Climate change response from vietnam’s commitments under evfta and cptpp to its domestic implementation

HO CHI MINH CITY UNIVERSITY OF LAW INTERNATIONAL LAW FACULTY *** PHẠM BÁ PHONG STUDENT ID 1853801012155 CLIMATE CHANGE RESPONSE FROM VIETNAM’S COMMITMENTS UNDER EVFTA AND CPTPP TO ITS DOMESTIC IMPLEME[.]

HO CHI MINH CITY UNIVERSITY OF LAW INTERNATIONAL LAW FACULTY

-*** -

PHẠM BÁ PHONG STUDENT ID: 1853801012155

CLIMATE CHANGE RESPONSE: FROM

VIETNAM’S COMMITMENTS UNDER EVFTA AND CPTPP TO ITS DOMESTIC IMPLEMENTATION

BACHELOR THESIS School year: 2018 - 2022

Supervisor:

LL.M Nguyen Thi Kim Cuc

Ho Chi Minh City - 2022

DECLARATION

I declare that this thesis is the result of my research, which is conducted under the supervision of LL.M Nguyen Thi Kim Cuc, ensures honesty, and complies with rules and regarding quotation, the note of references Therefore, I hereby take full responsibility for this declaration

Agreement for Trans-Pacific Partnership

Decree No 06/2022/ND-CP

Decree No 06/2022/ND-CP of the Government on mitigation of green house gas (GHG) emissions and protection of ozone layer dated 07 January 2022

Environment

Deplete the Ozone Layer

UN United Nations

on Climate Change

TABLE OF CONTENTS

INTRODUCTION 1

1 Problem statement 1

2 Literature review 5

3 Purpose of the study 7

4 Objectives and Scope of the study 8

4.1 Objectives of the study 8

4.2 Scope of the study 8

5 Research methodologies 8

6 Scientific and practical values of the thesis 9

7 Thesis structure 9

CHAPTER 1: CLIMATE CHANGE RESPONSE COMMITMENTS UNDER EVFTA AND CPTPP 10

1.1 Theoretical issues relating to climate change and climate change response 10

1.1.1 Definition of climate change 10

1.1.2 Causes and impacts of climate change 12

1.1.3 General understanding of climate change response 14

1.2 Climate change response commitments under EVFTA and CPTPP 16

1.2.1 The inclusion of climate change response commitments under free trade agreements 16

1.2.2 Climate change responses commitments under the EVFTA 19

1.2.3 Climate change response commitments under the CPTPP 27

CONCLUSION OF CHAPTER 1 31

CHAPTER 2: CLIMATE CHANGE RESPONSE PROVISIONS UNDER VIETNAMESE LAW AND RECOMMENDATIONS FOR VIETNAM 32

2.1 Climate change response provisions under Vietnamese law 32

2.1.1 General review of Vietnamese law and policy on climate change response 32

2.1.2 Evaluations 42

2.2 Recommendations for Vietnam 46

CONCLUSION OF CHAPTER 2 52 THESIS CONCLUSION 54 BIBLIOGRAPHY

INTRODUCTION

1 Problem statement

Climate change has been recognized as one of the biggest challenges of our times threatening both regional and global security as well as diminishing the significant development achievements of humanity at present and in the future1 According to United Nations (UN), the Earth is now about 1.1oC warmer than it was in the late 1800s and the last decade (2011-2020) was the warmest on record2 Following this, there exists various consequences of climate change such as intense droughts, water scarcity, rising sea levels, flooding, melting polar ice and declining biodiversity Particularly, in 2021, Vietnam witnessed a relatively high average temperature with 24.6oC, 0.7oC higher than usual Moreover, Vietnam has suffered from 12 storms and tropical depressions causing more than 40 heavy rains and widespread flooding3 Besides, although climate change may be a result of natural long-term shifts in temperatures and weather patterns, human activities has been the main driver of climate change since the 1800s4, primarily due to burning fossil fuels like coal, oil and gas

Acknowledging climate change and its severe impacts to human lives, countries has gravitated towards signing or participating in international agreements

on environmental protection, including climate change response With respect to the global frameworks on climate change response, Vietnam is a constituent member of the United Nations Framework Convention on Climate Change (UNFCCC)5 which

1 For example, people living in small island nations and other developing countries are vulnerable to climate impacts when, due to conditions such as sea-level rise and saltwater intrusion, whole communities have had

to relocate and suffer famine

2 United Nations, “What is climate change?”, [ https://www.un.org/en/climatechange/what-is-climate-change]

(accessed on 24 April 2022)

3 Phan Hau, “Climate change makes weather and natural disasters abnormal and irregular”, [ https://thanhnien.vn/bien-doi-khi-hau-khien-thoi-tiet-thien-tai-dien-bien-di-thuong-trai-quy-luat-

post1451345.html ] (accessed on 24 April 2022)

4 United Nations, supra note 2

5 The United Nations Framework Convention on Climate Change (UNFCCC) opened for signature at the

“Rio Earth Summit” in 1992 entered into force on 21 March 1994 Further information available at: UNFCCC, “What is the United Nations Framework Convention on Climate Change?”, [ https://unfccc.int/process-and-meetings/the-convention/what-is-the-united-nations-framework-convention- on-climate-change ] (accessed on 20 may 2022)

was the first global agreement on climate change and possesses near-universal membership with 197 Parties Furthermore, within the UNFCCC framework, Vietnam is also a member of two international agreements, namely the Kyoto Protocol6 and the Paris Agreement7 Regarding Paris Agreement, at the end of the

26th United Nations Climate Change Conference of the Parties (COP26)8 hosted in Glasgow on 31 October – 13 November 2021, the Paris Agreement target of limiting global warming to 1.5 degrees Celsius was kept alive and the Paris Agreement rulebook was completed9 Notably, at COP26, Vietnam delivered strong commitments which include reaching net-zero carbon emission target by 2050, stopping deforestation by 2030 and phasing out coal-fueled power generation by

204010

In addition to participating in international agreements on climate change, Vietnam, similar to other nations, has been striving to incorporate climate change response provisions in regional trade agreements, particularly, the free trade agreements (FTAs)11 In this context, Vietnam has become a constituent member of two new-generation FTAs 12 , namely EU-Vietnam Free Trade Agreement (EVFTA)13 and Comprehensive and Progressive Agreement for Trans-Pacific

6 The Protocol was adopted on 11 December 1997 and it entered into force on 16 February 2005 Further

Protocol?”,[ https://unfccc.int/kyoto_protocol] (accessed on 12 June 2022)

7 The Paris Agreement was adopted by 196 Parties at COP 21 in Paris, on 12 December 2015 and entered into force on 4 November 2016 Further information available at: UNFCCC, “The Paris Agreement”,

[https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement] (accessed on 12 June 2022)

8 Conference of the Parties (COP) is a global climate summits and COP26 which took place in Glasgow means 2021 was the 26 th annual summit

9 Further information available at: European Commission, “COP26: EU helps deliver outcome to keep the Paris Agreement targets alive”, [ https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6021 ] (accessed on 12 June 2022)

10 Dezan Shira & Associates, “COP26 and Climate Change: Vietnam’s Commitment to Reducing

Emissions”, Vietnam Briefing, [ commitment-reducing-emissions.html/ ] (accessed on 21 December 2021)

https://www.Vietnam-briefing.com/news/cop26-climate-change-Vietnams-11 In general, a free trade agreement (FTA) is an agreement between two or more countries where they

mutually agree on certain obligations that affect trade in goods and services, intellectual property rights, environmental protection, etc

