Challenges to a Just Energy Transition and the Right to Development in Vietnam — Project88 Joint Submission to Dr. Surya Deva, United Nations Special Rapporteur on Development
Project88 contributed to a joint submission to the UN Special Rapporteur on the Right to Development, Professor Surya Deva, ahead of Deva’s visit to Vietnam from Nov. 6-15. Project88, International Rivers, and Environmental Law Alliance Worldwide, argue that Vietnam cannot meet development goals unless climate change and environmental thinkers and leaders, as well as civil society actors more broadly, are allowed to function independently and without fear of persecution for their work. Read the full submission below (and the version with annexes, here).
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Subject: Challenges to a Just Energy Transition and the Right to Development in Vietnam
Dear Prof. Deva,
We are writing to bring to your attention a disturbing pattern of wrongful arrests of several environmental human rights defenders, climate activists and energy policy experts working on the transition from coal to renewable sources of energy and other important environmental and development issues in Vietnam. The arrests and imprisonment of these individuals threatens the work towards a just energy transition that is imperative for the realisation of a Right to Development for the people of Vietnam.
These arrests have taken place within a wider context of repression of civil society in Vietnam, and exclusion from development decisions and processes. This includes restrictions on access to information and public participation and infringements on the rights to freedom of opinion and expression and freedom of assembly and association. 1 They also occur in the context of Vietnam’s energy transition and the negotiation of the Just Energy Transition Partnership (JETP), a 15.5 billion USD financing agreement announced in December 2022 between G7 governments plus Denmark and Norway, and Vietnam, aimed at accelerating a just energy transition in Vietnam. Key financing partners include the World Bank Group, the Asian Development Bank, the European Investment Bank (EIB), and a group of commercial banks coordinated by the Glasgow Alliance for Net Zero (GFANZ), with technical support from the United Nations Development Programme (UNDP).
In light of your upcoming visit to Vietnam and the questionnaire circulated for input, this submission focuses on information regarding the following questions:
● What are the key issues and challenges (including any pressing legal and policy gaps) faced in the implementation of the right to development in Vietnam?
● How is the Government dealing with impacts of digital divide and climate change on the right to development?
● How does the Government promote and guarantee active, free and meaningful participation of people in development policies and programs? Specific attention will be given to access to information and effective participation of marginalised or vulnerable
● How are human rights and environmental considerations included while adopting development policies and programs? Are human rights impact assessments conducted? Are civil society organisations and/or workers organisations included in such assessment and in what ways?
● Could you provide any suggestions or recommendations that the Special Rapporteur could address to the Government and other stakeholders whose work has an impact on realising the Sustainable Development Goals and the right to development in Vietnam?
● Could you provide any suggestions for and contacts of stakeholders that the Special Rapporteur could meet including government institutions, civil society organisations, community representatives and academia?
● Any other pertinent information that you consider relevant for the visit of the Special Rapporteur?
As you may be aware from our previous submission, 2 six environmental and climate leaders who helped pave the way for the JETP agreement by advocating for Vietnam’s transition away from coal have been arrested and imprisoned over the last two years on trumped up charges.
These leaders include Mr. Dang Dinh Bach (Bach), co-founder and former director of the Law and Policy for Sustainable Development Research Center (LPSD), Ms. Hoang Thi Minh Hong (Hong), former Executive Director of CHANGE, an environment non-profit in Vietnam that addresses some of the country’s most critical environmental challenges, internationally renowned climate expert and Goldman Environmental Prize winner, Ms. Nguy Thi Khanh (Khanh), journalist Mr. Mai Phan Loi (Loi), lawyer Mr. Bach Hung Duong (Duong) of the Centre for Media in Educating Community (MEC). Each of these five individuals was convicted and sentenced to an onerous prison term on “tax evasion” charges. While Khanh and Loi were released early this year after serving 16 months and 27 months respectively in prison, the others remain incarcerated.
