key: cord-0040415-l50cv389
authors: Keyuan, Zou
title: Law for the protection of the environment
date: 2014-03-27
journal: China-Asian Relations and International Law
DOI: 10.1016/b978-1-84334-438-4.50006-6
sha: 3737c3ca153905baa6ccca862c52a44f1426b9f9
doc_id: 40415
cord_uid: l50cv389

nan

Law for the protection of the environment Introduction Rapid economic growth, together with industrialisation and urbanisation, has caused environmental problems throughout the world. Asia faces a so-called triad of environmental problems -regional, international and global. The big question is how to create a framework that suits the region 1 and whether it can prove to be an effective vehicle for environment protection so as to avoid economic development at the cost of environmental deterioration. Various environmental problems, encompassing soil erosion, water logging, industrial pollution, deforestation and loss of natural habitats, prevail in China and Southeast Asia. Some of these are very serious and extensive. For example, land degradation in Asia (20 per cent of all vegetated land) exceeds the world average (17 per cent); the suspended load per square kilometre of drainage basin, which is an indication of soil erosion, is three to eight times more prevalent in Asia than in the whole world. 2 Even the severe acute respiratory syndrome (SARS) outbreak, which originated in China in the spring of 2003, bears a strong connection to environmental problems. 3 Such problems boomerang against the environment as well as economic development. According to an estimation by the Asian Development Bank (ADB), the economic costs of environmental degradation in Asia are estimated to range from 1 to 9 per cent of national GNPs. 4 Thus, the principle of sustainable development should be strictly applied to Asian economic development, which requires countries to have their economic development without affecting the nature as well as the interests of future generations. The Report of the World Commission on Environment and Development -Our Common Future -defines sustainable development 117 as 'development that meets the needs of the present without compromising the ability of future generations to meet their own needs'. 5 To reach this goal, protection of the environment is a necessity. Cooperation between China and ASEAN in the area of environment protection has already begun, as is seen, for example, in the cooperative activities of the Greater Mekong Sub-Region (GMS) programme discussed in Chapter 5. Cooperation in public health sector or natural disaster management is also related to the environment. 6 Such activities are undertaken under the ASEAN Plus Three institutional arrangement, which defined a mechanism for environment protection in 2004. From 17 to 24 August 2004, the China-ASEAN Environment Policy Dialogue was held, which was particularly directed at environmental education and environmentally sound technologies. 7 However, in comparison with other areas, there is a lack of cooperation in the environmental field. It was not until 2007 that China and ASEAN agreed to include 'environment' as the 11th priority area of cooperation between the two sides. 8 At the 11th ASEAN-China Summit held in 2007, China proposed, and ASEAN agreed to consider, the formulation of 'an ASEAN-China Environmental Protection Cooperation Strategy' and the establishment of 'an ASEAN-China Environmental Protection Centre'. 9 It is perceived that the two sides will intensify their environmental cooperation in the near future.

In addition, China and ASEAN have exerted much effort in environment protection and conservation of natural resources. Apart from their individual efforts, they have joined hands in regional and global environmental programmes and regimes, as will be discussed in the following sections.

As a regional organisation, ASEAN aims to accelerate economic growth, social progress and cultural development in the Southeast Asia region, and to promote regional peace and stability through joint efforts. It has expanded its original mission to cover the field of environment protection as well. For this the member states signed the ASEAN Agreement on the Conservation of Nature and Natural Resources in July 1985. 10 The agreement covers various areas of environment protection including species, vegetation and forest, soil, water, air, environmental degradation, pollution, land use, protected areas, impact assessment, scientific research, international cooperation, shared resources and transfrontier environmental effects. It has also set the principle that the contracting parties should adopt protective measures singly or through concerted action to reach the goal of sustainable development, including adopting national conservation strategies. 11 Although the agreement was concluded among the six old ASEAN members, it can be extended to newer ASEAN members through the procedure of accession provided for in the agreement.

