International Environmental Law and Comparative Environmental Law Review. Volume 2

Author: Wang Xi
Publisher:
Publishing Date: 2005-01-01
Features: Due to changes in my job and the preparations for the founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference in Shanghai, the second volume of The Review has been delayed until now. It is indeed a great shame to the readers and contributors who have eagerly awaited its release. Like the first volume, the second volume includes many excellent articles and valuable reference materials. Given the applied nature of environmental law, the second volume has added a new section titled "Applied Research," dedicated to publishing applied research findings in environmental law. Below is a brief introduction to the content of this volume.
International Environmental Law Section
This section includes 8 articles.
Hans Blix's article, "The History of the Stockholm Declaration," is placed at the beginning of this volume. The reasons for this are primarily its significant historical value, and secondly, my chance encounter with the author at the United Nations headquarters. As everyone knows, the Stockholm Declaration is a shining milestone in the history of international environmental law. As Mr. Blix stated, "The intention of the Stockholm Declaration on the Human Environment was to sound an alarm to governments, organizations, and the public; it may be the most striking part of the 1972 Stockholm Conference." At the Stockholm Conference, Mr. Blix served as the coordinator for drafting the Declaration and personally experienced the entire process of its creation. In his article, he recalls the formation process of the Declaration and reveals some previously unknown background details of the negotiations. For example, the concerns of developing countries regarding environmental protection demands; the worries and resistance from the Soviet Union and ASEAN countries; how the Declaration incorporated a few famous quotes by Chairman Mao Zedong; the different priorities of the "South" and the "North"; and how the issue of nuclear weapons hindered China's signing at the time. These recollections undoubtedly have high historical value.
Perhaps for this reason, Mr. Blix intentionally brought this article to the eighth meeting room of the United Nations headquarters on April 16, 2003, to distribute it while listening to a report from the World Nature Protection Union representative. I had the honor of representing Shanghai Jiao Tong University at the reporting session, where I introduced the preparations for the founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference. My seat at the meeting happened to be next to Mr. Blix. He gave me the impression of being approachable and without pretense. During the session, we discussed our views on the use of nuclear energy, and he believed that the peaceful use of nuclear energy should be encouraged. He wished Shanghai Jiao Tong University success in hosting the founding ceremony and the first academic conference of the World Nature Protection Union Environmental Law Institute and personally handed me this article. At the time, Mr. Blix had recently returned from Iraq and had just completed his demanding work as the chairman of the United Nations Monitoring, Verification, and Inspection Commission in Iraq. He attended the reporting session as a senior legal official from the United Nations Headquarters Legal Affairs Department.
The article "World Trade Organization and Marine Environment" was written by the renowned contemporary international environmental law scholar, Professor Alan Boyle. I had been exposed to his works for a long time. His masterpiece, International Law and the Environment, is one of the main references for the textbook International Environmental Law I edited. At the preparatory meeting of the World Nature Protection Union Environmental Law Institute in New York in April 2003, he represented the University of Edinburgh Law School. At that time, he was the vice dean responsible for graduate studies at the University of Edinburgh Law School. It was my first time meeting him. During the conference, we had many discussions, and we quickly became good friends. I invited him to contribute to the second volume of The Review, and he readily agreed. Interestingly, his article "World Trade Organization and Marine Environment" begins with the content of the Stockholm Declaration, which perfectly connects with Mr. Blix's article earlier in the volume. His article is practical, rigorous, and has a strong legal analytical style.
The increasingly prominent international environmental issues have posed challenges to the dispute resolution procedures under different treaty systems. In this article, Professor Boyle first analyzes the legal provisions of the WTO, particularly the relationship between GATT and the United Nations Convention on the Law of the Sea, and then, in the context of resolving marine environmental disputes, examines the interrelationship between the United Nations Convention on the Law of the Sea and the Understanding on Dispute Settlement of the World Trade Organization regarding jurisdictional issues. He points out the problems arising from the parallel dispute resolution procedures in practice and suggests replacing them with a single court by agreement in case of conflicts.
