dioxin

as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization a[r]

422 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

THE RIGHTS TO SOCIAL ASSISTANCE

FOR VIETNAMESE VICTIMS OF AGENT ORANGE/DIOXIN

Nguyen Ngoc Lan1

PhD Candidate, School of Law, Vietnam National University, Hanoi

1 Rights to social assistance for Vietnamese victims of agent orange/dioxin from the context of international and national laws

Victims of agent orange/dioxin are the people being exposed to agent orange/dioxin used by the U.S military during the Vietnam War This results in working capacity reduction, infertility, birth defects, etc.2 in those victims as well as their descendants Agent orange/dioxin causes the genetic

consequences and in Vietnam, the agent orange/dioxin sequelae have affected the fourth generation According to statistics, currently, in Vietnam, there are 150,000 victims of the second generation; 35,000 victims of the third generation; 2,000 victims of the fourth generation3 The research results in

Vietnam and in the world show that agent orange/dioxin causes diverse and complex damages on the entire human physiological apparatus, complete or partial paralysis The victims might be blind, dumb, deaf, intellectual disability, mentally disordered, cancer, or deformed4 Thus, it is essential to set and

assure the rights to social assistance for these people The right to social assistance is defined in the international, regional and national laws

1.1 From the context of international law

The right to social assistance is the human fundamental right The victims of the agent orange/ dioxin are the members in the society and the special subjects to be supported by the entire society Article 22 of the Universal Declaration of Human Rights in 1948 (UDHR 1948) states that “Everyone,

1 This paper is a part of the doctoral thesis titled LEGISLATION ON SOCIAL ASSISTANCE FOR PEOPLE INFECTED

WITH AGENT ORANGE IN VIETNAM/ PHÁP LUẬT VỀ TRỢ GIÚP XÃ HỘI ĐỐI VỚI NGƯỜI NHIỄM CHẤT ĐỘC DA CAM Ở VIỆT NAM, that PhD Candidate NGUYEN NGOC LAN is working on at the School of Law, Vietnam National University, Hanoi

2 Nguyen The Luc, The implementation of policies for victims of Agent orange/dioxin in Viet Nam-additional obstacles

and recommendations, Conference Proceedings “Some new research results on the consequences of agent orange/ dioxin”, 2014

3 The Vietnam Association of Victims of Agent Orange/ Dioxin (VAVA), Agent Orange disaster in Viet Nam, for internal

only, 2016

4 Ministry of Health, Decision No 09/2008/QD-BYT dated February 20, 2008 issued the list of 17 malformed diseases

423

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” To clarify the right to social assistance, Article 25 of the Declaration emphasizes that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” The International Covenant on Economic, Social and Cultural Rights, Article affirms that “the States Parties to the present Covenant recognize the right of everyone to social security, including social insurance”, meaning that everyone has the right to an adequate living standard for himself and for his family

Besides, assurance of the rights to social assistance for the victims of agent orange/dioxin was persistently affirmed in the United Nations Convention on the Rights of Persons with Disabilities in 2007 As prescribed in Article 28 of the Convention, the victims of agent orange/dioxin have rights to adequate social security Accordingly, they have rights to adequate social living standards, including food, clothing, shelter, rights to living standard improvement, protection against the disability discrimination1.

Recognizing assurance of living standards as an assurance of human rights, the International Labor Organization (ILO) considered social security as a person’s rights to live in peace, have freedom to settle to work for a living, have legal protection, work and leisure, medical care and income protection The victims of agent orange/dioxin, as the human, should also have the rights to social assistance according to the above document

1.2 From the context of national laws in Asian countries

Since almost all countries in the Asian region affected by toxic chemicals, atomic bombs and other chemical toxins, they have already recognised the significance of social assistance Therefore, they have developed and implemented laws on social assistance in accordance with specific economic, political, social conditions and customs

Japan was the first country in Asia to develop a Law on Persons with Disabilities The appearance of Daily Life Security Law in 1946 (amended in 1950) was the affirmation of the rights to social assurance The law prescribes that it is essential to implement policies on public assistance and social services to support the disadvantaged persons, including the persons with disability as they are incapable of dealing with risks in their lives The assistance amount is calculated based on living standards while ensuring legal compliance On the other hand, in 1993, the Government enacted the Disabled Peoples’ Fundamental Law setting out basic principles for supporting people with disabilities and stipulating the responsibility of the State in promoting comprehensively, systematically measures to support the victims affected by agent orange/dioxin The Act on “Creating conditions for the persons with disabilities to live independently” in 2006 was promulgated with the aim of reducing some subsidies and enhancing the ability to live independently for the persons with disabilities, including the victims of agent orange/ dioxin Most of the above laws encourage the socialization of social assistance activities, especially taking care of the victims of agent orange/dioxin

424 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Then, China is the country with the largest population in the world and also has the biggest number of disabled people in the world1 The Constitution of the People’s Republic of China in 1993 recognized:

