Domestic compliance with international environmental obligations may be achieved through many different methods, specifically through implementation. This thesis presents an indepth analysis of implementation to comply with international environmental obligations in the situation of Viet Nam, as an Asian country in transition, through the case of the Convention on Biological Diversity. It examines the complex process of the Vietnamese implementation of international environmental obligations, involving different elements such as policy and legal instruments, and other relevant actors and factors. This thesis argues that while a rather comprehensive legal and policy framework and other facilitating mechanisms have been set up to meet the treaty’s obligations, the treaty’s features and implementation requirements and the Vietnamese context are the major aspects affecting the implementation to comply with international environmental obligations. Revealing the limitations of the Vietnamese implementation of international environmental obligations, the thesis also offers several solutions for improving the implementation to comply with international environmental obligations in the Vietnamese context.
The Issue
International Environmental Treaties and the Participation of Viet Nam
International environmental treaties serve as a crucial foundation of international environmental law, establishing obligations for States and other international law subjects The movement to utilize these treaties for addressing environmental issues began in the early 20th century, culminating in the 1972 Stockholm Conference, which marked a shift towards prioritizing human environmental protection This conference heralded a new era in the use of treaties to tackle global environmental challenges, leading to increased awareness among individual states regarding their importance Consequently, a variety of global and regional environmental treaties were established However, many of these treaties, such as the Convention on Wetlands of International Importance and the Convention on International Trade in Endangered Species, have seen limited participation from countries, highlighting the challenges in broadening their impact.
The initial international environmental treaties include the London Convention of 1900, aimed at conserving various wild animal species in Africa that are beneficial or harmless to humans, and the Paris Convention, which focuses on protecting birds that are useful for agriculture These foundational agreements mark significant milestones in the evolution of international environmental law.
2 For more information on the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (the Ramsar Convention), see Chapter Four, n 16.
3 For more information on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), see Chapter Four, n 18.
4 For example, initially only 18 States were signatory parties to the Ramsar Convention
1 environmental treaties and limited number of parties affected the effectiveness of these international environmental treaties for environmental protection
In 1992, marking the 20th anniversary of the 1972 Stockholm Conference, the United Nations Conference on the Environment and Development was held in Rio de Janeiro, representing a pivotal moment in international environmental law The Conference introduced key principles for balancing environmental protection with economic growth, notably the concept of sustainable development In response to pressing environmental challenges like biodiversity loss, climate change, and desertification, nations were urged to establish new global environmental treaties Consequently, three significant treaties emerged: the Convention on Biological Diversity, the United Nations Framework Convention on Climate Change, and the United Nations Convention to Combat Desertification These treaties are essential for addressing global environmental issues, necessitating international cooperation, with major nations actively participating.
The evolution of international environmental treaties highlights a growing reliance on these agreements to tackle environmental challenges Modern treaties aim to encompass a wider range of issues and engage numerous parties However, the rising number of treaties, along with their complex obligations, presents significant challenges for States in ensuring compliance at both global and national levels.
5 For detailed information on the 1992 UNCED, see Chapter Four, n 10
6 The United Nations Framework Convention on Climate Change (UNFCCC), http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf, last accessed on 16 May 2013.
7 The United Nations Convention to Combat Desertification, http://www.unccd.int/Lists/SiteDocumentLibrary/conventionText/conv-eng.pdf, last accessed on 16 May 2013.
8 For information on the membership status of, for example the Ramsar Convention or the CITES, see Chapter Four, n 16, 18
In the late 1980s, Vietnam began actively participating in global efforts to address environmental issues, following the introduction of the Renovation policy in 1986 This open-door approach has fostered multifaceted development and a shift in attitudes towards natural resource access and environmental protection As a result, Vietnam has engaged in around twenty significant international and regional environmental treaties, including the Convention on Biological Diversity and the United Nations Framework Convention on Climate Change.
Vietnam is a party to various international environmental treaties that address critical areas such as air protection, biodiversity conservation, heritage preservation, and the management of hazardous waste and nuclear power These treaties often take the form of framework agreements, enabling parties to negotiate additional protocols and amendments, which in turn increase their obligations To enhance the effectiveness of these treaties, many include requirements for domestic implementation, significantly impacting how Vietnam fulfills its international environmental commitments.
9 For a brief discussion of the Renovation policies, see Chapter Three, part 2.
10 For the list of Viet Nam’s international environmental treaties, see http://vea.gov.vn/en/icorperation/ConventionsandAgrees/Pages/default.aspx, last accessed on 16 May 2013.
For more information, refer to Le Thanh Long's article, "Some Initial Thoughts on the Incorporation of the Rules of International Environmental Law in Viet Nam," featured in Hoang The Lien's edited volume, "The Current Status of Environmental Law in Vietnam."
The special issue of "Thong Tin Khoa Hoc Phap Ly" focuses on Vietnamese environmental law and its alignment with international experiences Published by the Legal Research Institute of the Ministry of Justice in 2003, this issue provides insights into the current state of environmental legislation in Vietnam, highlighting both challenges and advancements It serves as a critical resource for understanding the interplay between local legal frameworks and global environmental standards.
