Environmental Rights: on the Perspective of Harmonious Development between Human Beings and Nature

The idea of environmental rights was first ascertained as a universal concern in the late 20th century and then became a fundamental part of environmental law along with the growth of serious disasters brought by the frequent occurrence of extreme environmental crisis. Generally speaking, the environmental rights safeguard and defend human rights and ultimately facilitate producing better conditions of life on earth by stretching and expanding the theory of traditional human rights. But there are endless debates since environmental rights appeared and various views of environmental rights, such as anthropocentric doctrine and organism's centre doctrine. Differentiated from the traditional research, this article reviewed environmental rights from the perspective of harmonious development between human beings and nature rather than from the perspective of law. Therefore, it is very important to clarify the relationship between human beings and nature based on the environmental rights and to promote the environmental rights to be embodied in the constitution. This article emphasized the importance of the practical significance of environmental rights, and built a concrete structure within the legal system that could promote the transformation of environmental law from ‘should have’ right to practical right, and promote the further development of environmental rights and their weightiness in the legal system.     

Application of Transferable Development Rights in Cultivated Land Protection in China

To analyze current policies on cultivated land protection, this article discusses the application of transferable development rights in cultivated land protection by examining the connotation, operation mechanism, and construction on the market mechanism, benefits driving forces, and expected benefits. The results suggest that economic incentives and fairness have been neglected in previous policies on cultivated land protection. Moreover, the introduction of transferable development rights can not only eliminate the imbalance of interests, but also enhance the incentives for farmers and developers. In addition, it can significantly reduce the fiscal expenditure of the government.     

Transaction of Marine Fishing Right： Theoretical Analysis

The difference between fishermen＇s fishing catch and the optimal fishing catch is the basic reason for the transaction of marine fishing rights （TMFR）. The effects of productive cost, non-productive cost, use-cost, transaction cost, productive revenue and non-productive revenue on the TMFR and the optimal fishing catch are analyzed. This paper draws following conclu- sions： the non-productive revenue has a positive effect on the TMFR, and other factors, such as non-productive cost, usecost and transaction cost, have a negative effect; the TMFR will promote the resource allocation; the high transaction cost may affect the implementation of TMFR.     

CONSTRAINTS IN WATER MANAGEMENT ON AGRICULTURAL LANDS1

ABSTRACT Whether the goal is minimizing water quality degradation in receiving streams or maximizing agricultural production on existing croplands; the solutions are identical - improved water management practices. Technology has succeeded in developing feasible solutions to improving irrigation water management, but the law has been slow to encourage or direct implementation. The villain of the western United States water problem is the property right concept of the appropriation doctrine. Improving water management also implies organizational improvements. Also, the so-called “human factor” involves questions of inefficiency and ineffectiveness, that when examined under the criteria of efficacy, may dictate a policy of continuing present practices in certain localities or regions with little technological intervention. The present effort for improving water quality management implies, therefore, a manyfold attack aimed at increasing project irrigation efficiency and effectiveness, under the larger rubric of efficacy and the achievement of larger social goals.     

THE LEGALIZATION OF GROUNDWATER STORAGE1

ABSTRACT: California's courts have recently recognized the existence of underground aquifer storage rights that permit public agencies to (1) store imported waters in aquifers; (2) prevent others from expropriating that water; and (3) recapture the stored water when it is needed. The article describes the two appellate decisions that represent the common-law development of aquifer storage rights. Each decision related to separate aquifers that were subject to separate types of groundwater management programs. One decision involved an aquifer under the southeastern San Francisco Bay area that was managed under statutory authority and is entitled, Niles Sand and Gravel Co. v. Alameda County Water District 37 C.A.3d 924 (1974); cert. denied 419 US 869. The other decision involved an aquifer under Southern California's San Fernando Valley that was managed under judicial authority and is entitled, City of Los Angeles v. City of San Fernando 14 Cal.3d 199 (1975). The two decisions provide separate, but complimentary, public interest rationales for aquifer storage rights: (1) to protect water supplies necessary for the overlying community; and (2) to increase water supply efficiencies by using natural underground reservoirs wherever practicable. The Article reviews the relationship of aquifer storage rights to conventional groundwater rights and indicates aspects of the storage right that may need additional development.     

THE IMPORTANCE OF PERCEPTIONS IN THE DETERMINATION OF INDIAN WATER RIGHTS1

ABSTRACT The American Indian occupies a unique place in the federal system of government There are indications that this relationship will continue and that Indian reservations are at the threshold of economic development. As this occurs, the nature and extent of Indian water rights becomes more important to Indian and non-Indian alike. The determination of these rights is a matter of more than judicial decisions. To a large degree the determination of these rights will rest in the non-judicial arena and will be influenced by the perceptions of those rights held by Indians and water allocation officials, both state and federal. If the perceptions of these political actors are not congruent, then political conflict will occur as the rights become more important. To depend solely upon the judicial system to resolve these conflicts entails risks and costs to both Indians and to allocating officials. Indians are taking seriously the federal policy of Indian self-determination, and water allocation officials run decided risks in failure to realize this. An alternative suggested is to include Indians as consulting parties when decisions are being made that affect Indian interests.     

Environmental justice as a (potentially) hegemonic concept: a historical look at competing interests between the MST and indigenous people in Brazil

ABSTRACT

This article explores the need to recognise and compensate the plurality of environmental justice claims, while paying close attention to the outcomes of the most marginalised groups – cultural and ecological – in political decision-making to avoid vestiges of hegemony. The early history of the Movimiento dos Trabalhadores Rurais sem Terra (MST) serves as a case study in which environmental justice claims clash with indigenous rights claims. In recent decades, the MST has refused settling Amazonian indigenous territories, consistent with the organisation’s Via Campesina platform, which focuses on redistributing the 50% of national territory controlled privately by Brazil’s richest 4%. Yet, in the 1970s and early 1980s, Brazil’s military government pitted landless peasants and indigenous people’s struggles against each other, circumventing land reform potentially disruptive to the country’s de facto colonial fazenda land system. This tactic pressured competing groups – landless peasants and indigenous people – to fight against each other, concluding predictably: the most powerful factions ended up getting their way, conceding less in negotiations than their less-advantageously positioned, marginalised counterparts. When marginalised groups gain concessions in environmental justice struggles, often the goods comprising those concessions come at a cost to marginalised groups with even less political visibility. Hegemonic structures of power remain non-negotiable in the process of alleviating other injustices in perceived zero-sum politics. Such systemic displacement and dispersion of violence in systems built on violence suggests hegemony affects not just to other marginalised groups, but to nonhumans too.     

Economic and Ecological Transformation Processes in East German Water Management Regimes: The Role of Property Rights and Governance Structures

As in many fen land regions in East Germany, long-standing intensive arable farming—enabled by reclamation—has caused soil deterioration and high water runoff in the Schraden region. The more than ten years of economic and political transformation that followed the breakdown of the socialist regime has worsened the situation and even added new problems. The visible consequences are droughts in the summer, waterlogged plots in the spring, and worn-down water management facilities that operate in an uncoordinated or even unauthorized way. Given the local public-good character of some features of the fen land, the common-pool character of the ecosystems intermittently scarce resource water, and the conflicting interests of regional stakeholders, it is argued that the reallocation of property rights over reclamation systems, together with ineffective coordination mechanisms, have caused the physical and institutional failure of the water management system and so impeded appropriate land use. Note: This version was published online in June 2005 with the cover date of August 2004.