The constitutionality of compulsory land acquisition in Vietnam: the situation and recommendations

Through the analysis of Vietnamese law and the suggestive experiences of the above-mentioned countries, the author recommends that in the coming time, when conditions for amending and [r]

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THE CONSTITUTIONALITY OF COMPULSORY LAND ACQUISITION IN VIETNAM: THE SITUATION AND RECOMMENDATIONS

Associate Professor Phan Trung Hien

Vice Dean, Faculty of Law, Can Tho University, Can Tho, Vietnam

Abstract

This paper identifies the theoretical, constitutional and practical basis for land acquisition in Vietnam from a comparative perspective Both the ideology based on private ownership and the ideology based on public interests are reviewed in order to explain the grounds to request compulsory acquisition By studying the constitutional provisions relating to compulsory land acquisition in some relevant countries, and exploring the provisions on land acquisition determined in Vietnamese Constitution in the case of national defense, security and socio-economic development, this article analyzes some key themes of purposes, procedure and compensation On that basis, comments on legal improvement are suggested to complete Vietnam Land Law in the future

Keywords: Land acquisition, Compulsory purchase, Constitutionality, Land users 1 Introduction

In the process of building a socialist-oriented market economy, an area of land in Vietnam has been acquired (recovered) by the State to meet the requirements of industrialization and modernization as well as to encourage investment Clause 3, Article 54 of the Vietnamese Constitution in 2013 states: “The State shall recover land used by organizations and individuals in imperative cases provided by the law for the purposes of national defence, national security, and socio-economic developments for national and public interests The recovery of land must be public and transparent, and compensations must be provided in concordance to the law.” So, what are the differences between land acquisition in advanced countries and land recovery in Vietnam? Why other countries use the terminologies of “land acquisition”, “expropriation” or “compulsory purchase” (the UK), “eminent domain” (the US) and why does Vietnam use the terminology of “land recovery”? In order to understand the differences, one should start from the ideologies of properties in very diverse aspects

2 Justification to request compulsory acquisition of land

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131 THE CONSTITUTIONALITY OF COMPULSORY LAND ACQUISITION IN VIETNAM:

owners have existed in an obvious way in parallel with the development of the society Nowadays, private ownerships have been partly or wholly recognised in most countries all over the world Back to the world history, in the seventeenth century, as part of the powerful enlightenment theory, there were three different ideologies about the ownership, which will be explained in this section as background to analysis

2.1 Ideology based on private ownership

This ideology recognises that private ownership is a natural and absolute right, which is well known in Western countries First, because it is a natural right, it is inviolable Secondly, because it is an absolute right, the private owner has the whole right to use his or her property in accordance with personal purposes without any limitations Law therefore was created in order to protect the private property, to set up a certain position of private ownership.1 The protection of private property was recognised relatively early in history John Locke, one of the most important thinkers of the seventeenth century dedicated his thought to individual liberty, individual property against governments that endanger the right of citizens Collabourating with Robert Boyle2, he formulated the “natural philosophy” called “Natural Law” in which every individual can enjoy their natural rights of land and other properties “But since the Government has a direct jurisdiction only over the land and reaches the possessor of it, only as he dwells upon and enjoys that etc.”3 He claimed that “The great and chief end, therefore, of men uniting into Commonwealths, and putting themselves under government, is the preservation of their property, to which in the state of Nature there are many things wanting”4 Of course, recognising private property right and establishing it in law is the success of human beings throughout a long history However, if property right is seen as natural and absolute, it can present problems Emphasizing too much on private ownership might cause some difficulties for society in economic, social and political terms In particular, should the development be needed in the public interest, the government would face difficulties in persuading the owners to make use of their private property, even with fair compensation

2.2 Ideology based on public (or collective) interests

This ideology brings out the dictate to exterminate private ownership Karl Marx is a good example In Marx’s idea, there is “harmfulness of private property”5 Marx “discovered that further development of productive forces would lead to the disappearance of private capitalist ownership and the appearance of collective socialist ownership…”6 Marx also declared that all of people’s sufferings originate from the establishment of private ownership and “landed property, the root of private property, should be drawn completely into the movement of private property and become a commodity”7 Besides, a contemporary of Marx, also well-known in supporting the public interest in the early nineteenth century is Jeremy Bentham (1748-1832) He objected the Locker ideology of 1 Phan Trung Hien, The Law of compulsory acquisition of land – Striking a balance between public and private interests

in the United Kingdom and Vietnam (PhD thesis, VDM Verlag Dr.Muller publisher 2009) page 14.

