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ANALYSIS OF ADVANCES IN VIETNAM'S LAND LAW: AN INSIGHT INTO THE 2013 LAND LAW AND ITS IMPLEMENTATION
PHAN MINH GIOI1*
Tra Vinh University, Vietnam1 * Email: [email protected]
Abstract - The Land Law is one of the most concerned laws in Vietnam. Although the 2013 Land Law - the current Land Law has achieved many positive advances, some of its contents have not kept up with the rapid development in the economy and society of Vietnam today. This study examines the advances made in Vietnam's land law, with a focus on the 2013 Land Law and its implementation. In this study, we analyze the legal framework for land use in Vietnam, including the historical context of land reform and the development of the current land law. We also review the implementation of the 2013 Land Law, including its impact on land ownership, land use rights, and land management practices. Lastly, we provide a detailed analysis of the advances made in the 2013 Vietnam's land law, as well as the challenges and opportunities for further progress in land governance in Vietnam.
Keywords:Land use, land governance, land reform, implementation of law, Vietnam.
INTRODUCTION
Background and context of Vietnam's land law
Land has played a critical role in the history and development of Vietnam. The country's land resources have been shaped by a complex mix of physical, cultural, and political factors, including its diverse topography, agricultural traditions, and periods of colonization, war, and economic transformation.
The issue of land ownership and use has been a source of conflict and controversy in Vietnam for many years. During the colonial period, land was largely controlled by foreign powers, and ownership was concentrated in the hands of a small elite. Following independence in 1945, the government launched a series of land reforms aimed at redistributing land to small farmers and peasants. These reforms were often accompanied by violence and upheaval, and were subject to various political and economic pressures.
In the post-1986 period, Vietnam has undergone significant economic and social changes, including a shift toward a market-oriented economy and the adoption of new policies and laws related to land ownership, use, and management. The current legal framework for land in Vietnam is based on the Land Law of 2013, which recognizes the rights of individuals and organizations to own, use, and transfer land, and establishes a legal framework for land market development and management.
Despite these reforms, land-related conflicts and disputes continue to be a major source of social unrest and political tension in Vietnam. The issue of land grabs and forced evictions, in particular, has been a subject of intense criticism from civil society groups and international organizations.
Overall, Vietnam's land law reflects the complex history and ongoing challenges of land governance in the country. The legal framework continues to evolve in response to changing economic, social, and political conditions, and efforts to address the persistent challenges of land ownership, use, and management remain an important priority for policymakers and stakeholders.
This article provides a detailed analysis of the advances made in Vietnam's land law, as well as the challenges and opportunities for further progress in land governance in the country.
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2. HISTORICAL CONTEXT OF LAND REFORM IN VIETNAM
2.1. Overview of land reform policies in Vietnam
Land Reform in the 1950s: After gaining independence from France in 1954, Vietnam began to implement land reform policies aimed at redistributing land from wealthy landlords to poor peasants. This policy was known as "land to the tiller," and it led to the formation of collective farms and a significant increase in agricultural production.
Land Reform in the 1980s: In the 1980s, Vietnam implemented a series of land reforms aimed at decentralizing land management and promoting private ownership of land. The government granted long-term land use rights to farmers and established a system of land market transactions [1].
Land Law of 1993: The Land Law of 1993 established a legal framework for land management, use, and transfer. It recognized the right to private ownership of land and established a system of land registration and valuation [2].
Land Law of 2003: The Land Law of 2003 further clarified the legal framework for land ownership and use. It recognized the right to inherit land, established a system of land compensation for expropriation, and established a mechanism for resolving land-related disputes [3]
Land Law of 2013: The Land Law of 2013 further expanded the legal framework for land ownership, use, and management. It recognized the rights of individuals and organizations to own, use, and transfer land, established a legal framework for land market development, and established new regulations for the management of agricultural land and urban land [4].
2.2. Land law development and evolution in Vietnam
Pre-1975: Prior to the reunification of North and South Vietnam in 1975, land ownership was largely based on traditional customary practices. The government controlled large tracts of land, and individuals and communities held customary rights to use land.
1975-1986: After the reunification of North and South Vietnam in 1975, the government began to implement socialist land policies aimed at collectivizing land ownership and management. This policy led to a decline in agricultural production and an increase in social unrest.
1986-Present: In 1986, Vietnam launched a series of economic reforms known as Doi Moi, which included significant changes to land policies. The government began to decentralize land management and promote private ownership of land, leading to increased agricultural production and economic growth. The legal framework for land ownership and use has continued to evolve since then, with the Land Law of 2013 representing the most recent significant development in this area.