Several plans of action have been adopted for environment protection. Regional initiatives on environment protection are guided by the ASEAN Vision 2020, which called for 'a clean and green ASEAN with fully established mechanisms for sustainable development to ensure the protection of the region's environment, the sustainability of its natural resources and the high quality of life of its peoples' 12 and by the Hanoi Plan of Action (HPA)(2000-4), which contains 15 objectives. The Strategic Plan of Action on the Environment (SPAE) sets out specific and measurable activities for each of the 15 objectives of the HPA. Major areas of cooperation include (a) transboundary haze, (b) nature conservation and biodiversity, (c) coastal and marine environment, (d) global environmental issues and (e) other environmental issues. 13 Working groups were established within the framework of the ASEAN cooperation, but in coordination with a member country for Seas and Marine Environment, Nature Conservation, Transboundary Pollution and Environmental Management. 14 As of May 2008 there were five working groups, one each for multilateral environmental agreements, coastal and marine environment, environmentally sustainable cities, water resources management and nature conservation and biodiversity. 15 Although these efforts are commendable, the 1985 Agreement remains ineffective due to insufficient ratifications. To justify this, it has been commented: 'the ASEAN environmental undertakings may be characterized as plans for cooperation between national institutions, rather than the creation or strengthening of any regional institutions as a central hub for policy-making or implementation'. 16 On the other hand, lack of ratification may reflect the inability to meet the obligations stipulated in the agreement 17 despite the fact that that the agreement 'contains many admirable and innovative features'. 18 In comparison, the Treaty on the Southeast Asia Nuclear Weapon-Free Zone concluded in Bangkok on 15 December 1995 19 has more teeth. According to the treaty, the 'Southeast Asia Nuclear Weapon-Free Zone' is the 'the area comprising the territories of all States in Southeast Asia, namely, Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam, and their respective continental shelves and Exclusive Economic Zones (EEZ)' (hereafter referred to as 'the Zone'). 20 For protecting the environment, each state party should refrain from dumping into the sea or discharge into the atmosphere anywhere within the Zone any radioactive material or wastes, disposing radioactive material or wastes on land in the territory of or under the jurisdiction of other states, or allowing any other state within its territory to do so. 21 The treaty established the Commission for the Southeast Asia Nuclear Weapon-free Zone, which oversees the implementation of the treaty and ensures compliance with its provisions. 22 In addition, the treaty has also set up a control system for verifying the compliance with the obligations of the state parties under the treaty. It contains four key elements: (a) the IAEA safeguard system, (b) report and exchange of information, (c) request for clarification and (d) request and procedures for a fact-finding mission. 23 Safeguard provisions are also reflected in the provisions on remedial measures. 24 While the treaty guarantees a nuclear-weapon-free Southeast Asia, it does not bar the ASEAN member states from developing nuclear energy for civilian use. Due to excessive depletion of non-renewable natural energy resources and soaring oil prices, some ASEAN member states have found alternative energy resources such as nuclear energy. In 2007 Thailand expressed its mission to hire about 200 nuclear power experts to set up its first nuclear power station in 10-15 years; Malaysia planned to build such a station within 10 years; Indonesia, 25 Myanmar, the Philippines and Vietnam have also started working on projects and programmes for developing nuclear energy. 26 However, there are a number of environmental and safety concerns, for example earthquake-prone regions such as Indonesia, nuclear waste management and leakage disasters like the one that struck Chernobyl, which may deter the ASEAN nuclear motives. Environmental concerns due to development of nuclear energy can be addressed at the institutions established within the ASEAN, such as the ASEAN Centre for Energy established in 1999. Finally, it is notable that China supports the ASEAN commitment to maintain Southeast Asia as a nuclear weapon-free zone and has expressed its willingness to sign the Protocol to the Treaty on the Southeast Asia Nuclear Weapon-Free Zone. 27 Although there are a number of legal documents on environment protection, ASEAN activities in this area are still mainly guided by 'soft law', thus qualifying its efforts in environmental management despite the applause from the United Nations Environmental Programme (UNEP) that its environmental management is 'thorough' and 'may provide a model for other regional organizations'. 28 Regional cooperation with China and other neighbouring countries can no doubt strengthen the ASEAN capacity for environment protection and management.

The recent ASEAN Declaration on Environmental Sustainability adopted in November 2007 honours and makes commitments to implement multilateral sustainable development and environmental agreements. 29 China and ASEAN countries are parties to numerous international treaties. The Table 6 .1 is an illustration of their accession to the UNFCCC and the Kyoto Protocol. The following section will discuss the two most important international treaties in the context of China-Southeast Asia relations: the UNFCCC/the Kyoto Protocol and the CBD.

The ultimate objective of the UNFCCC is 'to achieve stabilization of greenhouse gas (GHG) concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system' (Article 2). The convention sets forth a number of important principles. First is the principle of inter-generational justice, which emphasises the protection of climate system for the benefit of present and future generations (Article 3.1). Second is the innovative principle of 'common but differentiated responsibilities', that is, the developed countries should take more responsibilities for reduction in GHG emission than developing countries. Following this principle, the convention mandates the developed countries and other parties included in Annex I to bear more responsibilities. For example, they should adopt national policies and take corresponding measures on the mitigation of climate change by limiting their anthropogenic GHG emissions and protecting and enhancing their GHG sinks and reservoirs (Article 4.2). However, during the implementation of the principle of 'common but differentiated responsibilities', the principle of equity should be taken into account. Another principle that is embodied in the convention requires parties to take precautionary measures to anticipate, prevent and minimise the causes of climate change and mitigate its adverse effects (Article 3.3). The last is the principle of sustainable development, which acknowledges that the parties have the right to economic development and provides that policies and measures against climate change 'should be appropriate for the specific conditions of each Party and should be integrated with national development programmes' (Article 3.4). For implementing the principles of the convention, several institutions have been established in accordance with the relevant provisions of the convention. The most important institution is the Conference of the Parties (COP), which is the 'supreme body' or the highest decisionmaking authority of the convention. 30 The COP meets annually. A secretariat is established to assist the functions of the COP. In addition, there are two subsidiary bodies: one for scientific and technological advice and another for implementation.

The Kyoto Protocol was adopted in 1997 and came into force in 2005. It further sets forth the quantified emission reduction commitment for Annex I countries, that is developed countries and countries with transitioning economies between 2008 and 2012, but does not impose any emission reduction obligation on developing countries. The compliance regime based on the Kyoto Protocol and established in 2002 is regarded as one of the most comprehensive and rigorous regimes in the international arena. It consists of a Compliance Committee, which is made up of two branches: a Facilitative Branch and an Enforcement Branch. The facilitative branch aims to provide advice and assistance to parties in order to promote compliance, whereas the enforcement branch has the power to determine consequences for parties not meeting their commitments. The Compliance Committee bases its deliberations on reports from expert review teams, subsidiary bodies, parties and other official sources. In case of noncompliance with emission targets, the party can lodge an appeal in the Conference of the Parties/Meeting of the Parties (COP/MOP) if that party believes it has been denied due process by the Compliance Committee. 31 As shown in Table 6 .1, Singapore is the latest country among the Asian signatories to accede to the Kyoto Protocol. It changed its policy after a reassessment of economic costs and benefits. 32 But Singapore is an island country with insignificant GHG emissions at the global level. On the contrary, China is the country with the second highest GHG emission next to the United States. It is well predicted that China's emission will surpass that of the United States in coming years. In 2006, the Netherlands Environmental Assessment Agency (MNP) remarked that 'China topped the list of CO 2 emitting countries, surpassing the USA by an estimated 8%'. 33 Thus, China is the most important player in the establishment and implementation of the legal regime of global climate change. Although as a developing country, it has no compulsory duty to reduce GHG emissions under the existing international climate change regime, domestically it has undertaken a series of reduction efforts.

