Developing approaches to trans-boundary environmental impact assessment in China: Co-operation through the greater tumen initiative and in the Pearl River Delta Region

Chinese Journal of International Law

Volumn 9, Issue 2, 2010, Pages 393-414

  Marsden, Simon ^a  

^a FLINDERS UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77953926057     PISSN: 15401650     EISSN: 17469937     Source Type: Journal    
DOI: 10.1093/chinesejil/jmq011     Document Type: Article

References (104)

1. Russia, North Korea, Mongolia, Tajikistan, Kyrgyzstan, Kazakhstan, Pakistan, Afghanistan, India, Nepal, Bhutan, Myanmar, Laos and Vietnam.
2. One of the two river basins considered in this article, the Tumen River Basin, has been identified by UNESCO as among the world's 17 river basins which is a potential conflict zone for water disputes in the near to long term; See-Won Byun, Provincial Impacts of Multilateral Cooperation: The Greater Tumen Initiative and Environmental Protection in Jilin, 10 China Environment Series (2008/2009), 163. Peaceful management of international rivers is the subject of the current issue 14(2), of the journal International Negotiation.
3. Or indeed Khanka Lake, also in the Northeast.
4. HE Daming et al., Research Progress of International Rivers in China, 14 Journal of Geographical Sciences (2004), 22.
5. See Francois Molle et al. (eds.), Contested Landscapes in the Mekong Region: Hydropower, Livelihoods and Governance (Earthscan, 2009). See also generally, www.internationalrivers. org/china.
6. Michael Faure and Song Ying (eds.), China and International Environmental Liability: Legal Remedies for Trans-boundary Pollution (Edward Elgar, 2008).
7. Adopted 28 October 2002, in force 1 September 2003.
8. See Tan Zhu and Kin-Che Lam (eds.), Environmental Impact Assessment in China (Nankai University and Chinese University of Hong Kong, 2009).
9. Che Xiuzhen et al., Strategic Environmental Assessment and Its Development in China, 22 Environmental Impact Assessment Review (2002), 101-109
10. Bao Cun-kuan et al., Framework and Operational Procedure for Implementing Strategic Environmental Assessment in China, 24 Environmental Impact Assessment Review (2004), 27-46
11. Olivia Bina, Context and Systems: Thinking More Broadly about Effectiveness in Strategic Environmental Assessment in China, 42 Environmental Management (2008), 717-733.
12. Shui-Yan Tang et al., Public Participation and Environmental Impact Assessment in Mainland China and Taiwan: Political Foundations of Environmental Management, 41 Journal of Development Studies (2005), 1-32
13. Jesse L. Moorman and Zhang Ge, Promoting and Strengthening Public Participation in China's Environmental Impact Assessment Process: Comparing China's EIA Law and U.S. NEPA, 8 Vermont Journal of Environmental Law (2007), 281-335
14. The situation in relation to the Nu River is discussed, for example. See Jennifer Turner and Kenji Otsuka, Reaching across the Water: International Cooperation Promoting Sustainable River Basin Governance in China (Woodrow Wilson Center for Scholars, 2006), 16-17, 19-20.
15. While it is recognized therefore that China is a party to around 50 international environmental protection conventions, some of which contain provisions for TEIA, it is unknown to what extent these provisions have been complied with. SeeWang Canfa, Chinese Environmental Law Enforcement: Current Deficiencies and Suggested Reforms, 8 Vermont Journal of Environmental Law (2006-2007), 163
16. treaties with brief TEIA obligations include the UN Convention on the Law of the Sea, the Climate Change Convention and the Convention on Biological Diversity.
17. UNECE Convention on Environmental Impact Assessment in a Trans-boundary Context (Espoo, 25 February 1991), in force 27 June 1997. This treaty has been considered the most likely candidate to extend beyond the regional level to the global.
18. See John H. Knox, Assessing the Candidates for a Global Treaty on Trans-boundary Environmental Impact Assessment, 12 New York University Environmental Law Journal (2003), 153.
19. (Helsinki, 17 March 1992), in force 6 October 1996. Art. 3(1)(h) of this treaty requires Parties to ensure that "EIA and other means of assessment are applied" "to prevent, control and reduce trans-boundary impact". Interestingly, the Eighth Meeting of the Working Group on Monitoring and Assessment to the Meeting of the Parties of this treaty, held in Helsinki 25-27 June 2007, submitted a Preliminary Assessment of Transboundary Rivers Discharging to [the] Pacific Ocean and Their Major Trans-boundary Tributaries, which includes discussion of the trans-boundary rivers shared by China, Mongolia and Russia (the last a Party to this treaty) in the Amur River Basin (which includes the Songhua River), and gives an assessment of the status of the Tumen River, one of the case studies of this paper.