“Citizens of the People’s Republic of China have the right to material assistance from the state and the society when they are old, ill or disabled The State develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right The State and the society ensure the livelihood of disabled members of the armed forces, provide pensions to the families of martyrs and give preferential treatment to the families of military personnel The State and the society help make arrangements for the work, livelihood and education of the blind, deaf-mute and other handicapped citizens.” The Constitution affirmed that the disabled people have the rights to the State’s social assistance on both physical and mental aspects Furthermore, the Law of the People’s Republic of China on the Protection of Disabled Persons (1990) reaffirmed the responsibility of the State, the people’s governments at all levels and the entire society to respect and ensure the rights of people with disabilities in the society On the other hand, the law also prescribed sanctions where the violators paid a compensation for violating the rights of the persons with disabilities by taking advantage of disability of others to infringe personal rights or other legitimate interests; and be prosecuted to the fullest extent of the law when torturing, and humiliating the persons with disabilities So, it is clear that Chinese Laws respect dignity of the disabled people and enhance their rights to social assistance

Besides, in Australia, almost 20 percent of the population have disabilities, 87 percent of whom are disadvantaged due to limitation in mobility, communication and community integration2 In 1977, the

Government enacted the Standards for walkway design for people with disabilities, including 1/General standards for walkways inside the works (AS 148.1); 2/ Standards for improving and supplementing works and facilities (AS 148.2); 3/Standards for walkway design for adolescents with disabilities (AS 148.3); 4/Orientation plate for people with visual impairments (AS 148.4) 3 Until 1986, the

Government approved the Disability Services Act regulating the federal, states and territories to share the responsibilities in budget for funding budgets for the services for the persons with disabilities4 The

Disability Discrimination Act 1992 was the next Act passed by the Parliament of Australia prohibiting discrimination against people with disabilities, encouraging the community to adopt the principle of ensuring equal rights for people with disabilities as other individuals in the society

Therefore, legislations of Asian countries have covered basic human rights in all civil, political, economic, social and cultural fields The laws of the countries recognize the rights to access to medical and home care services; allowance for people with disabilities; responsibilities of individuals, organizations and families in ensuring the rights to social assistance Especially, the above laws impose sanctions to ensure the rigidity and feasibility of legal documents

2 The right to social assistance for victims of agent orange/dioxin in Vietnamese law

After independence (1945), the rights to social assistance has been asserted in Constitutions of Vietnam Article 14 of the first Constitution in 1946 states: “The State helps the elderly and the disabled

1 Nguyen Thi Bao, Legislation on the rights of persons with disabilities in Vietnam currently, Judicial Publishing House,

Ha Noi, (2011), pp.105

2 JustinHealey (Editor), Disability Rights, The spinney Press, Sudney, Australia, (2005), pp.6.

3 Le Thi Bich Thuan, Solutions on Architectural space fully-equipped for the integration of persons with disabilities,

PhD thesis in Architecture, Hanoi Architectural University, Ha Noi, 2000, pp.17-18

425

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

who are incapable of providing for themselves In the implementation of the Constitution, it attends to the education of children.” This right was persistently affirmed in Article 67 of the Constitution 1992, which states that “Old people, disabled persons and orphans with no family support are entitled to assistance from the State and society.”

Until the Constitution 2013, this right is clearly defined in Article 34, which states that “Citizens have the right to social security” and Article 59, which states that “The State shall create equal opportunities for citizens to enjoy social welfare, develop a system of social security, and provide a policy assisting the elderly, the disabled, the poor and people with other difficult circumstances”

Since Doi moi (1986), a series of documents on regimes and policies for people affected by agent orange/dioxin have been enacted by different state agencies of Vietnam, including Ordinance on Disabled Persons (1998), Decree No 168/2004/ND-CP amending and supplementing a number of articles of the Government’s Decree No 07/2000/ND-CP; Decision No 120/2004/QD-TTg on a number of regimes for war activists and their offspring who suffer from consequences of toxic chemicals used by the U.S during the Vietnam war; Decision No 16/2004/QD-TTg on financial support for households with two or more members who cannot take care of themselves due to consequences of toxic chemicals used by the U.S in Vietnam war; Ordinance No 26/2005/PL-UBTVQH11 on preferential treatment of people with meritorious services to the revolution The legal institutions on assurance of the rights to social assistance have gradually been completed in the Decree No.67/2007/ND-CP on support policies for social protection beneficiaries; Decree No 68/2008/ND-CP on prescribing conditions and procedures for setting up organization, operation and dissolution of social relief establishments; Decree No 35/2010/ND-CP on the main level of subsidies for the war activists suffering from toxic chemicals, etc.,

Especially, the Law on Persons with Disabilities in 2010 persistently affirms the rights of the persons with disabilities to “live independently and integrate into the community” and “be provided with healthcare, functional rehabilitation, education, vocational training, employment, legal assistance, access to public facilities, means of transport, information technology and cultural, sports, tourist and other services suitable to their forms and degrees of disability;” 1 Accordingly, the

rights to health care is stipulated in Chapter III, rights to education (Chapter IV), rights to vocational training, employment (chapter V); rights to cultural, physical training, sports, entertainment and tourist services (chapter VI); right to access apartment buildings and public facilities (chapter VII); rights to social security (chapter VIII) This document shows the concerns of the State of Vietnam in taking care of and protecting the legitimate rights of the persons with disabilities, especially the rights to social assistance More specific documents on this issue comprise Decree No 99/2018/ND-CP on the level of subsidy, preferential allowance for people with meritorious services to the revolution and Decree No 762/2019/VBHN-BLDTBXH defining persons affected by agent orange/dioxin as the subjects to social assistance that need to be granted and have the rights to be granted social assistance in accordance with the regulations of the law

In general, social assistance for the victims of agent orange/dioxin includes the regimes, policies,

solutions of the State and the community to support and protect them through the allowances, subsidies and other support funds to help them settle their lives and integrate into the community.

