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<\/a>Who has the right to initiate a\u00a0lawsuit?\u00a0<\/strong><\/p>\n Pursuant to the LEP revision, four\u00a0entities will have the right to initiate a\u00a0lawsuit based on violations of environmental\u00a0protection regulations. They are (i)\u00a0authorities; (ii) organisations; (iii) individuals;\u00a0and (iv) communities. Nevertheless, these\u00a0regulations could lead to confusion or misunderstanding.<\/p>\n Firstly, it is not clear which\u00a0authorities\/agencies have the competency\u00a0to initiate a lawsuit against environmental\u00a0violators.<\/p>\n Item 2, Article 56, of the Civil Procedure\u00a0Code (2004) promulgates \u201cAgencies and\u00a0organisations prescribed by this Code,\u00a0which institute civil cases to request courts Regarding the opinion of the Supreme\u00a0People\u2019s Court, \u201cNatural Resources and Environment\u00a0agencies have the right to initiate a\u00a0civil lawsuit to request the courts to force\u00a0individuals, agencies, and organisations that\u00a0cause environmental pollution to pay com-pensation and remedy public environmental\u00a0incidents.\u201d However, this regulation\u00a0does not specify which authorities are\u00a0\u201cNatural Resources and Environment\u00a0agencies\u201d, Department of Natural Resources\u00a0and Environment (DoNRE), or Ministry of\u00a0Natural Resources and Environment\u00a0(MoNRE)? In addition, state authorities and\u00a0responsibilities for environmental matters\u00a0are not only under the management of\u00a0Natural Resources and Environment\u00a0agencies, but also under other Ministries\u00a0and People\u2019s Committees (PC) at all levels.<\/p>\n Some people say that civil society\u00a0organisations (CSOs) or non-governmental\u00a0organisations (NGOs), such as the Farmer\u2019s\u00a0Union, Marine Creature Conservation Association,\u00a0Union of Science and Technology on\u00a0Plant Protection, and Vietnam Association of\u00a0Nature and Environmental Protection,\u00a0should also have the right to initiate a\u00a0lawsuit because they act for public interests\u00a0and the state\u2019s interests in their respective\u00a0charges.<\/p>\n In reality, when dealing with very serious\u00a0cases of environmental pollution such as\u00a0Vedan\u2019s sewage poisoning the Thi Vai river,\u00a0or Nicotex Thanh Thai company burying\u00a0pesticides underground and poisoning the\u00a0land in Cam Thuy district, Thanh Hoa\u00a0province, citizens usually choose the\u00a0Farmer\u2019s Union to be their authorized representative\u00a0to institute a legal case. Although\u00a0being a new regulation in the bill, \u00a0social\u2013professional organisations such as\u00a0the Farmer\u2019s Union shall not be able to\u00a0initiate a lawsuit without authorisation while\u00a0the authorities in charge of suing are still\u00a0unspecified.<\/p>\n Secondly, who are the organisations,\u00a0individuals and communities?<\/strong><\/p>\n In the spirit of the draft LEP revision,\u00a0organisations, individuals, and communitieshave the right to sue in order to protect not\u00a0only their rights, but also public interests\u00a0and the state\u2019s interests, and even the\u00a0interests of households and individuals. This\u00a0means that organisations, individuals, and\u00a0communities can be anyone, not just the\u00a0victims. It seems to be an expansion of their\u00a0rights, but actually, there is a lot of conflict\u00a0with other regulations both in this bill and in\u00a0relevant laws conducting this right.<\/p>\n Firstly, the aforementioned social\u2013professional\u00a0organisations are one kind of\u00a0organisation, but they do not have the right\u00a0to sue per se, they can only request the\u00a0authorities to initiate a lawsuit.