20. Angela Z. Cassar and Carl E. Bruch, Trans-boundary Environmental Impact Assessment in International Watercourse Management, 12 New York University Environmental Law Journal, (2003), 194-195.
21. Kees Bastmeijer and Timo Koivurova (eds.), Theory and Practice of Trans-boundary Environmental Impact Assessment (Martinus Nijhoff, 2008)
22. Charles M. Kersten, Rethinking Trans-boundary Environmental Impact Assessment, 34 Yale JIL (2009), 173-206.
23. For an outline of the benefits and costs of TEIA relevant to the Espoo Convention, see www. unece.org/env/eia/documents/pamphlets/Pamphlet%20- %20Benefits%20of% 20transboundary%20EIA.pdf. For similar information, with specific reference to the UNECE Protocol on Strategic Environmental Assessment to the Espoo Convention (Kiev,21 May 2003), not in force, see www.unece.org/env/eia/documents/pamphlets/ Pamphlet%20- %20SEA%20Protocol%20Implementation.pdf. See also Thomas Fischer, The Theory and Practice of Strategic Environmental Assessment: Towards a More Systematic Approach (Earthscan, 2007)
24. Simon Marsden, Strategic Environmental Assessment in International and European Law (Earthscan, 2008); Bastmeijer and Koivurova, above n.16
25. and Regional Environmental Center for Central and Eastern Europe and United Nations Development Program, Benefits of an SEA (2003).
26. Nick Bonvoisin, Trans-boundary Issues in Strategic Environmental Assessment, in: Barry Sadler et al., Handbook of Strategic Environmental Assessment (Earthscan, 2010)
27. Eike Albrecht, Trans-boundary Consultations in Strategic Environmental Assessment, 26 Impact Assessment and Project Appraisal (2008), 289-298
28. Jan de Mulder, The Institutional Context for Trans-boundary Environmental Impact Assessment in Belgium: Multi Level Setting - A Matter of Smooth Governance?, 26 Impact Assessment and Project Appraisal (2008), 282-288 (assessment of 2010 Development Outline for the Scheldt River estuary)
29. Cassar and Bruch, above n.15, 232-233 (assessment of Victoria Falls Master Plan).
30. See United Nations Economic and Social Council, Report of theWorking Group on EIA on its 12th Meeting, Geneva, 11-13 May 2009, 4 (unece.org/env/ documents/2009/eia/ wg.1/ece.mp.eia.wg.1.2009.2.e.pdf ).
31. Noah D. Hall, Political Externalities, Federalism, and a Proposal for an Interstate Environmental Impact Assessment Policy, 32 Harvard Environmental Law Review (2008), 49.
32. See also Patricia Fitzpatrick and A. John Sinclair, Multijurisdictional Environmental Impact Assessment: Canadian Experiences, 29 Environmental Impact Assessment Review (2009), 252-260.
33. De Mulder, above n.18, 23.
34. Simon Marsden, Assessment of Trans-boundary Effects in the Pearl River Delta Region: Is There a Role for Strategic Environmental Assessment?, 30 Environmental Impact Assessment Review (2010), forthcoming.
35. For an explanation of Hong Kong's status since the 1997 handover of sovereignty to China and its position in international law terms, see Sun Zhichao, International Legal Personality of the Hong Kong Special Administrative Region, 8 Chinese JIL (2009), 339-352.
36. See in particular Cassar and Bruch, above n.15, 169-244.
37. See Noah D. Hall, The North American Great Lakes, in: Joseph W. Dellapenna and Joyeeta Gupta (eds.), The Evolution of the Law and Politics of Water, (Springer, 2009), 281-297
38. Neil Craik, Trans-boundary Environmental Impact Assessment in North America: Obstacles and Opportunities, in: Bastmeijer and Koivurova (eds.), above n.16, 106-109
39. Irene B. Brooks and Liu Hongxia, River Basin Commissions as a Mechanism for Mitigating and Resolving Conflicts, China Environment Series (2006), 202-208.
40. See the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) (Helsinki, 1992), entered into force on 17 January 2000.
41. Carl Bruch et al., Assessing the Assessments: Improving Methodologies for Impact Assessment in Trans-boundary Watercourses, 26 Impact Assessment and Project Appraisal (2008), 241-242, where conclusions were reached that the TEIAs carried out usually underestimated the likely significant impacts, sometimes significantly.
