VIETNAM ACADEMY OF SOCIAL SCIENCE GRADUATE ACADEMY OF SOCIAL SCIENCES LE PHUONG LINH PROTECTION OF WATER ENVIRONMENT IN RIVER BASINS ACCORDING TO VIETNAMESE LAW Major: Economic Law Code: 9.38.01.07 ABSTRACT THE DOCTORAL DISSERTATION OF ECONOMICS Hanoi, 2019 The research work is completed at: Graduate Academy of of Social Science - Vietnam Academy of Social Science Supervisor: Assoc Prof, Dr Pham Huu Nghi Reviewer 1: Reviewer 2: Reviewer 3: The dissertation will be defended against the academy-level committee, at the Graduate Academy of Social Sciences at: day/month/year The thesis can be found at: - National Library - Library of Graduate Academy of Social Sciences LIST OF PUBLISHED WORKS RELATED TO THE DISSERTATION INTRODUCTION The urgency of the research topic Managing and protecting the water environment of river basin is an issue that has been implemented in many countries around the world in the second half of the 20th century and has grown significantly in recent decades to cope with challenges on scarcity of water, increasing pollution and degradation of natural resources and the environment of river basins Currently, hundreds of river basin management organizations have been set up worldwide to manage and unify water, land and other related resources in the river basin, maximizing the economic benefits and social welfare in a fair manner without compromising the sustainability of the basin's critical environmental system, maintaining sustainable human living conditions Consistent and integrating management of water resources of a river basin is a new issue to Vietnam This is very limited in terms of awareness and inevitabe to face many difficulties when implementing Currently, the Law on Water Resources has been enacted, creating a legal basis and guiding the implementation of water resources management activities However, we not have many legal documents guiding in detail the environmental protection of river basin water Regarding the management method, it is evident that the inconsistency and division of responsibilities are still unclear between the management agencies: central and local levels There is a lot of overlap among sectors related to the same management area, which causes difficulties and inhibition in environmental protection activities Among localities in the same basin, a common voice has not been found and the management of basin environment is not consistent and coherent Therefore, the PhD student chooses the topic "Protection of water environment in river basins according to Vietnamese law" as the content doctoral thesis in Law Research purpose and missions of the topic 2.1 Research purpose The research purpose of the thesis is to clarify the theoretical issues and the current status of the water environment protection in river basin in accordance with the laws of Vietnam On that basis, proposing solutions to improve the efficiency of building and implementing law on the protection of water environment in river basins in Vietnam 2.2 Missions of the topic Firstly, to inherit, acquire and further clarify theoretical issues on water environment protection in river basins according to Vietnamese law Secondly, to analyze and clarify the situation of water environmental protection in river basins according to the current laws of Vietnam Thirdly, to research and propose solutions and recommendations to build, complete and effectively implement the legal system of water environmental protection of river basin water in Vietnam Scope and subject of the research 3.1 Scope of research - Scope of content: The thesis specifies the research scope as the legal provisions on environmental protection in river basins Based on the research of theoretical issues on water environment protection in river basins, the thesis will clarify the status and solutions to protect water environment in river basins in Vietnam - Scope of space and subject of research: The thesis focuses on studying the water environment in three major river basins such as: Nhue-Day river basin, Dong Nai river basin, Cau river basin - Scope of time: The thesis focuses on researching the water environmental protection in river basins according to Vietnamese law in recent years 3.2 Subject of research The subject of the study is Vietnamese legal provisions on water environment protection in river basins, from the perspective of economic law The thesis will absorb, inherit and promote relevant research results of the previous authors, and will delve into the limitations of current laws, propose recommendations and solutions to build and complete the legal system as well as improve the efficiency of the implementation of the legislation on water environmental protection of river basins in Vietnam Approach and research methods of the topic 4.1 Approach The thesis approaches the issue of water environment protection in river basins under the perspective of Law: -Approaches from theoretical basis, overview of the law and improve the law in general and the law on water environment protection in the river basin in particular - Approaches from the practice, assessing the current status of the law on water environmental protection in river basin and the need to improve the law - Approaches from the orientations, objectives and policies on completing the environmental protection legislation and the law on river basin water environment protection 4.2 Research Methods a Methods of analysis The method that requires systematic analysis It must classify, select, generalize, compare information from documents There are two analytical directions in this method: qualitative method