protection of wildlife and endangered species in China, The
Watters, Lawrence
Law is chameleon-like. It varies from place to place, and only those who know it well can tame it.1
(Gola proverb, from Liberia)
I. INTRODUCTION
In 1972, Chairman Zhou Enlai sent a delegation from China to the Stockholm Conference, marking a turning point in the country’s relationship to the environment2 as well as a growing awareness of the links between development, nature and the well-being of society.3 In a fundamental shift in policy over the next decade, the government recognized and supported new initiatives that reflected the elaboration of a comprehensive approach to the environment and to the management of natural resources.4
While urgent attention was directed to pressing needs concerning air and water quality, waste and other priorities, the government also moved on several fronts to address wildlife.5 This article considers those efforts, examining the legal framework for wildlife and endangered species protection and placing it in a larger context within the environmental law of China. These issues are important, not only in terms of wildlife law, but also in the larger discourse on the respective roles of national and international environmental law, especially the imperative for cooperation and reciprocity between states, and the implementation of law as more than a set of commands but rather, a framework for mutuality.
After a brief overview of wildlife in general in Part II, the architecture of China’s wildlife law is considered in Part III, including related legislation. Part IV addresses international environmental standards by examining existing obligations and then, in light of the importance of endangered species, discusses new approaches to protection. Part V considers several contemporary issues relating to endangered species, using a more empirical analysis, and concludes with the larger context of the convergence of national and international environmental law in protecting wildlife and the interdependence of states in the new millennia. The analysis suggests that with wildlife and endangered species, the traditional dichotomy between international authority and sovereignty is less important, as states have the opportunity to work more closely together to enhance mutual interests.
II. WILDLIFE AND ENDANGERED SPECIES: AN OVERVIEW
A. THE STATUS OF WILDLIFE AND ENDANGERED SPECIES
1. Diversity
China is the third largest country in the world, with the greatest population. The diversity of its topography and climate is reflected in its animals and plants. China’s biodiversity ranks eighth in the world and first in the northern hemisphere.6 An estimated 10%70 of the world’s plant species are found within its vast expanse.7 At the same time, 10%Io of the world’s terrestrial vertebrates are found in China, comprising 2,091 of all known species.8 Of these, about one hundred species are either unique to the country or found primarily within its borders.9 These include panda bears, the golden-haired monkey and the Yangtze River alligator.10 If invertebrates are included as well, there are in excess of one million species.11
2. Significance
In absolute terms, the amount of resources in China is one of the highest in the world, while in per capita terms they are relatively scarce given the large population.12 Since mountains make up over 65% of the country’s surface, only about one-third of the land is suitable for cultivation or use. While China’s territory is comparable to the size of Europe and the United States combined, its population density is much greater. Within this geographic context, there is comparatively less habitat for wildlife, and existing habitats are also impacted by economic and cultural forces, including development, population growth and trade.
Endangered species are especially at risk. For example, three native Chinese species are among the ten most endangered in the world: the panda, the Siberian tiger and the Asiatic black bear.13 Other endangered species include the black rhinoceros (with a 95% drop in population since 1979 and perhaps only 2,000 remaining), the Indo-Chinese tiger (with estimates that only 50 to 500 or so remain, and with two of the four native Chinese tiger species already extinct), the white flag dolphin, the crested ibis and certain kinds of Mongolian horses.14
While endangered species are faced with an onslaught of threats, and particularly the demand for animals in a worldwide illicit trade second only to drugs,15 the most significant cause of species extinction and destruction is loss of habitat.16 Expansion, development and growth contribute to eliminating nature’s prerequisites for biodiversity. In this way, the protection of endangered species requires consideration of, among other factors, pollution control, environmentally conscious land use planning and forest practices, fisheries protection and waste disposal. Similarly, transportation, capital projects and investment decisions play an important role. The integration of these elements is required in order to fashion a comprehensive approach to habitat protection and, thus, species preservation.17 The challenge of management and resource allocation is an imperative in China just as it is in countries in Europe, North America and around the world. In this process, law has a crucial role.
In a larger sense, wildlife and endangered species protection in China provides a window for observing constraints on national and international environmental law. The difficulties related to comprehensive management and effective protection for wildlife and endangered species are closely related to larger questions of human behavior,18 culture,19 the quest for sustainable development, and even the limits of law itself.20 The point of departure in this discourse is, in many ways, not so much the discovery of new law, but rather implementing and adapting the law to the conditions presented.21
B. EARLY PROTECTION EFFORTS
From many centuries past, as far back as the twenty-sixth century B.C., there were restrictions in China relating to forests, mountains, rivers and lakes at certain times of the year.22 Disposal of waste on public roads resulted in punishment.23 Excessive consumption of water in early spring violated the law as well.24 Protecting the basis for agriculture was early recognition of ecology in an agrarian system.25
Legislation existed in the Qin Code (circa 359 to 206 B.C.) to prohibit logging of forests in the spring and limit the burning of grassland.26 Taking fish and removing timber in violation of the law were also criminal offenses from the time of the Tang Code (619 to 907 A.D.) through to the Qing Code (1740).27 While the extent to which these laws were enforced is uncertain, they indicate an understanding of nature and man’s impact on it,28
As early as 1950, the State Council promulgated regulations on the Protection of Rare Animals and Plants.29 Similar to a number of other legal systems, the modern approach to wildlife protection emerged in the 1970’s in the years following the Stockholm Declaration.30 The Declaration in 1972 emphasized the fundamental right to “conditions of life in an environment of a quality that permits a life of dignity and well-being.”31 Industrialized and developing nations joined together to address the human family with a bold emphasis on a healthy and productive environment.32
III. WILDLIFE, ENDANGERED SPECIES AND THE LEGISLATIVE FRAMEWORK
Since 1980, China has adopted a series of important statutes, local laws and regulations for the protection of the environment. This includes twelve national statutes and twenty national administrative regulations,33 as well as 260 standards34 and 600 local laws.35 The statutes that directly address wildlife are examined first, followed by related legislation that makes up an important part of the framework and the prospects for an integrated approach to management and protection.
A. NATURE RESERVES
A significant response of the government to the necessity for wildlife and endangered species habitat is the creation of nature reserves. China initially established fifty-six national nature reserves36 and then, by 1991, increased the number to 708, covering 5.5% of its territory.37 This includes six reserves with special characteristics, designated by UNESCO as World Heritage Sites.38 An increase in the number of nature reserves is underway, as officials realize the amount in the past was “fairly small for such a large country.”39 In its Agenda 21 Plan, the government envisions one thousand interconnected reserves.40
The reserves are classified as national, provincial or local.41 They are established to achieve a variety of objectives.42 Some are designed to focus on specific endangered species like the panda, the Hainan eld’s deer or the red-crowned crane.43 Others are created to protect sensitive ecosystems or endemic plant communities.44 There are also marine nature reserves for aquatic animals and plants.
The process of creating the reserves highlighted the need for planning, including organization and administration, qualified management, a legal framework, enforcement, a strategy to address damage to reserves and more emphasis on scientific research.45 The government recognized that the benefits of reserves included ecological considerations and the well-being of future generations.46 The legal framework for the regulation of nature reserves was initially dependent on the application of existing laws. These included the Environmental Protection Law,47 the Marine Environment Protection Law,48 the Grasslands Law49 and the Forestry Law,50 as well as “Administrative Measures for Forest and Wild Animal Nature Reserves.”51 Under the legislation, nature reserves are subject to use only in a manner that serves the long-term interests of the state.52 The laws prohibit taking timber from forests in nature reserves; any form of exploitation or use that causes damage to the reserves; and hunting, fishing, cultivation, collecting wild plants, grazing, mining and withdrawing water, along with the removal of sand and stone.53 Further measures are required to prevent fires, plant diseases and insect pests.54
The laws also bar any activity or enterprise that causes pollution in a reserve.55 Those that existed prior to the legislation are subject to limits. Relocation to a new site is allowed or, using an interesting approach to amortization, closure is required within a specified period of time.56 Administrative measures for the additional regulation of reserves and any new provisions require review by the State Council for consideration and approval.57 In the past, tasks related to regulation languished due to lack of staff, training and resources, but more recent plans address these problems, as well as the necessity for strengthening the implementation of the law.58 For example, anyone causing damage to a nature reserve is subject to severe criminal sanctions.59
B. NATIONAL PARKS
Another means of preserving habitat for wildlife and endangered species is through the establishment of national parks. National parks were first created in the early 1980’s.60 In contrast to nature reserves, which generally offer stricter protection, while scenic areas and historic sites provide for more varied use, national parks are an intermediate form of conservation.61 They are created for research and recreation as well as for conservation, as in Europe and the United States.62 While lightly regulated in the beginning, national parks are now subject to more comprehensive control.63
C. WILD ANIMALS PROTECTION LAWS
1. Framework
Wildlife conservation in China is focused on three primary goals: (1) saving endangered species and increasing their population; (2) recovering endemic species which were exterminated in China but survive elsewhere; and (3) protecting faunal habitat where many rare and precious species exist.64 Prior to the 1960’s, the Chinese government permitted the hunting of any animal.65 The first list of “Rare and Precious Species of China” was drawn up by the Forestry Administration (previously called the Department of Forestry) in 1969, followed by regulations regarding the protection of wildlife resources in 1973.66 Many species in need of protection were identified and listed with revisions to the document in 1977.67 Additional species were included two years later “because of alarming declines by the late 1970’s.”68
The precursor to legislation came in 1983. The State Council promulgated the Circular on the Stringent Protection of Endangered Wildlife.69 This document provides that “wildlife is a precious resource in China” that for many reasons has “faced the danger of extinction,”70 and protecting rare wildlife was declared a duty of every citizen. The State Council required strict action by the government at the provincial and local levels and ordained other management measures, emphasizing the role of education and scientific research.
