Since 2008, IUCN has cooperated with the Vietnam Institute of Human Rights (VIHR), one of 10 or so institutions that make up the Ho Chi Minh Political Academy on a range of environmental governance projects. IUCN’s interest in working with the VIHR lies primarily in the fact that every year it trains 500-700 government officials who need to pass in order to get promoted. In a one party state that regards independent action by non-state actors with suspicion, such cooperation offers the opportunity to broaden the knowledge and (hopefully) change the attitudes of Vietnam’s future leaders.
The most recent cooperation with VIHR was funded by the U.N. Democracy Fund (UNDEF) as part of a project to expand the voice of civil society in environmental monitoring and reporting. As part of this project, VIHR hosted two workshops to showcase the work of local environmental NGOs and to discuss the barriers they face. Areas of work include cleaning up Hanoi’s lakes, fighting the illegal wildlife trade, and research and advocacy on new water and mining laws. The first workshop was held in Hanoi in November 2012 and the second in Hue in December 2102. (The other components of the project were improving the quality of environmental news coverage and assisting local NGOs with communications, strategy development, and financial management).
The most important conclusion from these workshops was that despite numerous well documented cases there has not been a single criminal prosecution for industrial pollution in Vietnam. According to one participant, provincial government officials are “extremely reluctant” to take action against polluting companies, perhaps because their promotion is linked to economic growth, not environmental quality. For companies, it’s often cheaper to pay an administrative fine and keep polluting since there’s no realistic chance of getting closed down. Only when a scandal emerges (as it did with Vedan when the Japanese government complained about ships corroding in the Thi Vai River) does the government take serious action. This is the ultimate expression of what has been called a “complaints-based system” of environmental protection.
Many countries have experienced a period of dirty growth before environmental conditions improve as part of a “grow now then go green” pattern of development (http://www.economist.com/node/21556904). This “green transition” is triggered by increased national wealth, which allows for investments in wastewater treatment, improved law enforcement, and other forms of pollution control. And as personal wealth rises, families turn their attention from day-to-day survival to quality of life issues such as clean air and water. Finally, as people becomes better educated and more demanding, they start to organize to bring pressure on government and businesses to clean up the environment.
Vietnam is certainly becoming wealthier and cases of urban and industrial pollution receive widespread media coverage. The question is whether the third factor, which implies the freedom of non-state actors to hold government to account, is present. Arguably it is. Environmental NGOs are registering, publishing, and lobbying. The Vietnam Union of Science and Technology Associations (VUSTA), the state body under which many local NGOs are registered, has over 500 members. And the law making process is opening up. PanNature and CODE, for example, advised the National Assembly during the drafting of the Mining Law, which was passed in 2011. And Vietnam Rivers Network (VRN) did the same with the Water Law, which was passed in 2012.
But the law making process remains opaque. Few of VRN’s recommendations made it into the Water Law. This was notably the case for integrated water resources management, which proposes that water be managed the river basin scale and be allocated in ways that balance economic and environmental needs. It is likely that ministries with the greatest control over water, notably those responsible for irrigation and hydropower, refused to surrender authority. IUCN had a similar experience when it supported MONRE with the preparation of the Biodiversity Law. Less than one-quarter of the recommendations of the review process, which included leading international specialists, appeared in the final version.
There is a fundamental ambiguity about the role of non-state actors. From the constitution down, citizens are given the responsibility (“giao trach nhiem cho”) for environmental management. The 2011 Party Congress confirmed the “responsibility to enhance the participation of people in policy making including environmental protection.” However, people are not given the corresponding authority. For example, EIAs are not made public, preventing external review. The risks of this approach were highlighted by the Song Tranh dam, which has triggered a series of earthquakes causing serious property damage and terrifying residents. When the EIA was finally released, it was discovered that it had dismissed seismic risks based on a statement made at workshop in the late 1980s. In the case of the EIAs for the Dong Nai 6 and 6A dams, these were shown to be copies of previous EIAs. In neither case was legal action taken against the dam builders, despite the catastrophic implications. The law is therefore imbalanced: people are urged to participate but are not given the power to do so. And if they try and exercise their legal rights, they risk crossing an invisible line that separates what is tolerated from what is not. Where this line runs is a matter of speculation. At present, though, NGOs have considerable freedom to speak out on environmental matters.
Responsibility for reviewing and approving laws rests with the National Assembly. However, only one-third of its members are full-time and it has limited experience and capacity to do its job. The ministries that draft the laws are much better resourced and highly motivated to get “their” laws approved. To a large extent, members rely on the press for information about the performance of ministries but when challenged ministries simply deny the reports and the National Assembly has no independent means to investigate.
This may explain why during the two workshops, the head of one of its committees repeatedly recommended that people’s councils be more involved in environmental monitoring. These councils may have a role to play but they can’t substitute for the National Assembly, the highest level of authority in Vietnam. A result of these weaknesses is that laws often get passed that contradict each other or are impossible to implement. Newspaper articles have reported that the approval of laws that ignore valid objections weakens public trust and confidence in government.
While more laws are often not the solution to Vietnam’s environmental problems, some reforms are needed. Vietnamese law does not allow for class action (if you don’t know what class action is, watch the film Erin Brockovich, a true story about an unemployed single mother who becomes a legal assistant and almost single-handedly brings down a California power company accused of polluting a city’s water supply). Since the burden of proof lies with the victims, and since few individuals can pay for a court case, the polluter is in effect protected from having to pay compensation. Class action is a form of lawsuit in which many people collectively bring a claim to court (http://en.wikipedia.org/wiki/Class_action). It ensures that a defendant who engages in widespread harm, but does so minimally against each individual plaintiff, must compensate those individuals for the damage caused. It therefore avoids the problem that small compensation does not provide the incentive for any individual to bring a solo legal action. In the case of Vedan, the Vietnam Lawyers Association helped secure compensation for the thousands of victims but only after a 4-year delay and despite not because of the law. But even if class actions are allowed, who should be prosecuted? Under Vietnamese law, you can’t prosecute organizations, only individuals. The individuals responsible for the Vedan pollution therefore escaped prosecution. As with the case of class action lawsuits, this is part of the criminal law that needs reform.
In conclusion, the lack of environmental justice in Vietnam can be thought of in terms of supply and demand. There is a limited supply of environmental justice because an incomplete, inconsistent, and overly complex legal framework makes it hard to file suit against polluters. On the demand side, conflicts of interest, particularly related to state-owned enterprises, undermine the state’s ability to implement the law. The results are a reliance on fines that offer no disincentive not to pollute, an increasingly unhealthy environment, and growing public frustration. Measured by the number of mothers who have to take time off to care for kids with chronic upper respiratory problems, a dirty environment is imposing real economic costs.
The two workshops that VIHR organized may reflect a greater commitment by government to “walk the walk” when it comes to environmental protection but there is clearly a very long way to go. And while NGOs will no doubt continue to make many valuable contributions, ultimately a clean environment is a choice that government has to make.
Jake Brunner - Programme Coordinator - Viet Nam, Cambodia and Myanmar