426 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Unfortunatly,up to now, no specific policies have been issued to help ensure the rights to social assistance for the victims of agent orange/dioxin in Vietnam Currently, the victims of agent orange/ dioxin are entitled to social assistance according to the Law on Social Insurance, Law on Persons with Disabilities1, Law on Social Insurance 2014 (revised in 2018) The determination of subjects

entitled to social assistance is based on different forms and different levels of disabilities 2 The law

ensures the rights to social assistance for the above subjects through regular social assistance regimes; unscheduled social assistance; health care; vocational training, education and employment; access to public facilities However, the implementation of these regulations still remains limited

Regular social assistance

Monthly social allowance for the victims of agent orange/dioxin includes material assistance and other living condition assistance from the society when meeting the conditions specified in Clause 6, Article of the Decree No 136/2013/ND-CP are met Accordingly, victims of Agent Orange/ Dioxin are disabled people and entitled to the social allowance according to the Law on Persons with Disabilities The victims of Agent Orange/Dioxin are entitled to preferential treatment as people with meritorious services to the revolution and have rights to get regular social assistance and monthly social allowance The standard allowance rate as being specified in Clause 1, Article of the Decree No 99/2018/ND-CP is 1,515,000 VND/month/person The monthly social allowance amount is calculated by the allowance level multiplied by the defined coefficient3 Accordingly, the war activists

affected by toxic chemicals are entitled to the monthly allowance by levels in accordance with the decline rate of physical working capacity4 In addition, the offspring of the war activists affected by

the toxic chemicals are entitled to the monthly allowance by levels, including the decline rate of physical working capacity of 61%-80% and of 81% and above One insufficient point exists where the offspring of the war activists with the decline rate of physical working capacity of less than 61% and without the ability to self-serve are not entitled to the preferential allowance This insufficiency causes concerns among the beneficiaries and leads to a general imbalance among them Somehow, this Decree does not ensure the rights to social assistance as some subjects are not entitled to the allowance despite meeting the conditions Up to now, the Government has not issued any documents stipulating and guiding dossiers for social assistance which take the case where the offspring of the war activists are deformed or disabled into consideration Besides, there have not been any standard regulations on forms and content of the medical summary for the offspring of the victims of toxic chemicals so that they can enjoy the allowance Thus, it is important for the Government to issue a document prescribing subjects who are offspring of the victims of agent orange/dioxin to enjoy the social assistance as well as the instruction on making dossiers for above subjects

Unscheduled social assistance

Unscheduled social assistance is a one-time, temporary and flexible assistance arising in specific situations and demands5 In fact, one person can receive both regular social assistance and unscheduled

1 See Article Law on Person with Disabilities 2010. 2 See Article Law on Person with Disabilities 2010.

3 See Article Decree No.136/2013/ND-CP dated October 21st 2013. 4 See Appendix 1, Decree No.99/2018/ND-CP dated July 12nd 2018.

5 Le Thi Hoai Thu (Chief author), Textbook on Social Security Law, Ha Noi National University Publishing House, Ha

427

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

social assistance in specific situations where that person can meet the defined requirements The subjects to one-time social assistance are the victims of agent orange/dioxin whose lives are threatened in terms of food, accommodation, medical care, etc due to objective and forced causes and are in need of urgent assistance According to Clauses and 2, Article 12 of the Decree No.136/2013/ND-CP, the above subjects are entitled to a one-time social assistance with 13kgs of rice per person within a duration of no more than months Those who are seriously injured by natural disasters, fires or other causes shall be considered to an assistance amount of 10 times as much as the standard level of the social assistance prescribed in Article 1, Decree No 99/2018/ND-CP The right to social assistance in funeral cases is also regulated, in which the dead persons’ households shall receive the assistance amount of 20 times as much as the standard level of the social assistance In addition, the victims and their families shall receive social assistance to build, repair the houses with the assistance amount of no more than 20,000,000 VND/household in case their houses are collapsed, drifted or completely burned due to natural disaster; no more than 15,000,000 VND/household in case their houses are severely damaged Besides, the above persons are given one-time assistance in the anniversaries and holidays commemorating the activities and tasks that they were involved in1

However, the current implementation of social allowance of rice encounters difficulties in transportation and preservation A common cash amount equivalent to the price of the purchased rice should be applied instead On the other hand, the above prescribed allowance amount for house building and repairing is rather low in the current market economy when the material price is quite expensive, and the labour cost is also relatively high It is recommended to set up common regulations on social assistance and allocate the level of assistance for each person according to the actual disability rate to ensure the balanced rights and interests for disabled persons

Health care for victims of agent orange/dioxin

In Vietnam, the right to health care services is always emphasized on, and is constantly improved, especially the right for victims of agent orange/dioxin

