Vietnam: Water Pollution and Mining in an Emerging...
Transcript of Vietnam: Water Pollution and Mining in an Emerging...
Vietnam:
Water Pollution and Mining in an Emerging Economy
Heather Whitney*
INTRODUCTION .......................................................................................... 25 I. BACKGROUND .................................................................................... 29
A. The Mining Industry of Vietnam and Water Pollution ................ 32 B. Vietnam's Environmental Framework in the Context of Mining
and Water Quality ....................................................................... 35 1. Vietnam Law on Environmental Protection ........................ 36 2. Vietnam Minerals Law of 2010 ........................................... 38 3. Vietnam’s Law on Water Resources .................................... 40
C. Supporting Programs to Protect the Environment and Water
Quality ........................................................................................ 44 D. Enforcement ................................................................................ 45
1. The Environmental Crime Prevention and Fighting Police
Department - "C49" ............................................................. 46 2. Environmental Impact Assessments .................................... 48 3. Natural Resource Tax .......................................................... 50
II. THE PROBLEM OF COMPETING INTERESTS .......................................... 50 A. Vietnam's Competing Interests: Economic Development and
Environmental Preservation ....................................................... 50 B. Conflicts in the Law .................................................................... 52
III. PROPOSED RESOLUTIONS TO CONFLICTS IN THE LAW ......................... 53 CONCLUSION .............................................................................................. 56
INTRODUCTION
Vietnam is a nation of contrasts, encompassing stunning biological
and cultural diversity, beautiful landscapes, and rapid economic and
industrial growth. Since the end of the Vietnam War in 1975, the country
has entered into the free market economy and developed into a strong
economic force in Asia.1 As a result, the environment, particularly surface
* Heather Whitney, J.D., LL.M, specializes in water quality protection, natural
resource law, and endangered species protection. The author would like to extend thanks
to Dean Marc Mihaly of Vermont Law School for his encouragement, and Professor
Brian J.M. Quinn of Boston College Law School for his assistance with this paper.
1 Adam Fforde, Economics, History, and the Origins of Vietnam's Post-War
Economic Success, 49(3), ASIAN SURVEY, 484, 486-87 (2009). See also, Vietnam
Overview, THE WORLD BANK http://www.worldbank.org/en/country/vietnam/overview
(last visited Feb. 4, 2014).
26 Asian-Pacific Law & Policy Journal Vol. 15:1
waters, has suffered. Vietnam is home to more than 2,300 rivers2 and
thirteen major river systems.3 Roughly sixty percent of Vietnam’s fresh
surface water is centered in the Mekong Delta.4 Due to industrial,
domestic, and mining waste pollution, all major river basins throughout
the country are polluted, and most do not meet adequate drinking
standards.5
Water pollution from mining operations is a problem felt
worldwide6 and Vietnam is no exception. Vietnam’s Department of
Natural Resources and Environment reportedly stated that pollution from
mining is so severe, particularly in the northern part of the country where
gold mining is concentrated, that “many marine creatures can no longer
survive in the rivers polluted by miners and the water has become unsafe
and unusable” and the use of cyanide in some gold mining activities in the
area “ha[s] threatened even human life.”7
Vietnam has been characterized as having an “amazing potential in
terms of its mineral wealth.”8 It is the largest anthracite exporter
9 and third
largest bauxite exporter in the world.10
Approximately 4,200 mining
2 State of Water Environmental Issues, WATER ENV’T. P’SHIP IN ASIA,
http://www.wepa-db.net/policies/state/vietnam/overview.htm. (last visited Feb. 4, 2014).
3 Pham Quy Giang, Kosuke Toshiki, Shoiche Kunikane, Masahiro Sakata,
Climate Change Challenges Transboundary Water Resources Management: Drawing
From the Case of Vietnam, 3RD INTERNATIONAL CONFERENCE ON CHEMICAL,
BIOLOGICAL, AND ENVIRONMENTAL SCIENCES 48, (Jan. 8-9, 2013),
http://psrcentre.org/images/extraimages/113549.pdf.
4 Id.
5 KELLOGG, BROWN, & ROOT PTY., LTD., TECHNICAL ASSISTANCE
CONSULTANT’S REPORT, SOCIALIST REPUBLIC OF VIET NAM: WATER SECTOR REVIEW,
VIE WATER SECTOR REVIEW PROJECT, FINAL REPORT 26 (Asian Dev. Bank 2009),
http://www2.adb.org/documents/reports/Consultant/40621-VIE/40621-VIE-TACR.pdf.
This report on water quality issues in Vietnam to the Asian Development Bank was the
result of a joint project between the government of Vietnam and a number of international
development partners.
6 See generally Troubled Waters: How Mine Waste is Poisoning Our Oceans,
Rivers, and Lakes, EARTHWORKS AND MINING WATCH CANADA (2012),
http://www.earthworksaction.org/files/publications/Troubled-Waters_FINAL.pdf.
7 Illegal Mining Adds to Vietnam’s Gold Dilemma, BULLION STREET, (Nov. 10,
2013), http://www.bullionstreet.com/news/illegal-mining-adds-to-vietnams-gold-
dilemma/351.
8 Michael Sullivan, Investors in Vietnam Go For the Gold, NATIONAL PUBLIC
RADIO (April 14, 2006), http://www.npr.org/templates/story/story.php?storyId=5341912.
9 Pavel Kavina, Vietnam, the World’s Largest Anthracite Exporter, NEW WORLD
RESOURCES (May 24, 2011), http://www.newworldresources.eu/en/media/open-
mine/open-mine-02-2011/vietnam-the-worlds-largest-anthracite-exporter.
10 Bauxite Bashers, THE ECONOMIST (Apr. 3, 2009), available at
http://www.economist.com/node/13527969.
2013 Whitney 27
projects by 2,000 businesses are active in Vietnam, an increase from 427 a
dozen years ago.11
The country hosts both small artisanal mines and huge
multi-million dollar mining operations,12
with over 5,000 mines, or
“deposits,” in Vietnam, containing seventy different minerals.13
Large mining projects are potentially hazardous to local water
supplies and economies. In 2012, for example, the Vietnamese Ministry of
Finance approved a large bauxite mine to begin operations in the Central
Highlands,14
an area so important agriculturally that a wide spectrum of
Vietnamese society including scientists, environmentalists, and a former
military hero have expressed concern over the project.15
If the byproduct
of bauxite refining, or red sludge,16
spilled in this area it would devastate
hundreds of ethnic villages, beautiful scenery, wildlife, and a thriving
coffee export industry.17
South of the Central Highlands lies Nam Cat Tien
National Park, one of the most biologically diverse regions in Indochina.18
The park is so important for scientific study and ecotourism that in
11
Vietnam’s Lack of Control Over Mining Wastes Resources: House Committee,
THANHNIENNEWS (Aug.17, 2012),
http://www.thanhniennews.com/index/pages/20120817-vietnam-loose-control-on-
mining-puts-resources-to-waste.aspx.
12 John C. Wu, The Mineral Industry of Vietnam, U.S. GEOLOGICAL SURVEY
MINERALS YEARBOOK 28.1 (2007),
http://minerals.usgs.gov/minerals/pubs/country/2007/myb3-2007-vn.pdf.
13 John C. Wu, The Mineral Industry of Vietnam, U.S. GEOLOGICAL SURVEY
MINERALS YEARBOOK 25.1 (2002),
http://minerals.usgs.gov/minerals/pubs/country/2002/vmmyb02.pdf.
14 Citibank Finances Vinacomin For Highlands Bauxite Project, VIETNAMNEWS,
(Nov. 15, 2012), http://vietnamnews.vn/Economy/232794/citibank-finances-vinacomin-
for-highlands-bauxite-project.html.
15 Tran Dinh Thanh Lam, Vietnam Farmers Fall to Bauxite Bulldozers,
ASIATIMES, (June 2, 2009),
http://www.atimes.com/atimes/Southeast_Asia/KF02Ae01.html. See also Helen Clark,
Can Vietnam Greens Block a Bauxite Mining Project?, TIME MAGAZINE (Jan. 18, 2011)
http://www.time.com/time/world/article/0,8599,2041746,00.html#ixzz1FMroMACj. The
most famous incident of bauxite-based sludge pollution is the tragedy in Hungary on
October 4, 2010, when a reservoir of one million cubic meters of aluminum red sludge
burst and inundated seven villages, killing four people. Mark Tran, Hungary Toxic Sludge
Spill an ‘Ecological Catastrophe’ Says Government, THE GUARDIAN, Oct. 5, 2010,
http://www.guardian.co.uk/world/2010/oct/05/hungary-toxic-sludge-spill.
16 Red Mud: Toxic Waste of Aluminum Refining, CBS NEWS (Oct. 7, 2010),
http://www.cbc.ca/news/world/red-mud-toxic-waste-of-aluminum-refining-1.906411.
17 Anthony Marsh, Diversification by Smallholder Farmers: Vietnam Robusta
Coffee, at 7, FAO UNITED NATIONS, (Rome 2007), available at
http://www.fao.org/docrep/016/ap301e/ap301e.pdf.
18 See generally Cat Tien National Park, http://www.namcattien.org/ (last visited Oct. 21,
2013).
28 Asian-Pacific Law & Policy Journal Vol. 15:1
October of 2010, 135 scientists and intellectuals presented the government
with a petition requesting a moratorium on any exploration or exploitation
of bauxite in that area until further environmental impact assessments
were conducted.19
National war hero General Vo Nguyen Giap called on
scientists and activists to also suggest a moratorium on bauxite mining in
the Central Highlands, and cited a 1980s report that warned the
government that bauxite exploitation in the region "would cause
devastating, long-term ecological damage, not only for local residents, but
would also harm the lives and environment of people in the southern
plains of the central provinces."20
In the aggregate, Vietnamese environmental and water quality laws
have not met overarching conservation benchmarks. Due to deterioration
in fresh water resources, the Environmental Sustainability Index ranked
Vietnam 127th out of 146 countries in terms of overall environmental
health, behind its neighbors Laos, Cambodia, and Thailand.21
This is
caused, in large part, by weak, inconsistent, and unenforced water
pollution laws and regulations. Vietnam suffers from contradictions,
overlaps, and conflicts with water resource and corresponding
legislation.22
Pollution occurs because government permits the mining
industry to disregard environmental legal protections where there are
conflicts in the law.23
Further, loosely crafted laws and regulations lead to
bureaucratic entanglements and corruption, which ultimately serve to
undermine environmental protections.24
Such contradictions and lack of
19 Tom Fawthrop, New Battle for Old Vietnam Soldier, ALJAZEERA (May 7,
2009),
http://www.aljazeera.com/news/asiapacific/2009/05/200956235120956564.htmlvv.
20
Id.
21 KELLOGG, BROWN & ROOT PTY., LTD., supra note 5, at 23.
22 Nguyen Thi Phuong Loan, Legal Framework of the Water Sector of Vietnam
82 (Univ. of Bonn, Department of Political and Cultural Change, Center for Development
Research, ZEF Working Paper Series No. 52, 2010),
http://www.zef.de/fileadmin/webfiles/downloads/zef_wp/wp52.pdf.
