【作者】 陈维春；

【导师】 王曦；

【作者基本信息】 武汉大学 ， 环境与资源保护法学， 2005， 博士

【摘要】 工业化、城市化进程的加速和先进科学技术的发展导致了很多自然环境无法降解的物质的产生。人类不可持续的消耗型生产方式和消费型社会的持续存在导致了大量废物,尤其是危险废物的产生,以及随之而来的各种不利影响。西方发达国家在环境法规日益严格,公民环境意识日益高涨,废物处置场所难以满足的情况下,开始向发展中国家越境转移废物,包括危险废物。危险废物越境转移数量的迅速增加,对人类的生存、发展以及整个人类社会的进步和繁荣这一根本利益构成威胁。 为了有效地因应危险废物越境转移问题对人类社会的挑战。国际社会近年来着力于发展危险废物越境转移领域的国际法,签订了一系列公约、议定书和软法文件。发达国家也纷纷制定关于危险废物越境转移的政策法律。一方面对国际公约做出回应,维护本国的环境主权;另一方面适应国内日益膨胀的危险废物越境转移的需要。面对日益严峻的危险废物越境转移形势,发展中国家一方面强烈要求国际社会通过国际性的或区域性的公约全面禁止危险废物越境转移,另一方面,积极完善国内的废物立法以因应此种形势。 国际社会1987年发布的《危险废物无害环境管理开罗准则》确立了危险废物越境转移法律制度的基本准则。1989年签署的《控制危险废物越境转移及其处置巴塞尔公约》则为危险废物越境转移法律制度提供了一个框架。1998年《危险废物越境转移及其处置所造成损害的责任与赔偿问题议定书》及其七次缔约方大会文件等也都对危险废物越境转移的国际法律制度做出了规定。 从区域来看,1991年的《禁止非洲进口危险废物并在非洲内控制和管理危险废物越境转移巴马科公约》和1996年《防止危险废物越境转移及处置污染地中海伊兹密尔议定书》的签署标志着危险废物越境转移法律制度的进一步完善。欧盟和经合组织作为区域性国际组织,都非常重视对危险废物越境转移管理的区域立法。它们都制定了很多条例、指令和区域性国际条约进行规范。 从国内而言,西方发达国家很早就开始对废物进行管理。美国不仅在联邦层次有规范危险废物越境转移的联邦法律,各州也有关于危险废物越境转移管理的州法律。日本、韩国、印度、阿根廷以及欧盟各成员国也开展了危险废物越境转移的立法、执法和司法实践活动。 总之,随着上述国际公约、协定、议定书与国内法律的签署和生效,不仅危险废物越境转移的立法和执法已经摆上了国际社会和各国政府的重要议事日程,而且危险废物越境转移国际法律制度已经形成并日趋完善。 作为巴塞尔公约的缔约国,中国积极履行其承担的国际义务。根据中国的国情和某些发达国家和地区日益猖獗地向我国越境转移危险废物的现状,我国制定并修正了《中华人民共和国固体废物污染环境防治法》,修改了《中华人民共和国刑法》的相应条款,颁布了一大批行政法规和部门规章,有力地遏制了危险废物的越境转移,维护了我国的环境主权。 中国危险废物越境转移问题的研究现状,远远不能满足现实的需要。一方面,国家的立法对我国已经签署并批准的巴塞尔公约没有作出充分的反应,尚有很多需要与国际公约协调、统一之处;另一方面,对此问题还没有学者进行专题研究,国家政策难以获得理论支撑。所以,笔者经导师同意并在导师的指导下,对此问题展开研究。 本研究主要分为三个部分。更多还原

【Abstract】 With the quick development of municipal . modernization and industrialization, the fast increasing of the population in cities and the continuous existence of the unsustainable used-up production mode and consuming society, the quickly increasing amount of hazardous waste in all countries, especially in the western industrialized countries has threatened the survival of the future human being and the progress and prosperity of the whole human society. The international society exerts itself on making the international laws on transboundary movements of hazardous wastes in order to reply the challenge of transboundary movements of hazardous wastes. It has signed a series of conventions, protocols and instruments.The international community promulgated 1987 "Principles and Guidelines on Environmentally Sound Management of Hazardous Wastes" in Cario. It established the basic principles of the transboundary movements of hazardous wastes. 1989 "Basel Convention on the Control of Transboundary movements of hazardous wastes and its Disposal" is the most important convention of transboundary movements of hazardous wastes and it has got the very important functions on the management of the transboundary movements of hazardous wastes.From the view of the region, "Bamaka Convention on the Ban of the Import into Africa and the Control of Transboundary movements of hazardous wastes and Management of Hazardous Waste within Africa (1991)" and "Izmir Protocol on the Prevention and Control the Pollution of the Mediterranean Sea by Transboundary movements of hazardous wastes and its Disposal " and some other conventions and protocols has made the legal systems of Transboundary movements of hazardous wastes more and more perfect.The western industrialized countries have already begun to regulate wastes. The US not only promulgated waste laws on the level of the commonwealth, but also had laws and regulations on the level of the states. Japan, the South Korea, India and Argentina also promulgated many waste laws, policies and regulations.In a word, The legislation and enforcement of the management of transboundary movements of hazardous wastes is becoming the important agenda of the international society and all governments in the world. With the subscription and being into effect of the above international legal instruments, the legal regimes of the transboundary movements of hazardous wastes has set up and been becoming more and more perfect.As a party state of the Basel Convention, China takes an active part in implementing its international obligations. According to the situation of China itself and the status in quo that some developed countries is continuously and crazily transporting the hazardous wastes they produced into China, China has promulgated and amended "Law of the People’ s Republicof China on the Prevention and Control of Environmental Pollution by Solid Waste" respectively in 1995 and 2004. China has also amended the Criminal Law to adapt to the new situations. China has promulgated a large quantity of administrative regulations and department rules. All these strongly kept the foreign hazardous wastes within limits from transporting into China and stick up for China’ s environmental sovereignty.The status in quo of research of the problem of transboundary movements of hazardous wastes in China is not satisfied with the needs of real-life. On the one hand, the national legislation did not sufficiently response to the Basel Convention that China has subscribed and ratified. There are many places that need to harmonize with the international conventions. On the other hand, none of scholars in China specially study on this special topic so that the national policies on transboundary movements of hazardous