The Wildlife Circular establishes a ban on hunting, buying, selling and trafficking in endangered species, stressing investigation and punishment for illegal activities. The export of rare wildlife and wildlife products was further prohibited, and the only exceptions were those approved with a special permit from the Office for the Management of Import and Export of Endangered Species. Further, the Circular provides that “all economic activities that affect the breeding and survival of endangered wildlife in their main nesting areas should be banned.”71
In this way, the Circular acknowledges the difficulties presented by the regulation of endangered species, emphasizing in forceful language the issues touching the role of government, the duty of citizens, the conduct proscribed and most importantly, illegal trade and export, which poses one of the gravest threats to protection efforts. The government’s policy reflects a growing realization that wildlife is a special area of resource protection. In contrast to pollution, urbanization and growth, wildlife conservation is also closely intertwined with forces outside the country, where a market exists and pressure exists for obtaining endangered species and parts derived from them.72
In 1988, the National People’s Congress (NPC) adopted the Wild Animals Protection Law focusing on all aspects of protection and use.73 Major regulatory measures of the law include the definition of wild animals,74 a provision on the ownership of wild animal resource75 and requirements for lists of protected wild animals.76 The statute addresses wild animal reserves,77 hunting,78 domestication permits,79 the sale, purchase, and transport of state-protected wild animals80 and wild animal products81 as well as transportation,82 and the import and export of state-protected wild animals.83 Under this legislation, all wild animals are owned by the state. Important regulatory roles are authorized for the Forestry Administration and the Fishery Department of the State Council.84 Both agencies have nationwide responsibility for management, which is shared with local governments.85
The law gives priority to the protection of rare and nearly extinct wild animals. They are divided into categories, with management of the first class of species by the national government and the second class by the provincial government.86 Wild animals deemed the most endangered are specifically listed in the first class, with the remainder in the second class.87 Hunting and killing animals on this “national priority list” is prohibited.88 Buying and selling them is also illegal and this includes portions of the animals.89 Any special exception for trade in an animal in the first class requires approval from the State Council.90 A similar exception for an animal in the second class requires approval from the provincial government.91 In addition, provincial, autonomous regions or municipal governments directly controlled by the central government may also draw up additional lists of animals designated for protection.92
In some instances, the law provides for the prospect of domestication and breeding of rare wild animals.93 This is subject to licensing requirements, which allow designated purchasers to sell the animals.94 Those engaged in the trading of animals pursuant to a license are taxed.95
2. Administration
While environmental law and policy are generally implemented in China by the State Environmental Protection Administration (SEPA) (formerly known as the National Environmental Protection Agency), wildlife protection is administered primarily by the Forestry Administration. The Bureau of Wildlife Conservation is responsible for policies and guidelines for wildlife conservation and management as well as for the administration of the nature reserves. At the level of the province, county and municipality, a department of forestry office or special branch of wildlife is in charge of management and administration.96
3. Enforcement and Sanctions
The 1988 Wild Animals Protection Law provides administrative and criminal sanctions for illegal hunting or killing of any animals that are listed.97 The administrative sanctions include fines; confiscation of animals, tools, or equipment; and modification of licenses where appropriate.98
Criminal sanctions are imposed by legislation99 and special regulation,100 including imprisonment for up to seven years.101 In addition, in accord with other decisions and regulations, illegal trade may result in life imprisonment or, in very serious cases, the death penalty.102 The military police play a major role in preventing illegal hunting and smuggling of state protected animals in China’s remote and national border regions.
D. RELATED LEGAL PROVISIONS
Beyond the Wild Animals Protection Law, there are other legal provisions that make up important elements of Chinese wildlife and endangered species protection. They provide an integrated perspective that extends beyond a single statute, encompassing related laws and regulations, as well as other sources of law, including the Constitution.
1. The Constitution
The Constitution, under Article 9, provides that minerals and natural resources, including forests and mountains, belong to the state (except those lawfully owned by collectives).103 The Constitution further provides that the state ensure the rational use of natural resources, protect rare animals and plants, and that the appropriation or damage of natural resources by any organization or individual is prohibited.104 Moreover, Article 26 of the Constitution requires that the state protect and improve the environment in which people live.105 Further, the state must safeguard natural resources and prevent and eliminate pollution and other hazards to the public.106
The significance of these provisions in the Constitution is three-fold. First, they highlight the role of the state as primary guardian of the environment and natural resources. Second, they formulate the duty to protect the environment and natural resources in mandatory terms. Third, the command of the Constitution directly guides the application and interpretation of law at the national, provincial and local level.
Despite its focus on the state’s role, however, the provision does not create an environmental right, nor does it authorize actions to directly protect environmental rights. In this respect, it is very similar to constitutional provisions in other countries. For example, the language in Article 11 parallels a provision in the German Constitution,107 which is construed to emphasize the state’s role and not to provide an environmental right. Yet the command in China’s Constitution, just as in Germany’s, applies directly to the departments of government. In this way, officials are bound to adhere to it in the performance of their duties.
Notably, the constitutional provision requires affirmative action. Therefore, it is anticipated that officials at the national, provincial and local level will understand and fulfill the legal responsibility imposed on them. Similarly, the judiciary must address the provision’s mandate when faced with civil or criminal proceedings involving wildlife. At the very least, the provision is a fundamental expression of law, which reinforces the status of wildlife.
2. Environmental Protection Law
The Environmental Protection Law was adopted for trial implementation in 1979 and revised in 1989. Prior to the enactment of this legislation, serious threats to ecological balance arose, including the excessive exploitation of wildlife, forests, minerals and marine resources.108 In addition, a number of species came close to extinction.109 Destruction also occurred in part from an increase in natural disasters, including floods and drought “due to the deterioration of the ecological environment.”110 Other threats to wildlife arose from environmental pollution, waste, industrial discharge, chemicals and development.111
The Environmental Protection Law is based on several interlocking principles important for wildlife and endangered species, that include: (1) the integration of economic development and environmental protection, emphasizing prevention of harm first, combined with integrated control; (2) balancing exploitation of resources with protection; and (3) holding the polluter responsible for adverse impacts.112 Under Article 2, the government “undertakes to rationally utilize the natural environment and control and prevent pollution and damage to ecology. . . .”113 Under Article 3, the term “environment” includes wild animals and aquatic life as well as air, water, land and natural areas.114 Under Article 15, wildlife is explicitly addressed: “Wild plants and animals must be protected, developed, and rationally utilized. Hunting and catching of valuable and rare wild animals as well as picking of valuable and rare wild plants must be strictly prohibited in accordance with the state regulations.”115
The statute provides for implementation under the direction of the State Council in the form of regulations, standards and policies.116 This envisages coordination with the provinces, autonomous regions and municipalities.117 Article 27 directs the establishment of bureaus for environmental protection and it is their responsibility to transform the requirements of the law into practice at all levels of government.118
Within this framework, two features are particularly significant for wildlife protection. One is the role of discretion and the other is the coordination of agency authority. In regard to discretion, officials at the provincial level have wide latitude. This means they are able to adjust to competing demands on scarce agency resources, but at the same time, wildlife issues may receive less consideration or even languish through benign neglect. In regard to the coordination and exercise of agency authority, the challenge is similar to that found in other countries, but magnified greatly by the size of China, the number of provinces and municipalities, and the existing relationships both between agencies and within different levels of government.
3. The Forestry Law
The Forestry Law, adopted in 1984, is designed to manage and protect timber resources.119 The legislation is supplemented with regulations and administrative measures120 which impact wildlife and endangered species. The main focus is on management that encompasses protection of the environment and sustainable timber use.121 This includes forest planning through regulation of planting, harvesting, regeneration and ecological considerations relating to steep slopes and forest cover.122
The Forestry Law emphasizes silviculture,123 conservation, aforestation and sustained yield.124 The administration described these efforts as strengthening “economic support for forestry through long-term credits to finance aforestation by collectives and individuals” while establishing “a forestry funding system and other conservation-oriented measures.”125 The legislation also provides “more complete and more stringent regulations with regard to the management of logging and transport and introduces logging quotas and legal responsibilities.”126
One official explained the forestry law in these terms:
On the one hand, we relax forestry policy to enliven the forest economy. On the other hand, we regulate forestry by laws and strictly manage forestry resources. These goals are parallel. Relaxation is to mobilize the enthusiasm of the masses for developing forestry. Stringent management is to guard the basic interests of the state and the people.127
The government provides financial assistance for planting and cultivation of forests while collecting fees for harvesting on state-owned lands.128 Other industries that use forest products, including mining and paper manufacturing, are required to set aside a portion of their funds for forest cultivation.129
Many forests that previously provided habitat for wildlife no longer exist.130 In the past, forests were cleared for agriculture since the production of food for a large population is a central objective of the government.131 In spite of this, 12.7% of the land remains covered with forest, which is approximately 61.3% of the world average.132
4. The Fishery Law
The Fishery Law was approved in 1986 and bears similarity to the Forestry Law in its emphasis on management and rational use of fishery resources.133 The law develops state supervision of fisheries through planning, regulations and permit requirements.134
IV. WILDLIFE, ENDANGERED SPECIES, AND THE INTERNATIONAL FRAMEWORK
A. CONVENTION ON TRADE IN ENDANGERED SPECIES
1. Background
As a result of lengthy preparations and negotiations,135 an international conference in the United States in 1973 resulted in approval of the Convention on International Trade in Endangered Species of Wild Fauna and Flora136 (CITES), also referred to as the “Washington Convention.” After overcoming efforts by some countries, especially in Europe, to diminish the strength of its provisions, and with leadership by U.S. representatives, CITES was opened for signature in 1973 and entered into force two years later on July 1, 1975. 152 countries have adopted CITES.137 China ratified it in 1981.138
2. Framework
At its core, CITES has three essential characteristics. First, it focuses on trade in endangered species139 – that is, protection of species “against over-exploitation through international trade.”140 Second, implementation depends on the enactment of laws by the parties who directly regulate endangered species protection within their own countries. Third, the convention recognizes a wide range of attributes in the protection of endangered species including “aesthetic, scientific, cultural, recreational and economic values,”141 shifting from a purely anthropocentric perspective to one that is more ecocentric.
In its statement of purposes, CITES reflects a rationale for both preservation and conservation.142 The convention includes three appendices. Appendix I contains a list of species threatened with extinction which are or may be affected by trade.143 All international commercial trade in these species, including parts and derivatives, is prohibited. States may allow non-commercial trade only in the limited circumstances where it does not jeopardize survival of the species.
