Protecting Environment As Obligation Erga Omnes

This paper attempts to argue that environmental protection obligations shall be regulated as"obligation erga omnes", and committed by all members in society."Obligation erga omnes"implicates that the purpose of performing obligations is for the benefit of the whole society, the scope of obligors is the whole members of society, and the performance of obligations erga omnes is mandatory. It will significantly contribute to promoting the development of environmental protection and achieve the goal of good environment if every countries and international community can treat environmental protection as"obligation erga omnes"and regulate in environmental laws. There are widely existed environment injustice and unfairness, meaning that not every men commits the environmental protection obligations and the obligations are not distributed fairly in society internal. This paper tries to demonstrate the rationality and legitimacy of treating environmental protection as"obligation erga omnes"in view of the human history.This paper includes introduction, main body and conclusion. The main body is divided into 4 chapters.The introduction puts forward this paper's research question firstly——the legitimacy of environmental protection as"obligation erga omnes"? At the same time, clarifies the meaning of the paper, summarizes the previous research literature and briefly introduces this paper's research ideas and methods. In this paper , except for putting forward the question, it also stress the legal implications of"obligation erga omnes"and"environmental protection obligation erga omnes", and points out setting the environmental protection obligation as widely observed"obligation erga omnes", contains the special acknowledgment of the cause and solution of environment problem, identification of human interest and so on .The Chapter One discusses about the first reason in support of environmental protection as"obligation erga omnes", namely meeting man's basic needs. As we known, no matter how society develop and no matter what the direction it will be in, human must be alive and healthy. So, it is possible for people to realize where the meaning of life lies, and human can experience the value as a"person". The human'survival and healthy as the basic needs, it must be based on the precondition of good environment. Lack of good environment, human'survival and health will lose the solid objective foundation. Environment protection in favor of the environment maintaining good conditions, thereby is good for meeting the basic needs of people. Environment protection is a burden, which is for the good of the society. However, how to distribute this burden in society internal becomes a social problem.The Chapter Two discusses about the second reason of environmental protection as"obligation erga omnes". The first chapter has analysed and argued that environmental protection in favor of meeting the basic needs of people."Meeting the basic needs of people"really needs someone to bear the burden of environmental protection, but it is equal to that the burden of environmental protection bound to be generally distributed in society internal. The burden of environmental protection is generally distributed, every members of society commits the environmental protection obligations——in this sense, environmental protection becomes"obligation erga omnes"——this is the requirement of social justice principle.Justice is the primary value of social institution. Justicial social institution can make every member concerned to identify with the system in the society, provide the necessary social condition for member of society to achieve the worldly ideal ,and ensure the society's peace and stability. Throughout the history numerous philosophers and lawyers has fiercely debated the criteria of social justice, utilitarian, the levellers of liberalism and the extreme liberalist have difference notion of justice. The minimum consensus between them becomes the base line to judge social justice. These consensus is——"gain one's deserved","not to hurt others","abidance by law".In a certain society, the occurrence of justice issues also needs relevant social conditions. If the social resource is sufficient, and people have same criteria for social justice, thus the society will not exist dispute,regardless of whether the distribution of social resources is justice. For the environment interests and burden are of scarcity, there are lack of consensus between people about who commit the environment protection obligations and who enjoys environment interests, environment burden can become the consideration object of social justice.Applying the criterion of social justice to balance the scope of environmental protection obligor, we will find that if we expect the environmental protection obligation could be fairly distributed, the only solution——distribute the environment burden among the members, the whole members should be treated as obligor of environmental protection. Since all we are the wrecker of environment degradation, and are also the beneficiary of environment cooperation interests. We should commit the environmental protection obligation together, of course, for everyone's capacity, the impact of environment degradation and the enjoyment of environment cooperation interests are different, our obligations are different too.The Chapter Three argues the third reason of environmental protection as"obligation erga omnes". Except for according to social justice to widely distribute environment protection obligations in the society, in fact, we should much more depend on the natural rule restrictions on human society institutional arrangements, then require every members to commit the environment protection obligations. Environment has its owns natural characteristic, such as globality, the limitation of bearing capacity, the seriousness and publicity of pollution, firmly tied the scope of society to arrange the environment protection obligations. In order to mate it batter for achieve the goal of environment protection, considering these specialitys, every members should be required to commit the environment protection obligations. If not, the environment can not get the best protection, meanwhile the society will lost the objective basis of survival and development.It is no longer theory fantasy for environment protection as"obligation erga omnes". The Chapter Four analyses numerous international environmental declaration, conventions and Judicial practices, at the end, give a conclusion, that is, in international law level, environment protection as"obligation erga omnes"has been a fact in legal institution. In this chapter, I also analysed America The National Environmental Policy Act and article 6 of China Environment Protection Law, and concluded that the legislator should regard the environment protection as"obligation erga omnes"and regulate in national law.In short, based on the four reasons given in the text, the conclusion is that environmental protection obligations shall be regulated as"obligation erga omnes"...