Environmental Law - Ho Chi Minh City University of Law
CHAPTER 1: OVERVIEW OF ENVIRONMENT AND ENVIRONMENTAL LAW
I. ENVIRONMENTAL CONCEPTS AND CURRENT STATUS
1. Environmental Concept
The environment encompasses natural and artificial physical elements that interact, surrounding humans and affecting life, economy, society, and the existence and development of humans, organisms, and nature. (Clause 1, Article 3, Environmental Protection Law 2020)
1.1. Importance of the Environment
Provides living space for humans and organisms.
Supplies essential resources for life and production (renewable and non-renewable).
Stores and provides information for scientific research and policy making.
Protects humans and organisms from external impacts (e.g., ozone layer, forests).
1.2. Current Environmental Status
Severe pollution and degradation due to industrialization and urbanization.
Resource depletion: overfishing, deforestation, freshwater scarcity, mineral exhaustion.
Increasing environmental incidents: extreme weather, oil spills, chemical leaks.
Serious Consequences:
Ozone layer depletion: Increases UV radiation, causing human diseases (skin cancer, cataracts) and harming ecosystems.
Climate change: Leads to sea-level rise, extreme weather, ocean acidification, habitat loss.
Biodiversity loss: Species extinction, population decline, invasive species, ecosystem imbalance.
Desertification: Soil degradation, impacting human life, food security, and agriculture.
2. Environmental Protection Measures
Political: International cooperation (conventions, agreements) and national policies.
Communication, Education: Raise public awareness and responsibility.
Economic: Incentives for positive behavior, penalties for negative (environmental taxes, green subsidies).
Science - Technology: Research and apply new technologies (renewables, waste treatment, remote monitoring).
Legal: Establish standards, regulations, licensing, enforcement, and penalties for violations.
II. OVERVIEW OF ENVIRONMENTAL LAW
1. Definition of Environmental Law
A legal field regulating social relations arising from the exploitation, use, and protection of environmental elements, aiming to prevent pollution, conserve natural resources, promote sustainable development, and ensure environmental quality.
2. Scope of Regulation
All social relations concerning the exploitation, management, and protection of environmental elements (land, water, air, biodiversity, etc.), including relations between individuals, organizations, and the state.
3. Is Environmental Law an Independent Branch of Law?
No, it is a comprehensive, interdisciplinary legal field. It draws principles and regulations from various legal branches (Administrative, Civil, Criminal, Land, Fisheries, Forestry, International Law).
4. Regulatory Methods
Equality - Agreement Method: Applied in civil environmental relations (e.g., environmental contracts, compensation negotiations).
Authority - Subordination Method: Applied in administrative relations, where the state enforces public power (e.g., permitting, enforcement, penalties); this is the dominant method.
III. CORE PRINCIPLES
1. Principle of State Recognition and Protection of Human Right to Live in a Clean Environment
Concept: A clean environment is one that does not exceed permissible pollution levels. A fundamental human right.
Basis: Established due to rapid environmental degradation impacting human health and quality of life.
Content/Purpose: State is responsible for protection; includes rights to access environmental information, participate in decisions, and access justice.
Specific Legal Provisions: Embodied in the Constitution of Vietnam (e.g., Article 43, 2013), Environmental Protection Law 2020.
2. Principle of Sustainable Development
Concept: Development meeting present needs without compromising future generations' ability to meet their own needs. Balances economic growth, social equity, and environmental protection.
Basis: Acknowledges the need for harmonious integration of economic, environmental, and social pillars.
Content: Ensures environmental protection and improvement alongside economic development, requiring integration of environmental factors into policies, efficient resource use, waste reduction, and ecosystem restoration.
3. Precautionary Principle
Concept: Proactive prevention of environmental risks even without full scientific certainty of severity. Lack of scientific certainty should not delay cost-effective preventive measures.
Basis: Prevention is much cheaper than remediation.
Content: Mandates and facilitates preventive measures, including Strategic Environmental Assessment (SEA) and Environmental Impact Assessment (EIA).
4. Polluter Pays Principle (PPP)
Concept: The polluter bears financial responsibility for preventing and controlling pollution, and for remediating environmental damage caused by their actions.
Basis: Treats the environment as a special economic good; using or degrading it incurs a cost, internalizing externalities.
Purpose: Ensures equity in cost distribution, incentivizes cleaner production, funds environmental protection and remediation.
5. Principle of Environmental Unity
Concept: All environmental elements (land, water, air, organisms, climate) are interconnected and interactive. Damage to one component can have cascading effects on others and the entire ecosystem.
Basis: Intrinsic unified nature of the environment, not bound by administrative or political boundaries.