12 For further discussion of an umbrella or a framework treaty, see Patricia W Birnie and Alan E Boyle,
International Law and the Environment (Oxford University Press, 2nd ed., 2002), 10 See also Désirée M
McGraw, ‘The Story of the Biodiversity Convention: From Negotiation to Implementation’ in Philippe G Le Prestre (ed), Governing Global Biodiversity: the Evolution and Implementation of the Convention on Biological
The United Nations Framework Convention on Climate Change is recognized as a key international environmental treaty, and similarly, the Convention on Biological Diversity and other agreements can also be understood as frameworks within the realm of international environmental treaties.
Compliance with International Environmental Obligations in Viet Nam: Problems and the Case of the Convention on Biological Diversity
Viet Nam is committed to addressing international environmental issues, as demonstrated by its ratification of key global and regional treaties While the country has made efforts to incorporate international environmental regulations into its domestic laws, it continues to face significant challenges in meeting these environmental obligations.
Defining whether Vietnam adheres to dualism or monism remains challenging, as the debate among legal scholars and lawmakers regarding the incorporation versus transformation doctrine is ongoing This uncertainty is reflected in key legal documents, including the 1989 Ordinance on International Treaties, the 1998 Ordinance, and the 2005 Law on International Treaties Therefore, it is crucial to assess these doctrines and propose solutions to the current discourse on incorporation and transformation in Vietnam.
Vietnam has struggled to effectively implement international environmental treaties due to several challenges These include an inconsistent and unsustainable application of legal and policy frameworks, inadequate coordination between central administrative agencies and local governments, and a lack of public awareness regarding the importance of adhering to environmental laws.
Vietnam, like other developing nations, faces significant challenges in addressing environmental protection and sustainable development This issue has garnered the attention of various stakeholders, including legal scholars, lawmakers, and administrators, who are focused on identifying the root causes and exploring viable solutions A comprehensive analysis of Vietnam's approach to implementing international standards is essential for progress in these areas.
14 For a detailed discussion, see Chapter Two, part 2
Understanding the four environmental obligations within the unique socio-political and legal context of Vietnam is crucial This analysis provides valuable insights into policy development, legal frameworks, and supportive mechanisms aimed at enhancing Vietnam's adherence to international environmental commitments.
The Convention on Biodiversity represents a global effort to balance the interests of North and South states in conserving biodiversity and ensuring the sustainable use and equitable sharing of genetic resources As a biodiversity-rich nation, Vietnam is keen on fulfilling its obligations under this treaty However, despite significant efforts, the effective implementation of the Convention in Vietnam remains limited The challenges faced by Vietnam in meeting its international environmental commitments are exemplified by its experience with the Convention on Biological Diversity This case study highlights potential solutions to the issues Vietnam encounters in aligning with international environmental standards from both theoretical and practical viewpoints.
Methodology
This thesis investigates Vietnam's adherence to international environmental obligations, defining compliance as the fulfillment of these obligations or alignment with international legal standards A review of international law theories and relevant scholarship highlights the importance of domestic implementation as a key method for achieving compliance Although no single theory offers a comprehensive analytical framework, each contributes valuable insights for assessing Vietnam's efforts to meet its international environmental commitments.
Vietnam ranks as the 16th richest country globally in terms of biodiversity, according to the Vietnam Environmental Administration's 2005 report on the National State of Environment.
Special Issue on Biodiversity (Bao Cao Hien Trang Moi Truong Quoc Gia: Chuyen De Da Dang Sinh Hoc) (Viet
5 comply and the implications for Vietnamese implementation are closely examined in Chapter Two
The framework derived from various theories provides a basis for analyzing how different countries implement international environmental obligations This open-ended framework incorporates socio-political, legal, and other contextual factors relevant to domestic implementation The law-in-context approach is particularly beneficial for understanding these obligations In the case of Viet Nam, a transitioning Asian nation, unique characteristics such as community values, customs, the influence of Confucianism, and the political landscape of a socialist rule of law state significantly impact the implementation process Chapter Three offers an in-depth discussion of Viet Nam's socio-political and legal context regarding international environmental obligations.
An in-depth analysis of the implementation of international environmental obligations can effectively utilize a case study approach, with the Convention on Biological Diversity serving as the focal point This implementation involves intricate processes and mechanisms, influenced by various interconnected factors and stakeholders Given the extensive scope and complex obligations of the Convention on Biological Diversity, selecting specific issues for a detailed examination of international environmental obligations in Viet Nam is a suitable method.
The thesis seeks to propose solutions for the challenges Vietnam encounters in meeting its international environmental obligations To achieve this, the research utilizes 'comparative law' as a valuable tool, allowing for the exploration of legal experiences from other countries to identify potential solutions.
‘comparative law’ is used in the thesis for certain ideas in regard to how Viet Nam should
Comparative law plays a crucial role in legal reform, as discussed by Michele Graziadei in "Comparative Law as the Study of Transplants and Receptions," edited by Mathias Reimann and Reinhard Zimmermann.