2 John Locke, The Second Treatise on Government (Prometheus books 1986) Introduction Part. 3 John Locke, The Second Treatise on Government (Prometheus books 1986) page 68.

4 John Locke, The Second Treatise on Government (Prometheus books 1986) page 70, page 124.

5 Karl Marx (edited b David Mc Lellan), Selected Writings (Oxford University Press, First published 1977) page 87 6 Milovan Djilas, The Upper fact Society- Beyond the New Class (Methuen & Co Ltd, Great Britain 1969).

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ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS 132

“natural right to property” because according to him, property rights cannot exist in a state of nature They can only exist under a government He proclaimed that “the interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder the meaning of it is often lost The community is a fictitious body, composed of the individuals who are considered as constituting as it were its members Then what is the interest of the community? - The sum of the interests of the several members who compose it”1.

Even though Marx and Betham discussed the subject of “property” from very different perspectives, one can see their similar viewpoint about public and private interests According to Marx, public interest in the main need of a socialist regime, so everything needs to start from this point and satisfies it; to Betham, the greatest happiness of the greatest number is a similar driving force behind the imperative of subsuming individual interests to the wider whole Of course, there are a few ways to understand and implement the point of view of Marx and Betham In some socialist countries, it was first understood that all main properties, which are productive materials, must belong to the State

Certainly, besides its advantages, the domination of ‘public property’ may contain disadvantages as well One situation would be as follow “Imagine a country where nobody can identify who owns what, addresses cannot be easily verified, people cannot be made to pay their debts, resources cannot be conveniently turned into money, ownership cannot be divided into shares, descriptions of assets are not standardised and vary from neighbourhood to neighbourhood or even from street to street”2 In critical perspective to Socialist system, Hernando De Soto showed the situation above with many weaknesses He commented that “This picture of undercapitalised sector is strikingly different from conventional wisdom of developing world[…]It is a world where ownership of assets is difficult to trace and validate and governed by no legally recognisable set of rules, and the assets’ potentially useful economic attributes have not been described or organised; where they cannot be used to obtain surplus value.”3

It would be a long story to clarify the comment above However, it cannot be denied that there was a problem happening in some socialist countries Because of no private ownership, no one cares about the property The motivation for working therefore disappears As a result, the productivity increasingly decreases, causing unfairness between people and civil servants

2.3 Ideology of keeping a balance between private ownership and public interests

This ideology on the one hand still respects private ownership, seeing it as one of the fundamental rights in order to improve the freedom and human dignity However, on the other hand, public rights or interests also need to be respected and trying to keep a right balance between them is essential In 1765, Sir William Blackstone not only emphasized private ownership in a certain space, he also tried to harmonize public interests and private property on a consensual basis “If a road, for instance, were to be made through the grounds of an individual’s private property, it might perhaps be extensively beneficial to the public; but the law permits no man, or group of men, to this without the consent

1 Jeremy Bentham, An Introduction to the Principle of Morals and Legislation (New York 1948) page 3. 2 Hernando De Soto, The Mystery of Capital (Basic Books 2000) page 15.

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of the owner of the land”1 Besides, Thomas Paine, in the Rights of Man, also stressed that property right is a man’s natural right with an exception The French Revolutionary Declaration 1789 states “The right to property being inviolable and scared, no one ought to be deprived of it, except in cases of evident public necessity, legally ascertained, and on condition of a previous just indemnity”2 In other authors’ point of view, there should be “no expropriation without full compensation” even it is due to the public interests (or in the name of Public Good) Britain’s Baron Bramwell advocated such an approach in 1862 “That law to my mind is a bad one which, for the public benefit, inflicts loss on an individual without compensation.[…] I deny that it is for the public benefit that he should what he has done; if it is, he ought to be compensated”3.