23 See Law on Water Resources, No. 08/1998/QH10, art. 24.2(d) (May 20, 1998)
(Viet.), available at http://faolex.fao.org/docs/pdf/vie106929.pdf (stating that no permit is
required for “exploitation and use of water resource[s] . . . already assigned or leased
according to prescriptions of law on land, the provisions of this Law and other
prescriptions of law.”).
24 Maira Martini, Overview of Corruption and Anti-corruption in Vietnam, U4
ANTI-CORRUPTION RESOURCE CENTRE 5, http://www.u4.no/publications/overview-of-
corruption-and-anti-corruption-in-vietnam/. Vietnam implemented its Anti-Corruption
Law in 2005, and works with the World Bank in a Vietnam Anti-Corruption Initiative
Program 2011 (VACI) to support “innovative ideas to minimize corruption, strengthen
transparency, and bring a better living environment for people. The program is co-
organized by the Government Inspectorate and the World Bank with support from many
bilateral donors.” Vietnam Anti-Corruption Program Awarded 34 Proposals to Minimize
2013 Whitney 29
harmonization exist between the three laws most relevant to mining
pollution and water quality: the Law on Water Resources (“LWR”),25
the
Law on Environmental Protection (“LEP”),26
and the Minerals Law of
Vietnam.27
These contradictions and disharmonies demonstrate how
Vietnam’s good intentions subvert implementation and enforcement.
Part I of this paper sets forth Vietnam’s rise to prosperity after the
Vietnam War and its transformation to a free market economy and world
trading partner. It reviews Vietnam’s political and economic shift that set
in motion industrialization’s benefits and perils, and the dangerous
consequences of unregulated mining pollution in waterways. This section
also discusses the government’s attempts to address environmental
concerns through legislation, and ancillary programs that are critical in
supporting water conservation policy with regard to mining pollution.
Part II discusses the problem of competing interests with regard to
environmental protection and economic development. As with most
developing countries in the midst of industrialization, Vietnam’s
environmental laws are beset with conflicts that serve to undermine
regulatory implementation. Policy conflicts emerge in real-life arenas, as
is evidenced in the Central Highlands, where bauxite mining has
commenced in an area of great ethnic, historical, and ecological
significance, and tests the balancing interests of both government and
society at large.
Part III provides suggestions to help remedy problems that have
arisen, such as regulatory development, jurisprudential support, effective
enforcement, and economic support, and to redirect legislative attention
toward sound and sustainable policy for water quality.
I. BACKGROUND
Prior to the global financial crisis in 2008, Price Waterhouse
Cooper, LLC named Vietnam as one of the world’s top thirteen “emerging
economies,” and “the fastest mover with a potential growth rate of ten
percent per annum.”28
According to the World Bank, Vietnam’s economic
Corruption, THE WORLD BANK (Aug. 17, 2011),
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEX
T/VIETNAMEXTN/0,,contentMDK:22793085~pagePK:141137~piPK:141127~theSiteP
K:387565,00.html (last visited Oct. 20, 2013).
25 Law on Water Resources, No. 08/1998/QH10 (May 20, 1998) (Viet.)
[hereinafter LWR], available at http://faolex.fao.org/docs/pdf/vie106929.pdf
26 Law on Environmental Protection, No. 29/2005/L-CTN (Dec. 12, 2005)
(Viet.) [hereinafter LEP], available at http://faolex.fao.org/docs/pdf/vie106929.pdf.
27 Mineral Law, No. 60/2010/QH12 (Nov. 17, 2010) (Viet.) [hereinafter Mineral
Law], available at http://faolex.fao.org/docs/pdf/vie106929.pdf.
28 Press Release, Price Waterhouse Cooper, LLC, Vietnam May Be Fastest
Growing Emerging Economy, (Mar. 12, 2008),
http://www.pwc.com/vn/en/releases2008/vietnam-may-be-fastest-growing-emerging-
30 Asian-Pacific Law & Policy Journal Vol. 15:1
transformation over the past twenty-five years is “a case study in many
development textbooks.”29
To illustrate, Vietnam is currently the world’s
third largest exporter of rice30
and the sixth largest producer of crude
petroleum in Asia.31
Since 2008, however, the country has experienced economic
turbulence, depreciating currency, double-digit inflation, loss of
international reserves, and capital flight, which have caused investors to
flee its markets.32
High levels of environmental degradation and resource-
intensive development add to the concern over the quality and
sustainability of growth in the country.33
The country is currently working
with the World Bank to establish a sound economic and investment
framework to regain lost ground.34
Vietnam’s transition from a poverty-stricken country to a world
trading partner began shortly after the Vietnam War. In 1976, the Socialist
Republic of Vietnam was established under the control of the Communist
Party of Vietnam (“CPV”).35
Vietnam adopted its Communist political
framework from the Soviet Union, which was Vietnam’s patron during the
Vietnam War.36
When diplomatic ties resumed with the West in the 1980s,
the country embarked on a path to economic reconstruction37
as a market-
economy.jhtml. This study found that among Organization for Economic Co-operation
and Development (“OECD”) countries, Vietnam had the fastest growth rate. For a list of
OECD countries, see
http://www.oecd.org/general/listofoecdmembercountriesratificationoftheconventiononthe
oecd.htm. 29
THE WORLD BANK, VIETNAM DEV. REP. 2012: MARKET ECONOMY FOR A
MIDDLE INCOME COUNTRY 10 (2012), available at
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEX
T/VIETNAMEXTN/0,,contentMDK:22416790~menuPK:387571~pagePK:2865066~piP
K:2865079~theSitePK:387565,00.html (last visited Feb. 4, 2014).
30 Whitney McFerron, Vietnamese Rice Exports Seen By U.N. Set to Remain
Near Record, BLOOMBERG, (Jan. 18, 2013), http://www.bloomberg.com/news/2013-01-
18/vietnamese-rice-exports-seen-by-un-set-to-remain-near-record.html.
31 Vietnam Hopeful of US$7.4Bln Crude Oil Exports in 2006, VIETNAM
BUSINESS FORUM (July 25, 2006), http://vccinews.com/news_detail.asp?news_id=7248.
32 THE WORLD BANK, supra note 29, at 10.
33 Id.
34 Id.
35 MARK A. ASHWILL & THAI NGOC DIEP, VIETNAM TODAY: A GUIDE TO A
NATION AT A CROSSROADS 45 (2005).
36 Id. at 46.
37 NATIONAL CENTRE FOR SOCIAL SCIENCES AND HUMANITIES, NATIONAL
HUMAN DEVELOPMENT REPORT 2001: DOI MOI AND HUMAN DEVELOPMENT IN VIETNAM
iii - iv (2001), available at
http://planipolis.iiep.unesco.org/upload/Viet%20Nam/Viet%20Nam%20HDR%202001.p
df.
2013 Whitney 31
based economy.38
This process was called Doi Moi, or “renovation,” and
formally went into effect in 1986 through the passage of numerous legal
and political reforms.39
Doi Moi has presented the country with the
advantages and disadvantages of development, including an increased
standard of living, urbanization, consumer convenience, over-exploitation
of natural resources, cheap labor, residential overcrowding, unplanned
land uses, and decreased biodiversity.40
Twenty years after Doi Moi’s
genesis, Vietnam became the fastest growing economy in both industry
and tourism amongst the Association of Southeast Asian Nations41
with a
GDP growth rate of 6.5 percent in the span of nine months in 2010.42
Vietnam also sought, and eventually gained, entrance to the World Trade
Organization (“WTO”) as a member and liberalized trading partner.43
Both the Vietnam War and Doi Moi have had a profound effect on
the country’s environment. Pressure to restore forests destroyed by Agent
Orange intensified after the war,44
but environmental protection per se did
not exist until the 1980s. Thus, the lack of any real environmental legal
tools in place fostered the destruction caused by industrialization. Over
time, the country pursued sustainable development policies, including the
National Plan for Environment and Sustainable Development45
and the
38
Id. at 27-28.
39 Id. at 2-3.
40Vietnam Environment, THE WORLD BANK,
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEX
T/EXTEAPREGTOPENVIRONMENT/0,,contentMDK:20266331~pagePK:34004173~p
iPK:34003707~theSitePK:502886,00.html (last visited Feb. 4, 2014).
41 The Rise of Vietnam, MICE IN ASIA (Jun. 4, 2007),
http://miceinasia.com/index.php?mid=4044&p=contents-item&id=176 ; GE Regards
Vietnam as Key Market in ASEAN, THE SAIGON TIMES (Feb. 28, 2011, 11:04 PM),
http://english.thesaigontimes.vn/Home/business/corporate/15439/.
42
Vietnam’s GDP Grows by 6.52 Percent in Nine Months, THE VOICE OF
VIETNAM (last updated Sept. 28, 2010, 9:49:49 AM),
http://english.vov.vn/Economy/Vietnams-GDP-grows-by-652-percent-in-nine-
months/223541.vov.
43 Vietnam gained formal membership to the World Trade Organization on
January 11, 2007. See WORLD TRADE ORGANIZATION,
http://www.wto.org/english/thewto_e/vietnam_e.htm.
44 Elizabeth Kemf, The Re-Greening of Vietnam, NEW SCIENTIST, (June 23,
1988) at 54. The “Re-greening” of Vietnam of the 1980s to recover forests destroyed by
the chemical Agent Orange was considered the “biggest challenge facing the country
since re-unification,” and culminated in planting of hundreds of thousands of hectares of
trees. See also Robin Denselow, Agent Orange Blights Vietnam, BBC NEWS (Dec. 3,
1998), http://news.bbc.co.uk/2/hi/health/227467.stm.
45 See THE SOCIALIST REPUBLIC OF VIETNAM, ET. AL., VIETNAM NATIONAL PLAN
FOR ENVIRONMENTAL AND SUSTAINABLE DEVELOPMENT 1991-2000, available at
32 Asian-Pacific Law & Policy Journal Vol. 15:1
National Strategy for Environmental Protection.46
It also passed and
promulgated the Law on Water Resources, the Law for Environmental
Protection, and several other environmental statutes.47
Despite measures taken to institute real environmental reform,
Vietnam has fallen into a familiar development trap due to its great
economic advances: allowing unregulated and unsustainable
business practices to generate feverish industrial growth at high economic
and social costs. To illustrate, the World Bank reports Vietnam paid 5.5
percent of its GDP—$2.9 billion in 2007 and $4.2 billion in 2008—in
annual environmental pollution costs,48
and it cost roughly $780 million in
the same time period to treat pollution-related diseases.49
Thus, although
policies to protect the environment in Vietnam are ideologically well-
intentioned, the countervailing forces of industry and profit tend to
prohibit actual protection.
