1 / 34

China’s Emerging Environmental Law in the Global Perspectives

Where We Are Now: The State of Play in Regulatory Innovation Internationally. Environmental Law in a Connected World Monona Terrace, Madison, Wisconsin January 31, 2005. China’s Emerging Environmental Law in the Global Perspectives. Hongjun Zhang, Senior Counsel China Group, Business Section

kalyca
Télécharger la présentation

China’s Emerging Environmental Law in the Global Perspectives

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Where We Are Now: The State of Play in Regulatory Innovation Internationally Environmental Law in a Connected World Monona Terrace, Madison, Wisconsin January 31, 2005 China’s Emerging Environmental Law in the Global Perspectives Hongjun Zhang, Senior Counsel China Group, Business Section Email: Hongjun.zhang@hklaw.com Tel: 202-457-5906 Fax: 202-955-5564 2099 Pennsylvania Avenue, NW Washington, D.C. 20006 USA

  2. Overview • Environmental Status in China • Environmental Law: A Comparison between the United States and China • China WTO: Challenges and Opportunities • The Increasing European Influence in China’s Environmental Legal Regime • Key Observations on Global Perspectives on Environmental Law in a Connected World

  3. Environmental Status in China • Air and water pollution nationwide, particularly in urban areas; • Problems caused by solid, liquid and gaseous wastes, especially by hazardous wastes; • Deforestation and other land degradation; and • Health consequences of environmental degradation.

  4. Environmental Status in China

  5. Environmental Status in China

  6. Environmental Status in China

  7. Environmental Status in China • Driving forces behind efforts to vigorously develop environmental law and policy • Increasing public concern over environmental, health and safety issues; • Growing pressure to ensure economic growth through the development of practices based on law; • Expanding international influence on governmental, academic, and industrial activities; • Growing importance for government leaders of obtaining a “green label”; and • Increasing media coverage of environmental issues.

  8. Environmental Status in China

  9. Environmental Status in China

  10. Environmental Status in China

  11. Environmental Law: A Comparison between the United States and China – Legal Culture • Rule by authority vs. rule of law - China: 牛 (cow) or 半 (half) - US: Law is king • Who decide a dispute? - China: Senior authority figures - US: Judges • Focus of law – historical view • China: Criminal law • US: Civil and criminal law

  12. Environmental Law: A Comparison between the United States and China – Law Drafting • Law Drafting Protocol - China: laws are often written in general terms - US: laws perhaps are over complicated • Law Drafting Process - China: agencies take dominant role - US: somehow a multi-player exercise

  13. Environmental Law: A Comparison between the United States and China – Enforcement Capacity • Personnel Resources - China: 200+ or 1,000+ - US: 18,000+ • Budget - China: 10 million - US: 8 billion • Regional Offices - China: Not yet - US: Yes

  14. Environmental Law: A Comparison between the United States and China - Enforcement • Major Enforcement Target • China: industry including state owned industry and Town and Village Enterprises (TVE) • US: private industry • Independence of Enforcement • China: influence of other agencies/governmental leaders • US: influence from political leaders

  15. Environmental Law: A Comparison between the United States and China – Future Trend • China: Rapid expansion of environmental laws • Increased attention by legislative bodies • Growing number of implementing rules, standards, and other legal norm-setting documents • Gradual “greening” of major statutes and regulation • Significant efforts underway to facilitate compliance with WTO agreements • US: A relative mature environmental legal system • Focus on improvement towards more effective approaches • Influenced by political waves

  16. China WTO: Challenges and Opportunities • Two WTO agreements among WTO Members in particular oblige Members to promote clear and effective notice of environmental laws. • Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) • Addresses measures taken to protect humans, animals, and plants from certain risks to life and health, including risks arising from additives, contaminants, or toxins in foods.

  17. China WTO: Challenges and Opportunities • Two WTO agreements among WTO Members in particular oblige Members to promote clear and effective notice of environmental laws. • Agreement on Technical Barriers to Trade (TBT Agreement): • Addresses all voluntary and mandatory standards for products, other than any that qualify as sanitary or phytosanitary measures under the SPS Agreement, which indirectly impact free trade (i.e., create “technical barriers to trade” without directly regulating trade as such). • Might include product content, packaging, and labeling measures.

  18. China WTO: Challenges and Opportunities • Additionally, the General Agreement on Tariffs and Trade (GATT) as incorporated into the WTO Agreements establishes some parallel requirements: • Generally, the rules established under GATT apply to all trade in goods, unless GATT rules conflict with those established under another WTO Agreement (such as the SPS Agreement or TBT Agreement) in which case the provisions of the other WTO Agreement prevail.

  19. China WTO: Challenges and Opportunities • Protocol on the Accession of the People’s Republic of China (annexed to the WTO Decision on the Accession of the People’s Republic of China, done at the Ministerial Conference of the WTO at Doha, Qatar, on November 10, 2001): • Reaffirms and provides further China-specific details with respect to obligations laid down in the GATT and SPS and TBT Agreements.

  20. China WTO: Challenges and Opportunities • WTO Rules: • SPS Agreement (Annex B, para. 1) requires prompt publication of all SPS regulations “in such a manner as to enable interested Members to become acquainted with them.” It also requires Members, except in cases of emergency, to “allow a reasonable interval between publication of a sanitary of phytosanitary regulation and its entry into force to allow time for producers in exporting Members…to adapt their products and methods of production to the requirements of the importing Member.” (Annex B, para. 2).

