The Emergence And Realization Of Global Environmental Law

As the object of environmental law, natural environment is an indivisible entirety. The globe exists in a holistic ecosystem, which determines that environmental law is a globally legal field since it has been made. Environmental law is a new developing legal field and globalization brought a different perspective, a different aspect of activities, and a different social structure into the new field. In the context, it is inevitable to advocate the global environmental law. Today, it is not premature to research global environmental law. Modern scientific technologies compress time and space to allow that human being to think about the issue of environment in a viewpoint as high as global level. Moreover, when people change their perspectives and realize that environmental problems are global issues which can not overcome by an individual state, they would start to combined global powers. However, the current international political and economic orders have their inherent defects so that the anarchic state-relationship could not organize enough powers to deal with the challenge of global environmental crisis. Therefore, a starting point to understand the new global power would base on a considering of transnational civil activities of environmental protection. This dissertation is a research on a coming legal phenomenon from a cosmopolitanism perspective based on the analysis of transnational activities of private sectors.In the chapter I, the research begins with the concept of global environmental law and its characters. Since the end of 20th century, some scholars commented that environmental laws in different states have been becoming similar. The tendency of convergence exists not only in aims of laws, but in legal principles and tools of regulation. Through the analysis of environmental laws in different states, especially such basic environmental laws as National Environmental Policy Act in U.S. or The Law of Environmental Protection in China, there is a clear trend in those legislations. Two fundamental reasons are, firstly, the interaction between international environmental law and domestic environmental law which promoted the idea of sustainable development as well as regulated tools such as Environmental Impact Assessment and Emission Permit Trade accepted by most of states, and, secondly, international environmental protection organizations and conferences push the trend of convergence from the outside. However, the convergence of the development of environmental laws does not mean certainly that the emergence of a global environmental law. We are in a world order which is a system established based on the 1648 Peace of Westphalia and nation-states are subjects of the system. Such a nationalism perspective ruled the world for a long time. Although it has its historical significance, as the process of globalization, it impedes people to observe global environmental issues today in a higher global level. So, it only can break through the limit of the institution with changing the perspective from nationalism to cosmopolitanism. The idea of cosmopolitanism never has faded out from the mind of political philosophers. The problem is that there is absent a soil for the achievement of the idea. The global environment crisis gives a stage for the cosmopolitanism to practice. The proposal of global environmental law is a certainty in such a historical process of the changing of perspectives.In the chapterâ…¡, the article addresses the carrier of global environmental law. If we say that a state is a community of nations, then, the law is an agreement between the members of this community. Implementation of the law requires a carrier which is a group of peoples and global environmental law also can not implement alone outside of the society composed of people. Global environmental law is a legal system which is a breakthrough of national boundaries. Therefore, the state can not continue to be a carrier for global environmental law and we need to find another way. Fortunately, some scholars observe the emergence of global civil society and a global community of environmental protection would come to be true as a formation of global civil society under such a theory. This global environmental community, which is an Imagined Community formed with global environmental movements, emerged to manage global environment which is a global public goods. It has not a real bureaucratic system like what states have, but it is a transnational community of private sectors which combined mainly with international environmental non-governmental organizations and some international environmental protection inter-governmental organizations and transnational corporations. Global environmental community aims at better global environmental governance with promoting transnational private sectors' activities of environmental protection. In the process, a Common Practice is emerging because that people can not avoid use the same technology of environmental protection and information exchange. So, a common practice needs a common regulation. A long time ago, political philosophers in their writings already showed their thoughts of cosmopolitan community and global citizenship. Kant, Harbemas and Rawls have a common realistic utopian idea of such a cosmopolitanism community, though they are in different times and belong to different theoretical beliefs. Chapter III presents forms of global environmental law and its institutions of implementation. Global environmental law is not a real phenomenon can be observed in current. It is only a conclusion argued by scholars based on real requirements and theoretical analysis. Therefore, it is necessary to exam its possible formation. Global environmental law is a common rule of environmental protection activities. In this premise, we can easily find it have characters of ius commune which is fading out of our legal systems. The idea of ius commune had been in thoughts and practices of jurist long time ago and with time passing, it endured several ups and downs. Recent years, modern lex merctoria come into vision of people and ius commune was reborn. Global environmental law must be an ius commune as well. In the same time, it also is transnational customary law. Roscoe Pound wrote that there is large number customary law in our legal system in addition to statutory laws. Transnational customary law is a rule developed from requirements of regulation of common practice. It was implemented in different state but all of them have a common purpose which is sustainable development. In the context, transnational customary law does not conflict with the aim of states and it should be confirm by the powers to get its legitimacy.Beginning with chapter IV, the analysis comes into the level of feasibility. Feasibility should be found based on previous observation and theoretical analysis. Chapter IV would exam the realistic feasibility for global environmental law. This realistic feasibility is originated from realities which are happened and happening facts in the real world. Those facts give a soil to global environmental law to develop. Undoubtedly, global environmental problems are realities around us. Predecessors have recognized the existence and severity of the environmental problem and found that the environmental problem is not just a local issue, but also a global problem. An inevitable requirement for a global resolution mechanism would be argued by scholars. The Law is essential in response to global environmental issues. In the process of globalization, environmental field is a typical field to globalize. Global environmental problems are naturally global issues. Moreover, there is global interest in global environmental issues so that the law, as a interest-distributor, should response this fact.In the final chapter, the article will start a pure theoretical analysis of global environmental law. The chapter V is an important chapter of this dissertation and it also is a conclusion of the article. The analysis ultimately comes into the nature of environmental law itself. The author use legal culture as a methodology to analysis the homogeneity of global environmental culture. The homogeneity was originated from the nature of environmental law and it promotes environmental laws in different states become convergence and finally it turns to global environmental law. From global environmental legal consciousness to global environmental statutes all have a potential to become convergence. Modern science and technology brought western environmental ethics to the whole world, and planted scientific rationality into the core of environmental statutes. Similar environmental ethics directs to similar environmental consciousness which has homogeneity and such similar consciousness lead to similar environmental statutes. Moreover, in the practice, environmental statutes, which insist the principle of Best Available Technology, is surprisingly similar in the nature, but there only is difference in legislation due to advanced or not technologies.