42. The Inquiry Procedure has been established under the Espoo Convention in order that effect significance can be determined by an independent panel when a potentially affected Party disputes the determination made by the Party of origin. This procedure was recently used for the first time in the Danube Delta case involving Ukraine and Romania. See Mari Koyano, The Significance of the Convention on Environmental Impact Assessment in a Trans-boundary Context (Espoo Convention) in International Environmental Law: Examining the Implications of the Danube Delta Case, 26 Impact Assessment and Project Appraisal (2008), 299-314.
43. Wiek Schrage and Nick Bonvoisin, Trans-boundary Impact Assessment: Frameworks, Experiences and Challenges, 26 Impact Assessment and Project Appraisal (2008), 234-238. This is a special issue on environmental assessment and trans-boundary impact assessment.
44. As in the Protocol to the Antarctic Treaty on Environmental Protection (Madrid, 1991), 30 ILM (1991), 1461, in force 14 January 1998.
45. See generally, UNECE Report, Drainage Basins of the Sea of Okhotsk and Sea of Japan, which considers the Amur River Basin and Lake Xingkai as well as the Tumen River Basin (www.unece.org/env/water/blanks/assessment/okhotsk-japan. pdf).
46. The Report on the State of the Environment in Jilin Province in 2006 indicates water quality is Class V in 75 per cent of the river. Jilin is one of three Chinese provinces with administrative responsibility for the river (the others are Heilongjiang and Liaoning); Class V is assigned to water which is unfit for natural reserves, drinking, domestic, industrial and agricultural uses. The pollution has mainly come from Chinese pulp and paper mills. See Project Document: Feasibility Study on Tumen Water Protection (www.tumenprogramme.org/ news.php?id=598).
47. See also Wang Shi-jun et al., Urbanization and Its Impacts on Water Environment in Tumen River Basin, 12 Chinese Geographical Science (2002), 273-281.
48. Interestingly, given the experience also discussed here of Hong Kong in the PRD Region, the early trial of the Tumen Programme foresaw a far more ambitious plan to set up a Tumen River Area Development Incorporated Company, which envisaged a "new Hong Kong" in the heart of the region built on land leased from China, Russia and North Korea. As a result of this, it was intended that an internationally managed cross-border Tumen River Economic Zone would be created; US$30 billion in infrastructure investment was contemplated for this purpose. Reservations by Russia about leasing land and doubts by all that the infrastructure plans were unrealistic led, in 1998, to the more conventional institutional approach that eventuated (see www.tumenprogramme.org/news.php?id=246).
49. - 1995 Agreement on the Establishment of the Tumen River Area Development Coordination Committee, signed in New York, 6 December 1995 (www.tumenprogramme.org/news. php?id=498).
50. - 1995 Agreement on the Establishment of the Consultative Commission for the Development of the Tumen River Economic Development Area and Northeast Asia, signed in New York, 6 December 1995 (www.tumenprogramme.org/news.php?id=499).
51. The motivation for China's involvement in the Tumen Programme may have been political rather than economic: a means to balance the threat posed by Japan, to counter that posed by Western protectionism and bloc formation and to ensure peace and stability in the Korean peninsula. See Jean-Marc F. Blanchard, The Heyday of Beijing's Participation in the Tumen River Area Development Programme, 1990-1995: A Political Explanation, 9 Journal of Contemporary China (2000), 271-290.
52. For an explanation of the role of the UNDP in the establishment and implementation of the Tumen Programme, see Jean-Marc F. Blanchard, Giving the Unrecognized Their Due: Regional Actors, International Institutions and Multilateral Economic Cooperation in Northeast Asia, in: Drezner, D.W. (ed.), Locating the Proper Authorities: The Interaction of Domestic and International Institutions (University of Michigan Press, 2003), 49-76.
53. Further historical information can be located in Richard Pomfret, The Tumen River Area Development Programme, IBRU Boundary and Security Bulletin, Winter (1997-1998), 80-88, particularly the experience of conflict and development of trade in the region.
54. The other core institutions are the Coordination Committee and Secretariat, which serves both the Commission and Committee. The Coordination Committee is focused on development activities and trade and includes representatives of China, Russia and North Korea, whose territories constitute the focus of the Tumen River Economic Development Area (TREDA). The Secretariat supports and executes the decisions of the Consultative Commission.
55. The 11th Consultative Commission Meeting is planned for China in 2010.
56. It is not clear whether the Memorandum of Understanding on the Environment (below) has been formally extended, although the environment continues to be emphasized as a crosscutting theme, notably with the establishment of the Cooperation Framework on Environment (CFE) in the 2007 Vladivostok Declaration. The CFE is designed to be "a formal trans-border mechanism aiming to synchronize efforts of environmental protection in the GTR" (www.tumenprogramme.org/news.php?id=503).
