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Today: Sep 26, 2017

Paper abstracts

IDENTIFYING POTENTIAL RISKS TO ENVIRONMENTAL SECURITY IN VIETNAM AND SOME LEGAL ISSUES

Pham Van Vo

Ho Chi Minh City University of Law

The concept of environmental security is currently approached from many perspectives. According to the traditional approach, environmental security is regarded as the aim of environmental protection itself and is understood "as the ability of the environment to meet basic human needs sustainably through providing: shelter, supply of energy and raw materials, possibility to accept waste, scientific information and environmental facilities"[1]. Based on the explanation given in section 28, Article 3 of the Law on Environmental Protection of 2014, in this paper, environmental security is approached on the basis of the relationship between environmental protection and political, social and economic issues which is a means to ensure that there is no enormous environmental impact on the country's political, social and economic stability.

Focused of the article's contents are identifying possible threats to environment in Vietnam at present and in the future, including:

- The fact that violations of the law on environmental protection are not decisively and comprehensively dealt with, leading to a seriously polluted environment which exceeds the people's tolerance;

- The unreasonable allocation of the right to exploit and use environmental components deprives the right to exploit and use environmental components to serve for the essential needs of the community;

- There is a lack of an effective mechanism for dispute settlement relating to environmental that causes frustration to infringed groups because of environmental pollution, environmental degradation and environmental incidents.


APPLYING KEY LESSONS FROM INTERNATIONAL EXPERIENCE IN MODERNISING VIET NAM'S SYSTEM FOR ENVIRONMENTAL PROTECTION

Michael Parsons

Policy Adviser to the Minister of Natural Resources and Environment

As Viet Nam needs to ensure its environmental protection system can keep pace with the fast-changing industrial landscape. In recent times, India, Korea, Russia, Malaysia, Tunisia, Morocco and Egypt and other countries have been following European experience in identifying potentially most-polluting industries and seeking to set new environmental standards that can be achieved by applying best available techniques. In Korea and Russia, this has been done in the context of shifting to the new paradigm of integrated environmental permitting, seen as best able to regulate pollution discharge operations of large waste-generating facilities of potentially most-polluting industries. Permitting conditions also allow for easier application of economic instruments, such as excess effluent discharge fees and mandatory environmental liability insurance. Viet Nam needs to learn from this experience as it heads into a future of increased investment in high-volume waste-generating facilities capable of causing industrial environmental disasters.


ENVIRONMENTAL POLLUTION CONTROL IN SINGAPORE: THE INTERSECTION OF TORTS, STATUTES, REGULATIONS AND COMMUNITY NORMS

Gary Chan Kok Yew

School of Law, Singapore Management University

 

Singapore is a land-scarce, densely populated, urbanized and technology-driven society. Despite her image as a clean and green environment, serious challenges remain to keep environmental pollution at bay. Both private and public laws, whether based on statutes or common law, as well as a host of regulations and community norms collectively regulate environmental pollution in Singapore. Statutory provisions targeting environmental pollution rely on criminal punishment, administrative measures and also compensatory damages awarded to victims in the event of breaches of specified statutory duties. The Environmental Pollution Control Act 1999, together with the implementing subsidiary legislation, seeks to minimise or mitigate the effects of air, water and noise pollution. Government agencies adopt preventive, monitoring and/or enforcement measures backed by a plethora of statutes, regulations, international standards relating to environmental pollution. More recently, the enforcement of environmental pollution measures have extended, with the enactment of the Transboundary Haze Pollution Act 2014, to combatting environmental pollution arising from the region. Further, the common law torts of nuisance, negligence and the rule in Rylands v Fletcher exist at common law to compensate the victims for the loss suffered arising from activities resulting in environmental pollution. The goals of enhancing environmental consciousness through public education and community efforts have also been emphasised in Singapore. Nevertheless, community mediation efforts have been supplemented by the establishment of Community Disputes Resolution Tribunals to deal with complaints by neighbours of smoke, smells, and littering in the vicinity of the complainants’ place of residence.