The sixth individual, Ms. Ngo Thi To Nhien (Nhien) was detained on 15 September 2023. Nhien is Executive Director of Vietnam Initiative for Energy Transition (VIETSE), an independent energy think tank which aims to “accelerate the energy transition of Vietnam towards a carbon-neutral society.” Nhien has worked for over a decade as a consultant on energy projects for the World Bank, the European Union, the Asian Development Bank, USAID, and a number of UN agencies, 3 as well as Vietnam’s Ministry of Industry and Trade.
At the time of her arrest, Nhien was working closely with national and international partners on the development of Vietnam’s JETP. Nhien also worked with the Viet Nam Energy Partnership Group (VEPG), which was established by the government to engage stakeholders in implementing Vietnam’s sustainable energy transition, as well as the Southeast Asia Energy Transition Partnership (ETP), a partnership formed to help Indonesia, Vietnam, and the Philippines in their transitions away from fossil fuels. Khanh, another of the six arrested activists, also served as an adviser for the ETP.
On 30 September a spokesperson from Vietnam’s Ministry of Public Security announced that Nhien was detained for “appropriation of documents” from a state-owned agency under Article 342 of the Penal Code, concerning documents related to Vietnam’s energy transition. 4 She is currently being held in pretrial detention.
The Office of the High Commissioner for Human Rights (OHCHR), 5 UN Special Procedures, 6 governments including the United States, 7 United Kingdom, 8 the European Union 9 and human rights organisations have expressed concerns regarding the arbitrariness of the arrests and imprisonment of these individuals and the laws that are weaponised to enable such persecution. 10 These prosecutions are politically driven and designed to criminalise policy activism. 11 Activists’ efforts to organise non-profits into powerful advocacy coalitions and promote a civil society movement, brought them into conflict with the Communist Party of Vietnam. The common thread in these cases is that all of the individuals involved ran organisations that conducted advocacy on energy policy and all received foreign funding to carry out this work.
As a former member of the UN Working Group on Business and Human Rights, you have championed the cause of civil society and public participation. You continue to be deeply engaged on questions of environmental defenders, climate justice and corporate accountability and human rights in your different engagements, including as United Nations Special Rapporteur on the Right to Development.
The energy transition in Vietnam has brought to fore urgent business and human rights challenges, including on the protection of environmental defenders, civil society participation and access to information within development and energy transition financing frameworks. A successful just energy transition in Vietnam is imperative for achieving the Right to Development, the right to a healthy environment and the achievement of SDG 13 (b) and 17. Vice versa, failure of “just” transition processes due to absence of mechanisms for accountability, transparency and inclusive participation, will not only be contrary to the targets of SDG 16 but it will also impede progress towards a Right to Development.
Both development and just transitions require the “active, free and meaningful participation in development” of all peoples and individuals, effective rule of law and accountability at all levels and a national environment that is conducive to just, equitable and participatory development that is people and human rights centred. 12 Information transparency, together with meaningful engagement with civil society is critical for building a conducive environment.
The wrongful and arbitrary incarceration of environmental defenders, climate activists and energy expert in Vietnam violate the general principles of a right to development by 13 :
a) impeding active participation of people in the JETP process.
b) foreclosing the space for participation, inclusion and accountability in the JETP process and violating principles of equity, equality and non-discrimination. Jailing community organisers like Hong and Bach impedes an just energy transition process that can otherwise enable intersectionality, empowerment, accessibility and subsidiarity. To separate these wrongful arrests from the process of energy transition or development will be a failure to recognize the universality, inalienability, indivisibility,interdependence and interrelatedness of all human rights from a process of development.
c) erasing and obscuring stakeholder obligations and enabling a legal black hole within international climate change action. Policies and practices of JETP in Vietnam, including in its financing, design, and implementation are marked by a normative gap regarding questions of rights and the meaning of “just” in a Just Energy Transition. 14 The responsibility for compliance with safeguard policies, including on consultation and due diligence, is being passed around amongst different JETP stakeholders, such as the ADB, UNDP, IFC, GFANZ and IPG. Stakeholders are refusing to engage in a sectoral, collective and early stage compliance, instead pushing their institutional responsibility to the project level, at a later stage in the JETP cycle. 15 Project selection, feasibility studies, nature of projects whether mitigation or adaptation happen at the beginning of a JETP cycle and require transparency and accountability at this stage for it to be a just and participatory energy transition. Early stage, sectoral due diligence and consultation is critical to a just energy transition and it is the time when environmental defenders face grievous risks given the financial stakes involved for existing coal plants.
