EU-China Biodiversity Programme (ECBP)
Assessment on Biodiversity-related Policies and Legislations in China
Yu Wenxuan
January 2008
Executive Summary The ever-increasing problem of biodiversity degeneration as well as the potential and realistic harm to human beings urges the international society to carry out a series of common actions including enacting biodiversity-related international laws for the conservation and sustainable utilization of biodiversity. The performance of international treaties such as Convention on Biological Diversity (CBD), Cartagena Protocol on Biosafety (CPB), Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Convention on Wetlands of International Importance Especially as Waterfowl Habitat and United Nations Convention to Combat Desertification (UNCCD) has provided important basis for international biodiversity conservation. China actively participates and promotes the formulation of biodiversity-related international laws, pays great attention to performance of relevant international treaties and bilateral cooperation, and takes the performance of international treaties as one of the motivations of improving domestic policies and legislations. From the perspective of policies and legislations structure in China, biodiversity-related special policies and legislations combine with relevant policies and legislations, while comprehensive polices and legislations combine with industrial policies and legislations. These policies and legislations provide important basis for performance of international obligations and domestic administration of biodiversity. At present, a preliminary biodiversity-related policies system has come into form in China, which is composed of comprehensive biodiversity-related policies and special biodiversity polices. The latter can be further divided into genetic resources policies, biological species policies and ecosystem policies. The advantages and characteristics of Chinese biodiversity-related policies include: the contents covering various fields with clear focus; from the perspective of system structure, ecosystem diversity and species diversity are highly recognized, whereas there are not many policy provisions with regards to genetic resources diversity, which indicates that ecosystem conservation related policies are in the leading position; from the perspective of rule makers, it shows strong characteristics of department-orientation and industry-orientation; from the perspective of development process, it has prominent internationalized characteristics; and from the perspective of the subject body and object of the rules, it is strongly aimed at focus and flexible. The biodiversity-related legislation system in China is mainly composed of relevant provisions in the Constitution, laws and special regulations related to biodiversity conservation and sustainable utilization, relevant regulations, special administrative rules and normative documents, covering ecosystem protection, natural reserves administration, wildlife administration, livestock species resources administration, crop species resources administration, herbal medicine species administration, new biological varieties administration as well as animal and plant test 2
and quarantine administration, etc. The advantages and characteristics of the biodiversity-related legislations in China include: (i) The legislation is closely connected with biodiversity-related policies. (ii) The content of legislation covers a large area but is not so complete. (iii) The legal hierarchy is low. (iv) In terms of development process, the development of biodiversity-related international laws has significant promotion effect to the biodiversity-related legislation process in China. (v) Regarding the implementation, the biodiversity-related legislations have significant effect to biodiversity conservation and sustainable utilization practice, but still have many elements to be completed and improved. The problems of biodiversity-related policies in China mainly include: (i) deviation in policy ideology, which leads to separation between protection and utilization; (ii) lack of policy basis, which renders the content of policies not scientifically reasonable; (iii) incompleteness of policy system with the “administration vacancy�; (iv) incompleteness of policy content, lacking important parts; (v) insufficient consideration about biodiversity in other policies, which cause handicap of policies; (vi) ineffective enforcement, which affects the full realization of the goals of policies. The problems of biodiversity-related legislation in China mainly include: (i) improper positioning of legislation goals, with the separation between protection and utilization; (ii) the mode of department legislation, which leads to conflict of relevant legislation contents and reduces legislation efficiency; (iii) lack of systematic and integrated characteristics of the legal system; (iv) the content of legislation needs to be improved and lacks of important mechanism and system; (v) ineffective enforcement of legislation; (vi) local legislations need to be improved. In order to improve biodiversity-related policies in China, the following measures shall be conducted: (i) adjusting policy ideology, further abiding to the sustainable development principle; (ii) carrying out detailed investigations over the present situation of biodiversity so as to provide scientific basis for policy making; (iii) improving policy system, so as to provide complete policy framework for biodiversity conservation; (iv) improving the content of relevant policies, especially contents related to the prevention of biological genetic resources loss, benefit sharing, prevention of species invasion, species conservation, scientific research support, and economic incentive mechanism for wetland protection, so as to provide more adequate policy basis for biodiversity conservation; (v) attaching importance to implementation, and realizing the goal and purpose of biodiversity-related policies. The priority actions with regards to policy improvement shall include: (i) adjusting legislation ideology; (ii) improving comprehensive biodiversity-related policies; (iii) formulating comprehensive biological genetic resources policies as soon as possible; (iv) adding and improving provisions related to biological genetic resource loss; (v) increasing public participation, raising the biodiversity conservation awareness; (vi) attaching importance to organization construction and internal coordination; (vii) increasing capital input; (viii) improving local capability; (ix) strengthening biodiversity-related legislation. In order to improve biodiversity-related legislation in China, the following 3
measures shall be taken: (i) abiding to the sustainable development strategy so that the biodiversity conservation and utilization can be integrated within the legal system; (ii) promoting the reform of legislation system, and recognizing the importance of coordination between relevant legislations; (iii) perfecting biodiversity-related legislation system to make up for the system defects; (iv) improving the content of legislation, establishing and improving important mechanism and system. The priority actions with regards to improvement of legislation shall include: enacting of Natural Reserve Law, Administrative Ordinance on Biological Genetic Resources and Administrative Regulations on GMOs Safety Environment as soon as possible; Amending Law on the Protection of Wild Fauna; further strengthening the law enforcement, such as enhancing the understanding of the legislation ideology of law enforcement departments, perfecting the contents in relevant legislations which affect the biodiversity legislation enforcement, improving the legislation capability and law enforcement capability of local governments, and strengthening international communications and cooperation, etc.
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Table of Contents LIST OF TERMS AND ABBREVIATIONS................................................................................. 7 Chapter I: Introduction .................................................................................................................. 8 1.1 The project and ECBP ......................................................................................................... 8 1.2 Justification ......................................................................................................................... 8 1.3 Roadmap of research ......................................................................................................... 12 Chapter II: International Law Background of Biodiversity-related Policies and Legislations in China.......................................................................................................................................... 13 2.1 Main contents of CBD and its protocol and their implementation in China ..................... 14 2.1.1 Main contents of CBD and CPB ............................................................................ 14 2.1.2 Implementation of CBD and CPB by China .......................................................... 15 2.2 Main contents of other important biodiversity-related treaties and their implementation in China ....................................................................................................................................... 17 2.2.1 CITES ..................................................................................................................... 17 2.2.2 Ramsar Convention ................................................................................................ 18 2.2.3 UNCCD .................................................................................................................. 21 2.3 Summary: China’s experience of performance of international treaties on biodiversity conservation ............................................................................................................................ 23 Chapter III: Current Situation of Biodiversity-related Policies and Legislations in China ... 25 3.1 Current biodiversity-related policies in China .................................................................. 25 3.1.1 Comprehensive biodiversity-related policies ......................................................... 26 3.1.2 Biodiversity-related agricultural policies ............................................................... 28 3.1.3 Biodiversity-related forestry policies ..................................................................... 29 3.1.4 Biodiversity-related traditional Chinese medicine policies .................................... 30 3.1.5 Other biodiversity-related policies ......................................................................... 31 3.1.6 Advantages and characteristics of biodiversity-related policies in China .............. 32 3.2 Current situation of biodiversity-related legislation in China ........................................... 33 3.2.1 Legal system of biodiversity-related legislation .................................................... 33 3.2.2 Main contents of biodiversity related legislation ................................................... 35 3.2.3 Advantages and characteristics of biodiversity legislation in China ...................... 38 Chapter IV: Problems in Biodiversity-related Policies and Legislation in China ................... 40 4.1 Problems in biodiversity-related policies in China ........................................................... 40 4.1.1 Biodiversity conservation and sustainable utilization separated in ideology ......... 40 4.1.2 Insufficient scientific basis in policy making ......................................................... 41 4.1.3 “Administration vacuum” due to incomplete policy system .................................. 41 4.1.4 Incomplete policies and lacking of important contents .......................................... 42 4.1.5 Conflict and inconsistence between biodiversity-related policies and other policies ......................................................................................................................................... 45 4.1.6 Ineffective implementation .................................................................................... 46 4.2 Problems in biodiversity legislation in China ................................................................... 47 4.2.1 Inappropriate legislation objectives ....................................................................... 47 4.2.2 Legislation by different departments lead to conflicts and low efficiency ............. 49
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4.2.3 Unsystematic and incomplete legal framework ..................................................... 50 4.2.4 Absence in important mechanisms and systems..................................................... 52 4.2.5 Inefficient implementation ..................................................................................... 55 4.2.6 Local legislation not fully play its role................................................................... 57 Chapter V: Suggestions to Improve Biodiversity-related Policies and Legislation ................. 60 5.1 Suggestion to improve biodiversity-related policies in China .......................................... 60 5.1.1 Further implementing sustainable development Strategy ...................................... 60 5.1.2 Providing scientific basis for policy making .......................................................... 61 5.1.3 Perfecting policy framework .................................................................................. 62 5.1.4 Adjusting the contents of the policies .................................................................... 63 5.1.5 Emphasizing on fulfillment of the aim and objective of policies ........................... 64 5.1.6 Priority actions ....................................................................................................... 65 5.2 Suggestions to perfect biodiversity legislation in China ................................................... 68 5.2.1 Implementing sustainable development strategy in objectives and principles ....... 68 5.2.2 Reforming of legislation system and emphasizing on the coordination among relevant legislations ......................................................................................................... 69 5.2.3 Improving legal system .......................................................................................... 70 5.2.4 Complementing and perfecting important mechanisms and systems ..................... 74 5.2.5 Improving the enforceability and effectiveness of legislation................................ 77 5.2.6 Priority actions ....................................................................................................... 78 References ...................................................................................................................................... 91
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LIST OF TERMS AND ABBREVIATIONS BCCAS CBD CCICCD
SATCM
Biodiversity Committee of Chinese Academy of Sciences Convention on Biological Diversity China National Committee for the Implementation of the United Nations Convention to Combat Desertification China Desertification Prevention and Control Training Center China Desertification Supervision Center Coordination Group for Desertification Prevention and Control in China Convention on International Trade in Endangered Species of Wild Fauna and Flora Cartagena Protocol on Biosafety / Cartagena Protocol environmental impact assessment Department of Wildlife Conservation, State Forestry Administration International Seed Testing Association International Union for Conservation of Nature and Natural Resources Ministry of Land and Resources Ministry of Agriculture Ministry of Construction Ministry of Forestry Ministry of Water Resources Organization for Economic Co-operation and Development Convention on Wetlands of International Importance Especially as Waterfowl Habitat Research and Development Center of Desertification Prevention and Control State Administration of Traditional Chinese Medicine
SCES SEA SEPA SEPC SOA SPC UNCCD UNFCCC UPOV UNDP WIPO WRI
Scientific Commission on Endangered Species Strategic Environmental Assessment State Environmental Protection Administration State Environmental Protection Committee State Oceanic Administration State Planning Commission United Nations Convention to Combat Desertification United Nations Framework Convention on Climate Change International Union for the Protection of New Varieties of Plants Unite Nation Development Programme World Intellectual Property Organization WIPO World Resources Institute
CDDPCC CDSC CGDPCC CITES CPB EIA DWC, SFA ISTA IUCN MLR MOA MOC MOF MWR OECD Ramsar Convention RDCDPC
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Chapter I: Introduction
1.1 The project and ECBP Currently, China has established a complex national policy and legislative framework to address the increasingly serious biodiversity destruction and degradation and also to fulfill obligations under international conventions and agreements such as CBD and CITES. However, despite this framework, biodiversity in China is still in steep decline, primarily as a result of inadequate regulation on habitat loss and degradation and unsustainable harvesting of key species. These consequences often result from those economic and social development policies and laws, which are not directly intended to address biodiversity, but indirectly regulate biodiversity conservation and its sustainable utilization. Meanwhile, China’s understanding on biodiversity and its importance and value is so inadequate that it can’t sustain economic development very well. Biodiversity responsibilities are widely dispersed among Government institutions, resulting in a fragmentary and often contradictory policy and regulatory framework. Because of narrow sectoral responsibilities and limited provisions and mechanisms for coordination, ecosystems are not managed in an integrated manner but rather individual agencies have mandates for specific elements. These mandates tend to be narrowly interpreted according to the assigned responsibilities of the agencies involved, which leads to potential implementation conflicts and thus threaten the overall function of the ecosystem conservation and sustainable utilization. The EU-China Biodiversity Programme (ECBP) is committed to strengthening the institutional, policy and legislative environment for biodiversity conservation in China. In 2006, Institutional and Policy Expert from ECBP composed a preliminary “Assessment Report on China’s Biodiversity related policy and Legislative Framework”, which based on a review and analysis of existing information and provided a series of recommendations to improve the existing policy and legislative framework. However, this report is not intended to be a comprehensive study on China’s biodiversity related policy and legal framework, but rather a starting point for a more in-depth analysis. Therefore, under this program, ECBP decided to commence on further studies of the status, problems and corresponding improving approaches of biodiversity policies and laws. 1.2 Justification Biodiversity means “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” 1 Biodiversity is usually generalized into three 1
CBD, Art. 2 8
parts: genetic diversity, species diversity and ecosystem diversity. According to the definition from World Resources Institute, genetic diversity is defined in both a broad way and a narrow way. In broad sense, genetic diversity means genetic diversity between species, which refers to the aggregation of all the biological-genes on the earth, i.e. various genetic information held by all kinds of organisms. Genetic diversity between species is the material basis for species diversity and ecosystem diversity. In narrow sense, genetic diversity means genetic diversity within species, which refers to the aggregation of all genetic variations among different individuals within same species or same colony, that is the genetic difference and variation within same species. Genetic diversity within species is not only an important source for genetic diversity between species, but also a source for increasing organism yield, improving biological species and evolution. Thus genetic diversity provides human with abundance of breeding materials of plants and animals, sufficient for breeding selection and extraction of the individuals and colonies with characteristics that meet their needs, and increase the surviving opportunity of species. 2 Species diversity means the aggregation of all the species as well as their variations of all organisms on the earth. It is generally believed that species diversity includes three parts: (i) species diversity within specific geographic area, i.e. the aggregation of species within certain area; (ii) species diversity of specific ecosystem unit or community; (iii) species diversity of certain phase or branch of evolution. 3 As the core component of the life-support system of the earth, biodiversity has great significance to evolution and preserving the life maintenance system of biosphere. 4 With regards to human beings, biodiversity can not only provide various materials necessary for living and production, but also serve with great significance to maintenance of the living environment of human beings. Diversity of ecosystem means diversity of living environment of biosphere, bio-community and eco process, as well as difference of living environment in ecosystem and diversity of eco variation, including diversity of environmental system, biological system and eco process. Diversity of ecosystem mainly includes the following six aspects: diversity of the compositions of ecosystem; diversity of types of ecosystem; diversity of structure of ecosystem; diversity of functions of ecosystem; diversity of information transition of ecosystem; and diversity of species relationship in ecosystem. 5 China is one of the countries with the most abundant biodiversity on the earth. China has over 30,000 kinds of higher plants, 6347 kinds of vertebrates, which accounts for 10% and 14% of the sum of the world respectively; and has 599 kinds of terrestrial ecosystem. The biodiversity in China is characterized in: (i) abundance in 2
Xie Guowen, Biodiversity Conservation and Utilization 2 (Hunan Science and Technology Press, 2000); Zhang Weiping, Biodiversity Conservation 6 (China Environment Science Press, 2001) 3 Zhang Weiping, Biodiversity Conservation 6 (China Environment Science Press, 2001); Xie Guowen, Biodiversity Conservation and Utilization 35-36 (Hunan Science and Technology Press, 2000) 4 CBD, Preamble 5 Xie Guowen, Biodiversity Conservation and Utilization 62-76 (Hunan Science and Technology Press, 2000) 9
species: China has over 30,000 kinds of higher plants, and among the 15 families and 850 species of gymnosperms all over the world, China has 10 families and around 250 species, which is the country with most gymnosperms in the world. China has 6347 kinds of vertebrates, accounting for nearly 14% of the sum of the world. (ii) various special genus and species: higher plants have the largest amount of special species, nearly 17300 kinds, accounting for over 57% of the total number of species of higher plants in China. Among the 6347 kinds of vertebrates, there are 667 special species, accounting for 10.5%. (iii) ancient origin of flora: since most parts of China was elevated to be lands during the end of Mesozoic, and was not affected by continent glacier during the 4th Ice Age, many areas saved the ancient residues of the Cretaceous period and the tertiary to different extents. For example, among the existing 7 families of Coniferopsida in the world, China has 6 families. Among animals, panda, baiji (Lipotes vexillifer) and Yangtze Alligator are all ancient and rare species. (iv) abundance of germ plasms resources of cultivated plants, domestic animals and wild relatives: China is the origin of rice and soy, with 50,000 and 20,000 species respectively. China has over 11,000 kinds of medicinal plants and 4215 kinds of forage, and there are over 30 genus and 2238 species of important ornamental plants originated from China. China is the country having the most abundant domestic animal species and groups, with 1938 species and groups. (v) rich and colorful ecosystem: China has various types of terrestrial ecosystems, such as forests, shrubs, grasslands and sparse forest grasslands, meadows, desert regions, alpine tundra, etc., which are further divided into 599 sub-categories due to different climates and soil conditions. 6 At present, loss and damage of biodiversity has demonstrated the ever increasing tendency all around the world, which is especially obvious in developing countries. Biodiversity in China is also faced with huge pressure mainly reflected in the following four aspects: (i) with regard to ecosystem diversity and species diversity, the problem of degeneration of living environment and decrease of species is outstanding, which mainly includes that the degeneration of land, e.g. water and soil loss, land desertification and land Salinization, is expanding, land is decreasing, and sedimentary characteristics of rivers and lakes is more and more serious; the imbalance of water ecosystem mainly characterized in flow-stopping of rivers, drying up of lakes, regional sudden decrease of groundwater level is becoming more and more grave, the oasis and vegetation in arid areas are shrinking, and the flood and drought disasters are more frequent; limited natural forests are still being cut, the reclamation and destroy of grasslands continues, and the eco function of forests and grasslands are substantially declining; red tide of ocean, damages to natural ecosystem, beach erosion and seawater encroachment is getting worse and the ocean eco is deteriorating; the number of wild life is ever decreasing, many rare plant and animal species are in danger of extinguishing. 7 (ii) damages to gene diversity: due to lack of 6
See the website of Biodiversity Clearing-House Mechanism of China at http://www.biodiv.gov.cn/dyxxz/200402/t20040226_88574.htm,(accessed on 30th, October, 2007) 7 Natural Ecosystem Protection Office of SEPA, Report on Eco Issues in China 10 (China Environment Science Press,1999) 10
effective special legislation and policies, biological genetic resources have been severely damaged during the process of production and resource development. For example, because of gasoline development, farmland reclamation and infringement from human and animals, the area of wild soy and wild rice in China is ever decreasing, and in some regions is almost extinguishing. (iii) bio-security is faced with threaten: while China bio technology has been developing rapidly in the past ten years, the expansion of area for environmental release of Genetically Modified Organisms (GMOs) as well as commercialized species has formed potential threat to biodiversity and human health. (iv) grave harm brought by alien species invasion: alien invasive species means species brought in through intention or unintentional human activities, which then obtain the ability of reproduction in the local natural or half-natural ecosystem and which cause notable damages or effect to local ecosystem or scenery. According to preliminary statistics, among the Top 100 most serious alien invasive species announced by Union for Conservation of Nature and Natural Resources (IUCN), about half of them have invaded China; China has 75 genus and 107 species of alien weeds, 32 species of alien pests, 23 species of alien pathogens. These alien species cause eco damages and bio pollution which lead to frequent eco disasters, and bring further harm to human health. Taking only the alien harmful plants as an example, Crofton weed, Hyacinth, Alligator weed, Ragweed and other alien species has posed strong threats to plant diversity in China. 8 The reasons of damages and loss of biodiversity in China is composed of many elements. The development of productivity leads to the increase in both depth and breadth of human development and utilization of nature. In quite a long period, people did not sophistically realized the significance of biodiversity to the existence and development of human, neither did them realize that biodiversity has its own rules of development and capability of bearing, which therefore caused the negligence to the needs of the nature and eco during the development of productivity, and further led to damages and even loss of biodiversity. However, these factors mentioned above are just direct reasons of this result, while the in-depth reason, on one hand, is the lack of effective administration and control over people’s behaviors during the process of development and utilization of biodiversity, which is also the mechanism reason of damages and loss of biodiversity. At this level, we can see that biodiversity-related policies and legislation are not perfect and even not complete with ineffective implementation, which reflects the mechanism problem; on the other hand, the major functions of biodiversity (such as eco service functions) all demonstrate the characteristics of “public articles”, which are hard to appropriate the value if not underestimated in the present economic system. From this point of view, the principle of “who benefits who pays” is not supported. 8 Bai Jianfeng, Severe Harm of Invasive Species to Ecosystem of China (People’s Daily, May 23, 2002, Vol. 6); Ding Jianqing, Wang Ren, Fu Weidong, Influence of Alien Harmful Plants to Biodiversity in China as well as Present Situation and Strategy against it 299-300, published on Biodiversity Conservation in 21st Century in China by Biodiversity Committee of Chinese Academy of Sciences, Natural Ecosystem Protection Office of SEPA, and Department of Wildlife Conservation of State Forestry Administration (China Forestry Publishing House, 2000); Wang Dehui, Biodiversity Conservation and Promotion of Sustainable Development (speech at Seminar of Global Environment Funds and China’s Protection of Environment), October 17, 2002
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In China, the problems from these two aspects are especially notable, and have substantial negative effect on biodiversity conservation and sustainable utilization. Therefore, the necessary approaches to address biodiversity concerns fundamentally in China lie in conducting a comprehensive investigation of biodiversity-related policies and legislation, figuring out the problems therein, and proposing solutions to resolve these problems, especially the feasible action plans, so as to provide reference for relevant authorities of China in drafting biodiversity-related policies and legislation, which is also the objective to be served by the Research. 1.3 Roadmap of research This Research will be conducted according to the roadmap as below: Conducting research with focuses on relevant international treaties concerning biodiversity conservation and sustainable utilization, and summarizing China’s implementation status of these treaties from both policy and legislation perspectives, so as to provide international law background for further research; Conducting complete research on Chinese biodiversity-related policies and legislation, reviewing the policy and legislation framework, summarizing the content of the policies and legislation according to the fields concerned, so as to provide basis for further research; Based on the above-mentioned research, at different levels, finding the problems of biodiversity-related policies and legislation, especially the deficiencies, inadequacies and contradictions in policies and legislation ideology, legal system, content and implementation, as well as the influence of relevant issues on the implementation of the biodiversity-related policies and legislation; ď‚&#x; With regards to the preceding studies, proposing solutions for China to complete and improve biodiversity-related policies and legislation, especially feasible action plans and priority plans, so as to provide reference for drafting policies and legal practice.
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Chapter II: International Law Background of Biodiversity-related Policies and Legislations in China
The generation, effect and solution of biodiversity problems demonstrate notable international characteristics. In order to achieve better conservation and sustainable utilization of biodiversity, and to solve the problem of the increasingly severe loss of biodiversity, international society pays great attention to coordinate the actions of different countries by implementation of international law. These international efforts start with the conservation of specific species with high value to human beings, and gradually develop to the conservation of important species as well as their habitats, so as to apply complete administration and control to biodiversity issues. These unanimous international actions are demonstrated in several international treaties. The research purpose of this chapter includes two parts: one is to provide international law background for biodiversity-related policies and legislations in China. Biodiversity conservation and sustainable utilization is prominently characterized with globalization, therefore the current situation and the improvement of biodiversity-related policies and legislations of one nation is closely related to biodiversity-related international law. Research on international law background for biodiversity-related policies and legislations can assist discovering and solving problems in a broader sense. The other purpose is to study the problems in biodiversity-related policies and legislations in view of performance of international obligations by China. Another more important purpose of this chapter is to summarize the deficiency in biodiversity-related policies and legislations in China in view of performance of international obligations based on the research on major content of relevant treaties as well as policies and legislations in China, so as to provide basis for analysis for further improvement. This chapter follows the roadmap as: 1) Selecting representative biodiversity-related international treaties and conducting detailed research over the main content of CBD and CPB as well as the performance of China. Whereas with the CITES, Convention on Wetlands of International Importance Especially as Waterfowl Habitat, which is also called Ramsar Convention, UNCCD with the content related to species conservation and ecosystem protection, this chapter will also study generally on the main content of these international treaties and feedbacks of policies and legislations of China. 2) Research on present situation of policies and legislations for performance of obligations of China. Many of biodiversity-related policies and legislations in China has been enacted or promulgated, this chapter focus mainly on such policies and legislations. Since relevant policies and legislations will be discussed in detail in later chapter, this chapter talks about it briefly. 3) Summarizing obstacles in policies and legislations in performance of obligations of biodiversity-related international treaties by China, i.e. the problems in the aforesaid policies and legislations. This is the basic point of research of this chapter. Since most of these issues overlap with the specialized researches on policies and legislations in later chapters, this chapter only discussed about them briefly.
