Challenges in China's natural resources conservation & biodiversity legislation.

• Author: Yu, Wenxuan

1. INTRODUCTION II. BIODIVERSITY LEGISLATION IN CHINA A. Ecosystem Protection and Conservation B. Nature Reserves Management Tools C. Resource Use And Protection III. CHALLENGES FACING EXISTING LEGISLATION A. Ecological Values B. Implementation and Enforcement C. Public Participation IV. IMPROVING CHINA'S NATURAL RESOURCES CONSERVATION AND BIODIVERSITY LEGISLATION A. Participation and Incentives B. Liability C. Legislative And Administrative Coordination V. CONCLUSION AND FINAL PROPOSAL I. INTRODUCTION

   According to the Convention on Biological Diversity (CBD), biodiversity refers to "the variability among living organisms from all sources including ... 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) The CBD divides this generalized definition of biodiversity into genetic diversity, species diversity, and ecosystem diversity. (2)

   Few other countries possess the same level of biodiversity as China. (3) China is home to over 30,000 types of vascular plants and 6,347 vertebrates, accounting for 10% and 14% of the world's totals, respectively. (4) China also has a wide variety of unique terrestrial habitat types. (5) The United States is similar to China in size and also offers a high level of biodiversity, but still is not as diverse as China. (6) The U.S. is home to 4,529 types of vertebrates and 18,100 vascular plants. (7) In total, the U.S. has documented more than 200,000 species of animals, plants, and fungi, representing more than 10% of all documented species worldwide. (8)

   The decline of biodiversity is accelerating throughout the world. (9) While biodiversity loss is significant in the United States, (10) the rate of loss is especially pronounced in China where ecosystem and species diversity is threatened by China's rapid economic development, which has already impacted environmental quality. (11) Throughout China, river and lake sedimentation are increasing; lake and groundwater levels are decreasing; oasis and vegetation loss in arid areas is more common; natural forests are being cut; reclamation and destruction of grasslands continue; red tide is damaging the marine ecosystem; beach erosion and seawater encroachment are worsening; wildlife populations are decreasing; and many rare plant and animal species are in danger of extinction. (12)

   Many environmental law articles about China focus on pollution control, yet few deal with natural resources law and conservation. (13) Part II of this Article provides a brief overview of Chinese biodiversity and conservation legislation, while Part Ill discusses the challenges facing biodiversity legislation in China. Despite China's legislative attempts to conserve its natural resources, and in turn, to protect biodiversity, Chinese law struggles to effectuate these goals due to implementation, enforcement, and public participation problems, and legislative tendencies to promote economic values rather than ecological ones. This Article suggests, in Part IV, that China can improve biodiversity legislation through increasing the public's role in conservation efforts, strengthening liability and enforcement mechanisms, improving administrative coordination, and developing an integrated legislative framework for future biodiversity and conservation action.

2. BIODIVERSITY LEGISLATION IN CHINA

   This Part provides a brief overview of the legal regime in China as it addresses biodiversity and conservation. International conventions have helped create and promote biodiversity legislation in China, (14) but these legislative efforts face significant implementation challenges. As compared to the United States, China arguably has more legislation--including constitutional law--touching on biodiversity concerns. In addition, like the U.S., biodiversity and conservation concerns infiltrate a variety of natural resources and environmental laws. (15)

   In China, "biodiversity law" as a legal system, comprises four levels: 1) constitutional provisions adopted and amended by the National People's Congress (NPC); (16) 2) biodiversity-related laws that include a smorgasbord of environmental legislation enacted by the NPC or its Standing Committee; (17) 3) related regulations enacted by the State Council (which serves as an executive power with both legislative and executive responsibilities--similar to U.S. administrative agencies); (18) and 4) biodiversity-related rules and normative documents promulgated by the Ministries (19)--which are akin to administrative law and agency guidance in the U.S. (20) As with U.S. law, no single piece of Chinese legislation contains all of the country's conservation and biodiversity protection provisions. (21) Despite this lack of centralization, and in an effort to summarize "biodiversity legislation" for the reader (which might also be fairly characterized as a component of "natural resources law" by American definitional standards), Chinese legislation in this area can be placed into three categories: 1) ecosystem protection and conservation, 2) nature reserves, and 3) resource use and protection--all designations that are familiar to observers of U.S. natural resources law. (22)