This principle may be originally from Magna Carta, the Great Charter of Liberties, signed in 1215 that forbade the King’s agents to take a man’s timber and horses without his agreement, and provided compensation in the event of expropriation.4 In the same vein, in “Property rights in the defence of nature”, Elizabeth Brubaker claimed that “Expropriations are fair only if, through compensation, they leave all affected parties as well off as they were before Just compensation could, for example, enable people to purchase properties and rights similar to those which have been taken…”5 By showing the conflicts between property rights and the public demands (in those cases, for the environment protection), he came to the conclusion that even for the common environment or public need “full compensation must be paid”

In those passages above, private property is seen as defence between the state and the individual Equally, one can see that there must be some overlaps between public and private interests, and that the need to balance the two is one of the greatest challenges facing a society

3 Key themes in the analysis of land acquisition law in Vietnam

In most countries around the world, the state acquires land from land owners to the public for the purpose of public use, for social development have been practiced in hundreds years ago6 In capitalist countries, property rights are a natural right of man and an inviolable right The problem of compulsory land acquisition in these countries is approached from the perspective of only being forced to “infringe upon property rights” for the common good Therefore, land acquisition is still carried out but with very strict conditions The French Revolutionary Declaration 1789 stated “The right to property being inviolable and scared, no one ought to be deprived of it, except in cases of evident public necessity, legally ascertained, and on condition of a previous just indemnity”7

1 Sir William Blackstone, Commentaries on the Laws of England, the Rights of Persons (First Published 1765, Oxford, reprinted 1966) page 135

2 Thomas Paine, The Right of Man (first included in Everyman’s Library 1915, London 1969) page 97 3 Elizabeth Brubaker, Property rights in the defence of nature (London 1995) page 188

4 Elizabeth Brubaker, Property rights in the defence of nature (London 1995) page 188. Elizabeth Brubaker, “Property rights in the defence of nature”, London, 1995, page 188

6 In 1539, Parliament enacted an Act, which gave the Corporation of Exeter powers to acquire land and build a canal from the River Exe to the City Quay (quoted from Peter Henry Clarke: The Law of Compensation under the Lands

Clause Acts for Land Taken Compulsory Purchase 1845-1919 (Unpublished MPhil thesis, University of London,

1999) page 16)

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Meanwhile, paragraph 3, Article 23, Korean Constitution declared: “Expropriation, use or restriction of private property from public necessity and compensation therefore shall be governed by law However, in such a case, just compensation shall be paid”1 Although land is privately owned in Korea, the State still has the authority to acquire land in the case of using land for security and national defense purposes, or for national or public interests In parallel, in France, the state exercises its perpetual right (the right to purchase) to serve national defense - security, national interests and public interests However, the value of damaged land and assets is still based on the principles of negotiation and agreement Compulsory purchase or compensation for owners when the agreement fails or the landowners not want to sell2.

In Vietnam, land is “public properties, coming under the ownership of the entire people represented and uniformly managed by the State” (Article 53 Vietnam Constitution) Therefore, in order to be a lawful land user, the one who is/has been using land must be allocated land use rights by the state authority (Article 17, Vietnam Land Law 2013) On that basis, when the State needs land for reasonable needs, the State, through the authorities, recovers the land (Article 16, Vietnam Land Law 2013) In sum, the ideology and philosophy of recognition of land ownership, and land acquisition among Vietnam and other developed countries are quite different Because of their potential, and significance, some ideas from the work of Hernando De Soto3 could be studied and applied to Vietnam What has been discovered and learnt is recognition of the important role of property rights especially in a developing country such as Vietnam where many people are still living in poor conditions Based on the ideologies, constitutional grounds of land recovery in Vietnam in comparative perspectives, these elements would be seen as key themes to explore: (i) To limit the purposes of compulsory land acquisition; (ii) To identify clearly the procedures for compulsory land acquisition; (iii) To guarantee fair compensation for land holders

3.1 To limit the purposes of compulsory land acquisition

Paragraph 3, Article 54 of Vietnam Constitution stated that the State shall recover land for socio-economic development as follows: The State shall recover land used by organizations and individuals in imperative cases provided by the law for the purposes of national defense, national security and socio-economic development in the national and public interests” On that basis, Article 61 and 62 of the Land Law 2013 listed all the cases of acquiring land compulsorily However, despite the National Assembly’s expectation, the arguments on “acquiring land compulsorily for economic development” have still happened In fact, more than 70% of complaints and lawsuits yearly in Vietnam are related to land law, especially land acquisition, compensation, support and resettlement4 Besides, Vietnam law still uses the terminology of “recovery of land”5 rather than “land acquisition” and has no specific Vietnam National Assembly’s Office: Research topic ‘Land acquisition experiences of some countries’ (Unpublished

documents providing information for National Assembly deputies), Hanoi, October 2012, page