Appendix II includes a list of species which are not currently threatened with extinction but which may become threatened unless trade is strictly regulated.144 Commercial trade in these species is not prohibited but is subject to specific conditions, such as a limitation of trade to a level not detrimental to the survival of the species. Appendix II also lists “look alike” species, which, although not actually threatened by trade, require regulation to ensure adequate protection for related species in Appendix I or Appendix II.145
Appendix III contains a list of species found within the territory of a party to the convention that has designated the species for additional protection. This occurs when the party has determined that international cooperation is necessary to control trade of the species.146
3. Administration
CITES establishes a permit system. Species listed in Appendix I are subject to trade only if the exporting state147 and the importing state both grant a permit.148 Species listed in Appendix II are subject to trade only if the exporting state grants a permit. 149 Export is only allowed where the Scientific Authority of the party determines the species is present “throughout its range at a level consistent with its role in the ecosystem and well above the level at which the species might become eligible for inclusion in Appendix I.”150 If the Scientific Authority finds that trade in a species listed in Appendix II is inconsistent with this requirement, it must advise the Management Authority of the party to limit export permits for that species.151 Species listed in Appendix III are those that a state has identified as threatened within its borders and those that require “the cooperation of other parties in the control of trade.” For this last list of species, CITES requires an export permit when the animal originates from the listing country and a certificate of origin when the animal is exported from other countries.152
Under Appendix I or Appendix II, the parties may add or remove species only by a two-thirds majority vote of the state parties who attend the biennial conference.153 However, a party may make a “reservation” with respect to any of the species on any of the lists,154 which exempts the party from the Convention’s regulation of that species. The party is then able to engage in trade with non-party countries or with member parties invoking the same reservation. For Appendix III, once states list such species, the other parties must also regulate trade in those species.155
In terms of implementation, CITES relies on each party to enact national legislation156 to regulate the species that are listed, through laws ensuring enforcement and customs controls.157 The Convention provides general guidelines for parties to follow in implementing protection for listed species but the parties alone determine the manner and content of the domestic legislation and regulation.158 The Secretariat for CITES makes recommendations to the Standing Committee for actions that parties should take to address major problems. The Secretariat reviews permits and other official documents to determine their validity and to discover violations. The Secretariat also distributes information on violations and provides technical assistance to the extent possible.159
4. Systemic Obstacles To Protection and Dilemmas
In understanding China’s relationship to CITES, it is important to consider the location of endangered species in general. Many of the species that are the most endangered or threatened in the world are found in developing countries.160 The problem is that these are the countries most in need of assistance in protecting both species and their habitats. For this reason, the theoretical foundation for CITES has always contemplated a relationship between states, one that recognizes this difficulty and provides assistance to implement the Convention. In this way, CITES reflects not merely a global approach to species protection, but a recognition of the interdependence of states and the mutuality of interests for the benefit of present and future generations. This foundation, however, is undercut in several important ways, including: the reach of CITES; the nature of the market for illicit trade; the difficulty of enforcement – including funding, training and sanctions; as well as differing cultural perspectives. These issues, which are specifically relevant to China, are considered below.
a. The Reach of CITES
i. Point of Intervention
CITES, in its focus on trade in endangered species, is implemented in China by customs officials working under the direction of the central government. The point of intervention for the Convention is thus technically only where the transport of species takes place in the course of commerce.161 However, the problem of implementation is much more complex.
ii. Domestic Legislation
CITES, as noted, relies entirely on domestic legislation for implementation and this adaptability to each state’s heritage is crucial. At the same time, without uniform legislative and management provisions, CITES does not necessarily provide China or other parties with the expertise and guidance necessary to implement an integrated framework for protecting endangered species.
b. Funding and Training
CITES requires funding and training for personnel, and that burden is substantial. Competition for natural resources protection in the budget is keen. Funding for endangered species is evaluated in light of other environmental priorities and in China, with its large population and territory, these include a range of significant demands.162 The duties imposed on customs and trade officials also present a major challenge. China shares its immediate borders with a number of different countries and there are a large variety of ethnic groups with their own languages within the nation itself.
c. Enforcement
As mentioned, it is up to each party to enforce CITES. This is both a strength and a weakness of the agreement.163 Each member has the opportunity, along with the duty, to fashion its laws to deal with the problems presented. Considering all of the parties to CITES, this extends the circle of inclusion for participation to as many states as possible, encompassing different families of legal traditions with different institutional approaches from around the world. At the same time, this flexibility allows for lax enforcement. Indeed, some states do not even submit their annual reports when due and, more substantively, others have a history of not effectively protecting certain species. As discussed below, since the CITES Secretariat does not play a significant role in enforcement, other measures are necessary unless the Convention itself is modified.
d. Global Market
In many ways, CITES anticipated the rise in importance of increasingly close relations between states, stimulated by trade, technology and communications. Yet a fundamental dilemma affecting the protection of endangered species is the demand for those species in the international market. China, like other states with endangered species, is vulnerable to the demand arising beyond its borders164 Thus, much like the international traffic in drugs, a country that is the source of the demand has the opportunity to draw from a range of options when creating its own strategy for enforcement.165 In this way, the global nature of the market compels new initiatives, including enforcement, in the states contributing the most to the demand.
e. Habitat
In contrast to the difficulty of addressing the international market, protection of habitat is clearly within the competence of the parties and this is where China’s strategy in Agenda 21 and other instruments is critical. The process of translating Agenda 21 into action at the national, provincial and local level is a priority of the government. The status of habitat protection also touches on geography. Notably, significant endangered species inhabit some of the most remote areas of the country, making it difficult to administer them effectively.166 At the same time, while China does not have legislation like the Endangered Species Act in the United States which mandates the protection of habitat,167 China’s approach is borne out, to some extent, with its nature reserves and the plan for the creation of additional reserves.
f. Cultural Perspective
Like habitat, cultural perspective poses another obstacle to implementing protection for endangered species, but it also falls within the zone of the state’s capabilities. For China, the cultural perspective of its people touches many of the issues discussed and reinforces some of the underlying obstacles to strengthening biodiversity. A utilitarian view of wildlife, including endangered species, is deeply embedded in some aspects of Chinese culture and tradition.168 A prominent example is the use of endangered species in traditional medicine. In order to reshape this practice, a larger field of vision is required with new approaches that emphasize the value of biodiversity and healthcare less dependent on products derived from endangered species.169
5. New Approaches To Protection
Up to this point, the analysis of CITES has focused on the obstacles to successful implementation. In this section, the focus shifts to the steps China is currently taking in its implementation of wildlife protection, including CITES and the Biodiversity Convention, which hold promise for the future. The analysis includes a suggested approach to the integration of law within the country, with an emphasis on planning, cooperation and education.170 While each element discussed here will not provide the complete solution standing alone, through integration and synthesis, new efforts have the potential for significant progress. In a nutshell, integration involves a multi-faceted approach that combines the command of law with compliance efforts that are more broadly based and, where feasible, linked to community involvement.
a. Land Use Planning
As discussed in Section II above, habitat loss is the greatest threat to endangered species in China. In important ways, emphasis on land-use planning offers the prospect of reducing this problem by creating appropriate standards for protecting resource lands. This includes protecting forest and agricultural areas, maintaining the character of rural areas and channeling development into existing urban centers. A new step in this direction is the Land Administration Law,171 adopted in 1998, which took effect on January 1, 1999, following extensive consultation with national and international advisers.172 In drawing on the approaches of other countries and established criteria,173 the law is designed to address territorial planning, land-use controls, and the regulation of development, as well as protection of resource land and the structure of land administration.174 These objectives incorporate a set of principles that include sustainability,175 a classification for nature protection and a delineation of areas that are not appropriate for development due to natural characteristics such as mountains, deserts, forests and wetlands.176 The purpose of the legislation is to
apportion the land resources in each jurisdiction among the various economic activities that have been projected for growth – balancing environmental protection, resource conservation, and capacity limitation against the demands for land being made for agriculture and for various construction projects.177
This contemporary approach to land use planning, coupled with emerging forms of ownership rights,178 provides new opportunities to protect habitat and significantly enhance the preservation of wildlife and endangered species.
b. Citizen Participation and Co-Management
The extent to which communities influence resource protection, including endangered species, is well-documented. Citizen participation, which is a component of the new Land Administration Law,179 provides the opportunity for members of the community to take part in the planning process. In this way, involvement may emphasize an important link between endangered species and the community’s sustainable development. Similarly, traditional knowledge is an integral part of biodiversity and sustainable development.180 Examples of citizen participation in Africa and other areas show promise and indicate the potential for local participation and in some cases, co-management.181 In this way, the community is also a valuable resource and protection of endangered species is integrated into both the human and natural ecology of the region.182
c. Incentives
Enhancing protection by influencing behavior through incentives deserves special attention. As a counterweight to civil and criminal sanctions, this perspective, in concert with other government initiatives, may encourage an ethos of cooperation at the local level.183 A strategy that includes rewards may enhance the protection of endangered species and thereby offset some of the pressure of the illicit market. The challenge is how to reward behavior and encourage cooperation.184
In this vein, some observers suggest new approaches that include “delisting” species to allow trade as a stimulus to protection through a combination of direct financial interest and stewardship. Proponents adopt a libertarian perspective and suggest the creation of a private property right that recognizes sustainable use, even of endangered species.185 The argument is that a ban on trade does not promote efficiency, while conservation and use “correctly focuses on creating positive incentives for individuals to protect species and wildlife habitat.”186
In opposition, critics stress the threshold difficulty of even defining the term “sustainable use.”187 They remain convinced that focusing on sustainable use is likely to have a very limited effect, and assert that the method only favors those species with current economic value, which constantly fluctuates. Critics point to the difficulty in distinguishing between permitted and illicit trade and the inability to obtain reliable data.188 Further, they reiterate that the success of CITES and endangered species preservation depends on implementation with a precautionary approach,189 in light of the clearly imperfect state of scientific knowledge.190 For many observers, removing the ban on trade entails excessive risks, especially in light of the imminent extinction of some species191 and a pragmatic appraisal of past experience. In any event, consideration of an approach that uses incentives is important to evaluate the possibilities for wildlife protection more fully, even as an adjunct to the current emphasis on regulation.
d. Education
Education is one of the most crucial elements of a strategy for focusing on long-term results. Although enforcement, planning, participation and incentives have a role to play, education addresses differing cultural perspectives and `world-views’ that evolve over time and place endangered species in a new context. With a clear sense of urgency, China has initiated a series of pronouncements in important editorials,192 while organizing conferences, training and university programs. Thus, initiatives in education have paralleled changes in the law.
These efforts, while focused primarily on schools, extend to very specific action. For example, one of the most prominent efforts is an emphasis on alternatives to the use of traditional medicine based on endangered species, where the government has the ability to select priority areas with the greatest need. Over time, education can stimulate an understanding and appreciation for the heritage of flora and fauna in China, in concert with the direct economic benefits that flow from protection. In this way, protection is enhanced through reduction in demand.193
e. Bilateral Agreements
Where states have an integrated market relationship, bilateral agreements that go beyond CITES may also increase protection. For example, China, the European Union and the United States have a shared interest in particular endangered species that are featured in illicit trade. Agreements that focus on specific assistance, cooperation, expertise and funding can target resources where they are likely to have the most opportunity for success. These agreements may emphasize cooperation and mutual efforts to address the interplay of supply and demand as the optimal approach. In effect, they are the reverse of trade sanctions.194 By recognizing the mutuality of the problem of trade in endangered species, all of the states have the same interest in striving to concentrate their efforts and, with respect to the European Union and the United States for example, provide additional funding for bilateral programs. In this way, funding is linked to the integration and implementation of a multi-dimensional strategy.
B. BIODIVERSITY CONVENTION
1. Framework
After more than three years of negotiations, the Convention on Biological Diversity was approved and opened for signature on June 5, 1992.195 After signing the Convention on June 11, 1992, China ratified it on January 5, 1993. Under the Convention, parties are required to adopt national strategies and plans for the conservation and sustainable use of biological diversity and to integrate the conservation and sustainable use of biological diversity into relevant programs and policies.196 The parties are also required to identify the components of biodiversity important for conservation and sustainable use, monitor them, and identify activities likely to have significant adverse impacts on biodiversity.197
The Convention emphasizes in situ conservation and maintenance of viable populations of species in their natural surroundings.198 This includes the establishment of protected areas but also, the regulation and management of biological resources important for conservation, wherever they are found.199 The parties are required to manage biological resources, promote protection of ecosystems and natural habitat, maintain viable populations of species in natural surroundings and pursue sustainable development.200
The parties are also obligated to rehabilitate and restore degraded ecosystems and to promote the recovery of threatened species.201 They are further obligated to prepare environmental assessments of proposed projects which are likely to have significant adverse effects on biological diversity, with a view to avoiding or minimizing these impacts, and to ensure consideration of the environmental consequences of programs and policies likely to have such impacts.202 The Convention also provides the potential for funding as an incentive to conservation.203
After two years of preparation, China officially announced the implementation of its State Plan for the Biodiversity Convention on June 13, 1994. The State Plan is one of the major actions taken by the government in fulfilling its obligations under the Convention. The Plan provides a strong basis and comprehensive guidance for dealing with the challenges of protecting biodiversity. Goals, objectives and tasks for biodiversity conservation are addressed in the Plan.