In June 2007 China published a long and perhaps the most significant document, the National Climate Change Programme. 34 Following this, China established the Leading Work Group on Climate Change Adaptation, Energy Saving and Emission Reduction, with Premier Wen Jiabao as its head. The group has the following responsibilities: (a) to study and work out important state strategy, policy and countermeasures in response to climate change, (b) to coordinate for solving big issues related to climate change, (c) to organise and carry out the policy made by the State Council on energy saving and emission reduction and (d) to unify and implement the energy saving and emission reduction work. 35 It held its first meeting on 9 July 2007 in Beijing, requesting its member units to strictly implement the programme (action plan) and the Work Programme on Comprehensive Energy Saving and Emission Reduction, and deliberated the documents on departmental division of labour in the implementation of these two programmes. 36 In response to international pressure, China emphasises the principle of 'common but differentiated responsibilities' embodied in the UNFCCC and the Kyoto Protocol. It was recently expounded by the Chinese Foreign Minister Yang that the basic principles embodied in the UNFCCC and the Kyoto Protocol, including the 'common but differentiated responsibilities', constitute the basis for climate change cooperation in the world community. As he said, the global climate change is caused mainly by long-term emissions in the past as well as the current high per capita emissions from the developed countries. Thus, after 2012 the developed countries should continue to bear the emission reduction obligation and to strengthen technology transfer to developing countries. Past GHG emissions from developing countries are not much, and their current emissions are survival emission and development emissions; thus, to adapt to the global climate change, they need to create and implement sustainable development strategy as well as participate in Clean Development Mechanism (CDM) cooperation. 37 It is unknown whether China would accept the compulsion to reduce GHG emission under the post-Kyoto regime, which is yet to be negotiated among the world community members.

As for China and ASEAN, climate change is a new area of cooperation. In November 2007, ASEAN issued a declaration to express the ASEAN concerted attitude towards the establishment of a new legal regime for global climate change by actively and constructively participating in ensuring a successful outcome of the negotiation on a comprehensive agreement. 38 Meanwhile, a declaration was issued on climate change by the participants of the third East Asian Summit, including ASEAN members, Australia, China, India, Japan, South Korea and New Zealand. 39 In the ASEAN Plus Three Cooperation Work Plan 2007-17, the ASEAN members, China, Japan and South Korea agreed to forge closer cooperation among themselves to 'mitigate and adapt to climate change' and strengthen cooperation 'in the development, transfer and diffusion of technologies to raise the capacity of ASEAN Plus Three countries to respond to climate change'. 40 

The CBD was adopted at the Rio Earth Summit on 5 June 1992 and came into force on 29 December 1993. Its objective is to conserve biological diversity, sustainably use its components, and fairly and equally share the benefits of the utilisation of genetic resources (Article 1). The convention requires state parties to follow its provisions, take necessary measures for biodiversity conservation and sustainable use, and cooperate among themselves to serve this purpose. The CBD contains provisions on dispute settlement first through negotiation, and then through mediation by a third party such as an international organisation. During ratification, state parties may declare to submit their disputes to arbitration or the International Court of Justice (ICJ). 41 The CBD accordingly establishes the procedures for arbitration and conciliation in its annexes. The mechanism is almost identical to the one under the UNFCCC. What is different is that the CBD does not have a comprehensive compliance regime and its protocol adopted in January 2000 deals only with biosafety, 42 one of the issues in the overall biodiversity field. The Strategic Plan for the Convention on Biological Diversity thus openly admits that there are legal and judicial impediments in implementing the convention. 43 As of June 2008, it had 191 state parties, while the Cartagena Protocol on Biosafety had 147 parties. All East Asian countries have acceded to the CBD (see Table 6 .2), but there is an impression that the capacity 'to address biodiversity loss and appropriate scientific manpower is generally low' 44 in East Asia, a region with rich biodiversity, including tropical and mangrove forests, wetlands and mountain ranges.