wastes cannot get the support of the theory. So the author tries to do some research on this problem, with the consent and instruction of the tutor.This study is divided into three parts.First Part is on the background analysis of the origin of transboundary movements of hazardous wastes. It has two chapters. Chapter One introduces the conception of waste and hazardous waste in detail. It also collects the legal definitions of waste and hazardous waste in global conventions, regional agreements, bilateral agreements and national and foreign legislations. All these both circle the scope of this study and try to provide some experiences for China’ s waste legislation. Chapter Two analyzes the international background and cause of formation on transboundary movements of hazardous wastes. It describes the international political background, the international economic background, the international scientific and technical background and the international environment protection background before and after the creation of the Basel Convention, that is in 80s, 90s of 20th century. It also discusses the causes of the creation of transboundary movements of hazardous wastes.Part Two is the keystone of this study. It mainly discusses the general issues of international law that are created by transboundary movements of hazardous wastes. It tries to analyze the relative international conventions on transboundary movements of hazardous wastes, to summarize and conclude the international legal principles, detailed legal systems, which is contained in the legal regime of transboundary movements of hazardous wastes. It also examines the relationship of the legal regime of transboundary movements of hazardous wastes and waste trade. This part has five chapters.Chapter Three particularly introduces the development of international legal systems of transboundary movements of hazardous wastes. The legal systems of transboundary movements of hazardous wastes is not formed in one day, but experienced a process of developing maturating and consummating. Section One introduces the budding period of legal systems of transboundary movements of hazardous wastes. In this period, the international societybegan to pay attention to the hazards to human health and environment by transboundary movements of hazardous wastes. Some bilateral agreements and regional decisions and recommendations began to appear. Among them, "Agreement Between the Government of the United States of America and the Government of Canada Concerning the Transboundary Movement of Hazardous Wastes" and "Agreement of Co-operation between the United States of America and the United Mexican States regarding the Transboundary Shipments of Wastes and Hazardous Substances (1986) " , the decisions and recommendations of the OECD and directives and regulations of the EC or EU on transboundary movements of hazardous wastes are comparatively typical. Section Two analyzes the international legal instruments of the forming period of legal systems of transboundary movements of hazardous wastes. In this period, the Basel Convention as a specialized global framework convention on transboundary movements of hazardous wastes has appeared. The Basel Convention has provided some basic principles and legal systems for transboundary movements ’of hazardous wastes and its disposal. After the Basel Convention, the international society also promulgated several regional conventions and agreements on transboundary movements of hazardous wastes, such as the Baraaka Convention and Izmir Protocol. Section Three introduces the perfect period of legal systems of transboundary movements of hazardous wastes. In this period, legal systems of transboundary movements of hazardous wastes are becoming more and more perfect. The promulgation of "the Basel Protocol on Liability and Compensation for Damage Resulting from the transboundary movements of hazardous wastes and their disposal" is not only the success of the legal systems of transboundary movements of hazardous wastes, but also the perfectness of the legal regime of international responsibility. The Conferences of the Parties to the Basel Convention get across the amendment of "the Basel Ban" . This amendment has important impacts on legal systems of transboundary movements of hazardous wastes. It indicates the strength of the developing countries in international affairs is becoming stronger and stronger. Besides the above things, three additional annex, that is, Annex VII, Annex VJD and Annex DC, "the Basel Declaration on Environmentally Sound Management" and many technical guidelines made by the Technical Working Group are also got across on the Conferences of the Parties to the Basel Convention.Chapter Four disserts the international legal principles that the legal systems of transboundary movements of hazardous wastes should be complied with. These principles include the Principle of State Environmental Sovereignty and Responsibility of Non-damage to foreign environment and global commons, the Principle of International Cooperation, the Precautionary Principle, the Principle of Hazardous Wastes Minimization