   1. Ecosystem Protection and Conservation

      Through a number of legislative actions, China has sought to improve ecosystem protection and conservation. In particular, China has passed laws for the purposes of:

      * Wildlife Conservation. Such conservation practices include establishing nature reserves in habitats where certain protected wild animals are living and propagating; (23)

      * Wild Plant Conservation. This is accomplished by establishing nature reserves, conservation stations, and posting signs around protected areas;(24)

      * Forest Ecosystem Conservation. These policies encourage afforestation and conservation, and limit logging; (25)

      * Grasslands Ecosystem Conservation. This includes protecting vegetation and rare plants, and prohibiting harmful reclamation and construction activities; (26)

      * Aquatic Ecosystem Conservation. Such measures promote the conservation of drinking water reserves, and other water resources; (27)

      * Water and Soil Conservation. This includes afforestation, vegetation and hillside fields conservation, and timber management policies; (28) and

      * Marine Ecosystem Conservation. These policies are aimed at protecting areas containing rare, endangered, or economically valuable marine organisms, as well as natural marine environments of historical, scientific, and cultural value. (29)

   2. Nature Reserves Management Tools

      "Protected areas are the main element in China's strategy to conserve biodiversity." (30) As part of this strategy, China has formed over 2,000 nature reserves, protecting approximately 15% of its total land area. (31) Further, in an effort to implement the conservation principles articulated in other legislation, the State Council has also created different types of nature reserves by promulgating various regulations. (32) The management tools for these nature reserves include:

      * Planning Tools. For example, regulations governing nature reserves include construction and development plans; (33)

      * Categorization and Classification Tools. China classifies its nature reserves according to four levels--national, provincial, municipal, and county--and further categorizes these reserves into three subcategories---key, buffer, and experimental areas. Each nature reserve is managed according to its respective level and category classifications; (34)

      * Financial Support Tools. The funds necessary for managing nature reserves must be provided by the government, starting at county level where the reserves are located. The national government is required to give appropriate subsidies to continue funding these reserves; (35)

      * Tools Promoting the Limited Exploitation and Utilization of Natural Resources. Specifically, these measures include limitations on logging, herding, hunting, fishing, medicine collecting, cultivating, burning grass on waste land, mining, stone quarrying, and sand excavating. Sightseeing and traveling programs that do not conform to the reserve's conservation goals are strictly forbidden. In the experimental areas of nature reserves, it is illegal to construct facilities that pollute the environment or damage resources or landscapes. (36)

   3. Resource Use and Protection

      Through the Law on the Protection of Wildlife (37) and the Regulations on Wild Plants Protection, (38) China asserts state ownership of wildlife resources, protects certain categories of plants and animals (similar to the U.S. Endangered Species Act), and controls the use of animal and plant resources through traditional regulatory methods such as permitting and licensing. China's resource management and protection policies include the following:

      * Wild Animal Protection. China protects rare and endangered wild animals through its "Catalogue of Key Protected Wild Animals," which categorizes these animals as either Class-I or Class-II, and provides protection at the state and local levels; (39)

      * Animal Management. China regulates its wild animal resources through "utilization permits," and by promoting limited utilization overall. The utilization permits include those for domestication and breeding, hunting, gun-holding, and fishing. Import and export certificates are also available. Limited utilization is encouraged by restricting hunting quotas, establishing hunting/fishing zones and periods, and limiting wildlife trading and transportation activities; (40)

      * Wild Plant Management. First, protection measures for wild plants start at the state and local levels. Wild plants under state-level protection are further distinguished as Class-I and Class-II plants. Different measures are adopted based on the state/local and Class I/II classifications. Second, utilization management takes the form of: collection permits, buying...