A. The Mining Industry of Vietnam and Water Pollution
After Doi Moi was implemented and foreign investment became
part of the country’s economic framework, the door to industrial mining
interests and pollution opened. Vietnam’s mining export sector grew
significantly, and exports including coal, bauxite, titanium, and
gold contributed to four percent of the country’s GDP in 2010.50
Mining
operations are dependent upon surface waters and aquifers as both a
means of extracting minerals or ore from rock, and for dumping toxic
byproducts.51
Mining waste, or “tailings,” can contain up to three dozen
http://www.mekonginfo.org/assets/midocs/0001674-environment-vietnam-national-plan-
for-environment-and-sustainable-development-1991-2000-framework-for-action.pdf.
(last visited Feb. 4, 2014).
46 See THE SOCIALIST REPUBLIC OF VIETNAM, NATIONAL STRATEGY FOR
ENVIRONMENTAL PROTECTION UNTIL 2010 AND VISION TOWARD 2020, available at
http://www.theredddesk.org/sites/default/files/national_env_strategy_1.pdf.
47 Several laws were developed to strengthen environmental protection and
water resources protection: the Law on Fisheries (2003), Ordinance on Exploitation and
Protection of Irrigation Works (2001), the Law on Inland Waterway Navigation (2004),
the Law on Land (2003), the Law on Tendering (2005), and the Law on Dykes (2006).
48 A Heavier Hand to Slap Polluting FIEs, TALKVIETNAM.COM (Feb. 4, 2013),
http://talkvietnam.com/2013/02/a-heavier-hand-to-slap-polluting-fies/#.UTlGd45K7ap.
49 Id.
50 Yolanda Fong-Sam, The Mineral Industry of Vietnam, U.S. GEOLOGICAL
SURVEY MINERALS YEARBOOK 26.1 (2010), available at
http://minerals.usgs.gov/minerals/pubs/country/2010/myb3-2010-vn.pdf (last visited Feb.
4, 2014).
51 SAFE DRINKING WATER FOUND., MINING AND WATER POLLUTION 1,4,
http://www.safewater.org/PDFS/resourcesknowthefacts/Mining+and+Water+Pollution.pd
f (last visited Feb. 4, 2014).
2013 Whitney 33
dangerous chemicals, including cyanide, lead, mercury, petroleum
byproducts, and acids.52
Gold mining activity, in particular, has increased in frequency in
Vietnam.53
According to Nguyen Truong Giang, head of the Radioactive
and Rare Minerals Division at the Ministry of Natural Resources and
Environment, gold reserves have been found in the central, southern, and
northern regions of Vietnam.54
To emphasize the ubiquitous nature of gold
in the northern region, a natural resources official of Na Ri District
reportedly said, “A handful of sand in any river or stream in Bac Kan has
some gold dust.”55
For example, the Bong Mieu Gold Mine in Quang Nam
Province’s Phu Ninh District (located in the center of the country) is in full
operation.56
The nearby Bong Mieu River supplies water for the mine and
is used for fishing, and domestic and riparian use by thousands of
residents. Since the mine’s construction in 2006, there have been
numerous reports of dead fish in the river, livestock illness from river
water consumption, and human skin disease outbreaks from bathing in the
river.57
The culprit is thought to be cyanide.58
Cyanide leach mining is now the most popular method used by
industrial hardrock mines to extract gold because of its efficiency and
cost-effectiveness.59
This method is also popular in bootleg gold mines in
Vietnam where police in the central region’s Quang Nam Province seized
nearly two tons of the chemical in May of 2010 in central Vietnam and
over three tons in December of the same year.60
Cyanide can kill with a
52
Troubled Waters: How Mine Waste Dumping is Poisoning Our Oceans, Rivers,
and Lakes, EARTHWORKS AND MINING WATCH CANADA, 2 (Feb. 2012),
http://www.earthworksaction.org/files/publications/Troubled-Waters_FINAL.pdf.
53 Illegal Gold Exploitation on the Rise in Central Province, INFOVIETNAM (Feb.
28, 2011, 10:19), http://en.www.info.vn/society/facts/20407-illegal-gold-exploitation-on-
the-rise-in-central-province.html.
54 The Midas Curse, THANH NIEN NEWS (June 4, 2010, 01:30),
http://www.thanhniennews.com/2010/Pages/20100607215658.aspx.
55 Id.
56 Illegal Mining at Vietnam’s Largest Gold Mine, INFO VIETNAM (Mar. 22,
2011, 08:14), http://en.www.info.vn/society/more/21681-illegal-mining-at-vietnams-
largest-gold-mine-.html.
57
Gold Mining Pollution Poisoning Bong Mieu River, LOOK AT VIETNAM, (Dec.
5, 2008), http://www.lookatvietnam.com/2008/12/gold-mining-pollution-poisoning-bong-
mieu-river.html. 58
Id. See also CDC Agency for Toxic Substances and Diseases, Toxicological
Profile for Cyanide, U.S. CTR. FOR DISEASE CONTROL 164, available at
http://www.atsdr.cdc.gov/toxprofiles/tp8-c6.pdf
59 Cyanide Leach Mining Packet, EARTHWORKS ACTION MINERAL POLICY CTR.
2 (2000), http://www.earthworksaction.org/files/publications/Cyanide_Leach_Packet.pdf. 60
Hua Xuyen Huynh, Cyanide Traffickers Caught in Central Vietnam, THANH
NIEN NEWS (Dec. 9, 2010, 01:30),
34 Asian-Pacific Law & Policy Journal Vol. 15:1
tiny dose; a mere 50-100 milligrams, the equivalent of the average
caffeine amount in a cup of coffee,61
is fatal to most humans.62
Cyanide
may enter the body through eye or skin exposure, ingestion, and
inhalation.63
Bird and mammals are vulnerable to cyanide death in the
“milligram per liter” level (one thousandth part), while aquatic species are
vulnerable to cyanide death in the “microgram per liter” level (one
millionth part).64
Small mines also present large environmental problems. Many
gold mines in Vietnam are illegal artisanal operations,65
where mercury is
used to extract gold from ore.66
Mercury is hazardous when it floats
http://www.thanhniennews.com/2010/Pages/20101209133927.aspx.
61 Caffeine Content for Coffee, Tea, Soda, and More, THE MAYO CLINIC (Oct. 1,
2011), http://www.mayoclinic.com/health/caffeine/AN01211.
62 United Kingdom Health Protection Agency, Hydrogen Cyanide, Toxological
Overview 5, available at
http://www.hpa.org.uk/webc/HPAwebFile/HPAweb_C/1202487078453. 63
Environmental and Health Effects of Cyanide, INTERNATIONAL CYANIDE
MANAGEMENT CODE FOR THE GOLD MINING INDUSTRY (last visited Feb. 14, 2013),
http://www.cyanidecode.org/cyanide_environmental.php.
64 Hua Xuyen Huynh, Cyanide Traffickers Caught in Central Vietnam, THANH
NIEN NEWS (Dec. 9, 2010, 01:30),
http://www.thanhniennews.com/2010/Pages/20101209133927.aspx. The most dangerous
situation involving cyanide is an accidental spill from a mining waste storage area, or
tailings pond. Several such spills around the world have devastated not only water bodies,
but also entire watersheds, severely affecting both human and animal inhabitants and
biodiversity. Examples include the Zortman-Landusky Mine, Montana, in 1982, where
fifty-two thousand gallons of cyanide spilled into Zortman, Montana’s water supply,
Cyanide Leach Mining Packet, EARTHWORKS ACTION MINERAL POLICY CENTER 5 (2000)
http://www.earthworksaction.org/files/publications/Cyanide_Leach_Packet.pdf; the
Summitville Mine, Del Norte, Colorado, in 1992, where toxic waste consisting of cyanide
and other mining chemicals was dumped into the Alamosa River, and killed all aquatic
life for seventeen miles, Timothy Egan, The Death of a River Looms Over Choice for
Interior Post, N.Y. TIMES, (Jan. 7, 2001), available at
http://www.nytimes.com/2001/01/07/us/the-death-of-a-river-looms-over-choice-for-
interior-post.html?pagewanted=all&src=pm ; the Aural Gold Plant, Romania, in 2000,
where 3.5 million cubic feet of cyanide-contaminated toxic waste spilled into Tisza River,
a tributary of the Danube, and poisoned the water for 250 miles downstream and killed
thousands of tons of fish, Cyanide Leach Mining Packet, EARTHWORKS ACTION MINERAL
POLICY CENTER 5 (2000)
http://www.earthworksaction.org/files/publications/Cyanide_Leach_Packet.pdf ; and the
Kumtor Gold Mine, Kyrgystan, in 1998, where a mining truck crashed and spilled two
tons of sodium cyanide into the Barskoon River, and resulted in four human deaths and
2,600 human poisonings. Id.
65 Vietnam’s Largest Gold Mine Lures Illegal Miners, THE GOLD REPORT (Mar.
21, 2011) http://www.theaureport.com/pub/na/vietnams-largest-gold-mine-lures-illegal-
miners .
66 Charles W. Schmidt, Quicksilver and Gold: Mercury Pollution From Artisanal
and Small-Scale Gold Mining, ENVTL. HEALTH PERSPECTIVES (Nov. 2012),
2013 Whitney 35
downstream and is ingested by humans or other animal species, or when it
evaporates into the air and is ingested.67
When mercury reaches the bottom
levels of the food chain in algae and small aquatic animals, it increases in
concentration as it passes from plant to human in a process called
“bioaccumulation.”68
Toxicity levels peak in predators such as tuna, trout,
otters, eagles, and humans.69
In spite of the scientific realities of mining chemicals’ toxicity,
Vietnam’s environmental framework is not yet politically or financially
capable of regulating chemical output into waterways in a way that
protects human and environmental health.70
Due to industrial wastes that
include mining pollution, the World Bank has estimated that the toxic
intensity in Vietnamese watersheds will increase by 14.2 percent annually
if adequate regulatory pollution prevention controls are not
implemented.71
B. Vietnam’s Environmental Framework in the Context of Mining and
Water Quality
Vietnam’s shift to environmental regulation and compliance began
in 1992 when the first environmental agency, the Ministry of Science,
Technology, and the Environment (“MOSTE”), was established.72
Shortly
thereafter, the LEP was passed,73
followed by a government directive to
strengthen environmental protection during the industrialization and
modernization of the country74
—the first environmental directive set forth
in Vietnam.75
Also around that time, the Vietnamese Constitution
http://ehp.niehs.nih.gov/120-a424/.
67 Reducing Mercury Pollution from Artisanal and Small-Scale Gold Mining,
U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/international/toxics/asgm.html. (last
visited Feb. 4, 2014). See also Schmidt, supra note 66.
68 Mercury: Human Exposure, U.S. ENVTL. PROT. AGENCY,
http://www.epa.gov/hg/exposure.htm#3 (last visited Feb. 4, 2014).
69 Global Mercury Assessment Ch. 5, UNITED NATIONS ENVIRONMENT
PROGRAMME, http://www.chem.unep.ch/mercury/Report/Chapter5.htm (last visited Feb.
4, 2014).