Under the Plan, China’s strategy consists of three parts: (1) in situ conservation in the nature reserves, national parks and other protection zones; (2) in situ conservation in areas other than the above conservation zones; and (3), ex situ conservation in zoos, botanical gardens, aquariums, genetic banks, and multiplication centers. Emphasis is placed on in situ conservation. Ex situ conservation is only utilized as a supplement.
The Plan’s specific objectives for biodiversity conservation are to establish and improve China’s nature reserve program, conserve wild species critical to biological diversity, conserve genetic diversity of crops and domestic animals, conserve in situ outside nature areas, establish a nation-wide biodiversity information and monitoring network, and exploration of the methods and means of biodiversity and promotion of sustainable exploitation of biodiversity.
The Plan also calls for implementing biodiversity and conservation-related policies with specific steps. These include: (1) prevention relating to adverse impacts; (2) integration of natural resources exploitation and conservation; and (3) placement of the responsibility for conservation, restoration and compensation on developers and those exploiting natural resources. For these purposes, the Plan is focused on the following actions: (1) advancing national understanding of the issues of biodiversity conservation and improving channels for public participation; (2) improving and increasing the knowledge of decision-makers and managers of bio-diversity; (3) improving the planning process of social and economic development and increasing the role of expert consultation in the process; (4) using economic means to encourage natural resource conservation, while restricting excessive use; (5) improving the national social and economic development program and increasing the investment for biodiversity conservation; (6) improving technical policies on biodiversity conservation and clarifying priorities; and (7) strengthening the scientific study of biodiversity conservation.
The Plan also directs review and revision of existing laws and regulations for biodiversity conservation. Guidelines are provided for coordinating the departments of government with responsibility for biodiversity conservation, while strengthening public participation and considering the results of scientific research as the basis for amendments to the law. In addition, the Plan also addresses incorporating economic incentives into the laws to strengthen conservation and discourage harmful activities, improve enforcement and adopt new laws and regulations for conservation where necessary.204
IV BEYOND THEORY: AN EMPIRICAL PERSPECTIVE
A. WILDLIFE AND ENDANGERED SPECIES: FOUR CONTEMPORARY EXAMPLES
With the larger framework in mind, it is instructive to turn to a more empirical approach, considering four contemporary examples relevant to China’s approach to biodiversity. These examples assist in illustrating several aspects of the laws discussed in this article and clarify some of the dynamics involved in actually implementing wildlife and endangered species protection in China. Based on analysis of these examples and the conflicts that arise in addressing them, several lessons are suggested.
1. Protection By Species
The Pere David’s deer was found in China until its demise in 1900.205 Prior to that, the species was introduced into the United Kingdom, France and Germany.206 A breeding herd thrived in England earlier in the twentieth century and, after 1945, some deer were transferred to other parts of the world.207 Two groups were reintroduced into China, one in 1985 (twenty deer) and the other in 1987 (seventeen deer).208 They were transferred to the site of the original group just south of Beijing.209 Another reintroduction took place in 1986, when a herd was released in a nature reserve in eastern China along the coast of the Yellow Sea.210 By the end of 1997, the number of deer increased to 671 and they were transferred to twelve different locations.211 They appear to have adapted well and reached a point where there are enough to restore a natural population.212
Lesson: The efforts of China’s Forestry Department, donors in England and the World Wildlife Fund offer a striking example of cooperation in public/private protection initiatives that transcend political boundaries.
2. Protection By Region Within China
The Himalayan region of the country takes up one fourth of China’s total land area.213 The population in that region is only thirteen million people and due to climate and geography, the area is rich in biodiversity.214 Traditional use of natural resources, extending back thousands of years, is deeply ingrained and includes the use of wildlife and wildlife products in traditional medicine.215 While trade in wildlife “has a long history in the Himalayan region, it is now threatening the survival of many species, and the sustainable use of wildlife resources in the region.”216 From 1950 to 1985, forty-six species of mammals were hunted for their skin for export.217 In one province alone, it is estimated that about 3.1 million skins of Alpine marmot, 1.4 million skins of other animals and about 332,000 birds were exported from 1965 to 1984.218
With the adoption of wildlife legislation, about 20% of the region was designated a nature reserve by 1995 and about 70% of the country’s nature reserves are now found within the Himalayan region.219 Yet, in keeping with its remoteness, illegal wildlife trade is found along the Sino-Burmese, Sino– Nepalese, Sino-Indian and Sino-Pakistani borders.220 It is difficult to quantify the volume of trade but in the 1994-1995 period, along the Sino-Burmese and Yunnan borders, eleven species listed in Appendices I and II of CITES, and ten species on the state list, were confiscated.221 The panda, with a population of about a thousand found along the eastern edges of the region, is one of the most endangered species in the world.222 The Shaker Falcon, listed on Appendix II of CITES and Category II of the state protection list, is considered a symbol of wealth and power.223 One may sell for U.S. $100,000 or more in illegal trade, although originally obtained within China for tens of dollars.224
Lesson: For a remote area like the Himalayas, there is an unusual opportunity, as well as a special need, to consider an integrated approach to preservation that may include community-based participation, in addition to incentives, as well as bilateral agreements. It is beyond question that regulation is not enough.
3. Protection By Transboundary Region
The Siberian tiger, the largest of the tiger species, has dwindled to a population of about 450(225) and is listed on Appendix I of CITES.226 Of the eight subspecies of tigers, three have become extinct during the last century.227 The traditional range of the Siberian tiger was bounded on the south by the forests of China and Korea, on the east by the Sea of Japan, on the north by the southern edge of Siberia and on the west by Lake Baikal.228 As a large carnivore, the Siberian tiger is at the summit of the ecosystem,229 serving as “an umbrella species because protection of the tiger necessarily means protection that shelters and conserves other plants and animals in their habitat.”230
On the Russian side of the border, logging rights have been sold to multinational corporations like Hyundai, from South Korea, while Weyerhaeuser, from Washington state, was negotiating for control over an area the size of Delaware in the Khabarovsk Krai region, the northern portion of the Siberian tiger’s range.231 Additional pressure for logging in the region has come from China as well, especially since 1998 when its forestry laws were amended to prevent domestic logging because of soil erosion and massive flooding.232 China thus relies heavily on lumber imported from Russia.233 With increasing threats to its habitat, and a rise in illicit trade attributable to high unemployment in Russia following the collaspse of communism, the Siberian tiger is caught in a vice. By one estimate, there are only some thirty to fifty remaining in northeastern China.234
Lesson: Transboundary economic influences may directly encourage destruction of habitat, although completely inadvertent, and, in concert with illicit trade, severely reduce endangered species. These factors compel a comprehensive approach to management. In this way, local, regional, national and international responses (including funding), may complement one another.235 China may also consider taking other steps related to enforcement along its border with Russia.236
4. Protection By The International Community
The reactive approach to wildlife and endangered species protection in the law,237 exemplified by listing species when they face the threat of extinction, is not necessary where, with foresight, destructive practices are subject to control at an earlier stage. An example that particularly impacts both China and the United States is sharks. In the past three decades, “the shark industry has boomed in such an unexpected and frantic manner that many shark populations recently have become severely threatened.”238 Shark finning is one of the leading causes of shark deaths, arising from the high market value of fins for shark-fin soup.239 Sharks are stripped of their fins, tossed back into the ocean and left to die because they can no longer swim.240 “Only fifteen out of one hundred and twenty-five shark-fishing nations have implemented shark fishery management plans that include banning or regulating finning.”241 There is no international protection and thus “beyond national boundaries, shark fishing is a free for all.”242
The growth of international commerce has created a market for shark-fin soup in Asia that flourishes in China, Hong Kong and Singapore.243 A profitable industry appears to have developed but, by one estimate, the result is over one hundred million shark deaths per year due to the fishing/finning process.244 Instead of waiting until it is too late, the United States and China should engage in bilateral negotiations to consider appropriate measures to protect the viability of sharks, including a ban on shark-finning. Congress has already approved legislation prohibiting shark-finning in all U.S. waters, and at the same time, authorized the Secretary of State to develop agreements with other nations to end the practice.245
Lesson: The United States and China may use the protection of sharks as an opportunity to advance cooperation in new ways on behalf of long-term interests important to both and thus, not only build on partnership in international wildlife protection, but establish a precedent for intervention before it is too late. Funding may well need to come from the U.S. but this could easily provide an incentive for China in a bilateral approach to conservation.
B. WILDLIFE, ENDANGERED SPECIES, CONVERGENCE AND INTERNATIONAL ENVIRONMENTAL LAW
In considering China’s approach to wildlife and endangered species, an important theme in this article is the efficacy of an integrated approach to protection246 that combines existing elements of enforcement with planning, participation, incentives and education, as well as international and bilateral agreements. In this way, a comprehensive approach to the protection of wildlife and endangered species mirrors the larger process of convergence taking place in legal systems around the world.247 In convergence, states begin to address problems in similar ways and develop means to harmonize differences between them.248 States share three fundamental interests that stimulate convergence and provide the foundation for the future through cooperation:249 security,250 trade251 and the environment. These interests transcend political boundaries,252 cultural differences and traditional notions of sovereignty.253
As illustrated by the analysis of CITES, species protection in the Himalayan region, the status of the Siberian tiger and sharks, there is an increasing ‘internationalization’ of wildlife and endangered species. Parallel to the atmosphere and the oceans, common interests in wildlife and endangered species that extend across borders are increasingly recognized.254
For wildlife and endangered species, convergence takes place through the implementation of CITES and the Biodiversity Convention. What is important for purposes of this discussion is that CITES and the Biodiversity Convention exemplify how nations with very different legal systems approach wildlife and species protection in an attempt to achieve common objectives with similar methods. For example, China and the United States have each developed systems of law based on their respective history, tradition and culture.255 In many ways, the two systems are not congruent with one another because of the differences in these influences. Yet through CITES and the Biodiversity Convention, the influence of convergence reinforces cooperation and the common objectives they have.256
Moreover, both states share more than simply common objectives; they have a mutual interest in the protection of wildlife and endangered species whether they exist in one country or another. On one level, this interest is in biodiversity in general and reflects aspirations to safeguard species for the benefit of present and future generations. This encompasses a range of values extending from the opportunity to visit one country or the other to observe species to a broader commitment to sustainability :for the benefit of the international community. On another level, both states share a mutual interest in international trade stripped of illicit transactions. As discussed above, the market for endangered species and parts is based on demand in countries like the United States or those in Europe. In light of these dynamics, the United States and Europe have a well-defined interest in curbing illicit trade and must take more steps to do so. At the same time, China has the identical interest and obligation. In this way, the market is another important aspect of the relationship between both countries and both legal systems.