Handbook of Comparative Law (Oxford University Press, 2006) 441, 441-75 and Jan M Smits, ‘Comparative
Law and its Influence on National Legal Systems’ in Mathias Reimann and Reinhard Zimmermann (eds), The
Oxford Handbook of Comparative Law (Oxford University Press, 2006) 513, 513-38.
6 reform its laws and legal institutions towards better compliance with international environmental obligations.
Main Argument and Thesis Structure
This thesis examines Vietnam's adherence to international environmental obligations, specifically focusing on the Convention on Biological Diversity It analyzes the country's policy and legal framework, institutional mechanisms, and related issues in implementing these obligations The study highlights the significant challenges Vietnam faces in fulfilling its commitments under international environmental treaties.
The thesis contends that although Vietnam has established comprehensive legal and policy frameworks to fulfill its obligations under the Convention on Biological Diversity and other treaties, the ambitious nature of these obligations, coupled with various domestic legal and extralegal challenges, hinders effective compliance with international environmental commitments Additionally, the thesis presents several recommendations aimed at enhancing compliance with these obligations within the Vietnamese context.
This chapter (Chapter One) of the thesis mainly introduces the contextual and methodological issues, on the basis of which related analyses of the thesis are made.
Chapter Two explores Vietnam's compliance with international environmental obligations, focusing on the implementation challenges faced by the country It establishes a theoretical framework for analyzing Vietnam's adherence to international environmental treaties The chapter further examines Vietnam's strategies for compliance and highlights the limitations of these approaches.
Chapter Three analyzes the socio-political and legal environment for implementing international environmental obligations in Vietnam It highlights the impact of Vietnamese cultural and traditional characteristics, as well as contemporary socio-political features, on the development and enforcement of modern Vietnamese law Additionally, the chapter reviews key aspects of Vietnam's legal system that shape the legal framework for fulfilling international environmental commitments This analysis lays the groundwork for subsequent discussions in the thesis.
Chapter Four examines the key characteristics, primary responsibilities, and necessary implementation mechanisms of the Convention on Biological Diversity, highlighting how these elements influence the fulfillment of its obligations This analysis is contextualized within the larger framework of Vietnam's international environmental commitments.
Chapter Five analyzes the key legislative strategies for implementing the Convention on Biological Diversity in Vietnam, emphasizing the Law on Biological Diversity as the primary legislation for biodiversity management It closely examines the Vietnamese legal framework in relation to international environmental obligations, specifically those mandated by the Convention on Biological Diversity, and evaluates the degree to which these obligations have been incorporated into Vietnam's legislation.
Chapter Six examines Vietnam's fulfillment of key obligations under the Convention on Biological Diversity, focusing on the creation and management of protected areas and the conservation and sustainable use of species By analyzing the implementation of these obligations through relevant laws, policies, and institutional frameworks, the chapter seeks to highlight the common challenges Vietnam faces in meeting its international environmental commitments These identified issues will serve as the foundation for recommendations presented in Chapter Seven of the thesis.
Chapter Seven draws several conclusions based on the findings of the previous chapters of the thesis, in which proposals towards a better compliance with international environmental
This chapter outlines Vietnam's commitments under the Convention on Biological Diversity, highlighting the challenges and issues in its implementation It suggests strategies for effective compliance with international environmental obligations, considering Vietnam's unique socio-political and legal context Emphasizing the importance of law enforcement in meeting these obligations, the chapter analyzes compensation mechanisms for environmental damage and explores the potential establishment of environmental courts in Vietnam.
CHAPTER TWO COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL OBLIGATIONS
The compliance with international environmental obligations remains a significant focus for legal theorists, empirical scholars, and commentators Following the United Nations Conference on Environment and Development, the importance of adhering to international environmental treaties has led to numerous studies exploring this issue These studies examine the implementation and compliance of international environmental obligations from various perspectives.
Theories of compliance offer valuable insights into the motivations behind actors' adherence to or deviation from laws and regulations, while also presenting various frameworks for analyzing compliance-related behaviors.
This chapter explores the concept of 'compliance' and differentiates it from 'implementation.' It reviews various theories and approaches to understanding compliance, ultimately proposing a framework for analyzing Vietnam's adherence to international environmental treaties Additionally, the chapter investigates Vietnamese law and literature concerning the nation's compliance with its international environmental obligations.
1 See Philippe Sands et al, Principles of International Environmental Law (Cambridge University Press, 3 rd ed,
2 See for example, Philippe Sands et al, Principles of International Environmental Law (Cambridge University Press, 3 rd ed, 2012), 135-83; LeRoy Paddock et al (eds), Compliance and Enforcement in Environment in
Environmental Law: Toward More Effective Implementation (Edward Elgar, 2011); Daniel Bodansky, Jutta Brunée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University
Press, 2008) Chapter 39, 40, 43, 45; Ulrich Beyerlin, Peter-Tobias Stoll and Rudiger Wolfrum (eds), Ensuring
Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia
(Martinus Nijhoff Publishers, 2006); Durwood Zaelke, Donald Kaniaru and Eva Kruzíková (eds), Making Law
The importance of environmental compliance and sustainable development is highlighted in key works such as "Environmental Compliance and Sustainable Development" by Cameron May (2005), "Engaging Countries: Strengthening Compliance with International Environmental Accords" edited by Edith Brown Weiss and Harold K Jacobson (The MIT Press, 1998), and "Improving Compliance with International Environmental Law" edited by James Cameron, Jacob Werksman, and Peter Roderick (Earthscan Publications Limited, 1996) These publications emphasize the need for effective adherence to international environmental agreements to promote sustainability and protect our planet.