12 In general, new-generation free trade agreements (FTAs) are FTAs that not only include traditional trade provisions but also other non-trade provisions such as environmental protection and labor

13 The EVFTA was signed on 30 June 2019 and approved by the Vietnamese National Assembly on 08 June

2020 It came into force on 01 August 2020 Further information available at: Center for WTO and

Partnership (CPTPP)14 in order to not only create solid foundations for the integration into global supply chains but also promote universal standards such as environmental protection and labor, including climate change response In general, the two FTAs aim to promote sustainable development, including environmental protection and responding to climate change, as well as reaffirm the Parties’ commitments to comply with international agreements such as the UNFCCC or the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)15

By having made strong commitments at COP26 and participated in the above FTAs, Vietnam is willing to meet the full compliance with international agreements

as well as the EVFTA and the CPTPP in order to fulfill the climate change response commitments Following this, Vietnam must amend and/ or issue suitable policies and legal documents

On 17 November 2020, the National Assembly of the Socialist Republic of Vietnam adopted the Law on Environmental Protection (LEP) 2020 effective on 01 January 2022, replacing the Law on Environmental Protection 2014 Although the new law makes appropriate amendments and provides new provisions to comply with the international climate response commitments, there still exists certain drawbacks that need to be addressed and improved In this research, the author concentrates on three different aspects to make recommendations for Vietnam

International trade - Vietnam Chamber of Commerce and Industry, “Vietnam - EU (EVFTA)”, [ https://wtocenter.vn/fta/199-Vietnam eu-evfta-/1 ] (accessed on 12 June 2022)

14 The CPTPP was signed on 08 March 2018 in Chile, being the result of a process of effort by all members after the United States withdrew from the Trans-Pacific Partnership (TPP) The Agreement officially came into force on 30 December 2018 for the first six countries and 14 January 2019 for Vietnam Further information available at: Ministry of Industry and Trade of Vietnam (MOIT), “General introduction on the CPTPP”, [ http://cptpp.moit.gov.vn/default.aspx?page=news&do=detail&category_id=8be36248-117a-4530- 814c-555746b31c92&id=fd3872ae-b8f7-4e46-bd8a-141a8b522a2d ] (accessed on 12 June 2022)

15 The Montreal Protocol on Substances that Deplete the Ozone Layer is a multilateral environmental

agreement that regulates the production and consumption of ozone depleting substances More information available at: United Nations Environment Programme, “About Montreal Protocol”, [https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol] (accessed on 20 June 2022)

regarding its domestic implementation, namely the development of domestic carbon market, the promotion of renewable energy and the protection of ozone layer16

Firstly, with respect to the development carbon market, it is widely

acknowledged that carbon market has been a major component of responding to climate change17 Vietnam is also concentrating on the operation of this market in the near future18 In the EVFTA, the Parties acknowledges the promotion of domestic and international carbon markets [Article 13.6(2)(b)], while the LEP

2020 19 only contains general provisions on the construction, operation and promotion of such market Therefore, it is necessary to research and draw recommendations where suitable on this matter Otherwise, Vietnam will not be able to construct and operate the domestic carbon market, which is the foundation for integration in international carbon market

Secondly, in terms of the promotion of renewable energy, developing

renewable energy sources in order to replace traditional energy can be consider as a sustainable mean that contribute to mitigate climate change20 The EVFTA also provides that Parties acknowledges the promotion of energy efficiency, low-emission technology and renewable energy [Article 13.6(2)(c)] However, the development of renewable energy in Vietnam has not yet been regulated by a stable and long-term legal framework, which causes difficulties in fulfilling the climate change response commitments under EVFTA as well as effective domestic implementation of such commitments in Vietnam

16 The development of carbon market and the promotion of renewable energy are regulated under the EVFTA, while the protection of ozone layer is provided under the CPTPP

17 The World Bank, “What You Need to Know About Article 6 of the Paris Agreement”,[ https://www.worldbank.org/en/news/feature/2022/05/17/what-you-need-to-know-about-article- 6-of-the-paris-agreement] (accessed on 20 June 2022)

18 To Duc Huy and Hoang Anh, “Vietnam will have domestic carbon market in 2028”,

[https://nongnghiep.vn/viet-nam-se-co-thi-truong-cac-bon-trong-nuoc-tu-nam-2028-d306939.html] (accessed

on 10 June 2022)

19 The LEP 2020 is also guided by a recently issued Decree which is the Decre (BỔ SUNG) Although

there is a guidance document, the legislations regarding domestic carbon market in Vietnam still leaves room for improvement

20 Moomaw, W et al., “Renewable Energy and Climate Change”, [ https://www.ipcc.ch/site/assets/uploads/2018/03/Chapter-1-Renewable-Energy-and-Climate-Change-1.pdf ] (accessed on 13 June 2022)

Finally, yet importantly, the protection of ozone layer is necessary to be

addressed since reducing ozone-depleting substances also contributes to the mitigation of greenhouse effect21 In the CPTPP, the Parties recognize the emissions

of certain substances can significantly deplete and otherwise modify the ozone layer

in a manner that is likely to result in adverse effects on human health and the environment [Article 20.5(1)] Nevertheless, the Law on Environmental Protection

2020 has not yet provided detailed provisions on the protection of the ozone layer

Thus, with the findings above, this thesis with the topic “Climate change response: from Vietnam’s commitments under EVFTA and CPTPP to its domestic implementation” aims to analyze the climate change response commitments under EVFTA and CPTPP, the incorporation of these commitments into Vietnam’s environmental law and provide recommendations to improve the implementation of such commitments in Vietnam

2 Literature review

As climate change response commitments are incorporated into free trade agreements, many studies on these commitments have been recorded However, there are not many researches on climate change response provisionsunder both the EVFTA and the CPTPP Following this, the author has discovered some remarkable studies on these matters as follows:

Alberto do Amaral Jr and Marina Martins Martes (2020), “The Mercosur-EU FTA and the Obligation to Implement the Paris Agreement: An Analysis from the

Brazilian Perspective”, European Yearbook of International Economic Law, (11),

p.387-409: This paper analyzes the Mercosur-EU FTA which is a FTA concluded between Mercosur and the EU acknowleding the need to consider the environmental aspects of trade measures Additionally, it explains the link between trade and climate change, analyses the obligations assumed by the Parties (particularly Brazil) under the Paris Agreement, and eventually shows the consequences the inclusion of

21 European Environment Agency (EEA), “Protecting the ozone layer while also preventing climate change”, [ https://www.eea.europa.eu/themes/climate/ozone-depleting-substances-and-climate-change ] (accessed on 10 June 2022)

a provision on the implementation of an environmental commitment under a free trade agreement brings about

Mai Thi Tuyet Tran (2018), Impact of trade openness on the environment:

An assessment of CO2 emissions in Vietnam, Lincoln University: This study

examines the impact of trade openness on CO2 emissions in the long-run and run elasticities In addition, it examines the regulatory effect of the CPTPP on the environment and explores a way forward to integrate environmental considerations and commitments into free trade agreements in Vietnam

short-Fritz Carrapatoso, A (2007), “The Integration of Trade and Environmental

Policies in Free Trade Agreements in Southeast-Asia”, Südostasienaktuell: journal

of current Southeast Asian affairs, 26(1), p.76-105: This paper provides an

overview of free trade negotiations between Southeast Asian countries and New Zealand in which environmental issues are addressed Moreover, it demonstrates the pros and cons of free trade with regard to the environment and seeks to identify some of the factors that influence the integration of trade and environmental policies in bi- and minilateral trade negotiations