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2.1 Main contents of CBD and its protocol and their implementation in China CBD is the most important treaties among biodiversity-related international laws, which forms a global legal framework for entire conservation and utilization of biodiversity, including ecosystem, species and genetic resources, and which connects biodiversity conservation with the economic purpose of sustainable utilization of biological resources, and brings up the principle of sharing genetic resource benefit in a fair and reasonable way 9, with great significance for international conservation of biodiversity. 2.1.1 Main contents of CBD and CPB Those directly related with this research in CBD include the following aspects: (1) Purpose of CBD. The purpose of CBD includes three parts: the first is biodiversity conservation; the second is sustainable utilization of the composition of biodiversity; and the third is fair and reasonable sharing of benefits generated from utilization of genetic resources. 10 (2) Basic Principles of biodiversity-related international law. Each country has the sovereign to develop its resources according to its own environment policies, and has the responsibility accordingly to assure that the activities within its jurisdiction or under its control shall not cause damages to the environment of other countries or regions outside of its jurisdiction; 11 each country has the sovereign with regards to its natural resources, while the right of decision on accessing the genetic resources belongs to the government of each country and shall be made according to national laws. 12 (3) Measures of biodiversity conservation and sustainable utilization. Such measures mainly include: enacting relevant national strategies, plans or projects; investigating and monitoring the critical biodiversity components for the conservation and sustainable utilization of biodiversity as well as processes and activities which may incur substantial negative effect to the conservation and sustainable utilization of biodiversity; implementing the measures of in-situs and ex-situs conservation; implementing the measures of sustainable utilization of biodiversity components; implementing the social and economic measures encouraging the conservation and sustainable utilization of biodiversity components; establishing and maintaining the plans for science and technology education and training in respect of measures for investigation, conservation and sustainable utilization of biodiversity as well as its components; promoting and encouraging the project of public education and awareness of biodiversity conservation; then evaluating the environment influence of proposed projects which may have severe negative effect to biodiversity; exchanging information; collaborating in science and technology. 13 (4) Other matters: CBD has also come up with regulations with regards to accessing of genetic resources, sharing of benefits, accessing and transfer of modern bio-technology, mechanism of capital and finance, and other aspects. 9
Background and History of Convention on Biological Diversity at http://www.nies.org/biodiv/biodiversity/background%20and%20history-zh.htm, December 2000 10 C BD, Art. 1 11 C BD, Art. 3 12 C BD, Art. 15 13 C BD, Art. 6-14, 17-18 14
CPB further elaborates the requirements related to biosafety in CBD, and makes more practical rules with regards to some principles in CBD. The object of CPB is assuring sufficient measures of conservation in the field of living modified organisms (LMO) which is obtained through modern biotechnology, and which may have negative affect to biodiversity conservation and sustainable utilization, during its safe transfer, process and utilization, and meanwhile considering completely the risk generated against human health, especially issues of trans-boundary movements. CPB stipulate the prior informed consent (PIC) procedure, i.e. for all trans-boundary movements of LMO within the scope of application of CPB, this procedure must be followed; failure by the importing party to respond to the exporting party does not imply approval of importation. Furthermore, CPB also stipulates risk assessment, risk management and labeling system, and requires the State Parties to establish information exchange and biosafety clearing house. 2.1.2 Implementation of CBD and CPB by China As party to CBD and CPB, China has always been actively engaged in domestic performance. With regards to policies, as early as in 1991, China formulated Action plan of Biodiversity Conservation in China, which was promulgated and implemented in June 1994, rendering China one of the few countries first completing the action plans in the world. Besides, China has also formulated China's Agenda 21, National Program for Eco-Environment Conservation, China Natural Reserves Development Program (1996-2010), National Tenth Five-Year Plan of Eco-Environment Conservation, National Biosafety Framework of China (1999), and is formulating National Plan of Biological Species Conservation and Utilization, National Natural Reserves Development Plans (2006-2020), National Plans of Alien Invasive Species Prevention (2005-2010). 14 Furthermore, State Environmental Protection Administration (SEPA) has formulated Research Report of Biodiversity Situation in China, and other relevant departments have also formulated related action plans. For example, in 1994, State Planning Commission organized relevant departments to formulate National Programme for Ecological Environmental protection; from 1993 to 1995, Ministry of Forestry organized the formulation of China’s Agenda 21-Forestry Action Plan; in 1993, Ministry of Construction formulated China Panda Movement Conservation Project, etc.; from 1994 to 1995, Ministry of Agriculture organized China Agricultural Biodiversity Conservation Action Plan and China Domestic Animal and Poultry Species Resources Diversity Conservation Action Program; State Oceanic Administration cooperated with other relevant departments to formulate China Marine Biodiversity Conservation Action Plan and China Mangrove Conservation Action Plan, etc. 15 Besides, some reserves have formulated their own biodiversity administration policies, e.g. Administration Plan of Jilin Chagan Lake Reserve, Administration Plan of Hainan Dongzhai Harbor Reserve. With regards to legislation, Chinese legislations related to performance of CBD 14
SEPA, 3rd National Report on China’s Performance of ‘Convention on Biological Diversity’ 78 (China Environment Science Press, 2005) 15 Wang Jie, China Performance of ‘Convention on Biological Diversity’ (World Environment, Vol. 3, 1997) 15
mainly include the following categories: 1) legislations that generally stipulate conservation of natural resources, rare wildlife and natural ecosystem. These are mainly represented in some provisions in the Constitution and Environmental Protection Law; 16 2) legislations that stipulates some aspects of biodiversity conservation and sustainable utilization in a more detailed way, mainly including Regulations of Natural Reserves, Administrative Ordinance on Scenic and Historic Areas, Law on the Protection of Wild Fauna, Ordinance on the Protection of Wild Flora, Ordinance on Protection of Terrestrial Wildlife, Regulation on New Plant Species conservation, etc.; 3) Legislations related to biodiversity conservation and sustainable utilization, such as Forest Law, Marine Environmental Protection Law, Water Law, Law on Prevention and Control of Water Pollution, Law on Water and Soil Conservation, Fisheries Law, Grassland Law, Stock-breeding Law, etc. It shall be noted that Implementation Regulations of Forest Law (2000) stipulates protection of microbes separately as an important category of wildlife for the first time. 17 China’s specialized legislations concerning the performance of CPB and related to biodiversity conservation and sustainable utilization mainly include the following fields: 1) In the field of genetic engineering safety, the only one specialized legislation in China is Administrative Regulation on Genetic Engineering Safety. 2) In the fields of agricultural GMOs safety, China has (i) the Administrative Ordinance on Agricultural GMOs Safety (2001); (ii) three management methods, i.e. Administrative Regulations on Evaluation of Agricultural GMOs Safety, Administrative Regulations on Agricultural GMOs Labeling, Administrative Regulations on Imported Agricultural GMOs Safety; (iii) three administration procedures were enacted in 2002, i.e. Administration Procedures of Evaluation of Agricultural GMOs Safety, Examination Procedures of Agricultural GMOs Labeling, Administration Procedures of Imported Agricultural GMOs Safety. The implementation period of the provisional administration measures adopted for agricultural GMOs safety was decided to be extended for three times, respectively in March 2002, October 2002 and March 2003. In the present Chinese legislation system of GMO safety, the specialized legislation in this field is most complete. 3) In the field of genetically modified micro-organisms safety, the major legislation is Administrative Ordinance on Biosafety of Laboratories for Pathogenic Micro-organisms (2004). With regards to local legislations, some local regulations and rules stipulate on biodiversity conservation. These provisions not only include comprehensive legislations for local natural reserves, e.g. Administrative Regulations on Heilongjiang Natural Reserves, Administrative Ordinance on Yunnan Natural Reserves, but also include legislations targeted to some natural reserves, e.g. Ordinance on Marine Reserve of Jiushan Islands of Ningbo, Administrative Ordinance on Xingkai Lake National Natural Reserve of Heilongjiang Province, and furthermore, they include some legislations related to species administration, e.g. 16 17
Constitution of People’s Republic of China, Art. 9; Environmental Protection Law, Art. 1, 17 Implementation Regulation on Forest Law , Art. 2 16
Interim Administrative Ordinance on Wildlife in Jilin Province, Ordinance on Natural Forest Conservation of South Bouyei-Miao Autonomous Prefecture of Qianxin. Details will be discussed in later chapters. 2.2 Main contents of other important biodiversity-related treaties and their implementation in China Apart from CBD and CPB, important biodiversity international laws also include CITES, Ramsar Convention, UNCCD, etc. These international laws provide basis for species conservation and ecosystem conservation from different aspects. Meanwhile, China also actively responds to the relevant requirements of these international conventions in policies and legislations. 2.2.1 CITES Administration of endangered species trade is an important part of species conservation administration, which takes a significant role in biodiversity conservation and sustainable utilization. Up till now, the most important international convention for regulating trade of wild fauna and flora is CITES. CITES stipulates the trade measures to different extent according to the different types of wild fauna and flora which parties to the convention believe will be possibly affected by trade and might become extinct. The international trade measures of wild fauna and flora as stipulated in this convention mainly include export license, import license, re-export license and other related specifications. This convention stipulates detailed requirements for their issuance, and further requires prior obtaining and submission for examination of relevant license or specifications for the import, export and re-export respectively of samples of the species listed in the three annexes. In addition, CITES also provides the parties to the convention with punishment measures for traders who violate the convention. At present, the import-export administration of endangered species of wild fauna and flora in China is conducted by the forestry and agriculture (fisheries) authorities under State Council respectively according to responsibilities. 18 In order to perform its obligations under CITES, China set up performance administration authority (the Endangered Species Import and Export Administration Office of China) and performance authority for science and technology consultation (the Scientific Commission on Endangered Species). The Endangered Species Import and Export Administration Office of China represents Chinese government in the performance of the Convention, assists the authorities in charge of wild fauna and flora under the State Council for the performance, and examines and issues the import-export certificates. 19 With regards to legislations, China has enacted a series of laws and regulations, which set up clear administration rules for import and export of wild fauna and flora as well as the products. Particularly for the performance of CITES, China has 18 19
Administrative Ordinance on Import and Export of Endangered Wild Fauna and Flora, Art. 3 Administrative Ordinance on Import and Export of Endangered Wild Fauna and Flora, Art. 4 17
formulated Administrative Ordinance on Import and Export of Endangered Wild Fauna and Flora. Forest Law, Law on Protection of Wild Fauna, Fisheries Law, Customs Law, Foreign Trade Law, Criminal Law and other laws set clear provisions over the import and export administration of wild fauna and flora as well as punishments for violations. In order to better protect biological species resources, China has also approved or enacted in succession List of National Key Protected Wild Animals, Ordinance on Protection of Terrestrial Wildlife, Implementation Regulations on the Protection of Aquatic Wildlife, Ordinance on the Protection of Wild Fauna, List of National Key Protected Wild Plants, List of National Key Protected Terrestrial Wild Animals with Important Ecological, Economic and Scientific Values, etc. Furthermore, in 1984, State Environmental Protection Committee (the present SEPA) announced the first List of Rare and Endangered Plants in China; in 1987, State Administration of Traditional Chinese Medicine announced the List of Protected Medicinal Fauna and Flora Resources; in 1992, the Ministry of Forestry (the present State Forestry Administration) announced the first List of State-level Rare Trees, etc. At local level, apart from the aforesaid in Section 2.1.2, most parts of provinces, cities and autonomous regions have developed list of key protected wild fauna and flora, and enacted the Implementation Regulation of Law on the Protection of Wild Fauna. In some provinces and autonomous regions, such as Shanxi Province, Jilin Province, Tibet Autonomous Region, have also developed measures for compensating body injury and property loss caused by key protected wild animals. Some other provinces and autonomous regions, such as Guangxi Zhuang Autonomous Region, Yunnan Province, Heilongjiang Province, Zejiang Province, Guangdong Province, Tianjin, Dalian, Changchun, have formulated management methods regarding wildlife protection. Local legislations with regards to wild flora conservation and sustainable utilization are relatively fewer, only the local governments of Xinjiang Uygur Autonomous Region, Henan Province and Jiangxi Province have formulated the management methods for wild flora protection. The specialized policies and legislations with regards to wild fauna and flora will be discussed later to avoid repetition here. 2.2.2 Ramsar Convention Ramsar Convention is the only global international convention with regards to protection of species eco-environment, which plays a significant role in the conservation of worldwide wetland. This convention aims at protecting and wisely utilizing wetland through national actions and international collaboration, and making it as one of the ways for global sustainable development. 20 The main content of this convention includes: 1) clear definition of “wetland”, i.e. “wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine 20
The Fridtjof Nansen Institute (Norway), Green Globe Yearbook (2001/2002), 207 (China Environment Science Press, 2002) 18
water the depth of which low tide does not exceed six meters”; 21 2) “Ramsar List”, which is also the core part of this convention, i.e. each contracting party is obliged to designate the proper wetland site for inclusion in the List of Wetlands of International Importance. Upon joining the Ramsar Convention by signing on the convention or submitting the approval document or participation declaration, the contracting party shall designate at least one wetland site for inclusion in the List. The wetland sites in the list shall have international significance in the field of ecology, botany, limnology and hydrology. The contracting parties shall make and carry out its plan in order to promote the conservation of the wetlands in the list and try to promote reasonable utilization of wetlands within its territory. If the eco characteristics of any wetland within its territory and in its list has changed or is changing or will probably change due to the development of technology, pollution and other human disturbance, the contracting party shall notify each other as early as possible. The contracting parties shall establish wetland reserves, whether or not such wetland is listed, so as to promote the conservation of wetlands and waterfowls and to conduct sufficient supervision for them. 22 3) The contracting parties are required to pay great efforts to carry out international collaboration with regards to wetland conservation. 23 4) This convention also prescribes meeting rules of the parties, execution organization, etc. 24 As a contracting party to Ramsar Convention, China commits itself to wetland conservation. China established an organization for the performance of Ramsar Convention. The State Forestry Administration is responsible of organizing and coordinating the performance of Ramsar Convention, Ministry of Agriculture, Ministry of Water Resources, Ministry of Land and Resources, SEPA, State Oceanic Administration and other authorities take charge of the functions of their work respectively. Local governments at various levels have corresponding administration organs responding to the central government, and work on the conservation and administration of wetlands within their own jurisdiction according to the guidance of authorities of central government. At present, the office of performance of international wetland convention (i.e. Office of Wetland Convention Performance under State Forestry Administration) governed by the State Forestry Administration is responsible of practical work in organizing and coordinating national wetland conservation as well as performance of international treaties. With regards to policies, Chinese government has enacted Action plan of Biodiversity Conservation in China, Agenda 21, China Wetland Conservation Action Plan, National Wetland Conservation Project, National Eco Environment Construction Plan, National Wetland Conservation Project Plan, National Eco-Environment Construction Plan, National Eco Environment Conservation Guideline, Notice on Strengthening the Management of Wetland Conservation, Resolution on Speeding up Forestry Development, China’s Agenda 21-Forestry Action
21 22 23 24
Ramsar Convention, Art. 1 Ramsar Convention, Art. 2-4 Ramsar Convention, Art. 5 Ramsar Convention, Art. 6-12 19
Plan and China Trans-Century Green Project Plan 25, which provide policy basis for China’s wetland conservation and reasonable utilization. With regards to legislations, the laws developed before China joined Ramsar Convention did not consider wetland as a whole for specialized conservation, whereas wetland-related regulations are scattered in various levels of laws. After China joined the convention, wetland conservation gradually comes into view of Chinese legislators. Wetland conservation and sustainable utilization related Chinese legislations mainly include the following aspects: 1) legislations with regards to general natural elements related to wetland conservation, such as Environmental Protection; 2) legislations including the conservation of wetland or that practically effecting the conservation of wetland, such as Forest Law, Land Administration Law, Marine Environmental Protection Law, Law on Prevention and Control of Water Pollution, Water Law, Law on Protection of Wild Fauna, Law on Water and Soil Conservation, Fisheries Law, Regulations on Breeding and Conservation of Aquatic Resources, Administrative Ordinance on River Channel, Ordinance on Protection of Terrestrial Wildlife, Implementation Regulations on the Protection of Aquatic Wildlife, Regulations on Protection of Wild Flora and other relevant laws and regulations; 3) legislations related to wetlands which is protected as a kind of special natural eco region, such as Ordinance on Natural Reserves, Administrative Regulations on Marine Natural Reserves and Proposed Administrative Regulations on National Urban Wetland Park. Besides, Administrative Ordinance on Flora in Wetland Conservation has been added into legislation plan for recent years. At the local level legislation, some provinces and cities have enacted specialized regulations or methods regarding wetland conservation, such as Ordinance on Wetland Conservation of Heilongjiang Province, Ordinance on Wetland Conservation of Poyang Lake of Jiangxi Province, Ordinance on Wetland Conservation of Gansu Province, Ordinance on Wetland Conservation of Hunan Province, Ordinance on Wetland Conservation of Shanxi Province, Administrative Regulations on Jiuduansha Wetland Reserve of Shanghai, Administrative Regulations on Palaeocoast and Wetland National Natural Reserve of Tianjin and Administrative Regulations on Hengshui Lake Wetland and Bird Reserve of Hebei Province. Apart from these, Guangdong Province, Shanxi Province, Jiangxi Province, Inner Mongolia Autonomous Region, Lhasa and other provinces and cities have also issued regulations with regards to wetland conservation. On the other hand, some local governments have enacted legislations related to wetland conservation. Such 25
Shen Wenxing, Preliminary probe into Issues concerning Legislation of Wetland Conservation in China (Forestry Resources Management, Volume 3, 2006); Pan Shiqin, Shi Weibin, Necessity and Feasibility of Special legislations on Wetland in China (2006 Yearbook of Environmental Resources Legal Research Association of China Law Society); Wang Rong, Zhou Xunfang, Preliminary Probe into Legislation of Wetland Conservation in China (2004 Yearbook of Environmental Resources Legal Research Association of China Law Society); Sang Jingshuan, Discussion on China Wetland Administration and Conservation Legislations (Wetland Science and Administration, Volume 2, No. 3, Sep 2006); Liu Xiaochun, Xie Chunxia, Wu Xiaojun, Research on Current Situation and Improvement of Legislations on Wetland Conservation in China (Science Mosaic, No. 12, 2006); Wang Weina, Research on Legislation on Wetland Conservation in China (Thesis for post-graduate studies at Fuzhou Universtiy, 2007) 20
legislations, besides those mentioned in 2.1.2, also include Regulations on Tidal Flat Reclamation of Fujian Province, Administrative Ordinance on Tidal Flat Reclamation of Zhejiang Province and Interim Regulations on Tidal Flat Reclamation of Shanghai. Furthermore, there are also some local legislations with regards to certain special types of wetlands, such as Regulations of Mangrove Conservation of Hainan Province. 2.2.3 UNCCD Proper soil environment is the precondition for the survival and breeding of organism. Soil desertification directly threatens the necessary living environment. Therefore, it is of great significance to regulate the activities that may cause soil desertification and to protect biodiversity. UNCCD is the major international treaty in response to the soil desertification problem. UNCCD prescribes the goals of prevention of desertification and reduce the effect of drought, as well as the four guiding principles, i.e. public participation principle, principle of collaboration and coordination between different levels, principle of cooperation between different levels and principle of adequately considering the special needs of developing countries. Meanwhile, UNCCD also prescribes three types of obligations: common obligations of all the contracting parties (mainly including taking various measures, making long-term policies and carrying out different levels of cooperation and coordination for the purpose of the convention), obligations of the affected countries (mainly including solution of soil desertification and drought as priority consideration, with the consideration of the economic effect to this problem, strengthening and establishing corresponding legal system and improving the extent of participation of the public), and obligations of the developed countries (mainly including active support or providing substantive assistance to help developing countries in solving this problem). The most unique and characteristic feature of UNCCD is respecting the fact, recognizing the relationship between desertification and poverty, and repeatedly emphasizing the importance of public participation. In the performance of UNCCD by China, the forestry authorities take charge of organizing, coordinating and guiding the work for sand prevention and control; the agriculture, water resource, land and environmental protection authorities and weather bureau conduct work for sand prevention and control according to their division of functions respectively. 26 In order to perform UNCCD, Chinese government set up the Coordination Group for Desertification Prevention and Control in China, the standing organization of which is the secretariat of performance of UNCCD, i.e. coordination office of desertification prevention and control. Furthermore, China has also set up a coordination organ between departments - China National Committee for the Implementation of the United Nations Convention to Combat Desertification (CCICCD), in order to strengthen the coordination between departments. China set up Administration Center of Desertification Prevention and 26
Law on Prevention and Control of Desertification, Art. 5 21
Control of National State Forestry Administration, National Senior Consultant Group of Desertification Prevention and Control, China Desertification Prevention and Control Training Center, Research and Development Center of Desertification Prevention and Control and China Desertification Supervision Center. China also established local (provincial) desertification prevention and control organization and established independent expert team for desertification prevention and control. Besides, in the provinces which have greater task of desertification prevention and control, coordination or guiding group of desertification prevention and control have been set up, and the offices have been set under the forestry authorities accordingly. 27 The policy documents based on requirements of performance of UNCCD by China mainly include National Eco Environment Construction Plan, National Program for Eco-Environmental Conservation, China’s Agenda 21, China’s Environmental Protection Agenda 21, China’s Agenda 21 – Forestry Action Plan, National Action Plan of Performance of UNCCD by China, National Plan for Desertification Prevention and Control (2005-2010), Ordinance on Restoring Farmland to Forest, Opinions of State Council on Improving Grassland Protection and Development, Regulations on Encouraging Enterprises and Individuals to Contract Control of Desertification, Administrative Regulations on Lucrative Control of Desertification, Resolution on Speeding up Forestry Development, etc. 28 These policy documents provide strong support for the prevention and control of desertification. With regards to legislations, at present, China has formed preliminary legal system for prevention and control of desertification, and has enacted nearly 20 laws related to desertification prevention and control, natural resources and ecosystem protection. Among these, there are special law for desertification prevention and control, e.g. Law on Prevention and Control of Desertification, and major laws relevant to prevention and control of desertification, e.g. Law on Water and Soil Conservation, Environmental Protection Law, Water Law, Forest Law, Grassland Law, Law on Land Contract in Rural Areas, Renewable Energy Law etc. Besides, the newly amended Land Administration Law and Criminal Law have also been added with provisions related to prevention and control of desertification. National and local governments have also enacted a series of complementary regulations, such as Administrative Ordinance on Forest Resources Protection of Beijing, Implementation Regulations on Prevention and Control of Desertification of Gansu Province etc. 29
27
GEF/UNDP China National Environment Convention Performance Capability Self-assessment Office, Report on self-assessment of China’s capability of performing international environment convention, 116-119 (China Environment Science Press, 2006) 28 Secretariat of China National Committee for the Implementation of United Nations Convention to Combat Desertification (UNCCD), National Report of China Performance of UNCCD, May 2006 29 GEF/UNDP China National Environment Convention Performance Capability Self-assessment Office, Report on self-assessment of China’s capability of performing international environment convention, 119-120 (China Environment Science Press, 2006) 22
2.3 Summary: China’s experience of performance of international treaties on biodiversity conservation At present, the biodiversity-related international law system has already been formed on the basis of CBD. Such system not only includes international treaties on biodiversity conservation, such as CBD and CPB, but also the international treaties related to species conservation, special ecosystem conservation and those for purpose of preventing ecosystem degeneration, such as CITES, Ramsar Convention, UNCCD. China has gained some successful experiences during the performance of these treaties, which can be summarized as below: (1) Actively participate in and promote the development of relevant treaties. For example, China took part in every negotiation of CBD and CPB as well as every party meeting and other meetings after the conventions and protocols become effective, and signed and approved early the conventions and protocols. Participation in the procedure is helpful not only for understanding the content and especially the performance obligations of relevant international treaties, but also for engaging the national view and concern in the relevant negotiation procedures, which benefits the performance after approving the treaties. (2) Great attention to the implementation of relevant international treaties. In China, the implementation of biodiversity-related international treaties usually adopts the policy and legislation combination and cooperation mode. This is demonstrated not only by the promulgation and improvement of relevant policies according to the requirements of relevant treaties, but also by improvement of relevant legislation according to the requirement of performance of obligations, and even special legislations (laws, regulations or rules) with regards to performance, so as to guarantee that performance is supported at least by the legal and policy system structure. Meanwhile, in response to the requirements of performance, China also set up relevant performance organ to meet the requirements of performance, so as to provide guarantee of performance institutionally. (3) Combination of relevant policies and legislations and special policies and legislations, and combination of comprehensive policies and legislations and industrial policies and legislations. Although some policies and legislations of China were enacted without particular purpose of performing biodiversity international treaties in view of purport, some contents of these policies and legislations actually provide important basis for biodiversity conservation and sustainable utilization in Chin, so as to become a part of the integrated system of biodiversity-related policies and legislations in China. Meanwhile, Chinese biodiversity-related policies and legislations demonstrate the characteristics of point and surface: including both comprehensive part and individual industrial part, and even including parts with regards to particular fields (such as special species). Such policy and 23
legislation system structure constitutes strong guarantee for complete performance of biosafety related international obligations. (4) International bilateral cooperation. China pays attention not only to multilateral cooperation in the field of biodiversity conservation, but also to bilateral cooperation as a significant complement to multilateral cooperation. For example, China has not yet entered Convention on Conservation of Migratory Species of Wild Animals, but signed Sino-Japan Agreement on Protection of Migratory Birds and Their Habitat Environment in 1981, Sino-Australia Agreement on Protection of Migratory Birds and Their Habitat Environment in 1986, which have become important legal basis for transnational conservation of biodiversity. In view of applicability and practical effect, sometimes such kinds of bilateral agreements are better than multilateral treaties. (5) Making performance work as one of the motivations of improving domestic policies and legislations. Although performance of obligations of relevant international treaties does not constitute the whole purpose of biodiversity-related policies and legislation of China, it cannot be denied that the development of biodiversity-related international law has significant effect to the development of biodiversity-related policies and legislations in China. Such mode of combining performance of international obligations with domestic practice and promoting each other has become one of the motivations of the development of biodiversity-related policies and legislations in China. Obviously, from the perspective of performance, present biodiversity-related policies and legislations in China are not perfect, with many points to be completed and improved, which are mainly demonstrated in the levels of idea, system, content, implementation, etc. This is the very issue the following chapters of this report are going to explain.