From this interaction, it is clear that mutual interests require cooperation. Through cooperation, states increase the prospects for success which, acting alone, neither can obtain. Cooperation based on mutual interests serves domestic and international interests and at the same time, different legal systems begin to operate in a manner more consistent with one another, notwithstanding obvious differences.
In this way, despite the criticism of CITES over the years, the Convention illustrates the extent to which cooperation and reciprocity are not only possible but mutually reinforcing. This interdependence drives convergence257 and allows different states, like those from Europe, China the United States and the rest of the world, to advance shared interests.
This process results in a new conception of international environmental law where sovereignty is interpreted to recognize both a broad, international interest in a special portion of the natural world – wildlife and endangered species – and the need to address an illicit market, resulting in remarkable opportunities for cooperation. These opportunities counsel an emphasis on bilateral agreements, joint efforts for funding and training, shared expertise as well as enforcement, incentives and even, where appropriate, model statutes and regulations.
VI. CONCLUSION
The law for protecting wildlife and endangered species in China has changed a great deal in the recent past. From a background with a utilitarian perspective, the country is in the process of evolving, especially over the last decade and a half, to embrace a broader set of values in the context of modernization. The government has adopted national legislation and international conventions to create a new framework. The most significant challenge is integration. It is crucial to coordinate efforts at the national, provincial and local level, along with improving protection and enforcement. Equally essential is providing the necessary resources, expertise and management. Through the integration of these efforts, along with the other elements considered here, the emerging framework has the potential to enhance sustainable use of wildlife, while at the same time protecting endangered species.
In the developing process of convergence, wildlife and endangered species in China reflect important common interests and interdependence with the prospect of stimulating new levels of international cooperation. Wildlife and endangered species have a special place on the agenda of the international community, and states that work together to implement protection are responding to more than an interest in the natural world or the problems of an illicit market. They are recognizing the benefits that flow from mutuality, reciprocity and enhancement of common interests.
One hundred years after the beginning of international environmental law, with the adoption of the first major treaty for protecting birds in 1902,258 China has a unique opportunity to make a special contribution to the protection of wildlife and endangered species. In order to achieve success, however, cooperation and commitment is necessary from other states as well. As Dinah Shelton has pointed out, the environment does not recognize frontiers.259 For this reason, wildlife and endangered species provide a significant bridge to build on concomitant objectives in international environmental law, in addition to security and trade.
1. NORBERT ROULAND, LEGAL ANTHROPOLOGY ix (1994).
2. For an overview of the environmental law of China, see Wang Xi & Robert Blomquist, The Developing Environmental Law and Policy of the People’s Republic of China, 5 GEO. INT’L ENVTL. L. REv. 27 (1992).
3. Lin Feng, Law on Environmental Protection, in CHINESE LAW 557 (Wang Guiguo & John Mo eds., 1999).
4. LESTER Ross & MITCHELL A. SILK, ENVIRONMENTAL LAW AND POLICY IN THE PEOPLE’s REPUBLIC OF CHINA 2 (1987). “The People’s Republic of China (PRC) has had to cope not only with environmental problems of the traditional sort involving man’s interaction with nature – forest, soil, and water conservation and similar concerns – on a vast scale, but also with the environmental by-products of modernization.” Id.
5. Id. at 5-6. “[T]he market-oriented economy cannot encompass all social effects within the scope of market transactions, and governmental regulation becomes essential if externalities are not to be ignored. Legally defined regulatory powers thus became more important as economic controls were relaxed, given that the leadership showed a rising commitment to environmental protection. Therefore, environmental protection has been among the most heavily legislated sectors of public policy. . . .” Id.
6. See CHINA’s AGENDA 21: WHITE PAPER ON CHINA’S POPULATION, ENVIRONMENT AND DEVELOPMENT IN THE 21ST CENTURY (1994) [hereinafter CHINA’s AGENDA 21].
7. Lai Pengcheng et al., China, in 2 ENVIRONMENTAL LAw 79 (Dr. M. Boes ed., 1993). “More than 30,000 species of higher plants, 25,000 of which are seed-bearing and 7,000 of which are xylophyte, are found in the country.” Id.
8. Id.
9. Id.
10. Id.
11. Id. (citing CHon, A GENERAL SURVEY (1989)). 12. Id. at 13.
13. Protecting Wildlife, RENMIN RIBAO, Oct. 22,1980, reprinted in Ross & SILK, supra note 4, at 203. 14. Id.
15. Jonathan Kazmar, The International Illegal Plant and Wildlife Trade: Biological Genocide?, 6 U.C. DAVIS J. INT’L L. & POL’Y 105 (2000). “In the last ten years, trafficking in rare and endangered species of flora and fauna has become the world’s second largest form of illegal commerce, according to the Interpol Subgroup on Wildlife Crime. Drug smuggling and illegal weapons trading hold the first and third positions, respectively, on this ignominious list.” Id. at 107.
16. Xu Hongfa & Robert Giles, A View of Wildlife Management in China, 23 WILDLIFE SOCIETY BuLLETIN 18, 22 (1995).
17. In general, developing nations, which comprise 85% of the world’s population, suffer from environmental degradation. Nine categories of degradation are closely intertwined: deteriorating air quality, deteriorating water quality, atmospheric change, environmental deterioration in urbanized areas consequent to population growth, soil degradation and deforestation, destruction of biological diversity, deterioration of coastal resources, pollution from agro-chemicals and deterioration of the natural and cultural heritage of traditional communities and indigenous peoples. Edward D. McCutcheon, Think Globally, (En)Act Locally: Promoting Effective National Environmental Regulatory Infrastructures In Developing Nations, 31 CORNELL INT’L L.J. 395, 402-06 (1998).
18. See Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1245 (1968).
19. See ALEXANDER GILLESPIE, INTERNATIONAL ENVIRONMENTAL LAW, POLICY AND ETHICS 82-104, 137-48 (1997) (covering aesthetic, cultural and recreational justifications for environmental protection, and the moral considerability of animals).
20. WILLIAM RODGERS, 1 ENVIRONMENTAL LAw at v (1986). “Environmental law makes a mockery of the traditional model of dispute resolution where A sues B for a sum certain. In this field … each statement of facts is a multidisciplinary saga, with loose ends trailing off to the limits of the knowledge of a variety of scientific disciplines. Environmental law arises in a world of many parties where issues are linked together in mysterious ways, and each definitive resolution is but a prelude to future bargaining, compromise, and defection.” Id.
21. Id. (“The challenge for the current generation of environmental lawyers is to discover a version of working law that contributes to the fundamental human behavioral and institutional changes the topic recommends.”). Pengcheng, supra note ‘7, at 22.
22. Id. 23. Id. 24. Id.
25. Id. “The Ming and Qin dynasties paid great attention to agricultural production. Hence, their laws set down explicit articles about the protection of the agricultural environment and mineral exploitation: officials
should collect reports about the disastrous effects of floods, droughts, frosts, hail and insects in their administrative areas and immediately go to examine the affected areas with their superiors, otherwise they and their superiors would be severely beaten; and those who surreptitiously dug up mineral resources, such as gold, silver, copper, tin, mercury, etc., should be fined.” Id.
26. Vincent Chang Yang, Punishing For Environmental Protection? – Enforcement Issues in China, 44 INT’L & Comp. L.Q. 671, 672 (1995).
27. Id. 28. Id.
29. Pengcheng, supra note 7, at 79.
30. Id. at 24-25. (“Under the domestic and external pressures, the State Council of the P. R. China held the First National Environmental Protection Conference in 1973 and enacted Certain Provisions Concerning the Protection and Improvement of the Environment, formally laid down an environmental protection policy and made a series of stipulations regarding the overall planning of the environment, rational distribution of industry, improvement of the environment in old cities, comprehensive utilisation, preservation of soil, plants and animals, administration of waters and seas, aforestation, monitoring of the environment, etc.”).
31. Declaration of the United Nations Conference on the Human Environment, June 16, 1972, 11 I.L.M. 1416, 1417 (1972). See also WORLD COMM’N ON ENV’T AND DEV., OuR COMMON FuTuRE xi (1987).
32. Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 HARV. INT’L LT 423 (1973). 33. CHiNA’s AGENDA 21, supra note 6, at 15.
34. Id.
35. Yang, supra note 26, at 671.
36. Pengcheng, supra note 7, at 76. One authoritative commentary stated:
The establishment of nature preserves is a fundamental construct in undertaking nature protection, presenting a reasonable solution to the contradiction of protecting nature and utilizing nature. This is an effective measure for saving those types of living beings on the verge of extinction and protecting their ecosystems and will become the basis for conducting scientific research on wildlife resources, nature’s historical legacy, and ecosystems.
Protecting Wildlife, supra note 13, at 203.
37. CHINA’s AGENDA 21, supra note 6, at 171.
38. UNESCO Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 11 I.L.M. 1358 (1972). The six reserves are Changbai Mountains in Jilin province, Wolong in Sichuan province, Wuyi Mountains in Fujian province, Xilinguole in Inner Mongolia, Mount Dinhu in Guangdong province and Mount Fanjin in Guizhou province. Pencheng, supra note 7, at 76.
39. Protecting Wildlife, supra note 13, at 204. “In some countries the total area of nature preserves constitutes from 10 percent to as much as 20 percent or more of territorial area, and in most countries they constitute about 4 percent [of territorial area]. Our country’s vast territory, with a variety of natural conditions and natural environments, abounds in wildlife resources, yet the total area of nature protection constitutes only 0.17 percent of territorial area.” Id.
40. See CHINA’s AGENDA 21, supra note 6, at 174. See also John Copeland Nagle, Why Chinese Wildlife Disappears As CITES Spreads, 9 GEO. INT’L ENVTL. L. REv. 435, 439 (1997) (“Thirteen of those reserves were for pandas, with plans for at least a dozen more panda reserves and corridors to connect the growing number of scattered reserves. The newest such reserve covers 45,000 square kilometers and protects sixty endangered animals and three hundred rare plants.”).
41. Hongfa & Giles, supra note 16, at 20. 42. Id.
43. Id. 44. Id. 45. Id.
46. Protecting Wildlife, supra note 13, at 204.
47. Environmental Protection Law of the PRC (1979, 1989), promulgated by the Standing Committee of the National People’s Congress, in 2 LAw DEPARTMENT OF NATioNAL ENVIRONMENTAL PROTECTION AGENCY 3-7 (1993).
