Vietnam: Water Pollution and Mining in an Emerging …blog.hawaii.edu/aplpj/files/2014/03/Whitney-Final.pdfVietnam: Water Pollution and Mining in an Emerging Economy Heather Whitney*

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).

http://www.deepdyve.com/browse/journals/asian-survey

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).


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-


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


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,


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


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.


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),


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.

http://faolex.fao.org/docs/pdf/vie4890.pdf


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 .


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.


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.”).


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.


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).


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).


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.)),


_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.


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),


_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),


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


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.


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/


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.


“[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.


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.


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.