- Initial medical examination and treatment at establishments

Article 21 of the Law on Persons with Disabilities in 2010 states: “Health stations/centres at commune level shall bear responsibility as follows: implementing the communication, education and information dissemination programs on health care, disability prevention and mitigation; providing guidance to persons with disabilities in the matters of health care, diseases prevention and functional rehabilitation; developing case management system for persons with disabilities; providing health check-up and treatment within their areas of expertise to persons with disabilities” The aims of health care are to reduce medical expenses and incidence of serious diseases, ensure equity in health care and poverty reduction; solve overcrowding at city’s hospitals; reform the health care system and create physical and mental ease Currently, people not really trust the medical examination and treatment at the health stations at the commune level There are many people coming to the health establishments when their diseases are in serious conditions so the referral situation or the situation where patients bypass their primary facilities without a referral letter still occurs regularly2 The

1 See Clauses and Article 14 Decree 136/2013/ND-CP dated October 21st, 2013.

2 Duc Tran, Priority for Initial Health Care, 2019,

428 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS job assignment and decentralization at the commune health stations are not yet clear and effective, causing overcrowding situation In addition, the facilities of these stations are still poor and the staffs are not qualified enough to meet the requirements on health examination and treatment There are up to 30% of the families with disabled children who not visit the commune health stations for health care services When taking their children to the commune health stations for health examination and treatment, the parents sometimes even get the answers from the staff that they are helpless due to such a low level of facilities1 It is necessary to set up an effective system of transition care so that

families of victims of agent orange/dioxin can be referred to higher levels, ensuring the rights to social assistance for the disabled persons in the society

- Orthopedic and rehabilitation establishment

For effective implementation of this issue, the Ministry of Health issued Decision No.370/2002/ QD-BYT on promulgating national standards for commune health stations; Decision No 5305/QD-BYT; Decision No 4762/QD-BYT on approval of health care and rehabilitation projects for the victims of agent orange, in which the number of persons with disabilities being instructed with community-based rehabilitation reaches 15% and higher for the mountainous areas, 20% and higher for the midland and plain regions2 The project is implemented in 11 provinces, including Lao Cai, Thai Nguyen, Quang

Ninh, Hai Phong, Thanh Hoa, Nghe An, Quang Nam, Binh Dinh, Dong Thap, Ben Tre, and Ha Tinh with the implementation cost of 76,160,000,000 VND3 Currently, there are 70% - 80% of the mild cases

being recovered and integrated into the society, 10-25% of the cases being referred to the provincial and central hospitals nationwide4 In fact, there are many forms of recovery that not demonstrate a

common model and there are no nationally scaled systems comprehensively and effectively monitoring, supervising, and evaluating the implementation process Although attention has been paid to the rehabilitation, there are no specific documents regulating the establishment, development of the lecturers of rehabilitation and the staff development programs are not extensive enough to reach the national level

Education, training and employment

The proper implementation of mechanisms and policies on education, training and employment contributes to the assurance of the rights to education and employment for people affected by agent orange/dioxin Assurance of the rights to education for this subject is legalized in Decree No 31/2013/ ND-CP, in which people affected by agent orange/dioxin are entitled to education at the institutions of the national education system and the State will set a priority for them during the enrolment5 In fact,

people affected by toxic chemicals are deformed and are unlikely to have access to education6 The

1 The Declaration and Action Plan, The U.S.-Vietnam Dialogue Group on Agent Orange and Dioxin 2010-2019, Second

Year Report 2012, Aspen Institute, https://assets.aspeninstitute.org/content/uploads/2016/06/2012-5-30DialogueGrou p2ndYearReportwithFocusonUSAIDComprehensivePlan-VN.pdf, accessed Sep 4th, 2019

2 Decision No.370/2002/QD-BYT on National Standard for Communal Health.

3 Thai Yen, Health Care for victims of Agent Orange/Dioxin in the period 2018-2021, 2018, <http://www.daibieunhandan.

vn/default.aspx?tabid=74&NewsId=410091>, accessed August 29th, 2018

4 Communist Party of Vietnam Online Newspaper, Community-based rehabilitation for victims of Agent Orange/

Dioxin, 2012, http://dangcongsan.vn/xa-hoi/phuc-hoi-chuc-nang-dua-vao-cong-dong-cho-nan-nhan-chat-doc-da-cam-dioxin-160842.html

5 See Article 77 Decree No.31/2013/ND-CP dated April 9th, 2013.

6 Tran Thi Phuong Anh, Legislation on Social Protection for Victims with Agent Orange/Dioxin, MA Thesis in Law,

429

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

promulgation of this regulation is not feasible and practical On the other hand, the right to a guaranteed minimum income is the basic right, which determines the living condition for the disabled and their families so that they can lead a stable life and integrate into the community In fact, the labours need to be professional and qualified to meet job requirements This actual requirement causes difficulties for the disabled persons to seek for suitable jobs Thus, it is important to have more practical regulations on education, training, employment support for the victims of agent orange/dioxin, ensuring that they are ensured of the human rights in general and the rights to education, training, employment in particular

