PLES and Environmental Jurists Association (EJA) co-hosted the seminar of Environmental Mainstream: The 10th anniversary Seminar of Basic Environment Act in discussing the meaning, functions and outcomes of Basic Environment Act. Here are the notes of the three presentations.
Presentation A
Topic: The Historical Contexts and Future References of Basic Environment Act
Presenter: Professor Jiunn-rong Yeh
Panel Participators: Robin J. Winkler, Thomas Shun-guei Jhan
While the Basic Environment Act has been enacted for almost a decade, National Taiwan University PLES coordinator Professor Jiunn-rong Yeh presented the historical contexts, functions and its implementation of Taiwan’s Basic Environment Act, giving us some thoughts about its future threads.
Professor Yeh first addressed the four traits of historical contexts in Basic Environment Act:
- Basic Environment Act is of attempt in trying out a new method of mass restrictive legislation since 1970s.
- The target of Basic Environment Act has advanced the environmental purpose of sustainable development from the slender perspective of dealing public pollution.
- The legislation of Basic Environment Act has gone through UNCED in 1992, and the international movement has brought this act valuable experiences and international perspectives.
- Since after the democratic transformation, the driving force of civil society has brought the environmental issues into legislation, and finally enacted the law.
As to the nature of Basic Environment Act, Professor Yeh expounded that Basic Environment Act is in fact, “basic law.” The main focus of understanding this law is to clarify the doubts that whether we could apply the basic theoretical foundations and the principle regulations of this law in real cases. With this point of view, Professor Yeh has elaborated from the point of views of “restrictive legislation” and “policy legislation,” and that Basic Environment Act is “policy legislation” instead of traditional general rules of law. While the “general rules of law” are intended to satisfy the logical requests of legal system, “policy legislation” is however, in motion. It has its expansion on issues. With the activation of the dialogues between civil society and the environment, and the bridged connections of Taiwan and international environmental topics, the Basic Environment Act has expanded its convergence of environmental public pollution into the purpose of environmental sustainability. With the unrestricted characteristic of time and space, the same articles of policy legislation law will move under the occurrence of new environmental incidents, civil requests or new elaboration encountered under international conformity. More importantly, policy legislation law directs the future operation of guiding national organization and policy making. The administrative department shall execute policy under the guidelines of Basic Environment Act. The legislative department is under the obligation to specify law to accomplish the policy guidelines of Basic Environment Act. The court ought to explain the environmental principles while reviewing cases to strengthen the functions and roles of the court in environmental issues.
Even though the Basic Environment Act should hold the above characteristics and function, however, during the past ten years since the legislation enacted, there had been rules unaccomplished. Professor Yeh specifically pointed out the two issues of nuclear-free homeland and GHG emission reductions. The principles of Basic Environment Act have not been widely discussed as the foundations of nuclear policy in nuclear-free homeland issues. It was forgotten by people. Meanwhile the GHG emission reductions policy, the GHG emission reductions law has yet to pass. The lack of climate change policies and insufficient government funds have left Taiwan behind the international trend of climate change issues.
As to the future of Basic Environment Act, Professor Yeh recognized that we should bear in mind of the situations in recent ten years. Incidents including two political parties rotation, the reorganization of Environmental Protection Administration and Environment Resources Department, Typhoon Morakot, 2011 Tōhoku earthquake in Japan and the Fukushima Daiichi nuclear disaster, the climate change related environmental issues, the industrial transformation as China rises, the largely increased demand of energy…etc. While it has been a global issue of economic weakness, social justice and inequality of resource distribution in the recent decade, the legislation is challenged to incorporate the demand of Basic Environment Act to make appropriate law. Professor Yeh hoped that the national organization and civil society will cherish and extend the strength of Basic Environment Act as it was first established, and scholars, attorneys, and the courts are all obligated to play a more active role in creating a deeper operation of Basic Environment Act.
Primordial Law Firm Attorney Thomas Shun-guei Jhan agreed with Professor Yeh’s point of view, recognizing that the principles of Basic Environment Act and Policy Directives should be important references for the court to rule the cases. Taiwan courts should first get rid of the thinking model of the concept of “rights” in continental legal system. Attorney Jhan also pointed out that the purpose of either economic progression or environmental protection is to make human live better lives and we should look after both sides. Attorney Jhan urged that the political officers should carry out Basic Environment Act, while the corporate shouldn’t see environmental protection as a stumbling stone of economic progression. President of Environmental Jurists Association, attorney Robin J. Winkler further pointed out that Professor Yeh’s report reminded us that the direction might be more important than the solution, and that Basic Environment Act is a law that provides “direction.” Attorney Winkler addressed that a solution which is tailored in dealing a specific case might overturn the correct direction in the long run. Attorney Winkler concluded that there are common grounds between economic environment, social environment and nature environment. The relationship of these three categories is that the economic environment is built upon social and nature environment, and that social environment lies upon nature environment. If the economic exceeds social or nature environment, human development will inevitably lose its concrete foundation.
Presentation B
Topic: Basic Environment Act, Quo Vadis?