REGIONAL ENVIRONMENTAL SECURITY: THE VALUABLE MESSAGES TO THE ASIAN COUNTRIES BASED ON JAPANESE EXPERIENCE FOR CLIMATE CHANGE, AIR POLLUTION, HAZARDOUS AND CHEMICAL WASTES, AND SEA POLLUTION

Kanami ISHIBASHI

Tokyo University of Foreign Studies

In the process of economic growth, Japan suffered all kinds of serious environmental problems. It is well known that the Minamata disease and the Itai-Itai disease were caused by releasing chemical wastes such as mercury and cadmium. And the Yokkaichi asthma was caused by heave air pollution by sulfur oxide (SOx). Those all happed from 1950s to 1970s. In that periods, Japan also had to deal with the Yusho disease being poisoned by polychlorinated biphenyls (PCBs). Nowadays Japan has faced with climate change problems and nuclear power plants accidents issues. To solve all the problems, Japan well managed the crises domestically and through the cooperation with international and reginal society. Therefore, it might be valuable for Asian countries to know how Japan approached these environmental problems.

Above all, the nuclear accidents case might be great lessons for the world, since there are only few nuclear accidents and this is very much similar to the Chernobyl nuclear accident. It should be noted Japan responded quickly to the accidents but still caused a lot of problems: wrong evacuation of the people living in that area, leakage of the radiative contaminated water to the sea and reactivation of nuclear power plants based on “alleged incomplete standard of safety”

Japan has an agreement of nuclear technology transfer with Vietnam. Therefore, Japan must be responsible for the nuclear safety of such power plants built in cooperation with Japan, even if Japan itself still have significant troubles to reactive nuclear power plants which has been stopped to be checked after the 2011 Fukushima nuclear power plants accidents. So far, the court play an important role to ensure the environmental security in Japan, invoking “personal right” to protect human health either by issuing orders to stop reactivation of nuclear power plants or compensating the victims of nuclear power plants accidents. This must be kept in mind of the countries which use the Japanese nuclear technology, assuming that the Japanese safety standard of nuclear power plants are well established but never enough and much questioned in terms of environmental security.


LAW ON THE RIGHTS TO ACCESS TO

ENVIRONMENTAL INFORMATION IN VIETNAM

Thai Thi Tuyet Dung

Ho Chi Minh City University of Law

Right to access to information in general and to environmental information in particular is stipulated in the Constitution of 2013 and the Law on Environmental Protection of 2014 and in many legal documents, but this right has not been guaranteed in practice due to the lack of a feasible system of regulations, namely: the procedure for supplying information, the mechanism for cooperation and exchange of information, the lack of applicable sanctions whereas many subjects violate regulations on access to information.

In 2016, the National Assembly promulgated the Law on Access to Information (effective on July 1, 2018). It contains a number of provisions related to the scope, procedures for publicizing of information on request, the principle of application of the Law on Access to Information..., these provisions when being in effect will conflict with provisions of the Law on Environmental Protection of 2014, on such issues as the subject having the right to request and demand for information supply, procedures for making request for information supply.

This paper focuses on the analysis of regulations on access to environmental information in Vietnam, practices of application and some recommendations which will be divided into three categories:

-          Recommendations on the application of laws in cases where there are conflicts between the Law on Environmental Protection and the Law on Access to Information with regard to the procedures and process, scope of information to be disclosed and provided, subjects having the right to demand for information supply.

-          Recommendations on provisions on the coordination mechanism for sharing of environmental information among State agencies to ensure the harmonization of public interests and people's interests. It is necessary to adopt a document stipulating sanctions for cases where competent authorities postpone or refuse to provide environmental information.

-          Recommendations to enhance practical effectiveness of the right to access to information on environment such as: personnel, information and propaganda, guarantee for facilities and financial support to exercise the right access to environmental information.


