Application Environmental Law To Military Activities

In the process of modernizing in China, it is an unavoidable and obvious problem increasingly to cope with the relationship between natural environment and military development scientifically.The dissertation is trying to answer the question in the perspective of law. It is impossible to neglect that military laws in China were born of the coping of environment problems in civil affairs. Military environment problems are similar or dissimilar with civil environmental problems. The first choice of Military--to win in war or prevent wars--- is realized by the way of displaying more destructive power, i.e. the lethality weapons and the capability to cope with lethality, which has influence on environment directly or indirectly. This is contradictory with the environmental law to avoid or eliminate environmental destruction. In modern society, military security threatens and environmental security threatens coexist, and it is impossible choose one and desert the other. The dissertation is trying to set up a scientific and efficient balance through foresighted suitable institutionalized arrangements and carrying out.In the introduction, it is about the background, significance and literature, methodology and the framework. From the rigid perspective of environmental law, many military affairs are illegal:troops, on one side, like large-scaled heavy industries, consume resources and discharge contamination, and on the other side, many weapons are designed and produced in seek of mostly destructive power. In peacetime, these weapons, especially some advanced weapons, through experiments and training, damage the native environment where people live on and pursue welfare and the damages go far beyond of the economic activity of a simple enterprise. If these "illegal" actions are imposed with rigid the regulation of environmental law, the military destinations are "holdback" for somewhat, which equally "bears down on national existence and welfare deadline". The aim and selection and research the topic is that whether the partial conflict between military and environmental law and can be solved by the applied systems in environmental law and set up a suitable balance to avoid both absolutely military priority excluding the regulation of environmental law on military action and neglecting military peculiarities and regulating military action indifferently. The topic is exclusively important in the situation that China is faced with potential military and critical environmental threat. Specifically the significance of the topic is expressed in four parts. In the respect of existing literature, there is no relative or generally relative with the topic in China. Researching the application of environmental laws in military affairs is the inevitable needs of the ideas of the military-civil ecological civilization; researching the application of environmental laws in military affairs is the inevitable needs of realizing "the integrity of environmental benefits and military benefits"; researching the application of environmental laws in military affair is theoretical preparation for filling up environmental legislation; researching the application of environmental laws in military affairs is a prerequisite to reconcile disputes between the military and the civil. Foreign literature is mainly about the literature in the United States, among which, are focused on the empirical research of the applied systems of American current environmental law in military affair, which extends around military and actual problems and seldom goes around theoretical research aimed at the balance between the environmental law and the military action. Moreover, scholars show different views on some critical issues and haven’t come to an agreement. To make the research carried out within certain frames in a sequence of ideas and methods, beginning with environmental problems in military affair, the paper is focused on the theoretical basis of coping issue of environmental laws and the advantages and disadvantages of the application in the United and China, and based on it ought-to-be in applying system frameworks in China come up. The theoretical researches are based on the methods of interest jurisprudence; the empirical research relies on comparative methods.The actual motivation of the application of environmental laws in military affair is on account of the highlighting of environmental problems in military affair. Military environment problems are similar or dissimilar with civil environmental problems. Whether military laws can be applied and how can be applied in most degree depends on the degree of similarity and dissimilarity in these two fields. From this respect, environmental problems in military affair are suitable for theoretical direct logic beginnings. In the first chapter, going around the application research of the logic beginning of environmental laws in military affair---environmental problems in military affair, extends and interprets the conception, manifestation and particularity of environmental problems in military affair comprehensively and thoroughly. Environmental problems in military affair are the environmental problem originating in military action. They develop with the changes of military traditional weapons and exist chronically. Compared with environmental problems in social backgrounds, there is some similarity and dissimilarity. According to the difference of the heterodoxy of military action and traditional weapons with environmental problems with other fields, environmental problems are divided into three types:environmental damage in wartime active and passive weapons, ordinary environmental problems in peacetime and military special environmental problems. These environmental problems, especially environmental problems are characteristic of public welfare, super normality, integrity, confidence and trans-military facilities。These characters are the key points of the chapter and the logic beginning of the sequent theoretical researches, running through the dissertation.The most prominent and important character of environmental problems in military affair is that military action enjoy high nor-profit and the rest characters come from it, which is the most challenge which environmental laws---aiming at solving environmental problems caused by self-interest activities---face. If environmental laws in civil affairs are applied mainly through regulating the relationship between private environmental interests and public environmental interests to realize the aims of legislation, environmental laws which are applied to military affairs in the first place reflect and regulate public interests which come from military action of the state power and environmental interests. This is the core of the applying systems in military affairs. Chapter two is focused on probing into theoretical basis and guidelines answering the challenge. The chapter uses the theories of value analysis, risk levels and hierarchy of needs, probes into the orders when two public interests confront with each other, gives a brief account of dynamic order relation between two public interests, i.e. when military is in high risk level, it has priority, however it should not do unnecessary damage to environmental interests; when military is in moderate risk, environmental interests should has priority, however it should not do unnecessary impairment to military interests; when military is in low