and quantitative method b Comparative method of jurisprudence This is method of approaching, studying and comparing different systems of law in order to find similarities and differences, explaining the origin, evaluating the solution in the systems of law c Methods of comparison, statistics Statistical comparison method is used to provide necessary data, collate, compare and clarify relevant contents, placing in the overall legal system of water environment protection in river basin d Institutional and policy analysis (IPA) method Method of IPA ( Institution and Policy Analysis- IPA ) is the method that analyzes and assesses the institutional and policy The IPA is a neutral technical tool aimed at clarifying the effectiveness of an existing policy, explaining how stakeholders have adapted under the impact of the policy, seeking strategies or solutions to improve and enhance the effectiveness of the policy The IPA is neutral because it is not intended to plan, identify the goal, influence, morality, etc of a policy to be enacted, but only to analyze an existing and effective policy in order to seek ways to increase the effectiveness of that policy New contributions of the thesis - The thesis clarifies theoretical issues on the law on the water environmental protection in river basins, pointing out the dominant elements of the legislation on the water environmental protection in river basins - The thesis clarifies the status of law and practice of the law on the environmental protection of water in river basins in Vietnam - The thesis put out orientations and solutions to improve the law and ensure the implementation of legislation on water environmental protection in river basins in Vietnam - The thesis proposes solutions to improve the efficiency of organizing the implementation of legal provisions on water environment protection in river basin Scientific and practical significance of the thesis The thesis contributes to clarify the theoretical basis as well as the legal principles of environmental protection in river basins Based on the analysis and evaluation of statistics on the current situation of the environment as well as the identification of current shortcomings of the legal provisions on water environmental protection in river basins, the thesis proposes recommendations to contribute to the improvement of the real laws Structure of the thesis Apart Introduction, Conclusion, List of references, the thesis has four chapters as follows: - Chapter Overview of research works related to the topic ; - Chapter Theoretical issues on water environment protection in river basins ; - Chapter Actual situation of water environment protection in river basins in Vietnam and its implementation in reality ; - Chapter Requirements, solutions to perfect and improve the enforcement of laws on water environment protection in river basins CHAPTER OVERVIEW OF RESEARCH WORKS RELATED TO THE TOPIC 1.1 Overview of research situation 1.1.1 The study of river basin water sources as a specific object of environmental protection In this content, the PhD student summarizes research works on water management, protection in river basins in the country, generally evaluates the research situation of the authors, points out the contribution of the works in protecting the water environment in the river basin and connects, assesses the situation of research on this topic in several countries around the world 1.1.2 The research works on the water environmental protection laws in river basin The PhD student collect research works on water environment protection law in river basin, generally evaluates research situation of the authors, points out positive contributions of the works in protecting the water environment in river basin in Vietnam and the situation of research on this issue in several countries around the world 1.2 General evaluation of research related to the topic 1.2 The results achieved in the researched works will be inherited by the thesis On the basis of collection and evaluation of scientific research projects related to the topic, the PhD student found that the works had fully and deeply mentioned concepts such as: water environment of river basins, legislation on water environment protection in river basins and theoretical issues on protection and development of water resources in river basins PhD students will inherit and absorb the research results In addition, the PhD student also referred to a number of research results on the status of the law, inadequacies, gaps and limitations of sanctions on violations, effectiveness of legal intervention and the activities of the Committee of some specific river basins in Vietnam Moreover, we could learn from works studied in foreign countries more about how to enact specialized laws that individually adjust field of environmental pollution and water treatment solutions to water pollution must have overall characteristic, and in combination with solutions to prevent environmental pollution in general It is possible to acquire and learn a number of measures to protect the environment from other countries such as in case of emergency, competent person may direct immediately to perform any task or anything in accordance with the law, if the competent person finds that work is necessary for public health or for the safety of society 1.2.2 Issues that the thesis needs to research to continue clarifying and developing Research and management of the water environment in river basin so far has focused only on studying how to protect water environment by protecting the amount of water on the river basin such as