After joining the CBD, China prepared its national Biodiversity Conservation Action Plan in May 1994, 45 funded by the Global Environment Facility (GEF). As described by the CBD Secretariat, '[t]he overall objective of China's NBSAP is to undertake effective measures expeditiously to avoid further damage to the natural environment and resources in China and mitigate or reverse this serious situation. Specifically, the action plan has identified seven major objectives, including strengthening the fundamental studies of biodiversity; improving networks of protected areas; protecting wild species with biodiversity importance; protecting the genetic resources of crops and domesticated animals; in-situ conservation outside protected areas; establishing national networks of biodiversity monitoring and information; and coordinating between biodiversity conservation and sustainable development. Twenty-six priority activities and eighteen priority programmes have been identified, including assessment of status of biodiversity and its economic values; assessment of representativeness and effectiveness of protected areas and identifying needs for establishing new protected areas; identifying priority wild animals for protection based on their biodiversity importance and level of their risks to endangerment; mainstreaming biodiversity into national economic development plan; promoting ecofarming; establishing standardized monitoring techniques; and setting up model areas for well-coordinated biodiversity protection and sustainable development. China has also developed sectoral plans for conservation and sustainable use of agricultural, forest, marine and coastal and wetland biodiversity'. 46 In addition, China has taken measures to achieve its target by 2010 in accordance with the consensus reached in April 2002 by the CBD state parties 'to achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on Earth'. 47 However, in its action plan, China admitted that it 'is still in the primary stage of biodiversity conservation. It still faces many problems and difficulties, and has a long way to go to achieve effective conservation of its biodiversity'. 48 In addition to the efforts that individual ASEAN states make under the legal framework of the CBD, they conduct collective undertakings for biodiversity conservation and sustainable use of biological resources. For this, the ASEAN Centre for Biodiversity (ACB) was established in September 2005. It 'aims to create, promote, and develop links with the public, private sector, civil society, international development institutions, and donor community for the sustainable use of biodiversity'. 49 According to the ASEAN Declaration on Environmental Sustainability adopted in November 2007, the ACB will be promoted as 'a regional centre for biodiversity conservation and management' in East Asia. 50 In April 2008, environment officials from ASEAN member countries met to identify the core concerns and issues of biodiversity conservation, which will serve as a basis for ACB's long-term frame of action. 51 In respect of China-ASEAN cooperation, the Singapore Declaration on Climate Change, Energy and the Environment adopted in 2007 at the 13th ASEAN Summit mentions the protection of biodiversity, and conservation and sustainable management of coastal and marine ecosystems. 52 In the ASEAN Plus Three Cooperation Work Plan 2007-17, the ASEAN members, China, Japan and South Korea agreed to forge closer cooperation among themselves in the area of biodiversity and natural heritage conservation. 53 In addition, a biodiversity conservation corridor has been established in the GMS as discussed in Chapter 5.

With regard to particular regional environmental issues in the context of China-ASEAN relations, two important cases are worth addressing: the haze pollution in Southeast Asia and the marine environment protection and marine pollution prevention and control in East Asia.

The Indonesian haze is an annual phenomenon caused mainly by the burning of forests and bushes for cultivation -a traditional slash-andburn method of farming -particularly in the localities of Kalimantan and Sumatra. The haze causes serious harm to human life and health. 54 The most serious consequences of the haze occurred in 1997, which was depicted as 'an environmental disaster'. 55 During the 1997 fires, the Pollution Standard Index (PSI) in the worst affected areas frequently went over the 300 mark (graded as hazardous for human health), and peaked sometimes to 650 PSI. 56 The haze became transboundary and spread to Malaysia, Singapore and to parts of Brunei, the Philippines and Thailand.

Some arrangements have been made to fight haze after it triggered the signing of the MOU between Indonesia and Malaysia in December 1997 for joint operations to deal with disasters that affect both countries, including the haze problem. 57 In the same year, Malaysia, Indonesia, Singapore and Brunei agreed to step up their efforts to control ground and forest fires under the auspices of the ASEAN Task Force on transboundary haze pollution. In addition, Malaysia and Singapore agreed to share the cost of providing water bombers to Indonesia. 58 However, such bilateral and multilateral efforts were not effective enough to curb transboundary haze pollution. To maintain a good neighbourhood policy and the spirit of the 'ASEAN way', governments of Malaysia and Singapore, the two most affected neighbours, did not publicly complain to Indonesia, nor did they claim any legal rights against Indonesia or pursue any legal approaches to seek compensation. 59 When another serious haze pollution occurred in October 2002, Malaysia simply asked Indonesia to take tougher measures to contain fires caused due to land clearing and slash-and-burn farming. 60 The ineffectiveness of the multilateral cooperation finally invited the involvement of the ASEAN. In December 1997, the ASEAN Environment Ministers agreed on a Regional Haze Action Plan, which sets out cooperative measures needed by ASEAN member countries to address the problem of smoke haze arising from land and forest fires. 61 The primary objectives of the plan are: 'to prevent land and forest fires through better management policies and enforcement; to establish operational mechanisms to monitor land and forest fires; and to strengthen regional land and forest fire-fighting capability and other mitigating measures'. 62 Regional monitoring mechanisms should be established. The Haze Technical Task Force established under the plan meets monthly to review the progress of the plan, and the ASEAN Environment Ministers meet regularly to provide guidance in this respect. Since the plan is simply within the domain of 'soft law' without legal binding force, it cannot alone provide an adequate mechanism to combat haze pollution. Therefore, the ASEAN members have made big strides for a regional treaty.

The ASEAN Agreement on Transboundary Haze Pollution was officially signed in Kuala Lumpur on 10 June 2002. 63 The agreement defines 'haze pollution' as 'smoke resulting from land/or forest fire which causes deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment'. 64 In accordance, the 'transboundary haze pollution' refers to 'haze pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one Member State and which is transported into the area under the jurisdiction of another Member State'. 65 The purpose of the agreement is to prevent and monitor any pollution which can be mitigated through concerted national efforts and intensified regional and international cooperation. The parties should take the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment or harm to human health in other states or in areas beyond the limits of national jurisdiction. They should take precautionary measures to minimise the adverse effects of haze pollution. 66 The cooperative efforts are reflected in the establishment of the ASEAN Coordinating Centre for Transboundary Haze Pollution Control, which provides assistance when a national authority declares an emergency situation. The centre maintains regular contact with the respective National Monitoring Centers maintaining data on fires and resultant haze. 67 The parties agree to resolve any dispute resulting from the implementation of the agreement through 'consultation or negotiation'. 68 The agreement does not contain any third-party settlement procedure. This again reflects the traditional 'ASEAN way' of not interfering with domestic affairs of a member state; instead it emphasises harmony and shuns conflict. 69 Resorting to a third-party mechanism might be considered unfriendly by some member states. A similar regional treaty on air pollution -Article 13 of the Convention on Long-Range Transboundary Air Pollution -concluded among the European States in 1979 contains the same provision of 'negotiation' as a major means to settle disputes. 70 Yet it differs from the ASEAN agreement in that the parties can seek a solution 'by any other method of dispute settlement acceptable to the parties to the dispute'. That is to say, the means of dispute settlement are not limited only to 'negotiation or consultation'.