2 Vietnam National Assembly’s Office: Research topic ‘Land acquisition experiences of some countries’ (Unpublished documents providing information for National Assembly deputies), Hanoi, October 2012, page

3 See generally, Hernando De Soto, The Mystery of Capital (Basic Books 2000)

4 Mai Hoa, Ai Nhan, ‘More than 70% of complaints and denunciations are related to land acquisition’, <https://tuoitre. vn/hon-70-khieu-nai-to-cao-dong-nguoi-lien-quan-thu-hoi-dat-1334199.htm> accessed 6th Oct 2019

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guidance “for socio-economic development” As a result, under the name of calling investment, some provincial governments have acquired land not for public purposes but for commercial benefits.1

Meanwhile, the law in South Korea determines the purpose of land acquisition when fulfilling the following key requirements: (i) to acquire for the construction of public facilities, contribution to promoting the growth and development of the country; (ii) to protect the legitimate rights and interests of the private owner of land; (iii) to minimize the discretion of public authorities in depriving (with compensation) of land ownership of the people.2 The Land Acquisition Act of Singapore requires that land acquisition be based on a master plan approved by a competent state agency Compulsory land acquisition is done in the case of land acquisition for public use such as: (i) Infrastructure development; (ii) Building social welfare works; (iii) Urban embellishment Land acquisition in Singapore must adhere to the following principles: (a) Restrictions on private land acquisition, therefore, only in cases of absolute necessity will land be recovered (b) The land acquisition must be agreed upon by the Government and cabinet members after discussions and public consultation3.

Taiwanese law also allows the State to require land for public benefits, which are detailed in the Law such as defense, security, social welfare, etc However, in all cases serving private projects, the investors have to negotiate with the people and the state does not interfere with the process of transferring this natural land4 In the US, land acquisition for public use is rooted in the Fifth Amendment to the US Constitution, which states: “nor shall private property be taken for public use, without just compensation.” In particular, the United States still strikes a balance between public and private interests in dealing with compulsory acquisition of land For instance, there is a big discussion from academic and practical aspects about the Kelo v New London (2005), where there is a mix of economic development and company benefits

In short, compulsory land acquisition in advanced countries is mainly for the sake of national security and public interests provided for in the law; other countries extend to national interests However, the common point is that in addition to these cases, even when state agencies need land, they must search to buy land in the market This suggests to Vietnam that the purpose of land acquisition, especially the concept of land acquisition for “social- economic development in accordance with national and public interests”, must be determined by clear and specific cases in the relevant laws Besides, there is a need for explaining and issuing guiding documents for multi-phrase phrases i.e, new urban areas, urban embellishment, embellishment of rural population areas (Paragraph 3, Article 62 of Land Law 2013)

3.2 To clearly identify the procedures for land compulsory acquisition

Clause 3, Article 54 of the Vietnamese Constitution in 2013 states: “The land acquisition must be public, transparent and compensated in accordance with law.” Besides, Clause 2, Article 28 of the 1 Tien Long, ‘Current land acquisition regime is ‘blameless’,

<https://tuoitre.vn/che-do-thu-hoi-dat-hien-nay-dang-vo-toi-va-1374133.htm> accessed 5th Oct 2019.

2 Vietnam National Assembly’s Office: Research topic ‘Land acquisition experiences of some countries’ (Unpublished documents providing information for National Assembly deputies), Hanoi, October 2012, page

3 Vietnam National Assembly’s Office, Research topic Land acquisition experiences of some countries (Unpublished documents, Hanoi October 2012) page

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2013 Constitution defines: “The State creates conditions for citizens to participate in state and social management; ensures publicity and transparency in receiving and responding to citizens’ opinions and proposals” Therefore, state management activities in Vietnam must be associated with the factor of “publicity and transparency” Publicity means that it is not confidential, so that everyone can know; transparency is clarity When referring to publicity and transparency, researchers often refer to the issue of opportunity, equality in access to information, reliability, consistency of information, predictability and openness of the information provision agency