assessing load capacity, self-cleaning ability and proposing a number of constructions and projects for dilution, increasing flow, increasing load capacity and selfcleaning of the river system There are only few legal studies for water protection in river basin The research results in general have not clarified the theoretical issues and the status of the water environment protection legislation in river basin Therefore, in this thesis, PhD student will continue to conduct more in-depth study and complete this issue And if the problem of protecting water environment in river basin has been studied by previous authors in terms of environmental science and In general, the current situation of protecting the water environment in the river basins in Vietnam is currently not good, it is necessary to promptly develop a complete legal system for management of this field - Research question : What are the limitations and shortcomings of the legislation on water environmental protection in river basins? - Research question : What is the solution to improve the water environmental protection legislation in river basin? 1.3.2 Approach and research methods The thesis uses a overall, interdisciplinary approach to identify and implement research activities The thesis uses the following research methods in the thesis : - Analytical and comparative methods, especially data comparisons, are used to evaluate Vietnamese legislation on water environment protection in river basin and its practical implementation - The generalized method and scientific assumptions used to research and propose solutions to improve the law on water environment protection in river basins and solutions to improve the effectiveness of this law 10 CHAPTER THEORETICAL ISSUES ON WATER ENVIRONMENTAL PROTECTION IN RIVER BASIN 2.1 Theoretical issues about the river basin water environment 2.1.1 Approach River basins as the subject of management and protection of water resources River basin means a land area in which surface water and underground water naturally flow into a river and exit to a common outlet or into the sea In this content, PhD student analyzes and clarifies the approach of the river basin as the subject of river basin management, environmental management and water environment protection 2.1.2 Relationship and role between river basin water environment protection and river basin management In this content, PhD student analyzes and clarifies the relationship and role between river basin water environment protection and river basin management This is orientation of development activities and management of water resources for a period according to view of State for socio-economic development and environmental protection in order to make basic transition for management, protection and development activities of water resources 2.1.3 Implications of water environment protection in river basin - Planing on allocation of water resources; - Planning on protection of water resources; - Planning on prevention, against and overcoming of harmful effects caused by water 11 2.2 Theoretical issues on the law on water environment protection in river basin 2.2.1 Legal relation on the protection of water resources in river basin Legal relation on the protection of water resources in river basin has wide, diverse and complex scope and object adjustment such as: Firstly , including the social relations arising in the process of protecting, exploiting and using water resources in river basins; legal relations arising between entities in the management and treatment of waste water into the environment; social relations related to state management of water environment protection; Social relations related to State management on water environment protection; handling of violations in the field of water environment; social relations related to international relations on water environment protection Secondly, it contains different types of legal documents in various branches of the Law such as Civil Law, Administrative Law, Civil Procedure Law, Land Law, Environmental Protection Law, and Criminal Law Thirdly, there are various forms of expression, including legal documents and sub-law documents issued by many competent State agencies 2.2.2 Legislation on the protection of water resources in river basin in the legal system Environmental protection legislation is a specialized law area that includes the legal provisions governing social relationships that arise during human exploitation, use or impact on one or several different elements of the environment The relationship between people (society), environment and laws is an organic, dialectical relationship for each other in a whole 12 There are many measures to take in order to protect environment, but the law has become important and governs the entire context of political institutions in our country today In order to protect water environment in river basin, we have many measures such as: Political measures; Measures to propagate and educate; Economic measures; Scientific and techinical measures In this content, the PhD student analyzes and clarifies from the perspective of the law on the protection of water resources in the river basin in the legal system The river basin water environment protection legislation is a comprehensive set of laws governing social relationships that arise during human exploitation, use or impact on one or several different factors of water environment in river basin 2.2.3 Implications of the river basin environmental protection law a Provisions on water environment protection in river basins in the Law on Environmental