Regional Workshop on Basel Protocol on Liability and Compensation Civil Liability

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Regional Workshop on Basel Protocol on Liability
and Compensation Civil Liability

• Nguyen Hoang Anh MONRE
• Viet Nam

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Who will be liable for the damage

• According to the Guidance of Supreme Court on
  application of some regulations pursuant to Civil
  Law on compensation, in which has defined the
  civil liability for damage caused by high risk
  sources as follow The owners of the high risk
  sources are liable for the compensation of the
  damage caused by the sources
• And The owners here are Who are occupy, manage
  and explore the benefits from the high risk
  sources under the supervision of legislation and
  social behaviours. And also the persons who are
  transmitted the right of use, exploitation of the
  sources.

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Who will be liable for the damage

• According to the Regulation on Hazardous waste
  management, which is promulgated by Decision No
  155/1999/QD-TTg dated 16 July 1999 by the Prime
  Minister), all related organisations/bodies
  (includes domestic generator, domestic owner,
  carrier, and disposer are liable for the damage
  caused by transboundary movements-Article 13
• When any problems arising, the collector and
  transporter have the responsibility
• To carry out emergency measures in order to
  reduce damage to the environment and human health.

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Who will be liable for the damage

• To immediately inform the local environmental
  protection authority to coodinate for the
  treatment and also provide full, accurate and
  required information in time to the local
  environmental protection authority and the local
  People s Committee, and carry out their
  instruction to overcome the problem.
• Quickly overcome the problem caused by hazardous
  waste and be responsible for paying compensation
  for damages to health, property, and environment
  as specified under the law.

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Types of damage

• In the New Law on Environment Protection
• Article 130 Damages Caused by Environmental
  Pollution and Degradation
• Damages cause by environmental pollution and
  degradation include
• Degradation in the function and usefulness of the
  environment
• Damages to human health and life, properties and
  legitimate interests of organizations and
  individuals due to degradation in the function
  and usefulness of the environment.

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The relevant agency for the enforcement of
liability

• National and under national courts (includes
  Civil Court at all level)
• Organization for enforcement at all level.
• Governmental Inspection and all levels of
  inspection (includes provincial and local
  inspection, ministerial inspections)
• People s Committee at all levels
• Concerned authorities including Administrative
  organizations, related ministries (Custom General
  Department and Custom Departments in provinces,
  Ministry of Natural Resources and Environment,
  and others)

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The nature of the liability

• The New Law on Environment Protection has
  defined Article 131
• Determination of Damages Caused by Environmental
  Pollution and Degradation
• Degradation in the function and usefulness of the
  environment includes the following categories
• Being degraded
• Seriously degraded
• Extremely seriously degraded.

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The nature of the liability

• The determination of the extent and limits of
  the environment that is degraded in terms of its
  function and usefulness includes
• Determination of limits and areas of regions and
  their core zones being seriously and extremely
  seriously degraded
• Determination of limits and areas of buffer zones
  being directly degraded
• Determination of limits and areas of other
  regions being affected from core and buffer
  zones.

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The nature of the liability

• The determination of environmental components
  being degraded, including
• Determination of the quantity of degraded
  environmental components and types of damaged
  ecosystems and species
• Levels of damage of each specific environmental
  components, ecosystems and species

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The nature of the liability

• The calculation of costs of environmental
  damages shall be specified as follows
• Calculation of costs incurred in short and long
  term damages induced by degradation in the
  function and usefulness of the environment
• Calculation of costs incurred in environmental
  remedy, improvement and rehabilitation
• Calculation of costs incurred in the mitigation
  or elimination of sources that cause damages

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The nature of the liability

• The calculation of costs of environmental
  damages shall be specified as follows
• Exploring comments from other concerned parties
• Taking one of the measures defined in Items (a),
  (b), (c) and (d) of this Paragraph to calculate
  costs incurred in environmental damages depending
  on specific conditions, to serve as basis for
  determining levels of compensation and settlement
  of compensation for environmental damages.

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The nature of the liability

• The determination of damages induced from
  degradation in the function and usefulness of the
  environment shall be performed independently or
  in collaboration with parties that cause damages
  and affected parties
• At the request of one or all parties concerned,
  specialized agencies of environmental protection
  shall have the responsibility to participate, and
  provide guidance in the calculation and
  determination of damages or to witness the
  determination of damages.

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The nature of the liability

• The determination of damages in terms of human
  health and life, properties and legitimate
  interests of organizations and individuals caused
  by environmental pollution and degradation shall
  be performed in accordance with the provisions of
  the law.
• The Government shall guide the determination of
  damages caused by environmental pollution and
  degradation.

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Time limits to the liability

• Pursuant to Civil Law.

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Financial limits to the liability

• Article 132 of the New Law on Env.Protection
• Valuation of Damages Caused by Degradation in the
  Function and Usefulness of the Environment
• The valuation of damaged caused by degradation in
  the function and usefulness of the environment
  shall be performed on the request of affected
  organizations and individuals or by agencies that
  are engaged in the settlement of compensation for
  environmental damages.

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Financial limits to the liability

• Grounds for the valuation of damages shall
  consist of compensation dossiers, data and
  information, evidence and others relating to the
  compensation for damages and parties that cause
  the damages.
• The selection of agencies in charge of damage
  valuation must seek consensus between
  compensation claiming parties and affected
  parties if the parties concerned cannot reach
  agreement on the selection of agencies in charge
  of damage valuation, which shall be decided by
  agencies assigned to deal with the compensation
  for damages.

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Insurance

• Article 134 of New Law on Environment
  Protection Insurance for Liability for
  Compensation for Environmental Damages
• The State shall encourage insurance enterprises
  in the implementation of insurance of the
  liability for compensation for environmental
  damages.
• The State shall encourage organizations and
  individuals engaged in production, business,
  service and other activities to insure their
  liability for compensation for environmental
  damages.
• Organizations and individuals engaged in
  activities that are likely to impose potential
  risks of significant environmental damages must
  insure their liability for compensation for
  environmental damages.

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Gaps in your liability legislation

• Now the compensation for environmental damage in
  Viet Nam is still theoretically. In some cases of
  oilspils, it had became practically. So we could
  only analyse the gaps when the New Law go in to
  force this July and being implemented

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Regional or bilateral agreements regarding
liability

• For environment protection NO
• For others concerned activities NA

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• Thank you very much for your kind attention