In the process of land acquisition, “publicity and transparency” are considered a key principle to implement the order and procedures, ensuring the participation of people Indeed, Articles 199 and 200 of Vietnam Land Law states: Citizens have the right to themselves or through representative organizations to exercise the right to supervise and report violations of land management and use”, including supervising activities such as land recovery, compensation, assistance and resettlement

However, in reality the law does not specify the publicity and transparency, for example the procedures for determining compensation prices and the like In fact, the determination of the land prices is completely without the participation of people For instance, the land price evaluation council, the compensation calculation comprises only leaders of state administrative agencies and consultancy organizations on land price determination In addition, due to the lack of a monitoring mechanism for the people, land valuation organizations, under the pressure of local authorities as customers, cannot have a neutral voice, reflecting the above land prices market Because land prices are often not close to market prices, disagreements and complaints increase Although Vietnamese law currently gives land users the right to choose between complaints or lawsuits, these rights have certain limitations:1

(i) For the right to complain, the complainant must go through the first complaint process which is usually resolved by the district People’s Committee and if the complainant does not agree with the result, he can send his second complaint to the provincial People’s Committee The second time, which is usually handled by the provincial People’s Committee, is also the end of the complaint process Moreover, all the contents of the project implementation decision, and land price are decided by the provincial People’s Committee and the district People’s Committee and affiliated state administrative agencies Therefore, the problem of prejudice in resolving complaints in Vietnam is unavoidable

(ii) In the case of a lawsuit, the people’s right to sue in relation to compensation prices is not accepted by courts in Vietnam, although the legal documents not restrict this right According to the guidance of the Chief Justice of the Supreme People’s Court, when resolving a case of compulsory land acquisition, the evaluation of the land use right shall not be conducted

Meanwhile, in Korea, the process of compulsory land acquisition is called the “consultation and enforcement” process Consultation are conducted through public authorities negotiating with affected people Specifically, in the six steps of the compulsory land acquisition, the last two steps are “consultation with the people on the compensation plan” and “completing the compensation contract” Coercive measures are applied only in isolated cases where consensus cannot be achieved According to the statistics of the Korea Land Policy Department, in Korea, 85% of all cases of land Phan Trung Hien, ‘A legal mechanism to ensure enforcement complaints and administrative complaints in Vietnam’

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acquisition by the State follow the consultation process; only 15% of cases of land acquisition have to use coercive methods1.

In Australia, the Federal Land Seizure Act 1997 specifically stipulates which cases of public land use are subject to compulsory land acquisition Specifically, (i) The Minister is responsible for sending an official letter inviting land users to discuss with the Minister the sale of land to the State; (ii) when the discussion fails, the compulsory land-holding regime begins to be operated by an official announcement of the State that it will use the land for public use in the State Government Gazette From this point on, that land belongs to the agency competent to occupy the land (iii) The former landowner has begun to carry out the procedures for claiming compensation for land; (iv) Procedures for pricing land at market prices and calculating other losses to former landowners are carried out; (v) The former landowner may be referred to an Arbitration organization or a Court in case of disagreement with the compensation As such, Australia’s compulsory land acquisition process consists of two elements: “administrative” and “court”, in which the court serves as an independent third party2.

The experience of other countries shows that it is necessary to conduct surveys before land acquisition to serve as a basis for the construction of resettlement areas in terms of the number of people displaced, their lifestyles and cultures However, the most important principle of compulsory land acquisition for the purposes of national security and public interest is based on the principle of mobilizing the people and reaching a consensus among the majority (at least 70-80%) of the people who are using the land3 In addition, to ensure transparency and openness in compulsory land acquisition in Vietnam, land acquisition law has to be more specific and guarantees the people’s participation In particular, the publicity, transparency and accountability for determining compensation prices and determining land prices must be ensured when receiving resettlement ground At the same time, it is necessary to ensure the principles of fairness, democracy and objectivity in the process of acquiring land and settling complaints

The procedure to acquire land for public purposes has been found in law and in its implementation It is essential to study each stage in the procedure and the procedure as a whole Generally speaking, the procedure has been seen as a sound method to protect human rights and to create the possibilities for residents to present their objections Although closely related to the issues of objections and compensation, the inquiry procedure in the UK contains many potential subjects in procedural sense which would be useful if introduced into Vietnam