and the Principle of Proximity of Disposal of Hazardous Wastes. Among them, there are some general principles of international law or the principles of customary international law, which is applied to the legal systems oftransboundary movements of hazardous wastes, such as the Principle of State Environmental Sovereignty and Responsibility of Non-damage to foreign environment and global commons, the Principle of International Cooperation and the Precautionary Principle. There are some own principles of the legal systems of transboundary movements of hazardous wastes, such as the Principle of Hazardous Wastes Minimization and the Principle of Proximity of Disposal of Hazardous Wastes.Chapter Five summarizes and concludes the national and. international legal systems of the transboundary movements of hazardous wastes from the above international conventions, agreements, protocols, decisions and recommendations, directives and so on. These systems include the Identification System of Hazardous Wastes, the Cleaner Production System, the Integrated Management System, the Prior Informed Consent Procedure System, the System of Environmentally Sound Management of Hazardous Wastes, the Hazardous Wastes List System, the Controlling System of Illegal Traffic of Hazardous Wastes and the Controlling System of Special Area.These systems are in favor of prevention and decrease of the transboundary movements of hazardous wastes. The Identification System of Hazardous Wastes can help to identify wastes and hazardous wastes. The Cleaner Production System will result in minimum of hazardous wastes and alleviate the toxicity. The Integrated Management System requires the regulating departments regulate hazardous wastes from the cradle to the grave. The Prior Informed Consent Procedure System respects the sovereignty of the import states. The System of Environmentally Sound Management of Hazardous Wastes requires the disposal of hazardous wastes properly. The Hazardous Wastes List System may easily identify hazardous wastes and it will make it easy to establish an standard. The Controlling System of Illegal Traffic of Hazardous Wastes and the Controlling System of Special Area both hope to fight against the illegal traffic of hazardous wastes through international cooperation in order to protect environment and human health.Chapter Six discusses the international system of responsibility and compensation for damage resulting from the transboundary movements of hazardous wastes. Section One introduces the international liability system. Section Two discusses the system of the international civil responsibility, including the system of fault responsibility and compensation and the system of strict responsibility and compensation. Section Three supplies the environmental liability insurance system of the transboundary movements of hazardous wastes. Section Five analyzes the environmental fund system. The author wants to provide a binding system of responsibility and compensation for the transboundary movements of hazardous wastes according to the above analysis.Chapter Seven probe into the relationship between the transboundary movements of hazardous wastes and waste trade. The author tries to distinguish the transboundary movements of hazardous wastes with waste tradeso that some countries do the business of transboundary movements of hazardous wastes in the name of waste trade. The author hopes to differentiate the green waste of trade objects, which can freely trade, from the hazardous wastes, which transboundary movements need to regulate and control, and even ban.Part Three is the last one. The author wants to provide some suggestions for China’ s waste management legislation and the policies of transboundary movements of hazardous wastes according to the study on the international legal regime of the transboundary movements of hazardous wastes.Chapter Eight tries to give some advices and suggestions on perfecting China’ s Legal Regimes of Controlling the transboundary movements of hazardous wastes. Section One simply introduces Legal Practice of the transboundary movements of hazardous wastes in China, including legislative practice, executive practice and judicatory practice of the transboundary movements of hazardous wastes in China. Section Two introduces the legal systems of the transboundary movements of hazardous wastes which are. promulgated in Chinese waste laws and regulations. Section Three brings out the limitation of the transboundary movements of hazardous wastes in China. It includes that the solid waste law is not harmony and amalgamation enough with the solid waste law, limitation of the solid waste law and unconnected with the Basel Convention. Section Four tries to brings out some advices and suggestions on Chinese legal system of the transboundary movements of hazardous wastes. The author provides his own suggestions on the creation of China’ s transboundary movements of hazardous wastes on the basis of analyzing the legislation, practice and management of the transboundary movements of hazardous wastes in China.Last is a simple review and conclusion for the whole study.更多还原