Presenter: Professor Yu-cheng Wang
Panel Participators: Chia-chi Chiang, Ziling Lin
Associate Professor Yu-cheng Wang of National Cheng Kung University Department of Law introduced the legislative proceeding of Basic Environment Act, its purposes of protecting environment and environmental sustainability. Associate Professor Wang pointed out that Basic Environment Law does not have a supervising organization, thus the Environmental Protection Association is not the department in charge. As to the directive functions of Basic Environment Act, Associate Professor Wang deemed that most environmental related regulations passed before the enactment of Basic Environment Act, which ruled out the directive function of Basic Environment Act. Even the laws passed and enacted after Basic Environment Act were not influenced under Basic Environment Act during the legislative and discussing procedures. Currently, Basic Environment Act wasn’t the foundation of different levels of governmental organization in pushing forward environmental protections; however this situation should be solved by activating the essence of Basic Environment Act through section 2 of article 25 in Basic Environment Act.
Associate Professor Wang addressed that it is necessary for Basic Environment Act to further expand its fundamental principle system, definition and contents, possibly through complementing legal loopholes through judicial rulings. However, Associate Professor’s studies show that the judicial application of Basic Environment Act is not sufficient. If the parties involved quote Basic Environment Act, only less than thirty percent of court ruled in response. Of those responded courts, most of them took a passive explanation on Basic Environment Act, suggesting that Basic Environment Act is merely a policy proclamation, instead of a legal claim of right. Only a few examples such as the Mira Bay ruling, while in this case, Basic Environment Act was not directly quoted, however, impacts of Basic Environment Act could be found in the ruling. In order for Basic Environment Act to be broadly and more practically applied, there should be more constructive elaborations to fulfill its contents by the judicial side, or making use of Basic Environment Act through the discussion ground of the third generation of human rights. Associate Professor Wang anticipated that the awareness of environmental civil society will put environmental issues in its mainstream.
Associate Professor Chia-chi Chiang of Chung-Cheng University Department of Law questioned the nature of Basic Environment Act, proposing that the position of Basic Environment Act in the legal system is unclear and needed to be addressed. The Basic Environment Act and its position in legal system is important since its related to understanding how Basic Environment Act could guide other law, solving the confrontation of Basic Environment Act and other basic laws, and establishing the self-defense system of such laws to avoid arbitrarily modification. Associate Professor Chiang further confirmed that judicial elaboration and application is one important method in complementing Basic Environment Act.
Wild at Heart Legal Defense Association Secretary General Zhi-ling Lin addressed that it is also one of the important methods for civil groups to propose opinions in amendment or legislation, hoping to get more assistance from legal professionals during the process.
In response, Associate Professor Wang pointed out that to apply Basic Environment Act, the long-term goal is to influence society and legislators by putting the environmental issues in the mainstream. The short-term goal is to supplement cases through judicial explanations. Associate Professor Wang hoped there will be different cooperation with legal professionals and professionals from other fields, in creating more impacts.
Professor Yeh also delivered opinion in the legal position of Basic Environment Act, pointing out that the levels of effects on legal system or formality isn’t the most urgent topic, and that the most important value is to think how we could manage to increase the environmental values through Basic Environment Act in order to strengthen the policy legislation aspect of environmental law.
Presentation C
Topic: Basic Environment Act, ICCPR and ICESCR: Human Rights Inspiration on Taiwan Environmental Movement.
Presenter: Associate Professor Wen-chen Chang
Panel Participators: Shin-Min Shih, Yung-cheng Kao
During the presentation, PLES member, Associate Professor Wen-chen Chang addressed that on March 31, 2009, Taiwan Legislative Yuan has incorporated ICCPR (International Covenant on Civil and Political Rights) and ICESCR (International Covenant on Economic, Social and Cultural Rights) as passed treaties, while legislating Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Started from December 10th, 2009, human rights issues covered in ICCPR and ICESCR were incorporated into part of the national law of Taiwan. Through the procedure of incorporating international human rights into Taiwan Law, Taiwan society has then created a moment of human rights. Environmental issues are also the main focus of human rights promulgation.
Associate Professor Chang pointed out that, there are many environmental related regulations in ICCPR and ICESCR. There has been regulations and general opinion in substantial and procedural environmental human rights protecting regulations. Environmental Human Rights protections include right of life, right of health, meeting the basic needs to live and rights derived such as water rights, privacy rights, family rights, right to self-determination, cultural rights, and rights to enjoy environmental information, rights to participate in environmental policy making, rights to legal remedies when environmental human rights were invaded. The principles of Basic Environment Act such as environmental protection and sustainability, protection of health rights and environmental assessment and prevention of health and environmental risks, information closure of the environment, and requests for remedies as basic human environmental rights are all related to the protection scope of the environmental rights and environmental human rights of ICCPR and ICESCR. As to the future linkage of ICCPR, ICESCR and Basic Environment Act, on one hand, we should actively apply ICCPR and ICESCR, implementing environmental human rights protection and environmental rights of ICCPR and ICESCR in aligned with revealing the values of Basic Environment Act. On the other hand, since Basic Environment Act mainly deals with regulations in policy directions, principles, systems and mechanisms, we should look into the depths of human rights in ICCPR and ICESCR if we wish to deepen and strengthen the mechanism and directive regulations aspects.
Panel Participator Professor Shin-Min Shih further mentioned that although Basic Environment Act has been enacted for ten years, it has not been valued enough by government, corporations, or in academic fields. The obstacles from industrial sides and the incompleteness of the law both resulted to the insufficiency of environmental protection. Another Panel Participator Yung-cheng Kao addressed the triplet national obligation reflected in ICCPR and ICESCR: the obligation to respect, the obligation to protect, and the obligation to fulfill. Human rights mechanism is indeed the important method in substantializing and fulfilling the regulations of Basic Environment Act.