Openness transparency and accountability on environmental protection in vietnamese law

P a Tru Ly1, ---I troduct o Openness, t anspa ency and accountability a e essential qualities of the public se vices in most of developed count ies, besides othe qualities such as effect

VI AL C I I VI A LA

Prof Dr P a Tru Ly1,

-I troduct o

Openness, t anspa ency and accountability a e essential qualities of the public

se vices in most of developed count ies, besides othe qualities such as effectiveness, efficiency, and integ ity, etc Ensu ing of accountability is accompanied ith concepts, mechanisms and la s on openness, t anspa ency and democ acy in gove nmental autho ities, pe fo mance In the ecent time, ensu ing t anspa ency of state administ ative agencies has been ecently conside ed as one ofthe u gent equi ements

fo imp oving the efficiency of state management agencies, ensu ing democ acy in the State’s pe fo mance as ell as indispensable equi ements in the implementation of inte national commitments

Rega ding the envi onment, the application of p inciples of oppenness

t anspa ency and accountability is an impo tant p e equisite fo the exe cise ofhuman ights The Decla ation of the United Nations Confe ence on the Human Envi onment (Stockholm Decla ation, 72) identifies that living in the clean envi onment is one

of the co e p inciples in the elationship among count ies P inciple specifies that

“Man has thefundamental right tofreedom, equality and adequate conditions of life, in

an environment of a quality that permits a life of dignity and well-being, and he bears

a solemn responsibility to protect and improve the environmentfor present and future Former Head o f the Law Committee under National Assembly o f Vietnam

2Environmental and ocial cience Institute

generations>n P inciple of the Rio Decla ation on Envi onment and Development (Rio đe Janei o, 2) adopted ith 78 app ovals of 78 gove nments in the o ld states that “Human beings are at the centre of concerns for sustainable development hey are entitled to a healthy and productive life in harmony with nature3’2 Living in

a healthy envi onment is one of the key p inciples and natu al ights ecognized by the inte national community and is di ectly elated to the quality of life Humans a e entitled to the clean envi onment ith pe missible standa ds and ha mony ith natu e;

o in othe o ds, this is the ight to live in the a ea ithout polluted o deg aded envi onment

Rio Decla ation on Envi onment and Development in 2 sho s the a a e

of the impo tance of the application of the p inciples of openness, t anspa ency and accountability, specifically, P inciple 0 affi ms that “At the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes tates shall facilitate and encourage public awareness and participation by making information widely available”3 Count ies in the o ld have eaffi med thei commitment to these p inciple at Johannesbu g Summit 2002 - the Wo ld Summit on Sustainable Development Convention on Access to info mation, Public Pa ticipation

in Decision-Making and Access to Justice in Envi onmental Matte s (Aa hus Convention) as adopted by 3 count ies and Eu opean Community in 8 in the city of Aa hus at the Fou th Ministe ial Confe ence on “Envi onment fo Eu ope” The

ob ective of the Convention is “to contribute to protection of the right of every person ofpresent andfuture generations to live in an environment adequate to his or her health and well-being”

To effective implement inte national commitments as ell as to meet u gent equi ements in the innovation and development p ocess, the Vietnam’s Communist

Pa ty and State have had many significant steps fo a d in the p ocess of finalizing the institutional f ame o k and policies on implementation of the p inciples of

Openness, ransparency and Accountability in tate overnance

United Nations Confe ence on the Human Envi onment - ƯNCHM ( 72), The Decla ation of the United Nations Confe ence on the Human Envi onment (Stockholm Decla ation), Stockholm, June 6, 72

2 United Nations Confe ence on Envi onment and Development - ƯNCED ( 2), Rio Decla ation on Envi onment and Development, Rio de Janei o (B azil), 3- 4 June, 2

3 United Nations Confe ence on Envi onment and Development - ƯNCED ( 2), Rio Decla ation on Envi onment and Development, Rio de Janei o (B azil), 3- 4 June, 2

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oppenness, t anspa ency and accountability in the envi onment field This pape aims

at the gene alization of the p ocess of imp oving the la s on openness, t anspa ency and accountability in the envi onmental p otection; evaluating the effectiveness of la

enfo cement as ell as identifying limitations in the la s on openness, t anspa ency and accountability in the envi onmental p otection ove the ecent time

Ope ess, tra spare cy a d accou tab l ty - co s ste t requ reme ts

V et am’s e v ro me tal law

1 1 Current situation o f laws on openness and transparency in the environmentfield

