Safeguard B Detail

Content with Safeguard B B2.6 times .


Access to justice is recognised under Vietnamese law as the right of all individuals and organisations to access formal and informal legal institutions and to ask for protection of their legitimate rights and interests. The legal framework also guarantees access to appeals, remediation, compensation and the enforceability of its decisions. In the context of REDD+, the relevant dispute and conflict resolution mechanisms are expected to be available to stakeholders throughout the implementation of REDD+ policies and measures under the National REDD+ Programme and Provincial REDD+ Action Plans to address any disputes arising from their implementation.

The Constitution of Viet Nam (2013) recognises the right to access to justice[1], while the Law on Complaints (2011)[2] provides a comprehensive legal framework for citizens to formally access justice relating to administrative decisions, including those related to forest and forest land access, management, ownership and use. The Law on Complaints recognises the right to access legal services through lawyers, or through legal aid if the complainant is entitled to enjoy legal aid services in accordance with the Law on Legal Aid (2006)[3]. The Code of Civil Procedure (2015)[4] provides that parties have the rights to ask lawyers or other people to defend their legitimate rights and interests.

The Land Law (2013) provides several specific provisions relating to the right to access to justice on land management related decisions and the right to denounce offences against the Land Law[5]. The Law on Environmental Protection (2014) provides a general provision on dealing with complaints and denunciations relating to environmental protection[6]. Additionally, the Law on Grassroots Mediation (2013) formalises into law the popular practice of resolving disputes and grievances at local levels through the use of customary laws and conventions and/or other informal channels[7].

At the local level, the heads of mass organisations, village heads, religious leaders, elders at village level, and Commune People’s Committees are responsible for dispute and grievance resolution. The Ministry of Natural Resources and the Environment as well as Provincial, District and Commune People’s Committees and mass organisations are responsible for the resolution of disputes and grievances related to land. Provincial, District and Commune People’s Committees are responsible for the resolution of general complaints and grievances.

 

[1] The Constitution of Viet Nam (2013), Article 30.

[2] According to the Law on Complaints (2011), a complaint can be made directly to the decision maker, and an appeal process is provided at the immediate higher level. Additionally, the complaint may be brought to an even higher level in accordance with the Administrative Court Procedure Law (2015).

[3] The Law on Legal Aid (2006), Article 10. Government Decree No. 07/2007/ND-CP and Government Decree No. 14/2013/ND-CP further define who is entitled to legal aid.

[4] The Code of Civil Procedure (2015), Article 9.

[5] The Land Law (2013), Articles 166 & 203. Specific procedures for settling land disputes are contained in Articles 89 to 91 of Government Decree No. 43/2014/ND-CP, including land disputes where parties do not have land use rights certificates. In this case, evidence on the origin and use process of the land needs to be presented by the disputing parties. Specific procedures regulating disputes related to compensation for land recovery by the State are contained in Article 4 of Joint Circular No. 06/2014/TTLT-BTP-TTCP-BQP.

[6] The Law on Environmental Protection (2014), Article 128.

[7] The Law on Grassroots Mediation (2013). See also Government Decree No. 15/2014/ND-CP detailing several articles and measures to implement the Law on Grassroots Mediation, and Joint Resolution No. 01/2014/NQLT/CP-UBTUMTTQVN of the Government and the Central Committee of the Viet Nam Fatherland Front on Guiding and coordinating the implementation of some provisions of the law on grassroots mediation provide relevant guidance.


REDD+ implementation may result in significant impacts on the dynamics of conflicts over forest resources, land and other resources in forest areas[1]. Effective mechanisms to address contentious issues, complaints and disputes during REDD+ implementation, collectively referred to here as Grievance Redress Mechanisms (GRMs), are necessary as part of addressing and respecting the Cancun safeguards, particularly with respect to Safeguards B, C, and D. National GRMs also form part of the expected criteria for accessing REDD+ results-based payments from key REDD+ financing channels including the Forest Carbon Partnership Facility-Carbon Fund[2] and the Green Climate Fund pilot programme for REDD+ results-based payments[3].

The establishment of a GRM for REDD+ is included in Viet Nam's National REDD+ Programme[4], which by 2020 aims to finalise the processes, procedures and mechanisms to manage, resolve, process and monitor complaints related to REDD+, with a GRM established, operated and monitored. The Ministry of Agriculture and Rural Development Decision No. 5399/2015/QD-BNN-TCLN[5] on issuing regulations on piloting REDD+ benefit distribution under the framework of the UN-REDD Viet Nam Phase II Programme also includes guidance on GRMs, with piloting of benefit distribution linked with consultation with stakeholders, monitoring, evaluation and grievance redress.  Article 20 of this Decision sets out the process for piloting of grievance redress mechanisms at village, commune and provincial levels.

Existing GRMs relevant to REDD+ implementation in Viet Nam have been identified based on the laws and regulations outlined under Safeguard B2.6.1 above[6] . The following specific GRMs have been identified:

  • Grassroots mediation
  • Mediation/conciliation at the Commune People’s Committee
  • Complaint settlement
  • Commercial arbitration
  • Dispute settlement by courts

The implementation of these GRMs has been assessed against seven international principles for effective REDD+ GRMs[1]. This assessment identified the importance of local mediation within the framework set out in the Law on Grassroots Mediation (2013), including the following roles:

  • Grassroots Mediation Groups at the village level act as focal points to receive, process, and provide an initial response to the grievances of local residents, leading to mediation and agreement on grievance resolution at this level where possible, and to transfer grievances to the Commune People’s Committee where resolution through village-level mediation is not possible.
  • Commune Mediation Groups at the commune level act as a focal point to receive, process, and respond to grievances at the commune level, including those that cannot be resolved at the village level, to advise the Commune People’s Committee on resolution of grievances, and to advise local community members on referral of their grievances to other GRMs where resolution through mediation at the village or commune level is not possible.
  • District Legal Advice Committees at the district level provide legal advice to complainants on mechanisms and processes to seek redress. Legal advice is provided free to complainants from poor households.

This REDD+ GRM identifies steps that can be applied for grievance redress through mediation at the village and commune levels, and for referral to other GRMs in the case of grievances that cannot be resolved through mediation, utilizing Viet Nam’s existing GRMs. This GRM  has been piloted in the six UN-REDD pilot provinces, and areas for potential improvement in future have been identified.

 

[1] Joint FCPF/UN-REDD Programme Guidance Note for REDD+ Countries, June 2015.

[2] FCPF Carbon Fund Methodological Framework, June 22, 2016

[3] GCF Decision B.18/07, dated 2 November 2017: Annex X1 Draft terms of reference for the pilot programme for REDD+ results-based payments

[4] Annex: Policies and Measures for REDD+ implementation for period of 2017 – 2020, NRAP 2017.

[5] MARD Decision No. 5399/2015/QD-BNN-TCLN

[6] Development and Policies Research Centre (DEPOCEN) (2016) The Development of Grievance Redress Mechanisms (GRMs) relevant to REDD+ in Viet Nam (report funded by the UN-REDD Programme)

Joint FCPF/UN-REDD Programme Guidance Note for REDD+ Countries, June 2015.