CHAPTER 2: CLIMATE CHANGE RESPONSE PROVISIONS UNDER
2.1. Climate change response provisions under Vietnamese law
2.1.1. General review of Vietnamese law and policy on climate change response
In Viet Nam, climate change response has been acknowledged for a long time individually or in relationship with green growth. Following this, in general, green growth refers to “fostering economic growth and development while ensuring that natural assests continue to provide the resources and environmental services on which our well-being relies”103. In Viet Nam, green growth policy has been acknowledged in the National Green Growth Strategy for the 2021-2030 period, vision to 2050 that it directly contributes to the reductions in greenhouse gas emissions as a step towards a carbon neutral economy in the long run104. This Strategy also indicates that “green growth focuses on the people, helping to reduce human vulnerability before climate change…”105. As observable, there is a close linkage between environmental protection in general as well as cliamte change response in particular and green growth.
Under Viet Nam’s legal and policy framework, climate change response provisions can be found under essential policies of the Communist Party of Vietnam (CPV) and under the country’s legislations as well as relevant legal documents of
103 OECD, “What is green growth and how can it help deliver sustainable development?”, [https://www.oecd.org/greengrowth/whatisgreengrowthandhowcanithelpdeliversustainabledevelopment.htm]
(accessed on 26 June 2022)
104 Decision No. 1658/QD-TTg dated 01 October 2021of the Prime Minister approving the National Green Growth Strategy for 2021-2030 period, vision to 2050 (Decision No. 1658/QD-TTg).
105 Decision No. 1658/QD-TTg
the Prime Minister. Following this, the legislations and legal documents inherit, adopt and implement the merit of the CPV’s policies.
With respect to the policies of the CPV, since the reunification of Vietnam in 1975, the CPV has released many essential documents and policies acknowledging the need to protect the environment in general and respond to climate change in particular , namely Resolution of the 4th National Congress of the Communist Party of Viet Nam, Political Program for National Construction in the Period of Transition to Socialism approved at the 7th National Congress of the Communist Party of Viet Nam, Political report of the 11th Communist Party of Viet Nam Central Committee at the 12th National Congress of the Communist Party of Viet Nam, the Socio-economic development strategy for 2021-2030, the Socio-economic development strategy for 2021-2030, etc. These documents and policies include contents related to environmental protection and climate change response as follows: continuously promoting the campaign of afforestatio106; strictly complying with the protection of the environment, maintenance of ecological balance for the sake of the current and future generation107. In recent years, the Political report of the 11th Communist Party of Viet Nam Central Committee at the 12th National Congress of the Communist Party of Viet Nam states that efficient exploitation, use and management of natural resources; environmental protection; proactively preventing and combating natural disaster, responding to climate change are basic missions in the 5-year period from 2016-2020108. Additionally, the Socio-economic Development Strategy for 2021-2030 approved at the 13th National Congress of the
106 “Resolution of the 4th National Congress of the Communist Party of Viet Nam”, Communist party of Viet Nam online Newspaper, [https://tulieuvankien.dangcongsan.vn/ban-chap-hanh-trung-uong-dang/dai-hoi- dang/lan-thu-iv/nghi-quyet-cua-dai-hoi-dai-bieu-toan-quoc-lan-thu-iv-cua-dang-1522] (accessed on 20 June 2022)
107 “Political Program for National Construction in the Period of Transition to Socialism approved at the 7th National Congress of the Communist Party of Viet Nam”, Communist party of Viet Nam online Newspaper, [https://tulieuvankien.dangcongsan.vn/ban-chap-hanh-trung-uong-dang/dai-hoi-dang/lan-thu-vii/cuong-linh- xay-dung-dat-nuoc-trong-thoi-ky-qua-do-len-chu-nghia-xa-hoi-1558] (accessed on 20 June 2022)
108 “Political report of the 11th Communist Party of Viet Nam Central Committee at the 12th National Congress of the Communist Party of Viet Nam”, Communist party of Viet Nam online Newspaper, [https://tulieuvankien.dangcongsan.vn/ban-chap-hanh-trung-uong-dang/dai-hoi-dang/lan-thu-xii/bao-cao- chinh-tri-cua-ban-chap-hanh-trung-uong-dang-khoa-xi-tai-dai-hoi-dai-bieu-toan-quoc-lan-thu-xii-cua-dang- 1600] (accessed on 20 June 2022)
Communist Party of Viet Nam acknowledges that sustainable development is a global trend and green growth is a development system which has been adopted by many countries 109 . Notably, the strategy provides one of the development viewpoints is to harmoniously develop economy and culture, society, environment protection as well as climate adaptation110. As observable, Viet Nam has been acknowledging the need of environmental protection since 1976 and its development direction in the coming time is expected to promote economic development in line with sustainable development regarding environmental protection in general and climate change response in particular.