d) excluding environmental defenders and climate activists from the energy transition process separates it from the notion of human rights.
e) hampering international cooperation. The JETP is an example of an energy transition framework involving multiple states and international financial institutions and organisations. It requires accountability and transparency for its implementation. The latest arrest of Nhien indicates a potential criminalisation of access to information regarding energy transition 16 and it furthers the insecurity and reprisal risks for those in Vietnam who are working on transition away from coal with international stakeholders. The threat of criminal sanctions for accessing information connected to the energy transition process will inhibit both civil society and other kinds of energy transition enterprises from making informed decisions and are likely to fundamentally hamper the energy transition process. Cooperation on JETP must be based on principles of international law, including accountability, participation and transparency.
Vietnam has a duty to ensure development that is in compliance with its other human rights commitments. It has a duty ensure popular participation, through appropriate means, in the formulation, adoption and implementation of plans and partnership supporting the energy transition. 17
The wrongful and arbitrary arrests of environmental defenders, climate activists and energy experts, effectively hinders their ability to participate in, contribute to and enjoy civil, cultural, economic, environmental, political and social development that is linked to the energy transition process. Their wrongful and arbitrary arrests violate their right to active, free and meaningful participation in development. The arrest of defenders has also led to a broader chilling effect on civil society in Vietnam. The European Court of Human Rights and the Inter-American Court of Human Rights have established well-known precedents for the chilling effect, which occurs when a sanction imposed upon an individual has society-wide implications that curtail freedom of expression. The State must exercise caution when implementing such measures to avoid encroaching on public space, as doing so amounts to a violation of society’s right to free expression.
There is a substantive obligation on duty bearers, including the various multilateral institutions 18 involved in the JETP, such as the ADB, EIB, and IFC, to protect freedom of expression and association in order to facilitate public participation in climate action. 19 Civil society, including environmental defenders, are important actors in a rights-based climate action and sustainable development strategy, such as just transitions. 20 States and multilateral institutions have a duty to ensure that there is no isolation of civil society actors, whether through wrongful incarceration, intimidation or other forms of persecution.
In light of these concerning circumstances, the Vietnam Climate Defenders Coalition requests you:
● Meet with the wrongfully incarcerated defenders during the upcoming country visit to Vietnam.
● Seek the urgent release of Mr. Dang Dinh Bach, Ms. Hoang Thi Minh Hong, Ms. Nhien Ngo, and other unjustly imprisoned civil society leaders in Vietnam.
● Urge all stakeholders, including the UNDP to conduct rigorous due diligence on threats to environmental and human rights defenders and restrictions on environmental activism and civic engagement in Vietnam, in accordance with the environmental and social safeguard standards of various JETP stakeholders, as they relate to the financing and implementation of the JETP. Urge all JETP stakeholders to ensure strict adherence to their own reprisal policies and public participation commitments.
● Urge the Vietnam government and other stakeholders to incorporate explicit protections against retaliation and reprisals for environmental and human rights defenders, together with policy frameworks for free and safe participation of civil society in JETP design, decision-making, monitoring and implementation.
● Call upon the ADB, IFC, UNDP, IPG, Glasgow Financial Alliance for Net Zero, and other stakeholders in the Vietnam JETP to design a human rights regulatory framework for JETP governance in line with the UN Guiding Principles on Business and Human Rights and General Principles of International Law regarding Right to Development, including accountability, transparency and public participation.
● Urge the Vietnam government to promote enabling conditions by taking back unjust laws, including for civil society provided for by international standards and treaties aimed at creating and maintaining, in law and in practice, a safe enabling environment for civil society to freely operate, including reform of laws and policies related to registration, tax requirements for civil society associations as well as criminal law pertaining to appropriation of information, that are overly burdensome and incompatible with fundamental rights, for freedom of assembly, association, and expression.