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Chapter III: Current Situation of Biodiversity-related Policies and Legislations in China
In China, policy means the code of conduct developed under a certain strategic framework for realizing the social economic goals of a certain period. It is usually presented in the forms of “plan” “program” “outline” “scheme” “tentative ideas” and the like, and sometimes “notice” and “opinion” etc. The relationship of policy and law is an important issue legislation ideology and practices faced with. Generally speaking, policy serves as guidelines for the development and implementation of law. In special cases when there are no corresponding laws and regulations, policy performs the function of law 30. In essence, policy and law is highly the same with regard to economic basis, guiding ideology, basic principles, social objectives etc. However these two are distinguished from each other: (i) Policy can mainly or totally be made up of principle regulations and stipulates only the direction of an activity rather than detailed rules, while law mainly consists of rules rather than mere principle regulations. (ii) The implementation of policy can be guaranteed through either law or other means like dissemination, education, political discipline and so on, while law can only be implemented through state force. (iii) Policy enjoys flexibility. Some policies make adjustments as reality requires while law is relatively stable. Chapter III will focus on the systematic research on biodiversity related policies and current legislation. 3.1 Current biodiversity-related policies in China The biodiversity-related policies in China consist of comprehensive biodiversity-related policies and biodiversity related policies. The comprehensive biodiversity-related policies refers to the guidelines developed by State Council or relevant functional departments under State Council from the long-term perspective and taking into account of all situations for the long-term overall management and conservation of biodiversity. The special-biodiversity related policies refer to the policies developed by State Council or relevant functional departments under State Council addressing to the specific management and conservation of biodiversity. Compared to the former, the latter focuses on a specific field or targets of biodiversity and sustainable development. The targets are identified and the policies are more detailed and specific. In accordance with the different contents, the special biodiversity-related policies can be divided into genetic resource-related policies, biological-species related policies and ecosystem-related policies. Quite a part of the special biodiversity related policies are developed by administrative competent organs of relevant industries, which results in distinct industrial characteristics.
30 Liu Jinguo, Shu Guoying: Textbook of Legal Theory 402 (China University of Political Science and Law Press, 1999)
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3.1.1 Comprehensive biodiversity-related policies Comprehensive biodiversity-related policies in China are mainly presented in forms like action plan, scheme, objectives, implementation plan, outline and resolution etc. Among these, comparatively more important documents include: China Biodiversity conservation Action Plan (1994), China’s Environmental protection Agenda 21(1995), National General Construction Plan of Wild Fauna and Flora Reserve (2001), National Eleventh Five Year Plan of Economic and Social Development (2006), National Medium and Long Term (2006-2020) Program of Science and Technology Development (2006), National Tenth Five Year Plan of Ecology Conservation (2002), Resolution on Carrying out Scientific Development Strategy and Reinforcing Environmental protection(2005), National Eleventh Five Year Plan of Ecology Conservation (2002), National Biological-species Resources Conservation and Utilization Program (2007). These documents include contents with respect to genetic resources, biological-species and ecosystem. The comprehensive biodiversity-related policies attach greatest importance to ecosystem protection, including the following aspects: (1) General ecosystem conservation strategy. The National Eleventh Five Year Plan of Ecology Conservation (2002) emphasized that ecosystem conservation should be an important means to change the economic development mode. National Medium and Long Term (2006-2020) Program of Science and Technology Development makes the “rehabilitation and reconstruction of ecological functions in areas where the ecology is fragile” and “ocean ecology and environmental protection” the priority themes in environment field; makes “farming and forest ecological safety and modern forest industry” the priority themes in agricultural field; and makes the “influence mechanism of mankind activities to the Earth” one of the basic research programs to meet the requirements of national key strategy. (2) Guidelines for ecology protection. In accordance with the National Eleventh Five Year Plan of Ecology Conservation, the ecology conservation should be conducted under the guidelines of scientific development strategy, take fully use of the opportunity when the environmental protection is experiencing a historical change, make “maintaining the integrity and functions of natural ecosystem and promoting a harmonious relationship between human beings and nature” as the objective, provide guidance for each category and classification, attach importance to conservation of natural ecosystem and ecosystem in rural areas, control the irrational exploitation of resources and destroy of ecosystem by human beings’ activities, strengthen the ecosystem quality assessment and enhance the management and supervision level so as to guarantee a stable ecological safety for the development of a well-off society. (3) Basic principles and objectives of ecology conservation. In accordance with the National Eleventh Five Year Plan of Ecology Conservation, the basic principles of ecology conservation includes the following four aspects: focus on prevention and put priority on protection; provide corresponding guidelines for each categories and make advances in regions step by step; make overall plans and attain breakthroughs in key areas; government takes lead and public participate in the ecology conservation. The Resolution on Carrying out Scientific 26
Development Strategy and Reinforcing Environmental protection requires that by 2010, the environment quality in key areas and cities be improved, and the worsening ecology be under control; by 2020 the environment quality and ecology will have been substantially improved. (4) Key areas for ecology conservation. The National Eleventh Five Year Plan of Ecology Conservation states that the key areas and main tasks for ecology conservation include the following: strengthen the conservation of natural ecosystem, supervision on ecosystems where the resources are being explored, enhance the biodiversity performance and management capacity, and attach importance to areas where the ecology is sensitive or fragile. The biological-species related contents in the comprehensive policies are mainly specified in the National Biological-species Resources Conservation and Utilization Program (2007). In the Plan, the principles for conservation and utilization of biological species include: principle of state sovereignty; principle of adherence to the science and feasibility; principle of preferential conservation and conservation through classification; principle of promoting coordination between conservation and utilization; principle of coordination and participation. The objective as set in the Plan is, through modern science and technology and the traditional knowledge mankind has mastered, to protect biodiversity, and species and their habitats, make sustainable use of biological species and genetic resources, fairly share the benefits resulted from utilization of biological species, genetic resources and relevant traditional knowledge so as to promote a harmonious relationship between human beings and nature. Based on this general objective, the Plan further specifies the objective in near future, and the medium and long term objectives. The Plan finalizes twelve aspects as key areas for ecology conservation and utilization, namely: terrestrial wildlife resources; aquatic biological resources; livestock and poultry genetic resources; crops and wild relatives of plant germ plasm; forest plant resources; ornamental plant resource; medicinal organism species resources; bamboo plant resources; other wild plant resources; micro-organism resources; traditional knowledge related to biological species resources; construction of examine system of entry and exit of biological species resources The Plan further identified nine preferential areas and programs and ten insurance measures. In addition, the National General Construction Plan of Wild Fauna and Flora Reserve also identifies the overall objective of wild fauna flora conservation and natural reserve construction. That is: to save the key protected wild fauna and flora; enlarge, perfect and newly construct national natural reserves and hunt-prohibited zones so that the natural reserves amounts to 2500 with a total area of 172.8 million hectares (18% of the total national territory), and that a network can be established in which the natural reserves and swamps are main components, with rational composition, advanced facilities, and efficient management, and is of significant international impact so as to realize the sustainable utilization and development of wild fauna and flora resources. The genetic resources-related contents in the comprehensive policies mainly include: (1) Basic objective. The China Biodiversity conservation Action Plan identifies the objective of “protecting genetic resources of crops and domestic 27
animals”, which requires conservation of genetic resources of crops, herbage, vegetables, domestic animals and forest. (2) Germ plasm resources conservation. In the China’s Environmental protection Agenda 21, it is required to establish and perfect the network of ex-situ conservation land of rare and endangered animals and plants; strengthen the investigation, collection, conservation and cultivation of crop germ plasm resources; protect the biodiversity of fresh water and ocean water. The National Tenth Five Year Plan of Ecology Conservation classifies the “establishing wild animals and plants conservation and cultivation centers and important wild genetic resources reserve” as key programs. In the China’s Action Program of Aquatic Biological Resources Conservation, it is required to set up gene and cell bases for the key protected aquatic wildlife, such as Chinese sturgeon, Dabry’s sturgeon, Chinese sucker, Giant salamander etc.(3) Benefit sharing. The National Tenth Five Year Plan of Ecology Conservation sets “conducting research on accessing genetic resources and benefit sharing mechanism, and strengthening the management” as one of the main tasks, and sets “grasping firmly the development of regulations on genetic resources conservation”, “conducting pilot programs and exploring the eco-environment compensation mechanism which mainly consists of resource exploitation compensation, river valley compensation and sharing of benefits resulted from genetic resources” as the countermeasures. 3.1.2 Biodiversity-related agricultural policies In agricultural field, the biodiversity-related policies focus on conservation of biological genetic resources and biological-species. The time when attention was paid to biological genetic resources legged far behind than that of biological-species. Among the policies, comparatively more important documents include: Action Plan of Agricultural Biodiversity Conservation (1993), Ninth Five Year Plan of Agricultural Environmental protection and the Plan in 2010 (1995), Outline of Agricultural Science and Technology Development From 2001-2010 (2001), Pilot Action Plan of Eradicating Alien Invasive Species (2003), Opinions on Supporting Livestock Development (General Office of State Council, 2005), Opinions on Promoting Sound Development of Domestic Animals Farming (State Council, 2007), Outline of Agricultural Science and Technology Development From 2006-2020 (2007) etc. As regards biological species, the Outline of Agricultural Science and Technology Development From 2001-2010 puts forward the key points of agricultural science and technology during the Tenth Five Period, including: precipitating the breeding of high quality, high yield, and special purposed new crop varieties; promoting the breeding of new crop varieties which is beneficial to make use of local advantages and beneficial to the construction of local agricultural products base; promoting the industrialization of improved variety; developing advanced propagation technology for improved variety; establishing and perfecting the testing standards and technology system of improved variety; promoting the development of regionalization, standardization and scale-up of the improved variety breeding system. What we shall pay special attention to is the Pilot Action Plan of Eradicating Alien Invasive Species. The Plan is strongly aimed at. It chose Liaoning, Sichuan and Yunnan as the pilot 28
places for eradicating alien invasive species which mainly focus on eradication of ragweed, crofton weed. The pilot program is developed to counter against the losses invasive species caused to agriculture, urban economic and social development, and against the damage invasive species caused to agricultural biodiversity. Regarding biological genetic resources, the Opinions on Supporting Livestock Development (General Office of State Council) stipulates that livestock and poultry farms run for generations and livestock and poultry variety resources farms run for generations can enjoy some preferential policies, such as exemption of income tax, reduction of charges and so on, and necessary support should be given to livestock and poultry farms run for generations and livestock and poultry variety resources farms run for generations to perfect the facilities. Local government should take quarantine and protection measures for the livestock and poultry farms and livestock and poultry variety resources farms. The livestock and poultry farms and livestock and poultry variety resources farms should make strict management rules and carry out all prevention and control measures against epidemic diseases. The Opinions on Promoting Sound Development of Livestock Farming (State Council) makes detailed regulations regarding biological genetic resources conservation, e.g. perfect the breeding system of improved poultry and livestock varieties; conduct programs concerning improved poultry and livestock varieties; actively promote the combination of poultry and livestock manufacturers with scientific research institutes and ultimately form the self-development breeding mechanism; precipitate the construction of poultry and livestock performance testing station so as to reinforce the poultry and livestock quality testing, enhance the quality of poultry and livestock ; strongly support the promotion of improved poultry and livestock varieties, conservation of germ plasm resources, high quality forage grass base, standardized breeding farms etc. The Agricultural Science and Technology Development Plan From 2006-2020 makes the “cultivation of new animal and plant varieties” and “integration and demonstration of efficient and healthy breeding technologies of high quality aquatic species” the main tasks during the “Eleventh Five Period”. 3.1.3 Biodiversity-related forestry policies The biodiversity-related forestry policies mainly include China Forestry Biodiversity Conservation Action Plan (1992), China’s Agenda 21-Forestry Action Plan (1995), Notice on Strengthening Management of Foreign Wildlife Species (2001), National General Construction Plan of Wild Fauna and Flora Reserve (2001), Resolution on Speeding up Forestry Development (State Council, 2003), Eleventh Five and Medium- and Long-term Forestry Development Plan (2006), National Eleventh Five Plan of Prevention and Control of Harmful Forestry Living Beings (2006) etc. The biodiversity-related forestry policies mainly concern the biological species conservation and sustainable utilization. The Notice on Strengthening Management of Foreign Wildlife Species requires that only with successful quarantine and variety introduction tests conducted by the institutes who will introduce the foreign species 29
which have not been existed in China before for the purpose of raising and breeding, can the foreign species be introduced into China. The variety introduction test can not be conducted in natural reserves, forest garden, scenic spot and the areas where the ecology is special or fragile. The Notice also makes detailed regulation on procedures like the institutes and individuals who want to free the foreign species should submit request to competent forest department of provincial level. The Eleventh Five and Medium- and Long-term Forestry Development Plan will provide protection for 90% of the state-level key protected wildlife, and put forward the key areas for treatment, including Sanjiangyuan area, upper reaches of Yangtze River, Three Gorges area, Danjiangkou Water Reservoir and Jingjin Wind, Sand Area and some other regions. The treatments differ as the situation in these regions varies, nevertheless the treatments include plant species conservation. Since 1998, China launched the “Natural Forest Resources Conservation Project� to address to the fact that the eco-environment deteriorated as a result of long time over consumption of natural forest resources. The Project mainly aims to solve the issue of recuperate and multiply, rehabilitation of natural forest, through forbidding lumbering of natural forest, greatly reducing the manufacturing of commercial wood, and making appropriate arrangement for the forest workers in a planned way. The Project covers 734 counties and 163 Forestry Bureaus of 17 provinces (autonomous regions and municipals), including the upper reaches of Yangtze River, upper and middle reaches of Huang River, North-eastern and Inner Mongolia etc. The Project covers an area of 1023 million mu31 of forest land, with 846 million mu of natural forest land, accounting for 53% of the total national natural forest land. As regards biological genetic species, the China Forestry Biodiversity Conservation Action Plan requires to (i) protect and identify the wild species which is critical to the biodiversity conservation, identify the species that need protection, and establish eight animal resettlement protection centers and six plant resettlement protection centers; (2) establish forest germ plasm resource base. The Resolution on Speeding up Forestry Development (State Council) requires efficient measures be taken to strengthen the protection and export management of germ plasm resources, research and development of important technologies critical to breeding of improved forest varieties, conservation and utilization of germ plasm resources. 3.1.4 Biodiversity-related traditional Chinese medicine policies The biodiversity-related traditional Chinese medicine policies are mainly reflected in the Ninth Five Plan and 2010 Plan of Traditional Chinese Medicine (1997), Modernization Development Outline of Traditional Chinese Medicine from 2002-2010 (2002), Eleventh Five Plan of Traditional Chinese Medicine (2006) etc. Among these, the Modernization Development Outline of Traditional Chinese Medicine from 2002-2010 makes corresponding regulations on biological genetic resources and biological species. In the Outline, it is required that attention should be paid to restore and regeneration of rare and endangered traditional Chinese medicine 31
Mu is a unit of area used in China. 1 mu is round 0.067 hectares. 30
material resources, avoid running off, degeneration and extinction of medicine material resources so as to guarantee the sustainable utilization of traditional Chinese medicine material resources and the sustainable development of traditional Chinese medicine. The Outline also points out that the conservation and sustainable utilization of traditional Chinese medicine material resources is an important task for modernization development of traditional Chinese medicine. The conservation and sustainable utilization include: (1) Conduct survey on traditional Chinese medicine material resources, and set up pre-warning mechanism reminding people the danger of extinction; conserve the traditional Chinese medicine germ plasm and genetic resources and strengthen research on selection and breeding of better traditional Chinese medicine resources, avoid variety degeneration and solve the problem that the variety sources are confusing. (2) Set up database of traditional Chinese medicine and base of traditional Chinese medicine germ plasm resources, collect information concerning the variety, origin, efficacy etc, and conserve the germ plasm resources of traditional Chinese medicine materials. (3) Strengthen research on the materials which is originally wild but now cultivated by human beings, strengthen research on cultivation technologies of traditional Chinese medicine materials and realize the scale-up plantation and industrialized production; strengthen research on plant conservation technologies and develop green medical materials. (4) Strengthen cultivation of new varieties, conduct research on alternatives to rare and endangered varieties so as to guarantee the sustainable development of traditional Chinese medicine. 3.1.5 Other biodiversity-related policies In addition to the above mentioned policies, the biodiversity-related policies are also reflected in business management, urban construction, exploitation of ocean resources etc. Regarding business management, the Notice on Strengthening Management of Trade of Wildlife and Relevant Proceeds (1991) makes detailed regulations on management of wildlife species. As regards urban construction, Ministry of Construction issued the Notice on Strengthening Protection and Conservation of Age-old and Well-known Trees in 1991, Protection Plan of Resettlement of Pandas in 1992, issued and implemented Crested Ibis Protection Plan and South China Tiger Protection Plan in 1993. In 2002, Ministry of Construction issued the Notice on Strengthening Urban Biodiversity Conservation. In 2006, the Ministry of Land and Resources issued the Outline of Eleventh Five Plan of National Land and Resources. All these policies–related documents concern species conservation. The Plan of Centralized Protection of Rare Urban Garden Plant Varieties requires establishment of protection centers in the key arboretums throughout China. These centers will, in combination with local characteristics, select some important plant varieties for protection so as to achieve diversity conservation of rare garden plant varieties. In addition, the Plan also requires establishment of bases in some important cities to conserve the rare flower and plant varieties. The marine biodiversity-related policies are mainly presented in documents like: Medium and Long Term Development Plan of Marine Science and Technology, National Marine 31
Eco-environment Construction Plan, Action Plan of Marine Biodiversity Conservation in China, China’s Marine Agenda in 21st Century, Action Plan- Making Bohai Sea A Green Sea, Marine Function Divisions throughout China. The China’s Marine Agenda in 21st Century issued in 1996 specially develop a chapter on “marine biological resources conservation and sustainable utilization”, which make detailed regulation on the marine biological conservation. 3.1.6 Advantages and characteristics of biodiversity-related policies in China China has basically developed a biodiversity-related policy system. Although much needs to be improved, the system has made significant contribution to China’s biodiversity conservation. Generally speaking, the system has the following advantages and characteristics: First, form the perspective of contents, the system covers lots fields, including agricultural, forestry, traditional Chinese medicine, property rights and the like. Some of these regulations are very detailed, e.g. biodiversity-related agricultural policies, while others are still imperfect, e.g. policies related to genetic resources. The biodiversity-related policies in China are strongly aimed at and tendentious. Secondly, from the perspective of system structure, the existing biodiversity-related policies attach greater importance to ecosystem diversity and species diversity than that to genetic resources. In addition, the regulations concerning species diversity and genetic resources diversity, most of the time, are integrated into the regulations on ecosystem biodiversity. It is also because of this, regulations on ecosystem diversity, species diversity and genetic resource diversity are always mixed together. Thus it can be concluded that the biodiversity-related policies in China are mainly led by ecosystem diversity policies, which also indicates that the biodiversity-related policies in China is not comprehensive. Thirdly, from the perspective of policy-making bodies: the biodiversity-related policies in China are mainly developed, issued, supervised and implemented by corresponding competent government organs. Even for those policies issued by State Council, they are still developed by relevant competent departments. Thus, it is indicated that the biodiversity-related policies in China are imbedded with the characteristics of the departments that develop the policies and the industry they concerns. These characteristics are not clearly reflected as regards ecosystem conservation related policies, which mainly include List of Nature Forest and Wildlife Reserve (1986), Notice on Strengthening Wetland Ecology Conservation (1994), National Natural Reserves Development Program from 1996-2010 (1997), National Eco-environment Construction Plan (1998), Opinions on Strengthening Ecology Conservation in Urban Areas (1999), National Eco-environmental protection Program (2000), Notice on Strengthening Construction and Management of Natural Reserves (2002), Notice on Strengthening Management of Wetland Conservation (General Office of State Council, 2004), National Wetland Protection Programs Implementation Plans from 2005-2010 (2005), Development Plan of Important Ecological Function Protection Zones from 2006-2020 (2006), National Natural 32
Reserves from 2006-2020 (2007), Opinions on Strengthening Ecology Conservation (2007) and so on. These documents provide policy basis for ecosystem conservation and sustainable utilization from the perspectives of ecological function zones, natural reserves, wetland etc. rather than from a special industry. Fourthly, from the perspective of development history, to a large extend, China’s biodiversity-related policies are developed and perfected along with the biodiversity-related international laws. Especially in the development of species and genetic resources related policies, CBD, CPB and CITES make contribution as a result of their requirements of China to perform its duties. It is also because of this reason, China’s biodiversity-related policies have strong characteristic of internationalization, and the contents of the policies always comply with the duties specified in relevant international treaties. Finally, from the perspective of object and targets, China’s biodiversity-related policies are strongly aimed at and are flexible. For instance, the Pilot Action Plan of Eradicating Alien Invasive Species is developed against alien invasive species like crofton weed, ragweed, while Crested Ibis Protection Plan, South China tiger Protection Plan, and Protection Plan of Habitat for Pandas in Qingcheng Mountain are developed for rare and endangered animals in China. The targeted objects and identified aims facilitate China’s biodiversity-related policies to solve practical problems and fully exert their functions. 3.2 Current situation of biodiversity-related legislation in China 3.2.1 Legal system of biodiversity-related legislation (1) Constitutional provisions of biodiversity conservation. Article 9 and Article 26 of Constitution stipulate that the State protects rational utilization of natural resources and the rare animals and plants; forbids any organizations and individuals embezzling or damaging natural resources through any means. These stipulations serve as constitutional provisions for biodiversity conservation and sustainable utilization. (2) Biodiversity-related laws. Some laws in China contain regulations on biodiversity, including Environmental Protection Law (1989), Law on Water and Soil Conservation (1991), Law on Prevention and Control of Water Pollution (1996), Law on Animal Epidemic Prevention (1997), Forest Law (1998), Law on Protection of Wildlife (1998), Law on the Exclusive Economic Zone and the Continental Shelf (1998), Marine Environmental protection Law (1999), Law on the Entry and Exit Animal and Plant Quarantine (2000), Fisheries Law (2000), Seed Law (2000), Patent Law (2000), Law on Prevention and Control of Desertification(2001), Grassland Law (2002), Agriculture Law (2002), Water Law (2002), Land Administration Law (2004), Law on the Protection of Wildlife (2004). These laws provide legal basis for the special regulations, rules and normative documents from perspective of basic environmental protection law, resources law, environment law and property management law. In addition to these laws, other laws like Civil Procedure law, 33