The conclusion of the anti-haze agreement has further strengthened the capacity to fight haze pollution in Southeast Asia, though the actual effect could be seen after 25 November 2003 when the agreement was enforced. Another significance of the agreement lies in the fact that for the first time, the problem was put under a regional legal framework, which prevents its exacerbation to an ostensible dispute. Although haze pollution does not seriously affect the environment of China and Northeast Asia, the ASEAN Plus Three Cooperation Work Plan 2007-17 lists 'transboundary haze pollution' as one of the cooperative areas. 71 

As we know, all the seas in East Asia can be categorised as 'semi-enclosed seas' under the 1982 United Nations Convention on the Law of the Sea (LOS Convention). All the coastal states bordering a particular sea are thus required 'to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment'. 72 Some kind of regional arrangement seems necessary in this regard. Regional cooperation and institutions for marine environment protection are not new in state practice. Under the sponsorship of the UNEP, several regional arrangements have been made for different sea areas throughout the world: the Wider Caribbean Region, the Southeast Pacific Region, the Mediterranean Region, the West and Central African Region, the Red Sea and Gulf of Aden Region, the Kuwait Action Plan Region, the Eastern African Region, the South Asian Seas Region, the South Pacific Region and the Black Sea Region. 73 All of these bear some common characteristics; for example they were sponsored by the UNEP; they have an action plan as well as a treaty.

In 1989, the UNEP Governing Council designated the Northwest Pacific (NOWPAP) as a new area where first a regional action plan and later a regional sea treaty needed to be developed. The geographical coverage includes the marine environment and coastal zones of China, North Korea, South Korea, Japan and Russia. Interested countries around the Northwest Pacific sent their representatives to attend the initial contact meeting held in Nairobi shortly thereafter. 74 Subsequent developments showed that establishing a regional programme in East Asia was not as easy as in other regions. The main culprit could be abnormal political relations among the coastal states of the East Asian region. 75 The tension in the Korean Peninsula and the Taiwan issue are obstacles for smooth regional cooperation for marine environment protection. For example, when the first meeting of National Focal Points and experts convened in Vladivostok in October 1991, North Korea did not send its representative. 76 In 1994 the action plan was finally adopted with five objectives: monitoring and assessing environment conditions, creating an efficient and effective information base, integrating coastal area planning, integrating coastal area management and establishing a collaborative and cooperative framework. 77 To implement the action plan, a number of projects have been designed and carried out in parallel by national institutions with the support of relevant regional and international organisations. In the case of multiple projects, the scattered nature of various activities, as well as the wide scope of input possible from both within and outside the region, necessitates the establishment of a network of participating institutions coordinated by regional activity centres. Besides, a Regional Coordination Unit (RCU) needed to be established to ensure integrated and well-managed execution from within the region of the projects under the action plan. For the meantime, the member governments had designated the UNEP as the organisation responsible for the coordination for implementing the action plan. 78 The RCU was finally established in 2000 and was co-hosted by Japan and South Korea. It served as a nerve centre and command post for executing the action plan. Two RCU offices started their operations in January 2005. A network of regional activity centres was established for the implementation of the action plan. China hosts the Data and Information Network Regional Activity Center located in Beijing. 79 In October 2004, a significant legal achievement was made with the signing of the MOU on Regional Cooperation Regarding Preparedness and Response to Oil Spills in the Marine Environment of the Northwest Pacific Region. 80 However, no formal treaty has been negotiated among the states concerned as other regional seas programmes managed under the UNEP.