70 THE SOCIALIST REPUBLIC OF VIETNAM, supra note 46, at 7.
71 DARA O’ROURKE, COMMUNITY DRIVEN REGULATION: BALANCING
DEVELOPMENT AND THE ENVIRONMENT IN VIETNAM 40 (2004).
72 History of the Vietnam Environment Administration, VIETNAM ENV’T. ADM.,
(Jul.11, 2009), http://vea.gov.vn/en/aboutvea/history/Pages/history-achievements.aspx.
73 Law on Environment Protection, (1993) (Viet.), available at
http://faolex.fao.org/docs/pdf/vie4890.pdf.
74 See VIETNAM ENV’T. ADM., supra note 72.
75 Id.
36 Asian-Pacific Law & Policy Journal Vol. 15:1
articulated environmental protections.76
The Vietnamese Constitution
presents the people of Vietnam’s societal responsibilities to the
environment such as ownership of the land, water, and other natural
resources,77
and prohibits “all acts” that result in the depletion or
destruction of the environment by individuals, organizations, and the
government.78
Three statutes that relate to the topic of mining and water quality
are the LEP, the 2010 Mineral Law, and the LWR. These laws attempt to
align with the larger environmental goals of the Vietnamese Constitution,
but also attempt to balance environmental protection with economic
development within the context of national security.
1. Vietnam Law on Environmental Protection
The predominant environmental law in Vietnam is the Law on
Environmental Protection (“LEP”), which was first passed by the National
Assembly on December 27, 1993 and came into effect on January 10,
1994.79
It was the first law passed in Vietnam specifically to protect the
environment.80
Its current corresponding agency, the Vietnam
Environment Administration (“VEA”), was established under the Ministry
of Natural Resources and Environment (“MONRE”) in 2008 to “advise
and assist the Minister of MONRE in the field of
environment management and to provide public services in compliance
with the laws.”81
The LEP sets targets similar in language to the Constitution by
issuing a sweeping responsibility to organizations, state agencies,
households, and individuals to protect the environment.82
To prevent
76
1992 CONSTITUTION OF THE SOCIALIST REPUBLIC OF VIETNAM, AS AMENDED
2001 (Oct. 10, 2002), available at http://vietnamembassy-
usa.org/news/2002/10/constitution-1992-amended-2001 / [hereinafter VIETNAM CONST.].
The Vietnamese Constitution is aspirational in nature and not a regulatory document per
se, serving as a general guide of the country’s plans for the future. Brian J.M. Quinn,
Legal Reform and Its Context in Vietnam, 15 COLUM. J. ASIAN L. 219, 223-224, (2002).
77 VIETNAM CONST., art. 17-18.
78 Id., art. 29.
79 Law on Environment Protection, (1993) (Viet.), available at
http://faolex.fao.org/docs/pdf/vie4890.pdf.
80 See VIETNAM ENV’T. ADM., supra note 72.
81 Introduction and Tasks of the Vietnam Environment Administration, VIETNAM
ENV’T. ADM., (Dec. 7, 2012),
http://vea.gov.vn/en/aboutvea/FunctionsandTasks/Pages/Introduction-of-Functions-and-
Tasks-of-the-Vietnam-Environment-Administration.aspx.
82 Compare LEP art. 2 (“This Law applies to state agencies, organizations,
households and individuals in the country”), with VIETNAM CONST., art 29 (“All State
offices, armed forces units, economic establishments, social organisations and every
citizen have to observe State regulations on the appropriate utilisation of natural
2013 Whitney 37
damage to the environment, the LEP requires all investment properties to
submit Environmental Impact Assessments (“EIA”) before construction
commences, and calls for stringent requirements within the EIA that serve
to protect the environment by predicting environmental effects.83
The LEP
places remedial responsibility on the polluter, as “[o]rganizations,
households or individuals that cause environmental pollution or
degradation shall have to remedy such environmental pollution or
degradation, pay compensation therefor and bear other liabilities as
provided for by law.”84
These are positive efforts toward conservation. However, the
LEP’s purpose is juxtaposed against other socio-economic concerns
contained within the document, which has the effect of weakening the
intent of the law. To illustrate, the LEP provides that “[e]nvironmental
protection must be in harmony with economic development and assure
social advancement for national sustainable development.”85
Here, the law
seems to value economic and social development above environmental
protection by requiring environmental protection measures to harmonize
with societal facets. The law also categorizes environmental protection in
terms of a policy that supports national security, saying that “protection of
the national environment must be connected with protection of the
regional and global environment.”86
Thus, environmental protection is
viewed as a policy that must conform to economic advancement and
national security, not with the main goal of protecting the health of the
environment, and by extension the citizenry.
This focus on economics in statutory construction is
understandable, given Vietnam’s comet-like trajectory in the free market
and its great economic advances since the implementation of Doi Moi.
Countries such as Vietnam that are in the midst of dramatic economic
change become so engaged in the industrialized phase of evolution that
they are oftentimes forced to sacrifice the environment for economic
gains.87
As a result of Vietnam’s frantic pace of industrialization, its
resources and on environmental protection.”).
83 LEP
art. 17.
84 Id. art. 4(5).
85 Id. art. 4(1).
86 Id.
87 The United States experienced this phenomenon and did not pass
environmental legislation directed toward water quality until the Clean Water Act in
1972. See The Clean Water Act: Protecting and Restoring Our Nation’s Waters, U.S.
ENVTL. PROT. AGENCY, http://water.epa.gov/action/cleanwater40/cwa101.cfm (last
updated Sept. 20, 2012). China is presently struggling with the effects of industrial
pollution in its waterways. See Joseph Kahn and Jim Yardley, As China Roars, Pollution
Reaches Deadly Extremes, N.Y. TIMES, (Aug. 26, 2007),
http://www.nytimes.com/2007/08/26/world/asia/26china.html?pagewanted=all&_r=0 .
38 Asian-Pacific Law & Policy Journal Vol. 15:1
political and legal structures have been challenged by corruption and
disorganization,88
and by a shortage of scientific, technological, financial,
and human resources to carry out meaningful environmental reform.89
Due
to these and other issues, international investors have expressed concerns
that the investment climate in Vietnam has deteriorated.90
This
development may negatively affect the political will to allocate already
slim financial resources to the protection of the environment.
In view of these problems, Vietnam’s Prime Minister characterized
Vietnam’s environmental regulatory framework as unresolved and weak91
and stated that “the legal framework is incomplete…[t]he system of
environmental management agencies remains inadequate.”92
International
entities, such as the United Nations Economic and Social Commission for
Asia and the Pacific (“UNESCAP”),93
cite jurisdictional overlap between
ministries, inconsistencies between central government laws and
provincial laws, and a lack of clear rules and regulations on procedural
requirements for enforcement as a few of the problems hindering
meaningful environmental protection.94
The United Nations states that
“[t]here is a critical need for the LEP to be harmonized with other laws
[that] have a direct or indirect impact on environmental protection.”95
In
light of these criticisms, Vietnam’s efforts to quell the environmentally
destructive forces of industrial growth resemble a Sisyphean task.
2. Vietnam’s Mineral Law of 2010
Vietnam’s minerals policy began during Doi Moi and in 1987
Vietnam passed the Law on Foreign Investment,96
which opened the door
88
See Quinn, supra note 76, at 224.
89 THE SOCIALIST REPUBLIC OF VIETNAM, supra note 46, at 7.
90 2013 Investment Climate Statement- Vietnam, UNITED STATES DEPARTMENT
OF STATE, (Feb. 2013), http://www.state.gov/e/eb/rls/othr/ics/2013/204760.htm. (stating
that problems that stunt investor confidence include “corruption and a weak legal
infrastructure, financial instability, inadequate training and education systems, and
conflicting and detrimental bureaucratic decision-making.”).
91 THE SOCIALIST REPUBLIC OF VIETNAM, supra note 46, at 6.
92
Id.
93Role of State in Implementing Environmental Protection Under the Vietnamese
Law on Environmental Protection, ESCAP VIRTUAL CONFERENCE (last updated Oct. 29,
2003), http://www.unescap.org/drpad/vc/orientation/legal/2D_std_vn3.htm.
94
Id.
95 Id.
96 Law on Foreign Investment in Vietnam, No. 18/2000/QH10, art. 67 (as
amended June 9, 2000) (Viet.),
www.vietnamlaws.com/freelaws/LFIna12Nov96(aa9Jun00)[I1].pdf. The law was
designed to “expand economic co-operation with foreign countries and to support the
2013 Whitney 39
to multi-national mining companies. The Mineral Law originally passed in
1996 and has been amended twice, most recently in November 2010.97
The MONRE is the central entity tasked with organizing the
mining and exportation of minerals, as well as controlling and revoking
mining licenses, especially those relating to acreage, duration, processing,
production, safety, and environmental protection.98
Each province has a
local satellite office called the Department of Natural Resources and
Environment (“DONRE”), which is responsible for mineral resource
management.99
The 2010 Mineral Law pivoted away from specific environmental
conservation policy language as set out in the original Minerals Law of
1996. The 1996 version articulated a policy for rational, economic, and
efficient management of mineral resources for the purpose of “satisfying”
industrialization, modernization, and sustainability, maintaining national
defense and security, and “protect[ing] the environment and ecology.”100
Article 3, the policy section of the 2010 Mineral Law, now frames mineral
development within the context of socio-economic, national defense, and
security purposes with no mention of environmental protection.101
In spite of that particular omission, the 2010 Mineral Law does
designate an entire section to “Protection of Environment, and Use of
Land, Water and Infrastructure in Mineral Activities”102
that directs
mining entities to use environmentally-friendly equipment and materials,
minimize any adverse impact on the environment, and rehabilitate the
cause of modernization, industrialization and development of the national economy on
the basis of the efficient exploitation and utilization of national resources” and to “make
provisions for foreign direct investment in Vietnam.” Id., Prologue.
97
See Mineral Law, Prologue.
98 Ma Dinh Duc Truong, Institutional and Regulatory Context of Natural
Resource Management in Vietnam, CONSULTANT REPORT SUBMITTED TO DANIDA 22-23
(2007), available at
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CC4QFj
AA&url=http%3A%2F%2Fwww.ciem.org.vn%2Fhome%2Fen%2Fupload%2Finfo%2Fa
ttach%2F11961578301690_WorldClient1.doc&ei=c22CUq-
4EcnjsAS6voG4BQ&usg=AFQjCNEYXs-syh8jILwxbx-
p4BkY6I329w&sig2=oswKS8riy3EQ_GnBociUkg&bvm=bv.56343320,d.cWc.
99 Id. at 23.
100 Mineral Law, No. 60/2010/QH12, Prologue (Mar. 20, 1996) (Viet.),
www.vietnamlaws.com/freelaws/MineralLaw20Mar96[X1051].pdf [hereinafter 1996
Mineral Law].
101
Mineral Law art. 3.1. See also Decree No. 15/2012/ND-CP, Art. 6, ¶1-3
(March 9, 2012)(Viet.), available at http://faolex.fao.org/docs/pdf/vie114602.pdf
(directing MONRE to further a plan to prevent impacts of toxic minerals on the
environment and the people).
