This article explores how business activities have impacted on human rights in the energy industry by looking at the implications of the involuntary resettlements in hydro power dam projects in the affected communities in Viet Nam. It argues that despite the government’s consideration of hydropower as a main avenue to meet the need for energy demands with huge potential benefit for the national economy, the development of hydroelectric projects in Viet Nam has had certain human rights concerns. The risk for human rights violation may occur at any stage before, during and after the implementing of dam development projects. However, the most affected group is the displaced people as the result of the involuntary resettlement process. While the government has issued some policies, strategies and programmes to affected communities, these responses, however, were insufficient to adress concerns and lacked a human rights based approach. This article finds that the people and community being displaced due to the construction of the dam have been facing a number of human rights concerns, including the violation of particular rights such as the right to livelihood/food security, right to land, and the right to culture.
* The author holds a Masters degree in Philosophy from The Institute of Philosophy at Vietnamese Academy for Social Science (1998), an LLM in Human Rights Law from the University of Hong Kong (2004) and a PhD in law from the University of Sydney, Australia. Her areas of particular interest include human rights and business, human rights and gender equality including issues on violence against women, human rights hiv/aids, the International Criminal Court and the relationship between human rights and national sovereignty. She is also a trainer/lecturer on human rights in Viet Nam.
Hydro power dams impact on a wide range of human rights. While goverments often believe that the development of hydro power is a key element for economic development, the construction of these dams (particularly in developing countries) has caused violations of human rights of many people. The most significant issues of human rights and hydropower dams are associated with the massive (in)voluntary resetlement process of those directly affected by the construction and flooding of the dam.
This article exposes the human rights impact of involuntary resetlement due to the construction of hydropower dams in Viet Nam. It provides an overview of the connection between human rights and dam construction and identifies the relevant international human rights standards applicable in Viet Nam. This paper illustrates the human rights implications of hydropower dams in Viet Nam by looking at three examples (Hoa Binh, Yali and Son La dams). It concludes that there remain some legal and practical gaps in the implementing of resettlement policy and law in Viet Nam that create barriers to the full realisation of international human rights standards.
Hydropower Dams and Human Rights
Although dam development has been considered an essential contribution to economic growth in many countries, there is controversy and debate surrounding their construction. Supporters for the construction of hydropower dams often claim that dams can provide significant development for the economy. However, opponents argue that hydro power dams, especially the involuntary resettlement process, have strong negative impact on the human rights of the affected people and communities.
Around the world, more than 48,000 large dams have been constructed.1 Most of these dam projects are in developing countries. While hydropower dams generate about 19 per cent of the world’s electricity, they have caused the displacement of an estimated 40 to 80 million people.2 The human rights impact of hydropower dams starts at the very beginning of the construction process when massive numbers of people are displaced. The resettlement processes for the construction of dams should not simply be about moving people to another place; it should be about helping them adapt to a new economic, social and cultural environment. This is the stage at which human rights violations often occur.3 With millions of people having to leave behind their lands, farms, houses and other possessions, they inevitably become more vulnerable. Involuntary resettlement for dam projects may involve the violation of many human rights recognised in human rights treaties. These rights, among others include the rights to property (land rights), the right to an adequate standard of living (including the right to housing and the right to food), the right to cultural identity, the right to the highest attainable standard of health, and the right to education.
More recently, the un Human Rights Council adopted the Guiding Principles on Business and Human Rights to provide a framework for both states and corporations to respect and protect human rights as well as provide remedies for their violations, regardless of the business’s size, sector, location, ownership and structure.6
Some institutions, such as the World Bank and the Organization for Economic Cooperation and Development (oecd) have adopted guidelines on relocation and/or resettlement with a view to limiting the scale of and human suffering associated with forced evictions. Such practices often accompany large-scale development projects, such as dam-building and other major energy projects.5
Most of these international human rights standards are guaranteed in human rights treaties that have been ratified by the government of Viet Nam. To date, Viet Nam is a party to most of the international human rights treaties including two recently ratified conventions: the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and the Convention on the Rights of Person with Disabilities.7 As a state party to international treaties, Viet Nam is under a legal obligation to take all appropriate and reasonable steps to ensure within both public and private spheres the protection of human rights against interference by business enterprises and economic development projects. This obligation will naturally include the construction of hydropower dam projects.