As regards the legal documents of the Prime Minister, since 2004, sustainable development and the development of “green industry” have been acknowledged in Decision No. 153/2004/QD-TTg dated 17 August 2004 of the Prime Minister promulgating the oriented strategy for sustainable development in Vietnam (Vietnam’s Agenda 21) (Decision No. 153/2004/QD-TTg). This Agenda was adopted to carry out the objectives for promoting sustainable development provided under the 9th National Congress of the CPV. Following this, it indicates challenges Vietnam has been confronting and schemes, policies as well as legal instruments that need to be conducted in order to promote sustainable development in the 21st century. In 2005, after the Kyoto Protocol took effect, the Prime Minister adopted Directive No. 35/2005/CT-TTg dated 17 October 2005 on the implementation of the Kyoto Protocol within the UNFCCC. Asprovided under this Directive, the Prime Minister requested concerned ministries and branches to perform various tasks in order to effectively implement the Kyoto Protocol. In 2012, the Prime Minister adopted Decision No. 1393/2012/QD-TTg dated 25 December 2012 approving the National Green Growth Strategy for 2011-2020
109 “The Socio-economic development strategy for 2021-2030”, Communist party of Viet Nam online Newspaper, [https://tulieuvankien.dangcongsan.vn/ban-chap-hanh-trung-uong-dang/dai-hoi-dang/lan-thu- xiii/chien-luoc-phat-trien-kinh-te-xa-hoi-10-nam-2021-2030-3735] (accessed on 20 June 2022)
110 “The Socio-economic development strategy for 2021-2030”, Communist party of Viet Nam online Newspaper, [https://tulieuvankien.dangcongsan.vn/ban-chap-hanh-trung-uong-dang/dai-hoi-dang/lan-thu- xiii/chien-luoc-phat-trien-kinh-te-xa-hoi-10-nam-2021-2030-3735] (accessed on 20 June 2022)
period, with vision to 2050. This Strategy indicated strategic viewpoints on green growth and objectives to promote green growth, thereby gravitaing towards a low- carbon economy. Following this, it presented strategic missions with solutions and plans as well as competent authorities in charge to implement these missions.
Recently, in October 2021, the Prime Minister adopted Decision No. 1658/QD-TTg dated 01 October 2021 approving the National Green Growth Strategy for 2021- 2030 period, vision to 2050. The National Green Growth Strategy for 2021-2030 period urges Ministries and branches to promote green growth by refining institutional policy and legal framework with an orientation towards inter-regional and inter-branch coordination, integrating green growth targets and solutions, content related to green growth and criteria of investments for green growth into the socio-economic development strategies, and enhancing the abilities to withstand climate change with paying attention to vulnerable areas111, etc. Specifically, on climate change response, the Prime Minister of Vietnam adopted Decision No.2139/QD-TTg dated 05 December 2011 on approving the National climate change strategy (Decision No.2139/QD-TTg) and Decision No.1474/QD-TTg dated 05 October 2012 on promulgating National action plan on climate change for 2012- 2020, the latter was adopted in order to carry out the former. In general, Decision No.2139/QD-TTg acknowledged climate change is one of the biggest challenges humankind must encounter and it provided strategic viewpoints such as that climate change response in Vietnam must be associated with sustainable development toward a low-carbon economy; the mitigation and adaptation aspects of climate change response must be conducted simultaneously with prioritizing adaptation in the initial phase; a whole system is responsible for climate change response, mentioning the continuous improvement of State’s governance, the participation of business sector, the involvement of socio political organizations, professional associations and communities; and solutions to respond to climate change must be systematic, inter-regional, focused, appropriate to each period and in compliance
111 Decision No. 1658/QD-TTg.
with international regulations as well as supported by scientific grounds combining with traditional experience and knowledge. Notably, the draft proposal for National climate change to 2050 response is under review indicating the path to achieve net- zero carbon emission target by 2050 of Vietnam and providing promising strategic objectives, namely proactively efficiently adapt to climate change and reduce vulnerability, loss and damage caused by climate change; mitigate GHG emissions in accordance with net-zero carbon emission target by 2050; take advantage of opportunities from climate change response to transform the growth model, improve resilience and competitiveness of the economy; together with international community, contribute actively and responsibly to protection of the Earth’s climate system112.
