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BRILL LAW 2 (2018) 165-194
NIJIHOFF brill.com/cjel
Addressing Coastal Wetland Decline in China's Yellow Sea
Evan HAMMAN
Lecturer, Queensland University of Technology, School of Law, Brisbane, Australia
Abstract
This article provides an analysis of the environmental challenges presented by coastal development on the Chinese coast of the Yellow Sea, and, in particular, its effect on migratory shorebirds. It reflects on the rate of coastal development in China and its impact on intertidal wetlands, including what is being done, from a legal perspective, to address the declines. Existing regulatory measures are examined and it is argued that strategic environmental assessment needs to be given greater attention by the Chinese authorities. In addition, principles of conservation such as participatory man- agement need to be fully embraced to empower local communities to restore degraded sites, monitor birdlife, and, where necessary, challenge inappropriate development activities through the courts. These initiatives, coupled with the eventual enactment of a new national wetland law in China, should strengthen the response to the threats and help arrest some of the declines in shorebird populations.
Keywords
China - coastal wetlands -Yellow Sea - migratory shorebirds -wetlands legislation
I Introduction
With the possible exception of climate change, the polar regions, and the deep-sea bed, few other areas of environmental governance rely as heav- ily on transboundary cooperation as the conservation of migratory species.
Birds, sharks, whales and turtles, do not recognise jurisdictional boundaries
in their quest for food and breeding sites. Accordingly, their effective conser- vation necessitates regional and transnational approaches to governance that cross jurisdictional boundaries. Several international instruments already provide legal protection for migratory birds, such as the Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention or cMs) and the targeted agreements under that Convention,' as well as bilat- eral arrangements such as the Convention between the United Kingdom and the United States for the Protection of Migratory Birds;2 the African Eurasian Migratory Waterbird Agreement;3 the China-Australia Migratory Bird Agreement;4 the Japan-Australia Migratory Bird Agreement;5 the Korea- Australia Migratory Bird Agreement6 and the Agreement on the Conservation of Albatrosses and Petrels.7 Multi-stakeholder partnerships, though not with the force of international law, have also been developed such as the East Asian- Australasian Flyway (EAAF) Partnership.8
i Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June
1979, entered into force i November 1983) 1651 UNTS 333 (Bonn Convention).
2 Convention between the United Kingdom and the United States for the Protection of Migratory Birds in Canada and the United States (adopted 16 August 1916, entered into force 6 December 1916) 1986 CTS 36.
3 Agreement on the Conservation of African-Eurasian Migratory Waterbirds (adopted 16June 195, entered into force iNovember 1999) 2365 UNTS 251 (AEWA). For a comprehensive appraisal of AEWA, see Melissa LEWIS, 'AEWA at Twenty: An Appraisal of the African- Eurasian Waterbird Agreement and its unique place in International Environmental Law'
(2016) 19(1) Journal of International Wildlife Law and Policy 22.
4 Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment (adopted
20 October 1986, entered into force 1 September 1988) 22 ATS 1988.
5 Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and their Environment (adopted
6 February 1974, entered into force 3o April 1981) 6 ATS 1981.
6 Agreement Between the Government of Australia and the Government of The Republic of Korea on the Protection of Migratory Birds (Entry Into Force, 13 July 2007) [2007] ATS 24.
7 Agreement on the Conservation of Albatrosses and Petrels (adopted 19 June 2001, entered into force 1 February 2004) 2258 UNTS 257.
8 It should be noted, however, that not all nations are parties to treaties such as the Bonn Convention, nor for that matter, do contracting parties fully implement all of their obli- gations. Moreover, strict protection under the cMs is limited to only a very small number of bird species that rely on coastal protection. See for example, Convention on Migratory Species, Draft Resolution on Promoting Conservation of Critical Intertidal and other Coastal Habitats for Migratory Species (14June 2017) UN Doc UNEP/CMS /C OP12/Doc.244.1o, annex 1.