The 46 Constitution, the fi st Constitution of the Vietnam, ma ked the histo ic victo y in the August Revolution and establishment of the Democ atic Republic of Vietnam The ideas of openness and t anspa ency have been affi med fo the fi st time

by P esident Ho Chi Minh, Vietnam’s Communist Pa ty and State in the decla ation

“Buildinga dean and strongstate ofthepeople” The 46 Constitution also egulated that

“ he arliament's meetings are open hepublic are allowed to come to listen he press is allowed to broadcast discussions and resolutions of the arliament”l and “court trials shall

be public, unless specified otherwise”2 Thus, acco ding to the legislative ideology of the

46 Constitution, citizens e e entitled to access info mation in a public, di ect manne

o indi ectly via the p ess about meetings of the Pa liament (the legislative body of the Democ atic Republic of Vietnam) o t ials of the cou ts (Judicial body)

The 3 La on Envi onmental P otection as fi st enacted hen the 2 Constitution came into fo ce At this time, the e e e no di ect egulations on info mation openness, t anspa ency on envi onmental p otection The scope and fo m

of info mation disclosu e had some limitations “ overnmental agencies, within the scope o f their respectivefunctions and tasks, are responsiblefor investigating:>researching and assessing of the current environment status; periodically reporting to the National Assembly on the environmental situation; identifingpolluted areas informing thepeople”3 The 2005 Anti-Co uption La as the fi st la to int oduce the definitions of openness, t anspa ency and the p inciples of openness and t anspa ency in the state gove nance management of agencies, o ganizations and units Acco dingly, openness

Openness, ransparency and Accountability in tate overnance

A ticle 30 of the 46 Constitution

2A ticle 67 of the 46 Constitution

3A ticle 0 of the 3 La on Envi onmental P otection

is the publication and elease of official info mation of ce tain documents, activities contents o the elease of contents by agencies, o ganization units ; Contents and enfo cement of policies and la s must be public, t anspa ent, fai and democ atic; Agencies, o ganizations and units must publicize thei activities, except fo contents classified as state sec ets and contents p esc ibed by the Gove nment2 Besides egulating the esponsibility fo the info mation openness and t anspa ency by agencies and units, the La also specifies fo ms of info mation disclosu e to the people to make them unde stand the info mation The p omulgation of the 2005 Anti-Co uption

La sho ed the legislative agencies inte est to a ds openness and t anspa ency info mation to the people in all a eas of the state management

At the same time, the 2005 La on Envi onmental P otection also initially

p ovided egulations on openness and t anspa ency in the envi onmental p otection Acco dingly, the info mation elated to envi onmental p otection to be disclosu ed include: Ỉ) ublication at the project sites about information on kinds of wastes, wastes treatment technologies, standard parameters of wastes and environmental protection solutions for residential communities to know, inspect and monitor; 2) ublication

of decisions on handling of polluting or seriously polluting establishments at places of polluting establishments; 3) ublication of information on sources of waste discharged into rivers; 4) ublication ofresults ofinvestigation, including the causes, degree and scope ofpollution, and damages caused to the environment; 5) ublication of environmental impact assessment reports, decisions approving environmental impact assessment reports, and plans for implementation of such decisions, requirementsỈ 6) Registered environmental protection commitments; 7) Lists, information on discharge sources> wastes harmful to human health and environment; 8) olluted areas, degraded areas with serious andparticularly serious environmentalpollution and degradation;potential environmental incident occuring areas; 9) lanningfor waste collection, recycling and treatment; 10) rovincial-level environmental status reports, environmental impact reports of branches and domains, and national environment reports; 11) Organizations and individuals managingconcentratedproduction, business and service zones; owners of production, business and service establishmentsỈprofessional organizations and officials

in charge of environmental protection shall have to inform the people and laborers in their production, business and service establishments about the environment situation, measures to prevent and restrict adverse environmental impacts and measures to Claude 2 A ticle 2 of the 2005 Anti-Co uption La

2A ticle of the 2005 Anti-Co uption La

Openness, ransparency and Accountability in tate overnance

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remedy environmentalpollution and degradation Despite equi ements of info mation openness and t anspa ency e en’t eflected in the 2 Constitution, but ell eflected in the 2005 La on Envi onmental P otection inte ms of its contents and

fo ms Ho eve , the La on Envi onmental P otection is ust a “sub-la ” that has not cove ed a comp ehensive scope of disclosu e and t anspa ency of info mation hich othe la s must be compatible ith