Access to public transport

To ensure safe and convenient access to public transport, the State has issued a series of amendments such as the Ordinance on Disabled Persons (1998), Law on Persons with Disabilities (2010) Until 2014, Vietnam officially got engaged in the ratification of the Convention on the Rights of Persons with Disabilities and a number of related documents such as 2008 Law on Traffic Road, 2005 Railway Law, the Law on Civil Aviation of Vietnam 2006 and a number of National Standards and Technical Regulations such as Vietnam Construction Standard TCXDVN No 265:2002 “Route and sidewalk – Basic rules of accessible design and construction for people with disabilities” and National Technical Regulation No 10:2014/BXD Access to transport has made remarkable progress with quite specific and adequate regulations on every means and types of vehicles In particular, the right to transport access for the persons with disabilities is expressed through institutions on walking, using personal vehicles and public transport The regulation stipulates that there must be at least one entrance for people with disabilities and one main entrance to campuses and buildings Besides, the entrance to buildings must not be equipped with door sills but with signs showing directions to elevators At the intersection between the walkway and the road for vehicles, the crosswalk for pedestrians or at the entrance to a building, if there is a height difference of more than 150 mm, a ramp and intersection warning signs must be arranged The gradient must not be more than 1/121 Facilities

such as bus stops, public chairs, electric poles, street lights, traffic cones, signs, public telephone booths, public mailboxes, automated teller machines, flower planters, greenery, public waste bins, etc should not interfere with the persons with disabilities and be alerted with tactile paving or marked with contrasting colours which are easily identified

Assurance of the rights to traffic participation is specified in the regulations on the use of vehicles Accordingly, personal vehicles must ensure national technical standards and be proportionate to the health conditions of the users For different types of public vehicles, there are proportionate national technical regulations on oncoming traffic For railway vehicles, Clause 1, Article 21 of the Railway Law 2005 stipulates: “A passenger station must have works and equipment to provide accessibility equipment for the disabled persons”; Clause 2, Article 97 states: “Railway enterprises are responsible for serving the passengers in a civilized and polite manner and organizing services for the passengers” On the other hand, the disabled are given priority to buy tickets and are entitled to priority seats, free bus ticket and services; a reduction of at least 15% for airplane ticket and at least 25% for railway, train, fixed-route passenger vehicle tickets2 Currently, Hanoi Transport Corporation has implemented a bus

1 Bui Thi Hoang Lan, ‘Ensuring the fairness for persons with disabilities in using rail transport in Vietnam’, Sociology

Journal, No 01/2012, pp 95-102

2 Nguyen Hien Phuong, ‘Legislation on traffic participation to Persons with Disabilities – From regulation to practice’,

430 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS for people with disabilities at route of 34 Gia Lam - My Dinh with a LED bus electronic message board showing a variety of information (route number, route name, detailed direction, reinforcement routes, quick bus routes, hotline numbers)1.

3 Measures assure the rights to social assistance for victims of agent orange/dioxin in Vietnam Assurance of the rights to social assistance for victims of agent orange/dioxin means that it is paid attention to by all levels, sectors and the whole society According to the Part 2, Article of International Covenant on Economic, Social and Cultural Rights in 1966, “Each State Party to the present Covenant takes steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant” The

given measures are considered the best ways undertaken by the Government and community to ensure rights to social assistance that are fully implemented in reality These measures are divided into

many categories based on various criteria Accordingly, the Government is the holder and can use all necessary measures to fully implement rights to social assistance for victims of agent orange/dioxin It is also undeniable that the Government has full rights and capacity to impose necessary sanctions on whoever violate the rights to social assistance

To assure the rights to social assistance, we should carry out social, economic and legal measures2.

3.1 Social measures

The measure is developed and implemented based on the principle of ensuring human rights and social security rights that need to be considered and mentioned firstly including rights to social assistance The aim of this measure is:

Raising people’s awareness on social assistance and the rights to social assistance

To this, the Government should carry out propaganda activities, training programs which help people well-understand rights to social assistance to encourage them to respect human rights, including social assistance rights This is one of the important measures that enable people to properly understand social issues and social objects who need the patronage of the community Ensuring rights to social assistance means the Government must guarantee protection to everyone including an appropriate life, health care, education, training, employment and public constructions

Clarifying responsibility for the stakeholders and encouraging the participation of the community to social assistance activities

The responsibility is institutionalized in the Constitution, the Labor Code, the Law on Social Insurance, the Law on Health Insurance, the Law on Persons with Disabilities and other legal documents These documents include many provisions defining the responsibilities of families, organizations and individuals in the work of social assistance and assuring rights to social assistance

1 Nguyen Hien Phuong, ‘Leg’slation on traffic participation to Persons with Disabilities – From regulation to practice’,

Journal of School of Law, Ha Noi National University, Vol.3, No.1, 2016, pp.50-59

2 Le Thị Hoai Thu, Rights on Social Security and assurance of implementation of Vietnamese Legislation, HaNoi

431

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

Socializing social assistance activities

Currently, agent orange/dioxin impacts the second, third and fourth generations These affected generations need both human and financial resources to ensure their minimal life while the Government’s budget is limited Therefore, socializing social assistance activities for victims of agent orange/dioxin is one of best and effective ways to assure their rights In legal documents such as Decree No.67/2007/ND-CP; Decree No.13/2010/ND-No.67/2007/ND-CP; Decree No 136/2013/ND-No.67/2007/ND-CP; Decree No.31/2013/ND-No.67/2007/ND-CP; Decree No.99/2018/ND-CP, the Government has issued many regimes to promote and encourage as well as has implemented social policies for individuals who are victims of agent orange/dioxin and families who adopt them On the other hand, the Government also encouraged organizations to join hands to help those people improve and ensure their daily living