First of all, it shows the balance between public power and private safeguards The public authorities have ample opportunities to present to the residents why they have chosen a particular proposal to deal with compulsory acquisition The individuals are given every chance to express their views about the proposal and to state why they are not satisfied with it The challenging issues Kim Jaejeong- Director of Korea Land Policy Department, “Workshop on “Experience on Korean land management”, (the General Department of Land Administration (Ministry of Natural Resources and Environment) in Hanoi, December 2011)

2 Vietnam National Assembly’s Office, Research topic Land acquisition experiences of some countries (Unpublished documents, Hanoi October 2012) pages 19, 20

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are usually concerned with whether the new proposal would bring better living standards, a better environment, better community security, and better economic and social well-being

Secondly, in addition to the law of the compulsory acquisition, the Vietnamese system needs to establish a strict procedure for the implementation of compulsory acquisition in which an inquiry procedure must be set up This could bring a number of major benefits including:

- A consolidated procedure could bring consistency to the system in dealing with compulsory acquisition of land

- A consolidated procedure could bring fairness to every province and every project because the law is consolidated within a harmonizing procedure

- When the procedure is clear and harmonized residents can participate in State governance more easily and effectively and this is closely linked with the principle of administrative law as defined by the Vietnam Constitution (Article 54, the 2013 Constitution)

- A consolidated procedure could create the common grounds which provide justification for the residents to voice their objections

As a result, while the timing, the manner of the procedural function, and the inquiry in Vietnam may differ from those in other developed countries, the nature and the main function should remain that same i.e., to provide the vital condition for challenges, the expressing of residents’ views and the transparency of the administrative system

3.3 To guarantee fair compensation for land holders

Clause 3, Article 54 of the Vietnamese Constitution in 2013 states “The land acquisition must be public, transparent and compensated according to the provisions of law.” The principle, though ensuring the “legal” factor, i.e., all compensation when the State recovers land must have a legal basis, brings certain difficulties as follows

Firstly, in the event that due to an objective or subjective factor, the law does not recognize that the property is compensated, then even if there is damage to the land user, the stated property is still not indemnified For example, Article 90 of the Land Law stipulates compensation for livestock, but in fact the content of this regulation only specifies the case for compensation for aquatic animals From that, it is deduced that all livestock on land, in the ground and the land area on the water surface is not subject to compensation, affecting the equality in compensation for livestock

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are administrative decisions and administrative acts of competent agencies and individuals1

Meanwhile, Article 21 the Polish Constitution states that “The Republic of Poland shall protect ownership and the right of succession Expropriation may be allowed solely for public purposes and for just compensation.”2 Besides, the German Constitution guarantees: “Expropriation shall only be permissible for the public good It may only be ordered by or pursuant to a law that determines the nature and extent of compensation Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected In case of dispute concerning the amount of compensation, recourse should be sent to the ordinary courts”3.

In Korea, compensation for landowners is made prior to project implementation Compensation for housing and land damages is paid in cash, land or social housing according to the choices of affected people In case of land acquisition through consultation, the time for determination of compensation price is the time when the parties reach an agreement on a compensation plan In case of land recovery through enforcement, the time for determination of compensation price is the time a competent state agency issues a decision on enforcement In addition to compensation for land and properties attached to land, Korean law also stipulates compensation for income for workers who lose their jobs, compensation for property rights such as mining rights, fishing rights, water use rights and the like4 In Singapore, in addition to compensation for land and property, the state also considers compensation for the following types of damage: public works passing through divided real estate, fragmented soil, noise, smoke, dust5.