This article focuses on the decline of migratory shorebird9 habitat in China's Yellow Sea and how this might be addressed from a legal perspective.10 Though these issues have been known about for decades,n recent scientific research has caused greater international concern over loss of wetlands in the Yellow Sea region, including analysis of the major causes of the declines.12 The 2015
Conference of the Parties (cop) to the Bonn Convention, for example, high- lighted broader concerns about loss of coastal habitats.13 Non-government organisations (NGos) have also documented the impacts along the EAAF, par- ticularly in the Yellow Sea ecoregion.14
While the science is clear, the legal mechanisms needed to ensure more effective conservation practices must go hand in hand. As BARTER notes,
9 Shorebirds are a group of birds which typically gather along intertidal areas or on the out- skirts of wetlands. They generally come under the broader category of 'waterbirds' which also includes ducks, geese, swans, cranes and other species (but which are not considered to be shorebirds). Some shorebird species are migratory, others are not. Of those that rely solely on the Yellow Sea's mudflats, there are six key species, of which two-the Great Knot (Calidris tenuirostris) and the Far Eastern Curlew (Numenius madagascariensis) are in severe decline. See Nicholas J MURRAY et al,'Tracking the Rapid Loss of Tidal Wetlands in the Yellow Sea' (2014) 12(5) Frontiers in Ecology and the Environment 267, 271.
10 The declines have been felt elsewhere in East Asia, not only in China. For example, between the 1970s and 2000, in Japan, the population of shorebirds using tidal mudflats along the East Asian-Australasian Flyway (EAAF) 'decreased drastically See Toshimitus NUKA, Toshifumi MORIYA and Minori KASHIWAGI, 'The Decline of Shorebirds:
40 Year Nationwide Data in Japan' (8th Asian Wetland Symposium, Saga, Japan, 7-11 November 2017).
I1 See Derek A SCOTT, A Directory of Asian Wetlands (International Union of the Conservation of Nature 1989) and David S MELVILLE, 'Threats to waders along the east Asian-Australasian flyway' in Phillip J STRAW (ed), Shorebird conservation in the Asia- Pacific region (Australasian Wader Studies Group 1997) 15.
12 See eg MURRAY et al, 'Tracking the Rapid Loss' (n 9); Nicholas J MURRAY, Zhijun MA and Richard A FULLER, 'Tidal Flats of the Yellow Sea: A Review of Ecosystem Status and Anthropogenic Threats' (2015) 4o Austral Ecology 472; David MELVILLE, Ying CHEN and Zhijun MA, 'Shorebirds Along the Yellow Sea Coast of China Face an Uncertain Future-a Review of Threats' (2015) n16 Emu loo; Ning HUA et al, 'Key Research Issues Concerning the Conservation of Migratory Shorebirds in the Yellow Sea Region' (2015) 25 Bird Conservation International 38; Mark BARTER, Shorebirds of the Yellow Sea:
Importance, Threats and Conservation Status (Wetlands International 2002); and Mark BARTER, 'The Yellow Sea: a Vitally Important Staging Region for Migratory Shorebirds' in Gerard C BOERE, Colin A GALBRAITH and David A STROUD (eds), Waterbirds around the World (The Stationery Office 2oo6) 663.
13 See Convention on Migratory Species, 'Draft Resolution on Promoting Conservation' (n 8).
14 WWF, 'Yellow Sea Ecoregion Support' <http://wwf.panda.org/ >; and see also Paulson Institute,'Blueprint of Coastal Wetland Conservation and Management in China! < http://
www.paulsoninstitute.org/wp-content/uploads/2o16/o8/Wetland-Report-EN-Final.pdf >.
'shorebird conservation status is best measured by the actual extent to which shorebirds and their habitat are being effectively protected by legislation, poli- cies and plans, and the Protected Area system.'15
This article has three main parts. Firstly, an overview of the Yellow Sea is provided, outlining its ecological significance for migratory shorebirds and other species as well as community well-being. This first part also summarises the threats to the Yellow Sea ecosystem, noting the damaging effect of land claims in the intertidal areas.16 Secondly, an overview is provided of the exist- ing regulatory measures for wetland protection in China at the national and provincial levels. It is clear that, to date, these measures have been insufficient to protect the birdlife that rely on the mudflats as staging and/or wading sites.