Concept of ‘Compliance’
Notion of ‘Compliance’
Compliance refers to the act of adhering to requests or commands, embodying obedience and agreement In various fields such as physics, mechanics, medicine, business, information technology, and law, the term carries specific contextual meanings For instance, a Data Management website defines compliance as either the state of aligning with established guidelines, specifications, or legislation, or the process of achieving such alignment.
The term 'fulfilment' is closely related to compliance, signifying the act of obeying a command or law, meeting conditions, or achieving completion While both concepts share common linguistic features, compliance focuses on the process of meeting requirements, whereas fulfilment emphasizes the outcome or conclusion of an action.
Implementation refers to the process of putting a decision or plan into action, fulfilling commitments, or completing contracts It focuses on translating ideas into reality rather than the final outcome or product Thus, implementation emphasizes the methods and processes involved rather than merely meeting demands.
In summary, the term 'compliance' often refers to the process of fulfilling obligations, particularly in legal contexts where it denotes the successful outcome of actions that meet these requirements Therefore, compliance signifies obedience or conformity to established commands or standards.
3 See A S Hornby, Oxford Advanced Learner’s Dictionary of Current English (Oxford University Press, 4 th ed,
4 See Robert R Allen (ed), The Concise Oxford Dictionary of Current English (Clarendon Press Oxford, 8 th ed,
5 See SearchDataManagement, http://searchdatamanagement.techtarget.com/definition/compliance, last accessed on 16 th May 2013
12 thesis In some instances fulfilment can also be used, while implementation will be used to cover the process and methods through which compliance is achieved.
Implementation, Enforcement and Facilitating-Compliance
i The Concept of Implementation and Implementation Mechanisms
Implementation of treaties is a complex concept As has been noted, ‘[i]t is accomplished by different means in different countries according to differing constitutional requirements and differing legal traditions’ 8
Implementation in international law refers to the processes and methods through which international norms are integrated into domestic legal systems This concept is often synonymous with 'transformation', which denotes the active incorporation of international standards into national law, particularly in dualist regimes Countries like Australia and Canada exemplify this approach, where the transformation of international treaties into domestic law is governed by the separation of powers doctrine In these jurisdictions, the Executive is responsible for negotiating and ratifying treaties, while the Legislature enacts laws to facilitate their implementation This framework underscores the importance of a structured legal process in aligning domestic law with international obligations.
Armand De Mestral and Evan Fox-Decent discuss the compatibility of Canada's legal system with international law in their work featured in Oonagh E Fitzgerald's edited volume, "The Globalized Rule of Law: Relationship between International and Domestic Law." Their analysis highlights the harmonious relationship between domestic legal frameworks and international legal obligations, emphasizing Canada's unique position in this context.
Elisabeth Eid and Hoori Hamboyan discuss Canada's implementation of its international human rights treaty obligations in their work featured in Oonagh E Fitzgerald's edited volume, "The Globalized Rule of Law: Relationship between International and Domestic Law." They aim to clarify the complexities surrounding this implementation process.
In a dualist legal system, treaties ratified by the Executive do not automatically integrate into domestic law Therefore, it is essential for the Legislature to enact legislation or regulations to transform these treaties into domestic law, ensuring they have legal effect within the country.
Law: Contemporary Principles and Practice (LexisNexis Butterworths, 2006) 104, 111
In "The Use of Comparative Law by Courts: Australian Court at the Crossroads," Jianfu Chen discusses the role of comparative law in judicial decision-making, highlighting its significance in the Australian legal system The article, featured in the compilation edited by U Drobnig and S van Erp, emphasizes the evolving nature of courts' reliance on comparative legal principles.
13 approach, also known as ‘transposition’, is also widely accepted by European Communities to ensure compliance with EC environmental laws 12
Implementation refers to the process of incorporating international law, particularly customary law, into domestic law without the need for legislative or executive action.
Transformation and incorporation refer to the processes that establish when an international obligation becomes a domestic obligation These concepts involve specific methods of implementation that vary across different jurisdictions.
Implementation can be understood practically as the measures taken by states to enforce international treaties within their domestic law This interpretation aligns with the U.S legal framework, distinguishing between self-executing and non-self-executing treaties Additionally, implementation encompasses the process of introducing programs, policies, and laws to fulfill treaty obligations after their adoption.
Implementation refers to the actions taken by a party to fulfill international environmental obligations and to enforce international legal rules within its domestic jurisdiction This process can occur automatically or through legislative measures, depending on the political, constitutional, and legal context.