To sum up, land reform policies and the evolution of land law in Vietnam reflect the country's complex history and ongoing economic and social changes. The government has implemented a range of policies and legal frameworks aimed at addressing the persistent challenges of land ownership, use, and management, but issues related to land rights and disputes remain a major source of tension and conflict in Vietnamese society.
3. THE 2013 LAND LAW
3.1. Overview of the 2013 Land Law and its key provisions
The 2013 Land Law is the latest and most comprehensive land law in Vietnam, which was enacted to replace the 2003 Land Law. Its main goal is to create a legal framework for land management, use, and transfer that is consistent with Vietnam's socio-economic development objectives. The law applies to all land in Vietnam, including agricultural land, forest land, residential land, and industrial land.
Key provisions of the 2013 Land Law include:
Land ownership and use rights: The law recognizes the right of individuals and organizations to own, use, and transfer land. It establishes a legal framework for land registration, including the registration of land use rights and land use plans. It also establishes the conditions and procedures for granting land use rights, including the allocation, lease, and transfer of land use rights.
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Land compensation and resettlement: The law provides for land compensation and resettlement when land is expropriated for public purposes or national defense. It establishes the principles and methods for determining compensation and resettlement allowances, as well as the rights and obligations of the parties involved.
Land taxation: The law establishes a system of land taxation, including land use fees, land value taxes, and land rent. The tax rates are based on the land use purpose, location, and value, and are subject to periodic review and adjustment.
Land planning and management: The law establishes a framework for land planning and management, including the development of land use plans, the establishment of land use zones, and the monitoring and supervision of land use activities. It also establishes the conditions and procedures for land use change, land consolidation, and land subdivision.
Environmental protection and land use: The law emphasizes the importance of environmental protection in land use activities, and requires that environmental impact assessments be conducted for major land use projects. It also establishes penalties for violations of environmental regulations related to land use activities.
Land dispute resolution: The law provides for the resolution of land-related disputes through negotiation, mediation, and arbitration. It also establishes a legal framework for handling land disputes through administrative and judicial procedures.
3.2. Analysis of the main changes and advances in the 2013 Land Law
The 2013 Land Law represents a significant improvement over the previous land laws in Vietnam. Its provisions are aimed at promoting sustainable land use practices, protecting the rights of landowners and users, and ensuring the equitable distribution of land resources [4]. However, challenges remain in the implementation and enforcement of the law, particularly in the areas of land use planning, compensation and resettlement, and environmental protection.
Strengthening of land use rights: The 2013 Land Law emphasizes the recognition and protection of land use rights, particularly for farmers and ethnic minorities. It clarifies the procedures and conditions for the allocation, transfer, and lease of land use rights, and establishes the right to mortgage land use rights as collateral for loans.
Enhancement of land management: The law introduces a more comprehensive and integrated framework for land management, including the establishment of a national land information system and the promotion of participatory land use planning. It also strengthens the role of local authorities in land management, particularly in the areas of land use planning and monitoring.
Improvement of land compensation and resettlement: The law introduces new provisions aimed at improving the compensation and resettlement process for those affected by land acquisition. It establishes a more transparent and participatory process for determining compensation, and provides for additional support measures, such as vocational training and job placement assistance.
Introduction of new land taxes: The law introduces a new land value tax, which is based on the market value of the land. This tax is intended to promote the efficient use of land and discourage land speculation. The law also introduces new provisions for the collection of land rent, which is payable by those using land for commercial or industrial purposes.
Strengthening of environmental protection: The law introduces new provisions aimed at protecting the environment in the context of land use activities. It requires environmental impact assessments for major land use projects and establishes penalties for violations of environmental regulations related to land use activities.
Establishment of new dispute resolution mechanisms: The law establishes new mechanisms for the resolution of land-related disputes, including mediation and arbitration. It also establishes a new Land Dispute Resolution Council, which is responsible for resolving complex and contentious land disputes.
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4. IMPLEMENTATION OF THE 2013 LAND LAW
4.1. Overview of the implementation process
The implementation of the 2013 Land Law has been a complex and challenging process, but significant progress has been made in improving the management and use of land resources in Vietnam [4]. Challenges remain, however, particularly in the areas of land use planning, compensation and resettlement, and environmental protection. Ongoing capacity building, training, and public participation will be critical to ensure the effective implementation of the law in the years to come.
Issuance of implementing decrees: The 2013 Land Law was followed by a series of decrees and circulars issued by the government, which provided more detailed guidelines on the implementation of the law. These decrees covered a wide range of issues, including land use planning, land allocation and lease, compensation and resettlement, land tax and rent, and environmental protection [5].