The egime of openness, t anspa ency and accountability of info mation is the most evident in the 20 3 Constitution Acco dingly, “the state shallfacilitate citizens

to participate in administration of the tate and society; and shall ensure publicity and transparency to citizens' opinions and recommendations This is conside ed as a

p inciple ofopenness and t anspa ency hen all State management agencies a e obliged

on eceipt and esponse to citizens’opinions and ecommendations upon equests The efe ence of the openness and t anspa ency in the Constitution is ve y impo tant and meaningful, hich equests la s and codes to comply ith and conside s openness and t anspa ency as a mandato y p inciple fo development la

The 20 4 La on Envi onmental P otection as enacted ith an expanded scope of info mation disclosu e, clea fo m of info mation disclosu e, p ovide clea egulations on the autho ities esponsible fo disclosing info mation, as follo s:

In te m of contents, five g oups of envi onmental info mation to be published acco ding to A ticle 3 of the 20 4 La on Envi onmental P otection include: (a) Repo t on st ategic envi onmental assessment (SEA), envi onmental impact assessment (EIA) and envi onmental p otection plan; (b) Info mation of emission sou ces, emissions and t eatment of aste; (c) A eas suffe ing f om se ious and

pa ticula ly se ious pollution, deg adation, potential envi onmental incident - ocea ing

a eas; (d) Envi onmental epo ts; and (e) Results of investigation and inspection of envi onmental p otection Ho eve if “the information prescribed in this claude is on the list ofstate secrets, it wiU not bepublished”

In te m of fo ms, Clause 2, A ticle 3 of the 20 4 La on Envi onmental

P otection egulated that: “ he publishingforms must ensure conveniencefor relevant information recipients” Dec ee No /20 5/ND-CP date Feb ua y 4, 20 5 of the Gove nment detailing a numbe of a ticles of the La on Envi onmental P otection specified fo ms to p ovide envi onmental info mation fo esidential communities,

Openness, ransparency and Accountability in tate overnance

A ticle 28 of the 20 3 Constitution

Openness, ransparency and Accountability in tate overnance

including: (i) documents, p ints and publications published on the mass media; (ii) official ebsites of management agencies, investo s, o ne s of p oduction, business and se vice establishments; (iii) publicly posting at p oduction, business

se vices establishments and head office of the commune Peoples Committee; (iv) p ess confe ence; (v) meetings to disseminate to esidentialcommunities; and (vi) othe fo ms

as p esc ibed by la The envi onmental info mation to the community is p ovided at least once a yea , and the minimum time fo info mation publishing on official ebsites and posting is at least 30 days In the ELA consultation p ocess, info mation p ovision and consultation a e ca ied out in community meetings (Claude 6, A ticle 2 ofDec ee

No 8/2005/ND-CP date 4/02/20 5 on Envi onmental p otection planning, epo ts

on st ategic envi onmental assessment (SEA), envi onmental impact assessment (EIA) and envi onmental p otection plan, hich is evised by Dec ee NO 40/20 /ND-CP) One of the significant b eakth oughs in implementing the openness, t anspa ency and accountability fo envi onmental info mation is Dec ee No 73/20 7/ND-CP date 4/6/20 7 of the Gove nment on collection, management, exploitation and use of info mation data on natu al esou ces and envi onment Acco dingly, “ he collection, management, exploitation and use of information, data on natural resources and environment are performed according to thefollowingprinciples: (1) Ensure the accuracy, honesty, science, objectiveness and inheritance; (2) Collect and manage all sources of information and data from authorities, organizations and individuals; (3) tore and maintain data soas toensure long-term andconvenientuse; (4) ystematicallyorganizations tofacilitate the exploitation use, increase efficiency and savingfor the entire society, and improve the national competitiveness; (5) Data and information can be published and accessed in accordance with regulations of the Law on Access to Information, excluding information and data of the state secrets and restricted from accessing; (6) Data and information must be timely provided to serve the state management and meet the social-economic development demands as well as ensure national defense and security; (7) Data and information must be usedfor prescribedpurposes with sources of information quoted

in accordance with regulations of the laws on protection of state secrets and intellectual property; (8) Exploitation and use ofinformation and data mustfulfillfinancial obligations

in accordance with regulations of law” Hie Dec ee also encou ages o ganizations and individuals to invest in acquisition, c eation, p ovision and sha ing of info mation and data on natu al esou ces and envi onment in acco dance ith the la ; and to p ovide and disclose info mation and data on natu al esou ces and envi onment to state agencies, cont ibuting to p otecting national sove eignty and se ving mutual inte ests