12 See Colin T Reid and Michael Wood, ‘Implementing EC Conservation Law: EC environmental law—non- implementation—Habitats Directive 92/43—transposition style • Case C-6/04 Commission v UK, 20 October
2005, not yet reported.’ (2006) 18(1) Journal of Environmental Law 135, 135-60
13 See Elisabeth Eid and Hoori Hamboyan, above n 9
14 See Harold K Jacobson and Edith Brown Weiss, ‘A Framework for Analysis’ in Edith Brown Weiss and Harold K Jacobson (eds), Engaging Countries: Strengthening Compliance with International Environmental
Accords (The MIT Press, 1998) 1, 4; See Edith Brown Weiss, ‘Understanding Compliance With International
Environmental Agreements: the Baker’s Dozen Myths’ (1999) 32 University of Richmond Law Review 1555,
15 See Yuji Iwasawa, ‘Doctrine of Self-Executing Treaties in the United States: A Critical Analysis’ (1985-
1986) Virginia Journal of International Law 627, 627-92
16 See Tannetje Bryant and Brad Jessup, ‘The Status of International Environmental Treaties in Viet Nam’
Each state has 14 arrangements to implement international environmental obligations through formal laws and policies Effective enforcement and compliance mechanisms are essential for realizing these commitments within the domestic framework.
Enforcement is a key concept linked to compliance and implementation, encompassing both international and domestic perspectives On the international stage, enforcement often involves the imposition of sanctions on parties that fail to adhere to environmental obligations.
Enforcement at the domestic level involves mandatory actions taken by central and local authorities to ensure compliance with laws and policies that uphold international environmental obligations According to the United Nations Environment Programme (UNEP) Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, enforcement encompasses the procedures and actions utilized by a State and its agencies to ensure that individuals and organizations adhere to environmental laws This includes measures to bring non-compliant entities back into compliance or to impose penalties through civil, administrative, and criminal actions.
Enforcement can be carried out by law enforcement agencies through various domestic measures, which may include administrative actions like monitoring and inspections, as well as judicial processes involving courts and compensation mechanisms.
A more effective strategy than relying solely on enforcement is the 'carrot and stick' policy, which combines compliance-facilitating mechanisms with enforcement measures This approach includes providing information, establishing reporting systems, and implementing economic incentives like quota trading or eco-services to promote compliance.
17 UNEP, Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, http://www.unep.org/delc/Portals/119/UNEP.Guidelines.on.Compliance.MEA.pdf, last accessed on 16 April
15 resources While such mechanisms do not have sanctions, they can positively affect the extent of compliance
In this thesis, compliance is defined as the outcome of appropriate actions, whereas implementation refers to the legal, policy, and other mechanisms that facilitate achieving compliance Although these terms may sometimes be used interchangeably, their distinct meanings are crucial for understanding their roles in legal contexts.
The Issue of Compliance with International Environmental Obligations
This section delves into the nuanced interpretations of 'compliance' within legal and interdisciplinary literature, building on previous discussions Scholars are generally categorized into three groups: international law scholars, international relations scholars, and political economy scholars, along with institutional and liberal scholars Each group offers distinct perspectives on the meaning of 'compliance' and the rationale behind fulfilling treaty obligations.
Prominent international law scholar Louis Henkin asserts that "almost all nations observe almost all principles of international law and almost all of their obligations almost all the time," highlighting the perceived strength of legal norms and the principle of pacta sunt servanda However, this view has faced criticism from international relations scholars for its ambiguity, as it fails to address the underlying reasons for compliance Additionally, international law scholars often use the terms "compliance" and "fulfilment" interchangeably, emphasizing that international environmental treaties establish rules and obligations for States.
Phillippe Sands is a representative of the international law school He uses the term compliance in both broad and narrow senses In his work, compliance can be approached
19 See Louis Henkin, (1979), Why Nations Behave (2 nd ed.), cited in Harold Hongju Koh, Transnational Legal Process, 75 Nebraska Law Review 181, 191-2
In their chapter titled "International Law, International Relations and Compliance," Kal Raustiala and Anne-Marie Slaughter explore the intricate relationship between international law and international relations, emphasizing the importance of compliance in global governance This work is featured in the "Handbook of International Relations," edited by Walter Carlsnaes, Thomas Risse, and Beth A Simons, published by Sage Publications Limited in 2002.
Compliance, from both international and domestic law perspectives, refers to a state's behavior that aligns with a treaty's primary rule It encompasses three interconnected steps: the implementation of international obligations into domestic law and policies, informal measures to ensure compliance by individuals and organizations under the state's jurisdiction, and a complex system of enforcement and assistance measures to secure compliance with international environmental obligations.
Sands examines the impact of international environmental treaties on the compliance of their parties, highlighting these treaties as key sources of international environmental obligations However, his research does not delve into the specific contexts of individual States, where compliance issues necessitate a thorough analysis of domestic factors.
The UNEP Guidelines define compliance as the fulfillment of obligations under a multilateral environmental agreement, including any amendments They also emphasize that implementation is a crucial step toward achieving compliance, involving the development of national legal and policy frameworks Furthermore, the UNEP Manual on Compliance with and Enforcement of International Environmental Agreements outlines specific domestic measures and mechanisms that parties should adopt to ensure adherence to international environmental obligations established by treaties.