  21. China WTO: Challenges and Opportunities • WTO Rules: • TBT Agreement establishes requirements similar to those established in the SPS Agreement. For example, Article 2.11 requires that all “technical regulations” (i.e., obligations that must be satisfied as a matter of law) be “published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them.” Additionally, the TBT Agreement imposes an obligation to “allow a reasonable interval between the publication of technical regulations and their entry into force in order to allow time for producers in exporting Members…to adapt their products or methods of production to the requirements of the importing Member.” (Article 2.12). • With regard to “standards” (i.e., measures with which compliance is not mandatory), the TBT Agreement also requires prompt publication, but not any delay between publication and entry into force. (Annex 3).

  22. China WTO: Challenges and Opportunities • WTO Rules: • GATT (Article X) imposes on WTO Members broad, general requirement to publish “promptly” all “[l]aws, regulations, judicial decisions and administrative rulings of general application…pertaining to…requirements, restrictions or prohibitions on imports or exports…or affecting their sale, distribution or transportation…processing, mixing or other use,” and to do so “in such a manner as to enable governments and traders to become acquainted with them.” The GATT also prohibits the enforcement of any “new or more burdensome requirement, restriction or prohibition on imports” prior to its publication. (Article X).

  23. China WTO: Challenges and Opportunities • WTO Rules: • Protocol on Accession provides that China shall publish “those laws, regulations, and other measures pertaining to or affecting trade in goods, services…or the control of foreign exchange.” (Article 2(C)(1)). Additionally, the Protocol specifies that “China shall make available to the WTO Members, upon request, all [these legal measures] before such measures are implemented or enforced” and “establish or designate an official journal dedicated to the publication of such laws.” (Article 2(C)(1)-(2)).

  24. China WTO: Challenges and Opportunities • China’s Communications with respect to WTO Law: • On January 29, 2002, China submitted a Communication to the TBT Committee that indicated, among other things, that China “will give a reasonable interval between the publication of technical regulations and their entry into force so that adaptation could be made by other WTO Members.” (Part IV).

  25. China WTO: Challenges and Opportunities • Challenges for China: • Systemic issues • Role of courts, by themselves, do not yet form a meaningful and resounding influence on the law, at least with respect to environmental issues; • EHS law enforcement initiatives and regulated community compliance relies almost solely on the edicts in various legal norm-setting documents, as well as the scope and specificity of such documents; • Commonly held view among many government officials that legal-norm creating documents are “government property.” • Administrative issues • Unresolved, and sometimes contentious, issue of designating responsible entity(ies) for gazetting/publication of laws.

  26. China WTO: Challenges and Opportunities • Signs of Change: • Examples of “notice” practices: • Publication of the draft Land Administration Law (1998) in national newspapers requesting that comments on the draft be sent to the Environmental Protection and Natural Resources Conservation Committee of the National People’s Congress (NPC); • Publication by the State Environmental Protection Administration in the Guangming Daily of drafts of five national vehicle emissions standards on June 19, 2001; • Publication of draft Regulations on Recycling and Take-Back of Used and Waste Electronic and Electrical Products in the website of State Development and Reform Commission on September 20, 2004.

  27. USCIB Chia Subcommittee Meeting USCIB中国委员会会议 The Increasing European Influence in China’s Environmental Legal Regime • Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS Directive). • Translated by (former) Ministry of Foreign Trade and Economic Cooperation (MOFTEC), distributed throughout the government. MII uses the translation as a significant influence in their rulemaking on hazardous substance restrictions.

  28. The Increasing European Influence in China’s Environmental Legal Regime • European Directive on Waste Electrical and Electronic Equipment (WEEE Directive) • Translated by MOFCOM for distribution. Referred to by National Development and Reform Commission in their rulemaking on electronic product take-back and recycling.

  29. USCIB China Subcommittee Meeting USCIB中国委员会会议 The Increasing European Influence in China’s Environmental Legal Regime • REACH Proposal. (European proposal on Registration, Evaluation, and Authorization of CHemicals) • General Administration for Quality Supervision, Inspection and Quarantine (AQSIQ) and State Environmental Protection Administration (SEPA) take lead in translating and disseminating information on REACH among government agencies. • Possible future moves by Chinese authorities to adopt similar approaches to chemical registration and evaluation.

  30. USCIB China Subcommittee Meeting USCIB中国委员会会议 The Increasing European Influence in China’s Environmental Legal Regime • Energy Efficiency • China recently issued new energy efficiency labeling requirements. • Influences include the Proposal for a Directive of the European Parliament and of the Council on a Framework for the Setting of Eco-design Requirements for Energy-Using Products (EuP Directive)

  31. USCIB China Subcommittee Meeting USCIB中国委员会会议 The Increasing European Influence in China’s Environmental Legal Regime • Why? • Politically the Chinese officials often feel safer to refer the European models rather than the US and other models; • EU has been the leaders in many environmental regimes; • EU and its member countries have been much proactive in outreaching to other countries; and • The United States has somehow self-isolated in international environmental cooperation in the recent years.

  32. USCIB China Subcommittee Meeting USCIB中国委员会会议 Key Observations on Global Perspectives on Environmental Law in a Connected World • In a connected world today, any regulatory changes and developments in one nation, particularly in the large developed countries, will be reflected, in one way or another, in other nations. • International environmental standards and best practices, are rapidly expanding from the developed world to the developing nations, largely through the expansion of multinational corporations.

  33. USCIB China Subcommittee Meeting USCIB中国委员会会议 Key Observations on Global Perspectives on Environmental Law in a Connected World • The developing nations such as China, often have the political desire to carry on the “international flag” and “green flag” in their law and policy making process, though the implementation reality often varies from the intention of laws. • A cleaner and sustainable world relies on the better and environmental regimes in every nations, and the more effective international cooperation. The large developed nations, particular the United States, should take the lead on international environmental efforts.

  34. Thank You 谢谢

More Related