Content: Requires cooperation and integrated, comprehensive environmental management, involving inter-sectoral coordination, regional and international cooperation, and a systemic approach.
IV. SOURCES
Environmental legislation (e.g., EP Law, Biodiversity Law), international environmental treaties (e.g., UNCLOS, climate conventions), binding rulings of international tribunals, international customs, and general legal principles.
V. ASSESSMENT
Taxes and fees are payments under the Polluter Pays Principle (PPP).
Not all taxes and fees fall under PPP.
Payments under PPP include:
Environmental protection tax: Yes.
Resource tax: Yes.
Environmental protection fees for wastewater: Yes.
Environmental permit appraisal fees: No.
Environmental incident liability insurance premiums: No.
Mining license fees: No.
Mineral exploitation rights fees: Yes.
Environmental administrative violation fines: No.
Environmental deposit for mineral exploitation: Yes.
Household waste collection service fees: Yes.
Infrastructure rental fees for industrial zones with centralized wastewater treatment systems: Yes.
Natural ecosystem service payments: Yes.
Forest environmental service payments: Yes.
Compensation for environmental pollution damage: No.
CHAPTER 2: VIETNAMESE ENVIRONMENTAL LAW
I. ENVIRONMENTAL ASSESSMENT LAW
1. Environmental Standards and Technical Regulations
1.1. Concepts
Environmental Technical Regulations (QCVN): Mandatory limits for environmental quality parameters, pollutant content in waste, and technical/management requirements (Clause 3, Article 3, EP Law 2020).
Environmental Standards (TCVN): Voluntary limits for environmental quality parameters, based on science, used to establish QCVN or for voluntary improvement.
1.2. Classification
Environmental Standards: National (TCVN), corporate, international.
Environmental Technical Regulations: National (QCVN), local (QCĐP, cannot contradict QCVN).
1.3. Development, Promulgation, and Application
Process involves scientific research, stakeholder consultation, drafting, appraisal, approval, and official promulgation. QCVN application is mandatory, TCVN is voluntary.
2. Environmental Information and Reporting
2.1. Environmental Information
Data on pollution, waste, biodiversity, climate change, policies. Public disclosure is key for transparency and accountability.
2.2. Environmental Reporting
Organizations, businesses, and authorities report periodically on environmental protection, emissions, and waste management. Crucial for policy-making and enforcement.
3. Strategic Environmental Assessment (SEA)
An instrument to evaluate potential environmental and social impacts of strategies, master plans, plans, and programs (SPP) at the early stages. Integrates environmental considerations into macro-level decision-making for a comprehensive, long-term view.
4. Environmental Impact Assessment (EIA)
Focuses on assessing specific environmental impacts of individual investment projects before implementation. Identifies and predicts impacts, proposes mitigation measures, involves stakeholders, and requires approval.
5. Environmental Permit
A comprehensive permit integrating previous separate environmental permits. Regulates specific environmental requirements (emission limits, waste management, monitoring) for facilities to ensure legal compliance.
II. WASTE MANAGEMENT LAW
1. Definition of Waste
Waste is material (solid, liquid, gas, or other) discharged from production, business, services, daily life, or other activities when no longer used for its original purpose or discarded. (Article 3, EP Law 2020)
2. Waste Classification
By hazardous nature: Hazardous waste (toxic, infectious, flammable, explosive, corrosive), ordinary waste.
By physical state: Solid, liquid, gas.
By source: Household, industrial, medical, agricultural.
3. Waste Management
Regulations covering the entire waste cycle: generation, reduction, reuse, recycling, collection, transport, storage, treatment, and disposal. Aims to minimize negative impacts and maximize resource recovery.
4. Hazardous Waste
Strict regulations from identification, classification, packaging, labeling, storage, specialized transport, treatment (incineration, physico-chemical), to final disposal (specialized landfills) to prevent harm.
5. Ordinary Industrial Solid Waste and Household Solid Waste
Household solid waste: Regulations on source separation, separate collection, recycling, composting, and appropriate final treatment (sanitary landfill, waste-to-energy).
Ordinary industrial solid waste: Focuses on source reduction, reuse, recycling, and safe treatment/disposal, often requiring permits and strict management records.
III. INCIDENT PREVENTION, RESPONSE, AND ENVIRONMENTAL DAMAGE COMPENSATION
1. Concepts of Pollution, Degradation, Environmental Incidents
Environmental Pollution: Change in environmental components inconsistent with technical regulations, harming environment/health. Gradual, cumulative.
Environmental Degradation: Decline in quality/quantity of natural environmental components, harming environment/health (e.g., soil erosion, deforestation). Ongoing reduction.
Environmental Incident: Accident or risk causing severe pollution/degradation. Sudden, unexpected, immediate widespread impact (e.g., large oil spills, chemical leaks).