Protection b Regulations on water environment protection in river basins in the Law on Water Resources c Institutional structures for managing river basins, environmental protection water in basins 2.2.4 The principles of the Law on the protection of water environment in river basins a Principles of integrated management of water resources in river basin - Integrated and interdisciplinary approach - System ecology approach - Approach from the bottom up - Community participating approach b The principle of unified management without division 13 Environment is a unified entity The unity of environment is reflected in aspects: Unity of space: Environment is not divided by national borders and administrative boundaries The intrinsic unity between the constituent elements of environment: Among the constituent elements of environment, there is always an interaction relationship with each other, this element changes leading to the change of other factors c Principles of cooperation in sharing benefits, ensuring fairness in exploitation, use and protection of water resources development The legal system on water environment protection has ensured the sustainable development and harmonious interests among social forces Ensuring the harmony of interests between social forces, between socio-economic development and environmental protection, the orientation of sustainable development has become the principle and the main content of the legal system on environmental protection d Principles of polluters must pay The basic content of PPP is expressed right in its name, that the subjects causing environment pollution must bear the costs of remedying and improving the polluted environment Those who exploit and use natural resources, those who have acts of discharging into the environment as well as those who have other acts causing bad impacts on the environment must pay e Socializing the protection of water resources in river basin The basic content of PPP is expressed in its name, which is promoting, strengthening education, propaganda and raising public awareness Moreover, it is necessary to encourage and enhance the participation of the community in protecting the water environment in river basin 14 Introduce a number of laws related to water environment protection in the world to have a more general view such as: In Japan ; In Singapore CHAPTER CURRENT STATUS OF LAW ON WATER ENVIRONMENT PROTECTION IN RIVER BASIN IN VIETNAM AND PRACTICAL IMPLEMENTATION 3.1 Current status of the law on water environmentprotection of in river basin in Vietnam 3.1.1 Planning on development and protection of water environment in river basins in current law In this content PhD analyzes, clarifies actual status of laws, legal documents issued related to development planning and environmental protection in general and the water environment in river basins in particular 3.1.2 Control water pollution in river basins according to current laws The management and protection of the river basin environment is a very urgent issue and is particularly important in the current period In order to improve the efficiency of the management and protection of water resources, one of the factors we need to consider is Control of water pollution in river basins according to current laws Control of the river basin water environment aims to limit the increase of water pollution, at the same time, helping to make the environment safer Moreover, in order to effectively control environmental pollution of river basins, at the beginning, it must be closely supervised from the stage of applying for environmental permits such as: strategic environmental reports, impact assessment reports, scheme on environmental protection, environmental protection plan, 15 3.2 Practical implementation of legislation on water environment protection in current river basins 3.2.1 Implementation of environmental protection laws on river basin 3.2.1.1 Nhue - Day river basin In this content, PhD student analyzes and assesses the actual implementation of the law on water environment protection in Nhue-Day River Basin, showing the achieved results, difficulties, shortcomings and causes of limitation in reality 3.2 1.2 Dong Nai river basin In this content, PhD student analyzes and assesses the actual implementation of the law on water environment protection in Dong Nai River Basin, showing the achieved results, difficulties, shortcomings and causes of limitation in reality 3.2.1.3 Cau river basin In this content, PhD student analyzes and assesses the actual implementation of the law on water environment protection in Cau River Basin, showing the achieved results, difficulties, shortcomings and causes of limitation in reality 3.2 Assessing the implementation of environmental protection laws on river basins 3.2.2.1 Achievements +) The system of water environment protection laws is relatively comprehensive; +) The legal system of water environment protection is basically compliant with the Constitution and laws; +) The legal system of water environment protection is feasible and is suitable to the country's overall socio-economic development conditions; +) The legal system on water environmental protection has ensured publicity and transparency; 16 +) The legal system on water environment protection has ensured the sustainable and harmonious development of interests among social forces 3.2.2.2 Limitations and shortcomings +) In the investigation and planning of water environment protection in river basins; +) In regulations on control of activities causing environmental pollution; +) In other regulations on protection of water