Hydropower Dams and Human Rights in Viet Nam: A Case Study
In Viet Nam, the presence of hydropower dam projects may negatively impact on the enjoyment of human rights of different groups or communities. Although the activities of energy and natural resource corporations can bring economic benefit to the nation as a whole, these activities may create human rights concerns for affected communities. These include infringement of the rights to food and food security, the right to live in a healthy environment, the right to housing and land, and the right to a cultural identity.
To meet the increasing energy demands of a rapidly growing economy, the Government of Viet Nam has prioritised the development of hydropower. Government policy on this industry is reflected in many documents on the development of power. Particularly prominent is the Prime Minister’s Decision No. 176/2004/QDD-TTg of 5 October 2004 setting out a Strategy for Power Development from 2004 to 2010, and Decision No. 1208/QĐ-TTg of 21 July 2011 approving an Energy Master Plan on Power Development for the period 2011 to 2020. This latter Decision set out a strategy until 2020, requiring that hydropower be considered a high priority and constitute a high percentage of the energy sector.8 By 2008, hydropower accounted for 36.86 per cent of Viet Nam’s total energy production, the highest percentage of any single source.9 To ensure that hydropower is the main source of energy for the whole country, the government has encouraged domestic and foreign enterprises to build large, medium and small-scaled hydro plants. According to Nga Dao’s research on dam development in Viet Nam, 500 dams, weirs and sluices were constructed across the country during the period from 1959 to 1999; hundreds of large, medium and small dams for hydropower production and irrigation have been planned and built since 2000, comprising a total of 1,967 reservoirs with water holding capacity above 0.2 mm3 by the year 2009.10 Between 1995 and 2009, 20 large-scale hydropower dams with the capacity of more than 100MW were constructed.11 Within the Highland (Tay Nguyen) area, where most of the population consists of ethnic minorities, there are 80 hydropower investment projects in the Kon Tum province and 64 in Dac Nong.12
While most of the Government’s policy documents on energy development confirm the great potential of hydropower and the need for construction of hydropower dams as an essential source of renewable energy, there are negative human rights implications. Those supporting the development of dams often argue that hydropower dams, particularly large dams, are a key contributing factor to the modernisation, industrialisation and economic growth of the country.13 Moreover, with investment in many hydropower projects, thousands of jobs and business opportunities for domestic and international corporations and contractors have been created.14 In addition, the hydropower dams help to prevent floods, improve irrigation, reduce consumption of other fossil fuels, bring down carbon emissions and often improve water supplies.15
Nevertheless, these dams have also had a number of detrimental environmental and human rights impacts, including damaging forests and river basins, changing river streams and flow speeds, creating sedimentation and erosion, and destroying the diversity of river ecosystems.16 In a report titled ‘Choosing Success: The Lessons of East and Southeast Asia and Viet Nam’s Future’ in 2008, scholars from Harvard University warned that by over-investing in hydroelectricity, Viet Nam is facing the risk of over-reliance on hydropower and shortages of power during the dry season when reservoir levels are low.17 The report also highlights the negative influence of hydropower dams on the livelihood of local communities, which may result in the violation of the fundamental human rights of people living in surrounding areas.18 Construction of these dams can negatively impact the realisation of basic human rights for hundreds of thousands of people, most of whom are ethnic minorities.