48. Law on Marine Environment Protection of the PRC (1982, 1999), promulgated by the Standing Committee of the National People’s Congress, available at http://www.lawbase.com.cn/search/ lawarticle.asp?id=a&articleNo= 1 (last visited Feb. 27, 2002).
49. Grasslands Law of the PRC (1985), promulgated by the Standing Committee of the National People’s Congress, in 2 LAW DEPARTMENT OF NATIONAL ENVIRONMENTAL PROTECTION AGENCY 333-35 (1993).
50. Forestry Law of the PRC (1984, 1998), promulgated by the Standing Committee of the National People’s Congress, in POLICY AND LAW DEPARTMENT OF STATE ENVIRONMENTAL PROTECTION ADMINISTRATION, A COMPLETE COMPILATION OF ENVIRONMENTAL LAWS AND REGULATIONS OF CHINA (1997-1999) 410-11 (1999).
51. Pengcheng, supra note 7, at 77 (including also the Regulation on Water and Soil Conservation, the Resolution on Strengthening the Protection of the Natural Environment in the Adjustment Period of the National Economy, Regulations on Breeding Protection of Aquatic Resources and the Circular of the Forestry Ministry on Strengthening the Administration, Division and Scientific Research of Nature Reserves).
52. Id. at 77.
53. Id. at 77-78
54. Id. at 78.
55. Id.
56. Id.
57. Id.
58. Id. at 76.
59. Id. at 77.
60. Id. at 78. 61. lId
62. Id. 63. Id.
64. Hongfa & Giles, supra note 16, at 20.
65. Id. at 19.
66. Id.
67. Id.
68. Id.
69. Circular of the State Council on Strictly Protecting Rare and Precious Wildlife (1983), issued by the State Council, in 2 LAW DEPARTMENT OF NATIONAL ENVIRONMENTAL PROTECTION AGENCY, A COMPILATION OF ENVIRONMENTAL LAWS 443-44 (1993) [hereinafter Circular].
70. Hongfa & Giles, supra note 16, at 19.
71. Circular, art. 6, supra note 69.
72. See Kazmar, supra note 15, at 107-10. 73. Pengcheng, supra note 7, at 80.
74. The Wild Animals Protection Law of the PRC, art. 2, para. 2, (1988), promulgated by the Standing Committee of the National People’s Congress, in 2 LAw DEPARTMENT OF NATIONAL ENVIRONMENTAL PROTECTION AGENCY, A COMPILATION OF ENVIRONMENTAL LAWS 374-79 (1993) [hereinafter Wild Animals Protection Law].
75. Id. at art. 3(1). 76. Id. at art. 9. 77. Id. at art. 10.
78. Id. at arts. 16, 18, 20. 79. Id. at art. 17.
80. Id. at art. 22. 81. Id.
82. Id. at art. 23. 83. Id. at art. 24.
84. Pengcheng, supra note 7, at 80-1. 85. Id. at 81.
86. Hongfa & Giles, supra note 16, at 19. 87. Pengcheng, supra note 7, at 81.
88. Id. 89. Id. 90. IL 91. Id. 92. Id. 93. Id. 94. Id. 95. Id.
96. Wild Animal Protection Law, supra note 74, at art. 7, paras. 2, 3.
97. Pengcheng, supra note 7, at 82. 98. Id.
99. Criminal Law, art. 130.
100. Id. Supplementary Regulation Regarding the Punishment of Crimes of Catching and Killing Rare and
Precious Wild Animals. 101. Id.
102. Id. See Decision of the Standing Committee of the NPC Regarding Crimes Seriously Destructive to the Economy; see also art. 2 of the Supplementary Regulation Regarding the Punishment of Crimes of Smuggling. 103. P.R.C. CONST. art. 9 (1982).
104. Id.
105. Id. at art. 26. 106. Id
107. PROTECTING OuR ENVIRONMENT (Rudolf Dolzer ed., 2000). FR.G. CONST., Art. 20A provides: “[P]ursuant to its responsibility for this and future generations, the State shall protect the natural basis of human existence by legislation within the framework of the Constitution, and by the exercise of its executive and judiciary powers within the framework of law and order.” The Constitution of Norway has a similar provision. Hans Christian Bugge, “Constitution” and “Constitutional Law” in Norway, in CONSTITUTIONAL JusTIcE UNDER OLD CONS 293, 301 (1995).
108. Pengcheng, supra note 7, at 17.
109. Id. 110. Id. 111. Id.
112. PR.C. CONST. at arts. 4, 19, 34, 35.
113. ENviRoNmENTAL PROTECTION LAw OF THE Try PEoPLE’s REPUBLIC OF CHINA (Sept. 13, 1979), reprinted in Ross & SILK, supra note 4, app. A, at 285. The complete text of Article 2 provides:
“The Law on Environmental Protection of the People’s Republic of China undertakes to rationally utilize the natural environment and control and prevent pollution and damage to the ecology so as to create a clean and salubrious environment for people’s life and work, protect people’s health, and promote economic growth in the interest of socialist modernization.” Id.
114. Id.
115. Id. at 287. 116. Id. at 288. 117. Id.
118. Id. at 289.
119. Pengcheng, supra note 7, at 85.
120. Id.
121. Id. at 86.
122. Id.
123. “Forestry is one of the state’s precious resources. Respecting the principles of not allowing timber consumption to exceed growth, strictly regulating logging volume, instituting logging quotas, and sustained yield are all important jobs for forestry legislation and are fundamental principles of doing forestry management well.” Interview by BANYUE TAN with Yang Zhong, Minister of Forestry (1984), reprinted in Ross & SILK, supra note 4, at 187.
124. Id. at 185. 125. Id.
126. Id. 127. Id. 128. Id. 129. Id
130. Hongfa & Giles, supra note 16, at 18. 131. Id.
132. Id. (citing STATE ENviRoNmENTAL PROTECTION AGENCY) Report On The State Of The Environment In China 2000).
133. Fishery Law of the PR.C. (1986), promulgated by the Standing Committee of the National People’s Congress, available at http://www.lawbase.com.cn/search/lawarticle.asp?id=a&articleNo=183 (last visited Feb. 25, 2002).
134. Id.
135. Under the auspices of the International Union for the Conservation of Nature (IUCN) and especially Wolfgang Burhenne, protection of wildlife and endangered species was addressed in a proposed treaty in the 1960’s that led to several international conferences.
136. Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3, 1973, art. 11(1), 12 LLM. 1055, 993 U.N.T.S. 234 (entered into force July 1, 1975) [hereinafter CITES].
137. Randi Alarcon, The Convention on International Trade in Endangered Species: The Difficulty in Enforcing CITES and the United States Solution to Hindering the Trade in Endangered Species, 14 N.Y. INT’L L. REv. 105, 118 (2001).
138. Pencheng, supra note 7, at 80.
139. The notion of controls on international trade dates back to the efforts in 1911 of a Swiss conservationist, Paul Sarasin, who “called for restrictions on the import and export of bird feathers because of the effect of the vogue for plumed hats on bird populations.” SIMON LYSTER, INTERNATIONAL WILDLIFE LAW AN ANALYSIS OF INTERNATIONAL TREATIES CONCERNED WITH THE CONSERVATION OF WILD LIFE 239 (1985).
140. Alarcon, supra note 137, at Preamble.
141. Id. “The Contracting States, RECOGNIZING that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come;
CONSCIOUS of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view;
RECOGNIZING that peoples and states are and should be the best protectors of their own wild fauna and flora;
RECOGNIZING, in addition, that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade. . .” Id.
142. Paragraph 1 reflects a preservation approach: to protect species for their aesthetic value. Paragraphs 3 and 4 emphasize conservation: states must assume an active, ongoing role in protecting and regulating wildlife. Paragraph 2 falls in the middle, combining preservation and conservation. Catharine Krieps, Sustainable Use of Endangered Species Under CITES: Is Ita Sustainable Alternative?, 17 U. PA. J. INT’L EcoN. L. 461,469 (1996). 143. CITES, supra note 136, at art. 11(1).
144. Id. at art. 11(2)(a). 145. Id. at art. II(2)(b). 146. Id. at art. II(3).
147. The Management Authority of the exporting state may grant a permit only if: (a) its Scientific Authority advises that the export will not be “detrimental to the survival of the species;” (b) the specimen was not obtained in contravention of domestic law; (c) if the specimen is living, the Management Authority is satisfied transport minimizes the risk of injury, damage to health, or cruel treatment; and, (d) an import permit is granted. Id. at art. III(2).
148. The importing state may grant a permit only if (a) its Scientific Authority advises the import is for purposes “which are not detrimental to the survival of the species involved;” (b) if the specimen is living, the recipient is suitably equipped to house and care for it; and, (c) the Management Authority determines the specimen is not for use for “primarily commercial purposes.” Id. The convention does not define the term “primarily commercial purposes” and it is a matter of continuing debate. See John L. Garrison, The Convention in International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Debate Over Sustainable Use, 12 PACE ENVTL. L. REv. 301, 348-51 (1994).
149. In order to approve an export permit, its Scientific Authority must advise that the export will not be detrimental to the survival of the species and its Management Authority must determine the specimen was not obtained in violation of domestic law, and in the case of living specimens, its shipment minimizes risk of injury, damage to health or cruel treatment. CITES, supra note 136, at art. IV(2).
150. Id. at art IV(3). “Each party must establish at least one Management and one Scientific Authority, which have responsibility for checking that the required conditions for issue of permits for export, re-export and import, which are laid down in Articles III and V of CITES, have been fulfilled and that permits are granted only when these have been complied with.” Patricia Birnie, The Case of the Convention on Trade in Endangered Species, in ENFoRciNG ENVIRONMENTAL STANDARDS: ECONOMIC MECHANISMS As VIABLE MEANS? 235 (Rudiger Wolfram ed., 1996).
151. Id. “The Article II controls are significant in setting the trigger for increased protection based not simply on the maintenance of a healthy population but also on the maintenance of a healthy ecosystem. This acknowledgment [sic] that a species has value not only to humans, but also to other species and to the ecosystem in which it lives.” William Carroll Muffett, International Protection of Wildlife, in INTERNATIONAL, REGIONAL AND NATIONAL ENVIRONMENTAL LAw 352-53 (Fred L. Morrison & Rudiger Wolfram eds., 2000).
152. Note, however, that there are exemptions in CITES. See CITES, supra note 143, at art. VII(1); Muffett, supra note 151, at 353.
153. CITES, supra note 136, at art. XV(2). 154. Id. at art. XXIII.
155. Id. at arts. II, V.
156. CYRILLE DE Ki.F.LaMm, GuiDELiNES FOR LEGiSLATION TO IMPLEMENT CITES 7 (1993) (“…the mere ratification of CITES without the adoption of appropriate implementation legislation can never be sufficient to ensure an effective enforcement of the Convention, if only because penalties for violations of the provisions of CITES can only be imposed by national legislation.”).