Philippe Sands refers to 'national compliance' rather than 'domestic compliance' in his work on international environmental obligations This concept is discussed in the book "Improving Compliance with International Environmental Law," edited by James Cameron, Jacob Werksman, and Peter Roderick.
(Earthscan Publications Limited, 1996) 48, 52-3 See also, Philippe Sands et al, Principles of International Environmental Law, above n 1, 139
22 See Philippe Sands, ‘Compliance with International Environmental Obligations: Existing International Legal Arrangements’, above n 21, 49
24 See UNEP, Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, above n 17, C 9 (a)
17 product of the experience of nearly 90 countries, little Vietnamese experience is referred to in this UNEP Manual 26 ii International Relation and Political Economy Scholars
International relations scholars Kal Raustiala and Anne-Marie Slaughter define compliance as the alignment between an actor's behavior and specific rules, emphasizing that compliance involves action rather than just outcomes They maintain a rationalist perspective, acknowledging the influence of politics, power structures, and the calculation of costs and benefits in determining compliant or non-compliant behavior Raustiala argues that rationalist theories explain compliance in instrumental terms, linking actor behavior to the nature of the problem, the structure of the chosen solution, and the associated costs and benefits.
International relations scholars share a common approach with the international law school in focusing on the international perspective of compliance, referring to the role of
International relations and political economy scholars contend that international law, rules, and norms have minimal impact on adherence to international environmental treaties, unlike their counterparts in international law They advocate for deterrence and enforcement as the primary methods for preventing non-compliance George Downs emphasizes that enforcement is increasingly crucial for ensuring compliance, both within specific agreements and across the broader international system.
26 See UNEP, Manual on Compliance with and Enforcement of International Environmental Agreements
27 See Kal Raustiala and Anne-Marie Slaughter, above n 20, 539
28 See Kal Raustiala, ‘Compliance and Effectiveness in International Regulatory Cooperation’, (2000) 32 Case
Western Reserve Journal of International Law 387, 400-5
29 See George Downs, ‘Enforcement and the Evolution of Cooperation’, (1998) 19 Michigan Journal of
International law scholars, along with those in international relations and political economy, have largely overlooked the role of domestic factors in compliance determination, although they are receptive to incorporating these elements into their analyses.
Numerous scholars, including Ronald Mitchell and Harold Jacobson, define compliance as an actor's behavior that aligns with a treaty's explicit rules Jacobson and Edith Brown Weiss expand this definition to encompass not only implementation but also adherence to treaty provisions and the measures established by countries, thus broadening compliance to include fulfillment However, this broader approach lacks a cohesive analytical framework due to varying interpretations of compliance While Jacobson and Weiss consider both obligations and objectives of environmental treaties, Mitchell focuses solely on the formal obligations outlined in treaties.
Durwood Zaelke, Matthew Stilwell, and Oran Young define compliance as a state of alignment between an actor's behavior and a specified rule, independent of the factors or circumstances influencing this alignment They advocate for eliminating the distinction between international and domestic compliance, viewing domestic compliance as integral to international compliance Their analysis suggests that the most effective compliance model incorporates both managerial and enforcement approaches, while also examining the instruments and mechanisms that facilitate compliance.
30 See Ronald Michell, ‘Compliance theory: An Overview’ in James Cameron, Jacob Werksman and Peter Roderick (eds), Improving Compliance with International Environmental Law (Earthscan Publications Limited,
31 See Harold K Jacobson and Edith Brown Weiss, ‘A Framework for Analysis’, above n 14, 4
32 See Durwood Zaelke, Donald Kaniaru and Eva Kruzikova ‘Introduction’, in Durwood Zaelke, Donald Kaniaru and Eva Kruzikova (eds), Making Law Work: Environmental Compliance and Sustainable Development (Cameron May, 2005) 21, 22
19 and enforcing compliance with international environmental obligations at both international and domestic levels
Jacobson and Weiss analyze the impact of various international factors, including the context, nature of activities, and characteristics of environmental treaties on compliance They argue that the specific features of an agreement significantly affect compliance levels, particularly emphasizing the importance of the clarity and fairness of obligations The authors invite further discussion on how the nature of obligations and implementation methods influence compliance priorities They highlight that different types of obligations affect the choice of implementation strategies and the integration of environmental requirements into domestic law Additionally, their work underscores the critical role of domestic factors, such as administrative capacity and the influence of non-governmental organizations, in shaping compliance outcomes.
There is a divergence of opinion among scholars regarding the compliance concept, but two common themes emerge Compliance generally refers to the fulfillment of international environmental treaty obligations and includes behaviors that align with these treaties Additionally, the studies of liberal scholars and institutional frameworks are crucial for understanding compliance While international environmental treaties establish obligations, social, institutional, and domestic factors significantly influence the compliance effectiveness of countries like Viet Nam.
