The“Eco-system Approach”and the Innovation of Marine Environment Protection Law*——A Case Study of Management in the Bohai Sea

Gong Gu

The“Eco-system Approach”and the Innovation of Marine Environment Protection Law*
——A Case Study of Management in the Bohai Sea

Gong Gu**

Environmental problems have the nature of systematics and objectivity.Therefore,efficacious management of environmental problems requires the breaking down of administrative divisions,the wide participation of all stakeholders based on the overall ecosystem,and the“adaptive administration”according to the environmental characteristics on the basis of science. This is the so-called“Eco-system Approach”.The“Eco-system Approach”has already found wide application in marine management,which was directly reflected in the legislation of“Regional Law of the Sea”that aims at specialized and comprehensive protection of specific waters.From the perspective of the six practical principles of the Eco-system Approach,China’s current marine protection law fails to implement this approach.This is where the institutional dilemma is for the management of the Bohai Sea,and the fundamental flaws of China’s law of marine administration.In order to solve the management predicament of the Bohai Sea,it is necessary to draft“The Law of Comprehensive Management in the Bohai Sea”.On the other hand,for an overall protection of China’s inland sea,it is an advisable approach to reform the system on”The Law of Inland Sea”by the adoption of different marine zone laws.

Eco-system Approach;Marine Management;The Bohai Sea; Reformation

The significance and necessity of marine environmental protection is well known.Since the promulgation of China’s Marine Environment Protection Law in 1982,a group of laws and norms have been progressively established which are based on it,supplemented by other laws related to the sea and environmental protection,①The laws mainly include Environment Protection Law,Law on the Administration of the Use of Sea Areas,Fisheries Law,Law on the Prevention and Control of Water Pollution, Water Law,Law on Soil and Water Conservation,Law on the Protection of Wild Life,Law on Environmental Impact Assessment,etc.and affiliated by some regulations on individual activities or specific areas.A complex management network participated by numerous departments has also been established.At the same time,China has been attaching great attention to both policy and input.Unfortunately,the actual situation regarding marine management is far from satisfying.Worse still,a confusing phenomenon happens in certain sea areas where the environmental degradation is growing synchronously with management input.This forces people to reflect on whether there is something wrong with the fundamental ideas on marine management.

This article will first introduce the internationally popular“Eco-system Approach”(EA)which has obtained good results in the practice of management;then review the problems and defects of China’s legal system of marine environment protection,from the EA perspective and using the example of the Bohai Sea;and finally present some recommendations for improvement.The present study shows that,according to EA,the enactment of different comprehensive special laws for different ocean zones is an effective way to deal with the marine management dilemma,and an inevitable trend of China’s law of the sea in the context of constructing an ecological civilization.

Ⅰ.Eco-system Approach and Marine Management

A.The Origin of Eco-system Approach

Eco-system Approach is a strategy of managing environmental resources by a holistic approach,following ecological laws and using various means comprehensively on the basis of the specificity and integrity of ecosystem.It is“not a concrete means of eco-system management,but a strategy of managing ecosystems using comprehensively all kinds of methods to solve complex social,economical and ecological problems.It provides a frame of science and policy to apply the theories and methods of different disciplines to the practice of specificmanagement.”①Zhou Yangming,Yu Xiubo,Yu Guirui.Ecosystem Approach to Natural Resources and E-cosystem Management:Concept,Principle and Ap plication,Advances in Earth Science, vol.2,2007,p.171.This is“a comprehensive,science-based approach to the conservation and management of natural resources.”②Oceans and the Law of the sea-Report of the Secretary-General on the problem of sea on 9 March 2006(A/61/63),http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ N06/265/87/PDF/N0626587.pdf?OpenElement.1 November 2010.The emergence of EA is result of the inherent contradictions between the“naturalness”of ecological environments and the“sociality”of human activities,and product of humankind’s further understanding of the management of environmental resources.

Humankind’s knowledge about environmental problems has developed from simple to complex and from single to integration.In the early stage of environmental management,people were only aware of the separate problems of different types such as water pollution,air pollution,deforestation and species extinction.As a consequence,they adopted sporadic and piecemeal steps and used category administration management to handle problems.Accordingly,before the middle of 20thcentury,almost all environmental laws around the world appeared to be separate regulations aiming at the protection of certain resources or prevention of certain pollutions but without organic links to each other.③Cai Shouqiu,A Survey on the Development of the Integrated Ecosystem Management Law,Journal of Political Science and Law,vol.3,2006,p.6.They were implemented by governments at different levels based on administrative divisions and authorities of different departments based on division of functions,showing no difference with the administrations of general social affairs.

With the deepening of these practices,the disadvantages of the traditional management mode by category administration arise gradually.The mode is hardly effective for the problems of environmental resources beyond the scope of administrative divisions and having a comprehensive target,such as the protection of vital lakes and rivers,wetland forests or biodiversity.People are becoming aware that the environmental problems are of an integral and systematic nature,and that“entirety does not simply equal to the sum of parts”for nature.Consequently,a new idea of administration has emerged that emphasizes the integrity of the eco-system and the comprehensiveness of managing means. This is what is called“Eco-system Approach”.

The concept of EA was first initiated by the United States when it dealtwith the problems in the Great Lakes Basin.In order to restore and maintain the physical,chemical,and biological integrity of the eco-system in the Great Lakes Basin,the US enacted The Great Lakes Water Quality Agreement in 1978,which provides the“Eco-system Approach”.The Agreement deems it necessary that the Great Lakes Basin be regarded and managed comprehensively as an eco-system composed of elements interacting with each other,such as water,air,soil and organisms(human included).①Lee B.J,Regier H.A,Rapport D.J,Ten ecosystem approaches to the planning and management of the Great Lakes,Journal of Great Lakes Research,vol.3,1982,pp.505～519.This notion received wide recognition and was thus extended to specific areas of environmental resources management.In the book Ecosystem Management for Parks And Wilderness, published in 1988 by the American scholars Agee and Johnson,the notion“E-cosystem Management”(EM)was put forward.The book elaborates the connotation of eco-system management from the following six aspects:an ecological concept of boundary,a clear emphasis on managing goals,cooperation among managers,monitoring effectiveness of the management,leading in the level of state policy,and public involvement.②Agee J,Johnson D Eds,Ecosystem Management for Parks and Wilderness,Seattle:University of Washington Press.1988,pp.6～12.EM has become a popular theory in the field of resource management.③See Yu Guiru.Outline of Scientific Issues and Developmental Trends of Ecosystem Management,Resources Science,vol.6,2001,p.1.Practically,“Eco-system Management”and the later widely used“Ecosystem-based Management(EBM)”,are the application and extension of the eco-system approach in different areas,has no essential difference with the“Eco-system Approach”.④Qiu Jun,Zhao Jingzhu,Deng Hongbing,Li Mingjie,Ecosystem-based Marine Management:Principles,Practices and Suggestions.Marine Environmental Science,vol.1,2008, p.75.Therefore,this article will use them interchangeably.