Another regional marine environmental programme involving both ASEAN members and China is the Regional Programme on Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) jointly sponsored by the International Maritime Organization (IMO), the United Nations Development Programme (UNDP), the Global Environmental Facility (GEF) and the World Bank. It was implemented in 1994 with a mission 'to build interagency, intersectoral, and intergovernmental partnerships for achieving the sustainable development of the Seas of East Asia'. 81 Its official partners include Cambodia, China, Indonesia, Japan, Laos, North Korea, the Philippines, Singapore, South Korea, Timor-Leste and Vietnam. Other ASEAN countries such as Brunei, Malaysia and Thailand also participate in activities sponsored by the PEMSEA. Its geographical coverage is thus broader than that of the NOWPAP. Its overall objective is to support the efforts of the participating countries in the prevention and management of marine pollution at both the national and sub-regional levels on a long-term and self-reliant basis. 82 In order to institutionalise integrated coastal management (ICM), the regional program established two sites for demonstrating the application of ICM: one is in Xiamen, China, and another in Batangas Bay, the Philippines. Similar sites were set up subsequently in Cambodia, Indonesia, North Korea and Vietnam. Another kind of demonstration site for sub-regional sea areas and pollution hot spots were also established in China (Bohai Sea), the Philippines (Manila Bay), Malaysia/Singapore (Malacca Straits) and Thailand (Gulf of Thailand). 83 The programme launched the Marine Pollution Monitoring and Information Management Network to help build linkages with participating countries to notify each other of the status of the marine environment in the East Asian seas (EAS). The programme has four operating mechanisms: the EAS Congress, the EAS Partnership Council, the PEMSEA Resource Facility and the Regional Partnership Fund. 84 In parallel to the PEMSEA, there is another programme for EAS managed by the UNEP -the 'Coordinating Body on the Seas of East Asia' (COBSEA), which was established in 1994 with 10 member states, namely Australia, Cambodia, China, Indonesia, Malaysia, the Philippines, the Republic of Korea, Singapore, Thailand and Vietnam. 86 According to the 1994 action plan, it is designed to assess the effects of human activities on the marine environment; to control coastal pollution; to protect mangroves, seagrasses and coral reefs; and to manage wastes. 87 Its current activities focus on three areas: marine and landbased pollution, coastal and marine habitat conservation, and management and response to coastal disasters following the New Strategic Direction of COBSEA (2008-12) adopted in January 2008. 88 It should be noted that the implementation of these three regional programmes depends solely on the willingness and good faith of the participating states, since there is no general legal document binding the states, and not all ASEAN members have joined them. But the existence of these programmes per se can in fact avoid and even prevent environmental disputes resulting from marine pollution and conflicting uses of marine resources. Unlike a regional organisation such as ASEAN, the marine programmes involve cooperation and coordination of international organisations such as the UNEP as well as states of East Asia. The China-ASEAN cooperation for the marine environment protection is mainly undertaken under these regional programmes. Therefore, in the ASEAN Plus Three Cooperation Work Plan 2007-17, the ASEAN members, China, Japan and South Korea identified coast and marine environment as one of the areas that needed their cooperation. 89 

After the Asian tsunami disaster, China and ASEAN adopted a plan of action in January 2005 to formulate a Technology Platform for Earthquake-Generated Tsunami Warning System. 90 It urges to establish a tsunami warning system for the Indian Ocean and the Southeast Asian region, to establish an Asian Regional Seismographic Network (ARSN) and to enhance capacity building and Asian confidence on disaster reduction. China agreed to provide 'the parameters of destructive earthquake events (such as magnitude, location, focal mechanism, etc.) occurring in the ASEAN and South Asia regions to the interested countries and parties as soon as these events are detected by the China National Seismic Network'. 91

Black's Law Dictionary defines a dispute as 'a conflict or controversy, esp[ecially] one that has given rise to a particular lawsuit'. 92 Environmental disputes involve environmental elements. Cesare Romano once discussed the definition of international environmental disputes in considerable length. 93 Peter Sand divides environmental disputes into two major categories: one over reciprocal obligations and one over collective obligations. According to him, the former refers to environmental disputes that occur 'between specific victims (e.g. of pollution) and specific villains (e.g. polluters)' and the latter refers to those which 'owed to the international community or to humankind as a whole'. 94 From this categorisation, it is understood that there are two kinds of disputes: one between/among states and another with global implications. However, some disputes that are not directly related to the environment also have environmental implications. The most notorious example in East Asia is the dispute over the Spratly Islands in the South China Sea, which can be defined as a territorial dispute and/or subsequent maritime boundary dispute. But it has caused a chaotic situation regarding marine resource uses and marine environment protection.

International law has a number of mechanisms for avoiding and settling environmental disputes, including such political means as negotiation and consultation, mediation and good offices, conciliation and investigation, and such judicial means as arbitration and international adjudication. Most of them are listed in the UN Charter. 95 In addition, international organisations, whether universal or regional, have played an active role in dispute avoidance and settlement. However, for avoiding and settling environmental disputes, judicial settlement is the most effective.

Judicial settlement refers to the settlement made by the international judiciary that mainly comprises the ICJ and the International Tribunal for the Law of the Sea (ITLOS). In view of recent developments in the field of environmental law and protection, the ICJ, in July 1993, decided to establish the Chamber for Environmental Matters. The chamber at present has seven members. 96 Among the cases the ICJ has handled, some are directly related to environmental disputes. The most salient case probably is the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), which was submitted by the concerned parties in 1993. The final decision of the court was made in 1997. 97 The ITLOS was established in October 1996 in Hamburg, Germany, under the framework of the LOS Convention. It has jurisdiction over any dispute that is submitted to it concerning the interpretation or application of the LOS Convention and the agreement relating to the implementation of Part XI of the convention. In addition, it can adjudicate cases submitted by parties to other international treaties, if such treaties allow it to do so. 98 ITLOS has established two special chambers to deal with marine environmental disputes within the tribunal: the Chamber for Fisheries Disputes, which deals with disputes concerning the conservation and management of marine living resources, which parties may agree to submit, and the Chamber for Marine Environment Disputes, which deals with disputes relating to the protection and preservation of the marine environment, which parties may agree to submit. Each chamber consists of seven members. The ITLOS has dealt with a number of cases and some of them are particularly related to marine environment protection, such as the case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) and the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan)(Provisional Measures). 99 As discussed in Chapter 2, China prefers bilateral negotiation and consultation for dispute settlement between states. After the 1980s, China has consented to arbitration in treaties it concluded and acceded to, but confined it only to economic, trade, scientific, transport, environment and health areas. In this context, there should be no problem for China to submit environmental disputes for arbitration, though in practice China has to evaluate whether such a submission would endanger its national interest and sovereignty, and other factors that might not be in its favour. China's hesitation in this respect can be seen in its attitude towards the dispute settlement mechanism set forth in the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses. During the negotiations, China expressed its concerns over any arrangement for compulsory mechanism. The Chinese representative stated that 'China was not opposed to binding procedures, only to the adoption of such procedures without the consent of the parties'. 100 This means that China will not accept any compulsory mechanism. China's attitude towards the role of international courts in dispute settlement is even more passive. It has usually made a reservation about the clause of judicial settlement by the ICJ in the treaties to which it is a party.