Capacity building and training: The implementation of the 2013 Land Law required significant capacity building and training for government officials, particularly at the local level [5]. The government launched a range of training programs, workshops, and seminars to improve the understanding and implementation of the law among government officials, land users, and the general public.
Land use planning: The implementation of the 2013 Land Law required the development and implementation of new land use plans at both the national and local levels. This process involved the participation of multiple stakeholders, including government agencies, local communities, and land users [5].
Land allocation and lease: The implementation of the 2013 Land Law required the development of new procedures and criteria for the allocation and lease of land use rights [5]. This process involved the establishment of new land registration systems, the development of new land use contracts, and the issuance of new land use certificates.
Compensation and resettlement: The implementation of the 2013 Land Law required the development of new procedures and guidelines for compensation and resettlement in cases of land acquisition [5]. This process involved the establishment of new compensation frameworks, the development of new resettlement plans, and the provision of support services for affected communities.
Monitoring and enforcement: The implementation of the 2013 Land Law required the development of new monitoring and enforcement mechanisms to ensure compliance with the law. This process involved the establishment of new inspection and enforcement units, the development of new penalties and sanctions for non-compliance, and the promotion of public awareness and participation in the monitoring process.
4.2. Assessment of the impact of the 2013 Land Law on land governance
The 2013 Land Law has had a significant impact on land governance in Vietnam. Here are some of the key impacts:
Strengthening land management and use: The 2013 Land Law has introduced a range of measures to improve the management and use of land resources in Vietnam. These include new procedures for land allocation and lease, clearer guidelines on compensation and resettlement in cases of land acquisition, and stronger environmental protection measures.
Promoting transparency and accountability: The 2013 Land Law has introduced measures to promote greater transparency and accountability in land governance. These include requirements for public disclosure of land use plans, clear criteria for land allocation and lease, and stronger enforcement mechanisms to ensure compliance with the law.
Improving land use planning: The 2013 Land Law has emphasized the importance of land use planning in ensuring sustainable and equitable use of land resources [6]. The law requires the development of new land use plans at both the national and local levels, with greater participation from communities and stakeholders in the planning process.
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Enhancing the rights of land users: The 2013 Land Law has strengthened the rights of land users, particularly small-scale farmers and ethnic minorities. The law provides clearer guidelines on land use rights and tenure, and requires the government to provide support services for affected communities in cases of land acquisition.
Addressing land-related conflicts: The 2013 Land Law has introduced measures to address land-related conflicts and disputes. These include new procedures for resolving disputes through mediation and arbitration, and stronger enforcement mechanisms to deter land-related violations and illegal activities.
In short conclude, the 2013 Land Law has contributed to improving land governance in Vietnam. However, challenges remain, particularly in the areas of implementation, capacity building, and enforcement. Ongoing efforts will be needed to ensure that the law is effectively implemented and enforced, and that land resources are managed and used in a sustainable and equitable manner.
5. CHALLENGES FACING THE IMPLEMENTATION OF THE 2013 LAND LAW
5.1. Limited enforcement capacity
One of the major challenges facing the implementation of the 2013 Land Law in Vietnam is the limited enforcement capacity of government agencies responsible for land governance. While the law includes many provisions aimed at improving transparency, accountability, and efficiency in land management, the capacity of government agencies to implement these provisions effectively is often limited by factors such as inadequate resources, insufficient training and capacity-building, and a lack of coordination among different agencies.
For example, the implementation of land use planning and zoning has been hampered by a lack of trained personnel and technical capacity, as well as by inadequate data and information systems. Similarly, the enforcement of regulations on land use and management has been weakened by a lack of effective monitoring and enforcement mechanisms, as well as by insufficient penalties for non-compliance.
Moreover, there are concerns that some government officials may lack the political will to enforce the law effectively, particularly in cases where powerful interests are involved. This has led to instances of corruption and abuse of power in land governance, and has undermined public trust in the effectiveness and fairness of the legal framework for land management.
To address these challenges, there is a need for greater investment in the capacity-building and training of government officials responsible for land governance, as well as for the development of more effective monitoring and enforcement mechanisms. There is also a need for greater public participation and oversight in land governance processes, to ensure that the interests and rights of all stakeholders are effectively protected.
5.2. Corruption and rent-seeking behavior
Another major challenge facing the implementation of the 2013 Land Law in Vietnam is corruption and rent-seeking behavior. This is particularly evident in cases where land use rights are granted through administrative procedures, which can be subject to manipulation and abuse by officials and other powerful actors [7]. For example, there have been numerous cases where land use rights have been granted to individuals or organizations without due process, or where land has been expropriated for public purposes without adequate compensation. In many cases, these abuses are facilitated by corruption and rent-seeking behavior on the part of government officials and other influential actors, who use their power and influence to secure land use rights for themselves or for their associates [7].