Since the ocean is connected by flowing waters,the connection and interaction between ecological factors are closer,and thus the characteristics of a“systemic nature”are clearer.An eco-system approach,therefore,has larger room for application in marine areas.“[The]Ocean has provided more opportunities in carrying out ecosystem-based management than land.”⑤Qiu Jun,Zhao Jingzhu,Deng Hongbing,Li Mingjie,Ecosystem-based Marine Management:Principles,Practices and Suggestions.Marine Environmental Science,vol.1,2008, p.75.The significance of eco-system approach for ocean management has been gaining more and morerecognition since the 1990s,so much so that some countries are trying to put it into practice.For example,Australia issued Australia's Oceans Policy in 1998, which expressly adopted Ecosystem-based Management.The Canadian government brought into force Canada's Oceans Strategy in 2002,whichalso proposed explicitly ecosystem-based measures of ocean management and protection.The U.S.issued The Strategic Plan 2003-2008 in 2003,Ocean Blueprint for the 21st century and US Ocean Action Plan in 2004,and Scientific Consensus Statement on Marine Ecosystem-Based Management in 2005.All of them attached great importance to the application of the eco-system approach in marine management.Both Norway and European Union also expressly adopted the eco-system approach in their ocean policies.①See Zhang Haiwen,Liu Yan,Legislative Study on Regional Environmental Management of Bohai Sea,Bei Jing:Ocean Press,2009,pp.26～27.It is worth noting that in The Report on Oceans submitted by the UN Secretary General during the 61st session of United Nations General Assembly on March 9th,2006,“Ecosystem approaches and oceans”was listed as a specific chapter.The report stresses that the past“patchwork of legislation,policies,programs and management plans”“have not prevented a deterioration of ecosystem health”,and thus the“more holistic,integrative and adaptive management approaches,based on scientific information”should be adopted.The report defined the connotation of the ecosystem approach,carded and reviewed the relevant“Legal and policy framework at the global level”and implementation of relevant projects,and then summarized in detail the elements of the eco-system approach and the required capacity-building in developing this approach.②See Oceans and the Law of the sea-Report of the Secretary-General on the problem of sea on March 9 2006(A/61/63),http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ N06/265/87/PDF/N0626587.pdf?Open Element,1 November 2010.It also provided an authoritative,definite,systematic guidance for the application of the eco-system approach in the global marine management,serving as an index for countries in marine management.

B.The Connotation and Principles of Implementation of Eco-system Approach

Being a new theory still undergoing research,the eco-system approach does not yet have an authoritative definition,but has been defined by different researchers from different angles.③Li Xiaochun,Cao Yejun,Ye Liguo,A Summary of the Ecosystem Management Studies, Journal of Inner Mongolia University(Philosophy and Social Sciences),vol.4,2009,pp.88～89.Despite the differences in specific defini-tions,scholars are in agreement on its basic connotation.It is generally believed that the core principles of the eco-system approach are:it regards the whole eco-system as the object of management;its core is the coordination and sustainable development between the ecosystem and socio-economic system;it requires a good understanding of the ecosystem itself and a comprehensive application of ecological,social,economical,political knowledge in the process of management;and it emphasizes collaboration and participation.①See Lackey R.T,Seven pillars of ecosystem management,Landscape and Urban Planning,vol.40,1998,pp.31～39.These are the essential features that distinguish the eco-system approach from traditional ideas of environmental management and are also the developing direction of the second generation of environmental law in the background of ecological globalization.

The implementation of the eco-system approach is a kind of theory or strategy for actual practice and calls for a series of guidance of more specific practical principles.Relevant theories on this problem are also emerging one after another,among which the most significant and worthy of attention are as follows:

1.Principles provided in the Convention on Biological Diversity(CBD)

Twelve principles of applying the eco-system approach were adopted in the Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity and were widely recognized later on.Although it was put forward for the conservation of biodiversity,“its contents comply with not only the conservation of biodiversity,but also all respects of management of natural resources and ecosystems”.②Zhou Yangming,Yu Xiubo,Yu Guirui.Ecosystem Approach to Natural Resources and E-cosystem Management:Concept,Principle and Application,Advances in Earth Science, vol.2,2007,p.173.Thus they bear significance of universal guidance.

(1)The objectives of management of land,water and living resources are a matter of societal choice.(2)Management should be decentralized to the lowest appropriate level.(3)Ecosystem managers should consider the effects(actual or potential)of their activities on adjacent and other ecosystems.(4)Recognizing potential gains from management,there is usually a need to understand and manage the ecosystem in an economic context.Any such ecosystem-management programme should:(a)Reduce those market distortions that adversely affect biological diversity;(b)Align incentives to promote biodiversity conser-vation and sustainable use;(c)Internalize costs and benefits in the given ecosystem to the extent feasible.(5)Conservation of ecosystem structure and functioning,in order to maintain ecosystem services,should be a priority target of the ecosystem approach.(6)Ecosystems must be managed within the limits of their functioning.(7)The ecosystem approach should be undertaken at the appropriate spatial and temporal scales.(8)Recognizing the varying temporal scales and lag-effects that characterize ecosystem processes,objectives for ecosystem management should be set for the long term.(9)Management must recognize that change is inevitable.(10)The ecosystem approach should seek the appropriate balance between,and integration of,conservation and use of biological diversity.(11)The ecosystem approach should consider all forms of relevant information,including scientific and indigenous and local knowledge, innovations and practices.(12)The ecosystem approach should involve all relevant sectors of society and scientific disciplines.①COP 5(Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity).Decisionⅴ/6,http://www.cbd.int/decision/cop/?id=7148,1 November 2010.

2.Principles in the Scientific Consensus Statement on Marine Ecosystem-Based Management

Scientific Consensus Statement on Marine Ecosystem-Based Management, which was jointly published by over 200 specialists from America in March, 2005,indicated that the fundamental solution to the present marine crisis is the ecosystem approach,and then it proposed the following nine principles:

(1)Make protecting and restoring marine ecosystems and all their services the primary focus.(2)Consider cumulative effects of different activities on the diversity and interactions of species.(3)Facilitate connectivity among and within marine ecosystems by accounting for the import and export of larvae, nutrients,and food.(4)Acknowledge the inherent uncertainties in ecosystembased management,and levels of precaution should be proportional to the amount of information available.(5)Create complementary and coordinated policies over a range of spatial scales,and thus appropriate scales for management will be goal-specific.(6)Maintain historical levels of native biodiversity in ecosystems to provide resilience to both natural and human-induced changes.(7) Require evidence that an action will not cause undue harm to ecosystem functioning before allowing that action to proceed.(8)Develop multiple indicators to measure the status of ecosystem functioning,service provision and effective-ness of management efforts.(9)Involve all stakeholders through participatory governance that accounts for both local interests and those of the wider public.①See Zhang Haiwen,Liu Yan,Legislative Study on Regional Environmental Management of Bohai Sea,Bei Jing:Ocean Press,2009,p.21.

