance of another thirteen large Vietnamese companies. However, it was shown that these companies lacked the funding necessary to invest in the required environmental pollution treatment. Nguyen Ngoc Sinh et al., supra note 327, at 84, 88. (381) See discussion supra Part IV.A.2.b. (382) Briffett, supra note 372, at 61. (383) Id. at 60-61. (384) See Le Thac Can, supra note 107, at 113. (385) See Briffett, supra note 372, at 61. (386) Pitts has suggested that the World Conservation Union and UNDP could assist in the training of the assessors. Pitts, supra note 46, at 88. Tan is also very critical of the lack of staff and objectivity in EIE assessments in Vietnam. Tan, supra note 20, [sections] 5.4. (387) See supra Part VI.E. (388) Briffett, supra note 372, at 61; see also Workshop report, supra note 377, at 134. (389) However, some would argue that this is a disadvantage in that the local culture brings with it the problems of nepotism and corruption. (390) See supra Part IV.A.2. (391) Pitts has suggested academics and independent environmental organizations should be involved in the assessment. Pitts, supra note 46, at 88. (392) Le Thac Can, supra note 107, at 113. (393) Briffett, supra note 372, at 53, 56 tbl.2. (394) Tan, supra note 20, [sections] 5.4. (395) Le Thac Can & Vo Quy, supra note 1, at 76-77; see also Nguyen Ngoc Sinh et al., supra note 327, at 88-94. (396) Le Thac Can & Vo Quy, supra note 1, at 76-77. (397) This seems to have already occurred. See April 1998 Circular, supra note 63, app I. (398) Le Thac Can, supra note 107, at 116. (399) Holm & Wild, supra note 371, at 42. (400) Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 5, 10 n. 18. Most fines are the equivalent of between $10 and $40, an amount that may cause unwarranted hardship to the lowly paid Vietnamese, yet the maximum fine of $5000 for an oil spill is inadequate to deter a developer from the United States. Id.; Tan, supra note 20, [sections] 5.5. (401) Penalties range from the normal monetary fines to revocation of licenses, forced curtailment of the damaging behavior, and imposition of compensation payments. Tan, supra note 20, [sections] 5.5. (402) Id. (403) See Pitts, supra note 46, at 88; see also discussion supra Part VII.I. (404) CRIMINAL CODE VIET NAM art. 195. (405) Tan, supra note 20, [sections] 5.5. (406) Tan, supra note 20, [sections] 5.5 (discussing the Law of Foreign Investment, the Maritime Code, the Law on Land, and the Law on Petroleum). (407) Both the Decree on Administrative Offenses, art. 12.2(a), and the Decree on Administrative Fines in the Management and Protection of Forests contain fines for violations of forest protection. Tan, supra note 20, [sections] 5.5. (408) See supra Part V.A. (409) Seventy-five percent of all the wells in Vietnam were destroyed or severely damaged during the American part of the Vietnam Wars. By 1997, at least 42% of the rural population had access to clean water. The target in 1991, under the National Plan of Action for Children, was for 80% of the rural population to have access to clean water. Clean Water and Sanitation: Top Priority, UN NEWS, Aug. 1997, at 4; see also Implementation of Agenda 21, supra note 342, ch. 6. (410) Le Thac Can & Vo Quy, supra note 1, at 73. (411) Id. at 74. (412) Tan, supra note 20, [sections] 5.6. (413) There are insufficient incineration and landfill facilities for household, hazardous, and industrial waste treatment. Tan, supra note 20, [sections] 5.6. (414) In 1996 it was estimated that only 30 to 50% of solid waste in Hanoi and Ho Chi Minh City was being collected. Access to sewage systems in many urban areas is nonexistent. In addition, 54 to 100% of graywater is discharged untreated. Vo Quy, supra note 352, at 19-20. (415) In September 1996, local suburbs of Hanoi were measured as having carbon dioxide levels 18 times higher than the acceptable international standard, and factories well exceeded toxic emission standards. Andrew Nette, Vietnam's Balancing Act Between Economic Growth and Environmental Health (visited Jan. 29, 1998) <http://www.cais.net/publish/stories/0596haz7.htm>. (416) Some of the air pollution is caused by outdated coal burning boilers and other industrial or mobile sources. Vo Quy, supra note 352, at 20. (417) Ninety percent of all industrial sites are polluted by dust or noise. Le Quy An, supra note 321, at 58. (418) The sulfur dioxide level is now 14 times higher than it used to be (no date given) and it is 2.2 times higher than the accepted environmental standard. Id. at 57 (419) Vo Quy, supra note 352, at 20. (420) Tan, supra note 20, [sections] 5.6; Le Quy An, supra note 321, at 60. (421) Tan, supra note 20, [sections] 5.6. (422) See generally Vo Quy, supra note 352, at 8 (describing the decline of forested areas). (423) Martin Mulligan, Vietnam Now Fights on the Environmental Front, DIRECT ACTION, July 25, 1989, at 11; Le Thac Can & Vo Quy, supra note 1, at 69. (424) See the comment on Chapter 11 of Agenda 21 