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While history can inform us of how things came to be, theories can enhance our understanding of what they could be.306 According to Leedy and Ormrod, “A theory is an organized body of concepts and principles intended to explain a particular phenomenon”.307

Theories can explain why the state should pay compensation to those injured or damaged by wrongful actions of its officials and what the basis for, and limits to, such claims should be. As shown in Chapter 1 in the Introduction, the development of the law on state liability has been marked by three main stages: (1) before the 19th century there was no right to state compensation against the state for any damage because of the absolute immunity theory also the state may offer compensation as an act of grace consistent with its honour and dignity; (2) at the end of the 19th _{century and early 20}th century the immunity of the state was limited and some laws entitled some forms of damages to be claimed as a right; (3) in the late 20th _{and early 21}st _{centuries, there has} been further recognition of the liability of the state to pay compensation in both international law and domestic law. The literature review in Chapter 1 also shows that

305 _{Báo cáo số 300/BC-CP về công tác bồi thường nhà nước ngày 23/10/2012 [The}

Government’s Report 300/BC-CP on State Liability Affairs on 23/10/1012] 306 _{Tavallaei and Talib, above n 189, 570.}

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there are many theories which influenced or later justified the emergence of the law on state liability including liberty and human rights, the development of economy, constitutionism and its concepts of the rule of law, and globalization.

Hence, the development of the law on state liability in Vietnam is a response to both external and internal demands.

Externally, Vietnam has been integrating into global development. In 1977, Vietnam joined the United Nations. It formally recognized the human rights stipulated and solemnly declared in the UDHR of the United Nations in 1948. This was a further development of the recognition of human rights in its various constitutions which were influenced by its earlier participating in international socialism.308 _{In 1982, Vietnam} officially adopted the ICCPR and International Convention on Economic, Social and Cultural Rights (ICESCR). These Covenants require that each State Party ensure that any person whose rights or freedoms are violated has an effective remedy notwithstanding that the violation was committed by persons acting in an official capacity. They also require that any person claiming such a remedy must have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State including judicial remedies.309 Under these Covenants, anyone who has been the victim of unlawful arrest or detention or unlawful conviction must have an enforceable right to compensation.310 Accordingly, the Vietnamese government has pledged to respect and protect these rights for the Vietnamese citizens in the Constitution.311

308 _{See note 4 and 5}

309_{ICCPR 1966 Art 2.}

310 _{Ibid Art 9 and 14.}

311_{The Constitution 1992 (amended 2001) (Vietnam) Art 50, 72, 74. Article 72 provides that} “No citizen shall be considered guilty and liable to punishment until a verdict has been reached by the Court and has come into effect. Citizens who are arrested, detained, brought to court and sentenced unlawfully are entitled to damage compensation and to rehabilitation of their honour. Anyone who in arresting, detaining, prosecuting or sentencing someone unlawfully causes damage to others must be sanctioned by law.”

And Article 74 provides “Citizens have the right to lodge with any competent State authority a complaint or denunciation regarding transgressions of the law by any State body, economic or social organisation, people's armed forces unit or any individual. Complaints and denunciations must be examined and dealt with within a period of time stipulated by law. Any violation of interests of the State of legitimate rights and interests of collective and citizens must be promptly and strictly dealt with. Victims are entitled to damage compensation and to the rehabilitation of their honour as provided by law. Retaliation against authors of complaints or denunciations and misuse of the right to lodge complaints and denunciations with the aim of

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Also, in 2001, the International Law Commission at its fifty-third session adopted the Draft Articles on Responsibility of States for Internationally Wrongful Acts. Together with the commentaries it was submitted to the General Assembly as a part of the Commission’s report. The General Assembly adopted the Draft.312 _{The articles seek} to formulate, by way of codification and progressive development, the basic rules of international law concerning the responsibility of States for their wrongful acts. The emphasis is on the secondary rules of State responsibility. The articles are divided into four parts. Part One is entitled “The internationally wrongful act of a State”. It deals with the requirements for the responsibility of a State to arise in international law. Part Two, “Content of the international responsibility of a State”, deals with the legal consequences for the responsible State of its internationally wrongful act, in particular in relation to cessation and reparation. Part Three is entitled “The implementation of the international responsibility of a State”. It identifies the State or States which may react to an internationally wrongful act and specifies the modalities by which this may be done, including, in certain circumstances, by the taking of countermeasures as necessary to ensure cessation of the wrongful act and reparation for its consequences. Part Four contains certain general provisions applicable to the Articles as a whole. Although the Articles deal only with the responsibility for conduct which is internationally wrongful, it shows the internationalization or globalization of law and the principles underlying the Vietnamese Law on State Compensation Liability. Also, in further legal reform in Vietnam consideration should be given to the Law implementing and mirroring international law to avoid breaches of Vietnam’s international responsibilities, especially in protecting human rights.