In the final part of the article, three main arguments are developed, namely:
1 A national wetland law in China needs to be drafted as soon as possi- ble. This law should pay close attention to definitions such as 'wetlands;
'coastal wetlands' and 'development' as well as the coordinating role for China's State Forestry Administration. Clear legislative guidance at the national level should help to avoid conflict between the overlapping pro- tected areas which exist in the intertidal zone;
2 China's environmental impact assessment (EIA) processes need to assess the cumulative impacts of potentially harmful activities across the entire coastal zone-including the impacts on migrating birdlife, waterbirds and other species. Currently, tidal wetlands as a habitat for waterbirds are significantly undervalued, and this requires change if EIA measures are to be effective and balanced;
3 NGos and local communities need to be 'legitimised'17 to undertake restoration work at degraded coastal sites as well as monitor bird
15 See Mark BARTER, Shorebirds of the Yellow Sea (n 12).
16 Land claims are also referred to as 'reclamations.' Reclamations can be defined as 'the practice of converting the shallow intertidal flats into new land.' SeeJohn MACKINNON, YvonneVERKUIL and Nicholas MURRAY, IUCN Situation Analysis on Eastand Southeast Asian Intertidal Habitats, with Particular Reference to the Yellow Sea (International Union for the Conservation of Nature 2012) 13. For an overview of the history and impacts of reclamations in China, see Wei WANG et al, 'Development and Management of Land Reclamation in China' (2014) 102 Ocean and Coastal Management 415.
17 'Legitimisation' here means that non-state actors should be allowed, under the law, to conduct restoration, monitoring and general conservation work. This may require, for example, that community representatives be authorized to enter private or public land to carry out the work, and, where necessary, to interact with birdlife or wetland resources.
The concept of 'legitimacy' of non-state actors in regulatory activities such as monitor- ing and restoration is discussed below. On the way in which a legal framework in China can 'legitimise' public participation in China, see Wanxin LI, Jieyan LIU and Duoduo LI,
populations. This form of 'co-governance' should ideally be supported by other levers of government such as relaxing laws which restrict foreign
NGOS,18 and improving Freedom of Information (Foi) processes.19
2 The Yellow Sea
This part describes the Yellow Sea region, its location and ecological impor- tance and the main stresses and threats that the region faces. Particular attention is given to the decline of coastal wetlands as a habitat for migratory shorebirds but also for other species as well as coastal communities. While there have been declines in other parts of the Yellow Sea region, for exam- ple on the intertidal coastlines of the Republic of Korea and Japan, the vast majority of significant degradation occurs in China.20 Accordingly, the Chinese part of the Yellow Sea is the focus of this article.
2.1 Location and Ecological Significance
The East China Sea forms part of the Pacific Ocean. It lies to the south of the Korean Peninsula and to the west of
Japan.
The Yellow Sea forms part of the East China Sea, and lies north of Shanghai and east of the Chinese prov- inces of Shandong, Jiangsu and Hebei. Industrial development in the coastal regions of China has been considerable. From around the 1820s, the region has been an export hub in China for goods such as food, medicines and ani- mal by-products. It is now recognised as one of the biggest manufacturing and industrial regions in China. To the north of Shandong, Hebei province is the location of the country's largest steel industries. There are also oil and'Getting Their Voices Heard: Three Cases of Public Participation in Environmental Protection in China' (2012) 98 Journal of Environmental Management 65, 67.
18 China has recently sought to restrict the influence of foreign NGos through the 'Law on the Management of Overseas NGOs' Activities in Mainland China' adopted at the 20th Meeting of the 12th Standing Committee of the National People's Congress (28 April2016), entered into force 1January 2017. For an evaluation of this law, see Xijin JIA, 'Analysis on the Effect of China's Overseas NGO Law under the Differences in Legal Thinking' (2017)
9(1) The China Nonprofit Review 23.
19 On freedom of information in China, see Rick SNELL and Weibing XIAO 'Freedom of Information Returns to China' (2007) Public Administration Today 44, 47.