We hope that you raise these concerns with the representatives of the Vietnam Government Office, including the agencies responsible for leading Vietnam’s energy transition and JETP, including the Ministries of Natural Resources and Environment, Industry and Trade, Public Security, Planning and Investment, Finance, Foreign Affairs, Justice, Transport, Agriculture – Rural Development, Labor – Invalids – Society, Science – Technology.
Further, we urge you to engage with the country missions of other important stakeholders in the Just Energy Transition Partnership (JETP) and other energy transitions processes, including the UNDP, which is providing technical assistance for the Vietnam JETP, and impress upon them the need for a substantive compliance with their own Social and Environment Standards. For your reference, we are also attaching the joint letters submitted by a coalition of civil society organisations to ADB, IFC and the UNDP, bringing their attention to the ongoing concerns regarding public participation, access to information and transparency in the JETP process. 21
Thank you for your consideration and we look forward to your response. Please direct communications to Ms. Guneet Kaur: gkaur@internationalrivers.org and Ms. Maureen Harris: mharris@internationalrivers.org. We would be happy to participate in a meeting to discuss these issues further.
Sincerely,
Guneet Kaur
International Rivers, USA
Main Submitting Organization: Vietnam Climate Defenders Coalition
Contact email: v4climateleaders@gmail.com
Webpage: www.standwithbach.org
The Vietnam Climate Defenders Coalition (VCDC) is a network and collective of several international and regional human rights and environmental organisations that are engaged in documentation and advocacy regarding the wrongful and arbitrary incarceration of environmental defenders and climate activists in Vietnam. The Coalition was established in 2023.
Submitting organizations that contributed to this submission include:
International Rivers Contact person:
Guneet Kaur
Email: guneet@internationalrivers.org
Environmental Law Alliance Worldwide (ELAW)
Contact person: Kate Holcombe
Email: kate@elaw.org
The 88 Project Contact person:
Ben Swanton
Email: ben@the88project.org
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Footnotes:
1 Mandates of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, December 10th, 2021, available at https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26885 (last accessed on October 30th, 2023). groups in the design, implementation and monitoring of development programs, as well as access to mechanisms of accountability.
2 International Rivers, Urgent request for your direct involvement in the issue of unjust arrest of environment defenders in Vietnam, July 18, 2023, to the United Nations Working Group on Business and Human Rights, United Nations Special Rapporteur on the Right to Development,United Nations Special Rapporteur on the promotion and protection of human rights in the context of climate change, ,United Nations Special Rapporteur on human rights and the environment. Attached along with this submission as Annexure I.
3 The Guardian, Vietnam detains energy thinktank chief in latest arrest of environmental expert, October 1st, 2023, https://www.theguardian.com/world/2023/oct/01/vietnam-detains-energy-thinktank-chief-in-latest-arrest-of-environmental-expert
4 Thanh Chung,Trung tướng Tô Ân Xô: Bắt Ngô Thị Tố Nhiên và 2 người vì chiếm đoạt tài liệu mật của EVN, September 30th, 2023, available athttps://tuoitre.vn/trung-tuong-to-an-xo-bat-ngo-thi-to-nhien-va-2-nguoi-vi-chiem-doat-tai-lieu-mat-cua-ev n-20230930172008674.htm?fbclid=IwAR253CK3tvMmcNma65opLEdFUDBRtYOoyyxm6ON7suVn209yI VV7B0IcUjU (last accessed on October 30th, 2023).
5 See, for example: Spokesperson for the UN High Commissioner for Human Rights: Jeremy Laurence, Sentencing of environmental human rights defenders in Viet Nam, September 29th, 2023 available at https://www.ohchr.org/en/press-briefing-notes/2023/09/sentencing-environmental-human-rights-defenders -viet-nam (last accessed on October 30th, 2023).