102 Mineral Law art. 30.1.
40 Asian-Pacific Law & Policy Journal Vol. 15:1
environment according to law.103
This section also collaborates with the
Law on Water Resources to frame proper regulatory steps for industry.104
For example, the 2010 Mineral Law addresses both the usage of water and
discharge of mining wastes by stating that mining companies are “entitled
to use water resources in accordance with the Law on Water
Resources,”105
but the “sources, volumes of and methods of using water
and the release of waste water” during mining activities must be “specified
in the exploration proposal, investment project, and mine design.”106
There
is no mention of water quality or pollutants in this provision; however,
mining companies are required to pay for all expenses related to the
protection, reconstruction, or rehabilitation of the environment.107
Those
solutions and costs of protection, reconstruction, or rehabilitation must be
identified in the investment project, the EIA report, and the “written
undertaking on environmental protection” that is approved by the relevant
authority.108
The 2010 Minerals Law also requires that escrow deposits for
rehabilitation and reconstruction of the environment be arranged before
mining commences.109
These are solid environmental policy intentions that articulate a
balancing interest between protections and development. However, the
2010 Minerals Law does little to present a clear and detailed policy to
stem pollution in waterways caused by mining discharges. Where the
LWR is mentioned, it is in broad brushstrokes that do not address the
realities of chemical contamination nor its impact on human and biological
health. While linking to the LWR is a first step in harmonizing laws, it is
not clear how this will translate into actual implementation and
enforcement in reality.
3. Vietnam’s Law on Water Resources
The Law on Water Resources (“LWR”) was promulgated on May
20, 1998 and passed in January 1999.110
The implementation guidance
decree was promulgated on December 30, 1999.111
The Ministry of Water
103
Id. arts. 30-33.
104 Id. arts. 4.1, 30.1.
105 Id. art. 32.1.
106 Id. art. 32.2. The Law on Land, No. 13/2003/QH11 (Nov. 26, 2003) (Viet.)
relates directly to the Law on Minerals in the planning and design phases of mine
development. Article 102 of the Law on Land addresses surface water exploitation and
use, and Article 94 regulates land use for mineral activities.
107 Mineral Law art. 30.2.
108 Id.
109 Id. art. 30.3.
110 See LWR, Prologue.
111 See Decree No. 179/1999/ND-CP (Dec. 30, 1999) available at
2013 Whitney 41
Resources crafted the LWR, which is now part of the Ministry of
Agriculture and Rural Development (“MARD”). The law’s corresponding
council, the National Water Resources Council, was created in December
of 1999 and advises the government on national and international water
policy issues, as well as settles water disputes among provinces, cities, and
agencies.112
At the same time, river basin planning management
organizations were created to help manage the Mekong and Red River
basins.113
The LWR provides a relatively broad protective framework for
water resource protection, but it falls short in matching policy goals. On
the one hand, the LWR states that “[w]ater is a natural resource of special
importance, the essential component of life and the environment,”114
and
water is “owned” by the people of Vietnam, under the management of the
State,115
delegated to the People’s Councils and People’s Committees.116
On the other hand, the government allows industry the opportunity to
disregard environmental provisions of the LWR if another law allows
water “exploitation” in a certain water body.117
This proves problematic,
as enforcement regulations and policies are essentially trumped by other
laws that encourage development, and real-life protection becomes a
circular process that has no real teeth.
In another example of contradictory policy goals, the LWR
provides that industry operations that exploit and use water “must save
water,”118
use running water, re-use water, and “not cause pollution”
affecting the water resource.119
Further, they must treat the water before
returning it back to its source.120
At the same time, the law gives polluters
compensatory rights if the discharge location changes,121
and they can
http://www.wepa-db.net/policies/law/vietnam/decree_no179_4.htm.
112 Vietnam: Water Law and Related Legislation for Implementation of IWRM
(#112), Global Water Partnership Toolbox Integrated Water Resource Management
[hereinafter “Global Water Partnership”] (2008), http://www.gwp.org/en/ToolBox/CASE-
STUDIES/Asia/Vietnam-Water-Law-and-related-legislation-for-implementation-of-
IWRM-112/.
113 Id.
114 LWR, Prologue.
115 Id. art. 1.1.
116 Id. art. 4.4.
117 Id. art. 24.2(d).
118 Id. art. 28.1.
119 Id. art. 28.1.
120 Id. art. 28.2.
121 Id. art. 19.1(a).
42 Asian-Pacific Law & Policy Journal Vol. 15:1
initiate lawsuits on acts that infringe upon their rights to pollute.122
This
highlights the desire of the government to accommodate industry, but in a
way that weakens the environmental provisions as set out in the same law.
Despite confusing intentions within the LWR, it does define
organizational measures: agencies that manage water resources at the state
level must inform related branches at lower levels of the capacity of water
resources based on river basins and actual usage potential to determine the
calculation of water uses.123
These branches are responsible for adjusting
the uses to the actual water body capacity.124
The People’s Committees at
provincial levels organize inventories, evaluations, and surveys of water
resources in their jurisdictions.125
Industrial discharge regulation, water resource extraction,
exploitation, and utilization are implemented by government decrees and
the LWR.126
The LWR broadly targets chemical discharges from
agriculture, aquaculture, mining, and industry,127
declaring such discharges
“must not cause pollution of the water source.”128
Toxic and untreated
wastewater discharges into water sources that do not meet permissible
water quality standards are “forbidden.”129
Industry and mining operations
“must not discharge” unprocessed wastewater, and processed wastewater
must be up to the permissible standards for the water body.130
Thus, the
LWR states a clear policy intent to protect water quality.131
122
Id. arts. 19.1(b), 69.
123 Loan, supra note 22, at 33 (citing Government Decree No. 179/1999/ND-CP
(Dec. 30, 1999) (Viet.)). “River basin management” is a term that is used in Integrated
Water Resource Management (IWRM), which is a process to manage the uses and
development of water bodies, including rivers, streams, lakes, wetlands, and the ocean,
and takes into account protection of the affected environment as well as socio-economic
interests. That Vietnam has incorporated such language within the Law on Water
Resources is indicative of the commitment of certain factors within the government to
develop the country’s water resources sustainably. See generally Integrated Water
Resources Management IWRM, UNITED NATIONS,
https://www.un.org/waterforlifedecade/iwrm.shtml. (last visited Feb. 4, 2014).
124
Id. at 33.
125 Id. at 59-60.
126 Id. at 36 (citing Government Decree No. 149/2004/ND-CP (July 27, 2004)
(Viet.); MINISTRY OF NATURAL RESOURCES AND THE ENVIRONMENT (Circular No.
02/2005/TT-BTNTM (June 25, 2005) (Viet.)).
127 LWR art. 15.
128 Id. art.15(1).
129 Id. art. 13.
130 Id. art. 15.2.
131 In addition to the LWR, a non-exhaustive list of laws, decrees, decisions, etc.
that relate to water quality effluent standards and water quality protection can be found
here: http://www.wepa-db.net/policies/measures/currentsystem/vietnam.htm.
2013 Whitney 43
Permits are required in order to discharge toxics and wastewater
into water bodies and are allocated to accommodate water quality
standards.132
The LWR stipulates that entities that use and exploit surface
and groundwater resources must apply for permits except for domestic
use, or water already assigned or leased according to the LWR or other
laws.133
The MONRE distributes permits and the People’s Committees
manage and oversee these permits.134
Permits are valid for three to five
years.135
Mining entities that want to discharge wastewater require a permit
that is based on the water body’s discharge capacity.136
Dischargers are
obligated “to process wastewater in order to reach the permissible criteria
before discharging wastewater” into the water body,137
to pay for damage
if they violate proscriptions on the discharge of wastewater, to pay for the
issuance of the permit, and to pay for discharge waste into water
sources.138
These measures work to support governmental action and represent
a willingness on the part of the government to articulate a policy that
protects water quality from mining pollution. However, the law is written
loosely in order for lower level bureaucrats to have more discretion in
implementation and enforcement,139
in turn, leaving more room for
corruption and arbitrary decisions within the permitting process. Part of
the problem is a lack of funding, as the government has not allocated the
financial resources necessary to develop sound water protection
regulations, and so has relied on international assistance and partnerships
with NGOs for what it has accomplished so far.140
Thus, the degree of
domestic political commitment to water quality protection that is needed
for sound policy and enforcement is underdeveloped and falls short of the
greater ideals set out in policy and legislation.
132
Loan, supra note 22, at 36. Permits for wastewater discharge into water
bodies, exploitation, utilization and extraction and utilization is regulated by Decree No.
149/2004/ND-CP, (July 27, 2004) (Viet.) and MONRE’s Circular No. 02/2005/TT-
BTNTM, (June 24, 2005) (Viet.).
133 LWR art. 24.1-24.2.
134 Id. art. 18.
135 Loan, supra note 22, at 37 (citing Government Decree No. 179/1999/ND-
CP).
136 LWR arts. 18.1-18.2.
137 Id. art. 19.2 (a).
138 Id. art. 19.2(b).
139 See Quinn, supra note 76 at 223-224.
140 JOHN PICKFORD, WATER, ENGINEERING, AND DEVELOPMENT CENTRE
CONFERENCE, REACHING THE UNREACHED: CHALLENGES FOR THE 21ST CENTURY 31-33
(1996).
44 Asian-Pacific Law & Policy Journal Vol. 15:1
C. Supporting Programs to Protect the Environment and Water
Quality
In support of legislative documents, Vietnam has instituted
initiatives to address environmental issues that assist or complement
protective regulations. Examples include environmental monitoring, the
National Target Program for Clean Water and Environmental Hygiene in
Rural Areas,141
and the Orientation for the Development of Urban
Drainage in Vietnam Up to the Year 2020.142
The LEP sets the policy framework for an environmental
monitoring system in order to create measurable environmental standards
throughout the country.143
As of 2002, the National Environmental
Monitoring Network has twenty-one stations based in forty-five provinces
monitoring 250 pollution hot spots in cities, industrial zones, and
ecologically sensitive areas for the quality of water, air, coastal areas,
noise, land, acid deposition, radioactivity, and indoor working
environments.144
The goal is to establish one sampling station in every
province where data is collected every six months by the Office of Data
and Information under the Vietnam Environmental Protection Agency and
reported to the Department of the Environment, which publishes the
annual State of the Environment Report for the National Assembly.145
In
2010, the Center for Environmental Monitoring was created as a
subsidiary body under MONRE to organize, monitor, and report
environmental data, as well as implement conservation plans.146
In
addition, the National Hydrometeorology Center, the Department of Water
141
Decision No.104/2000/QD-TTg (August, 25, 2000) (Viet.),
http://laws.dongnai.gov.vn/1991_to_2000/2000/200008/200008250002_en/lawdocument
_view. The goal of the program is for all rural people to have access to clean 60 liters of
water per person every day, and hygienic latrines, by 2020 by protecting surface and
underground water sources from pollution generated from livestock and micro-industry in
villages. Id.