in Implementation of Agenda 21, supra note 342. (425) Le Thac Can & Vo Quy, supra note 1, at 70. (426) UNITED NATIONS DEVELOPMENT PROGRAMME, VIETNAM: STRENGTHENING NATIONAL CAPACITIES TO INTEGRATE THE ENVIRONMENT INTO INVESTMENT PLANNING AND PUBLIC POLICY MAKING (visited Feb. 15, 1999) <http://www.undep.org/seed/ccp21/ vietnam/html>. (427) Law on Forest Protection and Development (1991). (428) See comments on Chapter 11 of Agenda 21 in Implementation of Agenda 21, supra note 342. (429) Tan, supra note 20, [sections] 6. (430) The Action Plan for Tropical Forestry was set up by the Ministry of Forestry in 1991 and it is estimated that under this plan the rate of reforestation is between 130,000 and 150,000 hectares per year, as compared with a deforestation rate of approximately 110,000 hectares per year. Vo Quy, supra note 352, at 9. (431) During 1985 and 1986, Vietnamese students planted 52 million trees and built 86,000 square metres of tree nurseries. Mulligan, supra note 423, at 11. (432) Le Thac Can & Vo Quy, supra note 1, at 70. (433) Vo Quy, supra note 352, at 17-18. There are plans, under the Action Plan for Tropical Forestry, to increase the reserved areas of land to six percent of the entire country. Id. at 18. (434) Le Thac Can & Vo Quy, supra note 1, at 74. (435) See Law on Land art. 79 (1993) (requiring all land users to comply with environment protection laws); Law of Foreign Investment in Vietnam art. 34 (1996) (Official English Version, Ministry of Planning and Investment & Phillips Fox trans.) (requiring all enterprises with foreign capital to take all precautions to protect the environment). (436) See supra Part IV.A.2. (437) Tan, supra note 20, [sections] 5.4. (438) See supra Part IV., A.2.d. (439) Some 72 million liters (slightly more than 19 million gallons) of herbicide were sprayed on forests, land, and villages; large tracts of forests and land were bulldozed; and 13 million tons of bombs were dropped, creating more than 25 million craters and displacing more three million square meters of soil. Le Thac Can & Vo Quy, supra note 1, at 72. In addition, 75% of all the wells in Vietnam had been destroyed or severely damaged during American involvement in the Vietnam Wars. Clean Water and Sanitation: Top Priority, supra note 409; see also Vo Quy, supra note 352, at 20. (440) These programs include: the disinfection of homes, farmlands, and water supply systems; reforestation plans; and reintroduction of wildlife. Vo Quy, supra note 352, at 21. (441) Le Thac Can and Vo Quy noted that: Three decades of war from 1945 to 1975 caused serious environmental damage in Vietnam.... Since 1975, in the post war reconstruction, the Vietnamese people have rehabilitated an important part of devastated towns, villages, agricultural and forest land. Some areas, however, were so severely contaminated from chemical warfare and devastated by explosives that they have not recovered. Le Thac Can & Vo Quy, supra note 1, at 72. (442) The first major Vietnamese law that completely embraced environmental protection was the Law on Protection of the Environment, which was promulgated in 1993. However, there were some important developments in environmental protection before 1993, as the planning strategies were formulated in the 1980s and some laws that dealt partly with the environment were also passed before 1993. For example, the Law on Forest Protection and Development came into force in August 1991. (443) Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 14. (444) Briffett, supra note 372, at 60-61. (445) Workshop Report, supra note 377, at 132. (446) To resolve the problem in the jurisdictions of environmental management agencies, Vietnam needs a National Committee for Sustainable Development. Le Quy An, supra note 321, at 61. (447) Tan, supra note 20, [sections] 5.1. (448) Id. (449) Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 6-8, 14. (450) Id. at 7; Tan, supra note 20, [sections] 5.3. (451) There needs to be clearer delegation of assignments to individual environmental administration offices. Vo Quy & Heinz-Joachim Peters, Environmental Law of Viet Nam (1995) (unpublished paper) (on file with authors); NATIONAL PLAN, supra note 6, at 25. (452) Le Dang Doanh, Economic Reform in Vietnam: Legal and Social Aspects and Impacts, 6 AUSTL. CORP. L. 289, 299 (1996); J. Gillespie, The Role of Bureaucracy in Managing Urban Land in Viet Nam, 5 PAC. RIM L. & POL'Y J. 59, 102-09, 115-18, 124 (1995). (453) Briffett, supra note 372, at 60 (quoting T. Panayotou, WHY REGULATIONS DON'T WORK IN DEVELOPING COUNTRIES (1991)). (454) Gillespie argues that patronage or bribery in the issuing of permits has the positive effect of redistributing income in a relatively poor society, as well as accelerating the otherwise slow process of issuing permits. Gillespie, supra note 452, at 102-04. (455) Pitts, supra note 46, at 85. (456) Law on Foreign Investment in Vietnam art. 54 (1998) (Official English Version, Ministry of