157. CITES, supra note 143, at art. VII(I). 158. Id. at arts. III-V.
159. Id. at art. XII; see Julie Cheung, Implementation and Enforcement of CITES: An Assessment of Tiger and Rhinoceros Conservation Policy in Asia, 5 PAc. RIM L. & POLY J. 125, 129 (1995). Note that nongovernmental organizations (NGOs) play an important role in the work of CITES. See John Lanchberry, Long-Term Trends in Systems for Implementation Review in International Agreements on Fauna and Flora, in THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITTMENTS: THEORY AND PRACTICE 56, 72, 77 (David Victor et al. eds., 1998).
160. The majority of listed species protected by CITES are found in developing countries. Alarcon, supra note 137, at 117; G. KRisTIN ROSENDAL, THE CONVENTION ON BIOLOGICAL DIVERSITY AND DEVELOPING CouNTRIES 20 (2000) (“The greatest losses of biodiversity are expected to take place in areas with the highest species diversity – the tropical forests of Latin America, Asia and Africa … Further exasperating this picture is the fact that while the main owners of biological resources are developing countries, the main users are the developed countries.”).
161. Chris Huxley, CITES: The Vision, in ENDANGERED SPECIES, THREATENED CONVENTION, THE PAST, PRESENT AND FUTURE OF CITES 7-8 (Jon Hutton & Barnabas Dickson eds. 2000) (“The main thrust of the convention was the establishment of a set of import, export and re-export controls on the species listed in the three appendices…. However, while there was general agreement both on the underlying goal (to prevent international trade from causing species extinctions) and on the mechanism to achieve this (international cooperation in trade controls) there was a dearth of information as to the scale of the problem and a lack of understanding of how to operate trade controls.”); Krieps, supra note 142, at 473 (“Because CITES `is actually implemented at the customs control points of each country,’ its provisions are effective `only to the degree that customs officials require compliance.’ Thus, the Convention’s greatest weakness lies in relying on member states for enforcement.”); David Favre, Tension Points Within the Language of the CITES Treaty, 5 B.U. INT’L L.J. 247, 258 (1987).
162. For example, new amendments were adopted in May 1996 to the Water Pollution Prevention and Control Act (1984), which require extensive changes and large expenditures of money to implement them. See ASIAN DEVELOPMENT BANK, REFORM OF ENVIRONMENTAL AND LAND LEGISLATION IN THE PEOPLE’S REPUBLIC OF CHINA 5 (2000).
163. Birnie, supra note 150, at 233.
164. It is estimated that the United States is not only the world’s largest importer of wildlife and wildlife products and consumer of internationally traded wildlife goods, but also accounts for one-fifth of the trade in the wildlife market. Alarcon, supra note 137, at 117.
165. Kazmar, supra note 15, at 105, 109 (“The United States constitutes the largest player in both the legal and illegal wildlife trade. In substantial part, this distinction is due to the activity of organized-crime syndicates which have turned to wildlife smuggling as an alternative to drug smuggling …. Even though the financial loss involved in the wildlife trade exceeds those of illegal weapons dealing, pirated software and smuggled precious gemstones, animal protection and enforcement does not receive an equivalent amount of attention and resources.”).
166. Hona & Giles, supra note 16, at 24-25.
167. 16 U.S.C. 1531 et seq.; Babbitt v. Sweet Home Chapter of Communities, 516 U.S. 687 (1995). 168. See Gillespie, supra note 19, at 4-18, 19-27.
160 See World Charter for Nature, G.A. Res. 3717, U.N. GAOR, 37th Sess., Supp. No. 51, Preamble, I 3(a),
U.N. Doc. A/37151 (1982) (“Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients…”); Jean Yasuhara, “Cruella De Vil” Revisited: The International Dog and Cat Fur Trade, 22 Loy. L.A. INT’L & Col.-tP. L. REv. 403 (2000).
170. “Environmental management is one of the great challenges of modern times. As with superpower diplomacy, the urgency of management has increased as a result of man’s ingenuity in devising ever more sophisticated and powerful technologies. But the risks arising from pollution, the unintended by-product of economic activity, are far more subtle and pervasive than nuclear war in terms of poisoned air, contaminated water, and a toxified food chain.” LESTER Ross, ENVIRONMENTAL POLICY IN CHINA 2 (1988).
171. THE LAW ON LAND MANAGEMENT OF THE PR.C. (1986 – 1998) 353-60 (1999).
172. REFORM OF ENVIRONMENTAL AND LAND LEGISLATION IN THE PEOPLES’S REPUBLIC OF CHINA, supra note
162, at 93, 150. 173. Id. at 101. 174. Id. at 104. 175. Id. at 135. 176. Id. at 109. 177. Id. at 133.
178. Id. at 117-18. The new law introduces the concept of a civil law registry system and the principles for the implementation of four categories of land rights.
179. Id. at 102.
180. Gregory Maggio, Recognizing the Vital Role of Local Communities in International Legal Instruments for Conserving Biodiversity, 16 UCLA J. ENVTL. L. & POLY 179 (1997).
181. Tracy Dobson, Community Participation in Natural Resources Management Malawi: Charting A New Course for Sustainability, 9 COLO. J. INT’L ENVTL. L. & POL’Y 153 (1998); David VanderZwaag, International Law and Arctic Marine Conservation and Protection: A Slushy, Shifting Seascape, 9 GEO. INT’L ENVTL. L. REV. 303 (1997).
182. See Wang Xi, Forest Policy, Law and Public Participation in China, in IMPLEMENTING INTERNATIONAL ENVIRONMENTAL LAW IN GERMANY AND CHINA 59, 71 (Tao Zhengua & Rudiger Wolfrum eds., 2001) (“Public awareness of forest issues and public participation in forest conservation have been increasing, at least in major cities of China, in recent years.”).
183. For example, in the United States (in Oregon), the state police may offer a reward for information about poaching and there is a “Turn in a Poacher” hotline. Kazmar, supra note 15, at 127 (“The signatory nations should put into place an incentive structure to compensate any person or entity furnishing information leading to an arrest, criminal conviction, civil penalty assessment or forfeiture of property.”).
184. See generally Barnabas Dickson, Global Regulation and Communal Management, in ENDANGERED SPEciEs THREATENED CONVENTION, supra note 161, at 161.
185. Jay Carey, Improving The Efficacy of CITES by Providing the Proper Incentives to Protect Endangered
Species, 77 WASH. U. L.Q. 1291, 1307, 1314 (1999); Michael Hickey, Acceptance of Sustainable Use Within the CITES Community, 23 VT. L. REv. 861 (1999).
186. Carey, supra note 185, at 1315.
187. See Krieps, supra note 142, at 485. “Perhaps the most fundamental concern is that some authority must be found to determine which uses of which endangered species are sustainable. Given the difficulties in determining such fundamental notions as what constitutes a species or a specimen under CITES, it seems unlikely that all parties could have agreed on a common definition of sustainable use.”
188. Id. at 485-92.
189. Barnabas Dickson, Precaution at the Heart of CITES?, in ENDANGERED SPECIES, THREATENED CONVENTION, supra note 161, at 38.
190. See Cheung, supra note 159 at 144-45 (“Under CITES, states wishing to downlist have the burden of proving that animals of a given population can be removed without jeopardizing the sustainability of their populations. As evidenced by language in the treaty, the foundation of CITES incorporates the precautionary principle – the notion that action must not be taken if it poses a risk of harm. In making a showing that sustainable consumptive use is feasible for a species, it is necessary to rely on concrete scientific information. However, what ultimately constrains the ability of states to make a sound determination about the sustainability of a given population are the inherent limitations of science itself. Although the use of scientific information is most valuable for describing and understanding the present status of a particular species, it cannot be relied upon as the sole basis for predicting a species’ future status.”).
191. Id. at 146.
192. Protect Wildlife, RENmiN RIBAO, Oct. 22, 1980, reprinted in Ross & SILK, supra note 4, at 203 (“We
must strenuously appeal to the public, and quickly take effective steps to protect nature, to save all those kinds of wildlife resources which face destruction.”).
193. Cheung, supra note 159, at 152-53 (“A change in the traditional beliefs and cultural practices of consumers is crucial to curbing demand in the long term. This can be accomplished through culturally-sensitive public awareness and education campaigns. Achieving this in the short term is virtually impossible as such beliefs and practices are so entrenched in ancient medical customs that many in the Chinese medical community still advocate them. Nevertheless, raising the awareness and obtaining the cooperation of the Oriental medicine community about the plight of the tiger and rhinoceros and the need for better conservation should be approaches taken now to reduce demand in the long term.”).
194. Pelly Amendment, 22 U.S.C. 1971-1980 (1978). The law allows the President to block the importation of any product from a country that is diminishing “the effectiveness of any international program for endangered or threatened species.” President Clinton imposed trade sanctions on wildlife products against Taiwan for continuing trade in contravention of CITES. Cheung, supra note 159, at 153. Naomi Lefkovitz & William Snape, Searching For GATT’s Environmental Miranda: Are “Process Standards” Getting “Due Process”?, 27 CORNELL INT’L L.J. 777, 815 (1994). China took explicit steps towards curtailing illicit trade that were acknowledged by the Standing Committee of CITES in 1994. The United States did not pursue any sanctions against China. Amy Vulpio, From the Forests of Asia to the Pharmacies of New York City: Searching for a Safe Haven for Rhinos and Tigers, 11 GEO. INT’L ENVTL. L. REv. 463, 479-480 (1999). Two months after the Steering Committee of CITES urged China to ban trade in wildlife species, it prohibited the manufacture of medicines containing rhinoceros horn and tiger bone. Cheung, supra note 159, at 139-40.
195. United Nations Conference On Environment And Development: Convention On Biological Diversity
31 LL.M 818 (1992). 196. Id. at art. 6. 197. Id. at art. 7. 198. Id. at arts. 2, 8. 199. Id.
200. id. at arts. 7, 8. 201. Id. at art. 14.
202. All of the conservation obligations of the Convention are qualified by the phrase “as far as possible and as appropriate” and there are limits with respect to national law. Rudiger Wolfram, The Protection and Management of Biological Diversity, in INTERNATIONAL, REGIONAL AND NATIONAL ENVIRONMENTAL LAW, supra note 151, at 359. “These clauses weaken the obligations to a considerable extent. They reflect, however, both the fact that some countries of origin of genetic resources face economic obstacles to fully implementing such obligations, and the principle, enshrined in Article 3 of the Biodiversity Convention, that States shall have the sovereign right to exploit their own resources pursuant to their own environmental policies.”
203. id. at 371-72 (“The failure to provide appropriate incentives seems to be one essential shortcoming of all environmental instruments to date. As long as developing countries are not able to attach any significant economic value to biological resources such as the tropical rain forests, and see them only as resources of
tropical timber or arable land, international efforts to provide for protection are bound to remain fruitless…. The Biodiversity Convention has created a strong incentive for host States to provide for protection of biological resources. To the extent the Biodiversity Convention induces States Parties to accept world community interests in the conservation and sustainable development of biological interests as their own interests, they will put their national jurisdictional powers at the service of the world community.”).