142 Decision No. 35/1999/QD-TTg (Mar. 5, 1999) (Viet.)),
http://laws.dongnai.gov.vn/1991_to_2000/1999/199903/199903050003_en/lawdocument
_view. The goal of the program is to establish drainage systems for rural communities, to
assist in preventing pooling during the rainy seasons, and to prevent pollution from
industry and domestic uses from contaminating fresh water supplies. Id.
143 See generally LEP.
144 Water Quality Monitoring Systems: Vietnam, WATER ENV’T P’SHIP IN ASIA
2002, http://www.wepa-db.net/policies/enforcement/monitoring/vietnam.htm.
145 Id.
146 Decision No. 132/20067QB-TTg (Aug. 20, 2010) (Viet.),
http://vea.gov.vn/en/aboutvea/UnitsunderVEA/Pages/CentreforEnvironmentalMonitoring
.aspx.
2013 Whitney 45
Resource Management, the Ministry of Fisheries, the Ministry of Health,
and MARD all monitor surface water for specific mandates.147
Over time, Vietnam has partnered with international institutions
and governments to construct strategies and programs aside from
legislation to protect water quality. Both the National Target Program for
Clean Water and Environmental Hygiene in Rural Areas148
and the
Orientation for the Development of Urban Drainage in Vietnam Up to the
Year 2020149
have incorporated best business practices to improve water
quality. Additionally, the National Strategy on Environmental Protection
until 2010, Orientation Towards 2020, and the National Strategy on Water
Resources to 2020 were created to end over-exploitation and
contamination of water resources and the discharge of toxic chemicals
from industry and agricultural production into water bodies without
permission by relevant authorities.150
These programs have helped direct
attention toward conservation, and have also opened the door to
international capacity building and information-sharing.
D. Enforcement
The Vietnamese government has several enforcement mechanisms
in place to meet legislative and regulatory provisions for environmental
and water quality protection such as the Environmental Crime Prevention
and Fighting Police Department,151
the environmental protection fee,152
147
The WORLD BANK, MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT,
AND DANIDA, WATER QUALITY IN VIETNAM, WITH A FOCUS ON THE CAU, NHUE-DAY,
AND DONG NAI RIVER BASINS, VIETNAM ENVT’L. MONITOR 62 (2006), available at
http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2007/07/26/00031060
7_20070726124200/Rendered/PDF/404180VN0Env0M19190001PUBLIC1optmzd.pdf.
(last visited Feb. 4, 2014).
148 VN Works on Rural Clean Water and Environmental Hygiene, VIETNAM
ENVTL. PROTEC. ADMIN. (July 2, 2012),
http://vea.gov.vn/en/laws/LegalDocument/Pages/VN-works-on-rural-clean-water-and-
environmental-hygiene-.aspx.
149 Decision No. 35/1999/QD-TTg (March 5, 1999),
http://laws.dongnai.gov.vn/1991_to_2000/1999/199903/199903050003_en/lawdocument
_view.
150 Decision No. 256/2003/QD-TTg (Dec. 2, 2003) (Viet.),
http://lawfirm.vn/?a=doc&id=1661; Prime Minister’s Decision No. 81/2006/QD-TTg
(Apr. 14, 2006) (Viet.)),
http://vea.gov.vn/en/laws/LegalDocument/Pages/DECISIONNo642003QD-
TTgOFAPRIL22,2003.aspx.
151 Vietnam Unveils Environmental Police Department, TALKVIETNAM.COM,
(March 7, 2007), http://talkvietnam.com/2007/03/vietnam-unveils-environmental-police-
department/#.UTjwQo5K7ao.
152 Improving the Institutional Capacity for Water Pollution Control in Vietnam,
THE WORLD BANK (Aug. 2010),
46 Asian-Pacific Law & Policy Journal Vol. 15:1
environmental impact assessments,153
and the natural resource tax.154
While these mechanisms are a necessary and crucial part of sound
ecological policy, they fall short in their designed purposes due to the lack
of political will and judicial experience in environmental matters.
1. The Environmental Crime Prevention and Fighting
Police Department – “C49”
In 2006, MONRE established the Environmental Crime Prevention
and Fighting Police Department, known as “C49,”155
under the Ministry of
Public Security to target environmental violations throughout Vietnam.156
C49 is part of the general police department but is tasked with
“perfecting” the environmental legal framework, guiding the public and
entities on environmental laws and regulations, and fighting against
environmental violations.157
Unfortunately, this program has lost traction
since its inception, perhaps due to a lack of cooperation between the
Environmental Police Department and the Vietnam Environment
Administration.158
This is evidenced by the forty-three percent increase in
environmental violations from 2009 to 2010, which translates to roughly
6,500 violations.159
The increase in environmental violations in recent years could also
be due to the lack of funds to support an enforcement arm for
environmental protection. In order to finance environmental protection,
the Vietnamese government, using funding from the World Bank, created
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEX
T/VIETNAMEXTN/0,,contentMDK:22668967~menuPK:387571~pagePK:2865066~piP
K:2865079~theSitePK:387565,00.html (citing Government Decree No. 67/2003/ND-CP
(April 14, 2006) (Viet.)).
153 See LEP arts. 17-18.
154 Loan, supra note 22, at 24 (citing No 05/1998/PL-UBTVQH10 (May 20,
1998) (Viet.)).
155 Police Create New Green Squad, VIETNAM NEWS, (Mar. 14, 2007),
http://vietnamnews.vn/opinion/162718/police-create-new-green-squad.html. See also
Strengthening Cooperation Between the Vietnam Environment Administration and the
Environmental Police Department, VIETNAM ENVTL. ADMIN. (July 11, 2010),
http://www.vea.gov.vn/en/news/news/Pages/StrengtheningcooperationbetweentheVietna
mEnvironmentAdministrationandtheEnvironmentalPoliceDepartment.aspx.
156 VIETNAM NEWS, supra note 155.
157 Vietnam Unveils Environmental Police Department, TALKVIETNAM.COM,
(March 7, 2007), http://talkvietnam.com/2007/03/vietnam-unveils-environmental-police-
department/#.UTjwQo5K7ao.
158 VIETNAM NEWS, supra note 155.
159 Environmental Violations Soar 43%, MINISTRY OF NATURAL RESOURCES AND
ENVIRONMENT, VIETNAM ENVIRONMENTAL ADMINISTRATION (Oct. 1, 2011),
http://vea.gov.vn/en/laws/LegalDocument/Pages/Environmentalviolationssoar43.aspx.
2013 Whitney 47
the Vietnam Environmental Protection Fund under MONRE in 2003.160
The fund is augmented by the state budget, copious low-interest loans,161
grants, contributions commissioned by “organizations and individuals at
home and abroad,”162
environmental fees collected from industries that
essentially allow them to pay to pollute,163
and fines from industries and
individuals for environmental damages in accordance with the law.164
Fines for violations in 2009 were capped by decree to VND 500
million, or approximately US $27,000, which is not a significant deterrent
for the majority of mining companies to stop discharging toxic waste into
the environment.165
Due to the cap, the government issued fines totaling
only VND 17 billion, or US $895,000, for the approximately 3,000
violations occurring in the first six months of 2010,166
and C49 only
brought legal proceedings against 101 persons in seventy two cases.167
In
many cases, it is financially beneficial to simply pay the fines and
continue polluting.
Although well-intentioned, the pollution fine administered by C49
lacks enforcement power. In a declassified cable posted Sept. 6, 2007 on
WikiLeaks from the U.S. Embassy in Vietnam, it was revealed that C49
does not operate effectively due to misunderstanding of the mechanics of
environmental enforcement, lack of investigatory training, and lack of
160
Function and Mission, VIETNAM ENVIRONMENTAL PROTECTION FUND,
http://www.vepf.vn/Overview-TaskAndRole.
161 Operating Result, VIETNAM ENVIRONMENTAL PROTECTION FUND,
http://www.vepf.vn/FormOfOperation-OperatingResult.
162 Id.
163 Operational Capital Sources of VEPF, VIETNAM ENVIRONMENTAL
PROTECTION FUND, http://www.vepf.vn/Overview-CapitalResource.
164 Id. The fines coincide with provisions in the LWR stating that illegal uses of
water are “strictly forbidden.” LWR art. 9. Those who cause harm to the water resource
shall be disciplined, fined, or shall suffer criminal punishment. LWR arts. 71.1, 71.2.
Mineral exploitation also requires a “deposit” which is taken up front before the project
commences, in order to pre-pay for environmental damage done during exploitation. “As
of 31/12/2012, the Vietnam Environmental Protection Fund has received and collection
[sic] recovery margin improvement in the mining environment for 111 units, with 148
projects; collected amounts receive collateral reform environmental restoration in mineral
exploitation is 64.3 billion VND.” Deposit to Recover the Mineral Exploitation,
VIETNAM ENV’T PROTEC. FUND, http://www.vepf.vn/FormOfOperation-
DepositToRecoverTheMineralExploitation .
165 Decree No. 117/2009/ND-CP (Dec. 31, 2009) (Viet.),
http://moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=107
06 .
166 Environmental Violations Soar, VIETNAM NEWS (June 21, 2010),
http://vietnamnews.vnagency.com.vn/Environment/200731/Environmental-violations-
soar.html
167 Id.
48 Asian-Pacific Law & Policy Journal Vol. 15:1
judicial experience in environmental regulations.168
The cable also
described the judiciary’s insufficient experience in environmental
jurisprudence and the need for an environmental court.169
The cable closes
by asking for assistance from the United States in refining these issues
through the Environmental Protection Agency and the Department of
Justice.170
2. Environmental Impact Assessments
An Environmental Impact Assessment (“EIA”) is a precautionary
tool used to measure the potential environmental impact of a development
or activity before its commencement. They are not enforcement
mechanisms per se, but they play an important role in the enforcement
process. By scientifically documenting a baseline for the present
conditions of the surrounding water quality and ecology, an EIA can
predict environmental and societal impacts.171
Vietnam borrowed the EIA
system from several developed countries, including the United States. The
EIA’s purpose in Vietnam’s environmental framework is to help determine
the “probable environmental consequences” for government agency
projects and to “broaden and strengthen the role of foresight in
governmental planning and decision making.”172
In Vietnam, EIAs have been a requirement since the inception of
the LEP in 1994. The LEP contains a large section on the implementation
and regulatory requirements of EIAs and requires that all investment
properties submit an EIA report to the appropriate agency for that
project.173
Under the 1996 Minerals Law, a mining license could not be
obtained without submission of a Vietnam EIA report.174
The new
Minerals Law also requires mining companies to include solutions and
168
EMBASSY OF THE UNITED STATES (HANOI, VIETNAM), VIETNAM’S NASCENT
ENVIRONMENTAL POLICE DEPARTMENT LACKS CAPACITY TO FULFILL MANDATE, Cable
07HANOI1706 (Sept. 26, 2007 15:57), ¶¶ 7, 8, available at
http://wikileaks.org/cable/2007/09/07HANOI1706.html.