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Realizing the o ientation ofthe 20 3 Constitution on openness and t anspa ency, the 20 6 La on Access to Info mation focused on openness and t anspa ency of info mation to the people The La egulates on implementation citizens' ights to accessto info mation; p inciples, p ocesses andp ocedu es fo accessingto info mation; esponsibilities and obligations of state agencies in ensu ing the citizens5 ights to access to info mation If the people cannot access to info mation to be disclosed openness is only a p inciple in the Constitution It is necessa y to specify egulations

on the types, fo ms and timeline of info mation publishing so that autho ities can implement ithout any confusion and can’t excuse to disclose info mation including envi onmental info mation, unde thei management Info mation to be disclosed has been expanded in all a eas of state management, hich means that the ia s gove ning envi onmental p otection shall be public and t anspa ent ithout any excuse Besides obligations on ensu ing citizens’ ights to access to info mation, the La also egulates esponsibilities of o ganizations and individuals that obst ucting citizens’ ights to class to info mation Acco dingly, the 20 6 La on Access to Info mation stipulates six fo ms to access to info mation

In gene al, the cu ent la s elated to envi onmental p otection in the Vietnamese legal system egulate sufficiently on openness and t anspa ency of info mation in managing and ope ating thei fields Ho eve , it is necessa y to specify mo e fo ms

of openness and t anspa ency as ell as imp ovement of staff, officials comply ith thei assigned ights and esponsibilities, to effectively implement openness and t anspa ency in o de not to make ha assment and hinde the ights to access info mation and to indi ectly involve in inspections of envi onmental p otection of autho ities and o ganizations

1.2 Descr pt o o f lawso accou tab l ty of t eenvironment

Besides openness and t anspa ency, accountability is impo tant to p omote inspection, supe vision of citizens to public affai s Accountability is fi st defined in the Dec ee No 0/20 3/ND-CP dated August 08, 20 3 by the Gove nment egulating accountability of autho ities on assigned tasks and po e Thus, accountability is the

p ovision and explanation of info mation on tasks, po e and esponsibilities fo implementing ones by autho ities Accountability is esponsibilities of competent autho ities, o ganizations and individuals hich must p ovide and explain fully

Openness, ransparency and Accountability in tate overnance

1 A ticle 8 of the 20 6 La on Access to Info mation

Openness, ransparency and Accountability in tate overnance

info mation in assigned fields The accountability is egulated in the Dec ee, applied

fo all autho ities, o ganizations and individuals in all fields of the state management This is specified in the Dec ee No 0/20 3/ND-CP

Rega ding the envi onment, the state management in the 20 4 La on Envi onmental P otection is specified in envi onmental p oblems including Envi onmental policies, envi onmental standa ds, envi onmental impact assessments, envi onmental p otection commitments, st ategic envi onmental assessments, conse vation and use of natu al esou ces, envi onmental p otection in p oduction,

u ban and esidential a ea, ma ine envi onmental p otection, ate envi onmental

p otection, aste management, p evention and esponse to envi onmental incidents, solutions to pollution and envi onmental ecove y; envi onmental taxes and cha ges, envi onmental deposit; settlement of violations and claims in envi onment, compensations fo envi onmental damages The A ticles of 34, 37, 40, 4 , 42, and 43 egulated the state’s esponsibilities fo envi onmental p otection by the Gove nment, Minist ies and ministe ial agencies, Gove nmental agencies, People’s Committees at all levels, specialized agencies and officials in eha ge of envi onmental

p otection Regulationsonenvi onmentaimanagementanddelimitationofmanagement autho ity in envi onmental management a e on the basis that accountability belongs

to any individual, agency, o ganization hethe the equi ements of accountability is ithin scope of management by autho ities o not

Fo example, the p ovincial Peoples Committee is esponsible fo envi onmental assessment and epo t Mo eove , the epo ts on envi onment shall be public In case the epo ts a e inco ect about the statistics o content ofenvi onmental epo ts is not the same

p ocedu e o de , etc , hen equi ed accountabilityby agencies, o ganizations, individuals, the p ovincial People’s Committee shall analyze the contents unde thei esponsibilities It

is not fo any eason that esponsibilities a e t ansfe ed to anothe agencies

e v ro me tal protect o V et am today

2.1 Eff c e cy o flaw e forceme t o ope ess,tra spare cy a d accou tab l ty

e v ro me tal protect o

2 1 1 Law enforcement on collection and establishment of database and environmental information

