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Has Vietnam Already Violated the To-Be-Ratified Free Trade Agreement with the EU?

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Photo courtesy: Norfolk Chamber of Commerce.

After Hoàng Đức Bình’s 14-year sentence was affirmed by an appellate court in Vietnam on April 24, 2018, one of the state-owned newspapers, Người Lao Động (NLD), published a story about Bình’s case on the same day, explaining the government’s reasons behind his harsh sentence.

In one paragraph, NLD wrote:

“Taking advantage of the marine life environmental incident in the Central, and as the Vice-Chairman of Viet Labor Movement, Hoàng Đức Bình began to organize The Association of Fishermen in the Central with the intent to form an external organization, mobilizing forces, attracting Catholics, fishermen in the Central to join that organization; selecting ‘nucleus’ who could incite demonstration to disturb the peace and security.”

Not only international human rights laws protect the right of the people to form associations and organize protests, Vietnam repeatedly acknowledges and agrees to not infringe on these rights of its people in various international treaties and agreements. One of the more recent ones is the free trade agreement (FTA) with the European Union (EU).

About two and a half years before Bình’s trial, in October 2015, Vietnam and the EU have agreed on the text concerning the terms of the FTA between them.

At the same time, EU and its member countries have repeatedly maintained, that they are “fully committed to implementing the 2030 Agenda and its Sustainable Development Goals into EU policies.”

One of EU’s commitments to implementing the 2030 Agenda is to include in their free trade agreements, rules on trade and sustainable development as well as a human rights clause.

In the case of the Vietnam-EU FTA, that language is under Chapter 15 of the agreement, entitles Trade and Sustainable Development.

 

Article 3, Paragraph 2, Sub-paragraph (a) of Chapter 15 states:

“Each Party reaffirms its commitments, in accordance with its obligations deriving from the membership of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International Labour Conference at its 86th Session in 1998, to respect, promote and effectively implement the principles concerning the fundamental rights at work, namely:

a) the freedom of association and the effective recognition of the right to collective bargaining;”

 

The importance of this chapter and the human rights clause are also highlighted by the Chair of the European Parliament’s Committee for International Trade, Bernd Lange, during his visit to Hanoi in September 2017. That human rights and labor rights are at the center of the continued discussions about the FTA between Vietnam and EU.

Many could imply that the criminalization of Hoàng Đức Bình’s conduct for organizing people and forming an association of fishermen in the Central of Vietnam appears to be in direct violation of the Trade and Sustainable Development Chapter and the human rights clause of the Vietnam-EU FTA.

The European Parliament Think Tank assessed in February 2018, that the FTA with Vietnam “has been described as the most ambitious deal of its type ever concluded between the EU and a developing country. Not only will it eliminate over 99 % of customs duties on goods, but it will also open up Vietnamese services markets to EU companies and strengthen protection of EU investments in the country.”

They also opined that the Vietnam-EU FTA is estimated to boost Vietnam’s economy as much as 15 % of GDP, with Vietnamese exports to Europe growing by over one third.

The parties are hopeful that the FTA will be ratified by EU Parliament (and also by its member-states on issues involving investment) by the end of this year, or by 2019 at the latest.

However, the recent affirmation of Vietnam’s court regarding Hoàng Đức Bình’s 14-year sentence for organizing and participating in protests against Taiwan’s Formosa Hà Tĩnh Steel Corporation raises questions over the good faith of Hanoi in keeping up their end of the bargain when it comes to human rights and labor rights.

If Vietnamese government is sending people to prison with a very harsh sentence for exercising their freedom of association before the FTA is ratified, then what and how does EU plan to keep them in check once the dust is all settled?

Perhaps, this is a legitimate question for the EU-Vietnam Human Rights Dialogue to provide the public with a more definitive answer later this year?

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Opinion-Section

With Economic Development Comes Greater Government Oppression: Why the EU Must Reconsider Its Free Trade Deal with Vietnam

The agreement threatens to legitimize a brutal regime unless greater human rights protections are incorporated.

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On the same day in 2020 that Vietnam chaired its first Security Council meeting in New York, just a few hours earlier and some 8000 miles away near its capital, Hanoi, the Communist Party of Vietnam directly attacked Dong Tam village for refusing to give up its land.

The result? Police shot dead Dong Tam’s beloved leader and former Party village chief, Le Dinh Kinh, an 84-year-old veteran who had been a Party member for 57 years; three police officers also died after falling down a sky-light, ostensibly pursuing “suspects” who resisted the authorities. Twenty two villagers have subsequently been arrested, with twenty being charged with murder. If convicted, these villagers could face the death penalty. 