Criminal Procedure Law, Administration Procedure Law and Property Law etc. also provide entity and procedure legal basis for biodiversity conservation and sustainable utilization. (3) Biodiversity-related regulations. China’s biodiversity-related regulations are mainly composed by administrative regulations and rules. In China, the administrative regulations are developed and issued by State Council. The biodiversity-related Administrative Regulations mainly include: Ordinance on Aquatic Resources Reproduction Protection (1979), Interim Administrative Ordinance on Scenic Spots and Historical Sites (1985), Ordinance on Domestic animals and Poultry Epidemic Prevention (1985), Administrative Ordinance on Wild Medical Materials Resource (1987), Implementation Regulation of Fishery Law (1987), Ordinance on Prevention and Control of Forest Diseases and Insect Pests (1989), Ordinance on City Afforest (1992), Regulation on Protection of Terrestrial Wildlife (1992), Regulation on Protection of Aquatic Wildlife (1993), Ordinance on Implementation of Water and Soil Conservation Law (1993), Ordinance on Protection of Traditional Chinese Medicine Varieties (1993), Administrative Ordinance on Breeding Stock and Poultry (1994), Regulation on Natural Reserves (1994), Regulation on Wild Plants Protection (1996), Implementation Rules of Law on Entry and Exit Animal and Plant Quarantine(1997), Ordinance on New Plant Species conservation (1997), Regulation on Farmland Protection (1998), Ordinance on Implementation of Forest Law (2000), Implementation Regulation of Patent Law (2001), Regulation on Conservation of Farmland to Forests (2002) etc. These regulations relate to ecosystem, germs plasm resources and genetic resources. Although some regulations are not directly targeted to biodiversity conservation and sustainable utilization, the regulations relating to ecosystem, germs plasm resources and genetic resources are critical for biodiversity conservation and sustainable utilization. (4) Biodiversity-related rules and normative documents. Rules and normative documents are developed, issued, supervised and implemented by relevant competent authorities under State Council. The administration and normative documents relating to biodiversity conservation and sustainable utilization mainly include (in the sequence based on the time issued): Administrative Regulations on Forest and Wildlife Natural Reserves (1985), Administrative Regulations on Agriculture Wild Plant (1987), Principles of Types and Classification of Natural Reserves (1993), Administrative Regulation on Protection of Geological Vestiges (1994), Administrative Regulations on Marine Natural Reserves (1995), Implementation Regulation on Plant Quarantine (Agriculture Part) (1997), Administrative Regulations on Land Protection in Natural Reserves (1995), Temporary Regulation on Import and Export of Crop Seed/Seeding (1997), Administrative Regulations on Aquatic Animals and Plants Natural Reserves (1997), Administrative Ordinance on Breeding Stock and Poultry (1998), Evaluation Standards of National Natural Reserves (1999), Organization and Working Rules of Evaluation Committee of National Natural Reserves (1999), Regulations on Process and Package of Commercial Crop Seed (2001), Administrative Regulations on Crops Seed Labeling 34
(2001), Regulation on Scope of Main Crops (2001), Regulations on Evaluation of Main Crop Varieties (2001), Regulations on Evaluation of Ecological Function Protection Zones (2002), Administrative Regulations on Franchise of Crop Seed (2002), Administrative Regulation on Management of Urban Zoo (2004), Administrative Regulation on Approving Introduction of Foreign Terrestrial Wildlife Species and Quantity (2005), Administrative Regulations on Forest Germ Plasm Resources (2007), Implementation Regulation on New Plant Varieties Conservation (2007) etc. 3.2.2 Main contents of biodiversity related legislation To sum up the biodiversity related contents in the laws, regulations, administrative regulations and normative documents listed in 3.1.1, it is concluded that China’s biodiversity related legislation mainly includes the following eight aspects: (1) Ecosystem protection and conservation: (i) Management system through classification and categorization. Ecological function protection zones are classified as national, provincial and municipal levels, and fall into the following categories: river source area, river floods storing area, important water resource conservation area, artificial water resource conservation area, wind-prevention and sand-fixation area, key water and soil conservation area, key fishery waters etc. (ii) Conservation of living environment of wild organisms. This includes conservation of living environment of wildlife, e.g. establishment of natural reserves in the zones and waters where the key protected wildlife are living and propagating. It also includes the conservation of living environment of wild plants, e.g. establishment of natural reserves, conservation stations or signs etc. (iii) Conservation and sustainable utilization of forest ecosystem. This includes limited lumbering, encouraging afforestation, closing the hillsides to facilitate afforestation, enlarging the afforestation area, collecting the fee for afforestation, establishing forest foundation etc. (iv) Conservation and sustainable utilization of grasslands ecosystem. This includes implementation of basic grasslands conservation and grasslands natural reserves. (v) Conservation of aquatic ecosystem, e.g. implementing classification of water function zones and drinking water resources conservation etc. (vi) Water and soil conservation, including afforestation, conservation of vegetation and hillside fields, strengthening management of lumbering etc. (vii) Regulation on marine ecosystem. This mainly includes conservation of four types of marine ecosystem, namely, typical marine ecosystem, areas where the rare and endangered marine organisms are naturally centralized; marine organisms’ living areas which are of great economic value, natural marine historical vestiges and landscapes which are of great scientific and cultural value. (2) Natural Reserves Management: (i) Ownership of land. All natural resources like land, mineral, hydrospace, forest, grassland and wild animals and plants in the natural reserves, regardless of ownership, should be managed by the authorities of natural reserves. (ii) Categorization and classification system. China classifies the 35
natural reserves into four levels, namely national, provincial, municipal and county level, and categorizes the reserve into three categories, namely key, buffer and experiment area. 32 Each reserve will be managed according to the level and the category. (iii) Management institutions and responsibility. Competent administration authorities of natural reserves should establish special management institutions within the natural reserves responsible for the detailed management of reserve, with professional staff. (iv) Planning system. In China, regulations on natural reserves include national natural reserves development plan and natural reserves construction plan. The former is developed by government, while the latter is developed by management institutions or competent administration authorities of reserve. (v) Financial support. The fund necessary for reserve management should be supported by government at county level and above where the reserve locate. The State gives appropriate subsidy for national natural reserves. (vi) Limited exploitation and utilization. The specific measures include: forbidding lumbering, herding, hunting, fishing, medicine collecting, cultivation, burning the grass on waste land, mine exploitation, stone pitting, sand excavating etc. The sight seeing and traveling programs which are not in accordance with the aim of reserve conservation are strictly forbidden. In the experimental areas of natural reserves, construction of facilities which pollute the environment, damage the resources or landscape are prohibited. (3) Wildlife management. Wildlife management mainly includes the following three aspects: (i) Ownership of wildlife. The State has the ownership over wildlife resources. The institutions and individuals have rights of utilizing the wildlife resources, e.g. raise and training, propagation, hunting, fishing etc. Of course, these rights should get approval from relevant competent organs.(ii) Protection of wildlife. Through “Catalogue of Key Protected Wildlife”, China protects the rare and endangered wildlife, and categorizes the key protected wildlife into: state-level and local-level key protected wildlife; wildlife under first class protection and second class protection. Different measures will be adopted accordingly for each type of protected wildlife. (iii) Management on utilization of wildlife. China manages the utilization of wildlife species through systems of “utilization permit” and “limited utilization”. The utilization permit system is mainly presented in forms like raise and training and propagation permit, hunting permit, gun-holding permit, fishing permit, import and export certificate etc. The limited utilization system mainly includes systems of forbidden hunting, limited quota for utilization, forbidden hunting/fishing zone, forbidden hunting/fishing period, forbidden instruments and means, forbidden trade, limited transportation and carrying, limited import and export, special limitation for utilization by foreigners, taxation, damage compensation etc. The management of wild plants mainly include: (i) Catalogue of Key Protected Wildlife. China categorizes the key protected wild plants into: state-level and local-level key protected wild plants. The state-level key protected wild plants are further distinguished as wild plants under first class protection and that under second class protection. Different measures will be adopted accordingly for each class of 32
Regulation on Natural Reserve, Art. 18. 36
protected wild plants. (ii) Utilization and management of wild plants. This mainly includes the following systems: collecting permit system, limited selling and buying system, import and export management system, system of special limitation for utilization by foreigners, resources survey and filing system etc. (iii) Management of living environment of wild plants. It is regulated that through establishment of natural reserves, to supervise the impact of environment to the important wild plants, to prevent the adverse effect construction programs caused to the living environment of important wild plants and take measures to save the plants so as to protect the living environment of wild plants. (4) Management of germ plasm resources of domestic animals. China achieves conservation of germ plasm resources of domestic animals through classification. The administration competent authorities under State Council and authorities of provincial, autonomous region and municipal governments provide special protection for the domestic animals and poultry species of value which are rare and on the brink of extinction through establishment of domestic and poultry species germ plasm resources conservation farms, gene base and testing stations. Governments at county level and above give support to the survey, evaluation, conservation, breeding and utilization of domestic animals and poultry species resources. Relevant administrative regulations make detailed regulations on conservation of germ plasm resources of domestic animals and poultry, import and export management of domestic animals and poultry, breeding and approval of domestic animals and poultry species, management and operation of domestic animals and poultry farms. (5) Management of crop germ plasm resources. The Seed Law stipulates that the Stare protects the germ plasm resources under law. Any institutions and individuals are forbidden to occupy or destroy the germ plasm resources. The State has the ownership over the germ plasm resources. Any institutions and individuals who provide germ plasm resources to foreign countries should get prior approval from agricultural /forest competent authorities under State Council. It is forbidden to collect or cutting natural germ plasm which the State protects. When it is necessary for collecting or cutting for special purposes like scientific research, the collecting and cutting should be approved by agricultural/forest competent authorities under State Council and provincial government. The Seed Law also makes regulations on collection, arrangement, appraisal, registration, conservation, interchange, utilization and catalogue of germ plasm resources, germ plasm resources base, germ plasm resources protection zone and area etc. China classifies germ plasm resources into three categories, namely resources that have the conditions to be exchanged with foreign countries, that can be exchanged with foreign countries, and that can not be exchanged with foreign countries. It is regulated that import of seed for reproduction should be reviewed by provincial agricultural competent authorities and approved by Ministry of Agriculture. Provision of germ plasm resources to foreign countries should be managed through catalogue classified in accordance with crop germ plasm resources. The Administrative Regulations on Forest Germ Plasm Resources (2007) makes regulations on forest germ plasm resources. 37
(6) Management of traditional Chinese medicine species. China classified the wild medicine materials into three grades. The one who collects materials of Grade II and III should have the permit for medicine collection. The key protected traditional Chinese medicine species should be the one enlisted into the national medicine standards. The species which have been identified by hygiene competent authorities under State Council as the species that complies with provincial, autonomous regions and municipal cities standards can apply for protection. (7) New variety management. In accordance with the Patent Law, animal and plant species can not be conferred with patent. 33 In China, new plant species can apply for “species right” in accordance with Ordinance on New Plant Species conservation. Microorganisms are not regarded as animal and plant, thus can be protected under Patent Law. The non-biological producing method of animal and plant species can be conferred with patent right. (8) Propagation Investigation and quarantine, mainly includes: (i) Catalogue system of articles’ forbidden for entering into China, which include: pathogen, pest and other harmful organism of animals and plants, animals and plants from the epidemic-stricken countries and regions as well as their outputs and the other quarantine articles; corpses of animals and plants; soil. When it is necessary for the entry of the articles above mentioned, request must be submitted for relevant national competent authorities responsible for animals and plants quarantine for approval. (ii) quarantine and supervision. State authorities and the authorities at seaport responsible for quarantine of animals and plants should implement quarantine and supervision on the entry and exit of animals and plants, and the manufacturing, process, store of their outputs. (iii) Other relevant rules include approval of quarantine certificate application, re-submission of quarantine certificate application, quarantine of transition animals and plants as well as their outputs, quarantine of the transport vehicles etc. 3.2.3 Advantages and characteristics of biodiversity legislation in China From the statements above, it can be concluded that the biodiversity legislation in China has the following five advantages and characteristics: First, regarding policy provisions, biodiversity legislation in China is closely related to biodiversity policies. It is the reflection of the biodiversity policies in the law field to a great extend. In other word, a main objective of biodiversity legislation is to implement biodiversity policies. Since China’s biodiversity policies are highly internationalized, its development and implementation are closely related to relevant international treaties, which we can also find in biodiversity legislations. Compared to policies, the scope covered by legislation is more stable, which results in: (i) on the one hand, the biodiversity legislation makes the implementation and management of biodiversity policies more stable, and makes it possible to carry out the biodiversity policies in a more successive way. (ii) on the other hand, at present the international law on biodiversity conservation still needs to be perfected. Its contents will be 33
Patent Law, Art. 25. 38
adjusted as the reality calls for, which requires China’s relevant policies make corresponding adjustment. This also indicates the flexibility of policies. However, legislation is more stable within a certain period. Its amending can only be realized through sophisticated legal procedures. In a word, to a certain extend, the biodiversity legislation can not fully carry out biodiversity policies, which requires supplement and coordination between policies and legislation. It is also because of this, policy and legislation is supportive to each other. Secondly, regarding contents of legislation, the legal system of China’s biodiversity legislation covers a large spectrum yet the contents are intact. The legal system of China’s biodiversity legislation consists of legislations on biodiversity conservation, genetic resources and species conservation and sustainable utilization, and ecosystem etc. In terms of scope, the legislations cover all aspects of biodiversity conservation and sustainable utilization. However, these aspects are not developed in balance. Comparative speaking, the legislations on ecosystem and species conservation are relatively well developed, while the legislation on genetic resources are relatively weak, which coincides with the development status of biodiversity policy. Regulations on some details of genetic resources conservation are not developed yet. For instance, there is no legislation concerning the access to and benefit sharing of marine genetic germ plasm resources, flowers and plant genetic germ plasm resources, microorganism genetic germ plasm resources and genetic germ plasm resources. Thirdly, in terms of legal hierarchy, China’s biodiversity legislation is f a low status. China’s biodiversity legislation comprises of law, regulation, rule, normative document etc. Yet special law on biodiversity has not been developed yet, and there are not many special regulations. Quite a part of the legislation in forms of law and regulation are relevant legislation. Most of biodiversity legislation are presented in the form of administrative regulation, and some in the form of normative documents. Thus it can be concluded that the legal hierarchy of China’s biodiversity legislation is not high. Fourthly, regarding the legislation development, the development of international law on biodiversity greatly promotes China’s biodiversity legislation, which is shown by legislation on bio-safety. Either legislation on agriculture GMOs safety, or the legislation on forest and micro-organism GMOs safety developed later, their development and implementation can not be separated from the performance requirements of CBD and CPB. This also shows that China’s biodiversity legislation is internationalized. Finally, regarding the implementation effectiveness, on the one hand, current biodiversity legislation is critical to the practice of biodiversity conservation and sustainable utilization. On the other hand, since much still needs to be improved and perfected, and the implementation of legislation is faced with some problems, the implementation effectiveness causes concerns. Please refer to Chapter IV for more details. 39
Chapter IV: Problems in Biodiversity-related Policies and Legislation in China
As it can be seen from the above two chapters, the biodiversity policies and legislation in China has formed a preliminary system, which provides important policy and legislation basis for the administration of biodiversity. However, the policies and legislation are incomplete and need to be improved in many aspects. According to The 3rd National Report on China’s performance of Convention on Biological Diversity, among all the difficulties in China’s performance of the convention, “lack of proper policies and legislation” together with “local communities’ lack of capability” is the second most important ones, which is only second to “the lack in fund, labor power and technical resources”. In this chapter, we will start with international conventions on biodiversity as mentioned above, and emphasis will be placed on the analysis of policies and legislation. 4.1 Problems in biodiversity-related policies in China There are following problems existing in the policy ideology, basis, framework, content, support by other policies and policy implementation of China’s biodiversity policies. 4.1.1 Biodiversity conservation and sustainable utilization separated in ideology Policy ideology is the gist and idea indicated in and carried out through biodiversity policies. Biodiversity policies should include two inseparably interconnected aspects, biodiversity conservation and sustainable utilization (including benefit sharing). However, currently in China, in the concept of biodiversity policies, these two aspects are usually separated. In one aspect, biodiversity conservation sometimes yields to economic development, thus hindering biodiversity conservation and sustainable utilization. At the national level, relevant policies do not emphasize the significant importance of biodiversity conservation; and do not include biodiversity conservation into plans and policies concerned. At the locality level, although the expression of “biodiversity conservation” has been reflected in the policies of some localities (especially provinces and cities rich in biodiversity or weak in ecological environment), quite a number of local governments still haven’t include biodiversity conservation into relevant policies. For example, in forestry development strategy, some local governments pay more attention to the economic benefits from forestry production and ignore biodiversity conservation. Ecological function and timber production is considered more in forestry plans, while less consideration is paid to biodiversity
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conservation in relevant forest plantation projects. 34There are some more examples. Some local governments encourage the development of agricultural economy, while at the same time, concentrate in individualized plantation and cultivation activities, which brings about potential unfavorable impacts on local biodiversity. In the other aspect, there is misunderstanding in the objectives of biodiversity conservation. The aim of biodiversity conservation is to achieve its value to the human society. Therefore, sustainable utilization is of the same importance as biodiversity conservation. Nevertheless, currently biodiversity conservation practices sometimes go to an extreme. Biodiversity is considered as pure biodiversity conservation, while the sustainable utilization and benefit sharing is ignored and not enough attention is paid to the economic value of biodiversity environment service, which directly results in the view that biodiversity conservation is contradictory to economic development. Neither of the above two trends, extreme “development” and extreme “conservation”, conforms to biodiversity related policy ideology under sustainable development strategy, therefore should be corrected. 4.1.2 Insufficient scientific basis in policy making Sufficient scientific basis is indispensable to biodiversity related policy making. Therefore it is necessary to have a comprehensive understanding of current biodiversity status in China, and the demand of biodiversity conservation and sustainable utilization. In China, at present, the real situation of biodiversity is still unclear, the background investigation insufficient, the monitoring index imperfect, the supervision network not sound, and dynamic monitoring data deficient. Such situation is clearly reflected in biological genetic resources and biological species. If biodiversity policies are made under such situation, obviously some problems might arise. For example, due to having no idea on which species need to be protected, there is a short of policy directly aiming at protecting specific biological species as mentioned above; survey on urgency of biodiversity conservation for certain fields is insufficient, which results in the absence of basis for defining priority actions, etc. Such situations cause not only the lack of scientific basis for policy making, but also difficulties in policy implementation. 4.1.3 “Administration vacuum” due to incomplete policy system Current China biodiversity policies include comprehensive biodiversity policies and special policies such as genetic resource policy, biological species policy and ecosystem policy. These policies constitute the “skeleton” of China biodiversity related policy framework; however, they are incomplete in the following two aspects: One aspect is the absence in comprehensive biodiversity policies. In current existing policies, Action plan of Biodiversity Conservation in China is the most 34
SEPA, 3rd National Report on China’s performance of Convention on Biological Diversity (China Environment Science Press, 2005 Edition, 84). 41
comprehensive one. However, this plan is only limited to priority actions and priority projects, relevant data and information is out-of-date and feasible fund arrangement is not included in it. It’s urgent to make supplementation and amending. 35 The other aspect is the short of special policies with specific aims. For example, in terms of biological genetic resources, although the existing policies cover most of the contents related with genetic resources conservation, at present in China, there is no special policy for the conservation of ornamental plant recourse, microbiological resource, as well as protection of traditional knowledge related with biological species resources, which is really a deficiency. Although special policy is not the only way to perfect the biological genetic resource policies, based on current situation of China, it will contribute to the integration of existing policies dispersed in different fields and the coordination of relevant policies for different industries and fields, thus help to form an organic, uniform, high-efficient biological genetic resource policy framework. In National Biological-species Resources Conservation and Utilization Program 2007, contents regarding biological genetic resources are included, but obviously incomplete and can not supersede special policies on biological species resource conservation and utilization. 4.1.4 Incomplete policies and lacking of important contents First, some policies are too general. In recent decades, there is serious loss of biological genetic resources in China due to short of policy and legislation and negligence in administration, which make it the first important task to stop and prevent genetic resource loss in China. However, in relevant existing policies in China, only few documents like Agricultural Science and Technology Development Plan(2006~2020) and Resolution on Forestry Development of State Council mention the biological genetic resource loss problem in a very general way, and there is no policy basis for further legislation and administration. There are more examples. In terms of forest biodiversity, no uniform plan has been made regarding forest biodiversity utilization and benefit sharing. 36 In terms of wetland conservation, by far in China no uniform wetland development and conservation plan has been made and the guidance for development and utilization is insufficient. Meanwhile, the existing policies include regulations only for a certain factor of wetland, but do not consider wetland as an ecosystem and no regulations are made integrally. Secondly, no enough emphasis is paid to some important policy contents. For biological genetic resources, with the development of modern biological technology, more and more attention is being paid to the benefits produced by the original production, development and utilization of biological genetic resources. From one aspect, CBD considers biological technology benefit sharing as important content and makes principle stipulations.; 37from the other aspect, controversy on the benefit 35
SEPA, 3rd National Report on China’s performance of Convention on Biological Diversity (China Environment Science Press, 2005 Edition, 84). 36 SEPA, 3rd National Report on China’s performance of Convention on Biological Diversity (China Environment Science Press, 2005 Edition, 191). 37 CBD, Art 19. 42
sharing of genetic resources among countries has never stopped, and so far no common view has been realized. Especially in terms of the means for accomplishing benefit sharing, developed countries and developing countries stick to respective point of view and neither is willing to yield. Under such situation, China, as a country relatively rich in genetic resources should define its basic standpoint at domestic policy level so as to provide policy basis for further legislation and safeguard its own rights and interests in relevant international negotiations. However, having an overview on the existing policies of China, except for some principal stipulations in National Tenth Five-Year Plan of Eco-Environment Conservation, there is basically no further policies, which puts China into a passive situation in relevant international negotiations and enforcement of its legislation and laws. For one more example, in terms of ecosystem conservation and sustainable utilization, according to the Eleventh Five-Year Plan, important land for the conservation of water supply, land for soil and water conservation, habitat for wild animals and plants, as well as various of natural reserves legally established, which may affect national or regional ecological safety, shall be classified as ecological principal function zones and the development of these zones should be restricted or prohibited. But the content for “principal function zoning� needs to be further defined. Besides, current wetland conservation policies pay too much emphasis on administrative means while ignore economic incentive mechanism. Further more, CBD requires each party to manage biotechnology-modified living organisms, prevent the invasion of alien species that may threaten ecosystem, and admire, save and maintain the traditional knowledge through legislation. 38But in China, legislative regulations are absent in these aspects, and such important issues as the management of GMOs safety, the prevention of alien species invasion, the protection of traditional knowledge, benefit sharing, technology transfer are not included in the seven specific objectives proposed in Action plan of Biodiversity Conservation in China. The Action plan includes stipulations on genetic resources conservation, but does not mention benefit sharing. 39 Table 1 and 2 show the analysis of the core contents and existing problems of current policies in China related with biological genetic resources and biological species. The problems in policies on ecosystem have been mentioned above, therefore are not included in the following table.