57. There is a limited literature on the environmental aspects of the GTI. Note in particular however Myungjin Kim, Environmental Cooperation in Northeast Asia, 22 Impact Assessment and Project Appraisal (2004), 191-203; and See-Won Byun, above n.2.
58. Memorandum of Understanding on Environmental Principles Governing the Tumen River Economic Development Area and Northeast Asia (New York, 6 December 1995). The fact that this document is an MoU rather than an agreement between the parties may of course affect the normative value of its provisions (see www.tumenprogramme.org/news. php?id=172).
59. The latter is not insignificant in this context. See Elizabeth Smith, Implementing the Espoo Convention: An International Financial Institution Perspective, and Leonie Schreve, The Equator Principles: A Voluntary Approach by Bankers; both in: Bastmeijer and Koivurova (eds.), above n.16, 313-326 and 327-344.
60. See also Salman M.A. Salman, The World Bank Policy for Projects on International Waterways: An Historical and Legal Analysis (The World Bank, 2009), 204-212, which includes discussion of the policies on disputed areas and EIA.
61. Rio Declaration on Environment and Development (Rio de Janeiro, 14 June 1992), 31 ILM (1992), 874.
62. UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998), in force 30 October 2001.
63. As of 16 February 2010, there were 44 Parties to each of these treaties.
64. GTI, Strategic Action Plan for the Period 2006 to 2015 (2005) (www.tumenprogramme.org/ news.php?id=502).
65. See explanation, above n.40. Marsden, Trans-boundary Environmental Impact Assessment 405
66. For background and evaluation, see Myungjin Kim, above n.41, 198-200. See also See-Won Byun, above n.2.
67. See Paper 1A, Session 1, Overview of GTI Projects, The 10th Consultative Commission Meeting for the Greater Tumen Initiative (GTI) (Ulaanbaatar, Mongolia, 24-25 March 2009), in particular 16-17.
68. See above n.31.
69. This was aimed at developing a cooperative trans-boundary mechanism for biodiversity conservation (including endangered tigers and leopards), potentially to result in a Transboundary Biosphere Reserve in the Lower Tumen River Area for inclusion in the UNESCO Man and Biosphere Trans-boundary Biosphere Reserve list (of which the Danube Delta shared by Romania and Ukraine is an example). See Ian Davies and Valery Neronov, Field Diagnostic and Planning Mission to the Lower Tumen River Area of China and the Russian Federation (26 May-7 June 2003), 84-95 for background
70. see also United Nations Development Programme and Korean National Commission for UNESCO, Project Final Report, Feasibility Study on the Establishment of the Lower Tumen River Area Trans-boundary Biosphere Reserve (2004).
71. For academic comment which puts the reserve proposal in the context of GTI governance and politics, including the important role NGOs have played in this initiative, see Sangmin Nam, Ecosystem Governance in a Cross-border Area: Building a Tumen River Trans-boundary Biosphere Reserve, 7 China Environment Series (2005), 83-88.
72. An EIS was in fact prepared for the Hunchun Border Economic Cooperation Zone in 2000, in particular of the Master Plan for the Zone, although since this was more than seven years after it was established in 1992, it was not an ex ante assessment. Perhaps also surprisingly, the assessment was also not undertaken with reference to the provisions of the MoU, which while cited in the Introduction to the EIS, do not form part of the regulatory requirements cited as the basis for the assessment, which are all Chinese national laws including the Law on EIA.
73. See Paper 1A, Overview of GTI Projects, above n.50, 11-12 and 13-14. There is no mention of any proposed assessment approaches in this document.
74. De Mulder, above n.18, and Hall, above n.24.
75. See Marsden, above n.22.
76. One of the few exceptions to this is the controversial provision in the Basic Law of both SARs for constitutional interpretations to be made by the Standing Committee of the National People's Congress where provisions concern the relationship between the mainland and the SARs.
77. See Simon Marsden, Regional Autonomy, Judicial Criticism and the 2005 Interpretation: Judicial Independence in Hong Kong Compromised Again?, 36 Hong Kong LJ (2006), 117-142
78. Simon Marsden, Constitutional Interpretation in Hong Kong: Do Common Law Approaches Apply when the NPC Standing Committee Interprets the Basic Law?, Law Asia Journal (2006), 99-124.
79. China's neighbours who are Parties to the Espoo Convention are Kyrgyzstan and Kazakhstan. Russia is a signatory and is notably supportive of the application of the Convention in relation to the European " Nordstream'" project despite not being a Party.