Particular damage may be experienced by those forced into involuntary resettlement programs, which displace people from their home communities and livelihoods and destroy large areas of farmland and other agricultural resources.19 More than 210,000 people were displaced before 1990 due to the construction of two hydropower dam projects in Thac Ba and Hoa Binh.20 In the mid-1990s, approximately another 60,000 people were displaced for the Ham Thuan – Da Mi hydropower dam and another 24,000 for the Yali project.21 With the increasing number of hydropower dams built since the late 1990s, it is estimated that a further 400,000 people have been resettled.22 It is often marginalised ethnic minorities who are displaced. Such large projects have resulted in these displaced peoples becoming more vulnerable with respect to the enjoyment of their human rights. The implications are not only felt in Viet Nam, with populations upriver in Laos and Cambodia also being negatively affected due to the environmental impact of dams in these areas.23
The biggest involuntary resettlements have been those associated with the three largest hydropower dam projects in Viet Nam: Hoa Binh, Yali and Son La. These dams typify the implications of economic development and business activities in Viet Nam on the realisation of the human rights of vulnerable groups, particularly ethnic minorities. Despite their contribution to national electricity reserves, the construction and resettlement associated with these projects demonstrate how hydropower projects can disadvantage specific local ethnic minority communities.
Hoa Binh Dam
Hoa Binh dam occupies 200 square kilometres, an area which formerly included houses, crop fields and forests as well as flora and fauna systems, some 20,800 hectares was farmland.24 The dam was constructed between 1979 and 1994, and when completed, was the largest dam in South East Asia. For the Government, construction corporations and the media in particular, the dam was considered a symbol of development and thus of an industrialised and modernised Viet Nam.25 Excitement surrounding the potential economic benefit of the dam largely diverted attention from its negative impact on the livelihood of 58,000 displaced people, 79 per cent of whom belong to ethnic minority groups such as the Muong, Tay, Dao, Thai Trang (White Thai) and Thai Đen (Black Thai). These ethnic minorities typically live in customary groups, use traditional production techniques and have unique cultures.26
A study conducted by Nga Dao in 2011 on the impact of the Hoa Binh Dam resettlement policy suggested serious negative economic and social impacts on the local people.27 The situation has not significantly improved for many of the resettled communities over the past decade.28 Although the majority of the resettled population were farmers, they were not able to retain access to land29 since they were resettled in areas where cultivated land was rare.30 The right to access clean water, education, health care and other services was also limited for the resettled population. The study reported that 34 per cent of people in the three resettlement communities selected for the study did not have access to clean water,31 and 20 per cent did not have access to electricity from the national grid.32 Within the province, the illiteracy rate was approximately 18 to 20 per cent, primarily because children had difficulty accessing education when their families were forced to move to areas more distant from schools. As a result, more than thirty years after the resettlement program commenced, local poverty rates remained at approximately 58 to 60 per cent in 2009, compared to the national poverty rate of 14 per cent in 2008. Furthermore, the primary school completion rate was 88.2 per cent, compared to a national figure of 95.5 per cent.33 54.3 per cent of the children in these communities had no education beyond elementary school, compared to the national figure of 88.2 per cent.34 In brief, resettlement for the Hoa Binh hydropower project merely involved the physical relocation of people from the reservoir area, without support for a sustainable relocation.35 Reasons for such a poor resettlement program include the absence of a comprehensive Environment Impact Assessment (EIA), a poorly developed social resettlement plan, and the lack of a clear resettlement compensation program.36 Furthermore, given that the project followed a ‘top down’ process, affected people found it difficult to access relevant information concerning their rights and interests. More importantly, there was no accountability mechanism for the Hoa Binh resettlement project. Relevant stakeholders, especially corporations that directly participated in implementing the dam project, were not held to account for failure to support the local people.