38
CBD, Art 8. GEF/UNDP China National Environment Convention Performance Capability Self-assessment Office, Report on self-assessment of China’s capability of performing international environment convention (Environment Science Press, 2006 edition, 45). 39
43
Table 1: Analysis of the Core Content of Policies on Biological genetic resources of China Core Content
Category
ex
Loss
of
Local
Sustainable
conservation
conservation
utilization
N/A
N/A
N/A
N/A
N/A
●
●
●
N/A
○
●
—
●
○
N/A
Forestry biological genetic resource policy
●
●
●
○
N/A
Ornamental plant recourse conservation
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
●
●
●
○
N/A
Traditional knowledge conservation policy
N/A
N/A
N/A
N/A
N/A
Marine biological genetic resource policy
—
●
●
—
N/A
Special
documents
Comprehensive biological
policy
situs
resources
Benefit sharing
genetic
resource policies
Relevant policy documents
Agricultural biological genetic resource policy
policy
Microbiological
genetic
resource
conservation
policy
Traditional Chinese medical biological genetic resource policy
N/A: Not available; ●: already have detailed stipulations; ○: already have general stipulations; —: not applicable or nonsense
44
Table 11: Analysis of the Core Contents of Policies on Biological Species of China Category
Core Content
Scientific
Prevention of
Local
sustainable
research
biological
conservation
conservation
utilization
support
invasion
●
●
●
●
●
●
●
●
●
○
○
○
●
●
●
Forestry biological species policies
○
●
●
○
●
Traditional Chinese medical
●
●
●
●
N/A
Marine biological species policies
—
●
●
●
—
Specific species conservation
●
●
●
—
N/A
—
—
●
—
N/A
Ex
Comprehensive
Special
biological species
policy
policies
documents
Relevant
situs
policy documents
Agricultural biological species policies
biological species policies
policies
Operation control policies
N/A: Not available; ●: already have detailed stipulations; ○: already have general stipulations; —: not applicable or nonsense
4.1.5 Conflict and inconsistence between biodiversity-related policies and other policies Policies affecting biodiversity conservation and sustainable utilization include both of the policies directly related and those not directly related with biodiversity. If impacts on biodiversity are not taken into consideration during policy making, biodiversity conservation and sustainable utilization will be greatly affected. For example, energy-related policies may have significant impacts on biodiversity. Global climate change resulted from use of fossil fuel will directly result in the loss of 45
biodiversity. According to statistics of 4th Global Environment Outlook (GEO-4), environmental pollution including acid rain has caused loss of large area of forests in South China, resulting in an annual economic loss up to approximately $14 million. The development of biomass energy had brought about the decrease of usable farmland, which will possibly cause the natural habitat to be developed and used as human farmland. The development of biomass energy may result in the release of chemical pollutants into the atmosphere thus affect biodiversity. To use the crop residue as fuel will reduce soil fertility thus affects soil biodiversity, etc. 40 However, in China little consideration of the impact on biodiversity has been taken into energy-related policy making. There are some more examples. Ecological immigrants have been piloted in China for many years, and ecological immigrant projects have been gradually started up especially in the process of implementing national major projects. But there is no direct biodiversity index in ecological immigrant assessment and the guidance for ecological conservation is insufficient. 41Further more, China has established Environment Impact Assessment system (EIA), and emphasis has been placed on environment impact in some major national projects. But what may have more influence on biodiversity might be Strategy Effect Assessment system (SEA). China hasn’t set up a sound SEA system, and the existing system can not fully achieve all objectives and functions of SEA. If biodiversity factor is taken into consideration in SEA being drawing out, it will be very favorable to biodiversity conservation and sustainable utilization. It’s not difficult to find out that if impact on biodiversity is not taken into consideration during the process of making other policies, biodiversity conservation and sustainable utilization can not be truly achieved. High emphasis should be paid on this point. 4.1.6 Ineffective implementation In china, the implementation of some biodiversity conservation policies is ineffective. For example, in terms of natural reserves management and construction, Regulation on Natural Reserve was worked out in 1994 in China, later some relevant policies were released, however the implementation status of these regulations and policies was unsatisfactory. According to Notice on further Strengthening the management of natural reserves 1998 by the State Council, problems existing in natural reserves management mainly include: some local governments, departments and institutions do not realize the importance of natural reserves, and one-sidedly emphasize partial and present benefits; the management is imperfect, manpower is insufficient; part of natural reserves do not have clear boundary, existing natural reserves are changed and invaded; in some natural reserves, the population increases, residential area is expanded; excessive forest cutting and blind land reclamation is serious; some natural reserves are non-existent except in name; the financial investment by government is deficient, and the only administrative work is simply the 40
See http://www.unep.org/geo/geo4/report/05_Biodiversity.pdf , Nov,2007. Assessment report on China Biodiversity Partnership Framework: Topic 2: “Trend of biodiversity in the decision on social economic plan, program and investment”.
41
46
tending of natural reserves. In the past 10 years, situations have become better, however, not substantively changed. In addition, in recent years, species policies become more and more extreme in terms of wild animal “conservation”, which places considerable restriction on sustainable utilization of wild animal and makes the administrative departments and environmental protection NGO more responsible for wild animal protection. In some regions, wild animal conservation sometimes even affects local residents’ normal production and daily life, thus it is unavoidable the public are resistive to it and thereby obstructs the effectiveness of policy implementation. The ultimate reason for the above circumstances is that relevant mechanisms and systems are not rationalized and there is discrepancy in the understanding of policy ideology. For example, the boundary of natural reserves means the restriction and prohibition of utilizing the resources inside the natural reserves, therefore will undoubtedly affect local communities and limit their right to make development. The actual condition in China is that the regions where natural reserves are located usually are not economically developed. If relevant supporting measures (especially ecological compensation) do not follow up, the zoning of natural reserves will greatly affect people’s normal life. Thereupon, conflict and contradiction occurs between ecological conservation and local residents’ right of survival and development, which to a great extent affects the implementation of biodiversity policies. In terms of management system, for example, most of existing natural reserves are managed by administrative organization specially established, with the cooperation by local government and other relevant authorities in charge. The advantage of such system is that the responsibility of the administrative organization is clear and centralized management can be achieved. However, there are also many disadvantages, among which the most serious one is the limitation of management capability as well as the coordination and cooperation among local governments and authorities concerned. In fact, a single administrative organization for natural reserves is usually not able to well solve all problems. And the coordination with local government and authorities concerned is also very complicated, which results in inefficient management and implementation of relevant policies. During the process of policy implementation, biodiversity conservation is usually made the opposite of sustainable utilization; or, extreme conservation results in the ignorance of sustainability of utilization, which deviates from the original intention of the policies. 4.2 Problems in biodiversity legislation in China The problems in biodiversity legislation in China mainly include the objective, framework, content and implementation of the legislation as well as local legislation, details as follows: 4.2.1 Inappropriate legislation objectives Biodiversity conservation and sustainable utilization includes many aspects such as genetic resources, biological species and ecosystems. To better accomplish 47
expected objectives, relevant legislation should conform to ecological law and the requirement of sustainable development, emphasis should not be placed only on one aspect. In China at present this key point is ignored in relevant legislation to a considerable extent. For example, regarding species conservation and sustainable utilization, Article 2 of Law on the Protection of Wild Fauna stipulates: “The wild animals as stipulated in this law refers to rare, endangered terrestrial, aquatic wild animals, useful animals or terrestrial wild animals with important economic and scientific research value.” It’s thus clear that in China current species conservation law is actually “law on endangered animals protection”, 42with the objective to focus on the importance of species based on their rarity, particularity, large scale and economic value, rather than the role the species play in the ecosystem based on their quantity, structure and ecosystem function. Although conservation is exaggerated in law implementation (details see the following passage), in terms of legislation ideology, it is obvious Law on the Protection of Wild Fauna ignores ecological requirements. There is one more example. In terms of ecological protection, it is stipulated in Regulation on Natural Reserve that the objective of the regulation is “to strengthen the construction and management of natural reserves, to protect natural environment and natural resources”, while no clear stipulation on biodiversity conservation is included. Such problem exists in the legislation for wetland. In China legislation related with natural resource utilization mainly considers the economic effect of natural resources utilization, paying insufficient attention to the ecological value of natural resources. The objective of the legislation is better development and utilization of wetland rather than conservation of wetland ecosystem only. 43 In retrospect of Ramsar Convention, it emphasizes simultaneous conservation and utilization of wetland, rather than any of the two extremes—pure conservation without any utilization, or pure emphasis on economic value of natural resources ignoring the ecological value. Such concept of sustainable development is critical to biodiversity. 44The biodiversity legislation in China is in a lack of such sustainable development concept. The objective and ideology of biodiversity legislation is the central reflection of the aforementioned policy ideology in the law field. Since in China there is a tendency in the biodiversity related policy ideology to separate the “conservation” and “utilization”, it will unavoidably result in the ignorance of ecological law and sustainable development. Regarding Law on the Protection of Wild Fauna, the objective is “partial conservation, full utilization”, which makes it impossible to be a law on species conservation and sustainable utilization. Regulation on Natural 42
Yang Yuan: Discussion on perfecting the legal system of animal protection (Territory & Natural Resources Study, 2003, Vol.1) 43 Chen Hongjun: Discussion on conflicts and countermeasures of wetland conservation of China (Consumption Guidance, 2006, Vol.11); Liu Xaiochun, Xie Qingxia, Wu Xiaojun: Research on the status and perfection of wetland conservation law of China (Science Mosaic, 2006, Vol.12) 44 Lin Canling: International Environment Law 411( People Press, 2004) 48
Reserve does not include clear expression of “biodiversity conservation and sustainable utilization�. This is not a matter of legislation technique, but reflects the ignorance of biodiversity conservation and utilization on a theoretical level, although legislation implementation has active facilitating effect on the biodiversity management. The problems existing in legislation related with wetland conservation further illustrate such problem. 4.2.2 Legislation by different departments lead to conflicts and low efficiency To accomplish the objectives of biodiversity legislation, cooperation and support by other legislations is required. The conflict between the content of biosafety legislation and other relevant legislations will lead to system conflicts, thus result in negative influence on biodiversity conservation and sustainable utilization. The obvious example is the conflicts between Law on the Protection of Wild Fauna and Law on Control of Guns. In Article 18 of Law on the Protection of Wild Fauna, it is stipulated that those who have obtained a gun license from the public security organization of the country or municipality concerned may hunt or catch wildlife that is not under state-level key protection. In Article 6 of 1996 Law on Control of Guns it is stipulated hunters in hunting zones and herdsmen in pastoral areas may apply for equipment with guns. Such stipulation actually deprive the people making a living not by hunting and herding of the right of hunting in a disguised form, which is conflicted with the stipulation of Law on the Protection of Wild Fauna. The conflicts result in quite a number of unfavorable consequences including: the deviation from the aim of Law on the Protection of Wild Fauna, which seriously affects the rational utilization of wildlife resources; over-poach due to strict restriction on gun license, which affects the implementation of the two laws; before the release of Law on the Protection of Wild Fauna, a considerable part of the fund for wildlife administration comes from the charges for hunting license, gun license, resource compensation fee, transportation license, etc; however, the release of the law causes sharp reduce of aforementioned income and thus decreases the funds for wildlife administration; a big proportion of wildlife research is pushed forward by hunting and serves for hunting and wildlife utilization, therefore once hunting is strictly restricted relevant research is put aside and ignored. One of the important reasons for the above mentioned situations is the fight for the administrative right of a same matter among different authorities concerned and no good coordination can be achieved. Under such circumstance, conflicts among relevant legislations are unavoidable. Current legislation mode also lowers the efficiency of biodiversity legislation. For example, the development of modern biotechnologies, with GM technology as the typical instance, has posed great threaten to biodiversity. For this reason, CPB was worked out by the international society. Motivated by CPB, countries all over the world started to formulate their own biosafety legislation. For a long time, the biosafety legislation has been under the leading of Ministry of Agriculture. Administrative Ordinance on Agricultural GMOs Safety has provided important basis for the biosafety administration of China; however, there are problems in many aspects. For instance, the orientation of the legislation ideology is unclear, which 49
leads to the standstill of the biosafety administration; problems occur in biosafety administration due to structural defects in legislation framework; improper administration system results in problems in supervision; there are a number of difficulties in the application of laws due to immature legislation technique. To solve these problems, the most important and urgent is to work out a comprehensive “Biosafety Law” or “Biosafety Management Law”. Administrative authorities such as the SEPA, Ministry of Agriculture, Ministry of Science and Technology have all realized the importance of legislation, and since late 1990, have started to made legislation research and organized experts to draw up legislation drafts. However, up to day these drafts still haven’t been listed into the national legislation agenda. With no other choice, relevant authorities have to respectively make corresponding administrative rules. The SEPA is now drawing up Regulations on Agricultural GMO Safety Administration, trying to make up for the existing defects in current legislation. But obviously, the Regulations can not replace “Biosafety Law” or “Biosafety Administration Law” as the leading law for the biosafety legislation of China. To a large extent, all these problems are resulted from the biodiversity legislation mode of the legislation authorities of China. 4.2.3 Unsystematic and incomplete legal framework A complete and perfect legal framework is the precondition for the implementation of convention and protocol by the parties and for effective biodiversity conservation and sustainable utilization. China is in a lack of plan for comprehensive biodiversity legislation and overall analysis and research on legislation, which results in an unsystematic and incomplete legal framework, details as follows: First, the legislation is at a low level thus can not meet the actual demand of biodiversity management. For genetic resource management, no special laws have been made by far in China, even no regulations or rules; for biological species management, the legislation are mostly administrative regulations and rules and only Law on the Protection of Wild Fauna which is not a law specially made for species conservation and has problems in legislation ideology; for ecological protection, there are a number of laws, however, with no laws specialized in ecosystem conservation and sustainable utilization. Such situation will absolutely affect the effectiveness of the legislations and as a result have negative influences on legislation implementation. Secondly, China is in a short of comprehensive biodiversity conservation legislation. From the legislation technique aspect, a comprehensive and perfect legislation is the precondition for a complete legal framework. It may solve the existing and potential conflicts inside the legal framework, coordinate the relation among each internal part of the legal framework, maximize the “Internalization” of the system cost inside the legal framework, and provide systematic guarantee for the remedy for partial defects inside legal framework and for further legislation. The “biodiversity” as stipulated in CBD includes genetic resource diversity, biological species diversity and ecosystem diversity. For the effective implementation of CBD, 50
the legislation related should be standardized and systematized regarding biodiversity conservation and sustainable utilization. However, current biodiversity legislation is dispersed in laws, regulations and rules related with different fields, and there are few special laws for biodiversity management. Since most of the legislations are made based on the management requirements and interests of relevant authorities, they are unsystematic and incomplete. There are repeat stipulations for some aspects while there is none for some other aspects, which results in the conflicts, contradiction and absence in legislation content and ineffective law implementation. This problem will be discussed in the following paragraphs. Thirdly, China is lacking in special legislations for relevant fields. For instance, in terms of genetic resource protection, relevant laws have been enacted related with the management of agricultural crop germ plasms resource, wild plant resource, new plant varieties, poultry animal germ plasms resource, wildlife resource and traditional Chinese medicine varieties, and even in Constitution, Environmental protection law, Marine Environmental protection Law there are also relevant stipulations. However, no legislation specialized in marine biological genetic resource management, microbiological genetic resource management, flower plant genetic resource management, wild economic plant genetic resource management and biological genetic resource access and benefit sharing. In terms new biological varieties protection, China has only made stipulations on new plant varieties protection, but none on new animal and microbiological varieties protection. The stipulations are mostly too general and of little practicability thus it’s urgent to perfect them through special legislation. Further more, regarding ecological protection, wetland is closely connected with relevant environmental factors, therefore the legislation on wetland should not engage in only one or certain environmental factors but in all relevant environmental factors. The State Forestry Administration is authorized by the State Council as the coordination and administration organization for this filed, however, the rights of the State Forestry Administration is not clearly defined in any relevant laws and regulations. Therefore, in fact currently in China there is no administrative authority having the right to make legislation aiming at the conservation and rational utilization of wetland. In China, although the concept of “wetland� is referred to in some laws, most of them only put particular emphasis on the conservation and utilization of a specific type of resource (such as water, farmland, wildlife). Comprehensive laws such as Environmental protection Law, the Land Administration Law also mainly emphasize on the administration of atmosphere, soil, water quality or pollution, as well as farmland resource. These laws have been worked out and are being implemented under the leading of different authorities, as a result, when interest conflicts occur during the practice of the laws, the effectiveness of legislation implementation will be greatly affected.
51
4.2.4 Absence in important mechanisms and systems First, important concepts are not clearly defined. Due to aforementioned problems in the objectives and framework of the legislation, biodiversity legislation even does not clearly define some important concepts. For example, in China, there is no clear definition for “wetland” in the existing laws and regulations, and the extension of “wetland” is not uniform. As a direct result, some wetlands can not be protected by law and some activities damaging wetland are not inhibited by laws. 45 The “areas liable to waterlogging such as plains, depressions, river networks and embankment areas, valleys and basins” as stipulated in Article 14 of Flood Control Law actually refer to wetland, but the expression in the law shows that the relation between wetland and water flood and water logging is not realized, since wetland is the production of the latter, while at the same time may effectively prevent the latter. It’s also of very important ecological value. Such problem also exists in important concepts like “biodiversity”, “biological genetic resources”, etc. Secondly, the contents of regulation are incomplete and the interaction among stipulations on conservation of different objects is inadequate. For instance, in terms of the biological genetic resource management, at present there is only some regulations and rules on the management of agricultural germ plasms resource and poultry animal germ plasms resources. Other relevant laws and regulations mostly emphasize the management of biological species and their habitats, while pay less attention to the management of biological genetic resources. The biological genetic resource management can only be accomplished indirectly through the management of species and their habitats. Restricted by the aims and targets, these legislations can not form a complete biological genetic resource management system. Besides, the existing laws place main emphasis on the management of domestic biological genetic resources, making no detailed stipulations in terms of biological genetic resource entry and exit as well as germ plasms loss. It’s important to regulate on relevant domestic activities; however, if the management of external activities is ignored, it’s difficult to fully and effectively achieve the objective of biological genetic resource protection. Take one more example, in terms of the management of biological species, at present the protected objects only include the animals and plants listed in the “National Priority Protection List”. In fact, animals and plants excluded in the “National Priority Protection List” are also of significant importance to biodiversity, but they are paid not sufficient attention. The existing legislation does not place proper attention to biological species management either. Thirdly, basic mechanisms and systems are not perfect, details as follows: (1) Absence in basic system to identify relevant rights. According to property economy theory, effective allocation of valuable resources can be achieved only on the precondition that relevant rights are clearly identified. However, in China, there are a number of problems in terms of system of identifying rights in the existing 45 Wei Xiao: Preliminary Probe into Legislation of Wetland Conservation in China (2004 Yearbook of Environmental Resources Legal Research Association of China Law Society)
52
biodiversity legislation. For example, regarding the legislation for biological species and biological genetic resources, in Law on the Protection of Wild Fauna the state ownership of wildlife resource is directly defined and the property of state ownership of wildlife genetic resource indirectly defined. But in Regulations on the Protection of Wild Flora, the ownership and property of wild plant resource is not clearly defined, thus the ownership and property of wild plant genetic resource can not be defined either. As for microbiological resources, there is no stipulation on their ownership or property. Such situation is unfavorable for the effective management and conservation of biological genetic resources. There are more examples. In current relevant legislations in China, no sufficient attention is paid to the proper rights of indigenous people and peasants. In fact, the accessing and the benefit sharing of biological genetic resources are closely connected with the interests of indigenous people and peasants. Without stipulations on their rights, it’s undoubtedly that the system of rights identification is incomplete. Besides, there is no definite regulation on the earnings from national genetic resources. Such defects are unfavorable to the protection of the rights and interests of relevant parties, and do not conform with requirements by relevant international rules either. (2) Absence in regulations on market-oriented mechanism. In china currently the fund source for biodiversity management mainly comes from fiscal investment, making little use of market-oriented mechanism, therefore there are few laws related with market-oriented mechanism. Taking biological species legislation as an example, relevant legislations include obvious administrative orders implication and most are in a form of order-regulatory, such as the wildlife administrative authorities, wildlife registration system, wildlife raising and breeding management system, as well as wildlife operation and utilization system. The important role that market-oriented mechanism plays is ignored, as a result there are too many orders and regulations for species management while insufficient market incentive. (3) Imperfect ecological compensation mechanism. At present in China, there are only some principal regulations on ecological compensation mechanism made by the Ministry of Forestry. 46 In The Land Administration Law there are stipulations on the compensation mechanism for the occupancy and use of farmland, 47 but it’s very difficult to accomplish the original objective of the legislation. It is stipulated in the law “the organizations occupying and using a farmland should be responsible for reclaiming a farmland equal to the farmland occupied and used by it in area and quality.” But there is no strict acceptance and supervision standard for “equal in area and quality” thus the implementation of the stipulation is ineffective. In practices, for theirs own interests, some governmental authorities and organizations take waste lands as compensation lands. Most of these lands are deficient in water and fertility, and therefore abandoned. The abandoned uncultivated lands will become 46
For example, it is stipulated in Forest Law that “The State establishes the forest ecological benefit compensation fund to be used for the planting, tending, protection and management of the forest resources and woods for shelter forests and special-purpose forests either of which generate ecological benefit”. 47 Land Administration Law, Art31 and 33. 53