FIGHTING THE GIANTS: TAKING CORPORATE RESPONSIBILITY FOR ENVIRONMENTAL DAMAGE THROUGH INDONESIAN COURTS’ DECISIONS

Arie Afriansyah

Faculty of Law, University of Indonesia,

In the last ten tears, there is growing number of cases before the Indonesian courts to hold private corporations responsible for environmental damages. Such phenomenon is so much different with the previous period where almost no environmental dispute or destruction was processed to judicial bodies in the country. Alternative dispute resolution has always become the main preference to settle any violation to the environment, hence, seems affecting no deterrence to the perpetrator especially when it comes to corporation. With the increase of environmental awareness, “class action” has been utilised to protect the environment by suing corporates that damaging the environment. Unfortunately, the result of the courts’ decision have varies. This paper argues that such variety of decisions have been heavily influence by the availability of scientific data and the knowledge of the panel of judges. NGOs and/or individuals who are concern with the environment with limited resources usually initiate class action lawsuit. Whereas, corporation that being sued is relatively have the capacity to face the trial due to its high financial resources. Nevertheless, “fighting the giants” has been the paradigm when it comes to pursue the responsibility of corporation of its wrongdoing especially environmental damages.

Keywords: corporate liability, environmental damage, Indonesia, court decision


IMPACTS OF THE CONSTRUCTION OF HYDROELECTRIC PLANT IN THE MEKONG RIVER ON VIETNAM'S ENVIRONMENTAL SECURITY – SOME LEGAL ISSUES

Vo Trung Tin

Ngo Gia Hoang

Ho Chi Minh City University of Law

As a major river in the region and the world, the Mekong River plays a very important role in the lives of people in riparian states, including Vietnam. Under the pressure of economic growth, countries in the region are increasingly seeking means to promote the utilization of water resources advantages, especially hydropower potential. Recent studies prove negative consequences of the construction of these dams, such as: changing the flow regime, making it difficult to regulate water in downstream countries; retaining silt in dam reservoirs, causing difficulties for agricultural production and being the main cause for landslides; reducing fisheries resources, affecting livelihood of the population; stimulating earthquakes and environmental consequences im the case of sudden discharge water from these dams.

Benefits from the utilisation of the Mekong are different, while the upstream countries get benefits from hydropower, the downstream countries suffer heavy consequences. Therefore, there is a need for a binding legal framework for countries along the Mekong River to utilize and exploit the river effectively but not causing damage to the environment and interests of the remaining countries. At present, legal framework for controlling exploitation of the Mekong River is quite simple, having no binding effects. Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin is the only legal basis for member states to cooperate in the exploitation and protection of the Mekong River to achieve their sustainable development. However, this agreement can not be effective because lacking cooperation from the upstream countries, namely China and Myanmar. The Mekong River Commission (MRC) has not yet acted as a tribunal and final solution to the dispute is still based on diplomatic means and international law. Responsibilities of member states in the PNPCA process are not specific and a binding mechanism is missing. These constraints have been quite apparent through the case of Lao's determination to build the Xayaburi hydropower dam, regardless protests from countries and environmental groups.

Based on an analysis of the legal framework for the Mekong River hydropower development and the particular case study of the Xayaburi project, the authors suggest that MRC members continue to negotiate and to urge China and Myanmar to became official members of the MRC. At the same time, it is necessary to develop a concrete legal and binding mechanism to the parties involved. The MRC should establish a specialized and enforceable organ for dispute settlement which is bound by the parties. As the country at the end of the river, Vietnam needs to take proactive measures to address current situation of hydropower development in the Mekong of upstream countries.


