Regulatory framework for CSOs in Viet Nam Nick Booth Policy Advisor for Rule of Law and Access to Justice UNDP Viet Nam 16 May 2011

Introduction Constitution Art. 69 – right to form associations “in accordance with the law” (similarly, Civil Code Art. 84 gives legal personality to associations which are ‘established lawfully’)… in other words, the ‘right’ is conditional on following the procedures are set out in other laws

Regulatory pathways to establishment In turn, there is a patchwork of different regulations setting out different paths for establishment of ‘social’ (non-profit) associations One common feature – they all require approval (contrast ‘economic associations’ like companies etc. which since mid-2000s are now based on registration, NOT approval As a result, regulatory framework is complicated and characterised by different associations establishing under different ‘umbrellas’ to suit their purposes – including using ‘for profit’ vehicles like enterprises and cooperatives

Civil Code Civil Code Chapter IV provides an exhaustive list of the types of legal persons recognised under Vietnamese law… a good place to start…. The next table illustrates that list, including those which are clearly not civil society (state or economic sector) in orange, those which are clearly within civil society in blue – and some more ambiguous cases in green…

Civil Code Chapter IV Legal Persons State Agencies Political/Socio- Political Organisations Economic organisations State enterprises Cooperatives LLCs, Joint stock companies, foreign-invested companies Other ??? Professional, social, socio-professional Social funds, charity funds “Other”

Regulatory framework As mentioned before, each of these different kinds of legal person needs to be ‘lawfully established’ in order to have legal status, so for each kind of organisation we need to consider in addition the relevant regulations, and in particular the provisions for: –establishing the organisation –activities of the organisation –relationship of the organisation with state agencies

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM

VIET NAM FATHERLAND FRONT (1999 Law)

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union)

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”)

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA VUSTA member associations

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA VUSTA member associations Associations

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA VUSTA member associations Associations Scientific and Technical associations: Decree 81

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA VUSTA member associations Associations Scientific and Technical associations: Decree 81 Social and charity funds: Decree 141

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA VUSTA member associations Associations Scientific and Technical associations: Decree 81 Social and charity funds: Decree 141 “Social protection organisations”: Decree 68

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA VUSTA member associations Associations Scientific and Technical associations: Decree 81 Social and charity funds: Decree 141 “Social protection organisations”: Decree 68 Cooperatives?: Decree 151

ORGANISATIONS AND ASSOCIATIONS IN VIET NAM VIET NAM FATHERLAND FRONT Mass Organisations (Trade Union, Farmer’s Union, Youth Union, Labour Union, War Veterans) ASSOCIATIONS – DECREE 45 Socio-professional and profesional associations (including “Special Associations”) VUSTA VUSTA member associations Associations Scientific and Technical associations: Decree 81 Social and charity funds: Decree 141 “Social protection organisations”: Decree 68 Cooperatives?: Decree 151 Companies?

Decree 45 (2010) Came into force July 2010 Replaces Decree 88 (2003) Provides general framework for not-for- profit associations including all kinds of societies, associations, clubs etc….

Steps to setting up D.45 association Set up Board to campaign for establishment (3-10 members) Submit application to to recognise the campaigning board (relevant agency) Submit application for licence to MOHA (DOHA etc.) and relevant agency (principle of “dual state management”) with support of members After licence, hold congress to ratify charter etc Submit charter etc to relevant agency and MOHA/DOHA etc. for approval

Activities of D.45 associations Representing interests of members Training, disseminating information Providing public services Commenting on draft legal documents Participating in projects, research, consultancy, social feedback “at the request of state agencies”

D.45 associations - State supervision of activities ‘Submit to state management’ of relevant agency including ‘guidance, examination and inspection’ Annual report to state agency on activities Annual financial reports to state bodies of foreign funding Report to state agency on international agreements Report to state agency before holding congress

“Special associations” List of 28 associations promulgated by PM, including VUSTA and many socio- professional and professional organisations Right to participate in state policy-making and state programmes Receive state funding for posts and activities and are ‘encouraged/facilitated’ to take part in projects, consultancy, research and social feedback

VUSTA member organisations An umbrella for “scientific and technical organisations” broadly defined Some VUSTA members have separate legal status/establishment Others (PLD, CECODES….) are established directly under VUSTA – don’t have to follow regimes under other decrees….

Decree 81 (2002) Based on 2000 Law on Science and Technology Allows registration of ‘research and development organisations, scientific and technological associations’ Initial registration with MOST but no reporting thereafter

PM Decision 97 (2009) Applies to Decree 81 associations Restricts scope of permissible activities (excluding, for instance, governance) Criticism of party/state policies/guidelines must be sent directly to relevant state body and not published Led to self-dissolution of IDS

Less-regulated pathways Cooperatives (decree 151) Enterprises Non-registered clubs etc…. (no formal legal status)

Some conclusions Regulatory framework remains highly fragmented and unclear No right to association – system still based on discretionary approval and ongoing reporting/state management Two-tier system emerging: –Greater role and more money for “special” associations close to state –More restrictions on activities (esp. re advocacy, social feedback) for others Less-regulated pathways – VUSTA, cooperatives, enterprises