Lien, M K., Huyen, N D., Cong, N T., & Minh, N V (2020), “Exploring

Potential Participation of Vietnam in the Carbon Market”, Low Carbon Economy,

(11), p.25-43: This paper provides general knowledge on carbon market and relevant provisions under multilateral environmental agreements (MEAs) such as the Paris Agreement In addition, it gives an overview of a number of domestic carbon markets in some countries and assesses the potential for developing Vietnam’s carbon market

Vo Trung Tin and Nguyen Lam Tram Anh, “Implementation of new generation of free trade agreements related to climate change in Vietnam”,

International Conference Proceedings on the Implementation of new-generation FTAs in Vietnam: Challenges in the fields of labour, environment and intellectual property, hosted by Ho Chi Minh City University of Law in 2021, p.228-246: This

paper analyzes the contents related to climate change and climate change response

commitments provided underthe CPTPP and the EVFTA Furthermore, it evaluates Vietnam's environmental legislation aiming to institutionalize these two Agreements, thereby making some recommendations

Pham Van Vo, “Vietnam’s policies and laws on climate change adaptation”,

Conference on Climate Change and Legal Issues, hosted by Ho Chi Minh City

University of Law on 15 December 2021 at Ho Chi Minh City University of Law, p.9-13: this paper analyzes and evaluate climate change response legal and policy framework of Vietnam as well as demonstrates the impacts of climate change to the country

Tran Linh Huan, “Implementation of the EVFTA climate change

commitment and some issues for Vietnam”, International Conference Proceedings

on the Implementation of new-generation FTAs in Vietnam: Challenges in the fields

of labour, environment and intellectual property, hosted by Ho Chi Minh City

University of Law in 2021, p.247-260: this paper concentrates on analyzing the climate change response commitments under the EVFTA, indicating some challenges that Vietnam will confront when complying with the commitments on climate change in this agreement, thereby making some complete recommendations

Tran Viet Dung (2019), “Legal and policy framework for renewable energy

and energy efficiency development in Vietnam”, Vietnamese Journal of Legal Sciences 01 (01), p.33-47: This paper examines the legal and policy framework

influencing the deployment of renewable energies and energy efficiency in Vietnam It also attempts to identify major barriers to a large scale deployment of renewable energies and energy efficiency technologies and offers some possible solutions

3 Purpose of the study

This thesis aims to analyze the climate change response commitments under EVFTA and CPTPP, the legal and policy framework of Vietnam and legislations of some foreign legal systems on climate change response, thereby providing recommendations for improvement

To accomplish these purposes, this thesis performs three following tasks:

First, analyzing the climate change response commitments under the EVFTA

and the CPTPP

Second, analyzing the climate change response provisions under Vietnamese

law and making evaluations where relevant

Thirdly, analyzing the climate change response provisions under some

foreign legal systems

Finally, offering recommendations for improving the implementation of the

climate change commitments in Vietnam based on the comparison between climate change response commitments under the EVFTA, the CPTPP and Vietnam’s law as well as lessons from foreign law

4 Objectives and Scope of the study

4.1 Objectives of the study

The regulations and provisions relating to climate change response under the EVFTA and the CPTPP

The regulations and provisions relating to climate change response under Vietnam’s environmental law

4.2 Scope of the study

This thesis studies the climate change response commitments under the EVFTA and the CPTPP as well as Vietnam’s environmental law

5 Research methodologies

Throughout the thesis, the author will utilize three main research methods, namely analytical, comparative and synthetic method

To be more specific, the analytical method is conducted primarily in Chapter

1 to analyze the climate change response commitments under the EVFTA and the CPTPP This method is also applied in Chapter 2 for generally reviewing Vietnam’s legal and policy framework on climate change and the achievements of new provisions of the LEP 2020 and identifying certain limitations

The comparative method is implemented for comparing the climate change response provisions under the LEP 2014 and the LEP 2020, thereby indicating the improvements of Vietnam’s environmental law in implementing international climate change response commitments The method is significant to be applied in comparing the climate change response provisions under EVFTA, the CPTPP and Vietnam’s environmental law to propose recommendations

The synthetic method is used to synthesize analyses and comparisons, thereby clarifying problems to be solved from a legal perspective and providing recommendations

6 Scientific and practical values of the thesis

The thesis aims to clarify the linkage between trade and climate change, the climate change responses provisions under new-generation free trade agreements such as EVFTA and CPTPP as well as under Vietnam’s legal system; improve Vietnam’s environmental law This thesis is expected to become a helpful reference source for those who study, research or work in environmental field, especially in areas related to climate change response

CHAPTER 1: CLIMATE CHANGE RESPONSE COMMITMENTS UNDER

1.1 Theoretical issues relating to climate change and climate change response

1.1.1 Definition of climate change

Before discussing the definition of climate change, the term “climate” should

be understood According to non-legal sources such as definition provided by the Intergovernmental Panel on Climate Change (IPCC)22, in narrow sense climate is defined as “the average weather, or more rigorously, as the statistical description in terms of the mean and variability of relevant quantities over a period of time ranging from months to thousands or millions of years” In terms of wider sense, climate is “the state, including a statistical description, of the climate system 23”24.Under legal documents such as the Hydrometeorology Law of Vietnam25, climate means “compilation of weather26 conditions in a certain area

22 The Intergovernmental Panel on Climate Change (IPCC) is the United Nations body for assessing the science related to climate change More information available at: The Intergovernmental Panel on Climate Change, “The Intergovernmental Panel on Climate Change”, [ https://www.ipcc.ch/ ] (accessed on 19 May 2022)

23 The system consisting of five major components: the atmosphere, the hydrosphere, the cryosphere, the lithosphere and the biosphere and the interactions between them For more information, see: P.R Shukla, et al., “Annex I: Glossary”, [https://www.ipcc.ch/site/assets/uploads/sites/4/2019/11/11_Annex-I-Glossary.pdf] (accessed on 19 May 2022)

24 P.R Shukla, et al., “Annex I: Glossary”,

[https://www.ipcc.ch/site/assets/uploads/sites/4/2019/11/11_Annex-I-Glossary.pdf] (accessed on 19 May 2022)

25 The Hydrometeorology Law was adopted by the National Assembly of Vietnam on 23 November 2015 and took effect in 01 July 2016 This law stipulates hydro meteorological activities such as management and operation of station networks; forecasts, warnings; information, data; hydro meteorological services; climate change monitoring

26 Weather refers to the state of the atmosphere at a certain point of time determined by meteorological elements and phenomena [Article 3(6) of the Hydrometeorology Law]

characterized by long-term statistical quantity of meteorological elements in such area” [Article 3(11)] As observable, in general, climate can be understood as the long-term weather pattern in an area

With respect to climate change, there are many sources, including legal and non-legal ones, provide definition to the concept United Nations (UN)27 briefly defined climate change as “long-term shifts in temperatures and weather patterns”28 Furthermore, climate change in IPCC usage refers to “a change in the state of the climate that can be identified (e.g., using statistical tests) by changes in the mean and/or the variability of its properties, and that persists for an extended period, typically decades or longer”29.As observable, climate change can be understood simply as changes in weather patterns persisting for a long period of time, typically decades or longer In addition to non-legal sources, the definition of “climate change” is also provided under some legal documents For instance, the UNFCCC states that “climate change” means “a change of climate which is attributed directly

or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.” [Article 1(2) of the UNFCCC] Following this, it can be seen that within the legal framework of the UNFCCC, the countries concentrate on the human-induced climate change rather than the natural one as they define climate change is “a change of climate which is attributed directly or indirectly to human activity…” [Article 1(2)] It is quite understandable because in addition to climate change caused by natural variability30, human-induced climate change has been