The article "The Sustainability Triangle: International Trade, Environmental Protection, and Development" was written by Professor Safford Genes of the University of Houston Law School. Professor Genes worked at the Office of the United States Trade Representative. He also attended the preparatory meeting of the World Nature Protection Union Environmental Law Institute in New York in April 2003. We had a pleasant conversation at the meeting, and he gave me some of his recent publications. I chose this one. The concept of sustainability is a core concept in contemporary international environmental law. Research on this concept is still in its early stages. In Professor Genes's article, he criticizes the one-sidedness of viewing sustainability issues from the perspectives of "trade-environment" and "environment-development" contradictions and proposes a triangular model with "trade-environment," "environment-development," and "development-trade" as its three sides, offering a novel perspective.
The article "Strengthening Sustainability in Regional Intergovernmental Governance: Experiences and Lessons from the ASEAN Approach" was written by Professor Xu Qingling of the National University of Singapore Law School and Professor Nikola Robinson of Pace University in New York. Professor Robinson and Professor Xu served as the chair of the World Nature Protection Union Environmental Law Committee and the Southeast Asian regional vice chair, respectively. I have worked with them in international environmental law exchanges for many years. They visited Wuhan University and Shanghai Jiao Tong University at my invitation. The founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference in Shanghai in 2003 marked a new level in our collaboration. Our country attaches great importance to friendly relations with ASEAN countries. Singapore plays a significant role in the environmental and development cooperation among ASEAN countries. The article summarizes the cooperation model of ASEAN countries as the "ASEAN Approach," which has the following characteristics:
1. Non-interference in domestic affairs;
2. Planning and cooperation based on consensus;
3. Greater emphasis on resolving disputes through non-judicial means such as negotiation.
The article reviews the operation of the international framework for regional environmental governance based on the "ASEAN Approach" and provides valuable insights into the cooperation mechanisms of ASEAN countries in sustainable development.
Professor Philip Sands is another renowned contemporary international environmental law scholar. I introduced him in the preface to the first volume of The Review. His masterpiece, Principles of International Environmental Law, is another important reference for the textbook International Environmental Law I edited. He generously contributed Chapter 21 ("Foreign Investment") of the second edition of Principles of International Environmental Law to the second volume of The Review, which I was very pleased to see.
With increasing global attention to environmental issues and the development of domestic environmental policies and laws, the issue of "environmental expropriation" has been placed on the agenda of international law. In the chapter on "Foreign Investment," Professor Sands summarizes the developments in international law and international judicial decisions on this issue to date, providing a new and important reference for exploring the topic of "environmental expropriation."
The article "WTO Framework 'Environmental Exceptions' Measures and Their Application Rules" was written by Dr. Bei Tao of the Policy and Regulations Department of the National Environmental Protection Administration. Dr. Bei has worked in the legal department of the National Environmental Protection Administration for many years and is an expert in environmental enforcement and environmental administrative reconsideration. A correct understanding and interpretation of the "environmental exception" provisions in WTO rules undoubtedly have significant practical implications. Dr. Bei's article provides a sharp analysis and discussion of the relationship between the basic rules of international trade and "environmental exception" measures, the basic content of environmental exception measures, the application rules of environmental exception measures, and China's practice regarding environmental exception measures. The article offers valuable guidance for understanding and applying "environmental exceptions" under the WTO framework.
The article "Biological Safety and New Issues in Environmental Law" was written by Lü Bingbin, a law graduate from Fudan University Law School and a graduate student in international law at the Korea International Business School. The article provides a comprehensive review of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity.
The article "A Major Event in Global Environmental Law: Review of the Founding Ceremony and First Academic Conference of the World Nature Protection Union Environmental Law Institute" was written by myself and Professor Ji Zhaoliang of Shanghai Jiao Tong University. The article provides a comprehensive introduction to the grand founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference held in Shanghai in November 2003. This article was originally published in Modern Law Journal, Issue 2, 2004.