Hie envi onmental info mationcollectionhasbeen cu ently egulatedin diffe ent

fo ms; ho eve , mainly envi onmental monito ing Envi onmental monito ing is a systematic monito ing p ocess ofenvi onmental components, impact facto s to p ovide info mation on the status assessment, envi onmental quality and adve se impacts on the envi onment (Clause 20 A ticle 3 of the 20 4 La on Envi onmental P otection) Envi onmental monito ing has been focused on components and emissions in ate envi onment (including continental su face ate , g ound ate , and sea ate ); ai envi onment (including indoo and outdoo ai ); noise, vib ation, adiation, light; Soil envi onment, sediment; adiation; aste ate , exhaust gas, solid aste; haza dous chemicals emitted and accumulated in the envi onment; and biodive sity

The state autho ities and elevant p ivate o ganizations a e esponsible fo implementing envi onmental monito ing as follo s the Minist y ofNatu al Resou ces and Envi onment in cha ge of di ecting, guiding and inspecting envi onmental monito ing activities- nation ide; o ganizing national envi onmental monito ing

p og ams; the p ovincial People’s Committees in cha ge of o ganizing envi onmental monito ing p og ams, epo ting on esults to the People’s Assembly at the same level and the Minist y of Natu al Resou ces and Envi onment; Indust ial pa ks, expo t p ocessing zones, hi-tech pa ks, indust ial cluste s, t ade villages, p oduction, business and se vice establishments ca ying out monito ing p og ams on emissions and envi onmental components; and epo ting to the autho ities on envi onmental

p otection acco ding to the la s

Envi onmental monito ing must be implemented ith ce tain p og ams and systems National envi onmental monito ing includes envi onmental monito ing

p og amsfo inte p ovincial ive sandlakebasins ceyeconomic egions^ ansbounda y envi onment and envi onment in specific a eas P ovincial one includes envi onmental component monito ing p og ams in the a ea; envi onmental monito ing of indust ial

pa ks, expo t p ocessing zones, hi-tech pa ks, indust ial cluste s, t ade villages,

p oduction, business and se vice establishments in monito ing of emissions and envi onmental components acco ding to the la Envi onmental monito ing system includes national envi onmental monito ing; p ovincial envi onmental monito ing; envi onmental monito ing at p oduction, business, se vice establishments The envi onmental monito ing system must be planned synch onously and cohe ently and

c eated a unified and comp ehensive net o k

Openness, ransparency and Accountability in tate overnance

!Minh Thao (20 ), Regulationsofthe La on envi onmental info mation and impacts ofthe la implementation, Website of Minist y of Justice, dated Septembe 23 d, 20

Openness, ransparency and Accountability in tate overnance

Afte envi onmental monito ing, the autho ities and elevant o ganizations must manage monito ing data in acco dance ith egulations The Minist y of National Resou ces and Envi onment has managed data of envi onmental monito ing; established national envi onmental monito ing database and published envi onmental monito ing esults, guided business and suppo ted management technology data fo envi onmental monito ing; the p ovincial People’s Committees have managed thei

o n ones; Indust ial pa ks, expo t p ocessing zones, hi-tech pa ks> indust ial cluste s,

t ade villages, p oduction, business and se vice establishments have managed them acco ding to the la

Besides envi onmental info mation collection th ough envi onmental monito ing,the autho ities,o ganizations,individualshavealsocollectedenvi onmental info mation th ough sociological investigation, inte vie , su vey on envi onment o claim, denouncement in envi onmental field, etc Ho eve , the info mation is only seconda y and de ived f om envi onmental monito ing esult, accu acy collection and assessment of the info mation f om the collection method a e ve y impo tant fo the eason that these a e a key basis of detection, handle of behavio s violating the la

on envi onment and settlement of envi onmental disputes

Afte collecting envi onmental info mation, the autho ities shall establish database ofenvi onmentalinfo mation unde diffe entfo ms Ho eve , the info mation

a e mainly catego ized into t o types of national and p ovincial envi onmental status epo t The Minist y of Natu al Resou ces and Envi onment makes a status epo t

on National envi onmental eve y 5 yea s; annually thematic epo t on national envi onment is made; the p ovincial People’s Committee makes a status epo t on envi onmental in the a ea eve y 5 yea s; pu suant to p essing p oblems envi onment

in the a ea, decision on making envi onmental thematic epo t, Ministe of Natu al Resou ces and Envi onment guides to make a status epo t on envi onment

The status epo t on envi onmental includes: Ove vie ofnatu e, economic, society; envi onmental impacts; Status and development ofenvi onmental components; p essing

p oblems on envi onment and causes; Impact of envi onment to economic and society; Implementation of policies, la and activities of envi onmental p otection; Fo ecast of envi onmental challenges; Di ection and methods of envi onmental p otection

Besides the above epo ts, annually Minist y of Natu al Resou ces and Envi onment, the p ovincial Peoples Committee also make the thematic epo t fo

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