The Dong Tam land seizure event of last week is therefore a watershed moment in Vietnam’s post-war history for many reasons. First, it marks for the first time in the age of social media an open and deadly clash between the Party and its once loyal support base: villagers in northern Vietnam. According to a 2015 Bloomberg finding, almost 70% of Party members live in the north, even though the north is home to less than half of the country’s population of 96 million.

Second, it shows the Party’s determination in ending the dispute, no matter the costs, and the great lengths it will go to muzzle public outcry afterwards, both on- and offline.

Just two days after the incident, the Ministry of Information, which controls and censors all media content in Vietnam, called for Facebook – by far the most popular social media platform in Vietnam, used by some 55 million netizens – to be punished for ‘not following Vietnamese laws’ in allowing ‘distortion and fake news’ to be spread on its platform.

Following official warnings and thanks to a large cyber-troop force the government employs, some users reporting on Dong Tam have been locked out of their accounts or had content taken down by Facebook, a fact Amnesty International has confirmed in recent days.

Offline, the Party’s determination couldn’t be more clear. Less than 24 hours after the incident, the most senior member of the Politburo and Vietnam’s top leader, Party General Secretary Nguyen Phu Trong, posthumously awarded the officers killed the title of “martyr”, designating them as first-class heroes.

A week later, in an elaborate ceremony held at the State Funeral House, the Prime Minister himself along with other Politburo members, including the powerful Minister of Public Security, attended the funeral, noting that the officers ‘sacrificed their lives to protect national security’.

It is, indeed, not surprising that the Party views the incident as a matter of significant national security. After all, though land disputes are common in Vietnam because the government does not recognize private land ownership, never before has an entire village dared to resist government seizure of its land at all costs and announce its intentions accordingly on Youtube and Facebook.

With Vietnam’s economy expected to grow faster in the next decade, land designated for development purposes and seized by the government will likely exacerbate the security situation on the ground if not dealt with decisively. In the case of Dong Tam, the land seizure was for Viettel Group, Vietnam’s military-run communications company. They had to act.

But the timing could not have been worse. In the coming days, the EU Parliament’s Trade Committee is expected to vote on the EU – Vietnam Free Trade Agreement, worth 42 billion dollars annually and described by the EU as ‘the most ambitious free trade deal ever concluded with a developing country’. If passed, it will go to Parliament for a final vote on February 10.

According to Human Rights Watch, already there is significant concern among some EU MEPs regarding Vietnam’s worsening human rights record. Just last month, they also discovered that the trade deal rapporteur, MEP Jan Zahradil, has institutional links with the Party, leading to his immediate resignation.

With the latest incident in Dong Tam, it is also important for the 751 MEPs to realize that while the deal will bring more economic benefits to Vietnam, without clear and concrete human rights benchmarks, the deal will likely provide more incentives for the Party loyal and powerful to grab more land from the poor for developments without proper compensation and recourse.

As a result, if passed in its present form, expect more land losses and tragic deaths in villages across Vietnam, not less. After all, 65% of Vietnam’s population still lives in rural areas.

As for the Security Council of which Vietnam is the President this month, expect no resolutions on the matter. Dang Dinh Quy, head of Vietnam’s permanent mission in New York, is a Communist Party member himself.

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Vietnam’s Travel Bans Infringe on Activists’ Rights And Violate Own Constitution

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Vietnamese police officer stands behind a barricade in Hanoi. Photo credits: AFP/Ye Aung Thu

On November 20, 2019, Father Nguyen Dinh Thuc, a Vietnamese Catholic priest, posted on his Facebook page that he was not allowed to leave Vietnam to go to Japan to meet with the Pope during the papal visit to Asia. The immigration police gave Father Thuc a document explaining the reason why the government did not allow him to travel abroad. It stated that the priest was banned from leaving Vietnam because the authorities believed they were preventing possible crimes against “national security and public order” according to Article 21, Section 6 of Decree 136/2007/ND-CP. This decree was issued (link in Vietnamese) by Vietnam’s executive branch on August 17, 2007.

This was not the first time Father Thuc was prevented from traveling overseas. About two years ago, he was also blocked from traveling to Taiwan to attend meetings with Taiwanese civil society organizations regarding an environmental disaster involving a Taiwan enterprise, the Formosa Plastics Corporation. In one of Vietnam’s four central coastal provinces, Father Thuc had helped some of the victims of the Formosa incident voice their concerns over a legal fight and the aftermath of the disastrous environmental situation. 