<\/p>\n Secondly, according to the right to\u00a0institute civil cases as prescribed in the Civil\u00a0Procedure Code , individuals can only\u00a0institute a case to protect their own\u00a0legitimate rights and interests while organisations\u00a0can protect both their rights and\u00a0interests, and public and state interests, as\u00a0long as they belong under their management. However, guidelines at Part I,\u00a0Section 2 of Resolution No. 02 dated May 12,\u00a02006 of the Judges\u2019 Council of the Supreme\u00a0People\u2019s Court show two compulsory conditions\u00a0for organisations initiating a lawsuit\u00a0that is not for protecting their own benefits:\u00a0(i) That they hold duties and authority in the\u00a0implementation of specific fields of state\u00a0competence and\/ or social management;\u00a0and (ii) The public interests and state\u00a0interests that need safeguarding by the\u00a0courts belong to the charges of that agency\u00a0or organisation. As already mentioned with\u00a0competent agencies\/authorities, it is\u00a0ambiguous which organisations can\u00a0institute a lawsuit to protect the common\u00a0environment.<\/p>\n Thirdly, communities are not recognised\u00a0by the law as an entity or as an involved\u00a0party in civil cases. Additionally, the definition\u00a0of communities in the draft LEP Based on the above reasons and\u00a0arguments, it is clear that the\u00a0persons\/entities that have the right to file a\u00a0lawsuit on environmental matters in the\u00a0draft LEP revision have not changed significantly\u00a0or received any major innovation in\u00a0comparison to the LEP (2005). The victims\u00a0will still be the organisations and individuals\u00a0whose legitimate rights and interests were\u00a0infringed upon.<\/p>\n Who shall institute a lawsuit incourt?<\/strong><\/p>\n The draft LEP revision clearly defined the\u00a0parties to an environmental dispute as (i)\u00a0organisations and individuals using environmental\u00a0elements; (ii) organisations and individuals\u00a0exploring and using environmental\u00a0elements, versus organisations and individuals\u00a0restoring and remediating polluted\u00a0and degraded environments, and compensating\u00a0the environment. The settlement shall\u00a0proceed according to the settlement regulation\u00a0of the dispute over compensation for\u00a0non-contractual damage and other relevant\u00a0legislation. In short, defendants in civil cases\u00a0shall be organisations and individuals either\u00a0exploring and using environmental\u00a0elements, or acting for environmental protection.<\/p>\n Concerning this, state agencies or\u00a0authorities are responsible for environmental\u00a0protection outside environmental\u00a0disputes, respective compensation liabilities\u00a0and joint liabilities to these environmental\u00a0disputes, despite the fact that environmental\u00a0damages can be caused by state\u00a0agencies. This differs from disputes over land\u00a0acquisition for project developments, where\u00a0people institute a lawsuit against the state\u2019s\u00a0administrative agencies when their\u00a0decisions directly affect citizen\u2019s rights and\u00a0interests. Nonetheless, in the environmental field, authorities\/agencies are often not\u00a0directly the polluters or source of the\u00a0disputes, but their acts can cause or contribute\u00a0to environmental damage. For\u00a0example, state agencies may approve a\u00a0project development without the Environmental\u00a0Impact Assessment (EIA) report in\u00a0advance, and then the project\u2019s operation is\u00a0the cause of pollution. Another example\u00a0would be promulgating a guideline for joint\u00a0operation of reservoirs and lakes for\u00a0hydropower plants. If Danang lacks fresh\u00a0water later on, which then causes damages\u00a0for 1.7 million people in the lower areas,\u00a0Danang shall not institute the lawsuit,\u00a0neither will MoNRE who does not use the\u00a0water resource, or hydropower plants which\u00a0are not committing illegal acts, they are just\u00a0complying with MoNRE\u2019s guideline.<\/p>\n On the other hand, the limitation of\u00a0involved parties to a dispute excludes the\u00a0authorities\/agencies responsible for the\u00a0management of environmental elements,\u00a0even in conducting the remedy and\u00a0restoration activities in areas of pollution\u00a0and degradation and holding the right to\u00a0institute a lawsuit pursuant to civil procedure,\u00a0it shall not be consistent and appropriate\u00a0to other regulations in the draft LEP\u00a0revision and relevant laws.