Furthermore, to promote economic development, Vietnam officially joined the World Trade Organization (WTO) in 2007. As a member Vietnam must comply with its commitment to improve the law on investment and business and to create a transparent legal system based on equality. This required more legislative solutions to improve the operational efficiency of administration including ensuring greater transparency in public bodies. A major challenge for Vietnam when it joined the WTO was to improve the institutional capacity of its legal system. In accordance with the It is also reaffirmed in the Constitution 1992 (amended 2013). However, the SCL based on the

Constitution 1992 (amend 2001), the old provisions of the Constitution 1992 (amended 2001)

should be referred.

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legal and administrative reform processes, the law on state liability has sought to enhance the accountability of state officials. These developments to harmonise Vietnamese legislation with international law reflect the respect for human rights in international law including the right to claim for compensation.

Internally, in Vietnam, the right to compensation is not only a human right but also a citizen’s right which is affirmed in the Constitution 1992, inspired by one of the values found in socialism: respect for human dignity. Article 50 of the Constitution provides that:

In the Socialist Republic of Vietnam, human rights in all respects, political, civic, economic, cultural and social are respected, find their expression in the rights of citizens and are provided for by the Constitution and the law. Moreover, Article 72 of the Constitution states that:

The person who suffered unlawful arrest, detention, prosecution has the right to compensation for material damage and to restore honour. The illegal arrest, detention, prosecution, trial and cause damage to others must be dealt with severely.

Article 74 also provides that:

All acts violating the states’ interests, the collective and individuals’ legitimate rights and interests must be promptly dealt with severely. The victims are entitled to claim for compensation for material [sic] and restore the honour.

In Vietnamese law, the relationship between the state and the citizen is governed by both public law and private law. On the one hand, in public law such as in administrative law, criminal law and taxation law, the state has greater legal powers than its citizens. On the other hand, in private law including civil law313 the state is a subject without greater legal powers and has an egalitarian relationship with other subjects including individuals, legal persons and organizations. It continues, however, to be much better resourced to litigate than most individuals. The legal principle, however, exposes the state to the same compensation liability as that which applies to individuals or organizations, if the state has done harm.

313 _{Vietnam has Civil law in which consists tort law, contract law, property law, inheritance} law…

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As indicated above, the previous legislative provisions for state compensation before 2009 were inappropriate for resolving compensation claims, and failed to meet the goals of building a state based on the rule of law and protecting human rights in Vietnam. The SCL 2009 was a significant step in improving these provisions, and legal reform in the Doi moi process in general. Studies of the emergence of the law on state liability in Vietnam indicated that some scholars see that state liability should meet the requirements of the rule of law and other constitutional doctrines.314 _{In a state based on} the rule of law, every person not excepting the state as a legal person, should be equal before the law. Consequently, if the state causes damage or injuries to others, the state should be liable for compensation. Other studies see it as focussing on the result of administrative reform in order to limit the abuse of power and to enhance government capacity and effectiveness that are relatively low.315 In addition, some authors argue that the law on state liability is also an important instrument protecting human rights and promoting justice as provided in international law, and is an attempt by the Vietnamese Constitution to build a state based on the rights and legitimate interests of citizens in a more democratic and egalitarian society.316

There are, as in common in law, many different ways to view or theorise the same phenomenon. There is no justification for state liability. Harlow claimed that it is ‘problem without solution’, meaning that it is difficult to propound a single theory explaining or justifying it. 317 However, the trend to promote greater state liability for compensation in Vietnam is in line with global trends. It offers the potential for greater justice and social equality, and for the economic development of Vietnam, as alluded to in Chapter 1 section 1.2.1 and explained further in the next section of this chapter.318

314 _{Nguyễn Sỹ Dũng, Lê Hà Vũ, Bồi thường nhà nước với những nguyên tắc của pháp quyền} [State liability with principles of the rule of law] (2008) (7) Tạp chí Nghiên cứu lập pháp

[Legislative research Journal] 9; Nguyễn Minh Đoan, ‘Bồi thường nhà nước: từ quan điểm đến

pháp luật và khả năng thực hiện’ (2008) (129) [State liability: from opinion to law and enforcement], Tạp chí Nghiên cứu lập pháp[Legislative research Journal]; Dương Thanh Mai, above n 102.

315 _Ibid.

316 _{Đinh Dũng Sỹ, ‘Một số vấn đề lý luận trong xây dựng dự án Luật Bồi thường nhà nước và} xác định phạm vi điều chỉnh’ [some issues relating to theory of state liability for drafting the law on state liability and the scope of the law] (2008) (134) Tạp chí Nghiên cứu lập pháp [Legislative research Journal].

317 _{Carol Harlow, ‘State Liability: Problem Without a Solution’ (1996) 40 U.T.L.J. 67; P W} Hogg, ‘Compensation for Damage Caused by Government’ (1995) 6 N.J.C.L. 7 &, 12; Harlow, above n 6.

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3.6. Nature and significance of state liability