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Study On Legal Mechanisms Of Participation Right In Environmental Matters

Posted on:2012-11-15Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z P WangFull Text:PDF
GTID:1226330344452013Subject:Environment and Resources Protection Law
Abstract/Summary:PDF Full Text Request
In the middle of 20th century, a series of changes happened in the field of environmental protection and democracy politics, stimulating the public participation into an inevitable choice of environmental protection. With the rising tide of environmental protection in the end of 1960s, the environmental problems became the focus of common concern. At that time, the public participation entered into the field of politics, which triggered a new movement of the public participation—emphasizing the public participation on decision-making and policy implementation; in addition, it meant not only the elites but also the ordinary people should be the subject of public participation.At the beginning of 1970s, the measures of environmental governance in most countries were mainly the commanding mode, which made good effect in pollution control. However with the growing of the public consciousness of environmental protection, the change of the government functions, and the aggravating environmental problems, people recognized that the commanding mode could not a win-win for both economic benefit and environmental benefit. Although the environmental rights were established in the environmental protection law in many countries, there were still many obstacles for substantive environmental rights in the judicial practice till 1990s. Therefore the citizen’s right to obtain information, to participate and to relieve in environmental matters were emphasized in the international and domestic environmental legislation after 1980s. The Aarhus Convention formulated in 1998 by United Nations Economic Commission for Europe is considered as the most perfect international environmental protection law in the aspect of the right of public participation. Otherwise the systems mentioned in the above in China are seriously inadequate, in result that all environmental law can not produce its due effect. In this context this paper will research the right of public participation in the Aarhus Convention.The thesis uses both the tools of positive and of normative analysis to explore the right of public participation in the Aarhus Convention (including the citizen’s right to obtain information, to participate and to relieve in environmental matters). Then the relevant environmental legislation and specific practices in China will be researched. Finally, during learning from the Aarhus Convention, the suggestions for improving the legislation about the right of public participation in China will be brought forward. The structure of this paper is as follows.In the preface, it introduces the research status of the right of environmental public participation at both home and abroad, and explains the meaning, objectives, methods, difficulties and innovation of this study.Chapter 1 introduces the concept of the right of environmental public participation and the main content of the Aarhus Convention, Having analyzed the conception, the characters, natures and values of the right of environmental public participation are summarized. It explores the background of the Aarhus Convention from the perspective of its social causes, sources of international law and the plight of the judiciary of environmental right. Then it introduces the framework of convention, and deems that the core content of the convention is the right of environmental public participation.Chapter 2 mainly analyzes the first pillar of the Aarhus Convention—the content of the right to obtain environmental information and its status of implementation. The right to obtain environmental information includes the rights to know and obtain the environmental information. The theory is based primarily on theories of popular sovereignty, right to know and environmental right. It is the basic right to achieve environmental democracy. Based on introducing the legislation of the right to obtain environmental information worldwide, the specific content of the right to obtain environmental information has been analyzed, and the implementation mechanism in the contracting government.Chapter 3 is focused on explaining the second pillar of<The Aarhus Convention>—participation right and implementation mechanism of the public. According to the concept of participation right of the public on environment, through the different analyzing of political science, management science, sociology and law, it brings forward legitimacy of participation right and decision-making power, discussing the value and barriers of in the implementation to the public participation in environmental decision-making power itself. After studying the provisions about participation right in environment of international and domestic legislation, the paper makes a detailed analysis of the content and implementation mechanisms of public participation in environmental decision-making power in the<The Aarhus Convention>.Chapter 4 concentrates on the third pillar of<The Aarhus Convention>—content of remedy of public participation right on environment. Based on the analysis of concept of the public participation remedy right on environment, it has discussed the basis through the theory of environmental interest, where a right will has a relief, theory of environmental justice, and it thinks that remedy grasped by people can not only prevent ill-use of environmental power, protect people’s environmental interests, but also can resolve environmental disputes, maintain the harmony of society. Based primarily on the requirement of<The Aarhus Convention>,Which analyzes the achievement way of remedy and thinks that the remedy mentioned in the convention especially the litigation right of environmental community is meaningful to our legislation.In chapter 5, the paper makes a conclusion on the successful experience, a analysis on China’s Reference. By analyzing the contents of the Convention, which embodies the essence of democracy, stressing the responsibility, transparency service of government. Reflecting environmental justice, and advocating fairness rights extensive new, effectiveness. Establishing a "rights-based" thinking, and focusing on the government’s obligation to guarantee the realization of the right. Making a approach design to achieve the environment right from the angle of protection of human rights and to realize the right to the justice in environment. Focusing on rights’ coordination and implementation. Based on analyzing the general impact of the Convention, by examining in the democratic process, state of the environment and related legislation in China, and pointing out we can learn some reference from the Convention on the right study in the environment, legislation and law enforcement.Chapter 6 makes a introduction of the environmental information, public participation in environmental legislation and environmental relief provisions in China firstly. Then refer to "the Aarhus Convention," analyzing the deficiency of the relevant provisions. Finally, on the experience of the Convention, proposing legislative proposals on environmental public participation in China, Including clear provisions on environmental public participation, developing specific legislation, focusing on the coordination between the rights, expanding the scope of rights, a sound system and so on.
Keywords/Search Tags:The right to participation in environment matters, The Aarhus Convention, The right to environmental information, The right to public participation in environmental decision-making, The right to justice
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