Planning and Investment & Phillips Fox trans.). (457) See supra Part IV.B. (458) Government Decree Providing Detailed Regulations on the Implementation of the Law on Foreign Investment in Vietnam Decree No. 12-CP ch. XII (1997). (459) Vietnam has at present 500 cities and towns and it is estimated the total population that lives in urban areas will jump from a projected 23% in the year 2000 to 45% in 2030. Le Quy An, supra note 321, at 57. (460) The industrial growth of Vietnam has been so great in recent decades that it is predicted that it will be officially classified as an industrialized country by the year 2020. Id. (461) Destructive fishing practice have overexploited coastal fisheries and depleted coral reefs. Vo Quy, supra note 352, at 13. Seventy species of fish are now threatened with extinction for these reasons. Le Quy An, supra note 321, at 54. (462) Vietnam's wetlands are at moderate to high risk due to factors such as population growth, pollution by pesticides and wastewater, overexploitation of fisheries, and destruction of mangrove and Melaleuca forests for timber. Vo Quy, supra note 352, at 15. (463) In Minh Hai province, the total area of mangrove forest was reduced from 110,000 hectares in 1984 to just 50,000 in 1992. Shrimp breeding ponds have been polluted so much that mangrove trees cannot grow in the acidose water. Le Quy An, supra note 321, at 52. (464) Vo Quy, supra note 352, at 12-13. (465) Recent rapid economic growth has caused environmental pollution from motor vehicles, factories, and agricultural chemicals to become more serious. Id. at 26. (466) Le Quy An, supra note 321, at 57-58. (467) For a brief summary of Vietnam's environmental problems, see Vo Quy, supra note 352, at 7. (468) Le Thac Can and Vo Quy give some indication of the level of pollution in the early 1990s. They claim that the dally solid waste of Hanoi was about 360 tons, the sewage effluent of Ho Chi Mirth City was 500,000 square meters, dust pollution had reached alarming levels, water pollution was very serious, and there was a serious noise and radiation pollution problem, re Thac Can & Vo Quy, supra note 1, at 72. These authors also wrote that increased environmental pollution is a result of the increase in motor vehicle use and industrialization in the three large urban centers and the intensification of agricultural production with its accompanying increased use of pesticides and chemical fertilizers. Id. at 75. (469) Many species of flora and fauna in Vietnam are becoming rare and are even in danger of extinction due to encroachment, loss of habitat (forests and wetlands), overexploitation, pollution, and uncontrolled local and international trade in wildlife. Vo Quy, supra note 352, at 17. In fact, there are some 350 species of animals and plants listed in the Vietnamese Red Book as extremely threatened. Le Quy An, supra note 321, at 55. (470) See discussion supra Part VIII.B. (471) Le Thac Can & Vo Quy, supra note 1, at 70-72; Pitts, supra note 46, at 85. (472) See Implementation of Agenda 21, supra note 342. (473) Many of the specific requests for information under Agenda 21 subheadings simply have the response "No information." See generally Implementation of Agenda 21, supra note 342. (474) The information for this report was provided by the government of Vietnam and, in particular, by the director of NEA at that time, Nguyen Ngoc Sinh. (475) Implementation of Agenda 21, supra note 342, ch. 8. (476) Id. ch. 18. (477) Id. chs. 19, 20. (478) Vu Thu Hanh and Alan Tan Khee Jin have written that "[t]he 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." Vu Thu Hanh & Alan Tan Khee Jin, supra note 323, at 14. (479) Vo Quy & Peters, supra note 451, at 8. (480) A recent survey compared Vietnam's environmental impact assessment procedures to ten other South East Asian countries. Vietnam was classified as one of the least developed countries. Briffett, supra note 372, at tbl.1. TANNETJE BRYANT, Senior Lecturer, Faculty of Law, Monash University; LL.B. Honors, University of Melbourne; LL.M, Monash University; Diploma in Education. Mrs. Bryant has been on the teaching staff of the Monash University Faculty of Law for over twenty years and has taught primarily in the areas of environmental, international, and administrative law and civil procedure. She has visited Vietnam on several occasions as a consultant on various planning and environmental law matters and has acted on similar basis for several large Melbourne law firms. She is also at present a part time member of the Victorian Civil and Administrative Law Tribunal. KEITH AKERS, Senior Research Assistant, Faculty of Law, Monash University; B.A., Monash University, ALAA. Mr. Akers has worked as a research assistant and Research Fellow with the Monash Law Faculty for over a decade. He has worked jointly with Mrs. Bryant on a number of environmental law research projects. |
|
||||||||||||||||||
Printer friendly
Cite/link
Email
Feedback
Reader Opinion