Contracting the Sustainable Marine Environmental Capacity Regulatory Mechanism

• Author: Deng Haifeng
• Pages: 2-17

DENG (DO NOT DELETE) 2015/11/29 12:08 PM

2 TSINGHUA CHINA LAW REVIEW [Vol. 7:01

CONTRACTING THE SUSTAINABLE MARINE

ENVIRONMENTAL CAPACITY REGULATORY MECHANISM

DENG Haifeng

Abstract:

The marine environmental capacity is a special marine resource produced on the basis of

seawater’s ability to self-purify. It is possible for the marine environmental capacity to

become the object of property because it is perceptible, determinable, and relatively

disposable. In this context, China should institute a marine pollutant discharge right, taking

marine environmental capacity as an object of property. Such a right would take the form of a

quasi-property, which the obligee will be entitled to use and thus seek profits. The marine

pollutant discharge right will form the legal basis for allocating marine environmental

capacity through the method of marketization. This would be a feasible channel through which

to solve the problem o f marine environmental pollution through private law, and a major

opportunity to deepen the reform of the marine environmental pollution governance system for

China.

Marine environmental pollution and ecological d egradation are some of the most serious

problems facing society. With industrial development accelerating greatly since the 20 th

century, the human population has been utilizing marine resources at a rate far beyond the

capacity of the marine environment itself. As marine resources are closely linked to human

health, the world is now facing an impending ecological crisis. Nonetheless, the exploitation,

utilization, and management of marine resources continue to be based on traditional thinking,

i.e. focusing on economic value but disregarding ecological value.1 At the same time, the

applicable legislation on marine environmental protection, in which compulsory provisions

are dominant, has had limited effect in developing full recognition of the importance of marine

ecological value. Therefore, increasingly serious marine environmental problem have been

caused. In light of this issue and to solve the marine environment problem, the marine

ecological value must be confirmed and identified. The civil property system serves as a good

tool for such a feat . This paper seeks to discuss the right to discharge pollutants into the

marine environment, while also addressing functions, uses, and earnings pertaining to marine

resources. In particular, marine environmental capacity will be analyzed as an object, by

reference to the theory of quasi-property and new-type object.

I. MARINE ENVIRONMENTAL CAPACITY AND ITS RESOURCES

A. The Interpretation of The Concept of Marine Environmental

Capacity

The marine environmental capacity refers to the required national

standard for seawater quality. The aim of such a standard is to

maintain ecological functionality in certain areas of the sea while

restricting the discharge of pollutants. It is related to the ability of

1 See Gretchen, C. Daily et al., The value of nature and the nature of value, 289 SCI. MAG. 395

(2000).

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2014] MARINE ENVIRONMENTAL CAPACITY 3

seawater to self-purify and the quantitative description of this

self-purification capability.2

The marine environmental capacity encompasses two basic

concepts: the natural objectivity and the man-made subjectivity. The

former refers to the nature or conditions of the special marine

environment, including the geographical conditions of sea area

environment such as space, position and formation (e.g. gulf or river

mouth), the hydrological conditions such as tidal current and

temperature, the physical, chemical and biological transfer process,

and the physical and chemical nature of pollution etc. The man-made

subjective nature generally refers to the environmental quality

standard which humans should meet in order to maintain the special

environmental function of the target seawater.3

The natural objective nature determines the self-purification

capacity of various marine environments to some degree. For

instance, in general, the marine environmental capacity of an open

sea area is greater than that of an enclosed or semi-enclosed sea area.

Meanwhile, the man-made subjective nature is more concerned with

the demand of humans on marine environmental quality and takes

this into consideration in the measurement and determination of

marine environmental capacity.

Generally people divide sea areas into different functional areas

in the light of different uses, aims, and protective targets. The marine

environmental capacity differs due to discrepancies in the function

played by seawater. For instance, the marine environmental capacity

in marine oil and gas exploration area is greater than that in seawater

culture zone. Thus, it is biased to some degree to define the marine

environmental capacity as the maximum quantity or the best capacity

that marine environment may accommodate pollutants based only on

the scientific aspects. Subjective conditions, such as specific

requirements of the state on the administration of marine

environment and the actual public demand for marine environment,

are also indispensable factors in understanding marine environmental

capacity.

B. The Resource Characteristics of Marine Environmental Capacity

The marine environmental capacity is an important natural

resource with a dual nature encompassing both natural and social

aspects. On one hand, as the marine resource granted by nature in the

seawater, it represents the intangible characteristic of environmental

2 Jing Zhu et al., Overview of Research Progress and Calculation Methods for Marine

Environment Capacity, 4 WATER SCIENCE AND ENGINEERING TECHNOLOGY 8, 8-10 (2009).

3 XIULIN WANG KEQIANG LI & XIAOXIONG SHI, MARINE ENVIRONMENT CAPACITY FOR MAIN

CHEMICAL POLLUTANTS IN JIAOZHOU GULF 101 (1st ed., 2006).