<\/p>\n One of the significant innovations of the\u00a0draft LEP revision is the individual liabilities\u00a0principle. This principle is as follows:<\/p>\n “a) Executive leaders shall be directly\u00a0responsible for violations of environmental\u00a0protection rules relevant to their organisation\u2019s\u00a0operation;<\/p>\n b) Leaders of environmental protection\u00a0agencies and other agencies related to\u00a0organisational and operational management\u00a0causing environmental pollution\u00a0and degradation shall be responsible for\u00a0management liabilities according to provisions of the law;<\/p>\n c) Organisations and individuals causing\u00a0environmental pollution and degradation\u00a0shall be responsible for remediation and\u00a0compensation for their acts;<\/p>\n d) In the case of individuals causing pollution\u00a0while belonging to an organisation\u00a0and performing assigned duties, the leader\u00a0of that organisation shall be responsible for\u00a0the payment of compensation.\u201d<\/p>\n The draft LEP revision could be innovative\u00a0by moving to personalise the responsibilities\u00a0of leaders in organisations and\u00a0agencies that violate environmental protection regulations. However, to avoid\u00a0organisations becoming free of liability due\u00a0to leaders taking personal liability (clause d),\u00a0the draft should apply regulations of compensation\u00a0for damage in a number of\u00a0specific cases in the Civil Code on compensation\u00a0for non-contractual damages for settlement. Therefore, if individuals, officials or\u00a0civil servants cause environmental damages\u00a0during the performance of their duties\u00a0assigned by organisations and agencies, the\u00a0compensation liabilities shall firstly belong\u00a0to that organisation or agency, and then the\u00a0person at fault for causing the damage shall\u00a0reimburse an amount of money to the\u00a0organisation or agency . This regulation not\u00a0only complies with common law, but also\u00a0ensures that compensation can be feasible,\u00a0quick and prompt, especially in cases where\u00a0personal property is insufficient to compensate\u00a0the environmental damages.<\/p>\n Mechanism for initiating a\u00a0lawsuit?<\/strong><\/p>\n In the draft LEP revision, the mechanism\u00a0for initiating a citizen lawsuit complies with\u00a0the common law on civil non-contractual\u00a0settlement and other related laws. Therefore,\u00a0in principle, liability for compensation only\u00a0arises from fully following four conditions: (i)\u00a0Damages occur; (ii) Illegal acts; (iii)\u00a0Cause\u2013effect relationship between\u00a0damages and illegal acts; and (iv) Intentional\u00a0or unintentional fault of the person who\u00a0caused the damages.<\/p>\n However, even in the case of environmental\u00a0pollution, legal liabilities still arise\u00a0without any fault, but the burden of proof\u00a0for the remaining three conditions is not\u00a0easy for anyone who would like to initiate a\u00a0citizen lawsuit. Damages of pollution and\u00a0degradation comprise: (i) a reduction in the\u00a0functions and utilities of the environment;\u00a0and (ii) damages to health, human life,\u00a0legitimate property and interests of organisations\u00a0and individuals resulting from the Damage to human health and life,\u00a0property and interests of multiple parties\u00a0can be health, life and property of individuals,\u00a0legitimate property and interests of\u00a0organisations, or the natural environment. They cannot be separated into environmental\u00a0damages for specific areas, with\u00a0damages for health, property and legitimate\u00a0interests of organisations or individuals in that area; and consequently, in many cases it\u00a0is hard to define who the aggrieved party is. In some cases of environmental violations in\u00a0Vietnam, we have to hire an overseas\u00a0technical assessor before bringing these\u00a0cases to trial. This is a barrier for citizens who would like to initiate a lawsuit. On the other\u00a0hand, it is not clear who is responsible for the\u00a0burden of proof