risk, environmental interests has priority. The applying systems of environmental laws in military affairs should reflect the dynamic order relationship between two interests, i.e. set up a rational balance between the two interests when concrete rights and responsibility are designed and carried out. When these rights and responsibility are installed, three basic principles are should be held:generally, combination of universal application and particular exception; particularly authorized, combination of hold law retaining and flexible judging; when particular exception decided, combination of military necessity and proportion demand.In the third chapter, taking America as the case, from the perspective of the comparative law, the application practice of the characteristics of environmental problems American environmental laws coping military affairs are interpreted and analyzed comprehensively and thoroughly. The application of American environmental laws in military affairs goes through fundamental misapplication, application scope expansion to limiting the application scope. Today, American current three types of environmental law---prevention, restraint and relief---are applied in military affairs and relative perfect institutional systems are done. In legislation, military action is brought into the regulatory system and military institutions are imposed on the responsibility of protecting environment; directed against the peculiarity of military action, the exceptions of minor responsibility exemption are explicit stipulated; some laws are issued concerned with some special military action. In the process of laws being carried out, federal and state environmental supervision departments have authority to enforce the law on military action concerned with environmental protection. Administrative and legislative departments set up some applying systems to balance the two interests in the course of dealing with cases of military environmental problems. The environmental laws are applied around "managing", "observing the law", "pollution preventing" and "conserving". American current applying systems have the prominent characters of permitting military exception with the strict condition. Though in the United States, people show different opinions on current the applying systems of environmental laws in military affairs, since 2001 military institutions have never stopped trying revising partial environmental laws to broaden exception scope, but compared with the basic principles in the preceding chapter, the author, it is concerned that the applying systems of American environmental laws represent basic demands of three principles.The analysis and research of the applying practice abroad is only to give a comparable reference for the research of the applying systems in our country. In the fourth chapter, the changing process of the applying of our environment law in the military affair and the applying practices of preventing, controlling and relieving regulations are expounded and analyzed comparatively, so as to find the problems and the way to improve. Compared with the course of application of American environmental laws in military affairs, the application of environmental laws in military affairs in China still remains in the stage of self-regulation by the inside regulations of the military institutions. In legislation, environmental laws enacted by National People’s Congress and Standing Committee lack unequivocal stipulations which bring military action to unify the regulation systems of environmental laws, some legislation restricts subjects of obligation to "enterprises"; or entitles legislation and supervision to military institution. Though military regulations actively classify activities concerned with environmental protection to the national environmental protection undertakings, put forth carrying on national environmental protection guiding principles, policies, laws and regulations, and obey the departments’ direction and supervision in charge of environmental protection, military institutions in China with the special status, lacking the supervision from the outside, and with the relative independence of legislation, in carry out environmental protection regulations, military institutions enjoy the free judgment with little limitation, forming the double track of function in military and civil environmental protection. This applying system is not only difficult to protect environmental interests but also to protect the military interests. Since there is no definite exception stipulation, military regulations only can take indefinite regulations when encountering potential conflicts. Once conflicts happened between military and civil, wild speculation and dragging come along, affecting the military action. Now there are many factors leading to disputes which are upgrading. On one side, military war preparedness aggravates and new military reforms needs more war preparedness space resulting in affecting environment more seriously; on the other side, urbanization goes faster and faster, residents live beside the military facilities and they are aware the environmental problems, which makes it urgent to change and improve the current applying systems.In the fifth chapter, a frame system has been sketched from legislation, enforcement and keeping of environment law to counter the deficiency of its applying practice in the military affair. In the legislation of the law, the harmony of the interests between military and environment is highlighted:firstly, the military offices should be brought into the environment law legislation system. Then the important conditions of the reduction of obligations should be made definite. Through the perfecting of preventive environmental legislation, the applying system of controlling environment law should be remolded, the applying systems of relieving environment law should be constructed and a comparative complete legislation system is thus set up. In the enforcement of the law, the harmonious relations between the local government and the army in the execution of environment law should be emphasized. The enforcement function of the military supervising departments in environment protection should be fully exerted. The united supervising and coordinating functions of the state’s supervising departments in environment protection should be strengthened. Meanwhile the enforcement function of the administration of justice should be fully emphasized and exerted, in order to form a practical and effective enforcement system. In the keeping of law, the traditional thinking inertia of the military organs that "military has the absolute priority" should be changed. And the dynamics of environment education and training should be increased, the environment consciousness should be strengthened, the input of manpower, material resources and financial resources should be added, and the obligations of environment law should be positively fulfilled. At the same time, broad law-abiding cooperation should be established, the communication and collaboration between the state and the station’s environment protection supervising departments and the mass organizations should be smoothed, the problems in the keeping of environment law should be found and solved in time, in order to bring into full play the model function of the military organs in the abiding of environment law.The last part is conclusion, sorting out and giving prospect of the main ideas of the whole paper.