Comparative Environmental Law Section
This section includes 14 articles. Among them, the three articles "Some Issues in Environmental Legislation," "Legislative Methods from the Perspective of Legal Implementation—An Exploration of the Legislative Methods of the Solid Waste Pollution Environment Prevention and Control Law," and "The Role of Environmental and Resource Law in China's New Industrialization" form a group, all of which are about environmental legislation. The purpose of including these articles in this volume is to provide some Chinese and foreign academic insights and reference materials to support the ongoing revision of the Environmental Protection Law of the People's Republic of China by relevant national departments.
The article "Some Issues in Environmental Legislation" was written by Mr. Wang Yuqing, Deputy Director of the National Environmental Protection Administration. Mr. Wang has been in charge of China's environmental legal construction for many years and has devoted a lot of effort to environmental legislation and the implementation of environmental law. He is very concerned about the research on environmental law in China and has always given strong support, offering many important guidance suggestions. In the article "Some Issues in Environmental Legislation," he examines and summarizes several important issues in China's environmental legislation from the perspective of legal implementation, which has important guiding significance for improving China's environmental legislation.
The article "Legislative Methods from the Perspective of Legal Implementation—An Exploration of the Legislative Methods of the Solid Waste Pollution Environment Prevention and Control Law" was written by Mr. Zhai Yong of the National People's Congress Environmental and Resource Protection Committee. Mr. Zhai has been engaged in national environmental legislation for many years and has personally participated in the drafting of several environmental laws, accumulating rich experience in environmental legislative work. Based on the author's practice in enforcing the Solid Waste Pollution Environment Prevention and Control Law, the article provides an in-depth exploration of China's environmental legislative methods from the perspective of the implementation process of the law, rising from practice to theory. The author proposes and discusses a series of legislative method issues related to environmental law, such as the "unified issue of legal norms," contributing an important reference for improving China's environmental legislation.
The article "On the Role of Environmental and Resource Law in China's New Industrialization" was written by Zhao Huiyu, a Ph.D. graduate from Wuhan University Law School and a young teacher at the Law School of Shanghai Jiao Tong University. This is a commissioned article. Zhao Huiyu has completed this article well. The 16th National Congress proposed that China should take the path of new industrialization. What is new industrialization? What is its relationship with environmental law? How can environmental law adapt to the development requirements of new industrialization? This article provides a relatively good answer to these questions.
The three articles "Reform and Innovation in Environmental Impact Assessment Law," "The Formulation and Significance of China's Environmental Impact Assessment Law," and "Ensuring Environmental Gains through Environmental Law: Australian Sustainable Contracts and Green Offsets" form another group, all of which are about the environmental impact assessment system. The publication of these articles will help us study and improve China's environmental impact assessment law and its implementation.
The article "Reform and Innovation in Environmental Impact Assessment Law" was written by Xu Zhengxiang, a master's student in law at Wuhan University and a Ph.D. candidate in political economy at the Central Party School. It is part of his master's thesis. During his master's studies, Xu Zhengxiang participated in the drafting of the Environmental Impact Assessment Law of the People's Republic of China organized by the National Environmental Protection Administration and has conducted extensive research on environmental impact assessment law. The author provides an in-depth discussion of several basic issues in environmental impact assessment law, such as the nature of the law and legislative purposes, evaluation procedures, public participation, and strategic environmental impact assessment.
The article "The Formulation and Significance of China's Environmental Impact Assessment Law" was written by Associate Professor Hikaru Kitagawa of the Law Department of Kyoto Ryukoku University. Professor Kitagawa is a member of the "Western China Development and Environmental Protection" project team at Ryukoku University Law Department. He has come to China many times for research on China's environmental impact assessment system and the newly promulgated Environmental Impact Assessment Law. In this article, based on a large amount of facts and data, he provides a comprehensive analysis and evaluation of China's environmental impact assessment system and the newly promulgated Environmental Impact Assessment Law, which can help us better understand the Environmental Impact Assessment Law.