Expanding community-based social assistance networks

Victims of agent orange/dioxin need to be helped by the whole society Therefore, public facilities should be developed, expanded, and improved to help them recover their health and have a stable life Accordingly, the human rights and rights to social assistance right will be assured

3.2 Economic measures

This is an initial and fundamental types of measures in the development of social policies such as financial investment, vocational training support, job creation, education; and implementation of social assistance to beneficiaries

Financial investment

This shows the Government’s, organizations’ and individuals’ responsibility to victims of agent orange/dioxin and communities Financial investment is based on voluntary contribution, humanitarian donation, support and aid from the Government, international organizations, economic organizations, in home and oversea collectives and individuals This financial source is allocated for i/ Medical examination and treatment, orthopedic surgery, rehabilitation, vocational training; job creation, and essential facilities to disadvantaged victims This expenditure accounts for 90% of the financial source; ii/ Administrative expenses and fund management based on the current norm and standard set by the Government This accounts for 8.5% of financial source each year iii/ Spending on commendation, reward and unexpected hardship allowances for Fund’s officials and employees according to the Government’s regime This accounts for 1.5% financial source each year1.

Vocational training support, job creation, education and training policies

According to the Ordinance on Preferential Treatment of People with Meritorious Service to the Revolution in 2005 (revised in 2007), Law on Persons with Disabilities and other legal documents on social assistance, the Government stipulates and ensures preferential regimes on vocational training and other free training activities for persons with disabilities Accordingly, the vocational facilities must be fully-equipped to meet the demand of learners as well as to ensure the quality living for staffs based on the law2 On the other hand, the Law also stipulated that organizations and individuals must

arrange appropriate jobs and create favorable working environment to support persons with disabilities

432 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Companies and organizations are responsible for counseling and introducing jobs to persons with disabilities1; ensuring right to schools and vocational facilities at the Government’s social assistance

establishments The production and business establishments where about 30% or more of the employees are persons with disabilities will: i/ be supported to improve working conditions and environments; ii/ be exempted income tax; iii/ be given priority to lease land, water surface, etc according to the labor rate, the degree of disability and the size of the enterprise; iv/ have tax reductions2 This again

confirms the importance of the rights to social assistance and it should be expanded

Implementing support regimes aims to assure victims of agent orange/dioxin that they can spend on their appropriate and minimal living3

Their health care benefits are applied in accordance with the Law on Health Insurance; their allowances and subsidies are based on the provisions of the Ordinance on Preferential Treatment of People with Meritorious Service; persons with disabilities are in accordance with the provisions of Law on Person with Disabilities, Decree 67/2007/ND-CP, Decree 13/2010/ND-CP, Decree 136/2013/ND-CP, Decree 31/2013/ND-136/2013/ND-CP, Decree 99/2018/ND-CP and other legal documents Accordingly, victims of agent orange/dioxin are always difficult persons who need to be supported with material, medical care, transportation priority, and accessible public service Therefore, support regimes should be well-implemented to ensure the human right, the right to social assistance and the right to a minimal living 3.3 Legal measures

The measure is considered a legal foundation for social and economic activities as well as a Government’s management method through social assistance activities under law It is conducted by legislation enaction; social assistance; applying responsibilities to create legal corridor synchronously contributing to assure rights to social assistance for persons with disabilities Specific measures are as below:

Promulgating laws on social assistance and rights to social assistance

It is a legal foundation to establish rights to social assistance as well as to carry out support for victims of agent orange/dioxin Along with the development of the country, many documents on social assistance were promulgated to create a reliable legal corridor contributing to ensure rights to social assistance Especially, rights to social security (including social assistance) have become constitutional rights which are regulated under constitutional documents through historical periods Many groups of social security rights are codified and regulated in legal documents such as: Rights to Legal Income Protection (Labor Code); Right to Health, Honor, and Dignity Protection, Human Right for Persons with Disabilities (Civil Code, Law on Persons with Disabilities, Law on Road Traffic, Law on Medical Examination and Treatment, etc.); Rights to Health Care (Law on Health Care, Law on Health Insurance); Rights to Social Security (the Ordinance on Preferential Treatment of People with Meritorious Service to the Revolution and many other Decrees)

1 See Article 32, Law on Persons with Disabilities 2010. 2 See Articles 34, 35 Law on Persons with Disabilities 2010.

3 Le Thi Hoai Thu (Chief author), Rights on Social Security and assurance of implementation of Vietnamese Legislation,

433

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

Applying liability for the violations of rights to social assistance

There are many reasons causing the violation of rights to social assistance It depends on each

specific case that the Government will apply liability appropriately such as criminal, administrative, civil, and disciplinary liability Once the Government’s officials and staffs did not perform rightly, the application of liability for the violations of right to social assistance must be carried out through the following forms of discipline: Reprimand; Warning; Wage reduction; and Demotion1 In the case where

the contract employees at production and business establishments violate rights to social assistance, a form of discipline on violating labor order may be applied2 In the case where employers at production

and business establishments violate rights to social assistance, forms of discipline on criminal (if possible) or administrative penalties may be applied In the case where the violation of the provisions of the Criminal Code 2015 (revised in 2017) on infringing upon human life, health, and honor (Articles 123-156), positions and powers (Articles 352-366), economic management order (Articles 188 - 234), and rights to social assistance, etc constitutes a crime, criminal prosecution may be applied On the other hand, violators are liable to pay compensation (civil liability) if they cause mental damages to victims These are applied in accordance with the Civil Code, the Civil Procedure Code and the Law on Civil Judgment Enforcement