deserts. 48Under such a circumstance, the establishment of a complete ecological compensation mechanism is imperative. (4) Imperfect public participation mechanism. As for ecosystem legislation, UNCCD emphasizes public participation in making out and implementing desertification prevention plans. However, there are only principal stipulations on public participation in Law on Prevention and Control of Desertification of China 49 and other related legislations, but no practicable stipulations on public participation in matching laws or regulations. The means and approach for public participation, as well as remedial measures when the participation right is infringed are not defined. Public participation in environmental protection can not be stipulated only through biodiversity legislation, however, since biodiversity issue involves many aspects and is related with the interests of an uncertain majority, it is indispensable to make further clear stipulations on public participation in the biodiversity legislation. Meanwhile, there is no financial support and preferential tax stipulations in the existing policies on desertification prevention, which is unfavorable to encourage the participation of nonpublic organizations and individuals in desertification prevention and makes it difficult to bring the whole society into desertification prevention. 50 Fourthly, absence in special systems and mechanisms. Except for the aforementioned basic systems and mechanisms, there should be also some special mechanisms. For example, in terms of biological genetic resource management, special mechanisms include the mechanism for genetic resource access and benefit sharing, market-oriented mechanism for biological genetic resource utilization. In China current legislations pay no sufficient emphasis on these special mechanisms. The consequences for lack in such special mechanisms are becoming to appear. For instance, due to the absence of practicable stipulations on the accessing of genetic resources, there is great amount of loss of biological genetic resources in China; because of short of stipulations on the benefit sharing of biological genetic resources, most of related benefits are accessed by a minority of the subjects of private laws, while the national interests can not be achieved; internationally, the country can not equally and fairly get correlative benefits by providing biological genetic resources. In addition, in species legislation, systems requested by CITES not only include license system, but also other contents, such as the transportation of living animals, marking of designated species or its products, parties enjoying the convention immunity right, registration of specimen, disposal of the specimen discovered and seized in illegal trade, law enforcement by the party to a treaty, management of the international trading and domestic circulation of traditional medical specimen and tourist souvenir. However, the legislations on species management in China do not 48
Hou Weiwei: Issues on Prevention of desertification (2004 Yearbook of Environmental Resources Legal Research Association of China Law Society). 49 Law on Prevention and Control of Desertification, Art3. 50 GEF/UNDP China National Environment Convention Performance Capability Self-assessment Office, Report on self-assessment of China’s capability of performing international environment convention (Environment Science Press, 2006, 141.) 54
refer to some segments. For example, in Administrative Regulations of Import and Export of Endangered Wild Fauna and Flora, there is stipulation on the management system related with endangered wild animal and plant import and export license (import and export certificate), but no stipulation on the technical means (such as quota, marking, port limitation, first-aid for living specimen, identification of trading specimen) 51 for the management of the import and export of wild animal and plants and related products, no clear division of the function and responsibility of authorities concerned in the management of wild animal and plant and the treaty performance either. As a result, except for the approval and issuance of license (or certificate) and port supervision, there is no corresponding legislation basis for the import and export management of the species as listed in the treaty attachment. For ecological legislation, CBD requires the parties to make EIA on the activities affecting biodiversity. 52But in China the EIA mainly targets at the impact on the surrounding environment when pollution is produced by the assessment object, which can not meet the requirement for biodiversity conservation. In addition, during the procedure of GMOs biosafety management, some important systems are indispensable, including the research and development system, application and promotion system, import EIA system of GMOs, system of having prior knowledge and agreement of transferring across the border, emergency handling system, damage compensation and remedy system. However, in China, no enough emphasis has been placed on and problems exist in the stipulations on these important systems in the GMOs biosafety legislations. Besides the above 4 aspects, in China in the biodiversity legislation, no enough attention is paid to ecological tourism, animal and plant resource trading, ecological monitoring. For example, for ecological monitoring, only some stipulations are included in administrative regulations like Ordinance on Implementation of Water and Soil Conservation Law, Ordinance on the Protection of Basic Farmland. 4.2.5 Inefficient implementation Only by effective enforcement will laws and regulations truly play their roles. However, at present in China the enforcement of biodiversity is ineffective, which is attributed to the following reasons: (1) Deviation in the understanding of law contents by law enforcement agencies. For example, for wildlife protection, ecological requirements are neglected in the legislation ideology, while “sustainable utilization” is ignored during practices. Some localities include species excluded in Law on the Protection of Wild Fauna into protected objects, as a consequence, the species are fully protected and the whole ecosystem is protected, but usually such “protection” goes to an extreme. Some localities have even worked out complete hunting prohibition measures. For example, Jilin Province started comprehensive prohibition of wildlife hunting since 1996, and 51
Wan Ziming: Research on operation mechanism of CITES and convention performance measures of China (Master’s thesis of Northeast Forestry University, 2006). 52 CBD, Art 14. 55
decided to continue such prohibition in 2000. 53Such measure does play its role in wildlife protection, at the same time however, directly infringe citizen’s right of utilizing wildlife resource. In some places there are even excessive wild boars bringing troubles to the residents. Such result is absolutely not what Law on the Protection of Wild Fauna pursuits. (2) Imperfect laws and regulations. The Seed Law and Temporary Regulation on Import and Export of Crop Seed/Seeding have stipulated the declaration and registration system for germ plasms resource import and export, however in practice, due to bureaucratic declaration procedures and expensive approval and quarantine charges, germ plasms are not sent for declaration and quarantine by the introduction organizations, sometimes even taken by technical personnel in and out of the country. 54This results in considerable ecological risk and serious biological genetic resource loss of China. The Seed Law does not clearly define the range of species under protection, the protection measures, benefit sharing, conflict solving mechanisms, while Ordinance on Protection of New Varieties of Plants does not include practicable stipulations on the application range, conditions for transferring, and compensation for utilization. As a result, there is no legislative basis during the implementation of laws. (3) Unclear legal responsibilities. For instance, CITES requires the parties to work out detailed and definite provisions on penalty for international wild animal and plant trade violating the stipulations in the treaty. In China, 55 although penalty provisions have been included in relevant laws and regulations to different extents for smuggle of wild animal and plant and relevant products, as well as forging and trading of approval documents, import and export license (certificate) or marking, most of the provisions are too general with no specific quantified standards, which makes it difficult to be implemented by enforcement sections and judicial departments. Although some specific quantified standards are proposed in The Interpretations of the Supreme People's Court on the Concrete Application of Law in the Trial of Criminal Cases of Smuggling, The Interpretations of the Supreme People's Court on the Concrete Application of Law in the Trial of Criminal Cases of Damaging Wildlife Resources, some of them are not reasonable and therefore impracticable in actual judicial enforcement. 56For more examples, Convention on International Trade in Endangered Species of Wild Fauna and Flora includes stipulations on the trading of specimen of the species listed in its three attachments in details, but in the existing laws of China, only Law on the Protection of Wild Fauna, Regulations on the Protection of Wild Flora, Forest Law include provisions of penalty for import and export of the species listed in the Treaty and export of state-level key protected animals and plants under without a license. For other activities, there is basically no 53
People Daily, (Overseas Edition, Dec 2nd, 2000, 9) Xue Dayuan: Status and Protection of. Biological Genetic Resources in China, China Environment Science Press, 2005, 21. 55 CITES, Art 18. 56 Wan Ziming: Research on operation mechanism of CITES and countermeasures for convention performance of China, Master’s thesis of Northeast Forestry University, 2002. 54
56
penalty. The absence in penalty provisions also greatly affects the implementation effect of biodiversity legislation. (4) Supporting legislation and law amending not following up timely. For example, Law on Prevention and Control of Desertification was adopted in 2001, but specific enforcement regulations haven’t been released by far, which results in series of problems occurring during the process of implementation. There is one more example. One of the core contents of Ramsar Convention is “to work out and implement plans so as to facilitate the maintenance and conservation of wetland listed in the convention and the proper utilization of domestic wetland”. 57Early in 2000, in China Wetland Conservation Action Plan, it has been decided that “the institution and implementation of China Wetland Conservation Action Plan and relevant rules on the management of wetland conservation and proper utilization” and “the establishment of wetland development assessment system” shall be the short term objective for China’s wetland conservation plan. But up to day, there are still no relevant laws and regulations. Besides, since the enforcement of Law on the Protection of Wild Fauna in 1989, with great changes in the actual situations, no amendment has been made to the law accordingly, which is really unfavorable to wildlife protection. (5) Improper administration mechanism. In China, the existence of multi-departments administration results in inefficient management and insufficient supervision and protection, thus affects the implementation effect of biodiversity legislations. For instance, in terms of wetland conservation, due to such circumstance some disputes can not be well settled. 4.2.6 Local legislation not fully play its role The implementation of national biodiversity legislation will finally be fulfilled through full implementation by localities, and local biodiversity legislation plays an important role in the implementation of relevant national legislations. However, in China at present local legislation has not fully play its role, and obvious problems are as follows: (1) The relation between “protection” and “development” is not well handled. For example, in some places in China, while considering the function and zoning of natural reserves, the rights and interests of the residents inside the natural reserves are not given overall consideration, which leads to problems in life of the residents. For one more example, in terms of wetland conservation, it is stipulated in Article 11 of Regulations on Wetland Conservation of Poyang Lake of Jiangxi Province that the conservation and proper utilization of Poyang Lake wetland should be well linked with the overall plan of land utilization, agricultural development, environmental protection, flood prevention and water resource utilization, urban construction, tourism development. However, there is no detailed stipulation on how to “link” in relevant local legislation. Without solving the relation between protection and development, the implementation of biodiversity legislation will be blocked, which is 57
Ramsar Convention, Art 3. 57
exactly a big problem that local legislation of China is now facing with (for sure as mentioned above, such problem also exists in national biodiversity legislation). (2) Some contents of local biodiversity legislation copy national legislation. In China, the natural ecological environment of different areas is greatly different, with uneven species distribution and different ecosystem. Therefore, particular emphasis regarding protection and management should be placed on different aspects. For example, in southwest region, there are rich biological species resources and a large number of species populations, with most species not endangered. Therefore in these regions, local legislation should place emphasis on the protection and management of local biological species resource based on the framework of the national legislation, keeping the stable quantity and good living status of local species. While in northwest China, due to the influence by natural ecological environment plus man-made hunting and damage, many rare animal and plants are under endangered condition, and the amount of chiru sheep and winterworm and summerherb has sharply decreased. Under such special circumstance, local legislation should place special emphasis on the restoration and quantity increase of species and the conservation of the living environment safety for these species, strengthen the control and penalty for activities damaging species safety. However, in China most local legislations copy the national legislations. The specific stipulations are mostly alike only with slight differences and with few local characteristics and practicability. As a result, local legislations are not enforceable and only copies of national legislations, and affect the implementation of national legislations. (3) Financial issues are not well solved. The fund problem is distinct in the management of natural reserves. In China no stable and practicable fund support system is included in the existing relevant legislations. The area of natural reserves in China accounts for one seventh of the whole territory area of China. As statistics show, at least more than RMB 1 billion yuan is required annually only for the extensive management of the natural reserves. But in China, for a long time, the basic construction fund invested in natural reserves is less than RMB 200 million yuan. In article 23 of Regulation on Natural Reserve it is stipulated that funds needed for the management of natural reserves shall be provided by local municipality where the nature reserve is located, and the state government will provide proper financial subsidies. Most of the natural reserves in China are located in economically undeveloped regions, which leads to such a circumstance that the less developed regions pay more for the conservation and management of national natural reserves. These regions are unable to make financial investment into the construction and management of natural reserves; therefore many natural reserves already constructed are left unmanaged. Some natural reserves have been approved to be constructed; however, there is no fund for management. 58As a result, some natural reserves have to violate regulations to raise fund by developing tourism projects, which usually causes serious damage to biodiversity. In addition, per the stipulation in Article 14 of 58
Wang Canfa: Research on General Situation of Legislation on Natural Reserve in China, (one of the reports on natural reserves legislation of China, May 2006). 58
Law Wildlife Protection, any damage or loss of agricultural crop due to wildlife conservation shall be compensated by local government. However, as regarded by local governments, forestry departments shall be responsible for wildlife conservation and local governments have neither responsibility nor fund to make compensation. As a result, most of the time compensation funds can not be put in place. (4) The interaction among relevant mechanisms and systems is ineffective. Local biodiversity legislation, like national biodiversity legislation, should also be supported by relevant mechanisms and systems so as to accomplish the objectives. Take wetland as an example. At present, in most local legislations there is no clear stipulations on the mechanism of ecological water guarantee. Thereupon, relevant legislations should first of all guarantee the supply of ecological water for wetland. Wetland ecological restoration shall be made inside wetland type natural reserves and surrounding areas, river coastal as well as large river source areas inside which wetland is damaged. The establishment of wetland ecological water supply warranty mechanism will guarantee the supply of ecological water for wetland and thus ensure wetland to continuously play its ecological functions.
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Chapter V: Suggestions to Improve Biodiversity-related Policies and Legislation
From the above we can see that there are problems in many aspects remained to be improved and perfected in biodiversity policies and legislation in China. It is therefore urgent to solve these problems, because they seriously affect biodiversity conservation and sustainable utilization in China. But the improvement and perfection should be progressed step by step and in a form of reform, rather than complete deny of existing policies—unless it is necessary. Otherwise, the practicability will be greatly reduced and the result will be the opposite. Followed are suggestions to biodiversity policies and legislations. 5.1 Suggestion to improve biodiversity-related policies in China In China, policy is the basis for law making; therefore the perfection of policy is also one of the basic preconditions for perfecting laws. Hereby suggestions are proposed regarding policy ideology, policy framework, the content and implementation of policy, as well as priority activities for improving biodiversity policies of China. 5.1.1 Further implementing sustainable development Strategy As described above, in current biodiversity policies of China, the protection and development are separated to a certain extent. In fact, the source for policy ideology usually comes from the orientation of the development strategy of a country. Since 2005, the relation between protection and development has greatly changed, which can be seen from the following policies and legislative documents: “National environmental protection plan should be included into national economic and social development plan. The governments shall take economic and technical policies and measures favorable to environmental protection, so that environmental protection would be coordinated with economic and social development. ” ——Article 4, Environmental Protection Law (1989) “Take environment as the priority”, “In regions weak in ecological environment and important ecological functional reserves development should be restricted, and development direction should based on the precondition of “environment as the priority.” --Resolution on Carrying out Scientific Development Concept and Reinforcing Environmental protection (2005)
“Take resource conservation as national policy, develop recycle economy, protection ecological environment, accelerate the construction of resource-saving, environment-friendly society, push forward the coordination among economic development and population, resources and environment.” -- National 11th Five-Year Plan of Economic and Social Development (2006) 60
As indicated by the above, China, at least in terms of policy ideology, has transformed from “environmental protection coordinated with economic development” to “economic development coordinated with environmental protection”, and the deviation in biodiversity related policy ideology does not come from the strategic level. Thus, the problem solving shall be started with policy itself. To make it specific, according to the adjustment of the development strategy of China, the principle of sustainable development should be further enforced in biodiversity policies. It hasn’t been a long time since the adjustment of state development strategy, and the adjustment of biodiversity policies does not follow up timely, which results in the unbalance and conflict between “protection” and “development”. Therefore, it is suggested that study be made on how to make adjustment to biodiversity policies based on national strategy adjustment. Such adjustment should include policy framework, policy content and policy implementation, started with perfecting the mechanism and system, so as to solve ideology deviation. The specific suggestions as proposed in the following paragraphs are all served for such adjustment. In fact, the strategy of “development coordinated with protection” is of great significance for ensuring the uniform and coordination of policies. In China, all authorities concerned have the right to make corresponding biodiversity policies. Without a common ideology, the policies will not be uniform and harmonious due to respective interest of different authority. Therefore, it should be ensured that policy making should be based on a common ideology and guiding ideology, so that the policies made by different authorities would be consistent and harmonious, and contradictory and conflict can be avoided, which is favorable to the successful implementation of the policies. The ultimate reason for the policy constraint as mentioned in 4.1.5 is that biodiversity conservation and sustainable utilization is not taken into sufficient consideration in relevant policy making. 5.1.2 Providing scientific basis for policy making Based on the actual situation of China, the task of top priority is to study the background of important biological species resources in a form of key-point investigation together with general survey, to identify, sort and catalogue traditional knowledge and applicable techniques related with biological species resources, to coordinate and establish biological species resource data base and information system so as to set up information shared platform for biological species resource conservation and sustainable utilization. On such basis, it’s urgent to complete the investigation and catalogue of biological species resources and genetic resources in relevant fields, to work out list of priority protected species, to perfect standard system, thus to achieve data-oriented and data sharing for the conservation and management of biological species resources. 59 At the same time, biodiversity supervision standard and network should be perfected step-by-step so that true and complete biodiversity information would be accessed, which provides sufficient scientific basis for biodiversity related policy making. 59
National Plan for Biological Species Resources Conservation and Utilization( 2007).
61
5.1.3 Perfecting policy framework The perfecting of policy framework of China shall be started with the following aspects: (1) Comprehensive biodiversity related policy should be perfected. As mentioned above, the existing Action plan of Biodiversity Conservation in China only includes priority actions and priority projects, and its content should be renewed. In terms of feasibility, it is of low practicability to work out new “biodiversity related policy of China�, and the most practicable way is to revise the existing plan so as to make it play its role comprehensive policy. At present, the SEPA is drawing up China Biodiversity Strategy and Action Plan. The plan has already got preliminary achievements through study of special subjects including ecosystem, species, genetic resources and traditional knowledge, biosafety and alien invasion species, responses to climate change, priority target and shortage analysis, as well as national strategy for biodiversity conservation. The release of the plan will make great contribution to perfecting comprehensive biodiversity related policy of China. As for the link with other polices, comprehensive biodiversity related policy is generally the framework (it’s sure the plan worked out by SEPA will involve some more specific issues) , and shall provide guidance for other biodiversity policies. Existing policies concerned should be discriminatingly included into the comprehensive policy; For exiting policies necessary to be improved, the Action Plan should make more perfect stipulations to better meet current demands; while the existing proper stipulations should be confirmed. Comprehensive stipulations should be made on those contents not having been regulated yet, especially content related with generic resources and traditional knowledge. Such stipulations can be not so specific, but clear and definite. (Details refer to the discussion of each type of policy in the following paragraphs). Such approach is also applicable to the link with existing legislation. As for implementation, refer to 5.1.5 for details. (2) Comprehensive biological genetic resource policy should be made. Comprehensive policy on ecosystem conservation of China is relatively perfect. In Oct 2007, National Biological-species Resources Conservation and Utilization Program was drawn up by SEPA, which includes detailed stipulations on guiding ideology and principle, plan objectives, key conservation and utilization areas, priority action and priority project, guarantee measures for biodiversity resource protection, and provides comprehensive policy basis for species conservation and sustainable utilization of China. But stipulations on biological genetic resource conservation are still not specific and comprehensive enough. In fact, the integration of biological genetic resource policy and biological species policy exactly reflects the deficient emphasis on biological genetic resource policy in China. Taking practicability and administrative cost saving into consideration, supplement and perfection shall be made to policies on biological genetic resource within the framework of the Plan and based on existing relevant policy documents, and special comprehensive biological genetic resource policies shall be worked out as soon as possible. 62
Further suggestions on comprehensive biodiversity policies perfecting and comprehensive biological genetic resource policy making are mentioned in the following discussions on priority actions. (3) Policies for special fields and aspects shall be perfected. As aforementioned, in 2001, China worked out National General Construction Plan of Wild Fauna and Flora Conservation and the Natural Reserves. In the Plan, comprehensive stipulations are made on species conservation and natural reserves construction. To enforce such comprehensive policies, more specific policies on these fields and aspects should be released. For example, except crested ibis, Chinese Tiger, Giant panda, special policies shall also be made for other important endangered species. For one more example, current biological genetic resource policies are mainly concentrated in agriculture, forestry, traditional Chinese medicine, city construction, marine development and utilization, etc. No special policies have been released on the conservation of ornamental plant recourse, microbiological resource and traditional knowledge related with biological species resources. Based on the comprehensive conservation principle, biological genetic resource policies on these fields should follow up as soon as possible. 5.1.4 Adjusting the contents of the policies As it can be seen from the above, currently what needs to be improved in biodiversity related policy includes: (1) To increase or perfect stipulations on loss of biological genetic resources. In current policy framework, there are only some preliminary stipulations on loss in policies related with forestry, agriculture and traditional Chinese medicine biological genetic resources, but none in other relevant policies. It is suggested that specific means, methods, phases and supporting systems for biological genetic resource loss prevention be increased based on the existing policies. (2) To increase stipulations on benefit sharing. In current biological genetic resource policy framework, stipulations on the benefit sharing are included only in some comprehensive policies related. The principle, means for implementation and supporting mechanisms for benefit sharing should be clearly defined in further policy making so as to provide basis for further legislation and the design of specific systems. 60The stipulations on forestry biodiversity utilization and benefit sharing should also be increased. (3) To increase or perfect stipulations on biological invasion prevention. Detailed stipulations in this aspect are included in policies on agricultural biological species and forestry biological species, but none in policies on traditional Chinese medical species and special species conservation. (4) To strengthen the stipulations on species conservation and support for 60
Yu Wenxuan: Approaches to share benefits of genetic resource through http://www.sipo.gov.cn/sipo/ztxx/yczyhctzsbh/jlfk/zwzl/200511/t70662.htm April 2006.