The case of Father Thuc again demonstrates how the Vietnamese government bans human rights activists from traveling in order to stop them from participating in international advocacy efforts. The Vietnamese authorities have confiscated the passports of more than 100 Vietnamese activists, banning them from traveling by citing the same legal section: Decree 136/2007/ND-CP. Activists are deemed by police as a threat to Vietnam’s national security and public order when they go abroad. 

This incident also explains why we seldom see activists from Vietnam taking part in international advocacy for human rights in Vietnam. And even when activists do travel, they may not want to expose themselves publicly during advocacy events for Vietnam’s human rights because they could lose their passports upon returning home. Dinh Thao, an environmental and human rights activist, had her passport confiscated after being detained for several hours by police after returning to Vietnam this month. In the last three years, she traveled the world publicly advocating for human rights in Vietnam, and the confiscation of her passport was the price she had to pay for her actions. 

The story of Dinh Thao is the same dilemma that almost all Vietnamese activists have had to deal with in the past five or six years. If they travel abroad and publicly advocate for human rights in Vietnam, they face the possibility of being blocked from traveling again after they return to Vietnam.  When Vietnam underwent its second Universal Periodic Review (UPR) in 2014, activists accused the government of reprisals when it prevented activists from leaving the country to advocate for Vietnam’s human rights. Among them, Paulo Nguyen Ho Nhat Thanh, Pham Chi Dung, and Nguyen Bac Truyen were not allowed to depart the country to go to Geneva, Switzerland in January and February 2014 when their passports were confiscated. Pham Le Vuong Cac was also detained and had his passport confiscated in August 2014 when he returned to Vietnam after attending the UPR in Geneva. During the last UPR in 2019, Nguyen Thi Kim Khanh, wife of political prisoner Truong Minh Duc, participated in advocacy activities to raise her husband’s case in Europe and was detained for five hours upon her arrival in Vietnam. The police also took her passport without any judicial oversight, stating it was for national security.

Without their passports, these activists are prevented from traveling abroad and if they leave the country without it, they risk being considered illegal immigrants or worse, being accused of taking part in human trafficking schemes. 

The ban on activists traveling overseas is illegal, and it also directly violates Vietnam’s 2013 Constitution. Article 23 of the Constitution guarantees that “citizens shall enjoy the freedom of movement and of residence within the country; and can freely travel abroad and return home from abroad.” By issuing governmental decrees like Decree 136/2007/ND-CP in 2007, the Vietnamese government has violated the rights of its citizens. 

These decrees were not introduced, debated, and passed by the legislative branch but were executive orders whose constitutionality should ideally be decided by a judicial review. Sadly, Vietnam’s court system is not independent, and there is no constitutional court in the country. The government is able to issue unconstitutional decrees to suppress people’s rights without having any form of checks and balances. 

The right of movement has met the same fate as the right for peaceful assembly: both of these rights have been violated by governmental decrees with the people having no means at all to fight back. In Vietnam, the National Assembly’s Standing Committee has the right to exercise the power to interpret the law, including constitutional law. This is the committee that can decide whether a law or a decree is constitutional. Unfortunately, the Standing Committee has never exercised that power.

The government also does not notify activists when it puts their names on a “no travel ban” list, and some of them only find out upon arrival at the airport, as was the case of Father Thuc. Some people, such as Dinh Thao, had their passports confiscated by the police immediately after they returned to Vietnam from overseas. 

And yet, when the authorities infringe upon these activists’ right of movement, the police do not even follow the prescriptions as stated in Decree 136/2007/ND-CP. Article 22, Section 1(d) of this decree states that if a person is prevented from traveling because he or she is suspected to be a threat to national security or public order, such a decision to ban travel must be issued by the minister of the Ministry of Public Security – the head of the national police. In reality, none of the documents banning activists from traveling are signed by the minister. In the latest case of Father Thuc, the decision was signed by an immigration police officer, Lieutenant Colonel Phan Huan. 

Human rights activists in Vietnam face blatant violations of their rights by the government daily as reprisals for their work, but the government cannot stop the democracy movement from expanding. The activist community continues to grow and they willingly face harassment and imprisonment. In recent years, Vietnam has arrested more people for political dissent and handed down harsher sentences. Posting on Facebook with information that the government dislikes may land a person in jail for a decade, as we saw earlier this month. But at the same time, more people are willing to write and expose corruption and official wrongdoing in Vietnam. This is a time for political change and Vietnamese citizens want to be a part of this change. They are increasingly daring to face the consequences. 