Suing in the National and International Court of Justice

It helps victims of agent orange/dioxin ensure their human rights, relative rights minimally,

iimportantly and completely This is an important and necessary action that requires all levels, sectors, and organizations to join hands and share in both material and spiritual life, build a long-term comprehensive and right strategy creating a good effect to ensure human rights, citizens’ rights including rights to social assistance

4 Solutions to assure the rights to social assistance for victims of agent orange/dioxin in Vietnam 4.1 Solutions for improvement of legal regulations

First of all, the regulations in terms of determining war activists and their biological children’s contamination with Agent Orange/dioxin need to be improved

The determination of people having diseases, deformities, and associated with toxic chemicals and exposure to toxic chemicals is implemented by health facilities, including profile preparation and confirmation as per the Ordinance on Preferential Treatment of People with Meritorious Services to the Revolution and Decree No 31/2013/ND-CP Accordingly, the Director of the Provincial or Municipal Departments of Health shall grant the certificate of having diseases or defects to those who are contaminated In addition, the issuance of decision on preferential regime entitlement is under the authority of the Director of Department of Labor, Invalids and Social Affairs It can be seen that the basis to determine eligible receivers is based on different documents These documents need to be unified, revised and improved as per the general policy of the government to ensure that people who are

1 See Articles 8, 9, 10, 11, 12, 13 and 14, Decree No 34/2011/NĐ-CP dated May 17th, 2011 on disciplining of

Government’s officials and employees

2 See Decree No.95/203/ND-CP dated August 22nd, 2013 issued Provisions on administrative sanction in the field of

434 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS confirmed to have diseases1 named in the list of diseases, deformities, and defects correlated with toxic

chemical exposure2 will receive support from the society

On the other hand, the identification and resolution of regimes for victims of agent orange/dioxin are carried out on the basic of evidence such as current health status checks and initial identification at local health centers Victims include people infected with agent orange/dioxin, their biological children and next generations who are unable to serve themselves The most important requirement is the issuance of guidance documents to accurately identify – it means that the sickness and serious cases should be settled with the regular support regime, and in the case of disability under 80%, a one-time support regime should be applied

The second is the improvement of legal regulation on social assistance

In different periods, allowance regime is applied variously and is allocated according to the ratio Presently, the victims of agent orange/dioxin are receiving various allowances based on the rate of working capacity decrease3 and the implementation of allowance regime for the servants at

the time of recognition.4 However, it is found that it is quite complicated and volatile to divided up

the allowance into levels according to the Decree No 99/2018/ND-CP disagreement exists among beneficiaries This creates unfairness among beneficiaries because: 1/ sick soldiers are only entitled to levels including 61% or more (class 2) and 81% or more (class 1); 2/ war activists are entitled to levels Therefore, it is necessary to cohere documents and rights to social assistance so that victims of agent orange/dioxin can receive allowance like sick soldiers but it should ensure the reasonableness, objectivity and social balance

The third is the improvement of legal regulation and preferential policies on health, economy and society

It is necessary to offer the orthopedic and functional rehabilitation equipment to war activists with agent orange/dioxin (if required) However, these policies should be implemented simply, practically, timely and suitably with clear guidance documents and procedures It is necessary to prevent the case when the beneficiary is dead or only enjoys for a short time after the allowance procedure is complete The completion of the regime to offer the orthopedic and functional rehabilitation equipment to the right beneficiaries will contribute to ensure the rights to social assistance for victims of agent orange/ dioxin in particular and human fundamental rights in general

It is necessary to implement general care regime for people who suffer from a dangerous illness or disability, people with serious illness or disability who are unable to serve themselves and whose family is also unable to serve them There is a need to quickly build special care centers and send them to general care centers Only then shall these people be looked after, cared for or treated in accordance with stipulated processes and schedules

- It is necessary to implement the preferential regime in terms of education and training, job creation In order to implement it well, the authorities should conduct survey sand investigate learning and

1 See Decision No.1488/2012/QD-BYT

2 See Circular No 41/2013/TT-BYT-BLDTB&XH

3 See Article 42, Decree No.31/2013/ND-CP dated April 9th, 2013.

435

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

working demands in each case to design suitable programs, to promote their self motivation and effort to integrate into the community With respect to the issue of job creation, the authorities should arrange their own plans and programs with specific mechanisms to create the most favorable conditions for the victims with agent orange/dioxin and their biological children to have suitable jobs

- It is necessary to complete and supplement public and preferential policies aiming to raise the management quality For smooth operation, the authorities should promulgate regulations clearly, simply, easily as well as servepeople with a high sense of responsibility contributing to the success of the Government’s public policies, ensuring the Government and communities’ benefits and heading towards a prosperous country