Implementation to Comply with International Environmental Treaties in Viet Nam
Implementation of International Environmental Obligations prior to
In 1986, the Communist Party of Viet Nam (CPV) initiated the Renovation Policy, emphasizing economic reform and an open-door approach, which also called for legal regulation of society, moving away from traditional moral-based governance This shift allowed for the introduction of legal frameworks to meet international obligations Viet Nam aimed to be an active participant in international environmental conservation, engaging in its first international environmental treaty shortly after the establishment of the Democratic Republic of Viet Nam However, the State struggled to consistently fulfill these commitments.
Hanoi Law University Textbook on International Law (Truong Dai Hoc Luat Ha Noi – Giao Trinh Luat Quoc Te), (People’s Police Publishing House, 2004) 75, 75-98
The Communist Party of Vietnam's documentation from the Sixth National Congress of Delegates, published by The Truth Publishing House in 1987, provides essential insights into the party's policies and historical context.
Vietnam's engagement in international environmental treaties has varying accounts, with some sources, including Truong Manh Tien, the former Director of the Environmental Department at the Ministry of Natural Resources and Environment (MONRE), identifying the Convention concerning the Protection of the World Cultural and Natural Heritage as the first treaty Vietnam participated in.
22 international environmental treaties because of the lack of clear legal mechanisms for implementation and compliance
Prior to the 1989 Ordinance on Viet Nam’s Treaties, there were no mandatory mechanisms for the fulfillment of international environmental treaties, with the 1980 Constitution serving as the sole source of guidance The responsibility for implementing international environmental obligations was divided among the legislature, executive, and judiciary branches.
The 1980 Constitution of Vietnam designates the State Council and the Council of Ministers with powers related to the ratification and implementation of international treaties The State Council is responsible for ratifying international environmental obligations, marking the initial step in their enforcement, while the Council of Ministers oversees the implementation as part of foreign affairs However, the Constitution primarily outlines general principles for state organization and the responsibilities of state organs, lacking specific mechanisms to effectively fulfill international environmental obligations.
The special issue of Loose-leaf on Legal Studies, titled "Current State of Environmental Law in Vietnam and International Experiences," published by the Legal Research Institute, explores the contemporary legal framework governing environmental issues in Vietnam while drawing on international best practices.
The records of Vietnam's international environmental treaties vary due to differing interpretations of what constitutes such treaties Mr Tien focused solely on global treaties, while Vietnam's Ordinances prior to the 2005 Law on Conclusion, Accession, and Implementation of International Treaties define international treaties more broadly, encompassing all arrangements made by the State and its institutions Additionally, insufficient registration of these treaties may lead to limited accessibility of information Research indicates that only three environmental treaties were established before 1986: the Agreement for the Establishment of the Asia-Pacific Fishery Commission, which Vietnam joined on January 3, 1951; the Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological Weapons, signed by Vietnam on April 10, 1972, and effective from June 20, 1980; and the Convention on the Prohibition of Military or Hostile Use of Environmental Modification Techniques, to which Vietnam acceded on August 26, 1980.
43 Article 107 of the 1980 Constitution of the Socialist Republic of Viet Nam stipulated that:
The Council of Ministers shall have powers and duties as follows:
16 To organise and govern the foreign affairs of the State; to guide the implementation of concluded treaties and agreements
The absence of clear legal guidelines for implementing treaty obligations led to a lack of compulsory mechanisms, which in turn resulted in limited adherence to international environmental commitments This issue has been acknowledged by several Vietnamese environmental scholars.
During that period, the environmental law's content failed to align with the demands for international cooperation in environmental protection The Vietnamese Government's enacted rules showed limited conformity with international conventions.
The absence of legislative implementation led to the ad hoc fulfillment of international environmental obligations Consequently, the Council of Ministers emerged as the most influential legal body capable of significantly impacting the execution of these obligations under Constitutional rules.
The lack of formal legal mechanisms for the Executive Government to implement treaty obligations has led to a case-by-case approach, resulting in fragmented implementation This ad hoc method has caused unintentional failures to meet certain obligations Ultimately, the constitutional rules granting the Government the power to implement international environmental obligations do not ensure consistent compliance with these treaties.
The implementation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons has been modest, primarily due to limited actions by the State Despite being one of the first countries to sign the Convention, Viet Nam has not promptly enacted the necessary measures to fulfill its obligations There is a lack of existing legislation to support the Convention's requirements, and no plans have been established to create new laws for the destruction of prohibited weapons.
In the textbook on Environmental Law edited by Le Hong Hanh and Vu Thu Hanh at Hanoi Law University, the concept of environmental law is thoroughly examined, highlighting its significance in contemporary legal frameworks.
– Giao Trinh Luat Moi Truong) (People’s Police Publishing House, 2007) 7, 47
In response to the obligations of the Convention on biological and toxic substances, Viet Nam established the National Committee on Investigating the Consequences of American Chemical Warfare in Viet Nam (Committee 10-80) to facilitate the partial implementation of the treaty's requirements.
1980 47 The establishment of the Committee seemed to implement the obligations in Article
The Committee investigated the impact of chemical toxins used by the Americans in Vietnam, with the findings serving as a foundation for compensation claims against the US Army.