LEGAL COMPLEXITY AND INSTITUTIONAL ARRANGEMENT CHALLENGES IN DESIGNING A MANDATORY GREENHOUSE GAS EMISSIONS REPORTING SCHEME IN THAILAND

Chacrit Sitdhiwej

Faculty of Law, Thammasat University, Thailand
         

Greenhouse gas emissions reporting scheme is one of the key elements of sound climate change combating legislation. This paper discusses this key element in accordance with the World Resources Institute and World Bank Group’s Guide for Designing Mandatory Greenhouse Gas Reporting Programs. This paper particularly explores a number of legal complexity and institutional arrangement challenges Thailand has been facing in designing its mandatory greenhouse gas emissions reporting scheme. Furthermore, this paper discusses possible solutions addressing such complexity and challenges.


LEGAL ISSUES ON CONTROL THE IMPORT OF ALIEN SPECIES IN VIETNAM

Vu Thi Duyen Thuy

Pham Thi Mai Trang

Hanoi Law University.

Vietnam is one of the countries having the most characteristic of biodiversity in the world with many types of forests, marshes, streams and coral reefs ... providing habitat for around 10% of all wildlife birds and animals in the world. However, the natural ecosystem has been affected by natural fluctuations as well as adverse effects from human activities. This faces the task of biodiversity conservation with many complicated problems, including the control of imports of alien species.

Although there are certain benefits to natural environment serving for country's socio-economic development, the import of dangerous alien species has been and continues to pose significant threats to the safeguard of environmental security (the risk of ecological imbalance, biodiversity degradation and the risk of loss to the national economy...)

To control strictly the import of alien species and to ensure environmental security, in the near future, Vietnam needs to address the following basic legal issues, namely:

- The issue of making a list of harmful alien species and information on these species before conducting import activities.

- The assessment of possibility to cause harms of such species during the import process.

- The issue of coordinating mechanisms between specialized agencies in import control and control of the spread of alien species after the import.

- The issue of inspection and handling of violations of the law in the import of harmful alien species.


DEVELOPMENT OF MEDIATION MECHANISM FOR ENVIRONMENTAL DISPUTES IN VIETNAM

Tran Viet Dung

Ngo Nguyen Thao Vy

Ho Chi Minh City University of Law

Environmental disputes arising from industrial production, which was stipulated in the Law on Environmental Protection 2005 and currently is under the Law on Environmental Protection 2014, have increasingly become complicated, requiring appropriate legal mechanisms to protect legitimate rights and interests of involved individuals, agencies and organizations. Mediation can help to resolve disputes not only on the issue of compensation or financial assistance but also on the maximization of the chances for applying voluntary measures to improve environment quality by initiating particular projects. In order to utilize this mechanism effectively in practice, it is important to select disputes in accordance with the mode of reconciliation, usually such disputes in which the parties remain willing to maintain their relationship with each other, the parties have equal interests and interests, and the settlement agreement is the best solution to prevent conflicts arising in the long run, as well as the benefits of business and environmental goals are not conflict. In addition, it should be taken into account that the issue of public interest in environmental disputes makes this type of dispute distinctive. The role of mediators is not merely to balance the interests of conflict parties and to ensure neutrality, but also to protect environment related public interests. Therefore, the establishment of a settlement body dealing with environmental disputes in line with these two objectives should address the following key issues: (i) the independence of mediation agency, (ii) the flexibility and accessibility of the mechanism; (iii) the transparency of the mediation process, and (v) the human resources of the reconciliation organ dealing with environment disputes.

The prerequisite for establishing such an effective resolution mechanism dealing with environmental disputes is the establishment of an independent and objective organ. Second, the classification of environmental disputes that are in line with the conciliation mechanism is also important and should be regulated as a prerequisite step before conducting conciliation task. Third, the parties to the dispute and the Mediation Committee need to update the mediation process and may consider and agree on the disclosure of certain documents in the dispute settlement process to ensure transparency, accessibility and fairness of the settlement process. Fourth, the issue of human resources is also an important factor contributing to the success of this environmental dispute settlement mechanism.



Assoc. Prof. Dr. Nguyen Duc Khien, Dr. Nguyen Kim Hoang, Environmental Security, Information and Communication, p. 7, Ha Noi, 2013.


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