The case of Sovereignty over Pulau Litigan and Pulau Sipadan (Malaysia/Indonesia) (1998) (1999) (2000) (2001) (2002) before the ICJ, which concerns territorial disputes, has some implications for environmental law developments. In the judgement on Sovereignty over Pulau Litigan and Pulau Sipadan, ICJ granted the disputed islands to Malaysia. The court, when addressing the issue of effectivités, confirmed the validity of Malaysia's regulations concerning the control of collecting turtle eggs and the establishment of a bird reserve and regarded them as 'regulatory and administrative assertions of authority over territory which is specified by name'. 101 The recognition of domestic environmental legislations by the ICJ as evidences of effective occupation of a certain territory will inspire the individual states to pay more regard to this category of laws and, in turn, strengthen environment protection in reality.

Another case which is directly caused by environmental concerns is the Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore). The case was first submitted to the ITLOS in September 2003 by Malaysia requesting the tribunal to prescribe provisional measures to stop Singapore's land reclamation activities in the vicinity of the maritime boundary between the two states or of areas claimed as territorial waters by Malaysia pending the decision of the arbitral tribunal. 102 In this case, the tribunal reiterated its statement expressed in the Case of MOX Plant that 'the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law'. 103 The tribunal issued an order prescribing that Malaysia and Singapore should cooperate to establish a group of independent experts to study and prepare an interim report on the subject matter, directing that Singapore should not 'conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, taking especially into account the reports of the group of independent experts' and deciding that 'Malaysia and Singapore shall each submit the initial report referred to in article 95, paragraph 1, of the Rules, not later than 9 January 2004 to this Tribunal and to the Annex VII arbitral tribunal, unless the arbitral tribunal decides otherwise'. 104 Following the Order of the ITLOS, the two sides jointly established a group of experts who submitted their final report to the two sides on 5 November 2004. Based on the report, the two sides reached an agreement for resolving the dispute on 26 April 2005. Both sides agreed to terminate the case by several arrangements, including Singapore's modification of its final design of the shoreline of its land reclamation, its compensation to the affected Malaysia fishermen, and the discussion and monitoring of the environmental impacts in the Straits of Johor by the Malaysia-Singapore Joint Committee on the Environment (MSJCE). 105 Generally speaking, judicial organs are under-used in settling environmental disputes not only in East Asia, but also in the rest of the world. Because of this, in recent years legal experts have begun to discuss how the role of judicial organs could be strengthened. In May 2003, judges and legal experts from around the world met in Rome, Italy, to advance the implementation of the World Summit on Sustainable Development's Johannesburg Plan of Implementation, as it relates to the role of the judiciary in achieving sustainable development. The meeting also centred around the UNEP Global Judicial Symposium and on furthering the recommendations made at the IUCN/UNEP European Judges Symposium held in London in October 2002. Specific outcomes included the first meeting of the European Judges Forum and the IUCN Commission on Environmental Law Judicial Specialist Group and further support for the IUCN/UNEP Judicial Portal and consideration of the content of the UNEP Judges Handbook. 106 Experiences of individual states in resolving environmental disputes are sometimes a decisive factor for Asian countries to accept or refuse third-party settlement mechanisms including adjudication. The dispute between Malaysia and Singapore over Pedra Branca illustrates this. Inspired by its victory in the case of Sovereignty over Pulau Litigan and Pulau Sipadan, Malaysia quickly signed a special agreement with Singapore to submit the Pedra Branca dispute to ICJ, confidently thinking that it would win again. Before submitting a dispute to a certain settlement institution, states will evaluate the degree of chances of its winning. If Asian states can benefit from international dispute settlement mechanisms, their confidence will grow and they will be more likely to use them. As one scholar puts it, 'where states involved in a transboundary environmental dispute perceive there to be an objective institution capable of competently applying the principles and rules of international law to their dispute, those states may be more inclined to use international law to promote a resolution of that dispute. Although the existence of an adequate international dispute resolution mechanism is not necessarily sufficient to lead to the resolution of a transboundary environmental dispute, its existence substantially enhances the utilisation of international law, and its absence lessens the chances of the proper application of international law'. 107 Thus, legal control of environmental disputes in East Asia is not only concerned with East Asian countries, but also with the whole world community. It would be a positive sign if other members of the world community could encourage and support Asian states to use international mechanisms.

Although environmental disputes do not happen very often in East Asia, there is a tendency for increasing number of environment-related trade/commercial disputes in the region. In recent years, trade disputes between China and developed countries often involve trade-related environmental measures (TREMs), which are regarded as 'green protection' for import countries and 'green barrier' for export countries. Ostensibly, some of the trade disputes between China and Japan arose from the tough enforcement of domestic environmental regulations. It is perceived that many of such disputes may be settled under the framework of the WTO mechanisms. As is reported, one of the major reasons for China to enter into the WTO is to settle its disputes (including those related to the environment) with other countries under the WTO settlement system so as to avoid trade sanctions. 108 ASEAN developing countries may face the same problem.

Environment protection is critical for the survival of human beings. In this respect, international law is indispensable for the effective implementation of any environmental regimes and for carrying out any international environmental cooperation. Although environment protection was not a priority in the early stage of China-ASEAN cooperation, the two sides have realised its ever-increasing importance and made it one of the priorities in their current and future cooperation. It is perceived that the bilateral cooperation in this area will be strengthened with the development of the China-ASEAN relations.