4.2 Solutions on resources and the use of resources

Currently, the resources to ensure social supports for victims of agent orange/dioxin mainly come from the Government’s budget and voluntary contribution of individuals, domestic and international organizations The allocation of the resources is based upon objects of preferential policies towards victims of agent orange/dioxin These resources are thoroughly assigned to local authorities and directly paid for preferential allowances, subsidy regimes, health insurance, provision of orthopedic rehabilitation equipment, and incentives in education and training However, it is necessary to promulgate specific and detailed guidance documents to ensure that all victims of agent orange/dioxin have the rights to enjoy the benefit On the other hand, financial activities should be done publicly and transparently with high efficiency

4.3 Solutions on implementation

The first solution is to promote the propagation, dissemination and education of laws and policies

towards war activists infected with dioxin; provide complete information; propagate the Party and Government’s guidelines and policies on preferential treatment for people infected with dioxin in the whole society to raise people’s awareness about victims of agent orange/dioxin and about the necessity of social assistance to them

The second solution is to promote the socialization of care and nourishment for people infected

with toxic chemicals Presently, most of the assistance is based on the Government’s endowment while the socialization is rather little It is necessary to have material support for people who are infected with toxic chemicals such as financial support, and medication The equipment and provision of socializing instruments need to be made in a different timeline, with different actors and forms

The third solution is to strengthen the administrative management, especially reforming

administrative procedures which are considered as a breakthrough in the implementation of certification procedures, and preferential treatment for victims of agent orange/dioxin The inspection and examination work need to be enhanced to confirm the right beneficiaries, avoiding neglecting people with meritorious services These procedures should be made less cubersome and difficult to access as well as need to be reformed promptly

436 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS the support of individuals and organizations domestically and abroad It also helps victims of agent orange/dioxin to be more confident and be aware of their own values, enable social issues to be solved adequately and ensure the country’s orientation towards sustainable development

References

Nguyen Thi Bao, Legislation on the rights of persons with disabilities in Vietnam currently, Judicial Publishing House, Ha Noi, (2011), pp.105

The Declaration and Action Plan, The U.S.-Vietnam Dialogue Group on Agent Orange and Dioxin

2010-2019, Second Year Report 2012, Aspen Institute, https://assets.aspeninstitute.org/content/ uploads/2016/06/2012-5-30DialogueGroup2ndYearReportwithFocusonUSAIDComprehensive Plan-VN.pdf, accessed Sep 4th, 2019.

Ministry of Health, Decision No 09/2008/QD-BYT dated February 20, 2008 issued the list of 17 malformed diseases and deformities related to Agent Orange and Dioxin, 2008

Australia Government, Third periodic Report on ICCCPR Australia, Un Doc CCPR/AUS/98/3, 1999, pp/13-15

Justin Healey (Editor), Disability Rights, The spinney Press, Sydney, Australia, (2005), pp.6.

The Vietnam Association of Victims of Agent Orange/ Dioxin (VAVA), Agent Orange disaster in

Vietnam, for internal only, (2016).

Bui Thi Hoang Lan, ‘Ensuring the fairness for persons with disabilities in using rail transport in Vietnam’, Socialogy Journal No 01/2012, 2012, pp 95-102.

Nguyen The Luc, The implementation of policies for victims of Agent orange/dioxin in

Vietnam-additional obstacles and recommendations, Conference Proceedings “Some new research results

on the consequences of Agent Orange/ Dioxin”, (2014)

UNDP, A review of International Best Practice in Accessible Public Transportation for Persons with Disabilities, June 2010, pp.7, pp.19

Nguyen Hien Phuong, ‘Legislation on traffic participation to Persons with Disabilities – From regulation to practice’, Journal of School of Law, Ha Noi National University, Vol.3, No.1, 2016, pp 50-59

Communist Party of Vietnam Online Newspaper, Community-based rehabilitation for victims of Agent

Orange/Dioxin, 2012,

<http://dangcongsan.vn/xa-hoi/phuc-hoi-chuc-nang-dua-vao-cong-dong-cho-nan-nhan-chat-doc-da-cam-dioxin-160842.html>

Le Thi Bich Thuan, Solutions on Architectural space fully-equipped for the integration of persons with disabilities, PhD thesis in Architecture, Hanoi Architectural University, Ha Noi, 2000, pp.17-18

437

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

Le Thi Hoai Thu (Chief author), Rights on Social Security and assurance of implementation of

Vietnamese Legislation, Noi National University Publishing House, Ha Noi, (2014)

Minh Trang, Building the first Bus Rapid Transit Shelter in Ha Noi, Nhan Dan (People) Newspaper, March 4th, 2014, < http://www.nhandan.com.vn/mobile/_mobile_xahoi_mobile_giaothong/

item/22520102.html>

Duc Tran, Priority for Initial Health Care, 2019, <http://daidoanket.vn/suc-khoe/uu-tien-cham-soc-suc-khoe-ban-dau-cho-nguoi-dan-tintuc427746>, accessed Jan 16th, 2019

Thank you for evaluating AnyBizSoft PDF Splitter. A watermark is added at the end of each output PDF file

To remove the watermark, you need to purchase the software from

http://www.anypdftools.com/buy/buy-pdf-splitter.html