These practices not only undermine the fairness and effectiveness of the legal framework for land governance, but also have negative social and economic impacts. They can lead to land disputes and conflicts, displacement of vulnerable communities, and unequal distribution of benefits from land use.
In this light, to address these challenges, there is a need for greater transparency and accountability in land governance processes, including the establishment of effective grievance mechanisms for resolving disputes and addressing complaints. There is also a need for stronger
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legal and regulatory frameworks to prevent corruption and rent-seeking behavior in land governance, including through measures such as asset declaration requirements for government officials and enhanced penalties for corruption and abuse of power.
5.3. Conflicts over land use and access
Conflicts over land use and access are another significant challenge facing the implementation of the 2013 Land Law in Vietnam. These conflicts can arise from a variety of factors, including overlapping land use rights, inadequate compensation for land expropriation, and insufficient consultation and participation of affected communities in land use planning and decision-making.
In many cases, conflicts over land use and access are compounded by social and economic inequalities, such as unequal distribution of land and other resources, and power imbalances between different stakeholders. This can lead to tension and conflict between different groups, including local communities, government agencies, and private sector actors.
Therefore, to address these challenges, there is a need for greater consultation and participation of affected communities in land use planning and decision-making processes, as well as for the establishment of effective grievance mechanisms for resolving conflicts and addressing complaints. There is also a need for stronger legal and regulatory frameworks to protect the rights of vulnerable groups, such as women, ethnic minorities, and marginalized communities, and to ensure that land use decisions are made in a transparent and equitable manner.
6. PROSPECTS FOR FURTHER ADVANCES IN VIETNAM'S LAND LAW
6.1. Potential for continued legal and policy reforms
Despite the challenges facing the implementation of the 2013 Land Law, there is potential for further advances in land governance in Vietnam through continued legal and policy reforms. In recent years, there have been a number of initiatives aimed at strengthening the legal and institutional frameworks governing land governance in Vietnam, including the development of new laws and regulations, the establishment of new institutions, and the introduction of new policies and programs.
For example, in 2019, the National Assembly of Vietnam passed a new Law on Public Investment, which includes provisions aimed at improving the efficiency and transparency of land use planning and management, and ensuring that land use decisions are made in accordance with the principles of sustainability and social equity. In addition, the government has launched a number of programs aimed at strengthening land governance, including the National Land Information System, which aims to improve the collection, management, and dissemination of land information.
There is also potential for further advances in land governance through the continued engagement and participation of civil society organizations and affected communities in land use planning and decision-making processes. In recent years, there has been a growing recognition of the importance of participatory approaches to land governance, and a number of initiatives have been launched aimed at promoting greater engagement and participation of affected communities in land use planning and decision-making processes.
Overall, there is significant potential for further advances in land governance in Vietnam through continued legal and policy reforms, as well as through greater engagement and participation of affected communities and civil society organizations. However, realizing this potential will require sustained political commitment, as well as effective implementation mechanisms and resources.
6.2. Opportunities for enhanced institutional capacity and public participation
There is potential for further advances in land governance in Vietnam through continued legal and policy reforms. In recent years, there have been a number of initiatives aimed at strengthening the legal and institutional frameworks governing land governance in Vietnam, including the development of new laws and regulations, the establishment of new institutions, and the introduction of new policies and programs. For example, in 2019, the National Assembly of Vietnam passed a new Law on Public Investment, which includes provisions aimed at improving the efficiency and transparency of land use planning and management, and ensuring that land use
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decisions are made in accordance with the principles of sustainability and social equity. In addition, the government has launched a number of programs aimed at strengthening land governance, including the National Land Information System, which aims to improve the collection, management, and dissemination of land information.
There is also potential for further advances in land governance through the continued engagement and participation of civil society organizations and affected communities in land use planning and decision-making processes. In recent years, there has been a growing recognition of the importance of participatory approaches to land governance, and a number of initiatives have been launched aimed at promoting greater engagement and participation of affected communities in land use planning and decision-making processes.
6.3. Potential challenges and limitations
While there are many opportunities for further advances in land governance in Vietnam, there are also a number of potential challenges and limitations that could hinder progress in this area. One of the main challenges is the limited capacity of government institutions responsible for land governance, particularly at the local level. Many local governments lack the resources and technical expertise needed to effectively manage land resources and address land-related conflicts.
Another challenge is the continuing prevalence of corruption and rent-seeking behavior in the land sector. Despite efforts to improve transparency and accountability in land governance, corruption and rent-seeking remain significant challenges, particularly in relation to land allocation and use decisions.