63
international
laws,
scientific research in agricultural and forestry species policies. At present in China policies related with agriculture and forestry species place main emphasis on species utilization, but little attention to species conservation. Besides, there is still much to do in terms of scientific support for species conservation (rather than utilization). All these problems are to be further settled. (5) To add economic incentive mechanism into wetland conservation polices. Wetland conservation and sustainable utilization policies of China include both comprehensive ecosystem policies and some special policies. For example, Notice on Strengthening the Conservation of Wetland Ecology, 1994 and Notice on Strengthening the Management of Wetland Conservation by General Office of State Council, 2004 have paid considerable attention to wetland conservation. However, in current policies, regulatory means are more often used than economic incentive mechanism, which greatly blocks the implementation effectiveness of wetland conservation policy. It’s suggested that improvements should be made in this aspect. (6) To increase, supplement or perfect the aspects as mentioned in 5.1.3. 5.1.5 Emphasizing on fulfillment of the aim and objective of policies Policy implementation is essential to the effectiveness of policies. The following suggestions are proposed to improve the effectiveness of biodiversity related policy implementation: (1) To enhance propaganda and education, motivate public participation and strengthen biodiversity conservation awareness. The ineffective implementation of biodiversity policies of China greatly attributes to the insufficient awareness of biodiversity conservation and sustainable utilization. For example, due to deficient awareness of the importance of natural reserves, some localities, departments and organizations partially emphasize partial and present interests, thus there are many illegal activities inside natural reserves. For this reason, the awareness of biodiversity conservation and sustainable utilization should be strengthened. In one aspect, policy enforcement authorities should be more aware of the objectives and effects of biodiversity conservation; in the other aspect, public participation and awareness of biodiversity conservation should be enhanced. Necessary means and measures should be provided to the public so that the public can legally participate in biodiversity conservation (details see 5.2). Only by this way can all policies be better enforced and the objectives of policy truly achieved. (2) To emphasize on the construction of organizations and the coordination among different organizations. Hereby emphasis should be placed on the following three aspects: 1) to establish and perfect biodiversity conservation organizations. One of the reasons for the ineffective implementation of biodiversity related policy is imperfect management organization and deficient manpower. Thus special emphasis should be paid to the construction of organizations. 2) to better the coordination and cooperation among administrative departments. The coordination and cooperation among relevant administrative departments is of great importance to the successful 64
implementation of biodiversity policies. Without full communication and coordination among the departments concerned, the rights and responsibilities of different departments will be unclear, which will result in the effective policy implementation. 3) to improve the working efficiency of representatives of the coordinating organizations. 61 (3) To increase financial investment. Biodiversity conservation needs great amount of investment. Although to raise fund by through market mechanism is of great importance (as mentioned above, in China no enough emphasis in paid on this aspect), governmental investment is obviously a main financial source. However, insufficient funds greatly affect the implementation of biodiversity policies in China, especially for the management of natural reserves. Therefore, it is suggested financial investment in biodiversity conservation be increased. National Biological-species Resources Conservation and Utilization Program 2007 pays high emphasis on the financial investment issue, and provides good example for other aspects of biodiversity conservation. (4) To enhance biodiversity legislation. As aforementioned, law is an important means for the implementation of biodiversity policies. As a result, legislation should be enhanced so at to improve policy implementation effectiveness. (Details see 5.2) 5.1.6 Priority actions Biodiversity conservation and sustainable utilization is a long term cause, thus the perfecting of biodiversity related policy should be based on the current situation, demand, capability and difficulties in implementation of biological genetic resource protection in China, and actions should be taken step by step based on short-term objective (1~5 years), medium-term objective (6~20 years) and long-term objective (10~15 years). Short-term objectives and priority actions are in concert with each other. Priority actions for perfecting biodiversity related policy are as shown in table 3. In the coming 1~5 years, China shall perfect its biodiversity policies in the following aspects: Table 12: Priority Actions for Biodiversity Policy Short-term objective Catalogue (priority action) Adjustment to policy ideology Perfecting comprehensive biodiversity policies Perfecting policy framework
Making
out
comprehensive
biological
genetic
resource policies Perfecting policies for special fields
61
Please refer to relevant researches by Nanjing Institute of Environment Science. 65
Mid term objective
Long term objective
Increasing or perfecting stipulations on biological genetic resource loss Increasing
stipulations
on
benefit
sharing
of
biological genetic resource Perfecting
Species conservation and scientific research for
policy content
agriculture and forestry fields Forestry ecosystem sustainable utilization and benefit sharing Economic
incentive
mechanism
for
wetland
conservation policy Enhancing propaganda and education, motivating public
participation,
strengthening
biodiversity
conservation awareness Emphasis
on
policy implementation
Emphasis on organization construction and internal coordination Increasing financial investment Strengthening biodiversity legislation Enhancing local capacity building
(1) To adjust biodiversity related policy ideology. Policy ideology is the basis for all biodiversity policies and legislations therefore should be perfected as the top task. Based on the above-mentioned, such adjustment should be based on the existing strategy framework, transferring from “emphasis on utilization” to a sustainable mode of “utilization coordinated with protection”. (2) To perfect comprehensive biodiversity policy. It is suggested that in the process of revising and perfecting China Biodiversity Action Plan emphasis shall be placed on the following aspects based on the existing policies: 1) to clearly define the overall objective of biodiversity policy. The objectives shall at least include three aspects, namely: biodiversity conservation, biodiversity sustainable utilization, providing ecological basis for sustainable economic and social development. 2) to cooperate with the performance of CBD and CPB, make comprehensive stipulations on alien invasive species, genetic resource utilization, benefit sharing, sustainable tourism, conservation of traditional knowledge and culture, application of ecological means as well as biosafety (issues related with priority actions to be mentioned in following paragraphs); 3) to pay special attention to the implementation of biodiversity conservation and sustainable utilization by relevant authorities, stipulate corresponding implementation means and procedures; 4) to push forward the establishment of scientific and effective quantifying standards and perfect supervision system, strengthen research and practice in relevant fields; 5) public participation in biodiversity conservation; 6) supporting mechanism, such as stipulations on economic incentive and ecological compensation; 7) to enhance capacity building, push forward the sharing of biodiversity data and supervision network among different authorities; 66
8) to push forward international cooperation in biodiversity technology and policy management, establish long-acting cooperation mechanism; 9) the coordination of relevant international conventions and treaties including CBD, UNCCD, UNFCCC, Ramsar Convention etc. (3) To work out comprehensive biological genetic resource policies as early as possible. Compared with other aspects in biodiversity policy, biological genetic resource policy is the most imperfect thus should be listed into priority actions. Guided by the strategy of sustainable and scientific development, based on the principle of coordination between genetic resource conservation and sustainable utilization, complying with ecological, economic and social development laws, the policy will push forward the effective conservation and sustainable utilization of biological species resources. The content should at least include biological genetic resource background investigation and research, construction of conservation and sustainable utilization data and information platform, establishment of biological genetic resource policy, regulation and standard systems, biological genetic resource sustainable utilization of and benefit sharing, mechanism for biological genetic resource loss prevention and external biological invasion, scientific research support, etc. (4) To increase and perfect stipulations on biological genetic resource loss. Currently in China loss of biological genetic resources is very serious. This problem can be solved through corresponding policies and legislations and their implementation, thus is listed as priority action. The manner for controlling biological genetic resource loss should be defined in relevant policies, and specific measures for each sectors including production/original manufacturing, processing, trading, transportation, scientific research, import and export should be stipulated so as to fulfill the conservation of biological genetic resource through whole-process management. (5) To strengthen propaganda and education, enhance public participation, raise awareness of biodiversity conservation. Promotion of biodiversity conservation and sustainable utilization should be strengthened, education and training on the personnel of relevant administrative authorities should be enhanced, and biodiversity conservation awareness of administrative personnel and the public should be strengthened. Biodiversity conservation should be included into school study and training programs, and biodiversity conservation propaganda activities should be developed so that the biodiversity conservation awareness by the whole society will be raised. (6) To emphasize on organization construction and internal coordination. The quality of managerial personnel for species conservation and natural reserves should be improved. Meanwhile, coordination mechanism among relevant departments should be established so as to better the communication and cooperation during the process of policy making and implementation. (7) To increase financial investment. It is a long term cause to increase the 67
financial investment in biodiversity conservation, and the investment in investigation and cataloguing of biological genetic resource and biological species background, conservation of endangered endemic species, as well as management of natural reserves short of funds should be paid special emphasis. Stable fund source for the research and development of biodiversity conservation technologies should be established as early as possible, such as “special scientific and technical fund for biodiversity�. Specific stipulations should be made on the way of raising, management and use of the funds so that the support mechanism for biodiversity would be systemized. (8) To strengthen local capability. Local policy is of great importance for the implementation of national biodiversity related policy and making up for defects in local biodiversity legislation. In practices such local policies usually may meet local actual demands and better solve problems. Since local policies can not go against policies made by higher authorities and should comply with national legislations, at the same tine should conform to local actual situations, it is of great difficulties to work out successful local biodiversity policies. Therefore, local policies can not meet actual local situations and the implementation is ineffective due to absence of policy and deficiency of content. For example, in terms of biological genetic resources, in some localities special resources are not properly protected while national policies and legislations do not pay attention to such situation, which is unfavorable to genetic resources protection. Therefore, the capability of making and implement local biodiversity related policy should be strengthened. Detailed measures include but not limited to: to strengthen the emphasis on biodiversity through periodical training and discussion; to cooperate the investigation of national biodiversity background investigation and establishment of supervision network so as to enhance basic investigation of local biodiversity; to include local biodiversity related policy making and implementation into local political performance assessment system; to provide financial support to local biodiversity related policy making and implementation; if necessary, to provide technical and legal support for local biodiversity making and implementation, etc. (9) To enhance biodiversity legislation. Biodiversity legislation is one of the most important means for biodiversity related policy implementation. Refer to 5.2 for details. 5.2 Suggestions to perfect biodiversity legislation in China Based on social economic development situation and strategy of China, with the perfecting of biodiversity policy, the perfecting of biodiversity legislation in China shall include the following aspects: 5.2.1 Implementing sustainable development strategy in objectives and principles Legislation ideology is mainly reflected in legislation objectives and principles. Legislation objectives and principles are the direct reflection of biodiversity related policy ideology. Thus, the objectives and principles should adapt to aforementioned 68
policy ideology. From one aspect, the objectives of biodiversity legislation should be a multi-element coordination system, namely: the conservation of biodiversity, the sustainable utilization of biodiversity, as well as the significant importance of such conservation and sustainable utilization for social and economic development. In fact, this is also direct reflection of sustainable development principle for environment related legislation. From the other aspect, legislation principle is the concentrated reflection of legislation objective. The principles for biodiversity legislation in China should include: biodiversity fair sharing, risk prevention, coordination between utilization and protection, respect to ecological laws, public participation, etc. Meanwhile, there should be also different characteristics in the legislation for specific fields. For example, regarding natural reserves, the legislation principle should be “established scientifically, emphasis on protection, public participation, and coordination of mechanisms, clear rights and responsibilities”. 62 Therefore, in terms of objectives and principles, biodiversity legislation should avoid extreme protectionism and extreme utilitarianism, neither of which is desirable. Extreme protectionism will cause the loss of internal motivation for biodiversity and frequent conflict with the legal rights and interests of local residents. While extreme utilitarianism, a legislation ideology concentrated in utilization, will directly threaten biodiversity. It’s sure that objectives and principles are only the guiding ideology for legislation, and to play their roles in practices relevant mechanisms and systems should be established and perfected. Therefore, the following suggestions are critical for implementing sustainable development strategy and preventing separation of conservation and utilization. 5.2.2 Reforming of legislation system and emphasizing on the coordination among relevant legislations As mentioned above, the system of legislation by different departments in China not only causes internal conflicts among biodiversity related legislations, but also results in conflicts between biodiversity legislation and other legislations. In fact, such problem not only exists in biosafety legislation, but also in the legislation of other fields. Therefore, legislation system reform is indispensable. It’s obvious that comprehensive reform to current legislation system is a systematic project with difficulty and complexity. Such reform can not be accomplished through biodiversity legislation itself, but biodiversity legislation can push forward the reform of legislation system through the following aspects: (1) Comprehensive biodiversity legislation is organized by Environmental and Resources Protection Committee under National People's Congress (hereinafter referred to as “CNPC”) and jointly participated by relevant administrative authorities and other relevant parties. CNPC, as the legislative authority for China environment resources plays an important role in comprehensive biodiversity legislation. It organizes relevant administrative authorities to work out legislation and plays leading 62
Wang Canfa: Research on General Situation of Legislation on Natural Reserve in China (one of the reports on natural reserves legislation of China, May 2006).
69
roles during the legislation process, which can avoid many drawbacks due to legislation by different authorities, such as low legislation efficiency because of fight for leading power, improper legislation content due to fight for administration power, etc. It’s sure that such situation poses higher requirement to CNPC. It should guide and push forward legislation progress based on the abovementioned objectives and principles, at the same time make coordination among different authorities when disagreement and even serious discrepancy occurs. (2) The legislation mode that relevant legislation is made by different departments should be broken. Although current biodiversity-related legislations are made under the guidance of relevant administrative authorities, to avoid the drawbacks in the process of legislation by different authorities, it is necessary to include other authorities and parties concerned into the amending of legislations, so as to listen to and absorb the comments and suggestions from other parties and change the situation that the legislation is made only by several relevant authorities. (3) Emphasis shall be placed on public participation in the process of biodiversity legislation making and amending. “The public� hereby includes not only ordinary populace, but also social powers like nongovernmental environmental protection organizations and industrial associations. The participation by third party will make the legislation process better reflect comments and suggestions from different social parties and thus avoid the legislation to be the opinion and policy only of one or several specific authorities. (4) Attention should be paid to the coordination between biodiversity legislation and other legislations. From the above analysis, the cooperation and support of other legislations is very important for biodiversity legislation. Therefore, authorities concerned (especially environmental protection administrative authorities) should seek for comments from other parties during the process of biodiversity legislation, especially comments from administrative authorities that may have conflicts or reduplication with it; and should make coordination during the legislation process; meanwhile, should also actively participate other legislation processes so that the demand of biodiversity conservation and sustainable can be reflected in relevant legislations. 5.2.3 Improving legal system Table 4:
Analysis on Priority Actions and Legislation Framework for Biodiversity Perfecting Plan Short-ter Legislation
Current
Means
content
perfection
of
m
Medium
objective
term
(priority
objectives
actions) Comprehensive biodiversity legislation
N/A
70
To laws
formulate
Long term objectives
Comprehensive special legislation
N/A
To work out regulations
Agricultural crop germ plasms
resource
√
—
—
—
—
—
—
—
—
—
—
—
—
—
management Plant
To
genetic
resource
amending: to Wild
management
plant
resource
management
legislation
make
√
add
content
related
with
genetic conservation New
plant
species
management
√
— To
make
amending: to Legislations animal
on genetic
Wildlife
resource
management
√
Biological
resource
scope
of
conservation Poultry animal germ plasms
genetic
the
wildlife
resource management
extend
resource
√
—
N/A
To work out
management Marine
biological
genetic
resource
management Flower plant genetic resource management Microbiological
genetic
resource
management
N/A N/A
regulations specialized in relevant issues To
Accessing of biological genetic resource and benefit sharing
make
stipulations in N/A
comprehensiv e
special
legislations Traditional
Chinese
medicine
varieties
management Intellectual
property
Relevant
protection (new plant
legislations
varieties protection) New animal varieties protection New
microbiological
varieties protection For biological species
Comprehensive special legislation
√
—
N/A
To add into relevant
N/A
N/A
71
legislations To laws
formulate
To
make
amending: to Legislation on management of wildlife species conservation
√
extend
the
scope
of
wildlife protection To Regulations on alien invasion
species
make
stipulations in N/A
prevention
Law on the Protection of Wild Fauna
Legislation on management of plant species conservation Legislation on animal and plant investigation and quarantine Legislation
on
Relevant
management
of
legislation
traditional
Chinese
√
—
—
—
—
√
—
—
—
—
√
—
—
—
—
—
—
—
medicine varieties Comprehensive special legislation
N/A
Regulations
To
formulate
laws
on
ecological
function
reserves Regulations on wildlife living
environmental
protection Regulations on forestry ecosystem conservation
and
sustainable utilization For ecosystem
Legislation
on
Regulations
ecosystem
grassland
protection
conservation
on ecosystem
√
and
sustainable utilization Regulations on water ecological environmental protection Regulations on water and
soil
loss
prevention Regulations on marine ecological protection 72
—
Special legislation on wetland conservation
N/A
To work out regulations To
√
Natural reserves legislation
make
amending: to
formulate
law currently Legislation on ecological tourism Legislation
of
GMO
management safety √: Already explained in Chapter 3
environment
N/A and
N/A
To work out regulations To work out rules
—: currently unnecessary to revise
Complete legislation framework is critical to biodiversity conservation and sustainable utilization. As it can be seen from the last chapter, there is still much to do to perfect current biodiversity legal framework in China. Analysis is made in Table 4. Therefore the perfection of legal framework can be started with the following aspects: (1) Comprehensive biodiversity conservation legislation should be enacted. This will solve the problem that “there is no leader” inside the biodiversity law framework, and provide basis for the coordination among different levels and aspects as well as law basis for law enforcement agencies so as to push forward law implementation. The comprehensive biodiversity legislation shall be made as laws so as to act as leader for relevant laws, regulations, administration rules and regulative documents and provide framework and guidance for biodiversity legislation. It should be a basic law on biodiversity conservation and sustainable utilization. The comprehensive legislation shall at least include the following aspects: ① The connotation of biodiversity. The biodiversity connotation should take the definition in CBD as basic foundation. Special attention should be paid to the relation between biodiversity and other similar concepts (such as ecosystem, biological species, details refer to Chapter One, so as to define the biodiversity conservation and sustainable utilization scope. ② Objectives and principles for legislation. As aforementioned, legislation objectives shall be the harmonization of biodiversity conservation and utilization. The legislation principle shall at least include fair sharing, risk prevention, coordination between utilization and conservation, respect to ecological laws, public participation, etc. ③ Management mechanism. A management mechanism of uniform supervising management and responsibility division should be stipulated. Authorities in charge and coordination agencies, scientific and technical consulting organizations as well as management agencies should be specified. ④ Biodiversity conservation. The approach, means and procedures for biodiversity conservation shall be stipulated. ⑤ Biodiversity sustainable utilization. The means and approaches for the sustainable utilization should be specified. ⑥ Guarantee measures for biodiversity conservation and sustainable utilization, including but not limited to financial support, public participation, ecological compensation, international cooperation, etc. ⑦ 73
Responsibilities for law violation. Administrative liability and criminal liability should be stipulated for violating above mentioned aspects. (2) Comprehensive special legislations on biological genetic resource, biological species, and ecosystem conservation should be enacted or perfected. In terms of legislation ranking, the comprehensive biodiversity conservation legislation is superior to the legislation of the above three fields. Strategies for perfecting the legislation of the three fields are different. Currently the comprehensive special legislation of biological genetic resource is of top urgency. Detailed content for the legislation is shown in the “priority action” followed. In terms of biological species, current legislation has already played its role to some extent, but is defective in its content and mechanism. Taking the limitation of legislation resources into consideration, the comprehensive legislation of this field should not be included in the “priority actions”, and can be listed into the medium-terms objectives. As for ecosystem legislation, current legislation on natural reserves and ecosystem conservation has already had some effects, with the necessity to perfect some aspects. Since to make “law on natural reserves” has been listed into the legislation agenda by China legislation authorities, it can be listed as medium objective. The legislation specialized in biological species and comprehensive legislation specialized in ecosystem as included in the medium term objectives should fully take the content included in other existing legislations and to be included in the legislations to be supplemented into consideration. (3) Current legislation should be revised and deficient legislation should be supplemented. In one aspect, existing legislations should be revised. The amending of Law on the Protection of Wild Fauna is extremely urgent, and this would be discussed in detail in the part on “priority actions”. Stipulations on genetic resource conservation should be added into Regulations on the Protection of Wild Flora. Amending should be made to Forest Law, Grassland Law, Law on Prevention and Control of Desertification, Water Law, Interim Administrative Ordinance on Scenic Spots and Historical Sites based on the requirements by species conservation. The main revision is to add content regarding species conservation. Stipulations on the conservation of new animal species and new microbiological species should be added into intellectual property law (especially patent law). In the other aspect, defective legislations should be supplemented. As shown in Table 4, special legislations necessary to be supplemented include: natural reserves legislation, wetland legislation, ecological tourism legislation, special legislation on marine biological genetic resource management, special legislation on flower plant genetic resource, special legislation on microbiological genetic resource. The corresponding ranking of these legislations please refer to Table 4. “Natural reserves legislation” is included in “priority actions”, and to be discussed in following paragraphs. 5.2.4 Complementing and perfecting important mechanisms and systems The perfecting of China biodiversity legislation shall be started with the following aspects: 74
(1) Important concepts should be defined. As mentioned above, there is no clear definition for biodiversity concept either in connotation and extension. Thus the target of biodiversity conservation and sustainable utilization is indefinite. As a result, important concepts including “biodiversity”, “biological genetic resource/genetic resource” should be clearly defined based on international conventions China has acceded in, and be stipulated in relevant legislation amending and making. In addition, important concept like “wetland” should also be reflected in further legislations. (2) Mechanism of rights should be perfected. The “rights” hereby include personal rights, community rights and state rights. There is a short of stipulations on citizen’s right of biodiversity conservation, and only few stipulations on right of knowing facts, supervision on governmental policies and means for information accessing (details refer to discussion on “public participation” in the following paragraphs). All of these should be supplemented in further legislation. In current biological genetic resource legislation, the property right of wild plant resources is not clearly defined, and no enough emphasis has been paid to the rights of indigenous people and peasants neither. There are no definite procedure stipulations as a guarantee for the usufruct of state biological genetic resources. All of the above problems are remaining to be solved. (3) Ecological compensation system should be established. As mentioned above, the ecological compensation system of China should be perfected. Although the compensation system for farmland occupancy is clearly stipulated in The Land Administration Law, the implementation effect is not satisfactory. From the view of biodiversity conservation, to perfect the ecological compensation system, comprehensive stipulations on the definition of compensation subject and object, the coordination among different subjects, calculation of compensation fund, apportion of compensation fund, and the management of the use of the compensation fund should be made. What needs to be mentioned is that there is an important precondition for the implementation of ecological compensation system, namely, to make clear the value of ecological service function. Currently there are relatively more researches on the value of biodiversity, but no dependable conclusion has been achieved. This problem can not be solved by policy and legislation, detailed scientific basis is necessary. Before substantive progress in scientific research is accomplished, ecological compensation system may be perfected by means of civil law and environment law. (4) Financial support mechanism should be established. At present, China biodiversity conservation mainly depends on financial support from national functional departments and international funds. However, such financial support is too limited and can not meet current severe situation and great demands. Take the investment by GEF in china in recent years as an example, the largest proportion of the investment is for projects on climate changes and energy, accounting for 60% of the total funds, while investment in biodiversity projects accounts only for 13%, which is much lower than the international level, since internationally the investments
75
in biodiversity projects are almost equal to projects in other fields. 63Therefore, funds should be raised through multiple channels, and financing mechanism for biodiversity conservation shall be established, specific measures including guarantee the priority fund for ecological construction, increasing relevant fiscal subsidies, putting ecological construction fund and ecological compensation into the budget of all different levels of the people’s government, etc. (5) Market mechanism and economic incentive mechanism should be established. Biodiversity conservation needs extensive participation of social subjects, and to apply market mechanism is an effective approach to push forward effective biodiversity conservation and sustainable utilization. Therefore, means such as tax reduction and exemption, preferential polices, fiscal subsidies, exchange of right of resource usage shall be applied so as to guide social power to participate. (6) Public participation system should be perfected. International conventions such as CBD, CPB, UNCCD all place emphasis on the importance of public participation. The biodiversity conservation cause in China is mainly pushed forward by governments from top to bottom. But due to the limitation in funds and manpower, it is difficult to accomplish the objectives of biodiversity policies and legislation only by government. Public participation is proposed in Resolution on Carrying out Scientific Development Strategy and Reinforcing Environmental protection, 2006, which shows that China has started to place more emphasis on the importance of public participation in ecological conservation cause. However, to set up a really complete public participation mechanism there is still a long way to go. Biodiversity legislation, based on relevant international conventions and current policy and law framework, shall make stipulations on the means and procedures for public participation in biodiversity conservation. For example: to organize public hearing for important decisions and policies that may affect biodiversity prior to development plan making and project construction, and timely provide relevant information; to raise the legal effectiveness of public participation and supervision system and enhance the practicability of public participation system; to encourage NGO to participate in biodiversity conservation; to accept public participation in the legislation process (broad sense); to push forward the establishment of public welfare litigation system in civil action law; etc. (7) EIA system and SEA system should be perfected. The parties to CBD are required to make EIA for actions affecting biodiversity. 64In relevant legislations in China, EIA is mainly to assess the impact on surrounding environment when the assessment target produces pollutants, and does not place emphasis on the impact on biodiversity. To make up for such defect, in one aspect, assessment of the environment impact on biodiversity should be clearly defined in further legislations of EIA; in the other aspect, contents on EIA should be added into biodiversity legislation making and amending. In addition, currently China is pushing forward the 63 Xia Yingzhe: China-GEF: National plan and international cooperation on biodiversity, (Sino-EU Biodiversity Strategy Seminar Thesis, Oct, 2006). 64 CBD, Art 14.