6 Working Group on Arbitrary Detention, Opinions adopted by the Working Group on Arbitrary Detention at its ninety-sixth session, 27 March–5 April, 2023, May 26th, 2023, available at: https://www.ohchr.org/sites/default/files/documents/issues/detention-wg/opinions/session96/A-HRC-WGA D-2023-22-VietNam-Advance-Edited-Version.pdf (last accessed on October 30th, 2023).
7 Press Statement from US Department of State, On the Conviction and Sentencing of Vietnamese NGO Leader Hoang Thi Minh Hong, September 28th, 2023, available at https://www.state.gov/on-the-conviction-and-sentencing-of-vietnamese-ngo-leader-hoang-thi-minh-hong/ (last accessed on October 30th, 2023).
8 Foreign, Commonwealth and Development Office, Sentencing of Vietnamese climate advocate: FCDO statement, October 2nd, 2023, available at: https://www.gov.uk/government/news/sentencing-of-vietnamese-climate-advocate-fcdo-statement (last accessed on October 30th, 2023).
9 European Union External Action Press Team, Vietnam: Statement by the Spokesperson on the conviction of environmental activist Hoang Thi Minh Hong, available at https://www.eeas.europa.eu/eeas/vietnam-statement-spokesperson-conviction-environmental-activist-hoa ng-thi-minh-hong_en#:~:text=The%20EU%20is%20deeply%20concerned,for%20all%20persons%20in%2 0Vietnam (last accessed on October 30th, 2023).
10 See for example, Swanton, B., Project 88, Weaponising the Law to Prosecute the Vietnam Four, April 2023. Available at https://the88project.org/wp-content/uploads/2023/04/Weaponizing-the-law-report-Project-88-ENG.pdf (last accessed on October 26,, 2023). Statements and Opinions from different UN human rights experts collated at https://static1.squarespace.com/static/63a1054de4b8030902eec458/t/6531c2b305d9dd4da44ca786/1697 759923335/UN+Statements-Ops+About+Vietnam+5_10.23.pdf (last accessed on October 26th, 2023).
11 Swanton, Id
12 Preamble, Draft international covenant on the right to development, A/HRC/54/50.
13 Article 3, Draft international covenant on the right to development, A/HRC/54/50.
14 International Rivers, Submission to the Working Group on Business and Human Rights: Extractive sector, just transition and human rights, May 29th, 2923, paras 3-5, 10-15, available at https://www.ohchr.org/sites/default/files/documents/issues/business/workinggroupbusiness/wg-business-c fis/2023/extractive-sector/subm-extractive-sector-csos-international-rivers-11.pdf (last accessed on October 30th, 2023).
15 See for example, responses from ADB and IFC to civil society letter on JETP concerns attached in Annexure II.
16 The Guardian, Vietnam detains energy thinktank chief in latest arrest of environmental expert, October 1st, 2023, https://www.theguardian.com/world/2023/oct/01/vietnam-detains-energy-thinktank-chief-in-latest-arrest-ofenvironmental-expert (last accessed on October 30th, 2023).
17 Article 8(4), Draft international covenant on the right to development, A/HRC/54/50.
18 Guiding Principles on Business and Human Rights : Implementing the United Nations “Protect, Respect and Remedy” Framework (2011), A/HRC/17/31, March 2011, para. 10.
19 John H. Knox, Human Rights and Safeguards in the New Climate Mechanism established in Article 6, paragraph 4 of the Paris Agreement, May 3, 2016, p. 3. Available at https://www.ohchr.org/sites/default/files/Documents/Issues/Environment/Letter_to_SBSTA_UNFCCC_Ma y2016.pdf (last accessed October 26, 2023).
20 UN Office of the High Commissioner for Human Rights, Discussion Paper: Taking Action on Human Rights and Climate Change, p. 5, September 30, 2016. Available at https://www.ohchr.org/sites/default/files/Documents/Issues/ClimateChange/EM2016/TakingAction.pdf (last accessed October 26, 2023). (Hereinafter, OHCHR Discussion Paper)
21 Attached along with this submission as Annexure II.