20 See the figures on the intertidal flat areas lost in key areas in East Asia in MACKINNON, VERKUIL and MURRAY (n 16) 15.
petroleum reserves, and places like Shandong have some of the highest levels of fossil fuel development in China.21
The Yellow Sea is an area of global ecological significance. BirdLife International has declared the Yellow Sea-Bohai region as an internationally Important Bird and Biodiversity Area (IBA) 22 and, in 1997, WWF declared it as one of only 200 Global Ecoregions (the 'Global 200').23 More recently, both the Republic of Korea (South Korea) and China have included parts of the Yellow Sea and Bohai Gulf on their tentative lists of World Heritage.24
The principal coastal ecosystems of the Yellow Sea-Bohai region are its tidal mudflats-some of the largest in the world.25 The Wadden Sea is the only one comparable to the Yellow Sea in terms of the extent of its temperate tidal mudflats.26 The mudflats of the Yellow Sea are of vital importance for bird- life, especially migratory shorebirds, over 2 million of which rely on the area for resting and 'refuelling' in their longjourneys across continents.27 There are several key shorebird areas in the Yellow Sea-Bohai Sea area and as many as
'50-100%' of birds use these areas during their migrations from places such as Australia and New Zealand.28 In China, these areas include the mudflats of the Jiangsu/Shanghai Coast, Laizhou Bay, Bohai Bay, Liaodong Bay, and Yalu Jiang Estuary. There are also important sites in North Korea and on the Yellow Sea coast of South Korea, though China's coast is where most of the sen- sitive mudflats are located, and, as indicated above, where most of the current environmental impacts occur
21 For current examples of Shandong projects, see Sylvie CORNOT-GANDOLPHE,'China's Coal Market: Can Beijing Tame "King Coal"?' (Oxford Institute for Energy Studies 2014) 33, 37-38.
22 BirdLife International, ImportantBird and Biodiversity Areas: A global networkfor conserv- ing nature and benefiting people (BirdLife International, 2014) < datazone.birdlife.org/
userfiles/file/IBAs/pubs/SOWIBAs2o14.pdf >.
23 David OLSON and Eric DINERSTEIN, 'The Global 2oo: Priority Ecoregions for Global Conservation' (2002) 89(2) Annals of the Missouri Botanical Garden 199, 204.
24 South Korea added parts of the Yellow Sea to its tentative list ofWorld Heritage in January 2010 and China to its list in February 2017. See UNESCO, 'Southwestern Coast Tidal Flats' (nd) <http://whc.unesco.org/en/tentativelists/5482/ >; and UNESCO, 'The Coast of the Bohai Gulf and the Yellow Sea of China' (nd) < whc.unesco.org/en/tentativelists/6189/ >.
25 MURRAY, MA and FULLER,'Tidal Flats of the Yellow Sea' (n 12) 474.
26 See Chul-Hwan KOH and Victor DE JONGE, 'Stopping the Disastrous Embankments of Coastal Wetlands by Implementing Effective Management Principles: Yellow Sea and Korea Compared to the EuropeanWadden Sea' (2014) 102 Ocean and Coastal Management 607.
27 BARTER, 'The Yellow Sea' (n 12).
28 MACKINNON, VERKUIL and MURRAY (n 16) 8.
The southern areas of the Yellow Sea provide temporary stopover sites for shorebirds 'in poor condition' while the northern sites of the Yellow Sea pro- vide critical sites for the entire population.29 Aside from the birdlife (some migratory, some not) the region also provides crucial habitat for marine bio- diversity such as sea turtles, seals, fisheries, dolphins and invertebrates.3 0 It is also of paramount importance to local communities, as detailed below.
2.2 Economic and Cultural Significance
The Yellow Sea is integral to the health and well-being of China's coastal com- munities. More than 6oo million people live on the Yellow Sea coast, and the provinces of Shandong, Jiangsu and Hebei are hosts to considerable economic growth.31 Most of the coastal communities rely on the abundant natural resources of the mudflats for their daily lives. Intertidal fisheries and shellfish- eries are particularly popular. Approximately 12 million Chinese people engage in marine fishing, with about 70% of the fishing 'realized in the coastal zone.'32 More broadly, the habitats of intertidal areas are amongst the most'productive on earth; being valued at over US$14 trillion dollars.3 3
The Yellow Sea's coastal wetlands also provide cultural services to the broader population in China, particularly through recreation and tourism.3 4 Several sites are very popular with Chinese visitors. For example, there is a large biosphere reserve located at Yancheng in Jiangsu Province.35 The Yancheng reserve (which is also a Ramsar site) was established in 1992 under
UNES CO's 'Man and Biosphere Program'; it welcomes over 20,000 tourists every year. Most of the visitors come to see the iconic Japanese Red-Crowned Crane (GrusJaponensis), about half of the population of which spends its winters in Yancheng.3 6
29 Zhijun MA et al, 'Differentiating between Stopover and Staging Sites: Functions of the Southern and Northern Yellow Sea for Long-Distance Migratory Shorebirds' (2013) 44(5) Journal of Avian Biology 504, 510.