and expenses of damage\u00a0verifications and assessments amongst the parties. This means that in principle, major\u00a0responsibilities belong to the aggrieved\u00a0parties who would like to institute a lawsuit. Plaintiffs bear the responsibilities for proving\u00a0the damages to health, human life,\u00a0legitimate property and interests of organisations\u00a0and individuals, resulting from a\u00a0reduction in the functions and utilities of the\u00a0environment. An exception is environmental\u00a0incidents where pollution occurs in one or\u00a0more provinces. In these cases, the burden\u00a0of proof shall rest in the hands of People\u2019s\u00a0Committees for local issues and the MONRE for the rest.<\/p>\n Secondly, proving the illegal acts is a\u00a0challenge in both theory and practice.\u00a0Evidence of the cause supplied by people is\u00a0not recognised as being legally valid, while\u00a0an agencies\u2019 verification must comply with\u00a0processes and is often after an illegal act\u00a0has been committed. As a result, the consequences\u00a0are not sufficient to identify the\u00a0acts as illegal when the agencies verify. Moreover, the environmental technical regulation\u00a0system lacks many regulations,\u00a0causing difficulties for defining violations\u00a0For instance, results of control experiments\u00a0on soil, water and waste samples of the\u00a0Nicotex Thanh Thai Joint Stock Company,\u00a0which buried a large quantity of toxic\u00a0chemicals on their land, showed some\u00a0samples in excess of the permitted\u00a0standards in regulations, while others had\u00a0no standards or regulations for comparison.<\/p>\n Thirdly, the cause\u2013effect relationship\u00a0between illegal acts and consequences is\u00a0complicated, and in some cases cannot be\u00a0determined. Such situations include (i)\u00a0many illegal acts coming from multiple\u00a0parties such as waste from factories in\u00a0industrial zones; (ii) impacts related to\u00a0natural disasters, disease, genetic sources,\u00a0etc.; or (iii) illegal acts coming from\u00a0aggrieved parties (e.g. residents causing\u00a0pollution through litter, waste water, pesticides,\u00a0etc.). Meanwhile, the law requires us\u00a0to prove the cause\u2013effect relationship,\u00a0which means the acts causing damage\u00a0must be directly or reasonably determinable\u00a0to be responsible for such\u00a0damages, in order to verify the defendants\u00a0responsible for compensation. This is also a\u00a0compulsory condition to initiate a lawsuit\u00a0petition by law.<\/p>\n Currently the statute of limitations for\u00a0lawsuits is two years from the date on\u00a0which the legal rights or interests were\u00a0infringed. In many cases, this is not enough\u00a0time to verify the damages or prove the\u00a0cause\u2013effect relationship between\u00a0damages and illegal acts. The draft LEP\u00a0revision has come up with a significant\u00a0innovation, with the statute of limitation\u00a0for a lawsuit calculated from the date on\u00a0which organisations and individuals realise\u00a0their legal rights or interests have been\u00a0infringed by illegal acts of other organisations\u00a0and individuals. Therefore, the draft\u00a0LEP revision has resolved this inadequacy.<\/p>\n However, if the draft keeps the current\u00a0regulations of compensation for non-contractual\u00a0damages under Civil Law for environmental\u00a0pollution, the disadvantages lean\u00a0towards plaintiffs because they are nearly\u00a0completely responsible for the burden of\u00a0proof, which is often beyond their capacity.<\/p>\n The settlement of disputes in several\u00a0countries, particularly in China, over time\u00a0has shown that switching the burden of\u00a0proof is a significant revolution that\u00a0supports aggrieved parties in realization of\u00a0their rights. As a result, plaintiffs just have to\u00a0prove the illegal acts of the defendants and\u00a0the consequences of such acts, while the\u00a0defendants must prove there is no\u00a0cause\u2013effect relationship between their acts\u00a0and the damages.