3.Principles in the report“Oceans and Law of the Sea”by the Secretary General of United Nations

The tenth part of the“Eco-system Approach and Oceans”of the foregoing report“Oceans and Law of the Sea”elaborated in detail the eleven elements of the“developing eco-system approach”:

(1)Identification of the geographical scope for the application of the ecosystem approach.(2)Scientific research and analysis of the components of the ecosystem,their interaction and functioning.(3)Assessment of the condition of the ecosystem.(4)Establishment of ecological and operational objectives to maintain biodiversity,productivity,water quality and habitat quality in a given ecological region.(5)Identification of pressures and impacts on the ecosystems.(6)Selection of ecological indicators to ensure that ecological objectives are being met.(7)Analysis of existing legal framework and identification of gaps,overlaps and inconsistencies.(8)Management of human activities that affect or might affect the ecosystem.(9)Monitoring of natural changes in ecosystems and the effects of management measures through ecological indicators. (10)Adjustment of the management system,if necessary.(11)Management structures,transparency,awareness raising among the public and the involvement of all stakeholders,appropriate mechanisms for horizontal integration among different levels of Government and vertical integration among agencies with different mandates.②Oceans and the Law of the sea-Report of the Secretary-General on the problem of sea on 9 March 2006(A/61/50),http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/ 265/87/PDF/N0626587.pdf?Open Element,1 November 2010.

4.In summary,what the eco-system approach requires is a management mode that breaks the administrative divisions and institutional constraints, takes the eco-system as a whole,takes the whole environment as objective, makes full use of scientific knowledge,encourages participation by all stakeholders,and develops and perfects policies according to specific features of the environment.The main points of its implementation can be summarized into the following six concise principles:

(1)Comprehensiveness:to regard the eco-system as a whole,emphasizethe coordination of different elements,and ensure their common services for management objectives;(2)targetedness:to develop different policies and take protective measures for specific targets according to actual conditions and specific features of the eco-system;(3)regionalness:to divide management regions according to natural situations of eco-system and cover as much as possible all the regions that directly affect eco-system;(4)coordination:to mobilize the forces of different managers,distribute benefits fairly and share responsibilities reasonably among them,and ensure the awareness and involvement of stakeholders;(5)scientism:to make decision and exercise management on the basis of science,respect for natural facts and following ecological law;(6)flexibility: to regulate promptly,revise constantly and perfect management plans according to the change of environmental conditions and the effects of previous management.

C.Eco-system Approach and“Regional Marine Management(RMM)”

The world’s water is,in a broad sense,a huge eco-system,so that“various kinds of problems in all marine areas are closely related to each other,and need to be considered as a whole”.①Oceans and the Law of the sea-Report of the Secretary-General on the problem of sea on 9 March 2006(A/61/50),http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/ 265/87/PDF/N0626587.pdf?Open Element,1 November 2010.However,an ecosystem that is too broadly defined will make integrated management and coordinated action hard or even impossible.Therefore,it is vital for efficacious marine management to find a balance point between the integrity of natural systems and the feasibility of social practice,and to make an appropriate administrative division for the covered ocean.American biological oceanographers Kenneth Sherman and Lewis Alexander proposed a concept of“Large Marine Ecosystem(LME)”in 1984,and advocates to protect marine biological resources from the angle of LME.②SHERMAN K,Sustainability,biomass yields,and health of coastal ecosystems:An ecological perspective,Marine Ecolo-gy progress Series,vol.12,1994,pp.277～300.This concept“provides a scientific foundation for the division of oceans into units carrying a practical significance and based on eco-system.”③Xu Xiangmin,Yu Ming,Regional Marine Management:New Era of American Marine Management,Academic Journal of Zhongzhou,vol.2009,p.80.Although LME has limitations in practice because it seems too large in area and is focused on the protection of biological resources,④See Ou Wenxia,Yang Shengyun,Exploration on the Regional Marine ecosystem management is New Development of Comprehensive Ocean management,Ocean Development and Management,vol.4,2006,p.92.the idea of differentiation and integrat-ed management of ocean eco-systems has been widely accepted since then.“Regional Marine Management(RMM)”came into being and developed into a new trend of marine management.

“Regional Marine Management is a management way based on eco-systems,which considers comprehensively the interactions between various elements within a relatively closed marine eco-system and achieves sustainable management of marine and coastal resources accordingly.”①Xu Xiangmin,Yu Ming,Regional Marine Management:New Era of American Marine Management,Academic Journal of Zhongzhou,vol.1,2009,p.80.Its basic idea is to divide the oceans into several regions according to their natural differences,and exert comprehensive coordination and intervention on various kinds of influential human activities on the basis of the characteristics and necessity of overall protection of specific marine zones.Regional Marine Management has been developing in practice with the continuous enrichment and refinement of marine division criteria,②For example,Oceans and the Law of the sea-Report of the Secretary-General on the problem of sea on March 9 2006(A/61/63+Add.1)proposed four detailed criteria:“The geographic span of management should reflect ecological characteristics and should encompass both the marine and the terrestrial components of the coastal zone.Factors to take into account include:(a)biogeographic characteristics,such as the composition of faunal communities and patterns of primary production;(b)physical oceanographic characteristics,such as depths,basin morphology,tidal and ocean currents,temperature,or degree of seasonal stratification;(c)links between the marine and terrestrial environment,including patterns of land use and distribution and density of human populations;and(d)human activities, including fisheries,mineral extraction and shipping.”and is presently a basic approach to implementing the ecosystem approach in the field of marine management.For instance,the core of Australian marine management is the implementation of the Regional Marine Plan,while the implementation of Canadian Marine Strategy is also through the establishment of“Large Ocean Management Area”and“Coastal Management District”.③See Zhang Haiwen,Liu Yan,Legislative Study on Regional Environmental Management of Bohai Sea,Bei Jing:Ocean Press,2009,pp.26～27.As for the United States,it“establishes eight regional commissions for fisheries in the whole nation to manage fishery resources,and tries to exert management on marine resources based on the eco-system.”④Xu Xiangmin,Yu Ming.Regional Marine Management:New Era of American Marine Management.Academic Journal of Zhongzhou,vol.1,2009,p.80.

Ⅱ.Regional Law of the Sea based on the Eco-system Approach

A.Regional Law of the Sea

RMM is reflected those Regional Laws of the Sea which protect particular sea districts.Regional Law of the Sea is necessary because the Law of the Sea which focuses on the general circumstances will not be able to meet the special characteristic of the eco-system of a local sea district.Since it is difficult to use the Law of the Sea to protect the eco-system of sea districts in general,it is necessary to pass special legislation in order to provide special protection to the sea district.