27 The United Nations (UN) is an international organization founded in 1945 Currently made up of 193 Member States, the UN and its work are guided by the purposes and principles contained in its founding Charter More information available at: United Nations, “About Us”, [ https://www.un.org/en/about-us ] (accessed on 19 May 2022)

28 UnitedNations,supra note 2

29 United Nations Framework Convention on Climate Change, “Fact sheet: Climate change science - the

[ https://unfccc.int/files/press/backgrounders/application/pdf/press_factsh_science.pdf ] (accessed on 14 May 2022)

30 Natural climate variability refers to the variation in climate parameters caused by nonhuman forces See: Climate-Woodlands, “Natural Variability and Climate Change”, [https://climate- woodlands.extension.org/natural-variability-and-climate-

change/#:~:text=Natural%20climate%20variability%20refers%20to,internal%20to%20the%20climate%20sy

causing adverse effects to human life In constrast, under Vietnam’s law, the Hydrometeorology Law states that climate change refers to “a change in climate conditions for a long time by the impacts of natural conditions and human activities, often referred to as global warming, rising sea and an increase in extreme hydro meteorological phenomena.” [Article 3(13)] It seems that Vietnam’s law acknowledges the causes of climate change are not only human activities but also natural conditions In sum, generally, climate changehas following four characteristics: (1) climate change is a change in the state of the climate, (2) has natural or artificial cause,(3) alters the composition of the global atmosphere and (4) persists for an extended period

1.1.2 Causes and impacts of climate change

In order to understand more about climate change as well as why countries have been responding to this phenomenon, it is necessary to acknowledge the causes and impacts of climate change

With respect to the causes, while there are natural causes such as volcano activity or variations in the solar cycle, human activities have become the main driver of climate change since the 1800s31, mainly due to the generation of greenhouse gas emissions, also known as the greenhouse effect Following this, there are certain human activities that cause greenhouse gas emissions32 such as generating power 33, manufacturing goods34, cutting down forests 35, using

stem ] (accessed on 19 May 2022) Besides, natural variability is an element that affects changes in all variables See: Markus Meier, H.E., Dieterich, C and Gröger, M., “Natural variability is a large source of uncertainty in future projections of hypoxia in the Baltic Sea”, [ https://doi.org/10.1038/s43247-021-00115-9 ] (accessed on 19 May 2022)

31 United Nations, supra note 2

[ https://www.un.org/en/climatechange/science/causes-effects-climate-change] (accessed on 15 May 2022)

33 At present, most electricity is generated by burning fossil fuels such as coal, oil, or gas which produces carbon dioxide and nitrous oxide (two kinds of greenhouse gases) that blanket the Earth and trap the sun’s heat

34 Manufacturing, mining, or other industrial processes produce emissions, mostly from burning fossil fuels

to produce energy for making cement, iron, steel, plastics, and other goods Machines used in these processes are usually powered by energy generated by burning fossil fuels such as coal, oil or gas

35 As forests absorb carbon dioxide, destroying them limits nature’s ability to keep emissions out of the atmosphere

transportation36, producing food37 and overconsumption38 Regarding greenhouse gases (GHGs), greenhouse gases generally are gases that “trap heat in the atmosphere”39 The LEP 2020 defines greenhouse gas as “gas in the atmosphere causing the greenhouse effect” [Article 3(29)].Greenhouse gases include carbon dioxide, methane, nitrous oxides, and water vapor40 In terms of greenhouse effect,

it is basically a process in which the increased greenhouse gas emissions act like a blanket wrapped around the earth, trap the sun’s heat and raise temperatures, thereby causing global warming41 The LEP 2020 states that greenhouse effect means “a process where radiant energy from the sun penetrates into the atmosphere and is converted to heat, causing global warming” [Article 3(30)] As observable, the LEP 2020’s definition of greenhouse effect does not mention the contribution of greenhouse gases to global warming, though it provides the consequence of greenhouse gas effect is global warming Without clearly mentioning the contribution of greenhouse gases to the global warming, it would not emphasize the international trend of reducing GHG emissions to tackle climate change and protect the environment as well as promote sustainable development in general

With respect to impacts of climate change, human society has been witnessing many adverse effects brought by this phenomenon such as hotter temperature, the increased occurrence of natural disasters, lack of food, poverty and

36 Many vehicles run on fossil fuels such as cars, trucks, ships, or planes, producing emissions, especially carbon dioxide emissions

37 Producing food causes emissions of carbon dioxide, methane, and other greenhouse gases in a variety of ways such as deforestation, clearing of land for agriculture, or the production and use of fertilizers and manure f1or growing crops Packaging and distributing food also cause greenhouse gas emissions

38 Human lifestyles have a profound impact on the planet due to the needs in clothing, electronics, using plastics

39 United States Environmental Protection Agency, “Overview of Greehouse Gases”, [ https://www.epa.gov/ghgemissions/overview-greenhouse-gases ] (accessed on 19 May 2022)

40 Earth Science Communications Team at NASA's Jet Propulsion Laboratory, “What is the greenhouse

effect?”, Global Climate Change: Vital Signs of the Planet, [ greenhouse-

https://climate.nasa.gov/faq/19/what-is-the-effect/#:~:text=Greenhouse%20gases%20include%20carbon%20dioxide,effect%20helps%20stabilize%20Ea rth's%20atmosphere ] (accessed on 19 May 2022)

41 UnitedNations, “Climate Action Fast Facts”, [ findings#:~:text=it%20is%20now.-

https://www.un.org/en/climatechange/science/key-,But%20today%20we%20are%20experiencing%20unprecedented%20rapid%20warming%20from%20huma n,sun's%20heat%20and%20raising%20temperatures ] (accessed on 15 May 2022)

displacement42 Due to high greenhouse gas emissions generated by human activities, the global surface temperature has been increasing over the years, making natural disasters occur more frequently Wildfires start more easily and spread more rapidly when conditions are hotter Moreover, as temperature rise, more moisture evaporates, which exacerbates extreme rainfall and flooding, causing destructive storms to occur more intensely and more frequently in many regions Furthermore, global warming aggravates water shortages in already water-stressed regions and is causing agricultural droughts affecting crops Following this, droughts can stir destructive sand as well as dust storms, which creates opportunities for deserts to expand, reducing land for growing food Regarding poverty and displacement, floods may sweep away urban slums, destroying homes and livelihoods It is reported that over the past decade from 2010 to 2019, weather-related events displaced an estimated 23.1 million people on average each year, leaving many more vulnerable to poverty43

1.1.3 General understanding of climate change response

Basically, climate change response involves two aspects, namely mitigation and adaptation The former refers to “reducing emissions of and stabilizing the levels of heat-trapping greenhouse gases in the atmosphere” and the latter refers to

“adapting to the climate change already in the pipeline”44 This fact is also confirmed in legal documents such as the UNFCCC and the Paris Agreement Within the UNFCCC framework, the Paris Agreement, which “aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty”45 , establishes three principal standards, namely mitigation, adaptation and finance In terms of mitigation, the Parties commit to hold the increase in the global average temperature to well below