<\/p>\n In addition, environmental disputes\u00a0such as Vedan involved nearly 7,000\u00a0aggrieved households, and Nicotex Thanh\u00a0Thai or Sonadezi Long Thanh hurt hundreds\u00a0of people. However, the draft LEP revision\u00a0does not provide a mechanism for these\u00a0communities or a group of people to initiate\u00a0a lawsuit, preventing them from acting\u00a0cohesively and using community resources\u00a0and capacities to prove the damages on a\u00a0large scale and in complicated cases of environmental\u00a0pollution.<\/p>\n In other words, around 800 environmental\u00a0inspectors at all levels and 2,000\u00a0environmental police are small numbers\u00a0in comparison to the thousands of environmental\u00a0protection law violations\u00a0nationwide. However, increasing the\u00a0number of officers in charge of environmental\u00a0violations is impossible in the\u00a0context of the state\u2019s administration\u00a0restructure. One solution that could\u00a0enhance the control of activities affecting\u00a0the environment both on paper and on\u00a0location in a way that economies more\u00a0human and financial resources than real\u00a0inspections, is to introduce an environmental\u00a0audit mechanism. Environmental\u00a0audit mechanisms are applied in many\u00a0countries around the world to monitor\u00a0and control the actual operation of manufacturing,\u00a0trade and service facilities\u00a0affecting the environment and should be\u00a0the next step of the EIA. For example,\u00a0monitoring a company\u2019s expenses relating\u00a0to waste-water treatment activities and\u00a0mitigation of environmental impacts and\u00a0pollution could provide a fast and cheap\u00a0initial indication of a company\u2019s environmental\u00a0performance via environmental\u00a0audit reports. Additionally, as Vietnam\u2019s\u00a0institution already comprises the State\u00a0Audit and a large number of organisations\u00a0and individuals acting in the audit field, an\u00a0increase in officers to supervise these\u00a0environmental protection activities would\u00a0not be necessary.<\/p>\n It is clear that the draft LEP revision has\u00a0remarkably documented environmental\u00a0protection articles and clauses, but to ensure\u00a0their feasibility, effectiveness and unity, the\u00a0draft needs further changes to protect the\u00a0rights and interests of citizens, who are at\u00a0the greatest disadvantage from environmental\u00a0pollution. It is also a practical way to\u00a0realise the state\u2019s commitment in the 2013\u00a0Constitution on human rights.<\/p>\n
\nto protect the public\u2019s interests and the\u00a0state’s interests in the domains under their\u00a0respective charges are also plaintiffs.\u201d According to guidelines in Part I, section 2 of\u00a0Resolution No. 02\/2006 of the Judges\u2019\u00a0Council of the Supreme People\u2019s Court dated\u00a0May 12th, 2006, \u201cAgencies and organisations\u00a0have the right to institute civil cases in order\u00a0to request court protection for the public\u2019s \u00a0interests and the state\u2019s interests as prescribed\u00a0by section 3, Article 162 of the Civil\u00a0Procedure Code, provided they fulfill the following\u00a0conditions: (1) Agencies and organisations\u00a0have the authority and responsibility\u00a0to implement state management and social\u00a0management in a specific field; and (2) The\u00a0public\u2019s interests and state\u2019s interests must\u00a0be in the domain of the agencies\u2019 and organisations\u2019\u00a0charges.\u201d<\/p>\n
\nincludes political\u2013social organisations,\u00a0social\u2013professional organisations, and communities,\u00a0but does not specify who the communities\u00a0are. Therefore regulations on a\u00a0communities\u2019 rights to participate in the\u00a0evaluation of environmental protection\u00a0results or request the supply of information\u00a0from the owners of factories, usinesses and\u00a0service bodies\/units in other regulations,\u00a0shall not be meaningful in reality, due to the\u00a0fact that they lack proper definition of communities\u00a0and a mechanism to verify the representative.<\/p>\n<\/a><\/a>
\nreduction in the functions and utilities of the\u00a0environment.<\/p>\n