resources; +) In regulations on liquid and solid waste management; +) Regulations on civil liability in violation of environmental protection legislation; +) Regulations on criminal responsibility in violation of the law on environmental protection; +) Regarding the sanctioning of administrative violations in the field of environmental protection 17 CHAPTER REQUIREMENTS, SOLUTIONS TO COMPLETE AND IMPROVE EFFICIENCY OF IMPLEMENTING LEGISLATION ON WATER ENVIRONMENTAL PROTECTION RIVER BASIN 4.1 The requirements for the improvement of environmental protection laws in river basin 4.1 Ensure consistency between the Law on Environmental Protection and the Law on Water Resources on river basin management Currently, our country has enacted the Law on Environmental Protection (2014) to replace the Law on Environmental Protection (2005) and the Law on Water Resources (2012) to replace the Law on Environmental Protection (1998) In 02 copies of this Law, the regulations on the content of river basin management are outlined However, we need to consider the content of each law document to ensure the consistency of each specific article, avoiding conflicts, and overlap between stakeholders, especially on the responsibility of water resources management It is necessary to specify more clearly state management responsibilities of water resources of the Ministry of Natural Resources and Environment, ministries, branches and local governments at all levels 4.1.2 Laws on organization of local governments and government organizations need to strongly decentralize institutional management of river basin In our country, many localities still manage water resources following the old approach such as by sector, top-down order, fixed water supply While current management methods need to manage integrately including addressing priorities and needs of community; coordinate with industries and stakeholders participation; manage according to supply 18 demand; Organize openly, transparently and have back-to-back information with technical and professional support 4.1.3 The law should specify a number of criteria determining the effectiveness of river basin water management - Water resources in river basins must be managed according to a unified principle, non-division among administrative levels, between upstream and downstream - Specific provisions on river basin management: basic survey of environment and water resources in river basins; river basin planning; protecting the water environment in river basins; regulating, allocating water resources and transferring water for river basins; international cooperation and implementation of international rules on river basins; organize river basin coordination; river basin management responsibilities These rules will lay the foundations for the operation of river basin management organizations - The environmental protection of river basin water is specifically and clearly prescribed to increase practical feasibility - Building an institution to protect the water environment in the river basin means building an institution to manage water resources in the river basin 4.1.4 Improve the efficiency of State management to protect the water environment in river basin 1) Strengthening capacity to develop legal documents for enforcement of water environment management in river basins; 2) Strengthening the capacity to carry out management of water environment in river basins and Departments of Natural Resources and Environment through pilot projects; 3) Develop a roadmap for improving the water environmental management of river basins based on the project results 19 4.1.5 Strongly socialize activities to protect the water environment in river basins The 12th National Congress of the Party stated: " Promote socialization along with allocating resources from the state budget to invest in key projects to restore people's living environment" The Politburo's Resolution No 41-NQ/TW dated November 15, 2004 of Ministry of Political on environmental protection in the period of stepping up industrialization and modernization clearly stated that it is necessary to identify the responsibility to protect environment of the State, individuals and organizations and community, with particular emphasis on the responsibility of service production facilities Create a legal basis and mechanisms and policies to encourage individuals, organizations and communities to participate in environmental protection Establish forms of organization of assessment, consultancy, inspection, accreditation and certification of environmental protection 4.2 Specific solutions for perfecting and improving the efficiency of law enforcement on water environmental protection in river basins 4.2.1 Unify the Law on Water Resources and the Law on Environmental Protection It is necessary to synchronize and unify these 02 documents, in order to avoid overlapping, causing difficulties for managers when implementing, and at the same time, minimizing and avoiding cost for law enforcers In addition, the Law should: +) Establish and strengthen the coordinating organization of environmental protection in river basin through the Committee of environmental protection in river basin; +) Mode of operation of the Committee of environmental protection in river basin; 20 +) Personnel and organization of the Committee of environmental protection in river basin; +) Responsibilities of the river basin office; +) Responsibilities of a multidisciplinary team of experts; +) Mode of operation of a multidisciplinary team of experts; +) The river basin committee is being proposed to be established