42 United Nations, supra note 32

43 United Nations, supra note 32

44 Earth Science Communications Team at NASA's Jet Propulsion Laboratory, “Responding to Climate

Change”, Global Climate Change: Vital Signs of the Planet, [ mitigation/#:~:text=Key%20Points,pipeline%20(%E2%80%9Cadaptation%E2%80%9D) ] (accessed on 19 May 2022)

https://climate.nasa.gov/solutions/adaptation-45 Article 2(1) of the Paris Agreement

2°C above pre-industrial levels and pursue efforts to limit the temperature increase

to 1.5°C above pre-industrial levels [Article 2(1)(a)] Regarding adaptation, it refers

to increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience as well as the development of low greenhouse gas emissions without threatening food production [Article 2(1)(b)] In regard to finance, the constituent members of the Agreement collaborate to make finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development

Under Vietnam’s law, the LEP 2020 provides that climate change response is human activity to adapt to climate change and mitigate greenhouse gas emissions [Article 3(32)] Following this, the LEP 2020 also defines mitigation of greenhouse gas emissions is an activity aiming to mitigate the intensity of greenhouse gas emissions and increase greenhouse gas emissions absorption [Article 3(31)] In terms of mitigation, the LEP 2020 provides the information on major GHGs such as carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O) and on low-concentration gases that have high global warming potential such as hydrofluocarbons (HFC3) and trifluoride (NF3) [Article 91] Furthermore, the LEP

2020 states that the mitigation of GHG emissions shall concentrate on specific activities such as organizing and developing the domestic carbon market46 or organizing reduction of GHG emissions and GHG absorption according to a road map and method for reducing GHG emissions in conformity with national conditions and international commitments47 Regarding adaptation, the LEP 2020 prescribes that climate change adaptation refers to actions taken not only to strengthen the resilience of social-ecological systems and minimize adverse impacts

of climate change but also seize the opportunities offered by climate change [Article 90(1)] Moreover, pursuant to Article 90(2) of the LEP 2020, climate change adaptation shall cover different activities such as construction and operation of the

46 Article 91(2)(đ) of the LEP 2020

47 Article 91(2)(a) of the LEP 2020

system for supervising and assessing climate change adaptation48, or assessment of impacts, vulnerabilities, risks, loss and damage caused by climate change to sectors, regions and residential communities based on the climate change scenario and socio-economic development forecast49 As observable, the LEP 2020 has detailed provisions on the aspects of climate change response, including mitigation and adaptation

1.2 Climate change response commitments under EVFTA and CPTPP 1.2.1 The inclusion of climate change response commitments under free trade agreements

The integration of trade and environmental policies has been a worldwide concern Since the 1992 Earth Summit on Environment and Development held in Rio de Janeiro (Brazil), countries have acknowledged that global trade is one of the important factors to realize sustainable development50 Following this, a major challenge for the multilateral trading system is to create outcomes which are

“beneficial to the economy and the environment while at the same time meeting developmental goals”51

With respect to the relationship between free trade and environment, countries have acknowledged a close linkage between the two subjects for a long time since 1970s52 After the Uruguay Round (1986-1994) within GATT, there are many WTO agreements signed mentioning environmental issues, namely

48 Article 90(2)(c)

49 Article 90(2)(a)

50 Under the 1987 Bruntland Commission Report, the concept of sustainable development was described as

“development that meets the needs of the present without compromising the ability of future generations to

meet their own needs” This report is also called Our Common Future and was released in 1987 by the World

Commission on Environment and Development (WCED) that introduced the concept of sustainable development and described how it could be achieved More information available at: Michelle E Jarvie,

“Our Common Future”, Britannica, [https://www.britannica.com/topic/Brundtland-Report ] (accessed on 20 May 2022)

51 Fritz Carrapatoso, A.,“The Integration of Trade and Environmental Policies in Free Trade Agreements in Southeast-Asia”,[ https://www.ssoar.info/ssoar/bitstream/handle/document/33675/ssoar-suedostaktuell-2007- 1-fritz_carrapatoso-

The_Integration_of_Trade_and.pdf;jsessionid=32148C435561AD6916FFD01480143130?sequence=1 ] (accessed on 10 June 2022)

52 World Trade Organization, “Early years: emerging environment debate in GATT/WTO”, [ https://www.wto.org/english/tratop_e/envir_e/hist1_e.htm ] (accessed on 12 May 2022)

Marrakesh Agreement Establishing the WTO (Marrakesh Agreement) 53, the General Agreement on Tariffs and Trade (GATT) 54 , the Subsidies and Countervailing Measures Agreement (SCM)55, the Sanitary and Phytosanitary Measures (SPS) and the Technical Barriers to Trade (TBT) Agreement56, the Agreement on Agriculture (AoA)57and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)58 Besides, the WTO has also instituted the Committee on Trade and Environment (CTE), having a broad mandate, which has contributed to identifying and understanding the relationship between trade and the environment in order to promote sustainable development59 Furthermore, in 2009, WTO and United Nations Environment Program (UNEP) jointly released a detailed report on trade and climate change which examines the intersection between the two subjects60 To be more specific, the report analyses the contribution of trade to mitigation and adaptation efforts to address climate change; the effects of trade on

53 The Preamble of the Agreement establishes that:

Recognizing that field of trade and economic endeavor should be conducted with a view to raising standards

of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use

of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development

54 The general exception provided under Article XX prescribes the permission of relevant measures such as those “relating to the conservation of exhaustible natural resources” (clause g) and the need to protect human, animal and plant life or health (clause b)

55 One of the “non-actionable” subsidies provided by the Agreement (i.e., subsidies that do not entitle other Members to make claims at the WTO) are those that aim to provide “assistance to promote adaptation of existing facilities to new environmental requirements imposed by law and/or regulations which result in greater constraints and financial burden on firms” There are, of course, several additional conditions for such subsidies to be “non-actionable” to prevent disguised protectionism

56 The SPS and TBT Agreements allow the imposition of barriers to trade to protect the environment, provided that these measures are duly justified and proportionate to the protection aimed The requirements for a WTO Member to impose non-tariff barriers to trade under such Agreements are quite strict, so that Members are prevented from adopting disguised protectionist measures

57 The preamble of the Agricultural Agreement establishes that the program to reform trade in agriculture should take into account non-trade concerns, including the need to protect the environment

58 It allows Members to exclude inventions from patentability in order to avoid serious prejudice to the environment

59 WorldTrade Organization, “The Committee on Trade and Environment (‘regular’ CTE)”, [ https://www.wto.org/english/tratop_e/envir_e/wrk_committee_e.htm ] (accessed on 13 May 2022)

60 World Trade Organization, “WTO and UNEP launch a report explaining for the first time the connections between trade and climate change”, [ https://www.wto.org/english/news_e/pres09_e/pr559_e.htm ] (accessed

on 14 May 2022)

climate change and vice versa 61 According to the study, free trade could lead to increased CO2 emissions (due to the increase in investment, production, transportation, etc.) which make the Earth’s climate system warmer However, trade can play a positive role in combating climate change by accelerating the transfer of clean technologies, creating opportunity for developing economies to adapt those technologies to local circumstances Besides, trade is also affected by climate change since extreme weather conditions may damage the transport routes, making the global supply chains vulnerable62 As observable, there is a linkage, if not close, between free trade and environment, despite of the existing debate regarding the pros and cons of free trade in terms of the environment63