169 Id. ¶ 9.
170 Id.
171 Principles of Environmental Impact Assessment Best Practice, INT’L ASS’N
FOR IMPACT ASSESSMENT, 2.1 (1999), http://www.iaia.org/publicdocuments/special-
publications/Principles%20of%20IA_web.pdf?AspxAutoDetectCookieSupport=1
172
Brent Doberstein, EIA Models and Capacity Building in Viet Nam: An
Analysis of Development Aid Programs, 24 ENVTL. IMPACT ASSESSMENT REV. 283, 287
(Apr. 2004), available at http://faculty.mu.edu.sa/public/uploads/1338109347.0339EIA-
9.pdf.
173 LEP arts. 17-18.
174
See 1996 Mineral Law art. 53.1(b). The LEP requires facilities to prepare
environmental impact reports, including monitoring and mitigation plans. LEP art. 17.
2013 Whitney 49
costs of protection, as well as reconstruction or rehabilitation plans within
EIAs.175
Additionally, a mining project must submit an environmental
restoration plan and must deposit money for that purpose into a
government fund.176
In theory, EIAs serve a vital role in environmental and water
quality protection by objectively assessing the potential impacts a
proposed project may have on the environment, which is especially
important in developing countries. In practice in Vietnam, EIAs are not as
ubiquitous as in other developing countries.177
Vietnam has taken
substantial foreign aid to build capacity to strengthen and enforce EIA
provisions and carry out EIA objectives.178
However, it is not clear how
successful the effort has been. Critics point out that EIAs only meet the
minimal government requirements, that environmental issues are only
mentioned in general terms, that provisions are not monitored closely, and
that rehabilitation projects and environmental restoration plans are not
always included in the EIAs.179
Moreover, public participation is a key
element in the EIA planning process, and in many developing countries
like Vietnam, public participation and involvement are “unacceptable” or
forbidden under the current political system.180
Countries such as Vietnam
with centralized, rather than participatory, governance consider EIAs
inefficient, unnecessary, time-consuming, and politically dangerous.181
Because of these factors, EIA execution and enforcement in Vietnam is not
up to full speed.
175
Mineral Law art. 30.2.
176 KATE M. LAZARUS, IN SEARCH OF ALUMINUM: CHINA’S ROLE IN THE
MEKONG REGION 29 (2009), http://www.iisd.org/tkn/pdf/in_search_of_aluminum.pdf.
177 Doberstein, supra note 172, at 285.
178 Id. at 287.
179 See LAZARUS, supra note 176, at 26-32.
180 Doberstein, supra note 172, at 306.
181 Brent Doberstein, Environmental Capacity-Building in a Transitional
Economy: the Emergence of EIA Capacity in Vietnam, 21 IMPACT ASSESSMENT AND
PROJECT APPRAISAL 26 (Mar. 2003). Since the economic collapse in 2008 occurred,
Vietnam has struggled to maintain the same development pace, and critics charge that
“Vietnam, in short, has gone from global investment darling to poster child for
mismanagement. Too much money flowed into the economy over the past decade,
particularly following its ascent to the World Trade Organization in January 2007…The
country’s creaky communist institutions couldn’t absorb all the funds, leading to a
textbook instance of what economists call capital misallocation.” Rob Cox, Vietnam Is a
Bad Example to Newly Emerging Markets, REUTERS (Oct. 1, 2012),
http://blogs.reuters.com/breakingviews/2012/10/01/vietnam-is-a-bad-example-to-newly-
emerging-markets/
50 Asian-Pacific Law & Policy Journal Vol. 15:1
3. Natural Resource Tax
In accordance with the 1992 Constitution, the Standing Committee
of the National Assembly promulgated the Ordinance on Natural Resource
Tax on April 16, 1998, supplanting the 1990 version.182
The ordinance
places a tax on all individuals and organizations that exploit natural
resources, including water, except in cases where a Vietnamese company
in a joint venture with a foreign company makes capital contributions
under the Law on Foreign Investment.183
Natural resources that are the
subject of taxation include surface water and groundwater,184
natural
aquatic resources, natural mineral water and thermal water, as well as
metallic and non-metallic minerals, petroleum, gas, and products of
natural forests.185
In January of 2009, the Vietnamese government raised
the tax rate for minerals from two to four percent.186
It is not clear whether
the levied taxes are used to support environmental regulations, such as the
Vietnam Environment Protection Fund, but it may help deter for over-
exploitation and pollution.
II. THE PROBLEM OF COMPETING INTERESTS
Doi Moi set into motion policy measures that shifted central planning
to international business practices and trade, thus creating tension between
developers, business enterprises, and environmental enforcement arms of
the government. This push-pull tension is present in many sectors in
Vietnam, including the mining industry, and works to undermine
overarching environmental strategies and gains.
A. Vietnam’s Competing Interests: Economic Development and
Environmental Preservation
Vietnam has two competing policies that affect the nation’s waterways:
economic development and environmental protection. In transitional
countries, environmental protections are often considered impractical
luxuries that are not amenable to national, and indeed, individual
prosperity. Legal documents such as the Vietnamese Constitution and
182
Loan, supra note 22, at 24 (citing Ordinance No 05/1998/PL-UBTVQH10
(May 20, 1998) (Viet.)).
183 Id.
184 Id. (citing Resource Tax art. 2 and Government Decree No. 147/2006/ND-CP,
art. 2 (Dec. 1, 2006) (Viet.)).
185 Id. (citing Ordinance No 05/1998/PL-UBTVQH10 (May 20, 1998) (Viet.)).
186 Vietnam Raises Tax on Minerals Mining, REUTERS (Jan. 21, 2009),
http://uk.reuters.com/article/2009/01/21/vietnam-minerals-tax-
idUKHAN39472220090121; Corresponding Decision 05/2009/ND-CP (Jan, 19, 2009)
(Viet).
2013 Whitney 51
statutes espouse noble policies, but in practice do not represent actual
realities in government environmental enforcement or in society.187
Further, the vague and contradictory nature of these laws and
implementing regulations allow local officials “great discretion” to
routinely ignore the law.188
In turn, this “leaves the door open to
corruption” and corporate influence.189
One example illustrates this conflict: since the relatively recent
discovery of titanium deposits in the Central Highlands,190
the government
has taken a much more aggressive mining development trajectory. Prime
Minister Nguyen Tan Dung, speaking on behalf of the government and the
Communist Party, declared bauxite development in the Central Highlands
“a major policy of the party and the state,” and committed to generating
more than US $15 billion in bauxite and aluminum refining by 2025.191
Deputy Prime Minister Hoang Trung Hai articulated the government’s
position for bauxite development in this way: “Vietnam will not pursue the
bauxite mining plan at any cost,” but noted that economic opportunity
cannot be squandered.192
Dominant figures within Vietnamese society began to criticize the
government’s bauxite policy due to its location amidst a biodiversity
hotspot, ethnic villages, and coffee farms. National war hero and former
Deputy Prime Minister of Vietnam, General Vo Nguyen Giap, penned an
open letter calling on the government to halt bauxite mining projects in the
Central Highlands.193
Two Members of the National Assembly, Professor
Nguyen Minh Thuyet representing Langson Province, and Professor
Duong Trung Quoc representing Dongnai Province, criticized the project
as inadequate in technology and safety, and both called on the government
to wait until these issues were addressed.194
Such an outcry by elite
Communist Party members is rare and prompted Prime Minister Nguyen
Tan Dung to “hastily conven[e] a seminar on the environment” and
187
See Quinn, supra note 76, at 219, 222.
188
Id. at 219, 223-224.
189 Id.
190 New Titanium Reserves Found in Vietnam, NASDAQ ONLINE (Oct. 4, 2010),
http://www.nasdaq.com/article/new-titanium-reserves-found-in-vietnam-
cm38898#.UTnMFo5K7ao.
191 THE ECONOMIST, supra note 10.
192 Id.
193 General Vo Nguyen Giap’s Last Battle for the Highlands of Vietnam, THE
WEEK,(May 27, 2009), http://www.theweek.co.uk/politics/22763/general-vo-nguyen-
giaps-last-battle-highlands-vietnam.
194 Opposition Still Strong to Government Plans to Develop Bauxite Mines,
ASIANEWS.IT, (Nov. 4. 2010), http://www.asianews.it/news-en/Opposition-still-strong-to-
government-plans-to-develop-bauxite-mines-19904.html.
52 Asian-Pacific Law & Policy Journal Vol. 15:1
“[a]gree to scale back the development until a full assessment of the
possible environmental impact could be made.”195
Despite the back-and-
forth arguments between the Party leadership, the project was approved,
and the state-owned Viet Nam National Coal and Mineral Industries
Holding Corporation (“Vinacomin”) secured a $300 million loan from
Citibank in late 2012 for a bauxite mine and aluminum refinery in the
Central Highlands.196
In the face of such a polarizing project located in an
environmentally and culturally rich section of the country, Vietnam’s
government chose economic development over environmental
conservation despite the high economic and social costs of doing so.
Thus, Vietnam’s mining policy and conservation efforts do not
exhibit a true balancing of varying interests. The power and validity of
water pollution regulations within the Constitution and lesser documents
seems exiguous and in need of meaningful governmental review.
B. Conflicts in the Law
Vietnam’s environmental laws are ambitious and detailed but at
times contradictory because they conflict with other laws and
regulations.197
A partial list of legal contradictions includes any of the
following: (1) contradictions between the LWR and its secondary
regulations; (2) contradictions amongst water-related secondary
regulations; (3) conflicts between the Legislation on Water Resources and
other related laws and ordinances; and, (4) contradictions between the
Legislation on Water Resources and the Law on the Promulgation of
Legal Documents 2008.198
As a result, the quality of water resources has
dramatically decreased in recent years due to unregulated exploitation and
development carried out with little to no environmental planning or
oversight.199
Such disorganization makes it difficult to understand the
intent of a given regulation or law, organize tasks, and then implement
those tasks. Information between regulatory offices is limited, making it
difficult for officials at every level to be current on regulations and
laws.200
Because of this confusion, the Vietnamese government has left it
to the discretion of the investor-owner to know the law and self-regulate in
many instances.
195
THE WEEK, supra note 193.
196 Citibank Finances Vinacomin For Highlands Bauxite Project, VIETNAM
NEWS, (Nov. 15, 2012), http://vietnamnews.vn/Economy/232794/citibank-finances-
vinacomin-for-highlands-bauxite-project.html.