In all of the human rights dialogue that the West participates in with Vietnam, putting an end to the travel ban should be top priority. If that happens, then the world will be able to hear Vietnamese activists express their struggles on the international stage. The advocacy to improve the human rights situation in Vietnam should start with eliminating the travel ban now.

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How Can The EU Parliament Convince Us That Vietnam Will Improve Its Human Rights Record When Dissidents Continue To Get Jailed For Exercising Their Rights?

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Photo credits: tapchitaichinh.vn

The European Union – Vietnam Free Trade Agreement (EV-FTA) is expected to be a comprehensive win-win deal for both sides, ambitiously seeking to improve trade and boost mutual economic growth. As with all free trade agreements to which the EU is a party to, a human rights clause is built into this FTA with Vietnam. Many EU officials and parliament members that I have met in the past two years through my advocacy for Vietnam’s human rights situation earnestly believe that Vietnam will improve its record once the FTA takes effect. 

In the past, these friends have asked me to have some faith in the current regime, assuring me that our Vietnamese human rights activists and defenders will have better days in the future. It is a very typical “give them more time” argument that they expect me to accept. Yet the record shows that Vietnam’s aggression against human rights activists increases every year while government-controlled courts continue to hand out harsh sentences. I often wonder how EU officials still want to convince me to have such faith? 

In March 2019, I met with an EU official who was participating in the negotiations of the EV-FTA. She expressed great sympathy for human rights defenders in Vietnam and even realized the situation for human rights there was worrying. And yet, towards the end of our conversation, she asked me what I thought about one of Vietnam’s ministers, whose name I will not disclose. She seemed to be fond of the guy and praised him for belonging to a “progressive group in the Vietnamese Communist Party (VCP)” that she said hopefully would one day push for an improvement in human rights in the country. 

As a democracy activist, I personally think that regardless of whether a person is progressive or not, none of the VCP members right now would dare to inch away from the Party’s political monopoly inside the country. And I frankly stated that the Ministry of Public Security – the national police – would never allow any official to raise his or her voice over the human rights situation in Vietnam. Asking for political pluralism, an improvement in the human rights situation, and democracy would place anyone in danger of being sent to prison for more than a decade, as the latest political trials have shown this year. 

I met with the official right after attending the United Nations Human Rights Committee’s 125th session in Geneva, Switzerland where the Committee completed its third periodic report on Vietnam’s implementation of the International Covenant on Civil and Political Rights (ICCPR). Vietnam submitted its report after a 13-year delay in December 2017–the original deadline was set for August 2004. The Committee sadly acknowledged that in Vietnam’s review “less information was provided on the actual implementation of ICCPR and application of domestic laws in practice, where concrete data was crucially lacking.” 

Vietnam ascended to the ICCPR in 1982, but with regard to complying with the international covenant on human rights, it didn’t actually provide any opportunities for people to learn and exercise their rights. More than that, the government did not allow the Vietnamese people to use the ICCPR in courts to defend themselves when such rights were being violated. 

The point is that more than three decades after Vietnam joined the ICCPR, the human rights situation in Vietnam remains hopeless and people’s rights are being violated on a daily basis. How can we believe that the EV-FTA will improve such a situation when the ICCPR has so far failed so miserably?

I began to write this article after receiving the news that a close friend, an activist from Vietnam, had been detained upon arrival at the Noi Bai International Airport, where she was put into detention by 10 security police. Dinh Thao is an environmental and human rights activist who left Vietnam to study and work abroad as an advocate for human rights more than three years ago. She was a medical doctor before becoming an activist and I am sure some of the EU parliament members must remember her because she advocated for Vietnam’s human rights situation in Brussels a few years ago and may have met some of them. 

Thao is non-violent and even created a project to educate people about peaceful demonstrations. Yet she was detained by the police immediately after her arrival in Vietnam. What crime did she commit to deserve such treatment? Or is it just simply the fact that the government violated her rights in retaliation for her advocacy internationally for more human rights in Vietnam? 

On the same day that Dinh Thao was detained, November 15, 2019, another Vietnamese was sentenced to 11 years imprisonment and five years of house arrest. Nguyen Nang Tinh, a  music teacher who also advocated for human rights and democracy for Vietnam, was accused by the state of “propagandizing against the government” via his Facebook posts. Tinh denied that the alleged Facebook account belongs to him, but if you read the posts in that account you’ll see that there was nothing that called for a violent overthrow of the regime. If you search for him online, you will see videos of him teaching young children patriotic songs, songs that demand human rights for the people. How could his activities be called “propaganda against the state”?