A sea district is usually not the same as the traditional administrative district.Depending on the difference of the covering areas,Regional Marine Environmental Protection Law may have two categories:

The first category is cross border regional law of the sea.They can be found in regional marine environmental protection treaties.Internationally, there are thirteen important regional marine environmental law.The Oslo-Paris Convention focusing on the North Sea,the Helsinki Convention for the Baltic Sea,the Barcelona Convention for the Mediterranean Sea,the Kuwait Convention for the Persian Gulf area,the Abidjan Convention for the West African Sea,the Lima Convention for the South-east Pacific,the Jeddah Convention for the Red Sea and the Gulf of Aden,the Cartagena Convention for the Caribbean Sea,the Nournea Convention for the South Pacific,the Bucharest Convention for the Black Sea,the Antigua Convention for North-east Pacific and the Framework Convention for the Caspian Sea.①See Li Haiqing,Special Law and Bohai Sea Environmental Management,Doctoral Thesis 2006 of Ocean University of China,pp.56～70.

Usually,these conventions will clearly state that the reason for the special legislation is because of“the special character of the environment,the hydrology and the friability to pollution”.②Cartagena Convention,Preface,para.2.“Although progress has been made through those effective international conventions concerning ocean pollution,they cannot cover all types and sources of pollutions and cannot fully satisfy the needs and the requests of the countries in the district”.③Lima Convention,Preface,para.4.

Another category is the regional law of the sea within a state.This is legislation to protect specific sea district in inland water which has independent ecosystem.Since ocean eco-systems cover a very large area,a sea district with an independent eco-system completely within one state is rare.According to the worldwide survey of the International Closed Marine Environmental Manage-ment Center in Japan,there are six inland waters in sea districts which are of high concern and require special protection.They are Chesapeake Bay,San Francisco Bay and California Bay in the USA,Hudson Bay in Canada,the Seto Naikai in Japan and the Bohai Sea in China.These sea districts have independent and complete eco-systems.Although they are within a particular state,they are usually inter-province,county,city etc.There are many difficulties in co-ordination of different authorities in management.Special legislations are usually required.Typical examples are the Seto Inland Sea Environmental Protection Special Measures Law in Japan,the Chesapeake Bay Agreement and the Mc A-teer Petris Act for the San Francisco Bay in the USA.

B.Analyzing the Seto Inland Sea Environmental Protection Special Measures Law in Ecosystem

Cross border regional law of the sea is part of the international law of the sea.For the management of the sea within a state,the law of inland sea districts is more relevant.The successful experience of Japan in the Seto Inland Sea Environmental Protection Special Measures Law can be a good reference.

The Seto Inland Sea is a nearly closed sea.It has an independent and fragile ecosystem similar to the surrounding sea district.Moreover,it is the largest inland sea in Japan and almost surrounded by industrial zones.It is of great environmental value and was seriously deteriorated.Although Japan had enacted the Environmental Basic Law,the Water Pollution Control Act,the Marine Pollution and Marine Disaster Prevention Law,they were of little effect in the management of the Seto Inland Sea.In 1973,Japan enacted the Seto Inland Sea Environmental Conservation Provisional Measures Law.It later became the Seto Inland Sea Environmental Protection Special Measures Law.There are also several supplemental plans,such as the Seto Inland Sea Environmental Basic Plan and the Hyogo Prefecture Coastal Areas of Environmental Protection Strategy.After more than a decade of protection,the ecosystem of the Seto Inland Sea has recovered.

There are many reasons for the success of the management of the Seto Inland Sea.Among them is the ecosystem method.Although the Seto Inland Sea Environmental Protection Special Measures Law is not a clear product of the ecosystem method,the design of its system has well applied the method.It can be observed through the 6 principles mentioned above:

(1)In general,the Seto Law has unified the regulation of controlling the discharge of contaminants into the sea,the prevention of the eutrophication and the protection of the natural seashore.This is to ensure that businesses are ser-ving the Seto Inland Sea as a whole and to plan,approve,allow,assess the environment,control the volume,administratively supervise,apply temporary measures,assign agents,persuade or give suggestions in general.(2)In the focusing aspect,the Seto Law focuses on the control of the three businesses which affect the Seto Inland Sea the most and the contents are very practical.(3)In regards to the geographical outline of the district,the Seto Law not only defines the sea district but also the landed areas of the coastal counties.(4)For coordination, through basic planning and the house county planning,the Seto Law divides the management rights and responsibilities of the central and the local authorities. The Environment Council has been set up to carry out the coordination.(5)In its scientific aspect,the Seto Law has set up a good environmental monitoring system and also a system to encourage the cleaning of the water and the handling of oil pollution.(6)Regarding flexibility,the Seto Law has been continuously reviewed and amended.It has been revised six times.

Ⅲ.The Lack of Ocean Environmental Protection Law using the Ecosystem Method in China—the case of the management of the Bohai Sea

China had its Ocean Environmental Protection Law enacted in 1982 and there is a chapter on“ocean bio protection”.However,it has not adopted and applied the ecosystem method.The practical functions are classified according to elements and districts.The traditional management model is being used.This is a drawback of current Chinese ocean management.The case of the Bohai Sea is used as for explanation.

A.The Bohai Sea and Its Management

The Bohai Sea is surrounded by land on three sides.Since it is nearly enclosed,its ecosystem is obviously independent and complete.The species inside the sea district are highly dependent on the original environment.The defense of the ecosystem is very weak.The exchange of the water between the Bohai Sea and the external sea is slow;this leads to limited self-cleaning power.It is highly affected by pollution and the current.These characteristics show that the Bohai Sea is easily affected and requires better protection.However,the Circum-Bohai Sea Area is an important industrial zone.Industrial areas have been developed in Beijing,Tianjin,Hebei,the Liaodong Peninsula,and the Shandong Peninsula.This has become the“third pole”of the economy.

The present situation of the Bohai Sea is very similar to that of the SetoInland Sea in the past because the ecosystem is fragile and the environmental pressures are high.Since the mid-1980s,the environment in the Bohai Sea has been continuously deteriorating.The coastal sea district has been seriously polluted,the bio-environment along the coast has been seriously damaged,fishing resources have been seriously reduced,and it in danger of becoming the second Dead Sea.①Zhou Bo,Wen Jianping and Zhang Yanyan,Research on Current Pollution and Management Strategy of Bohai,Journal of EMCC,vol.4,2006,p.70.

The risk to the Bohai Sea has drawn the attention of the Chinese government.As early as 1986,the Marine Environmental Protection Plan of the Circum-Bohai Sea Area was set up.In 1999,the Bohai Sea was included into the key projects of the 33211 national environment protection.②“33211 Project”is the pollution control project for solving the important environmental problem in China during“the Ninth Five-Year Plan”.It refers to“Three Rivers”(Huaihe, Liaohe,Haihe),“Three Lakes”(Taihu,Dianchi,Chaohu),“Two Areas”(Sulfur dioxide pollution control areas and Acid Rain Control areas),“One City”(Beijing),“One Sea”(Bohai).Besides Bohai,Liaohe,Haihe,Beijing belongs to the Circum-Bohai Sea area.On 1stOctober 2001,the State Council approved and implemented the Bohai Blue Sea Action Plan.The investment was 55 billion RMB.Moreover,other organizations have set up the Bohai Comprehensive Treatment Plan,the Action Plan for the Bohai Sea Coastal Resource Management and the Bohai Sea Environmental Management Strategy.In 2001,the United Nations Environment Program,the Global Environment Facility,and the International Maritime Organization jointly set up the Establishment of the East-Asia Sea Environmental Protection and Management of Partnerships:Demonstration Area Project of Bohai.Soon after that project,the National Ocean Bureau and the local authorities surrounding Bohai Sea signed the Bohai Sea Environmental Declaration to establish the partnership relationship between the central government and the local government.