The Yali Dam project is another example of how the human rights of ethnic minority people have been impacted by the construction of a hydropower dam. The next largest dam after Hoa Binh in Viet Nam’s power master plan, the 770MW Yali Dam, was constructed in the Central Highland between 1993 and 2002.37 The dam has already negatively impacted the Sesan River ecosystem, as well as the human rights of more than 55,000 people living along the River in both Viet Nam and Cambodia.38 In the dam reservoir area, 1,658 households comprising 8,475 people were displaced, of whom 60 to 70 per cent were minority ethnic groups such as Bana, Ro Ngao, and Gia Rai. Many of these people had lived there for many generations.39
Compared to the experience of the Hoa Binh Dam, there were some improvements to human rights outcomes during the resettlement process for the Yali Dam. The adoption of the 1993 Law on Land, the 1993 Law on Environment and the 1998 Decree 22/CP on Resettlement provided specific provisions on issues related to land rights, the responsibility to protect the environment and the rights of involuntary resettlers as a result of development projects. More significantly, through funding from the foreign donor SIDA, an EIA was conducted for the first time.40 As a result, the resettlement process was better organised from the beginning of the project. Nevertheless, Yali Dam still caused a number of problems which seriously affected the livelihoods of local people, including infringing the right to food, the right to health, and the right to live in a healthy environment. These were largely due to the loss of farmland, fishing income, damage to rice reserves, boats and fishing, and a lack of effective compensation in the affected areas in both Viet Nam and Cambodia.41
Son La Dam
Son La dam is the largest dam project in Viet Nam to date, which commenced in 2005 and was completed in 2013. The construction of this dam involved the biggest involuntary resettlement in the modern history of Viet Nam, with approximately 100,000 people or 18,968 households displaced in the three Northern provinces of Son La, Lai Chau and Dien Bien.42 The dam occupies 24,000 hectares of land, of which 8,000 hectares was previously agricultural and 3,000 hectares was forest.43 Similar to many other dam projects in Viet Nam, resettlement for the Son La dam affected mostly people from ethnic minority groups. Of the ten groups affected, 83.1 per cent were Thai ethnic minorities and another 5.9 per cent were La Ha.44
Compared with the earlier projects discussed above, the Government paid more attention to resettlement issues in the case of Son La. The Son La Resettlement Project Management Committee was established to coordinate all resettlement-related activities. Positively, the cost for resettlement and rehabilitation was included in the total project budget, it was estimated at about 29 per cent of the total cost.45 However, the resettlement process, which moved people 50 to 100 kilometres from their previous homes, still raised a number of human rights concerns. Two studies conducted by the Viet Nam Union of Science and Technology Associations (vusta) in 200846 found that further efforts were required to address key issues. The studies highlighted delays in the implementation of resettlement processes as a result of bureaucratic mismanagement; land disputes resulting from the deprivation of agricultural land and access to forested areas for indigenous people; forced changes in farming methods; challenges with cash compensation; disintegration of local communities; poor quality drinking water; serious water shortages during the dry season; and lack of access to healthcare.47 These problems have contributed to the difficulties faced by local inhabitants as a result of the resettlement process.
The above examples demonstrate that although there have been improvements in the level of support provided to forced resettlers as a result of hydropower dam projects in Viet Nam, a number of key issues relating to human rights responsibility remain inadequately addressed. First, while dam construction is often considered to be necessary for energy provision and thus serves economic purposes, all dams are located in upland areas inhabited mostly by ethnic minorities. Those living in dam project areas have experienced additional hardships, beyond the pre-existing socio-economic gaps between them and the majority population,48 as a result of the political, economic, social and environmental impact of displacement. Securing basic human rights for these particular minority groups has, therefore, become much harder than for other groups.
Second, it is important to note that electricity in Viet Nam is a monopoly industry under Government control through the state-owned Electricity Corporation of Viet Nam (evn). The Government has the power to make all decisions regarding the budget, investment and implementation of any dam project, especially those involving large dams. Financial resources for dam projects are allocated from the national budget, and the corporation responsible for implementing and coordinating any given venture is a state-owned company. Large electricity projects like Hoa Binh, Yali and Son La are centrally planned and do not require the approval of the local authorities at the initial stages of the development. There has also been a lack of effective consultation with and participation of the affected communities during the planning of the projects. These features reflect a ‘top down’ decision-making process, in which affected minorities were moved from their homeland without effective consultation.49 The final issue concerns the role of corporations involved in the construction of these dams. The dam projects in Hoa Binh, Yali and Son La demonstrate that despite the clear negative impact of the dam projects on human rights, corporations had minimal responsibility for respecting, protecting and fulfilling the human rights of the affected communities. For the Hoa Binh Dam, the technical requirements for contractors did not include the issue of resettlement. Corporations were therefore not involved in the resettlement process, and the project budget did not provide any financial allocation for resettlement. While there was more awareness about issues of displacement at the time of the construction of the Yali and Son La Dams, such issues were still not considered to be the responsibility of corporations.