As a final note, it should be pointed out that apart from global responsibilities, regional and sub-regional cooperative activities, bilateral cooperation between China and individual ASEAN states in the field of environment protection cannot be ignored.

Paragraph 2 of this Article, the commission shall consider the emergent situation and shall decide on any measure it deems appropriate to cope with the situation, including the submission of the matter to the IAEA and, where the situation might endanger international peace and security, the Security Council and the General Assembly of the United Nations. In the event of breach of the protocol attached to this treaty by a state party, the Executive Committee shall convene a special meeting of the commission to decide on appropriate measures to be taken 

The State of the Environment in Asia

Challenges to the East Asian Environment

Though the real cause of SARS is not yet known, it has probably two main causes: human-produced chemical pollutants that may lead to its creation and/or human behaviour of eating animals that may carry such virus and spread it to human beings. For details, see Li Hao

Relations and International Law 4. Asian Development Bank, Emerging Asia: Changes and Challenges

For relevant references, see

For reference, see Chapter

Database on the Cooperation Progressing in the ASEAN Plus Three and ASEAN Plus One Cooperation Frameworks

Chairman's Statement of the 11th ASEAN-China Summit

Article 1 of the agreement

ASEAN Vision 2020

For details, see 'Working Groups on Environment

South East Asian Forest Fires: Haze over ASEAN and International Environmental Law

International Environmental Law in the Asia Pacific

with the Annex that there is a breach of this treaty by a state party, that state party shall, within a reasonable time, take all steps necessary to bring itself in full compliance with this treaty and shall promptly inform the Executive Committee of the action taken or proposed to be taken by it. Where a state party fails or refuses to comply with the provisions of Paragraph 1 of this article, the Executive Committee shall request the commission to convene a meeting in accordance with the provisions of Paragraph 3(e) of Article 9

Convention Bodies

Issues in the Negotiation Process: Compliance Under the Kyoto Protocol

Singapore's Climate Change Policy: The Limits of Learning

Chinese CO 2 Emissions in Perspective: Intercomparison of CO 2 Emissions of Countries and Burden Sharing of Emission Reductions

Climate Change Info Mailing List'climate-I@lists.iisd.ca

For reference on the principle of 'common but differentiated responsibilities', see Anita M. Halvorssen, 'Climate Change Regime -Amending the Kyoto Protocol to Include Annex C and the Annex D Mitigation Fund

'ASEAN Declaration on the 13th Session of the Conference of Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC) and the 3rd Session of the Conference of the Parties Serving as the Meeting of the Parties (CMP) to the Kyoto Protocol

Singapore Declaration on Climate Change, Energy and the Environment

ASEAN Plus Three Cooperation Work Plan

Article 27 of the CBD

Decision VI/26

MEAs and Non-Binding Agreements

China's Biodiversity Conservation Action Plan, p. iii. 49

ASEAN Declaration on Environmental Sustainability

ASEAN to Develop Long-Term Strategic Plan to Save Biodiversity

The Singapore Declaration on Climate Change, Energy and the Environment

ASEAN Plus Three Cooperation Work Plan

Haze pollution can be said to be 'transboundary' if its density and extent are so great at source that it remains at measurable levels after crossing into another country's air space

Between 800,000 and 1.7 million hectares of forests and bushes in the Indonesian islands of Sumatra and Kalimantan were burnt. See Tay, supra note 16

Jakarta to sign MOU on Handling Disasters', Straits Times

Nations Agree to Share Costs in Controlling Haze

Indonesian Forest Fire Haze Covers Singapore and Malaysia

The functions of the ASEAN Centre are stipulated in the Annex to the Agreement: Terms of Reference of the ASEAN Coordinating Centre for Transboundary Haze Pollution Control

Article 27 of the agreement

The Haze over Southeast Asia

ASEAN Plus Three Cooperation Work Plan

LOS Convention, in United Nations, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index

For reference, see Peter H. Sand, Marine Environment Law in the United Nations Environment Programme

We Are 12, The Siren (UNEP's Oceans and Coastal Area Program

Exploring Maritime Co-operation in

East Asia and the Law of the Sea

Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region

Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region

For details

PEMSEA at a Glance

Fighting Pollution in the East Asian Seas

For details

EAS Partnership Operating Arrangements

The Action Plan for the Protection and Sustainable Development of the Marine and Coastal Areas of the East Asian Region

For details, see 'Current Activities

ASEAN Plus Three Cooperation Work Plan

Action Plan to Formulate a Technology Platform for Earthquake-Generated Tsunami Warning System

The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach

Transnational Environmental Law: Lessons in Global Change

Article 33, paragraph 1 of the UN Charter

International Court of Justice

For relevant literature, see Paul R. Williams, 'International Environmental Dispute Resolution: The Dispute Between Slovakia and Hungary Concerning Construction of the Gabcíkovo and Nagymaros Dams

Recent Trends in International Water Law Dispute Settlement

Singapore's land area increased from 581 km 2 in 1966 to 695 km 2 in 2003. See Kog Yue-Choong, 'Environmental Management and Conflict in Southeast Asia: Land Reclamation and Its Political Impact

Order on the Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore): Request for Provisional Measures

Order on the Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore): Request for Provisional Measures, ibid

Case Concerning Land Reclamation by Singapore in and around the Straits of Johor

International Law and the Resolution of Central and East European Transboundary Environmental Disputes

Settlement of Disputes over TREMs in the WTO, and Environmental Challenges to China's Foreign Trade