However, despite of the efforts made to include environmental provisions at multilateral level, the world has witnessed only limited progress, and much of the effort on trade liberalization shifted to the bilateral or regional level64 The reasons are manifold65 For instance, in the WTO context, environmental cooperation frameworks are often weak in design as “none of the signing states would accept any intrusive surveillance of domestic environmental policies or would be ready to provide large-scale funding for necessary infrastructure to address environmental problems”66 Another difficulty is that the line between environmental protection and environmental protectionism is considered vague67 A further problem is witnessed through the product and process standards in the context of the GATT68

61 Alberto do Amaral Jr and Marina Martins Martes, “The Mercosur-EU FTA and the Obligation to Implement the Paris Agreement: An Analysis from the Brazilian Perspective”, [https://www.researchgate.net/publication/349843275_The_Mercosur-

EU_FTA_and_the_Obligation_to_Implement_the_Paris_Agreement_An_Analysis_from_the_Brazilian_Pers pective] (accessed on 20 May 2022)

62 Alberto do Amaral Jr and Marina Martins Martes, supranote 61

63 Further analysis at: Fritz Carrapatoso, A., supra note 51

64 George, C., "Environment and Regional Trade Agreements: Emerging Trends and Policy Drivers", [ https://www.oecd-ilibrary.org/trade/environment-and-regional-trade-agreements_5jz0v4q45g6h-en ]

(accessed on 19 May 2022)

65 The integration of trade and environmental policies not only on multilateral level, but also on regional and bilateral one depends on many factors, namely the level of development, the role of civil society, international developments and circumstances and finally culture and values Further analysis at: Fritz Carrapatoso, A., 55

66 Fritz Carrapatoso, A., supra note 51

67 Fritz Carrapatoso, A., supra note 51

68 Fritz Carrapatoso, A., supra note 51

Besides, regarding the success of integrating environmental issues in FTAs, it should be noticed that the United States and the European Union have indicated their influence in FTAs in which they are involved in order to incorporate provisions for compliance with MEAs, setting examples for other countries to follow69

To sum up, there is a linkage between free trade and environment, and the progress of integrating environmental issues at multilateral level is slow due to many reasons so that countries have strived to include environmental provisions, including climate change response, in regional trade agreements such as FTAs This explains why the EVFTA and the CPTPP contains such provisions

1.2.2 Climate change responses commitments under the EVFTA

With respect to the background of EVFTA, in 1995, Vietnam signed an important dialogue framework agreement with the EU which not only provided a cooperative mechanism for trading and commercial activities between Vietnam and

EU countries but also incorporated environmental protection70 However, at the time, while it stipulated that both Parties agree to cooperate in environmental protection, the detail on methods to protect the environment via trade activitieswas not explored71.In 2012, Vietnam and the EU signed a framework agreement on a comprehensive partnership and cooperation that indicated cooperation on climate change In the context of climate change response, the Parties aimed at improving the energy performances of the economies more efficiently toward a green energy innovation, followed by a cooperation framework established which concentrated

on technical cooperation and enhancing capacity building in order to address challenges in climate change72 Following this, based on the 2012 framework

69 George, C., "Environment and Regional Trade Agreements: Emerging Trends and Policy Drivers",68

70 Thanh, T V., & Duong, A N (2011) Assessing Potential Impacts of the EU-ASEAN Free trade Agreement on Vietnam’s Socio-Economic Development EU-ASEAN FTA Campaign Network; as cited

through: Mai Thi Tuyet Tran (2018), Impact of trade openness on the environment: An assessment of CO2

emissions in Vietnam, Lincoln University, p.20

71 Mai Thi Tuyet Tran (2018), Impact of trade openness on the environment: An assessment of CO2

emissions in Vietnam, Lincoln University, p.20

72 Mai Thi Tuyet Tran, supra note 71, p.20

agreement, Vietnam and the EU started negotiating the EVFTA in 2013 which was completed in November 2015 and has come into force since January 2020 with much expectation from both sides in creating impetus for further economic development as well as strategic collaboration amongst the regions

In terms of trade and sustainable development, Vietnam and EU have expressed a strong and unified viewpoint on a chapter 13 regulating issues related to trade and sustainable development, including climate change response Specifically,Article 13.1(1) states the objective of the chapter on Trade and Sustainable development is promoting sustainable development, notably by

“fostering the contribution of trade and investment related aspects of labor and environmental issues” Additionally, the Parties also affirm commitments in pursuing sustainable development, including economic development, social development as well as environmental protection “all three being inter-dependent and mutually reinforcing” [Article 13.1(3)] Furthermore, Vietnam and the EU acknowledge the value of multilateral environmental governance and agreements as

a response of the international community to environmental challenges as well as insist that it is necessary to enhance the mutual supportiveness between trade and environment Following this, the Parties shall consult and cooperate, as appropriate, with respect to trade-related environmental issues of mutual interest [Article 13.5(1)] In addition, each Party also “re-affirms its commitment to effectively implement in its domestic law and practice the multilateral environmental treaties to which it is a party” [Article 13.5(2)] These regulations indicates that both parties share mutual interests in acknowledging strong commitments regarding sustainable development in general and environment in particular, including climate change response prescribed under Article 13.6 of the EVFTA

In regard to climate change response commitments specifically prescribed under Article 13.6 of the EVFTA, the Parties are bound to two main obligations, namely cooperation between the Parties in effectively implementing the UNFCCC, the Kyoto Protocol and the Paris Agreement [Article 13.6(1)] and consultation and

sharing information, experiences in pricing carbon, promoting the domestic and international carbon markets as well as promoting energy efficiency, low-emission technology and renewable energy [Article 13.6(2)].Additionally, Vietnam and the

EU shall, as appropriate, cooperate and promote the positive contribution of the Chapter 13 on Trade and Sustainable development in order to enhance the capacities of the Parties in the transition to low greenhouse gas emissions and climate-resilient economies, in accordance with the Paris Agreement [Article 13.6(1)] The following paragraphs will elaborate two essential aspects of climate change response commitments that are prescribed under the mentioned international agreements on climate change in general and the EVFTA in particular, namely the development of carbon market and the promotion of renewable energy; and relevant procedural provisions

In terms of pricing carbon73 and the development of carbon market, the UNFCCC members acknowledge the need to limit the concentrations of GHGs in the atmosphere to a level that would “prevent dangerous anthropogenic interference with the climate system” [Article 2 of the UNFCCC] Following this, the UNFCCC put the obligations on the developed countries listed in Annex I since these countries are considered liable for most of the gas emissions both in the past and the present In the context of advocacy for international GHG emissions trading in late 1980s and early 1990s, the idea of “joint implementation” as an informal version of emissions trading ultimately appeared in the UNFCCC74 The enthusiasm for emissions trading eventually led to the signing of the Kyoto Protocol in 1997 which

is the first legal document governing emissions trading in greenhouse gases, or the

73 GHG emission reduction can be conducted through two tools: command-and-control regulations and carbon pricing tools The carbon pricing tools or the market-based approach, which sets the price for GHG emissions, is quite attractive as it encourages the lowest-cost reduction of emissions and promotes the introduction of new initiatives to reduce carbon emissions The carbon pricing tools include the carbon tax and emissions trading system Carbon trading is a market-based instrument to mitigate climate change which

is also known as carbon market Further analysis at: Mai Kim Lien et al.,“Exploring Potential Participation of

[ https://www.scirp.org/pdf/lce_2020092111083082.pdf ] (accessed on 10 June 2022)