With respect to legislations on climate change response, at the moment, provisions on climate change response are prescribed under different legislations such as the LEP 2020, the Law on Water Resource113, the Hydrometeorology Law114, the Land Law115 and the Construction Law116. Among these legislations, the
112 Khanh Ly, “Ministry of Natural Resources and Environment consults on drafting the National Strategy on Climate Change to 2050”, [https://monre.gov.vn/Pages/bo-tn&mt-tham-van-xay-dung-chien-luoc-quoc-gia- ve-bien-doi-khi-hau-den-nam-2050.aspx] (accessed on 20 June 2022)
113 The Law on Water Resources was adopted by the National Assembly of the Socialist Republic of Vietnam on 21 June 2012 and took effect on 13 January 2012. In general, this Law governs the management, protection, exploitation and use of the water resource; stipulates the protection, combat against and overcoming the harmful effects of water. Additionally, it is guided by Decree No. 201/2013/ND-CP dated 27 November 2013 of the Government on specifiying the implementation of some articles of the Law on Water Resources. The Decree elaborates further some articles of the Law on Water Resources without mentioning specific provisions on climate change response.
114 This law is guided by Decree No. 38/2016/ND-CP dated 15 May 2016 of the Government on specifying some articles of the Hydrometeorology Law (Decree No. 38/2016/ND-CP). Some provisions of this Decree is amended by Decree No. 48/2020/ND-CP dated 15 April 2020 of the Government on amending, supplementing some articles of Decree No. 38/2016/ND-CP specifying some articles of the Hydrometeorology Law (Decree No. 48/2020/ND-CP). In the context of cliamte change response,both the Decree No. 38/2016/ND-CP and the Decree 48/2020/ND-CP elaborates further the provisions related toclimate change monitoring in general and exchanging information regardingclimate change monitoring with international organizations, foreign organizations and individuals not belonging to international treaties to which Vietnam is not a party in particular.
115 The Land Law was adopted by the National Assembly of the Socialist Republic of Vietnam on 29 November 2013 and took effect on 01 July 2014. This Law prescribes the regime of land ownership, powers and responsibilities of the State in representing the all-people owner of land and uniformly managing land, the regime of land management and use, the rights and obligations of land users involving land in the territory of the Socialist Republic of Vietnam. In addition, it is guided by Decree No. 43/2014/ND-CP dated 15 May 2014 of the Governmenton specifying the implementation of some articles under the Land Law (Decree no. 43/2014/ND-CP), which is amended by Decree No. 148/2020/ND-CP dated 18 December 2020
LEP 2020 is considered a basic law on environmental protection in general and climate change response in particular prescribing basic legal principles and corresponding matters such asrresponsibility of competent authorities in climate change response [Article 90], mitigation of GHGs emission [Article 91], protection of ozone layer [Article 92], or the intergration of climate change response policy into strategy and planning [Article 93]. Besides, climate change repsonse provisions are mentioned in other legislations such as that under Article 60 of the Law on Water Resources 2012, it is provided that reservoir and inter-reservoir operation proccesses must, in addition to assuring required conditions, must take into account climate change elements; or that the Land Law 2013 prescribes one of the principles of formulation of master plans and plans on land use is reasonable exploitation of natural resources and environmental protection as well as climate change adaptation [Article 35(4)]117.
As can be seen, the provisions on climate change response in general is stipulated under various legislations and legal documents. Regarding certain components of climate change response, namely the development carbon market, the promotion of renewable energy and the protection of ozone layer, there are specific legislations and legal documents that stipulates these areas. The following paragraphs will continue analyzing such legislations and legal documents.
In terms of Vietnam’s legal framework on the operation and development of carbon market, there are many legal documents prescribing provisions relevant to
of the Government on amending, supplementing some Decrees specifying the implementation of Land Law (Decree No. 148/2020/ND-CP). Although both the Decree No. 43/2014/ND-CP and the Decree No.
148/2020/ND-CP specifying the formulation of master plans and plans on land use spitulated under the Land Law 2013, they do not provide provisions on climate change response.
116 The Construction Law was adopted by the National Assembly of the Socialist Republic of Vietnam on 18 June 2014 and took effect on 01 January 2015. It was amended by the Law No. 62/2020/QH14 adopted by the National Assembly of the Socialist republic of Vietnam on 17 June 2020, which took effect on 01 January 2021, on amending, supplementing some articles of the Construction Law. The Law regulates rights, obligations and responsibilities of agencies, organizations, individuals and governs state management in construction investment activities.