30 MACKINNON, VERKUIL and MURRAY (n 16) 1.
31 HUAetal(n12)41.
32 MACKINNON, VERKUIL and MURRAY (n 16) 4.
33 Ibid 5.
34 See, for example, Qiongfang MA et al, 'Wetland Protection in Beijing, China; the Importance of Legislation' (2015) 23(6) Wetlands Ecology and Management 1oo5, ioo6.
35 For an overview of Yancheng National Nature Reserve, and an analysis of coastal wet- land change therein, see Chang-Qing KE et al,'Analysing Coastal Wetland Change in the Yancheng National Nature Reserve, China' (2011) n1 Reg Environ Change 161.
36 See UNESCO, 'Biosphere Reserves database, Yancheng' < http://www.unesco.org/mabdb/
br/brdir/directory/biores.asp?code=CPR+o9&mode=all >.
2.3 Pressures and Threats
The coastal wetlands of the Yellow Sea have degraded dramatically over the last fifty years.3 7 The threats have tended to be more severe along the coast than for inland sites in China. Some regions are under greater pressure than others.38 In 2014, researchers used remote sensing (satellite) data to show that the total loss equated to about two thirds of their original size.39 Over the last three decades, there have been 'mean losses of 35% of intertidal habitat area across the six key areas of the Yellow Sea.'4 0 In terms of migratory shore- birds that use the EAAF, the loss of wetland habitat has been 'greater than any other flyway in the world.'41 The reclaiming of land through dumping of dredged seabed has been the major contributor to habitat loss. The reclaimed land has been used for a variety of purposes, from salt panning to aquaculture, and more recently for urban areas and port development.4 2 Most of the activ- ity has been driven by provincial governments with poorly implemented or non-existent EIA processes. On other occasions, land claims have been under- taken illegally as well.4 3
The rate of unchecked development along the Yellow Sea coast is not a new phenomenon. The existence of 'coastal engineering' projects date back to the 1950s.44 In the city of Nantong, for instance, where the Yangtze River meets the sea, almost 40,ooo hectares of new land has been created.4 5 The effect of claims like this has significantly 'altered the patterns of current [and]
37 See People's Republic of China, 'National Report on the Implementation of the Ramsar Convention on Wetlands' 19 (submitted to Ramsar coP 12 in Uruguay 2015) < ramsar.org/
sites/default/files/documents/2o14/national-reports/COP12/cop12_nr china.pdf >.
38 For an overview of the health of wetland reserves in China, including coastal wetlands, see Yaomin ZHENG et al, 'Protection Efficacy of National Wetland Reserves in China'
(2012) 57(10) China Science Bulletin m116.
39 MURRAY et al, 'Tracking the Rapid Loss' (n 9).
40 MACKINNON, VERKUIL and MURRAY (n 16) ii.
41 Ibid 29. For a full list of species which are 'significantly dependent on coastal wetlands' and have been impacted along the EAAF, see Convention on Migratory Species, 'Draft Resolution on Promoting Conservation of Critical Intertidal and other Coastal Habitats for Migratory Species' (UNEP/CMS/COPl2/Doc.24-4.o, 14 June 2017) annex 1; and BARTER, 'The Yellow Sea' (n 12) 664.
42 KOH and DE JONGE (n 26) 607.
43 For an overview of the threats to the region, see Paulson Institute (n 14).
44 WWF, 'The Comprehensive Report of the Yellow Sea Ecoregion Support Project 2007- 2014' 34 <https://www.wwf.or.jp/activities/data/WWFYSESPreport2ol4.pdf >.