Implementation of International Environmental Obligations after the
This section explores how the creation and modifications of 'unified' mechanisms have influenced the implementation of international environmental treaties, analyzing their implications from theoretical, practical, and historical viewpoints.
Viet Nam is likely to continue to pursue a dualist approach in regard to the relation between international law and domestic law; 52 hence domestic legal implementation is very important
Grigorii Ivanovich Tunkin, a notable theorist in international law, emphasizes that while the socialist doctrine views international law and domestic law as distinct and independent systems based on the principle of sovereignty, these two legal frameworks are, in fact, intricately interconnected.
Publishing House, 1974), 64 See also Hanoi Law University, Textbook on International Law ( Giao Trinh Luat
Quoc Te) (Legal Science Publishing House, 1984), vol 2, 26-7
According to the dualist theory, international law and domestic law function as distinct legal systems Although Vietnamese law does not explicitly acknowledge the dualist perspective on the relationship between these two legal frameworks, substantial evidence supports this approach Notably, the Prime Minister's Decision Number 34/2005/QĐ-TTg exemplifies this dualist argument.
The internalization of all ratified international treaties on environmental protection is emphasized in the Prime Minister's Decision Number 34/2005/QĐ-TTg Additionally, Article 6 of the 2005 Law further illustrates this commitment to integrating international environmental standards into national legislation.
Vietnam is actively enhancing its compliance with international environmental treaties by establishing a comprehensive regulatory framework that encompasses both legal and policy measures.
National laws and policies have expanded to establish a robust legal framework for meeting international environmental obligations However, challenges remain in effectively managing environmental issues and enforcing domestic laws This highlights the need for a deeper understanding of treaty implementation within Vietnamese literature.
Vietnamese scholars and lawmakers have engaged in extensive discussions regarding the concept of implementation, particularly prior to the 2005 enactment of the Law on Conclusion, Accession, and Implementation of International Treaties Some literature refers to 'implementation' (thực hiện) while drawing parallels between international treaties and domestic law Notably, this law stipulates that treaties must be
‘directly applied’ to the State organs, organisations or individuals by the decision of the competent authorities in executing the act of consent to be bound by a treaty
The term "legal framework" refers to the intricate set of legal norms established by state organs, including central governmental bodies like the National Assembly, the President, and the judiciary In contrast to common law systems, such as that of Australia, where law is derived from legislation and judicial decisions, the Vietnamese legal system is characterized by legal norms organized within a formal hierarchy known as legal normative documents.
For an insightful exploration of the interplay between international law and domestic law in the context of concluding and implementing international treaties, refer to Le Mai Anh's work, "The Relationship between International Law and Domestic Law in the Conclusion and Implementation of International Treaties." This discussion is featured in the edited volume "International Law - Theory and Practice," co-edited by Le Mai Anh and Tran Van Thang.
Publishing House, 2001) 51, 51- 93, Nguyen Kim Ngan, ‘The Issue of Implementation of the International Commitments within the National Territory' (2002) 4 Jurisprudence Review (Tap Chi Luat Hoc) 35, 35-40,
Nguyen Trung Tin's article, "On the Settlement of the Relationship between International Law and Domestic Law in Vietnamese Law," published in the State and Law Journal, explores the interplay between international and national legal frameworks in Vietnam Additionally, Le Thanh Long discusses the incorporation of international environmental law into Vietnamese legislation, highlighting the initial steps towards internalization and transformation of these legal norms This discourse is further contextualized in the special issue edited by Hoang The Lien, which examines the current status of Vietnamese environmental law and draws on international experiences.
Va Kinh Nghiem Quoc Te) (Legal Research Institute -Ministry of Justice, 2003) 100, 100-35
The Ordinance of the Standing Committee of the National Assembly Number 07/1998/PL-UBTVQH 10, dated August 20, 1998, outlines the conclusion and implementation of international treaties For more details, visit the official document at the Ministry of Justice's website.
The term 'implementation' has a long history but lacks a clear definition In an international context, it refers to the process of making treaties and enforcing specific framework rules Domestically, implementation is viewed as a comprehensive process that involves establishing a legal framework to execute international treaties, with State agencies playing a crucial role in organizing this implementation.
The term 'implementation' refers to the internalization, transformation, or integration of an international treaty into domestic law Le Thanh Long critiques the notion that transformation equates to creating comprehensive laws to enforce treaties within Vietnam, suggesting that the domestication of international law should be interpreted differently within Vietnamese legal scholarship.
Dr Long advocates for the 'direct legal effect' of international environmental treaties within the Vietnamese legal system, particularly when these treaties contain no conflicting provisions or address areas not covered by domestic law This approach aims to facilitate swift compliance with treaties, recognizing that many environmental agreements are structured as frameworks His perspective aligns with the ongoing discourse on self-executing and non-self-executing treaties, offering a practical reinterpretation of how international agreements can be integrated into domestic law.
In Vietnamese law, the terms 'internalisation' (noi luat hoa) and 'implementation' (thuc hien) are commonly used but lack official interpretation Despite their frequent use, these terms may carry distinct meanings Notably, 'internalisation' was first introduced in a Prime Ministerial Decision, which mandated the internalisation of all relevant regulations.