There are also ongoing conflicts over land use and access, particularly in rural areas where competing interests and claims over land are common. These conflicts are often complex and difficult to resolve, and can be exacerbated by factors such as weak land tenure security, inadequate compensation mechanisms, and limited access to legal recourse for affected communities.
Finally, there is a risk that the gains made in land governance over the past decade could be undermined by a lack of political will or the emergence of new challenges and pressures, such as rapid urbanization, climate change, and the increasing demand for land for industrial and infrastructure development.
Overall, while there are many opportunities for further advances in land governance in Vietnam, realizing this potential will require sustained political commitment and the implementation of a range of complementary reforms aimed at addressing the underlying challenges and limitations facing the land sector.
CONCLUSION Summary of key findings
The 2013 Land Law represented a significant milestone in the development of land governance in Vietnam, introducing a range of important changes and advances in the legal framework governing land use and management. These included recognition of land use rights for individuals and organizations, establishment of a legal framework for land market development, incorporation of environmental considerations into land use planning and management, and increased transparency, accountability, and efficiency in land governance.
Despite these advances, however, the implementation of the 2013 Land Law has faced a range of challenges and limitations, including limited enforcement capacity, corruption and rent-seeking behavior, conflicts over land use and access, and potential risks to the gains made in land governance. Addressing these challenges and limitations will require sustained political commitment and the implementation of complementary reforms aimed at strengthening institutional capacity, improving public participation and accountability, and enhancing conflict resolution mechanisms.
Looking ahead, there are many opportunities for further advances in land governance in Vietnam, including continued legal and policy reforms, enhanced institutional capacity and public participation, and expanded efforts to address ongoing challenges and limitations. Realizing this potential will require sustained political commitment and the implementation of a range of
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complementary reforms aimed at addressing the underlying challenges and limitations facing the land sector.
Implications for Vietnam's land governance and policy development
The analysis presented in this article has important implications for Vietnam's ongoing efforts to strengthen land governance and policy development. The findings highlight the need for continued efforts to build institutional capacity, improve public participation and accountability, and address ongoing challenges and limitations facing the land sector. These efforts will require sustained political commitment and the implementation of a range of complementary reforms aimed at strengthening the legal and regulatory framework governing land use and management.
The experience of Vietnam also has broader implications for land governance and policy development in other countries, particularly those in the developing world. The advances made in Vietnam's land governance over the past several decades demonstrate that, with sustained political commitment and the right mix of policy and institutional reforms, it is possible to achieve significant improvements in the management of land resources and the protection of land rights. As such, the Vietnamese experience provides valuable lessons and insights for other countries seeking to improve their own land governance systems.
REFERENCES
[1] Office of Central Party (1988). Resolution 10-NQ/TW by the Party's Politburo on 05/04/1988 on reforming agriculture management (Nghj quyêt 10-NQ/TW ngày 05/04/1988 cua Bô Chính trj ve doi moi quan ly kinh tê nông nghiêp). Ha Noi, Vietnam.
[2] National Assembly (1993). Land law 24-L/CTN by the National Assembly on 14/07/1993 (Luât dat dai 24-L/CTN cua Quoc Hôi ngày 14/07/1993). Ha Noi, Vietnam.
[3] National Assembly (2003). Land law 13/2003/QH11 by the National Assembly on 10/12/2003 (Luât dat dai 2003 cua Quoc Hôi ngày 10/12/2003). Ha Noi, Vietnam.
[4] National Assembly (2013). Land law 45/2013/QH13 by the National Assembly on 29/11/2013 (Luât dat dai 2013 cua Quoc Hôi ngày 29/11 /2013). Ha Noi, Vietnam.
[5] Office of Prime Minister (2014). Decree 43/2014/ND-CP by the Prime Minister on May 15, 2014 on implementing Land law 2013 (Nghj djnh sô' 43/2014/NDCP cua Thu ttfóng Chính phu ngày15/05/2014 ve Quy djnh chi tiêt thi hành môt so dieu cua luât dat dai 2013). Ha Noi, Vietnam.
[6] Office of Prime Minister (2015). Decree 35/2015/ND-CP by the Government on managing, using rice land (replacing Decree 42) (Nghj djnh 35/2015/ND-CP ngày 13/4/2015 cua Chính phu ve quan ly, sfr dung dat trông lúa). Ha Noi, Vietnam.
[7] World Bank (2018). Vietnam: Addressing Corruption Vulnerabilities in the Land Sector. https://www.worldbank.org/en/country/vietnam/publication/vietnam-addressing-corruption-vulnerabilities-in-the-land-sector.
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