As I have worked to protect the human rights of activists in Vietnam for many years, I have often recounted their stories to many Western politicians and officials. The activists I have met are people who had the opportunity to learn about the concept of human rights and who then started to defend such rights for others and also sometimes for themselves. They are the people who believe in the spirit and the universal values of human rights and they also believe that international laws, such as the ICCPR, will protect them. They probably had hoped that the ICCPR would be implemented in Vietnam at their trials. But that hope was never realized because we have never seen arguments articulating any of the articles of the ICCPR, such as Article 19, which protects the freedom of expression, presented in Vietnamese courts. 

And as a result, human rights activists and defenders have often typically been sentenced in rushed one-day trials without an independent judiciary. Sometimes the decisions handed down include lengthy jail sentences, as in the case of Nguyen Nang Tinh, which happened this month. 

In response to the EU officials who asked me to “have faith” in the regime, I point to a database built by the independent civil society organization The 88 Project, which catalogues the arrest and detention of political prisoners in Vietnam. A representative of that organization informed me a few days ago that in 2018, the Vietnamese government had arrested 145 people. These arrests showed the authorities’ blatant violation of the human rights of citizens. That number was greater than the number of arrests Vietnam made in 2017, 2016, and 2015 combined. In 2018, the number of arrests went up because the government detained and sentenced many people after large demonstrations happened in June 2018, in protest against the new cybersecurity law and the development of special economic zones with Chinese investment. 

It is not only human rights activists who are being treated unfairly and who are suffering mistreatment in Vietnam. There are also other groups, such as the workers, for whom the EV-FTA probably has some aspirations to improve their work environment and living standards. Many EU Parliament members have urged the Vietnamese government to quickly ratify the remaining three International Labor Organization (ILO) conventions prior to EU voting on the trade deal. Vietnam has promised to ratify the three ILO conventions over a time period of five years beginning in 2018. However, ratification of international laws is one thing, while the reality of how the Vietnamese authorities have failed to improve workers’ lives is another story. 

In Taipei, Taiwan, legal migrant workers from Vietnam went on a protest this month to demand the abolition of broker fees that each of them had to pay to be able to work in Taiwan. These broker fees are considered to be part of the most exploitative system of all of the countries in Southeast Asia from which these workers come from. What does the Vietnamese government know about this system and why does it allow such a broker fee system to continue to exploit their people? Would the EV-FTA be able to eradicate that system to improve the lives of these workers? How can I have the faith to believe that the Vietnamese government will ever take care of these people? 

Recently, Prime Minister Hun Sen of Cambodia released 70 opposition activists in order to improve his country’s human rights image after the EU threatened the withdrawal of special trade preferences. Cambodia’s political system has many aspects that are far better than in Vietnam. That country at least has an opposition political party – the Cambodian National Rescue Party (CNRP). On the contrary, the Vietnamese Communist Party has a political monopoly and we don’t have a single other political party. 

Running for office as an independent candidate will not lead to any success as the 2016 elections have demonstrated. Being a member of a political party that was formed overseas was the reason that Vietnam sentenced a 70-year-old Vietnamese-Australian man, Chau Van Kham, to 12 years in prison earlier this month. 

And yet, the EV-FTA provides for a lot more benefits for Vietnam than compared the trade preferences that Cambodia would get from the EU. How can Cambodia demonstrate a greater willingness to improve its human rights record while Vietnam just keeps getting worse? How can I have faith that Vietnam will eventually improve?

During these days, police brutality in Hong Kong has increased dramatically as we see from the recent news coming out from universities there. And as we support and pray for young people there, I hope none of the international politicians and officials will say “give China more time” so that they can resolve their human rights problems. 

In my personal capacity, despite all my efforts, I have yet to make Vietnam’s human rights situation become more well-known in the world. However, I can not look at all of my human rights activists friends in Vietnam and tell them to be patient and to give the government more time. 

We need to raise our voices and demand right now that the Vietnamese government make an effort to improve its human rights record. Should Vietnam make some improvements prior to the EU Parliament vote on the FTA trade deal? Yes, absolutely. Vietnam has to show its good faith by releasing the more than 200 political prisoners who are currently serving time and by allowing the emergence of political pluralism with fair and free elections. 

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