The article "Ensuring Environmental Gains through Environmental Law: Australian Sustainable Contracts and Green Offsets" was written by Meng Zhesi, an international volunteer from Australia and a researcher at the Jiangsu Institute of Environmental Sciences. This article introduces two newly emerging measures in Australia to develop and improve the environmental impact assessment system—sustainable contracts and green offsets—which are quite innovative.
The article "Main Problems Facing Judges When Adjudicating Environmental and Development Cases" was written by Judge Paul Stern of the Supreme Court of New South Wales in Australia. Judge Stern is not only a famous judge but also a renowned environmental law scholar. I remember that between 1997 and 2000, when I and Professor Ben Boul of the University of Sydney Law School were responsible for implementing the China-Australia institutional cooperation project "Sustainable Development Law: Education, Research, and Training," we led Chinese and Australian students to visit his court many times and listen to his lectures on environmental and land special courts. In August 2002, when I met him at the International Symposium on Sustainable Development and Judges in Durban, South Africa, I invited him to contribute an article, and he readily agreed and sent the manuscript to me afterward. Judge Stern attended the founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference in Shanghai in November 2003. The law of Australia was the first in the world to stipulate the principle of ecological sustainability. From the perspective of a judge, Judge Stern elaborates on his understanding of the concept of sustainability and the challenges posed by the principle of ecological sustainability to the judiciary.
The article "Attitude Toward Nature: A Changing Global Ethic? Reflections of a South African Environmental Law Scholar" was written by Professor Jan Grzaski of the Faculty of Law at the University of Cape Town in South Africa. He attended the founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference in Shanghai in November 2003. South Africa is a politically newly liberated country from apartheid and an economically developing country. In his article, based on the country's legal context and legal system, he argues that humanity's attitude toward nature is reflected in laws and norms enacted at specific times as a response to the global environmental situation and the socio-economic value forms of specific countries. He expresses doubt about whether the legal system can accept an ecocentricist viewpoint.
The article "Nature Does Not Need to Be a Subject" was written by Associate Professor Liu Guotao of Shandong Normal University. Associate Professor Liu Guotao has given careful thought to the question of whether "nature" can be a subject in environmental and resource legal relationships. His conclusion is: "Discussing the legal status of 'nature' at the level of normative law, such as treating 'nature' as a subject of environmental law, is acceptable and has important inspirational and promotional significance; however, implementing 'nature' as a legal subject in positive law is unnecessary."
The article "Environmental Protection vs. Private Property: Conflict and Struggle—Taking the Northern Spotted Owl Dispute in the United States as an Example" was submitted by Dr. Chen Dong of the Law School of Zhengzhou University. The conflict between the public interest of protected areas and the private interests of local property owners is a common problem in the protected area systems of countries around the world. Dr. Chen's article reveals the conflict between the U.S. Endangered Species Act's provisions on protecting species habitats and the private property rights of logging owners during implementation and its solutions through the introduction of the case "Sweet Home Case."
The article "Integrating Civil Rights and Environmentalism: Finding Space for Environmental Justice in Environmental Regulation" was written by Professor Yang Zeming of the Environmental Center at the Vermont Law School. Professor Yang attended the founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference in Shanghai in November 2003. He was a visiting scholar at the Law School of Sun Yat-sen University and had good cooperation with Associate Professor Li Ziping, an environmental law scholar at the same university. The original article was published in Harvard Environmental Law Review, Volume 26, Issue 1, 2002. In this article, the author analyzes the different theoretical paradigms underlying the U.S. civil rights movement and environmental movement, reveals the conflicts between them, and proposes that they should be coordinated.
The article "Integrating Environmental and Other Public Values in Water Allocation and Management Decisions" was written by Professor David Gochis and Professor Sarah von Weitling of the Environmental and Natural Resources Law Center at the University of Colorado Law School. Professor Gochis is a famous professor in the field of water law in the United States. The first part of the article introduces U.S. water law; the second part briefly introduces the water law and practice of Australia, South Africa, and China (refer to the paper I submitted to the conference); the third part conducts a comparative study of water law practices in the United States, Australia, South Africa, and China. This is a good reference document on comparative environmental law regarding water law.