74 Newell, Richard G and Pizer, William A and Raimi, Daniel, “Carbon Markets: Past, Present and Future”, [https://ssrn.com/abstract=2469185] (accessed on 10 June 2022)

so-called carbon market75 In general, the Protocol provides that 37 industrialized signatories, also known as Annex-I nations, are responsible for reducing emissions

by specified targets Following this, in case a nation cannot meet its target, it may either purchase allowances from a fellow Annex-I nation or purchase emissions offsets from projects that decrease emissions in other parts of the world76 In terms

of developing countries such as Vietnam, they do not need to commit to reduce GHG emissions since these countries did not play a major role in increasing gas emissions in the industrialization period previous to the UNFCCC Nevertheless, Vietnam still have to comply with the mandatory commitments under Article 10 of the Protocol applying to all State members reaffirm existing commitments under Article 4 of the UNFCCC and continue to implement these commitments to achieve sustainable development

In contrast, under the Paris Agreement, all members, including developed and developing ones, are bound to reduce GHGs, though the developed country Parties are encouraged to continue taking the lead by undertaking economy-wide absolute emission reduction targets77 The objective of the Agreement is to

“strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty” [Article 2(1)].Following this, the agreement determines that the State members are obliged to “hold the increase in the global average temperature to well below 2oC above pre-industrial levels and pursue efforts to limit the temperature increase to 1.5oC above pre-industrial levels” [Article 2(1)(a)], which is reaffirmed under the Glasgow Climate Pact78 Regarding the method to achieve this objective, the Agreement has an

“open” approach which is allowing the State members to choose their own ways to

75 Newell, Richard G and Pizer, William A and Raimi, Daniel, supra note 74

76 For further analysis, see: Newell, Richard G and Pizer, William A and Raimi, Daniel, supra note 74

77 Article 4(4) of the Paris Agreement

78 The Glasgow Climate Pact is an environmental treaty which has been adopted as a result of the COP26 The treaty reaffirms the objective to limit the temperature increase to 1.5oC above pre-industrial levels prescribed in the Paris Agreement [paragraph 20 of the Glasgow Climate Pact] In addition, the treaty also calls upon the State members to accelerate efforts towards the phase-out of unabated coal power [paragraph 36] which is a challenge for Vietnam since coal power is currently one of the main sources of energy for social economic development of the country

achieve the objective embedded in “Nationally determined contributions” (NDCs) [Article 3] Notably, in terms of the development of carbon market, the Paris Agreement does not include carbon trading mechanisms in the text, but rather prescribes the issue of “market” in Article 679, which deals with “voluntary cooperation” between the Parties to achieve the NDC80

In terms of the promotion of renewable energy, under the Preamble of the UNFCCC, the State members acknowledge that all countries, especially developing ones, need access to resources required to achieve sustainable social and economic development and that their energy consumption will need to grow taking into account the possibilities for achieving greater energy efficiency and for controlling GHG emissions in general The Kyoto Protocol insists that each Party included in Annex I, in order to promote sustainable development, shall implement and/or further elaborate policies as well as measures such as enhancement of energy efficiency in relevant sectors of the national economy [Article 2(1)(a)(i)] and research on, and promotion, development and increased use of, new and renewable forms of energy [Article 2(1)(a)(iv)], in accordance with its national circumstances [Article 2(1)(a)] Within the legal framework of Paris Agreement, the agreement does not mention the term “renewable energy”, this is maybe because the agreement acknowledges the promotion of this kind of energy as a content of climate change response, and the promotion of renewable energy is provided under NDCs of State members For instance, in Vietnam’s NDC81, the country states that developing renewable energy in accordance with VietNam's potential, advantages and conditions is one of the measures to achieve GHG reductions in energy sector In general, by scaling up renewable energy, Vietnam and other countries pledging to reduce carbon dioxide (CO2) and other greenhouse gas emissions, as well as to

79 For further analysis on Article 6 of the Paris Agreement, see: The World Bank, “What You Need to Know About Article 6 of the Paris Agreement”, [ https://www.worldbank.org/en/news/feature/2022/05/17/what-you- need-to-know-about-article-6-of-the-paris-agreement ] (accessed on 20 June 2022)

80 Mai Kim Lien et al., supra note 73

81 Vietnam submitted its updated NDC on 11 September 2020 For more information, see:

https://unfccc.int/NDCREG , (accessed on 22 June 2022)

respond to climate change, can sharply reduce one major source of the problem: energy-related CO2 emissions82

With respect to procedural provisions, the EVFTA encourages public and different sectors in the society to contribute to the promotion of sustainable development by establishing domestic advisory groups (DAGs) consisting of individuals and non-state organizations taking part in this activity [Article 13.15(4)] Additionally, the EVFTA provided that “each domestic advisory group may, on its own initiative, submit views or recommendations to its respective Party

on the implementation of this Chapter” [Article 13.15(4)] which can be understood that the DAGs, though may not have an official supervision right, are entitled to observe the implementation of Chapter 13 in general and climate change response commitments in particular of its respective Party, causing a certain amount of pressure on the Parties Indeed, as a matter of fact, most FTAs concluded between the EU and its trade partners, since the EU-South Korea FTA concluded in 2011, lead to the formation of the DAGs in both the EU and its partners with an aim to consult the Parties to effectively implement the Chapter on Trade and Sustainable development included in these FTAs83 Besides, the EVFTA establishes the Committee on Trade and Sustainable Development entitled to review, if necessary, the implementation of Chapter 13 in general and climate change response commitments in particular [Article 13.15(3)] Therefore, this mechanism is predicted to put much pressure on Vietnam and the EU in preparing sufficient plan

to manage climate change response

With respect to possible consequences of an eventual violation ofclimate changeobligationsunder the EVFTA, there are two aspects that need to be considered:

82 International Renewable Energy Agency (IREA), “Renewable energy and climate pledges: Five years after the Paris Agreement”, [ https://www.irena.org/publications/2020/Dec/Renewable-energy-and-climate- pledges ] (23 June 2022)

https://trade.ec.europa.eu/doclib/press/index.cfm?id=1870 , (accessed on 19 May 2022)

First, the provision on climate change is presented in Article 13.6 of Chapter

13 on Trade and Sustainable development of the EVFTA.Second, pursuant to

Article 13.16(1) of the EVFTA, in the event of disagreement on any matter covered under Chapter 13, the Parties shall only have recourse to the procedures established under Article 13.16 (Government Consultations) and Article 13.17 (Panel of Experts) Chapter 15 (Dispute Settlement) and its Annex 15-C (Mediation Mechanism) do not apply to Chapter 13 on Trade and Sustainable development (except as otherwise provided for in Chapter 13) However, within climate change response commitments provided specifically under Article 13.6, there are not any provisions referring to Chapter 15 and Annex 15-C.Therefore, under the EVFTA, in case a Party violated climate-change-related provisions, that Party would not confront any serious legal consequences (such as the initiation of the arbitration procedure) The similarity is true in another FTA that the EU has concluded with another trade partner - the EU-MERCOSUR FTA84 In this FTA, the violation of provisions on climate change does not lead to any legal consequences85 Following this, due to not having any legal consequences in case of violations, it is understandable when there exists fear that Parties may show postponement in implementing commitments under the Agreement, including climate change response ones Nevertheless, the implementation of EVFTA can be guaranteed due

to following reasons:

First, the Parties are obliged to comply with a high transparency framework

and the impact of wording used in Article 13.6 in particular and Chapter 13 in general emphasizing the obligations of the Parties Regarding the high transparency framework, after the Paris Agreement was finalized at the COP26, the agreement introduced an enhanced transparency framework consisting of two reporting requirements and two review mechanisms which will supersede the current one

84 The EU-MERCOSUR FTA is a free trade agreement has concluded between European Union (EU) and the Mercado Común del Sur (or Common Market of the South) (MERCOSUR) on 28 June 2019

85 Alberto do Amaral Jr and Marina Martins Martes, supranote 65

under the UNFCCC86 In addition, both of two clauses of Article 13.6 on climate change response use the modal verb “shall” in order to stress the need to comply with the provisions Besides, the members’ implementation of climate change response commitments and Chapter 13 on Trade and Sustainable Development in general is observed by the Committee on Trade and Sustainable Development as well as the DAGs, which will put much pressure on their effective implementation

Second, the Parties are mutually interested in and do respect trade benefits87 Following this, pursuant to the Preamble of the EVFTA, Vietnam and EU determined to strengthen their economic, trade and investment relationship in accordance with objective of sustainable development Additionally, the implementation of EVFTA has achieved lots of positive results so far88 Therefore,

it is reassuring that the Parties will continue striving to fulfill their obligations although there are likely no serious legal consequences in case of violation

In sum, it is observable that the EVFTA89 and international treaties on climate change including the UNFCCC, the Kyoto Protocol and the Paris Agreement establish a general framework with certain objectives as well as criteria aiming to orient the global efforts in responding to climate change of the State members Nevertheless, transparency is a critical obligation under the Paris Agreement and it will create much pressure to a certain extent on Vietnam regarding the proactive implementation of schemes adopted by the government, especially the country’s NDCs In a narrower scope, under the EVFTA, while the Parties would not confront any serious legal consequences (such as the initiation of the arbitration procedure) in case of breaching climate-change-related provisions, it

86 Forfurther analysis, see: Jennifer Huang, “A brief guide to the Paris agreement and ‘rulebook’”, [https://www.c2es.org/wp-content/uploads/2019/06/paris-agreement-and-rulebook-guide.pdf] (accessed on

20 June 2022)

87 There are many benefits such as removing tariffs, reducing non-tariff barriers or levelling the playing field

see:https://trade.ec.europa.eu/doclib/docs/2018/october/tradoc_157444.pdf

88 Nguyen Huong, “EVFTA is one of the FTAs Vietnam makes the best use in the first year of implementation”, [ https://moit.gov.vn/tin-tuc/hoat-dong/evfta-la-mot-trong-nhung-hiep-dinh-thuong-mai-tu- do-viet-nam-tan-dung-tot-nhat-trong-nam-dau-thuc-thi.html ] (accessed on 20 June 2022)

89 Specifically, the EVFTA does not provide any new provisions or solutions but only reaffirm the commitments in environmental treaties on climate change to which the Parties are member

is noteworthy that Vietnam and the EU shall strive to effectively implement the climate change commitments due to pressure generated from the agreement such as high transparency framework, the observation of the DAGs and the Committee on Trade and Sustainable Development

1.2.3 Climate change response commitments under the CPTPP

With respect to the background of CPTPP, it is noteworthy that this agreement “derived” from the TPP 90 which was considered an ambitious, comprehensive and high-standard mega-regional FTA aiming to establish the standard for 21st century trade rules91 The TPP started as the Trans-Pacific Partnership Strategic Economic Agreement signed by Brunei, Chile, New Zealand and Singapore In 2008, the United States participated in and gradually predominated over the negotiation92 In 2009, Vietnam officially negotiated the TPP agreement with eleven other countries, namely Australia, New Zealand, Brunei, Malaysia, Singapore, Chile, Peru, Canada, Mexico, the United States and Japan Over the seven-year time period, twelve countries from the Asia-Pacific region eventually reached agreement on the text of the TPP in October 2015 Although the United States withdrew from the agreement in January 201793, the remaining eleven members continued to negotiate the regional economic agreement and eventually concured with the establishment of the CPTPP

The CPTPP covers a variety of fields, namely trade promotion, labor, sanitary and phytosanitary measures, etc Regarding environmental protection in general and climate change response in particular, the agreement encourages high levels of environmental protection through mutually supportive trade and

90 Kim Hue, “CPTPP officially came into effect: New opportunities for State members”, [ https://mof.gov.vn/webcenter/portal/vclvcstc/pages_r/l/chi-tiet-tin?dDocName=MOFUCM140901 ]

(accessed on 22 June 2022)

91 Andrew D Mitchell et al., Public Health and the Trans-Pacific Partnership Agreement, 5 ASIAN J INT'L

L 279, 280 (2015); as cited through: Deng, H., and Huang, J., “What Should China Learn from the CPTPP Environmental Provisions?”, [https://ssrn.com/abstract=3256755] (accessed on 22 June 2022)

92 Yuan Wang & Huiyu Zhao, TPP and Environmental Protection,8 CITIZ LAW LEG.ED 12, 12-14, 26 (2014); as cited through: Deng, H., and Huang, J., “What Should China Learn from the CPTPP Environmental Provisions?”, [https://ssrn.com/abstract=3256755] (accessed on 22 June 2022)

93 Ministry of Industry and Trade of Vietnam (MOIT), supra note 11

environmental policies and practices94, reaffirmcommitments under the MEAs95, proposes to eliminateenvironmentally destructive subsidies, tariffs and other barriers to trade in environmental goods and services as well as cooperate toward a low-carbon economy96

With respect to climate change response, the CPTPP does not regulate a specific provision on this subject matter, nor does it mention the term “climate change” Nevertheless, the CPTPP does acknowledge protection of ozone layer at Article 20.5 of the Chapter 20 on Environment which is considereda significant contentof climate change response By reducing certain ozone-depleting substances which are also very potent GHGs contributing to climate change97, the provisions

on protecting ozone layer prescribed under the CPTPP urgethe Parties to supplement their legal and policy framework to protect the environment and promote climate change response Following this, the CPTPP members recognize the emissions of specific substances controlled by the Montreal Protocol, including any future applicable amendments, can “significantly deplete and otherwise modify the ozone layer in a manner that is likely to result in adverse effects on human health and the environment” [Article 20.5(1)] In this context, in order to address matters of mutual interest related to ozone-depleting substances, the Parties shall work in collaboration with one another and this colllaboration may include, but is not limited to exchanging experiences as well as information in areas related to certain provided aspects, namely environmentally friendly alternatives to ozone-

94 Mai Thi Tuyet Tran, supra note 71, p.22

95 The CPTPP refer to three MEAs, namely the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) Additionally and intriguingly, there is a study indicates that although the Bipartisan Agreement on Trade Policy published in 2007 by the U.S Congress and Office of the United States Trade Representative identified seven MEAs for inclusion in FTAs, only three of them, are included in the TPP This study explains that there are only those three MEAs are included in TPP possibly because these are the only MEAs that all TPP parties have ratified See: INT'L CTR FOR TRADE AND SUSTAINABLE DEV., ENVIRONMENT IN THE TRANS-PACIFIC PARTNERSHIP: A LEGAL ANALYSIS 4 (2016); as cited through: Deng, H., and Huang, J., “What Should China Learn from the CPTPP Environmental Provisions?”, [https://ssrn.com/abstract=3256755] (accessed on 22 June 2022)

96 Mai Thi Tuyet Tran, supra note 75, p.23

97 European Environment Agency (EEA), supra note 21