45 IUCN, 'Yellow Sea, Moving Towards Marine Eco-civilization: A Field Visit to Nantong Municipality, China' (7 June 2016) < https://www.iucn.org/news/china/2o16o6/yellow- sea-moving-towards-marine-eco-civilization-field-visit-nantong-municipality-china >.
sediment transport and caused coastal erosion.'46 The full detail of the impacts on shorebird numbers is still uncertain, with data on the distribution of many species not readily available.4 7 However, it is reasonably well recorded that populations of certain migratory shorebird species-like the Far Eastern Curlew (Numenius madagascariensis) -have decreased considerably, causing some countries, including Australia, to list the bird as 'critically endangered' under domestic law.48 In addition to the birdlife, the rapid rate of development in the Yellow Sea also presents challenges for local communities that rely on tidal areas for their daily subsistence.49
In addition to land claims, there are several other human activities which threaten the ecological values of the sea, including: plastics litter;5 0 overfishing;51 eutrophication (caused by overuse of fertilizers in farming);52 damning of major rivers;53 pollution from heavy industry, and intensive aqua- culture projects.54 Combined, these activities pose major threats to the health of the Yellow Sea and its intertidal mudflats, and the species that rely on them.
It seems clear that existing regulatory measures have been insufficient to address these concerns. Accordingly, new and effective responses are urgently required. The next section covers the existing regulatory approaches of the Chinese government to protection of the coastal wetlands.
46 See UNDP/GEF YSLME Project, 'Reducing Environmental Stress in The Yellow Sea Large Marine Ecosystem' <http://www.neaspec.org/sites/default/files/Session2_YSLMEShin_
o.pdf >.
47 Chris HASSELL et al,'Red Knot Calidris Canutus: Subspecies and Migration in the East Asian-Australasian Flyway: Where Do All the Red Knot Go? (2011) 16 Birding Asia 89.
48 Australian Government, Department of Environment and Energy, 'EPBC Act List of Threatened Fauna' < https://www.environment.gov.au/cgi-bin/sprat/public/publicthreat enedlist.pl >.
49 See egYing CHEN et al,'Land Claim and Loss of Tidal Flats in the Yangtze Estuary' (2016) 6 (24018) Scientific Reports 1.
50 MACKINNON, VERKUIL and MURRAY (n 16) 12.
51 Zhijun D ONG, Dongyan LIU andJohn K KEESING, 'Jellyfish Blooms in China: Dominant Species, Causes and Consequences' (2010) 6o Marine Pollution Bulletin 954.
52 Dongyan LIU et al, 'The World's Largest Macroalgal Bloom in the Yellow Sea, China:
Formation and Implications' (2013) 129 Estuarine, Coastal and Shelf Science 2.
53 HUAetal(n12) 47.
54 See the discussion in MACKINNON, VERKUIL and MURRAY (n 16) 12. See also HUA et al (n 12) 46-47.
3 Existing Regulatory Measures 3.1 Environmental Impact Assessment
EIA has been implemented in China since the 1970s. Yet, China's practices have been criticized, primarily due to weak level of monitoring and enforcement.5 5 In recent years, the Chinese Government has updated its national EIA Law (in force since 2003) and its approach to impact assessment more generally.56 These efforts have focussed on improving 'actual' public participation in assess- ment processes including consulting on the location of proposed projects.5 7
In the coastal areas of the Yellow Sea, the practice of EIA is of critical rele- vance. As noted above, the primary threat to migratory shorebird habitat exists in the form of new developments. These proposals have largely been driven by local governments with little to no consideration for mitigating environmental impacts on wetlands.58 These are not necessarily new concerns, but are largely attributed to a lack of effective wetland assessment practices. Almost fifteen years ago, for instance, Mark BARTER noted that 'no effective EIA has been made on wetlands in China because of the lack of a unified and scientifically based wetland assessment system.'59
However, the available data appears to be improving. Chinese scholars have sought to establish better ways of recording changes in wetland areas, including creating a remote-sensing monitoring and assessment system.60 The system is said to provide a mechanism for generating a basic data source for moni- toring and assessing China's wetlands.61 Other researchers have used satellite technology to track the loss of wetlands along the Yellow Sea-Bohai region.62 Detailed 'wetland maps' have been created based on remotely sensed data which has helped to lay 'the foundations for assessment of the effectiveness
55 See Ren XIN, 'Implementation of Environmental Impact Assessment in China' (2013) 15(3) Journal of Environmental Assessment Policy and Management 1.