In all these projects, evn – the sole provider of electricity in Viet Nam – played the principal role in the entire implementation process. Its primary concern, however, was the construction work rather than the human rights, environmental or wider social impact. A large number of corporations, including both domestic and joint-venture enterprises contracting with evn to implement these projects, also neglected to manage rights and social impact. Accordingly, no particular institution was responsible for addressing the social and human rights demands of adequate resettlement.
Recent policy changes have further distanced corporations and investors from responsibility to the people displaced by dam projects, with the central government assigning responsibility for all issues related to resettlement to provincial governments. In so doing, the Vietnamese government has further limited its ability to ensure that corporations involved in these hydropower projects behave appropriately. For example, the local councils in the Son La, Lai Chau and Dien Bien provinces were exclusively in charge of the resettlement process for the Son La Dam project.50 Investors were only concerned with construction and were not required to take responsibility for resettlement and other impacts on human rights.51 In order to improve the performance of corporations in addressing the social and human rights impact of hydropower dams, it is important that evn and its contractors closely link construction of hydropower projects with accountability for resettlement.52
1 ‘Dam’s Facts and Figures’ (wwf Global, 2015) <http://wwf.panda.org/what_we_do/footprint/water/dams_initiative/> accessed 23 November 2015.
3 Upendra Baxi, ‘What Happens Next is Up to You: Human Rights at Risk in Dams and Development’ (2001) 16 Am U Int’l L Rev 1507.
4 un Committee on Economic, Social and Cultural Rights (cescr), General Comment No. 7: The right to adequate housing (Art.11.1): forced evictions, 20 May 1997, E/1998/22.
6 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, un Doc a/hrc/17/31 (2011).
7 ‘Ratification Status for Viet Nam’ (United Nations Human Rights, 2015), <http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=192&Lang=EN> accessed 23 November 2015.
8 See Prime Minister Decision, Strategy on Power Development from 2004–2010, looking forward to 2020, No. 176/2004/QDD-TTg dated 5/210/2004; Prime Minister Decision, Energy Master Plan on Power Development for the period 2011–2020, taking into account condition up to 2030, No 1208/QĐ-TTg dated 21 July 2001.
9 Institute of Energy – Electric Corporation of Vietnam, ‘Chiến lược phát triển công nghệ điện lực của Tập đoàn điện lực Viêt Nam – đến năm 2015, định hướng 2025 (Strategy for Electric Technology Development for Viet Nam Electric Corporation by 2015 with oriented to 2025)’ (2008).
10 Nga Dao, ‘Dam Development in Vietnam: The Evolution of Dam-Induced Resettlement Policy’ (2010) 3 Water Alternatives 324.
11 Pham Huu Ty, Tran Nam Tu and Guus van Westen, ‘Food security and energy development in Vietnam’ (2011) 59 The Newsletter 24, <http://www.iias.nl/sites/default/files/IIAS_NL58_2425.pdf> accessed on 23 November 2015.
12 Ngoc Lan, ‘Sân gôn, thủy điện và bài toán quy hoạch (Golf Course, Hydro Power and the Question of Planing)’, Thời báo Kinh tế Sài gòn Online (Viet Nam, 22 April 2008) <http://www.thesaigontimes.vn/Home/diendan/sotay/5030/>, accessed on 23 November 2015.
13 Nga Dao (n 10).
14 Viet Nam Union of Science and Technology Associations, ‘Assessment of Vietnam Power Development Plan’ (2007) <http://www.internationalrivers.org/files/attached-files/altpdpvietnam.pdf>, accessed on 23 November 2015.