80. Bosco C.K. Fung, Sustainable Development in Hong Kong: Planning for Closer Regional Linkages in the PRD, Paper for panel discussion on Challenges to Sustainability in the PRD Region, International Symposium on Sustainable Development, Hong Kong (2002). (sdsymposium.susdev.gov.hk/eng/full/ Planning%20for%20Closer%20Regional%20Linkages% 20in%20the%20Pearl%20River%20Delta%20Region.pdf ).
81. Peter Hills and Peter Roberts, Political Integration, Trans-boundary Pollution and Sustainability: Challenges for Environmental Policy in the Pearl River Delta Region, 44 Journal of Environmental Planning and Management (2001), 465.
82. Yok-shiu F. Lee, Tackling Cross-border Environmental Problems in Hong Kong: Initial Responses and Institutional Constraints, The China Quarterly (2002), 988-990.
83. Hills and Roberts, above n.59, 464.
84. Ibid., 466
85. Peter Hills et al., Trans-boundary Pollution between Guangdong Province and Hong Kong: Threats to Water Quality in the Pearl River Estuary and Their Implications for Environmental Policy and Planning, 41 Journal of Environmental Planning and Management (1998), 375-396.
86. Tracy A. Trumbull and Christine Loh, The Impacts of Climate Change in Hong Kong and the Pearl River Delta (Civic Exchange, 2006).
87. Benjamin L. Liebman, Autonomy through Separation? Environmental Law and the Basic Law of Hong Kong, 39 Harvard ILJ (1998), 283.
88. Benjamin L. Liebman, Autonomy through Separation? Environmental Law and the Basic Law of Hong Kong, 39 Harvard ILJ. Ibid., 294.
89. Chun Yang, The Pearl River Delta and Hong Kong: An Evolving Cross-boundary Region under 'One Country, Two Systems', 30 Habitat International (2006), 75.
90. United Nations Economic Commission for Europe, Working Group on Environmental Impact Assessment Large-scale Trans-boundary Projects - Application of the Convention to Complex Activities, Note to the Secretariat, 12th Meeting (Geneva, 11-13 May 2009) (www.unece.org/env/documents/2009/eia/wg. 1/ece.mp.eia.wg.1.2009.4.e.pdf ).
91. Yang, above n.66, 75.
92. Stage I was completed in April 1997, Stage II in November 1998 and Stage III received an environmental permit on 29 December 2003 and it was completed thereafter. See Peking University, Environmental Impact Assessment Study on Shenzhen River Regulation Project, Final EIA Study Report (1995); Drainage Services Department, Shenzhen River Regulation Project Stage III (2000).
93. Chief Executive of the Hong Kong Special Administrative Region, The 2007-2008 Policy Address - A New Direction for Hong Kong (2007), 8-10 (www.policyaddress.gov.hk/ 07-08/).
94. The relevant documents for the Hong Kong section of the trans-boundary projects are easily accessible via the following link: www.epd.gov.hk/eia/ register/.
95. There is no EIA law in Macau.
96. Chief Executive of the Hong Kong Special Administrative Region, The 2008-2009 Policy Address - Embracing New Challenges (2008), para.3 (www.policyaddress.gov.hk/08-09/ index.html).
97. Friends of the Earth, Comments on the Project Profile of Hong Kong-Zhuhai-Macau Bridge (HMZB) (22 October 2003) http://www.foe.org.hk/welcome/ gettc.asp?id-path=1 ,%207, %2028,%20152,%203517,%203518.
98. Hong Kong Special Administrative Region Government, Guangdong Provincial Government Expert Group, Planning Study on the Coordinated Development of the Greater Pearl River Delta Township (2007), para.4(c) (www.pland.gov.hk/misc/ great-prd/ outline-e.htm).
99. Bram Noble, Strategic Approaches to Regional Cumulative Effects Assessment: ACase Study of the Great Sand Hills, Canada, 26 Impact Assessment and Project Appraisal (2008), 78-90.
100. UNECE, Working Group, above n.67. The Working Group is therefore making the point that if there is no preceding SEA to a project-level EIA, then strategic issues should be discussed in the EIA. While it makes sense to discuss strategic issues in the EIA rather than not at all, it remains preferable that strategic proposals should set the framework for project ones if, for example, alternatives are not to be pre-empted and cumulative effects are to be avoided.
101. HKSAR/Guangdong Government, above n.75, para.7.4.2.
102. HKSAR/Guangdong Government, above n.75, para.7.4.3.
103. See discussion in the text above and in n.14.
104. Koyano, above n.27. See also Simon Marsden, MOX Plant and the Espoo Convention: Can Member State Disputes concerning Mixed Environmental Agreements Be Resolved outside EC Law? 18 Review of European Community and International Law (2009), 312-327.