In India, meanwhile, the state not only bases on the market value of the land and the damage at the time of the compensation notice, but the court also decides to add 30% of the total value of the assets in case of forced land acquisition6 Similar to India, in Australia, the level of compensation is determined to be higher than the market value, including (i) the market value of the affected benefits, (ii) the special value of land and property of the land owner; (iii) damages due to the divided land plot; (iv) noise damage and other damages The amount of compensation is determined at market prices, or the amount of money that the asset can sell voluntarily, available at a certain time As such, the general and most important principle is to negotiate and agree

1 Phan Trung Hien, ‘Determination of damages and compensation for damages when the State recovers land’ in Phan Trung Hien (eds), Law on land management and use (Publishing House, Can Tho University, first published 2016, reprint 2017)

2 Constitute, ‘The World Constitution to search, work and compare’, (constituteproject.org), <file:///D:/1B.%20 B%C3%A0i%20b%C3%A1o%20khoa%20h%E1%BB%8Dc/Constitutions%20Oct%202019/9%20 Hi%E1%BA%BFn%20ph%C3%A1p%20%C4%90%E1%BB%A9c.pdf > accessed 20th Oct 2019

3 Constitute, ‘The World Constitution to search, work and compare’, (constituteproject.org), <file:///D:/1B.%20 B%C3%A0i%20b%C3%A1o%20khoa%20h%E1%BB%8Dc/Constitutions%20Oct%202019/9%20 Hi%E1%BA%BFn%20ph%C3%A1p%20%C4%90%E1%BB%A9c.pdf > accessed 20th Oct 2019

4 Vietnam National Assembly’s Office, Research topic Land acquisition experiences of some countries (Unpublished documents, Hanoi October 2012) pages 12 13, 19

5 Vietnam National Assembly’s Office, Research topic Land acquisition experiences of some countries (Unpublished documents, Hanoi October 2012) pages 17,18

6 Article 22 Part III of Mandatory Land Transfer Act of India, See Vietnam National Assembly’s Office, Research topic

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The interests which can be acquired are a potential issue These interests are land and other properties which are connected with the land such as dwellings, trees, ponds, fishes, etc While the law in developed countries defines interests as tangible interests or intangible interests1, Vietnamese law only recognizes tangible interests in compulsory acquisition except home loss payment and other losses The other intangible interests which affect people or private properties are not recognized In addition, interests which can be acquired in Vietnam are the right of land use while the interests which can be acquired in developed countries are land ownership Certainly, the way used to define the acquiring interests could affect the policies and the definitions of compensation In order to improve the Vietnamese system, the definitions of interests which can be acquired must be recognized in a broader sense

In fact, use of land rights has its own value The value has been defined in the ‘land use rights market’, which needs to be legalized Defining and legalizing the value of land use rights in law could result in many benefits for a society To start with, it accepts the ‘real market’, which has been running in practice It could also place that market under government control Moreover, the go-between traders, who buy the land use rights from one person in order to sell it to another person to make profits from the differences, can be controlled by law and they are required to pay tax If this can be achieved, it would help to minimize the phenomenon of residents receiving low to compsensation and the State not gaining any benefits due to go-between traders reaping them Thus, compensation has not only been viewed as an economic subject but, more importantly, it is seen as a legal and social subject

First, the kinds of interests which can be acquired affect the concept of compensation In developed countries the interests which can be acquired are not only tangible interests, i.e., land, dwellings, etc but also intangible ones related to individuals, i.e., noise, fumes, vibration, loss of view, disturbance, etc., or related to properties such as severance, material detriment, etc In contrast, apart from the case of electricity wire, intangible interests are not recognized in Vietnam Generally speaking, in Vietnam compensation is only paid when land is taken

All of those practical phenomena show that there is an urgent need to legalize those issues in Vietnamese law It could be combined with the other issues related to compulsory acquisition in one act This is because without legalizing these issues, compensation cannot be fair and the safeguards for private interests, therefore, cannot be guaranteed

Secondly, compensation in Vietnam shows the diversities of types In principle, compensation is supposed to express not only how much money will be paid fairly, but also how to safeguard the residents when they are affected by the compulsory acquisition of land Therefore, compensation is not only the matter of paying fair compensation, but also the question of creating new jobs, giving financial assistance and offering new homes, etc It would help the working-class residents who may not have enough resources to resettle their new lives

4 Conclusion

Comparative analysis is an important key in enhancing understanding and insight By studying theorical backgrounds and the current laws in compulsory acquisition of a few countries comparatively, one can discern probable movements in the future

1 See more Phan Trung Hien, The Law of compulsory acquisition of land – Striking a balance between public and

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First, the property right must be secured, including the protection of land rights;

Secondly, the justification for acquiring land must be clearer Although the land certificate is limited, it cannot be terminated without “a justification”

Thirdly, those rights must be recorded in Constitution of Vietnam as firm principles for the legal system where the already existing property law must be improved