197 Loan, supra note 22, at 64.
198 Id. at 66.
199 Id. at 29.
200 See Quinn, supra note 76 at 219, 224.
2013 Whitney 53
These tangled interests and stakeholder objectives are in constant
tension with government officials who seriously desire to structure
development in a sustainable manner, which creates unpredictable results
for environmental health.201
As one NGO country representative stated:
When you look at environmental issues in Viet Nam, you
have to realize that it’s only within the last ten years that
environment even got on the agenda. Every country has
problems and every country is trying to achieve economic
growth. For most countries it is obvious how it will turn out
environmentally and economically….In Viet Nam it could
go either way. They could become another ‘tiger,’ or they
could fall off into some other kind of ecological disaster.202
Vietnam faces difficult choices if it wishes fully to develop its
legislatively-expressed ideal of a clean environment and healthy water
supply. Economic growth can be obtained at the same time environmental
laws are adequately enforced, but it will be a painful process to initiate
politically.
III. PROPOSED RESOLUTIONS TO CONFLICTS IN THE LAW
Political will begins with an active and engaged citizenry, but in
socialist countries such as Vietnam, open criticism of the government and
its policies is discouraged and often punished.203
Political will also
requires massive foreign investment, which is on the decline in
Vietnam.204
Reconciling these facts with reality, there are several solutions
geared toward reform that are necessary if the government is ever to give
environmental and water health the same level of attention and
consideration that it currently gives to economic growth and national
security.
Currently, Vietnam lacks sufficient political will and financial
resources to develop an effective water quality management and
enforcement framework. This has caused severe water pollution from
industry and unregulated mining pollution, which has compromised water
bodies in many areas across the country. Despite this underlying
challenge, there are several different means with which to improve the
country’s water quality with regard to mining discharges.
201
See Doberstein, supra note 181, at 29.
202 Id.
203 Vietnam: Crackdown on Critics Escalates, HUMAN RIGHTS WATCH, (Feb. 1,
2013), http://www.hrw.org/news/2013/02/01/vietnam-crackdown-critics-escalates.
204 THE WORLD BANK, supra note 29.
54 Asian-Pacific Law & Policy Journal Vol. 15:1
First, Vietnam would benefit from a thorough review and
classification of water protection management policies, laws, and
regulations. A starting point would be to amend the LWR to coordinate
responsibilities between authorities and ministries.205
The LWR should
connect to, and enhance, the Minerals Law and other relevant laws in
order to prohibit water pollution. In addition, Vietnam should implement a
system similar to the United States’ water quality standards under the
Clean Water Act, which imposes stringent effluent regulations in order to
preserve aquatic habitats and water quality.206
This is especially important,
since the country is mostly rural and relies heavily on fresh water for
farming.
Second, environmental protection advocates should encourage the
Vietnamese government’s current efforts and work with the government to
improve upon existing environmental protection laws. For example,
Vietnam is currently in the process of amending the LEP “to ensur[e]
cohesiveness and effectiveness between socioeconomic development and
environmental protection.”207
The intent to require EIAs during the
planning process for industrial projects that would affect important
waterways instead of during or after the construction phase is a positive
development.208
To further strengthen this component of protection, the
amended LEP should harmonize with the LWR in creating a framework
for water quality protection that focuses on widespread monitoring
systems.
Third, Vietnam should implement a zoning plan to protect socially
and ecologically important rivers and other water bodies that otherwise are
open to development. In other words, Vietnam should develop a zoning
regime that places the health of people and ecologically or culturally
sensitive environments, such as national parks or indigenous regions,
above corporate profits. For example, certain watersheds in Vietnam have
been designated for Integrated Watershed Resource Management
(“IWRM”),209
or the multiple-use method of sustainable water
205
THE WORLD BANK, ET AL., supra note 147, at 67.
206
See generally Clean Water Act, 33 U.S.C. §§ 1251 - 1387 (2006). Water
quality standards under the Clean Water Act are available at
http://water.epa.gov/scitech/swguidance/standards/.
207 Amending Environment Protection Law, VIETNAM (Sept. 20, 2013),
http://en.vietnamplus.vn/Home/Amending-Environmental-Protection-
Law/20139/39140.vnplus.
208 Id.
209 The Global Water Partnership's definition of IWRM states: “IWRM is a
process which promotes the co-ordinated development and management of water, land
and related resources, in order to maximize the resultant economic and social welfare in
an equitable manner without compromising the sustainability of vital ecosystems.”
International Decade for Action ‘Water for Life’ 2005-2015, UNITED NATIONS,
2013 Whitney 55
exploitation. Assigning certain watersheds as pollution-neutral zones with
a cap-and-trade system of water pollution offsets may also serve to help
stem water pollution in Vietnam.210
Fourth, the Vietnamese government should continue to provide
financial and administrative support for programs that target seriously
contaminated areas and areas in which pollution threatens sites of cultural
and historical significance. One example of such a program is the National
Target Program on Pollution Mitigation and Environment Improvement
2012-2015, which helps manage pollution at forty-seven “seriously
contaminated” craft villages and one hundred additional sites that have
been affected by pesticide residues, waste water disposals, and other
pollutants.211
The Vietnamese government at national and local levels, as
well as foreign development entities, generated approximately VND 5.8
trillion (US $281 million) for the project, which is a notable achievement
in a sector that is typically underfunded.212
Optimally this idea would be
expanded to mining sites that are contaminated, as well as water bodies
that are damaged. A critical element of this or any approach is to invest in
a data-collection system that efficiently and reliably collects data on
economic variables such as operating costs, infrastructure costs, fee
structure characteristics, and other costs tailored to each sector analysis.213
Market controls for business enterprises, such as fees, taxes, and
pricing for water services such as mining water use, can also be imposed
to incentivize environmental responsibility.214
These measures apply
market forces of profit-losses so that entities choose “effective” responses
as they use, exploit, and conserve natural resources.215
For example, the
government charges discharging entities in order to limit wastewater
http://www.un.org/waterforlifedecade/iwrm.shtml.
210 For example, a consortium of universities and businesses in Europe are
currently researching the benefits of implementing a cap-and-trade system as a means to
preserve that region’s scarce water resources. See The Research Project, CAP AND
TRADE, http://www.capandtrade.acteon-environment.eu/home.
211 Pollution Reduction Program to Get Over VND 5.8 Trillion Fund,
VIETNAMNET (Feb. 6, 2013),
http://english.vietnamnet.vn/fms/environment/65820/pollution-reduction-program-to-get-
over-vnd-5-8-trillion-fund.html.
212 Id.
213 For a description of the problem of unreliable data collection in this area, see
UNITED NATIONS, VIETNAM – U.N. WATER COUNTRY BRIEF 6 (June 13, 2013), available
at http://www.unwater.org/downloads/WCB/finalpdf/VNM_pagebypage.pdf.
214
THE WORLD BANK, ET AL., supra note 147, at 59.
215 Id.
56 Asian-Pacific Law & Policy Journal Vol. 15:1
pollution, to conserve water, and to fund the Environmental Protection
Fund.216
Fifth, the most important and possibly the most difficult to
institute, is the court system, which should develop the knowledge base
and capacity to adjudicate environmental violations caused by industry,
and optimally establish a system of environmental courts.217
Without an
arbiter or enforcement arm of environmental violations, there is no real
pressure on the part of industry to adhere to the law, as the rampage of
corruption in Vietnam allows the forces of industry to ignore or skirt the
law.218
Finally, Vietnam’s water quality and environment would benefit
from a system of public participation that is in line with Vietnam’s
constitution and statutes that the public, indeed individuals, are
responsible for the environment and water quality. Since the citizenry is
called upon to take an active role in protecting the environment, it is
imperative that it participate in how the environment, especially the water
sources that it depends upon, is affected by industry, particularly mining
projects. Citizen participation in developing conservation rules and
regulations may slow mining projects down, and thus the immediate flow
of industry, but it will also result in creating a more habitable country for
all Vietnamese.
IV. CONCLUSION
After the Vietnam War and during its reconstruction process, Doi
Moi, Vietnam embarked on the path to industrialization, reaping vast
economic rewards. Industry and foreign investment were welcomed into
the country to spearhead economic growth, and this is evidenced by the
expansion of the mining sector. Vietnam’s government recognized the
gravity of the country’s rapidly deteriorating environment immediately
following the Vietnam War and during Doi Moi. Over the past twenty-five
216
Id. (citing Decree No. 67/2003/ND-CP).
217 Calls for an Environmental Court in Vietnam, CLEANBIZ.ASIA (Aug. 19,
2013), http://www.cleanbiz.asia/news/calls-environmental-court-
vietnam#.UmZGQxZh420. See also the story of Dr. Cu Huy Ha Vu, a lawyer and
environmentalist in Vietnam who was jailed after he filed a lawsuit against Vietnamese
Prime Minister Nguyen Tan Dung over the approval of the bauxite mining project in the
Central Highlands. Leading Vietnamese Environmental Defender Convicted, ENVTL.
DEFENDER LAW CTR., http://www.edlc.org/cases/individuals/cu-huy-ha-vu/ (last visited
Feb. 4, 2014).
218 See generally Corruption from the Perspective of Citizens, Firms, and Public
Officials: Results of Sociological Surveys, THE WORLD BANK (2013),
http://documents.worldbank.org/curated/en/2013/01/17428581/corruption-perspective-
citizens-firms-public-officials-results-sociological-survey-corruption-perspective-
citizens-firms-public-officials-results-sociological-survey (last visited Feb. 4, 2014).
2013 Whitney 57
years, the highest levels of government have set out to create legal
instruments and systems to support efforts to stem pollution.
Despite these efforts, Vietnam still faces many challenges,
particularly with surface water protection. The country suffers from a
poorly developed water protection framework and a lack of political will
to protect water quality from industrial pollution, particularly mining
pollution. Vague or conflicting statements within the Constitution and
statutes both permit the mining industry to disregard environmental legal
protections, and allow low-level bureaucrats to routinely ignore the law
for the sake of economic expediency. In turn, this invites corruptive
influences to hinder water and environmental protection. Bauxite mining
in the ethnically and culturally rich Central Highlands is but one example
of the forces of industry overriding the environmental policies set out in
the Constitution and in other laws and regulations.
In particular, the Law on Water Resources, the Law on
Environmental Protection, and the Minerals Law demonstrate how
Vietnam’s intent to protect water and the greater environment is defeated
by vagueness and a lack of implementation. This has caused jurisdictional
overlap between ministries, inconsistencies between central government
and provincial laws, and an absence of procedural requirements necessary
for effective environmental protection.
Because of these inconsistencies, enforcement is difficult, if not
impossible, in some cases. Adequate attention and funding have not been
allocated to proper enforcement tools such as pollution monitoring and
EIAs. Further, the Environmental Police Force has not been trained
properly to enforce the laws in place, nor do the courts have the
knowledge or capacity to adjudicate environmental crimes. Thus,
enforcement and adjudication of laws and regulations have no real
deterrent value or force.
Environmental legislative and policy success in Vietnam will hinge
on Vietnam’s ability to create political interest in conservation, direct
significant funding to programs and networking in areas of environmental
conservation and enforce environmental and water quality laws and
regulations that are so often hindered by corruption. More than any other
element, a developed enforcement system of existing and modified legal
regulations, as well as an operational environmental adjudication system,
will help steer Vietnam away from pollution and toward a healthy
environment and clean water.