Since the 1990s,many laws,regulations and orders concerning the protection of the oceanic environment were announced.The local governments in the Circum-Bohai Sea Area have also published many local laws and regulations. According to a survey,more than 70 laws and regulations regarding the protection of the environment of the Bohai Sea have been announced.③Zhang Haiwen and Liu Yan,Legislative Stud y on Regional Environmental Management of Bohai Sea,Beijing:Ocean Press,2009,p.106.

Despite these efforts,the management of the Bohai Sea has not been very successful.The environmental problems are still serious.According to the Bulletin of the Marine Protection of the Bohai Sea 2009,1/4 of the sea environ-ment in the sea district was polluted.①See The published of the Bulletin of the marine environment of Bohai Sea,at http://news. 163.com/10/0511/13/66DHQLUI000146BC.html,3 November 2010.The National Marine Environment Quality Bulletin 2009 also shows that important parts of the Bohai Sea including Liaodong Bay,Bohai Bay and Laizhou Bay were some of the most polluted sea districts in China.

B.Reasons for the Bad Management System in Bohai Sea under the Ecosystem Method

1.Lack of Comprehensive Arrangements

Although there are many laws and regulations on the management of the Bohai Sea,they are not concentrated.Some of them are national laws and focus on the sea in China in general.Some of them are local laws and focus on particular area of the sea district.There is no special law which crosses provinces and deals with the ecosystem as a whole in the Bohai Sea.Under this legal framework,the Bohai Sea is only a geographical term and not a legal concept. From the management side,the Bohai Sea has been divided into strips,which are governed under different systems.There are different heads of management and there is no comprehensive management.

The four main problems of the Bohai Sea are pollution,damage to the bio environment,reduction of fresh water flowing into the sea,and the loss of biological diversity.Although the contents of these problems are not the same, they are co-related and affect each other.For example,ocean pollution and fresh water entering the sea are co-related.If fresh water has been greatly reduced, the ability of the sea to withstand pollution will be reduced.Thus,the management of these problems should be based on a comprehensive view of the ecosystem as a whole.However,the control on these problems is found in different laws and regulations.There is a lack of total coordination.

From the aspect of management systems,the marine management system in China is based on different administrative organs.In the Marine Environment Protection Law,those departments which deal with marine matters include the environmental department,marine department,maritime department,fishery department,military environmental department.Moreover,departments in agriculture,transportation,forestry,water resources,planning and construction also have close relationships with marine management.The result is that the marine management is clearly divided into“sections”.Each department will takecare of its own business.①Bohai Blue Sea Action Plan,p.5,para.5.Take the management of pollution from river to sea as an example.The environmental department manages the discharge from land to the headwaters of the river.From the headwaters to the entrance to the sea, it is managed by the water resources department.From the entrance of the sea and further,it is managed by the marine department.The marine department will not manage the land and the environmental department will not manage the sea.Another example is oil pollution.Oil pollution from drilling is managed by the marine department.Oil pollution from vessels is managed by the maritime department.When the source of oil pollution is not known,no one will take care of that.

China’s environmental protection regime also fails to properly create strong local relationships;the administrative divisions in the Circum-Bohai Sea Area are complicated and seriously divided.The Area involves 13 cities in 5 provincial districts.“Every city or province works on its own.This cannot fulfill the effect of environmental improvement as a whole.”②Liu Yuanxu,Why is the Pollution Control Getting Worse,China Territory Today,vol. Z3,2006,p.34.When the law has not been well defined the environmental responsibility of a local government,it will be guided by the local interests.There will be conflict between pollutant discharges from land and using of resources.For example,pollute discharge from land which carries 90%of the amount of pollution has always been a serious problem of Bohai Sea.③See Zhou Bo,Wen Jianping and Zhang Yanyan,Research on Current Pollution and Management Strategy of Bohai,Journal of EMCC,vol.4,2006,p.72However,local governments and their environmental departments are the organizations to manage and control pollutant discharge from land.Because of this reason,we can still,after many years of management,see that“in 2009,the over standard discharge from the places of pollutant discharge along the coast of Bohai Sea is serious.From the controlled places of pollutant discharge,more than 75%are discharging over their limit.”④See The Published of the Bulletin of the Marine Environment of Bohai Sea,at http:// news.163.com/10/0511/13/66DHQLUI000146BC.html,3 November 2010.In recent years,after the clear strategy of the economy circle in the Circum-Bohai Sea Area,all cities and provinces in that area are making economic plans based on marine development.However,these plans mainly involve the heavy chemical industry,manufacturing,and shipping terminals and the redundancy is high.It is a lack of planning regarding the Bohai Sea as a whole andnot based on the ecosystem.All of the cities and provinces are not working together in a scientific way.

Many kinds of plans or strategies have considered Bohai Sea as a whole, but they are not legally binding.Their contents are too general and the implementation is weak.Moreover,they are drafted by different departments and all of them are looking after their own interests.The Action Plan for the Bohai Sea Coastal Resource Management which has been drafted by the Agricultural Department focuses mainly on fishery.The Bohai Blue Sea Action Plan which has been drafted by the National Environment Bureau focuses on the discharge of land contaminators.The Bohai Comprehensive Treatment Plan which has been drafted by the National Marine Bureau focuses on marine constructions.①Li Haiqing,Special Law and Bohai Sea Environmental Management,Doctoral Thesis 2006 of Ocean University of China,p.108.This kind of planning does not have the necessary interdepartmental cooperation. Thus,the scope of implementation is affected and most efforts fail to help the Bohai Sea as a whole.

2.Lack of Direction

The current Marine Environment Protection Law in China is describes a basic framework for environmental protection and there are specific local laws to supplement the general rules.There is no specific provision regarding the special ecosystem of sea districts.Thus,the legal system does not suit the special needs of the ecosystem in the Bohai Sea.

Regarding control of the total volume of contaminants,the biggest problem in the Bohai Sea is that the discharged volume of contaminants is much larger than the ecosystem’s capacity to handle it.The area of the Bohai Sea is 77,000 square kilometers and the average depth is 18 meters,this limits environmental capacity to handle contaminants.It can only take 47.7%of the total volume of contaminants which are currently going into the sea.②Zhou Bo,Wen Jianping and Zhang Yanyan,Research on Current Pollution and Management Strategy of Bohai,Journal of EMCC,vol.4,2006,p.70.Experts have warned that if decisive measures are not taken to control the contaminants,the Bohai Sea will become a dead sea within 10 years.③Zhou Ke and Lu Xia.The Thought of the Necessity of Legislation of the Environment Protection Law over Bohai Sea,Journal of Kunming University of Science and Technology,vol.4,2007,p.2.By that time,even if no more contaminants are added into the Bohai Sea,it will take 200 years for external water to clean and flush out the dirty water.Thus,the total volume ofcontaminants must be controlled.Although Article 3 of the Marine Environmental Protection Law has provided in general for a control system of the total volume of contaminants in key sea districts,the State Council has not yet announced any particular implementing rules.As a result,the system has not yet been put into force.Since such a system is important,all other plans of the Bohai Sea have relevant regulations.But due to various reasons,the regulations are not implemented in general.