Fourthly, the legal procedure within which the properties rights are embedded must be consistently transparent both before and after the acquisition

Last but not least, fair compensation must be paid for land users before land acquisition and site clearance

These movements are believed to help improve existing systems in Vietnam so that Vietnam, a regime with the State being the only landowner, can still develop fundamental rights for individual land users Other countries can also grow through an appreciation of the experiences and problems in Vietnam

Through the analysis of Vietnamese law and the suggestive experiences of the above-mentioned countries, the author recommends that in the coming time, when conditions for amending and supplementing the 2013 Constitution are available, the issue of land acquisition should be revised as follows: “The State shall acquire land used by organizations and individuals in imperative cases provided by the law for the purposes of national defence, national security, and socio-economic developments for national and public interests The recovery of land must be public and transparent The compensation must be paid for all damages incurred before, during and after the process of compulsory land use right transfer.” This is also a premise to complete the Land Law and could be seen as a constitutional basis for the Bill of Compensation when the State acquires land compulsorily for public purposes and social - economic development in Vietnam Indeed, this greater transparency, which could be learnt from developed systems, would not only benefit vulnerable individuals but more importantly it interactively stimulates the market, trade and investments in the country This recommendation expresses that the “ideology of public interests and private interests” such as the idea of McAulan, needs to be learnt and adapted to the country with its own conditions and situations.1

References

• Books, articles, legal documents:

Barry Cullingworth and Vincent Nadin, Town and Country Planning in the UK (London Routlege

2006)

Elizabeth Brubaker, Property rights in the defence of nature (London 1995) Hernando De Soto, The Mystery of Capital (Basic Books 2000)

Jeremy Bentham, An Introduction to the Principle of Morals and Legislation (New York 1948) John Locke, The Second Treatise on Government (Prometheus books 1986)

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Karl Marx (edited by David Mc Lellan), Selected Writings (Oxford University Press, First published 1977)

Milovan Djilas, The Upper fact Society- Beyond the New Class (Methuen & Co Ltd, Great Britain 1969)

Phan Trung Hien, The Law of compulsory acquisition of land – Striking a balance between public and private interests in the United Kingdom and Vietnam (PhD thesis, VDM Verlag Dr.Muller publisher 2009)

Sir William Blackstone, Commentaries on the Laws of England, the Rights of Persons (First Published 1765, Oxford, reprinted 1966)

Thomas Paine, The Right of Man (first included in Everyman’s Library 1915, London 1969)

Phan Trung Hien, ‘Determination of damages and compensation for damages when the State recovers land’ in Phan Trung Hien (eds), Law on land management and use (Publishing House, Can Tho University, first published 2016, reprint 2017)

Dang Hung Vo: Experience in land acquisition of several countries in the world (Order article of Information Center, Library and Scientific Research, National Assembly Office, Hanoi, October 2012)

Phan Trung Hien, ‘A legal mechanism to ensure enforcement complaints and administrative complaints in Vietnam’ [2018], Journal of Legal Sciences

Vietnam National Assembly’s Office, Research topic Land acquisition experiences of some countries (Unpublished documents, Hanoi October 2012)

Kim Jaejeong- Director of Korea Land Policy Department, “Workshop on “Experience on Korean land management”, (the General Department of Land Administration (Ministry of Natural Resources and Environment) in Hanoi, December 2011)

Peter Henry Clarke: The Law of Compensation under the Lands Clause Acts for Land Taken Compulsory Purchase 1845-1919 (Unpublished MPhil thesis, University of London, 1999)

• Websites:

Constitute, ‘The World Constitution to search, work and compare’, (constituteproject.org), <file:/// D:/1B.%20B%C3%A0i%20b%C3%A1o%20khoa%20h%E1%BB%8Dc/Constitutions%20 Oct%202019/9%20Hi%E1%BA%BFn%20ph%C3%A1p%20%C4%90%E1%BB%A9c.pdf > accessed 20th Oct 2019

Mai Hoa, Ai Nhan, ‘More than 70% of complaints and denunciations are related to land acquisition’, <https://tuoitre.vn/hon-70-khieu-nai-to-cao-dong-nguoi-lien-quan-thu-hoi-dat-1334199.htm> accessed 6th Oct 2019

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