117 With respect to the Law on Hydrometeorology 2015, the Law provides definition of climate change under Article 3(13), climate change monitoring under Article 3(14), climate change scenario under Article 3(15) and other provisions on climate change monitoring. Regarding Construction Law 2014, the Law mentions climate change in Article 3(30) on defining construction planning.
this matter118. Notably, the Prime Minister has adopted Decision No. 2053/QD-TTg dated 28 October 2016approving the Action Plan for Implementation of the Paris Agreement on climate change for the period of 2016-2020 whose one of the objectives is to develop a domestic carbon market. In regard to legislations governing this matter, at the moment the LEP 2020 is the only law governing the operation and development of carbon market, specifically at Article 139. Under this article, the LEP 2020 defines the activities occuring within the carbon market, namely the exchange of GHG emission quotas and carbon credits obtained from the participation in domestic and international carboncredit exchange and offset mechanisms in accordance with regulations of law and international treaties to which the Socialist Republic of Vietnam is a signatory [Article 139(1)].
Additionally, the LEP 2020 states the responsibility of relevant competent authorities. Following this, in the context of development and operation of carbon market, the Ministry of Natural Resources and Environment (MONRE) is obliged to request the Prime Minsiter to grant approval for total GHG emsission quotas at the end of each stage and every year [Article 139(8)]. The Ministry of Finance shall preside over and cooperate with the MONRE and other Ministries and ministerial agencies concerned to establish the domestic carbon market [Article 139(9)]. In 2022, the Government promulgates Decree No. 06/2022/ND-CP dated 07 January 2022 providing regulations on reduction of greenhouse gas emissions and protection of the ozone layer (Decree No. 06/2022/ND-CP)119. By far, this Decree has been the only legal document providing further guidance on reduction of GHG emissions in general and the operation and development of carbon market in particular.
In renewable energy sector, Vietnam has adopted its very first National Energy Development Strategy up to 2020, with vision to 2050 under Decision No.
118 For further analysis, see: Mai Kim Lien et al., supra note 73.
119 This Decree elaborates some articles of the LEP 2020, including Article 91 on mitigation of GHG
emissions, Article 92 on protection of ozone layer and Article 139 on organization and development of carbon market [Article 1].
1855/QD-TTg120 prescribing principal contents such as viewpoints, objectives and orientations121. In 2011, the Prime Minister has adopted Decision No. 1208/QD- TTg dated21 July 2011 on approving the National Master Plan for Power Development for 2011-2020 period, vision to 2030. This decision remarked the establishment of a 10-year National Master Plan (also know as Power Master Plan VII) which aimed to develop renewable energy sources for electricity production, raising the rate of electricity produced from these sources from 3.5% of total electricity output in 2010 to 4.5% by 2020 and 6% by 2030. Following this, the Plan was revised and adopted anew under the Decision No. 428/QD-TTg dated 18 March 2016 of the Prime Minister on approving the Revised National Power Development Master Plan for 2011-2020, vision to 2030. Under the revised Power Master Plan VII, Vietnam further increased the mentioned targets to 7% and 10%, respectively.
Furthermore, to promote the development of this clean energy, the Prime Minister adopted Decision No. 2068/QĐ-TTg dated 25 November 2015 approvingVietnam’s Renewable Energy Development Strategy up to 2030 with an outlook to 2050. The Decision providesviewpoints and strategy on renewable energy development, especially various incentives which will be developed by the Ministry of Industry and Trade (MOIT) for renewable energy projects such as tax incentives, land related incentives and financial support for research related to renewable energy. In terms of legislation, the Electricity Law 122 prescribes that planning on electricity
120 On 27 December 2007, the Prime Minister adopted Decision No.1855/QD-TTg approving Vietnam's National Energy Development Strategy up to 2020, with 2050 vision
121 For further analysis, see: Tran Viet Dung, “Legal and policy framework for renewable energy and energy efficiency development in Vietnam”, [https://sciendo.com/article/10.2478/vjls-2020-0002] (accessed on 20 June 2022)
122 The Electricity Law was adopted by the National Assembly of the Socialist Republic of Vietnam on 12 March 2004 and took effect on 01 July 2005. It was amended in 2012 and 2018 respectively. The Law was further amended by the Law No. 03/2022/QH15, which was adoptedby the National Assembly of the Socialist Republic of Vietnam on 11 January 2022 and took effect on 01 March 2022, on amendments to certain articles of the Law on Public Investment, the Law on Public-private partnership Investment, the Law on Investment, the Law on Housing, the Law on Procurement, the Electricity Law, the Law on Enterprises, the Law on Excise Tax and the Law on Civil judgment enforcement. The Electricity Law is a principal legislation regulating the electricity sector in Vietnam. Generally, the Law stipulatesthe regulatory requirements for electricity development investment and planning;policies and measures to encourage and accelerate conservation in electricity generation, transmission, distribution and use;the electricity market;the conditions and requirements for operating in the electrical sector; andpricing and licensing rules.