The legal system is not able to handle the discharge of contaminants any better.First,there is only a uniform charge for the discharge of contaminants. The charge is based on the concentration,not the total volume.It is therefore not possible to raise charges based on the total volume.Second,there are only national and provincial standards for the discharge of contaminators;there are no mid-level standards.Therefore,the Bohai Sea area is not able to have any standard or local standard focused on the seriousness of the problem.

There are similar problems in other basic systems of management;such as environmental assessment,the dumpling of rubbish into the sea,or the payment system for the use of the sea district.They have not specially considered the fragile ecosystem and any special measures for the closed sea or semi-closed sea.Water sewage systems have not properly planned for river contaminants which are harmful to the sea.Fishing permits in inland waters have not considered the biological resources of the Bohai Sea.Thus,the resources of fishery and its biological diversity are reducing.

3.Not enough coverage of area

Marine ecosystems are complicated because they are seriously affected by land.From a certain point of view,80%of the marine problems derive from the land.Thus,effective treatment of the sea cannot be done without control of the co-related land area.In China,the Marine Environment Protection Law has not put this into practice.

First,no rivers have been included.The current Law on the Prevention and Control of Water Pollution has not considered this important marine element. The treatment of the Bohai Sea has not been reflected to the management of rivers.The Water Law which focuses on the development of water resources does not have any system to protect the ocean from polluted fresh water.Secondly,the land area under control is too narrow.The current law only considers coastal constructions and ocean constructions from land as projects which will affect the sea.In fact,even construction projects which are far from the sea or contaminations through the atmosphere can have great effects on the ocean.Moreover,divisions of the ocean based on their functions are important in the management of the sea.The planning has to be as a whole“from land to river to sea”.All kinds of local laws which are limited by administrative districts cannot have large enough coverage to include the land.

4.Insufficient co-operation

Many different authorities and interested parties are involved in the ocean. Since marine problems are complicated and comprehensive,a coordination organization and a mechanism to express interests and concerns should be set up to resolve disputes and join forces together.The current legislations only have general rules to coordinate for serious problems.There is a lack of a workable and practical coordination organization.

The lack of effective coordination among different authorities prevents pooling resources and from time to time there may also be power struggles. First,different authorities dealing with the sea do not have a long term joint operations scheme.Information cannot be exchanged timely.Forces cannot be joined together to target the ecosystem as a whole.Secondly,the grey area of responsibilities has not been clarified because of the lack of coordination.For example,there are frequent disputes between the marine department and the water resources department on the management of the area where rivers are entering the sea.When there is oil pollution,there are frequent disputes between the marine department and the maritime department for jurisdiction.For some comprehensive matters,such as the red tide,problems are almost impossible to solve because there is no coordination.Some legislation may have regulations on co-ordination among departments.However,they are usually too general and difficult to apply.For example,the environmental assessments of coastal constructions and maritime constructions involving the authorities of environment,maritime,ocean,fishery and military etc.Relevant law requires the approving department to request for comments from other departments.Although this is a good rule,it is too general and difficult to apply.

Among different local authorities,coordination is even more important.To all cities and provinces in the Circum-Bohai Sea Area,the Bohai Sea is a“public place”.The responsibilities and interests of all local authorities are not clear. They will not join hands together.On the contrary,they may fight against each other.For example,it is very difficult to calculate the total volume of contaminants discharging into the sea,because it is difficult to decide and share the area index of the total volume of contaminants due to close relationships with local economic interests.To share and define the right cannot rely on the orders onlyfrom the superiors.This cannot ensure fairness.It is better to invite all local authorities to express their views,negotiate and coordinate.The law may set up a scheme or platform to carry out this task.In China,there is no law in this area.The most important purpose of coordination is to plan the development of industries,to share the interests and use of the marine resources,to carry out biological compensation etc.

It is also important to coordinate between the administrator and the interested parties,e.g.the users of the sea district,fishermen,the coastal construction engineers,and the general public.Without the exchange of information among the interested parties,it is difficult to ensure the suitability of the measures.A management system that fails to consider the interests of the relevant parties will be boycotted.But,if the information is open and the public are invited to join,these are important to a successful management system.The current Ocean Law in China lacks provisions to have the involvement of the public.

5.Lack of scientific support

The ecosystem method requires the use of environmental scientific technology and geographical information technology to assist in management.China has not yet put this into practice.There is no direct connection between the management system and the essential elements of the Bohai Sea,such as its environmental capacity,the capacity to dissolve contamination,the change of the ecosystem etc.These elements also have not been used as the legal data for decision making and tracing of liability.

The Environmental Impact Assessment of Marine Engineering Regulations is asking whether it fits into the marine functional zoning as one of the considerations in the environmental assessment.However,it is limited to marine engineering only.The marine functional zoning will not be used in the assessment of coastal constructions and land constructions.Since 2004,biological monitoring areas have been set up in coastal sea districts and the monitoring area covers more than 50,000 square kilometers.This has provided a necessary and scientific measure to develop the management of the marine district.①See Ou Wenxia and Yang Shengyun,Exploration on the Regional Marine ecosystem management is New Development of Comprehensive Ocean management,Ocean Development and Management,vol.4,2006,p.95.But,this is in its early stage.

6.Lack of flexibility

The Marine Environment Protection Law was enacted in 1982.In 1999,after seventeen years,it was revised.However,the relevant regulations and rules were not revised at the same time.The new Marine Environment Protection Law has been in force for ten years,and there is not even the announcement of one set of regulations.It is still lacking in standards for marine environments. Local laws on the treatment of the Bohai Sea are rarely revised according to the actual operations.

The reasons that the treatment of the Bohai Sea is not doing well are:failure to serve the ecosystem as a whole,failure to focus on local problems,inability to cover all the affected areas,lack of coordination and participation with all interested parties,decisions not based on science,and failure to change with the times.These are also the weaknesses of the current marine protection law in China.

Ⅳ.Legal Strategy for The Bohai Sea Management and the E-volving Ocean Law of Our Country

A.Special Legislation:Legal Strategy for the Bohai Sea Management

For the management of the Bohai Sea,the most effective or even the only feasible step is to implement special legislation for special protection.The necessity of the legislation lies in:

First:the necessity of comprehensive control.Only by legal definition and the construction of an administrative system can we turn the descriptive concept of the“Bohai Sea”to a normative legal concept,and combine the related elements of decentralized management.Together with breaking bureaucratic and regional restrictions,the unique goal of a healthier Bohai ecological environment can be achieved.Second:the necessity for realization of special protection.The existing ocean law aims at general cases and thus cannot handle special situations in a local sea areas.The protection of the Bohai Sea can only be realized by special legislation.Third:formulating a concrete,detailed,operational system.The system would not function well in dealing with complex marine affairs without a strong operational scheme.The ordinary law is too comprehensive to take regional differences into consideration,but special legislation can easily solve this problem.Fourth:the convenience for timely amendment,adjustment,and improving the special legislation.