17 Harvard Vietnam Program, Choosing Success: The Lessons of East and Southeast Asia and Vietnam’s Future (2008).
19 Nga Dao (n 10).
20 Pham Huu Ty, Tran Nam Tu and Guus van Westen (n 11).
23 Nguyen Vo Dan Sinh, The Political Economy of Hydropower Dam Construction in Vietnam (Stimson 2008).
24 Cao Thi Thu Yen, Towards Sustainability of Vietnam’s Large Dams Resettlement in Hydropower Projects (Master of Science Thesis Thesis, Sweden Environmental Engineering & Sustainable Infrastructure Programme Built Environment Analysis, Division of Urban Studies 2003).
26 Nga Dao (n 10); Cao Thi Thu Yen (n 24).
27 Nga Dao (n 10).
30 Ibid and Cao Thi Thu Yen (n 24) 28.
31 Nga Dao (n 10).
33 undp Vietnam, Viet Nam and the mdgs <http://www.un.org.vn/en/what-we-do-mainmenu-203/mdgs/viet-nam-and-mdgs-mainmenu-49.html>, accessed 23 November 2015.
34 Nga Dao (n 10); Ibid.
35 Cao Thi Thu Yen (n 24) 29.
36 Although construction started in 1979, payment of compensation did not start until 1983 and continued for more than 10 years. See Nga Dao (n 10).
37 Sesan River Protection Community Network Project, ‘Damming the Sesan River: Impacts in Cambodia and Vietnam’ (2002).
38 See Ian Baird et al., A Community-Based Study of the Downstream Impact of the Yali Falls Dam Along the Se San, Sre Pok and Sekong Rivers in Stung Treng Province, Northeast Cambodia (Sesan Protection Network Project 2002); Cao Thi Thu Yen (n 24); Dao Trong Hung, Dao Thi Viet Nga and Tran Chi Trung, Study into Resettlement at the Yali Falls Dam, Kontum Province (Institute of Ecology and Biological Resources and International Rivers Network 2004); Lan Baird, ‘Transboundary Impact Assessment in the Sesan River Basin: The Case of the Yali Falls Dam’ (2007) 3 Int’l J of Water Resources Development; Sesan River Protection Community Network Project (n 37).
39 Dao Trong Hung, Dao Thi Viet Nga and Tran Chi Trung, Study into Resettlement at the Yali Falls Dam, Kontum Province (Institute of Ecology and Biological Resources and International Rivers Network 2002).
40 Sesan River Protection Community Network Project (n 37).
42 Nguyen Manh Cuong et al., A Work in Progress: Study on the Impacts of Vietnam’s Son La Hydropower Project (Vietnam Union of Science and Technology Associations, 2006).
44 Nga Dao (n 10).
46 See Nguyen Manh Cuong et al. (n 42); Tran Van Ha, Follow up Study on Impacts of Resetlement of Son la Hydro Power Plan (Center for Water Resources Conservation and Development (warecod) 2008).
47 Tran Van Ha, Ibid.
48 undp Vietnam (n 33).
49 Nga Dao (n 10).
50 See Prime Minister Decision, Approval of investement on Son La Hydro Power Project, No. 92/QĐ-TTg dated 15 January 2004; Prime Minister Decision, Statute of operation of the State Directing Committee on Son La Hydro Power Project, No. 677/QĐ-TTg dated 18 June 2004; Prime Minister Decision, Reguations on Compensation, Support and Resettlment of Son La Hydro Power Project, No. 02/2007/QĐ-TTg dated 9 January 2007; Nga Dao, ‘Damming Rivers in Vietnam: A Lesson Learned in the Tây Bắc Region’ (2011) 6 Journal of Vietnamese Studies 53, 59.
51 Bui Quang Binh et al., Extractive Industries Transparency Initiative and the Implementation Perspective of Vietnam (Vietnam Chamber of Commerce 2011).
52 Tran Van Ha (n 46).
Although construction started in 1979, payment of compensation did not start until 1983 and continued for more than 10 years. See Nga Dao (n 10).