204. Wang Xi & Xia Kunbao, The State Plan of P. China on Biodiversity Conservation: An Introduction, Paper presented at the Third Meeting of Northeast Asia & North Pacific Environmental Forum, Alaska, U.S. (1994).
205. Zhigang Jiang et al., Reintroduction and Recovery of Pere David’s Deer in China, 28 WILDLIFE SOC’Y BuLLEn 681, 682 (2000).
206. Id. at 682.
207. Id.
208. Id.
209. Id.
210. Id.
211. Id. at 685-87.
212. Id.
213. Li Yi-Minget et al., Illegal Wildlife Trade in the Himalayan Region of China, in BIODIVERSITY AND CONSERVATION 901 (2000).
214. Id.
215. Id. at 901-02.
216. Id. at 902.
217. Id. at 903.
218. Id.
219. Id. at 905.
220. Id.
221. Id. (“The traded species and wildlife products are used for food, medicines and pets. For instance, Hill Mynas (Gracula religiosa) are traded for pets in China, and especially in the Indo-Malayan region the volume of Hill Mynas is high …. The illegal trade across the Sino-Nepalese and Sino-Indian border is active. The wool (Shahtoosh) of the Tibetan antelope (Pantholops hodgsoni) is involved in the trade. For example, in the summer of 1997 the Ali custom point in Tibet, at the border between China and India, seized 684.5 kg. of Shahtoosh equaling the weight of wool of six thousand Tibetan antelopes (1997).”
222. Id. at 909. 223. Id. at 909-10. 224. Id.
225. Kai-Ching Cha, Can the Convention on Biological Diversity Save the Siberian Tiger?, 24 ENVIRONS ENvTL. L. & PoLY J. 3, 4-5 (2001).
226. Id. at 18. 227. Id. at 4.
228. Id. at 5 (“The current habitat of the Siberian tiger in the Sikhote-Alin is unique. The mountains form a natural boundary between the vast boreal forests of Siberia and the temperate forests of southern Asia. With more than 150 species of trees and shrubs, this is one of the most diverse ecosystems in Asia. In the Sikhote-Alin Mountains, southern species of animals mix with northern species, such as moose and Sika deer, or marten and leopards. In addition, there are several kinds of mammals that live nowhere else in Russia, for instance, the Amur leopard, Sika otter and Siberian tiger.”).
229. Id. In addition to ecological, ethical and moral considerations relating to preservation, the Siberian tiger has had singular importance for indigenous peoples. “The cultural argument for preserving the Siberian tiger is based on the fact that the animal is the subject of much folklore within indigenous tribes in the Sikhote-Alin wilderness. The Udegei people used to revere the tiger; they considered it the spirit of the mountains. However, attempts to create a unified Russian identity during Stalin’s regime have paid off. Currently, although some may say that the taiga would be boring without tigers, the Udegei have not retained any myths about the forest.” Id. at 17.
230. Id. at 7. “In the PRC, local people have considered the tigers to be pests and dangerous to people. Additionally, there has always been a great demand for tiger parts in traditional Chinese medicine. This situation has stimulated poaching in remote places. Hunters neither accepted nor respected the regulation, and ordinary citizens were ignorant of it. Establishing one or more reserves will likely be effective protection for the tiger. The managerial problem is that suitable sites are rare; a huge territory is required, and information is not available about the animal’s specific needs. However, a plan of saving the tiger in the PRC continues to move forward,” Hongfa and Giles supra note 16, at 22.
231. Cha, supra note 225, at 9- 10.
232. Id. at 10. 233. Id.
234. Hongfa & Giles, supra note 16, at 22.
235. Cha, supra note 225, at 27. (“An additional strategy for preserving Siberian tiger habitat is to develop environmentally compatible uses for the land in the Sikhote-Alin wilderness. One example is the American Forests Organization, which pays local villagers to plant and maintain 300,000 Korean pines in the Primorsky Krai region.”).
236. Id.
237. Kristina Gjerde, Biodiversity Conservation in the United States, in INW INTERNATIONAL LAw AND THE CONSERVATION OF BIODIVERSITY 195 (1996).
238. Jessica Spiegel, Even Jaws Deserves to Keep His Fins: Outlawing Shark Finning Throughout Global Waters, 24 B.C. INT’L & CoMe. L. REv. 409,409 (2001).
239. Id. at 410.
240. Id. (“This latter practice appalls conservationists the most because sharks cannot swim without their fins and therefore, a majority of them drown because they need to stay in motion to flush oxygen-rich water over their gills in order to breathe. If a shark is not dead when it is finned, it dies shortly thereafter when the rest of the fish is thrown back into the sea.”).
241. Id.
242. Id.
243. Id. at 411, 427.
244. Id. at 412.
245. Id. at 423-24. Congress enacted H.R. 5461 on December 7, 2000, amending the Magnuson Act to impose the ban and with the signature of the President it will become law.
246. Zhang Kunmin & Wang Can, China’s Sustainable Development Strategy and International Cooperation on Environment, in IMPLEMENTING INTERNATIONAL ENVIRONMENTAL LAW IN GERMANY AND CHINA (2001). 247. The term “globalization,” at its core, is usually directed to economic relations. “Globalization is
economic.” Lawrence Friedman, Erewhon: The Coming Global Legal Order, 37 STAN. J. INT’L L. 347, 348 (2001); Globalization is “foremost an economic process.” Alex Seita, Globalization and the Convergence of Values, 30 CORNELL INT’L L. J. 429,491 (1997). In contrast, convergence is used here primarily to describe legal relations, particularly systems of law from different states that tend to operate in similar ways.
248. Lawrence Friedman, Borders: On The Emerging Sociology Of Transnational Law, 32 STAN. J. INT’L L. 65 (1996).
249. WORLD COMM’N ON ENv’T AND DEv., OuR CommoN FUTURE 312 (1987) (“National boundaries have become so porous that traditional distinctions between local, national, and international issues have become blurred …. This fast-changing context for national action has introduced new imperatives and new opportunities for international cooperation.”).
250. The events of September 11, 2001 and the attack on the United States affirm the centrality of this interest for the entire international community.
251. For example, in trade, convergence occurs through the implementation of the GATT and the WTO; Enabling Sustainable Development, The Role of the International Economy in OuR CommoN FUTURE, supra note 31, at 75.
252. Louis Henkin, That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera, 68 FORDHAM L. REv. 1, 2 (1999) (“It is part of my thesis that the sovereignty of states in international relations is essentially a mistake, an illegitimate offspring. Sovereignty began as a domestic term in a domestic context. It referred to relations between rulers and those they ruled, between the “Sovereign” and his or her subjects. Its application to modern states – a state is not a person, but an abstraction – and its relation to other abstractions, such as the governments which represent suites, has inevitably brought distortion and confusion.”).
253. Convergence takes place in criminal law as well. For example, it occurs through the Rome Statute of the International Criminal Court (ICC). U.N. Doc. A/conf. 183/9, July 17, 1998, 37 ILM 999 (1998). Lawrence Watters, Convergence and the Procedures of the International Criminal Court: An International and Comparative Perspective, 39 COLUM. J. TRANSNAT’L L. (2002). The ICC contemplates use of trial procedures that rely on both the Continental and Anglo-American tradition. “The trial is the place where the clash between common and civil law is most obvious. An international criminal court does not necessarily strictly need to follow one or the other. There are certain principles that are to be respected as they have emerged from both the adversarial as well as from the inquisitorial system…” CHRISTOPH SAFFERLING, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE 371 (2001). The same pattern is emerging in the International Criminal Tribunal for the former Yugoslavia (ICTY) as well. Richard Goldstone, Assessing The Work of the United Nations War Crimes Tribunals, 33 STAN. J. INT’L L. 1 (1997)
254. This is not to say that common interests automatically lead to easy solutions. For example, the special place of indigenous peoples, with their unique relationship to the natural environment, including wildlife and endangered species, requires particularly thoughtful approaches to use as well as to dispute resolution. See Lawrence Watters, Indigenous Peoples and the Environment: Convergence From A Nordic Perspective, 20 UCLA J. ENVTL. L. & POLY 419 (2002); Lawrence Watters & Connie Dugger, The Hunt For Gray Whales: The Dilemma of Native American Treaty Rights and the International Moratorium on Whaling, 22 COLUM. J. ENVTL. L. 319 (1997).
255. Mediation, for example, is an old and very important approach in civil practice. Vai lo Lo, Resolution of Civil Disputes in China, 18 UCLA PAC. BASIN L.J. 117 (2001).
256. Henkin supra note 252, at 11. “Solutions require the attention and cooperation by all who are affected by them, and today that still means governance by those who have jurisdiction and law-making authority, not only under their own national systems, but also under international law.”
257. Environmental law and international environmental law are powerful forces in convergence. See Lawrence Watters, Understanding the Framework: Convergence and Environmental Law in an International and Comparative Context, 14 GEO. INT’L ENvTL. L. REV. 161 (2001); Hans Christian Bugge, International Environmental Law – Status and Challenges, in INTERNATIONAL ENVIRONMENTAL LAW 53 (Erling Selvig & Hans Christian Bugg, eds., 1995); Jeffrey Dunhoff, From Green to Global: Toward the Transformation of International Environmental Law, 19 HARv. ENVTL. L. REV. 241 (1995).
258. Convention for the Protection of Birds Useful to Agriculture, March 19, 1902, 102 B.ES.P. 969 (entered into force May 11, 1907). “But for the treaty and the statute there soon might be no birds for any powers to deal with.” Justice Holmes in Missouri v. Holland, 252 U.S. 416, 435 (1920) (referring to the Convention for the Protection of Migratory Birds of 1916 Between the U.S. and Great Britain, on behalf of Canada, and to the Migratory Bird Treaty Act which implements the Convention in the U.S.).
259. Dinah Shelton, Human Rights, Environmental Rights and the Right to Environment, 28 STAN. J. INTL. L. 103,120 (1991).
LAWRENCE WATTERS* AND WANG XI**
* Visiting Professor, Fulbright Scholar, Institute of Public and International Law, Faculty of Law, University of Oslo, 2001-2002. A note of genuine appreciation is due to my colleagues for this work in Norway: Hans Christian Bugge, Geir Ulfstein, Henning Jakhelln, Anne Hellum, Jon Johnsen, Ulf Stridbeck, Stale Eskeland, Ole Kristian Fauchald and Inger Johanne Sand at the Faculty of Law, University of Oslo, along with the staff of the Law Library; Jean Nesland Olsen and Dr. Tore Olsen of the Fulbright Foundation of Norway; and, William Burke and William Rodgers at the University of Washington School of Law. This article is dedicated to the outstanding teacher in our family, Doris Ormsby Watters, who is responsible for all of my work.
** Professor of Law, Institute of Environmental Law, University of Wuhan. This article is dedicated to my parents, Wang Xin and Wu Jinshen; and, to Shi Suyu and Wang Xuan, my wife and son.
Copyright Georgetown University Law Center Spring 2002
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