The special law application should cover the Bohai Sea area and the surrounding administrative areas of the fifteen cities.While the terrestrial area in-cluded should be large,given limited management capabilities,it should not be too large.

When it comes to the unified and convenient application of the law,some prefectures under the municipal regionalization should also be included,although unrelated to the Bohai Sea.

The content of the special law is to provide integrated management on the environmental resources of the circum-Bohai Sea area according to the need of the overall Bohai Sea ecosystem.This should be done in order to protect the environment,keep its ecological balance,and promote the scientific development of the region.Because environmental protection and resource utilization interweave with marine development,the special law is inevitably involved in all kinds of economic and scientific activities,it is appropriate to name the special law“the integrated management law of the Bohai Sea”(hereinafter referred to as the“Bohai law”).

The key point of the Bohai management is whether the administration starts from an integrated ecosystem perspective.Therefore,except for the clarification of ambiguity and adjustment of the impropriety in the present management system,the Bohai law should establish two kinds of mechanisms:

First,the“Bohai Sea Environment Resources Committee”needs to be established as the highest policy-making body.It should be an integrating management organization and its deliberation as well as coordination should be responsible for the overall environmental quality of the Bohai Sea and full scale deployment of administrative resources.The main responsibility of the Committee includes:working out a medium-and a long-term plan and annual planning of the Bohai Sea governance;examining economic(industrial)development planning of relevant provincial cities and offering opinions from the ecological perspective of the Bohai Sea;allocating the specific tasks and environment responsibility of Bohai management to the respective local governments; leading ecological compensation for the circum-Bohai area;supervision and inspection of the Bohai Law implementation;suggesting amendments of the Bohai Law according to its implementation;organizing ecological environment monitoring and research of the Bohai area;and solving the outstanding problems of Bohai management by special funds.To guarantee authoritativeness in the coordinative function and supervision between departments and each provincial city,the committee should be under the direct control of the State Council or directly under the leadership of the vice premier or state councilor in charge ofthe ecological environment.①The Seto Island Sea management was directly in the charge of prime minister,In:Special Measures to Environmental Protection of the Seto Island Sea,art.3,4.The Committee members should include leaders or deputy leaders from the circum-Bohai area and relevant ministries and experts.The relevant prefectures and cities should send their representatives to sit in on the Committee meeting.

Second,setting up a“Joint meeting of the Mayors in the Circum-Bohai Sea area”as a regular coordinative mechanism between local governments is required.The session should establish a regular meeting system which requires at least one meeting per year,and ad hoc meetings may be held when serious problems occur.The contents of the session include:reports from relevant cities on the improvement of the Bohai management;exchanging information on management;finding out problems on the implementation of the Bohai Law;coordinating the emission trading and ecological compensation with other regions or departments;and lastly,each region should submit its economic and industrial development plan to the session for discussion with other cities for further suggestions.

The basic management system of the Bohai Law should include:

First:a full-scale system for controlling aggregate pollutants.Categories include land-sourced pollutants,drainage basin pollutants and regular pollutants(e.g.shipping oil pollution).The total quantity should be determined by the Bohai Sea’s environmental capacity,and actual loading capability with distributed emission quotas in the Bohai region at all levels.The quotas will be based on factors such as industrial structure,population,city size,current environmental status and regional ecological characteristics.The principles are to respect history,to take maintain the status quo and to consider the future so that the pollution discharge may be allocated for all levels in the entire region. The procedure is in this order:“council—provinces(municipalities directly under the central government)—cities related to the Bohai Sea—prefectures and counties—discharger”

On the basis of fair distribution supplemented by the pollutant emission trading system,the trading could be undertaken between enterprises and regional governments.At the same time,the pollutant reduction quantity should be taken as an important index of management effectiveness for governments of all levels.

Second:a full-scale environmental monitoring system.Based on this sys-tem,a government environmental accountability system should be established. A sophisticated environmental monitoring system must be set up at the key spots,e.g.drainage areas,estuaries of rivers,sewage outlets,and ecologically fragile regions,in order to accurately monitor the changes of environmental indices in every district.These are based for evaluation of the responsibilities of relevant departments or regional governments.

Third:a strict,yet flexible local pollutant discharge system.It is not only necessary to establish a“standard for major pollutant discharge in the circum-Bohai region”that is different from national one but adjustable to the characteristics of the circum-Bohai region and across the provincial regions,but also mandatory to release authority to cities or prefectures based on local ecology characteristics,pollutant quantity and environmental management goal which may be achieved by more restricted and specific actions,such as prohibiting discharge of some particular pollutants,lowering pollutant concentration and raising charges,etc.

Fourth:a full-scale ecological protection system with functional districts. Except for lawfully established marine conservations,areas of fragile ecology should be protected properly.Based on the integrated circum-Bohai ecological system,a protection strategy is to be established for different sea areas at different levels with characteristic features and functions.At the same time,terrestrial and socio-economic development should be combined to consider and formulate a more comprehensive“circum-Bohai area marine functioning zone”as an important reference for each district to conduct planning,develop industries and protect the environment,especially as references for environmental assessment.

Fifth:a full-scale ecological compensation system.The limitations of the Bohai Sea’s environmental capacity made it impossible for the circum-Bohai districts to develop their industries to a larger extent,especially high value and quick yield industries like heavy chemical industries and small-scale,low-investment and low-level industries.Aquatic farming and fishing industries should be limited to a certain extent for rehabilitation of the Bohai Sea.Only by reasonable compensation for those who“sacrificed”for the Bohai ecology can a good implementation of the system be guaranteed,and the principle of“users pay,beneficiaries compensate”can be executed.

Sixth:a full-scale information disclosure and a public participation system. The broadness of the ocean and complexity of marine problems determine the necessity of public participation.Without active participation and sufficient co-operation from the public,administrative enforcement will be ineffectual.Information disclosure and public participation are also good tactics for the prevention of injustices.Each planning,program,index and quota system of the Bohai Law must ensure the disclosure of information,and solicit public opinions.A public hearing system is needed when the policy decision affects public interests.Concrete measures should be put forward to encourage and support environmental NGOs to play an active role in propaganda,education,and public supervision,and also to encourage and support research institutes and universities to study the Bohai ecological environment.

B.Ecosystem Method and Restructure of Internal Law of the Sea of Our Country

Perhaps due to the vastness of ocean areas and their abundant resources, the law has focused on sovereignty for a long time,and ocean law has become a synonym for“International Ocean Law”.Even the primary function of the internal law promulgation in a country is to preserve its national borders.But as the sea area had been occupied by nations,problems such as scientific management,full-scale protection,and efficient utilization have become more and more serious within the context of oceanic sovereignty issues.Especially against the background of international environmental resource crises,the importance of marine ecology and the scarcity of marine resources have become increasingly apparent.Nations’“Internal Ocean Laws”have become indispensible parts of ocean law with“protection and utilization”as core values.