2. Principle of Damage Compensation Liability
The polluter is financially responsible for damages to the environment and humans (PPP application). Often involves strict liability; costs include remediation, ecosystem restoration, health damages, and livelihood loss.
IV. NATURAL RESOURCES LAW
1. Forestry Resources Law
Vietnamese Forestry Law 2017: Focuses on sustainable forest management, strict natural forest protection, afforestation, biodiversity conservation, and support for forest-dependent communities.
2. Aquatic Resources Law
Vietnamese Fisheries Law 2017: Regulates exploitation, protection, and development of aquatic resources. Covers fishing quotas, habitat protection, gear control, aquaculture management, and prevention of IUU fishing.
3. Water Resources Law
Vietnamese Water Resources Law 2023: Addresses planning, allocation, exploitation, use, and protection of water resources. Emphasizes Integrated Water Resources Management (IWRM), pollution prevention, efficient water use, and climate change adaptation.
4. Mineral Resources Law
Regulations on mineral exploration, exploitation, processing, and use. Key aspects include licensing, environmental requirements during mining, post-mining environmental restoration, and financial obligations of mining enterprises.
V. CULTURAL HERITAGE LAW
Definition of cultural heritage (tangible and intangible) and related regulations in Vietnamese law: Aims to preserve national historical, cultural, and scientific values, linking with landscape and cultural space protection around sites.
VI. INSPECTION, EXAMINATION, VIOLATION HANDLING, AND DISPUTE RESOLUTION IN THE ENVIRONMENTAL FIELD
1. Inspection, Examination
Environmental inspection agencies: Monitor compliance, conduct periodic checks, investigate complaints, assess effectiveness. Powers include requesting documents, site inspections, sampling, and proposing violations.
2. Violation Handling
Administrative penalties (Decree 45/2022/ND-CP): Fines, operational suspension, license revocation, mandatory remediation. Serious violations may lead to criminal prosecution.
3. Dispute Resolution
Mechanisms include negotiation, mediation, arbitration, and litigation in court. Administrative disputes (individual/organization vs. state) go to administrative courts; civil disputes (private parties over environmental damage) go to civil courts. Aims to provide remedies and ensure environmental justice.
CHAPTER 3: INTERNATIONAL ENVIRONMENTAL LAW
I. CONCEPT OF INTERNATIONAL ENVIRONMENTAL LAW
Definition and Objectives: A body of international legal rules (treaties, customs, general principles) governing states' and other international actors' conduct regarding environmental protection. Goals: prevent transboundary harm, conserve biodiversity, address global environmental challenges, and promote sustainable development internationally.
II. OBLIGATIONS AND RESPONSIBILITIES OF STATES
1. Obligation Not to Cause Harm
General obligation not to cause or permit activities under their jurisdiction/control to cause significant transboundary environmental damage to other states or areas beyond national jurisdiction (e.g., high seas).
2. Obligation to Cooperate and Exchange Information
States must cooperate on shared environmental issues (through Multilateral Environmental Agreements - MEAs), share scientific/technical information, conduct joint research, and inform potentially affected states about activities causing transboundary harm.
3. Responsibility for Damage Compensation
States may be held responsible under international law for environmental damage caused by their activities or those under their jurisdiction/control. Includes obligations to compensate for significant damage, often through specific liability regimes in conventions.
III. CONTENT OF INTERNATIONAL ENVIRONMENTAL LAW
1. International Law on Atmospheric Protection
Addresses transboundary air pollution (acid rain, smog), conventions reducing emissions that cause atmospheric degradation.
2. International Law on Ozone Layer Protection
Vienna Convention and Montreal Protocol: Highly successful in phasing out ozone-depleting substances (ODS) like CFCs.
3. International Law on Climate Change
Centered on the UNFCCC and its protocols (Kyoto Protocol, Paris Agreement), aiming to stabilize greenhouse gas concentrations and promote climate action.
4. International Law on Marine Environmental Protection
Governed by UNCLOS and IMO conventions (e.g., MARPOL), addressing marine pollution from land-based sources, shipping (oil spills), and deep-seabed mining.
5. International Law on Biodiversity
The Convention on Biological Diversity (CBD) focuses on biodiversity conservation, sustainable use of its components, and equitable sharing of benefits from genetic resources.
6. International Law on Heritage
UNESCO World Heritage Convention: Protects culturally and naturally outstanding global heritage, promoting conservation and linking with landscape protection.
7. International Law on Control of Nuclear Activities and Hazardous Substances
Includes conventions on nuclear safety, transboundary movement of hazardous waste (Basel Convention), and Persistent Organic Pollutants (Stockholm Convention), aiming to mitigate risks from dangerous substances and technologies.