This compendium by European and Chinese legal scholars focuses on the development of one particular aspect of international environmental law: transboundary environmental liability or the responsibility of persons in one state or that state itself for environmental harm to persons in another state or that other state itself. Chapters by James Harrison on treaty law and by Michael Faure and Gerrit Betlem on the application of law to transboundary pollution in Europe and the United States are particularly strong and provide very helpful summaries and analysis of law in this area.
The treatment of China by distinguished Chinese scholars finds not surprisingly that Chinese law in this area is less developed. Three chapters by different authors focus on the Songhua River incident in November 2005 when an explosion at a state-owned chemical plant in Jilin resulted in downstream pollution both in Heilongjiang and Russia, as well as considerable disruption to residents in Jilin itself. As the authors note, China's Water Pollution Prevention and Control Law (WPPCL) restricted standing to sue to direct victims of pollution, as opposed to NGOs or others seeking compensation for ecological harm in accordance with Chinese law generally. It did not recognize class actions by similarly situated plaintiffs, rendering litigation beyond the reach of most victims, and was generally reluctant to impose substantial damages or fines on large economic enterprises. The Chinese government did, however, take substantial remedial action and provided notice of the coming danger to Russian authorities, albeit only after a potentially tragic delay.
Several of the authors correctly anticipated, however, that the Songhua River and other recent water pollution incidents would lead to reform. Indeed, in addition to administrative actions, the WPPCL was amended in 2008, providing in Article 88 that victims of water pollution in cases where there are many parties may select a representative to sue on behalf of the group, i.e. a collective action. Article 88 further provides that environmental protection departments in charge and relevant social organizations, i.e. NGOs, may provide support to victims of water pollution, and that the state encourages legal aid organization and lawyers to provide legal aid to victims of water pollution in litigation.
These reforms may mean that victims of water pollution originating in China can have access to Chinese courts to sue the parties whom they allege to be responsible, even if the harm was suffered outside China, especially Russia or Southeast Asia. There would not appear to be any clear basis for litigation against the Chinese state in this regard, however, even if the pollution arose from a failure to regulate.
Several of the chapters focus on the Netherlands, a downstream state and member of the European Community (EC) which is by nature particularly vulnerable to pollution originating in upstream states. European law, including both EC law and treaties among European states, are relatively advanced compared to Asia with respect to transboundary pollution. China, by contrast, is an upstream state which by virtue of geography is more likely to be an origin than a victim of water pollution, and because of its size and economic heft less inclined to be mindful of the concerns of its downstream neighbours with respect to river basin management generally. One hopes that future collaboration among the authors will lead to a comparative study of the EU and China with respect to transboundary resource management as well as environmental liability.