Objectively,with growing marine development activities in recent years and the attention of the central government,an internal ocean law system is gradually taking shape.This consists of the Marine Environment Protection Law of the People's Republic of China,Maritime Space Use and Administration Law of the People’s Republic of China,Fisheries Law of the People's Republic of China as its core and supplemented by other environmental laws and related regulations or relevant rules.This system plays an important role in national marine management.But in general it is:a“Marine Space Law”with no regard to territorial affairs;a“Department Law”compartmentalized by management system and administrative regionalization;a“Resource Law”focusing more on exploitation and utilization rather than ecological protection;an“Administrative Law”mostly relying on administrative enforcement rather than public participation;a“Subjective Law”characteristic of less scientific elements but more bureaucratic determinations;and a“Countermeasure Law”with no long-term programming or cooperative action.The drawbacks of the system have been totally exposed in the Bohai Sea management as previously mentioned.The prob-lem is not just for the Bohai Sea,in fact,the grave situation of national environmental resources is closely tied to the system,and this situation must be changed.

All rivers run into the sea,where terrestrial pollutants ultimately exit and accumulate.The marine environment is like the weather vane of national environmental conditions,and thus marine management should serve as the starting point for national environmental resources management systems.①To take water pollutant for an example,the whole national water pollutant discharge can not exceed the ocean capacity,the marine environmental and receiving ability should be considered as an important index for national pollutant total control.Based on the integrity and particularity of marine ecology,the internal ocean law of our country should be phased over from elements management to comprehensive coordination,from marine management to marine-terrestrial management,from a unanimous procedure to the one adaptive local conditions,from decision-making by responsible leaders to science-oriented decision-making,from executive charge to public participation,from emphasis on the legal certainty to administrative adaptability.Therefore,we must reconstruct the internal ocean law system of our country on the basis of the“Regional Marine Comprehensive Administrative Law”to achieve a full-scale“Regional Marine Management”.The basic ideas are:

Based on the characteristics of a particular marine ecological system and combined social factors such as economics,politics,humanities,and history,the national marine jurisdiction can be divided into several“maritime spaces”.②Some scholars mooted“in order to strengthen comprehensive management of deteriorating marine environment,determine focusing point of protection and management of different marine environment,and carry out environment protection and pollution management by dividing marine areas into Bohai Sea,Yellow Sea,East China Sea,South China Sea and Taiwan Straits according to characteristics of latitude,temperature band,biodiversity,marine environment and biological features of tidal-flat area,estuary,shallow sea.”See Wang Miao and so forth,The Status Quo,Origin and Control of China's Maritime Environmental Pollution,Journal of Ocean University of China(Social Sciences Edition),vol.5,2006, p.1.Maybe the standard and conclusion should be deliberated,but the conception is feasible.Each space is based on the sea area and the provinces and cities with direct influence are brought into adjusting range for comprehensive administration focusing on three aspects:liability subjects,coordinative mechanism,and specially established units.Special units such as the“Bohai Environment and Resources Commission”are not necessary for each area,but the responsible person must be specified and a regional communicating and coordinating mechanism is es-tablished to distribute environmental resources quota fairly.Management tasks are implemented at every level,with specific management measures.The present ocean laws at the national level,e.g.Marine Environment Protection Law of the People's Republic of China,are common law in dealing with abstract and general situations,and also provide feasibility for establishment of a“Sea Area Law”system without influencing existing legislation.Of course,to implement this strategy,the present marine-related laws and regulations in force must be significantly amended.

To sum up,the future internal ocean law system of our country should be composed of basic lawand the maritime space law,with the former focusing on general situations,thus forming a basic pattern,an institutional framework,and minimum standard of national marine management.The contents of the basic law should be more in principle and abstract,mainly embodying the state’s will while the maritime space law aims at a specific sea areas,emphasizing the specification of contents,responsibility and feasibility,taking more practical situation of the local into consideration to ensure flexibility and space for adjustment.

Epilogue

In the 21stcentury when the relation between man and nature reaches a situation of unprecedented tension and cooperation,systematic environmental problems have become more and more apparent.Frequent global climatic disasters indicate that when the whole ecological system is out of balance,there’s no single person,group or country that can survive.The environmental problems of our country assume a distinct feature of systematics and domino effects.①For instance the water problem(pollution and scarcity)possess obvious basin features, and typically represented by main rivers;the air pollution bears an obviousness of“urban concentration”clustered in the Pearl river delta,Yangtse delta region and Beijing,Tianjin and Hebei region;the land desertification found mainly in northwest regions.The objectivity of environmental problems and their trans-regional nature determine the necessity of using methods of an ecological systems management scheme.

The linchpin of ecological administration is nothing but respecting the law of ecology,and adjusting human activities from an ecological perspective.It could even be properly seen as modern vision of“Harmony of Man with Na-ture”,“Taoistic Thought Emulates Nature”and ecological expression in a certain way.But at the same time we should bear in mind that it’s easier said than done.Either dismantling administrative regionalization and management systems,or trans-regional coordination on ecological compensation and far reaching information disclosure with public participation,it constitutes a challenge to traditional political systems,economic development models,social functioning ways and the order of law.But on the basis of research and theory mainly from natural science and management perspectives,the ecological system administration requires not only skillful legislative techniques,but also complicated processes of legislation in order to convert to a legislative system of universal practice and profit allocation.Also,without the support of a series of social conditions such as developed scientific technology,powerful financial support, cultivated environmental consciousness,and strong conscientious ethical spirits,any ecological system management and the system design will be in vain. Thus we must be conscious that legalization of ecological management can not be accomplished in a single step.We cannot realize the objective of ecological protection by simply legislating it into law.①Judging from legislative expression,there’s no lack of systematic ecological protection regulations in present legal system.Like the 1982 Marine Environment Protection Law of the People's Republic of China proposed slogan“protect ecological balance”,but it didn’t implement system,performed practically no function.The legislation is destined to be a long-term process and so we must advance gradually within specific systems.

As a sea area of relatively limited proportion with distinct ecological characteristics and relatively concentrated industries,the Bohai Sea has achieved consensuses,cooperation mechanism and management experiences in long-term management,providing precious reference materials for“Ecological System Management Legislation”,or perhaps“Implementation of Legislative Ecological System Management”.If we could initiate the ecological management implementation of national ocean law by making an opportunity of the Bohai administration,it is of significant importance not only for the marine management but also for the improvement of environmental resource law of other fields or even the realization of an entire ecologically friendly civilization.

(Editors:Stephen Pire;LV Hui;LIU Bin)

*This article is a product of the research project“A Study on the Legislation of the Bohai Sea Region”funded by the State Oceanic Administration of People’s Republic of China.

**Gong Gu,Ph D and Associate Professor at Zhejiang Gongshang University.Email:gonggu@sina.com.