76
establishment of SEA system. The SEA system is the strategic application of EIA principles and methods. It is formal, systematic, comprehensive assessments of the environmental impact of policies, plans, programs and substitute schemes, with the objective to eliminate or reduce unfavorable impact of strategic defects on future environment so as to control environment pollution and ecological damage from the headstream. Biodiversity factor should be included into SEA system so as to identify the necessity of taking biodiversity factor into consideration in strategies and plans. (8) Special systems and mechanisms should be emphasized. The systems and mechanisms hereby include: genetic resource accessing mechanism, benefit sharing mechanism and market-oriented mechanism of biological genetic resource utilization for biological genetic resource management; as for species legislations, the transportation of living animals, marking of designated species or its products, parties enjoying the convention immunity right, registration of specimen, disposal of the specimen discovered and seized in illegal trade, law enforcement by the party to a treaty, management of the international trading and domestic circulation of traditional medical specimen and tourist souvenir; as for ecosystem legislations, the research and development system, application and promotion system and import EIA system of GMOs, system of prior informed consent of transferring across the border, emergency handling system, damage compensation and remedy system. What needs to be specially emphasized hereby is that the perfecting of legislation content can not be achieved only by perfecting the biodiversity legislations. It is of great necessity to take biodiversity conservation and sustainable utilization into consideration in EIA and SEA legislation and other legislations on environment resources. 5.2.5 Improving the enforceability and effectiveness of legislation First, attach importance to the enforceability. The enforceability is the premise condition for the implementation. Though the perfection of legislation system and legislation contents is beneficial to enhance the enforceability, what should be emphasized is legal liability. To ensure the enforcement and compliance of biodiversity-related legislation, the legislation should stipulate legal liability people should undertake if they violate the mandatory activities specified in the legislation. The “liability” in the legislation should make detailed regulations on the types of liability, situations where liability will be charged, means and methods to settle distribute etc. Please refer to “priority activities” for more details. Secondly, identify the responsibility of government. Biodiversity-related conservation involves lots of aspects, with sophisticated system and high difficulty in organization. Thus the local government should be responsible for the biodiversity conservation, strengthen the supervision and strict the assessment. Governments at county level and above should report to the people’s congress at the same level and its standing committee the progress of the biodiversity conservation, voluntarily receive the supervision of law. The governments should include the annual objective of biodiversity conservation and the objective of biodiversity conservation expected to 77
be achieved within the term of a government into the government achievement assessment--giving awards and punishment accordingly, establishing and perfecting the organization of management institutions—so that the biodiversity conservation can be carried out. For institutions and individuals who make great contribution to biodiversity conservation, awards should be timely granted so as to give them more incentives; for those who damage biodiversity conservation, corresponding administrative punishment should be given; for those who violate criminal law, criminal liability should be charged. Thirdly, strengthen the dissemination and education. The biodiversity related dissemination and education can create a sound awareness circumstances for the enforcement of biodiversity conservation legislation. At present, people’s awareness of biodiversity conservation is not strong enough, which requires us to strengthen the dissemination of biodiversity conservation, popularize relevant knowledge of biodiversity conservation so that the society can gradually be aware of biodiversity conservation and protection of their own rights, ameliorate the relationship of all stakeholders, and at the same time enhance the law executors’ awareness of the significance of biodiversity conservation. The dissemination and education can be conducted through many means, like class education, training, dissemination activities, dissemination through media, international exchange etc. Finally, attach importance to other legislation. The implementation of laws and regulation related to environment resources is critical to biodiversity conservation and sustainable utilization. For instance, the Grassland Law, Forest Law and so on are the legislations that aim to regulate certain ecosystem exploitation activities and protect the ecosystem. Law on Water and Soil Conservation, Law on Prevention and Control of Desertification and so on are the legislations that aim to prevent environment damages. Water Law and Land Administration Law and the like aims to regulate exploitation and utilization of natural resources. These laws seem to have no relationship or no direct relationship with biodiversity conservation. However these laws have great impact to biodiversity conservation and sustainable utilization. Thus attention should be paid to the enforcement of these laws, especially the enforcement of laws related to biological species and ecosystem conservation. 5.2.6 Priority actions In accordance with the actual demands of China’s biodiversity conservation, it is suggested to take the following priority actions: A. Enacting “Law on Natural Reserves” It is urgent to enact a comprehensive “Law on Natural Reserves”. Regarding the legal hierarchy, it is suggested to enact it in the form of law as the leading legislation on conservation and management of natural reserves, and provide basis for perfection of the legal system of natural reserves. The Law on Natural Reserves should set up the aim of establishing a many-faceted legal system, which means the aim should include the following: ecosystem conservation, natural resources and biodiversity 78
conservation; protection of national eco-safety; promotion of a harmonious development of society, economy, mankind and nature. Special attention should be paid to the following details: (1) Types of natural reserves. The existing natural reserves in China are categorized by ecospheres, which is not beneficial to the overall biodiversity conservation. The Law on Natural Reserves should make reference to IUCN, and categorize reserves into the following: natural reserves for scientific research, natural reserves for species and habitat, natural reserves for special environment function protection, natural reserves for historical remains, natural gardens, reserves for resources management etc. Corresponding measures will be taken for each type of reserves. The identification of types of reserves will provide support to legislation. (2) Management system. The Law on Natural Reserves should establish the following systems: planning, land ownership, management by regions and by levels, co-management by management authorities and the communities, supervision on law enforcement and the like. (3) Funding channels. Local governments at county level and above should include the development of natural reserves into the social and economic development plan, and include the construction, management and expenses of natural reserves into the financial budget. The expenses of national natural reserves should be included into the financial budget of central government. The expenses of reserves of provincial and municipal level should be included into the financial budget of provincial and municipal governments, with appropriate subsidies from central government. The expenses for resettlement should be identified. The local governments requesting to establish natural reserves should identify the cost necessary for resettlement in accordance with national and local laws and regulations. Funding and grant from the society is encouraged. (4) Liability. The Law on Natural Reserves should identify the systems related to fine based on the times of the interests that have been damaged, fine calculated by day, vindictive damages, strengthen supervision on law enforcement so that the public has the right to take law suit against the activities that damage the natural reserves and do not comply with legal responsibility specified in law. 65 What we shall explain here is that the Law on Natural Reserves should make “overall biodiversity conservation� as its aim, and enlarge the scope of conservation, as different from Regulation on Natural Reserves. This is also the reason why the Law on Natural Reserves should identify types of natural reserves. In addition, Law on Natural Reserves can make reference to the legislation on protected area of foreign countries. Taking into the actual situation of China, especially the fact that some competent administration authorities have different opinion towards foreign legislation on protected area, to issue the legislation on natural reserves as soon as possible, development of Law on Natural Reserves seems the most particle choice. 65
Wang Canfa, Research on General Situation of Legislation on Natural Reserve in China (demonstration report, May, 2006). 79
B. Enacting “Regulation on Biological Genetic Resources” To solve the issue that at present China lacks of comprehensive legislation on biological genetic resources conservation and sustainable utilization, it is urgent to enact a comprehensive Regulation on Biological Genetic Resources which is of important legal hierarchy. The Regulation should be comprehensive in terms of objects adjusted. In other word, the Regulation should not only adjust the areas which the existing legislation already make regulations on, including crop germ plasm resources, wild plant resources, new varieties of plant, domestic animals germ plasm resources, wild animal resources, traditional Chinese medicine varieties etc, but also adjusts areas like micro-organism genetic resources, marine biological genetic resources, plant genetic resources and wild economic plant genetic resources etc. As regards the object of conservation, the Regulation should cover all the biological genetic resources related to objects adjusted, rather than make unreasonable distinction of different objects. Form the perspective of legal hierarchy, the possibility that the legislation in the form of “regulation” (administrative regulation) gets approval will be higher. The Regulation should especially make rules on the following aspects: (1) Rules on conservation of right of biological genetic resources. (i) Ownership of biological genetic resources. Law on the Protection of Wildlife stipulates that the State has the ownership over wild animal resources, which indirectly indicates that the State has the ownership over wild animal genetic resources. However, as regards other fields, there is no specific regulation on the ownership of each biological genetic resource. The special legislation should clarify that the State has the ownership over wild biological genetic resources. (ii) Right to utilize biological genetic resources. Regarding this issue, special attention should be paid to the following two aspects: (a) PIC/ advanced informed agreement (AIA). The special legislation on management of biological genetic resources should, in accordance with the requirements of international rules, establish PIC/AIA, which include principles of PIC/AIA, applicable scope and procedures of PIC/AIA. Some documents on international law, like CBD and Bonn Guideline make specific regulation on PIC/AIA, which we can make reference to. (b) Access to the biological genetic resources. What the special legislation should pay attention to includes: principle of access to biological genetic resources, classification, categorization and catalogue of biological genetic resources, use of biological genetic resources; conditions for access to the biological genetic resources; application and approval procedures of access to the biological genetic resources etc. (3) Right of benefits from biological genetic resources. Bonn Guideline and other documents on international laws have make principle regulations on benefit sharing of biological genetic resources. The benefit sharing should adhere to the following principles: fairly and impartially share the benefits; share the benefits in a full scale, developing countries have priority on benefit sharing. The implementation of benefit sharing differs as the types of benefit sharing, situations of countries and the one undertaking the risk varies. The rules of benefit sharing should be implemented with flexibility, be decided by parties concerned, and differs in 80
accordance with actual situations. Benefit sharing should include the all-round cooperation in scientific research and technology development as well as the benefits from commodities. In addition , these documents on international law also sum up the current means to share benefits and put forward proposed means 66, which China can make reference to when developing special legislation on management of biological genetic resources. (4) State right over proceeds of biological genetic resources. On the one hand, specific systems will be developed to prevent the illicit loss of biological genetic resources. On the other hand, the system of benefit sharing will make corresponding regulations which reflect State’s right over the proceeds as the owner of biological genetic resources. (5) Indigenous people and farmers’ right over benefits of biological genetic resources. The special legislation should take into consideration the interests of indigenous people, identify the right of indigenous people over benefit of biological genetic resources, and reflect the interests of indigenous people, who provide biological genetic resources and that of farmers who use the biological genetic resources. Since “framers’ right” is closely related to property rights, link with regulations on property right should be fully considered 67. (5) Incentive mechanism of biodiversity conservation. (i) Awards mechanism. The awards mechanism of biological genetic resource management refers to the series measures stipulated in laws and regulations which aim to give those who have attained significant achievements or make significant contributions to biological genetic resources conservation, exploitation and utilization. Some laws and regulations only make principle regulations on awards mechanism, almost with no enforceability, e.g. Regulation on Protection of Aquatic Resources Propagation, Law on Protection of Wildlife, Ordinance on Protection of Wild Medical Materials Resources, Regulation on Protection of Wild Plants etc. The special legislation on biological genetic resources management should make systematic and definite regulation on the proposal, review and approval, publication, evaluation, confer, remedy, funding channel of awards of biological genetic resources conservation. (ii) Market mechanism. The market mechanism of sharing the biological genetic resources proceeds at present does not arrest enough attention, which the legislation should make breakthrough. The premise for perfecting the market mechanism includes establishment of corresponding systems regarding rights, trade, intermediary68 and property right etc. For instance, establishment of corresponding mechanism so that the right of proceeds of biological genetic resources can be realized through the market mechanism based on the law of value. The “variety right” stated in Regulation on Protection of New Plant Varieties is an example. 69 (3) Specify the liability of biological genetic resources, which should include: (i) types of liability. In the special legislation on biological genetic resources 66
Special Experts Group of Convention on Biological Diversity: In-depth review on suspending issues of access to and benefits sharing: words, other means and performance measures. 67 Zhan Ying, Zhu Xuezhong, Preliminary Probe into Rights of Farmers From The Perspective of International Law, (Law Science, 2003, Vol. 8, 108-116) 68 Wu Lihan, Huang Jianming, Biological Genetic Resources Conservation, Utilization and Benefits sharing (Administration and Law, 2005, Vol. 4) 69 Regulation on New Plant Varieties, Art. 6-9 81
management, the types of “legal liability” can include: civil liability, e.g. stop encroachment, eliminate impair, compensation etc; administration liability, e.g. order to stop violation, order to correct within time, order to destroy, fine and confiscate the illegal income etc; corresponding criminal liability. In terms of legislation technology, the civil and administration liabilities should be listed. The criminal liability can invoke legal regulations of Criminal Law, that is the legislation can clearly stipulate that a charge or charges of Criminal Law can be applied.(2) Applicable areas. The types of liabilities above mentioned can be applied to: illegal activities of administration competent authorities, illegal research and test, illegal import and export, illegal transit, and encroachment on other’s interest or right, violation against contract duties (legal provisions of Contract Law can be invoked), accident liability and malfeasance etc. (3) Means and methods of dispute settlement. The special legislation on biological genetic resources management should make corresponding regulations on means and methods to settle disputes, for instance, identifying the responsibility of producing evidence, prove of causality etc. Only when means and methods to settle disputes are clarified, the regulation on legal liabilities can be smoothly carried out in jurisdiction and law enforcement based on appropriate legal procedures so as to achieve the expected effects of prevention, remedy, punishment and education. C. Enacting “Administrative Regulation on GMOs Safety” From the aforementioned, we can find that at present China lacks of a comprehensive law on biological safety. The most appropriate way to solve this issue is to enact “law on biological safety” or “regulation on biological safety”. However because at present relevant administration competent authorities for quite a long time can not reach consensus on some important issues (especially the issue of allocation of administration authority), the chance that the “law on biological safety” can get approval within short time is very slime. To address to the fact that legislation on GMO safety is a complete blank, it is suggested that SEPA should enact Administrative Regulation on GMOs Safety as soon as possible, which should at least include the following aspects: (1) Object and principle of legislation. The legislation should adopt a system with multi-faced objects, which includes: strengthen environment safety management of GMOs; guarantee health of human beings; protect the ecosystem and biodiversity; promote the research and application of GMOs technical safety. As regards principles, GMOs safety management should be based on scientific data and knowledge, and implement the principle of “priority on prevention and in combination with control, management of overall process and coordination with international regulations”. (2) The environmental protection competent departments under State Council is responsible for EIA of the construction programs related to GMOs activities throughout China, GMOs environment release, GMOs environment impact monitoring, supervision and management of safety assessment of environmental protection purposed GMOs. These departments develop GMOs safety related 82
environment standards and technical specifications together with other administration competent departments. Environmental protection authorities under provincial, autonomous region and municipal governments are responsible for the supervision and management of GMOs environment safety under their respective jurisdiction. (3) Management of environment safety of environmental protection purposed GMOs. The manufacture and use of environmental protection purposed GMOs should receive the environment safety assessment conducted by environmental protection competent departments under State Council and gets the environment safety certificate. The Administrative Regulation on GMOs Safety should make detailed regulation on evaluation procedures, documents need to be submitted for application, conditions for approval etc. Also the Regulation on Management of GMOs safety should clarify that it is forbidden to manufacture and use environmental protection purposed GMOs if the manufacture and use are not approved by the environmental protection competent departments under State Council and do not receive the environment safety certificate. (4) Environment safety management of construction programs related to GMOs activities. For the construction programs which will result in emission of GMOs or GMO contained articles, EIA of GMOs safety, and analysis, projection and evaluation of the impacts construction programs might cause to human health, eco-environment and biodiversity must be conducted. Countermeasures to prevent or mitigate the adverse impacts should be proposed and the follow-up monitoring should be conducted. (5) Report and registration of pollutant emission of GMO related activities. Institutions that engage in research, development, manufacture, process of GMO and its proceeds and directly or indirectly emit GMOs or GMOs contained articles to the environment should fill in and submit the Table of Discharge Declaration and Registration, and provide necessary documents in accordance with law. After reviewed by the competent authorities of corresponding industry, the institutions should receive the Certificate of Discharge Declaration and Registration. The Regulation on Management of GMOs safety should specify the time for report and registration, spot-check, record for file and establishment of database etc. (6) Environment safety management of import and export of GMOs. Regarding the management of import and export of GMOs, the institutions and individuals who import or export GMOs should consign the assessment institutions that are qualified for EIA in China to assess the risk of GMOs, and compile the GMOs Risk Assessment Report. Relevant administration competent authorities under State Council, when reviewing the application of import of GMOs, should consult with the environmental protection departments under State Council. As regards the export management, those who plan to export GMOs developed in China should make request to the China National GMOs Safety Management Office, the Management Office will inform the corresponding competent authorities of import countries in written form. (7) GMOs environment impact monitoring. The environmental protection 83
authorities at county level and above where the activities related to GMOs as well as the proceeds are conducted, e.g. research, experiment, commercialization, trans-boundary transition, waste treatment and disposal and the like, which cause the direct or indirect emission of GMOs or GMOs elements, should conduct survey and monitoring on the impact caused by GMOs and the proceeds to mankind health, eco-environment and biodiversity. D. Amending of Law on Protection of Wild Fauna In essence, the current Law on Protection of Wild Fauna is a law on protection of the endangered animals. The protection of “three haves” animals 70 is very important, yet targeted protection is not beneficial to the general biodiversity conservation. If protection for the species that look ordinary and have a large number is insufficient, in the future, these species will also become rare and endangered. In fact, the objects that American Endangered Species Act not only cover the endangered species, but also those that are under threats. The American Endangered Species Act explains “species under threats” as “in the foreseeable future, any species that becomes or to a large extend becomes endangered”. Such explanation greatly enlarges the spectrum of protected species and is critical to maintain the ecosystem stability. When China amends the Law on Protection of Wild Fauna, it should enlarge the scope of animals under protection so as to fully play its role in biodiversity conservation. At the same time, the wildlife should be included into the scope of protection so as to link with legislation on natural reserves as well legislation on ecosystem protection. Another issue that we should pay special attention to is to add contents related to prevention of alien species invasion. In fact, this is also a weak link in China’s biodiversity conservation. During the amending, all links related to alien species invasions should be considered. Corresponding administrative measures should be enacted to address to the potential afferent means, especially supervision and administration on species introduction, transportation, international trade, entry and exit travel etc. Based on sufficient survey, to develop and perfect the list of alien invasive species under administration and control and the appraisal method which are adaptive to China’s situation. Meantime, it is necessary to regulate the review and approval procedures regarding the alien species introduction, perfect the risk appraisal system of species introduction and develop scientific appraisal index system. 71 E. Strengthening the law enforcement As the aforementioned, there are some problems regarding the enforcement of biodiversity related laws and regulations, either at national or local level. First, enhance the law enforcement departments’ understanding of the legislation guiding ideology. The implementation of laws and regulations is to carry out the guiding ideology, e.g. objectives and principles and so on, through corresponding mechanisms and systems. The law enforcement departments’ understanding of 70
“Three haves” animals refer to the animals protected by the State which have important value, or important economic value or important scientific research value. 71 Shi Yunqi, Xu Jieyu, Thought on Biodiversity Legislation in China (New Angle of View, 2005, Vol. 11) 84
legislation objectives and principles directly affects the enforcement of law. As the aforementioned, the misunderstanding of guiding ideology of legislation greatly affect the enforcement of biodiversity related laws and regulations. Thus it is necessary to improve the law enforcement departments’ understanding of legislation ideology through training, workshops, assessment and the like so that the laws and regulations can be exactly be practiced on the biodiversity management. Secondly, to perfect the contents in relevant legislations which are related to the enforcement of biodiversity legislation. For instance, timely enact and perfect the special legislation above mentioned and pay attention to the feasibility of laws and regulations; simplify the declaration and registration procedures of import and export of germ plasm resource so that the procedures can be more easily carried out; make detailed regulations on the scope of protection, protection measures, benefit sharing, conflicts settle mechanism of crop seed, application scope, conditions for transfer, utilization compensation of new plant varieties etc; detail the regulations in relevant legislation on legal liability and the means to undertake the liability. Thirdly, enhance the capacity of legislation and law enforcement of local departments. Local biodiversity legislation and relevant legislation should make an overall arrangement for “conservation” and “development”, so as to avoid the conflicts between “conservation” and “development” which might ultimately affect the efficient enforcement. To improve local legislation quality, and include the local demands of biodiversity conservation into the legislation so as to avoid the simple duplication; enhance the enforceability of law, and meantime attach importance to the link of biodiversity related policies and legislation with relevant legislation, systems and mechanism; through means like increasing central government’s financial support, encouraging social participation etc., increasing the funding channel so as to solve the problem of short of fund for biodiversity conservation of locals; recruiting excellent professionals to the front-line of law enforcement so as to enhance the quality of the law executors. Finally, strengthen the international exchange and cooperation. Through visit, study, workshop and experience learning etc, actively learn how the foreign countries cope with the relationship between biodiversity conservation and utilization, and make detailed rules and measures based on the experience learning. Through the international research and cooperation, learn the successful experience in enforcement of biodiversity related laws and regulations. For this purpose, SEPA can conduct more international cooperation projects, and make contribution to international exchange and cooperation. The major problems and their solutions of biodiversity legislation in China are summarized as the following table:
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Table 5: Major Problems and Solutions of Biodiversity Legislation in China 72 Aspects
Problems
Typical Examples
Solutions
Law on the Protection of Wild Fauna,
Implementing sustainable
with the objective to focus on the
development strategy in
importance of species based on their
objectives and principles:
rarity, particularity, large scale and
1. The objectives of
economic value, rather than the role the
biodiversity legislation should
species play in the ecosystem based on
be a multi-element coordination
their quantity, structure and ecosystem
system, namely: the
function.
conservation of biodiversity, the sustainable utilization of biodiversity, as well as the
Legislation
Inappropriate
significant importance of such
objectives
legislation objectives
conservation and sustainable Regulation on Natural Reserve and
utilization for social and
wetland-related legislations mainly
economic development.
consider the economic effect of natural
2. The principles for
resources utilization, paying
biodiversity legislation in China
insufficient attention to the ecological
should include: biodiversity fair
value of natural resources.
sharing, risk prevention, coordination between utilization and protection, respect to ecological laws, public participation, etc.
Legislation by
For example, Law on the Protection of
Reforming of legislation system
Wild Fauna conflicts with Law on
and emphasizing on the
Control of Guns, which has negative
coordination among relevant
effects on the rational utilization of
legislations:
wildlife resources, leading to poaching
1. Comprehensive biodiversity
and lack of fund for wildlife
legislation is organized by
administration.
Environmental and Resources
different
Protection Committee under
Legislation
administrative
National People's Congress and
mode
departments leads to
jointly participated by relevant
conflicts and low
The disputes on administrative powers
administrative authorities and
efficiency.
among different departments lead to
other relevant parties.
the lack of comprehensive biosafety
2. The legislation mode that
law. Similar problems exist in other
relevant legislation is made by
fields of biodiversity administration.
different departments should be broken. 3. Emphasis shall be placed on public participation in the
72
For details, see the discussions above in this Report. 86
process of biodiversity legislation making and amending. 4. Attention should be paid to the coordination between biodiversity legislation and other legislations. For genetic resource management, no special laws have been made by far, even no regulations or rules. The legislation is at a low level thus can not meet the actual demand of biodiversity management.
For biological species management, the legislations are mostly administrative regulations and rules, with no special law enacted. For ecological protection, there is no laws specialized in ecosystem conservation and sustainable
conservation legislation should
2. Comprehensive special
In short of comprehensive
This situation exists in all three aspects
biodiversity
of biodiversity conservation and
conservation
sustainable utilization.
legislation
legislations on biological genetic resource, biological species, and ecosystem conservation should be enacted or perfected.
For genetic resource management, no legislation specialized in marine
framework
1. Comprehensive biodiversity
be enacted.
utilization.
Legal
Improving legal system:
biological genetic resource management, microbiological genetic resource management, flower plant genetic resource management, wild economic plant genetic resource management and biological genetic Lacking special
resource access and benefit sharing.
legislations for
In terms new biological varieties
relevant fields
protection, China has no stipulations on new animal and microbiological
3. Current legislation should be revised and deficient legislation should be supplemented, especially: — Enacting “Law on Natural Reserves”; — Enacting “Regulation on Biological Genetic Resources”; — Enacting “Administrative Regulation on GMOs Safety”; — Amending of Law on Protection of Wild Fauna.
varieties protection. Regarding ecological protection, take wetland management for example, no department has the power to draw up the legislation with objectives to conservation and sustainable utilization of wetland. Legislation
important concepts
Wetland, biodiversity, biological
Define these concepts in further
contents
are not clearly
genetic resources, etc.
legislations on biodiversity
87
defined
conservation and sustainable utilization. The biological genetic resource
The contents of
management can only be accomplished
Enacting special legislation on
regulation are
indirectly through the management of
biological genetic resources,
incomplete and the
species and their habitats based on
perfecting related legislation.
interaction among
related legislation.
stipulations on
In terms of the management of
Further legislation should
conservation of
biological species, the protected objects
arrange the mechanisms and
different objects is
only include the animals and plants
systems in accordance with the
inadequate.
listed in the “National Priority
demand of the comprehensive
Protection List�.
protection of ecosystem.
Absence in basic system to identify relevant rights. For example, in Regulations on the Protection of Wild Flora, the ownership and property of
Related rights should be
wild plant resource is not clearly
established in the further
defined; as for microbiological
legislations on biodiversity
resources, there is no stipulation on
conservation and sustainable
their ownership or property; no
utilization.
sufficient attention is paid to the proper rights of indigenous people and peasants. Market-oriented and economic Absence in regulations on market-oriented and economic Basic mechanisms
incentive mechanism.
and systems need to be perfected.
incentive mechanisms should be put enough importance in further legislation on biodiversity conservation and sustainable utilization.
Imperfect ecological compensation
Speeding up the progress of the
mechanism. Current stipulations in The
legislation of ecological
Land Administration Law and related
compensation, putting special
legislation can not provide sufficient
importance on the conservation
basis for biodiversity management in
and sustainable utilization of
ecological compensation.
biodiversity. Considering the demand of
Imperfect public participation mechanism in biodiversity conservation and sustainable utilization.
biodiversity conservation and sustainable utilization in both special legislation on environmental public participation and further biodiversity legislation.
Absence in special systems and
These mechanisms and systems
mechanisms, including:
should be established or
88
1. In terms of biological genetic
perfected in further biodiversity
resource management, the mechanisms
legislation.
include the mechanism for genetic resource access and benefit sharing, market-oriented mechanism for biological genetic resource utilization. 2. In species legislation, the transportation of living animals, marking of designated species or its products, registration of specimen, disposal of the specimen discovered and seized in illegal trade, law enforcement by the party to a treaty, management of the international trading and domestic circulation of traditional medical specimen and tourist souvenir. 3. For ecological legislation, emergency handling system, damage compensation and remedy system, etc. For example, Article 11 of Regulations
1. Local biodiversity legislation
on Wetland Conservation of Poyang
and relevant legislation should
Lake of Jiangxi Province stipulates that
make an overall arrangement
the conservation and proper utilization
for “conservation” and
of Poyang Lake wetland be well
“development” to avoid the
balanced, but the concrete approaches
conflicts which might
are not clearly defined.
ultimately affect the efficient
Some contents of
The specific stipulations are mostly
enforcement.
local biodiversity
alike only with slight differences and
2. Improving local legislation
legislation simply
with few local characteristics and
quality, and including the local
copy national
practicability, thus affecting the
demands of biodiversity
legislation.
implementation of national legislations.
conservation into the legislation
Although article 23 of Regulation on
so as to avoid the simple
Natural Reserve stipulated that funds
duplication.
needed for the management of natural
3. Enhancing the enforceability
reserves shall be provided by local
of law, and attaching
municipality where the nature reserve
importance to the coordination
Financial issues are
is located, some natural reserves have
among biodiversity related
not well solved.
been approved to be constructed while
policies and legislation with
there is no fund for routine
relevant legislation, systems
management. Article 14 of Law
and mechanism.
Wildlife Protection provides similar
4. Through increasing central
stipulation, but most of the time
government’s financial support,
compensation funds can not be put in
encouraging social participation
Relation between “protection” and “development” is not well balanced.
Local legislation
89
place.
etc., solve the problem of short of fund for biodiversity conservation of locals.
The interaction among relevant mechanisms and systems is ineffective.
For example, in wetland-related legislations, there are no clear stipulations on the mechanism of ecological water guarantee.
90
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