by Ministry of Natural Resources and Environment; +) Responsibilities of Departments 4.2.2 Solutions for strong management decentralization for river basin management institutions a) Improve the law on water environment protection in river basins based on the relationship of the rule of law; b) Enhance the effectiveness of the implementation of the legislation on environmental protection in river basins 4.2.3 Complete the legislation on water environment protection in river basin +) At central level +) At local level 4.2.4 Improve capacity of water environment management in river basin +) Improve the environmental management capacity in industrial zones of policy-making agencies +) Strengthen training activities to raise awareness about water environment protection for grassroots administrations +) Improve the operational efficiency of socio-political organizations in protecting the water environment in river basin +) Educate and propagate to raise public awareness about protecting the water environment in river basin 21 +) Complete mechanisms and policies to enhance the effectiveness of community participation in water environment protection in river basin +) Develop mechanisms for dissemination and access to information +) Develop mechanisms for community supervision and people's inspection of water environment protection in industrial zones 4.2.5 Improving the law on water environmental protection in river basin must be based on the principle of harmonizing the interests of the people, the interests of the State and the interests of enterprises +) Establishing and enforcing legal mechanisms to ensure stimulation and harmonization of interests as well as responsibilities of the state, organizations and individuals in the process of socializing environmental protection activities from the perspective of environmental protection is a responsibility of the whole society; +) The law depends on the will of the state, stemming from the interests of the state, class, ethnic group, and the state through competent agencies that issue laws; +) Ensuring the harmony of interests among social forces will have great significance for the implementation of the law, ensuring the unity of will and basic interests among social forces, for a stable society, solidarity and sustainable development; +) The practice of handling facilities causing serious environmental pollution shows that, if the law wants to become a useful tool of the state, it must ensure the harmony of interests of different forces in society ; +) In order to ensure the harmonization of interests of forces, sectors, levels, groups, collectives as well as of every person, the questions are how to perfect the law-making mechanism and how can the mechanism be considered the most completely, the most objective, and the most comprehensive benefit of people, the state, enterprises and the whole society? 22 CONCLUSION In fact, the current legal documents on environmental protection are still very lacking, inconsistent and even not suitable to actual conditions, especially documents related to water environmental protection in river basin Moreover, the implementation of the Law and its sub-law documents are still very limited due to many objective and subjective reasons, so the enforcement efficiency is not high Regarding management practices, it can be seen clearly that there is a lack of consistency and clear division of responsibilities between the management authorities: central and local levels There is a lot of overlap among sectors that share the same management area, causing difficulties and hindering environmental protection activities Localities in the basin have not found a common voice, no unification and no coherence in the administration of the basin environment Unified and integrated administration of water resources in a river basin is still a new problem for Vietnam, it is very limited in terms of awareness and it will inevitably face confusions when deployed Our current fundamental advantages is that Law on Water Resources was enacted, creating the legal basis and guidelines for the deployment of administrative activities of the water resources However, we not have a lot of legal documents guiding detail in unifying and collecting management of water resources in a large river basin Therefore, based on a comprehensive assessment of the law on water environmental protection in river basin, the thesis proposes a group of solutions to complete the laws such as: Ensuring the consistency between the Law on Environmental Protection and the Law on Water Resources; Improve the efficiency of state management; The law should specify a number of criteria to determine the effectiveness of water management in river basin; from 23 which to achieve the ultimate goal of building a system of legal documents and regulations on the protection of water environment in river basin in a coherent and feasible manner, meeting the needs of socio-economic development and environmental protection in the integration period 24 ... the Committee of environmental protection in river basin; +) Mode of operation of the Committee of environmental protection in river basin; 20 +) Personnel and organization of the Committee of... according to Vietnamese law" as the content doctoral thesis in Law Research purpose and missions of the topic 2.1 Research purpose The research purpose of the thesis is to clarify the theoretical... the laws of Vietnam On that basis, proposing solutions to improve the efficiency of building and implementing law on the protection of water environment in river basins in Vietnam 2.2 Missions