The article "Comparative Study of Public Nuisance Prevention Agreements and Environmental Administrative Contracts" was written by Zhang Huiyong, a master's student in environmental law at Wuhan University. The article, in response to some domestic scholars' admiration for Japan's public nuisance prevention agreements, carefully analyzes Japan's public nuisance prevention agreements and China's environmental administrative contracts, finding significant differences between them in nature and other aspects. The author elaborates on the internal driving forces behind the establishment of Japan's public nuisance prevention agreement system and proposes insights for strengthening China's environmental administrative system from it.
The article "Essentials of the History of Ancient Chinese Environmental Law" was written by Associate Professor Wang Li, a Ph.D. graduate from Renmin University of China and the National Judges College. Research on the history of ancient Chinese environmental law is a weak point in China's environmental law research. Associate Professor Wang Li's article has awakened the environmental law community in China to this field, which is very meaningful. Those who have read my book Introduction to U.S. Environmental Law may remember that when environmental movements swept the United States in the early 1970s, pushing the government to strengthen environmental legal and regulatory frameworks, Americans instinctively sought the intellectual origins of modern environmental law in their own history. The United States, with a history of only over 200 years, was already doing so. How much more should a country with a profound and long-standing civilization like ours pay attention to the history of ancient Chinese environmental law? I am grateful to Associate Professor Wang Li for this research, which has strengthened work in this area.
The section on Environmental Law and Related Disciplines includes 1 paper.
The article "Global Ethical Norms, Earth Charter, and Environmental Law" was written by Professor Nigel Dower of the Philosophy Department at the University of Edinburgh. Although Professor Dower is a philosophy professor, he also serves as the head of the Environmental Ethics Working Group of the World Nature Protection Union Environmental Law Committee. He participated in the drafting of the Earth Charter. Ethical studies are closely related to environmental law. In this article, he discusses the role of ethical norms in sustainable development, the relationship between ethics and environmental law, and global environmental ethics.
The Applied Research section includes a set of policy and legal recommendations to the Wuhan Municipal Government regarding the protection of lakes. They are the of the policy and legal research subproject of the major scientific and technological special project of the National 863 Plan, "Technological and Comprehensive Demonstration Project for Improving Water Environmental Quality in Hanyang Area of Wuhan City" (Project No.: 2002AA601020). The significance of these results lies in their practicality and real-world value. These four recommendations are the result of applying environmental law theory to local environmental protection practice, a combination of "Luojia Mountain Studio" and "Hanyang Water." This combination is a process from confusion to clarity, from chaos to clarity, and a process full of challenges to will, quality, ability, and cooperation spirit. Through this combination, the comprehensive research ability and social practice ability of the research team have been greatly improved. These results are still rough and hope for the readers' corrections.
The Reference Materials section includes 5 documents.
The two documents "" and "" were translated for the revision of the Solid Waste Pollution Environment Prevention and Control Law by relevant national departments.
The "" of the Republic of Costa Rica is a useful reference for studying biodiversity protection law.
The case "Hudson River Preservation Association et al. v. Federal Power Commission" is one of the classic cases in U.S. environmental law history. It was the first to raise the issue of the litigation qualification of non-governmental organizations based on environmental public interest.
The case "Oposa v. Fralick" in the Philippines was the first environmental lawsuit in the world to be based on the theory of "intergenerational equity." Oposa, the plaintiff in the case, is an active environmental lawyer. He attended the founding ceremony of the World Nature Protection Union Environmental Law Institute and the first academic conference in Shanghai in November 2003.
The above introduction is far from exhaustive. Through reading the full text, readers will surely gain significant insights.
Finally, I extend my sincere gratitude and high respect to all the academic advisors of this book for their consistent support for this work, and my heartfelt thanks to all the authors, translators, proofreaders, and members of the editorial committee of this volume.