56 China Development Brief, 'Amendment Passed to China's Environmental Impact Assessment Law' (21 July 2016) < www.chinadevelopmentbrief.cn/news/amendment- passed-to-chinas-environmental-impact-assessment-law/ >.
57 Shekun WANG, 'Review of the Legislation on Public Participation in EIA in China:
From Disorder to Normalization" in Hideki KITAGAWA (ed), Environmental Policy and Governance in China (Springer 2017) 145-158.
58 WANG et al (n 16) 419.
59 BARTER, Shorebirds of the Yellow Sea (n 12).
6o Rui FENG et al, 'Design and Implementation of Remote-sensing Monitoring and Assessment System of Wetland in Northeast China' (Fourth International Conference on Genetic and Evolutionary Computing, 2010).
6' Ibid.
62 See, for example, MURRAY et al, 'Tracking the Rapid Loss' (n 12).
of wetland protection at the national level.'6 3 Together, these advances are filling a data deficit and are key to informing more effective decision-making processes.64
Despite other claims that EIA in China is 'technically acceptable,'65 concerns still exist that the process can be 'easily circumvented' by shrewd developers and that the entire process lacks 'impartiality and rigour.'66 A bias in favour of development appears as a constant source of tension with 'realistic envi- ronmental costs [often] not included in cost-benefit analyses.'6 7 This in itself reflects a lack of effective measures for valuing wetlands and the ecosystem services they provide.68 Accordingly, even where coastal wetlands are consid- ered in EIA, construction and economic growth are routinely placed above environmental considerations, with rushed assessments or instances without any EIA approval at all.69
3.2 ProtectedAreas
Over the last three decades, China has developed a relatively complex 'hierar- chical'70 system of reserves, national parks and other protected areas. Given that there is currently no national statute on the protection of wetlands, these areas have been established through regulations.71 China's protected areas network is divided into several categories including: National Nature Reserves
(NNRs), Provincial Nature Reserves, Municipal Nature Reserves and County
63 ZHENG et al (n 38) 1117.
64 On a positive note, aNational WetlandResources Inventory (the NWRI) has been conducted twice in China; 1995-2003 and 2009-2013 and involved some 22,ooo forestry professionals.
The NWRI measures changes in both China's inland and coastal wetlands and could play a pivotal role in supporting future EIA processes along the coast. See PRC, Report under the Ramsar Convention (n 37). See also Weiqing MENG et al, 'Status of Wetlands in China:
A Review of Extent, Degradation, Issues and Recommendations for Improvement' (2017)
146 Ocean and Coastal Management 50, 51.
65 XIN (n 56).
66 MACKINNON, VERKUIL and MURRAY (n 16) 25.
67 Ibid.
68 The value of ecosystems is often referred to as 'natural capital.' See Robert COSTANZA et al, 'The Value of the World's Ecosystem Services and Natural Capital' (1997) 387 Nature 253.
69 Xiao ZHU et al, 'Regional Restrictions on Environmental Impact Assessment Approval in China: The Legitimacy of Environmental Authoritarianism' (2015) 92 Journal of Cleaner Production too.
70 PRC, Report under the Ramsar Convention (n 37) 7.
71 For an overview of the protected areas initiatives relating to wetlands in China, including discussion of their development, see ibid 7-10.
Nature Reserves.7 2 China currently has 57 Ramsar sites, most of which are inland. Nomination for Ramsar sites in China can only occur where the wetland is first listed as a NNR or wetland park (discussed below).7 3 This is problematic, as some wetlands which might qualify for Ramsar status such as the Rudong and Dongtai shoals (Jiangsu province) are not included on national or provin- cial lists of important wetlands.74 At the national level, NNRs are approved by the State Council and there are currently over 450 across China.7 5 Inland wet- lands and coastal ecosystems are distinct categories of NNRs. Of these, inland wetlands contribute the highest percentage (just over 20%) to the total NNR
area in China.76 The purpose of NNRs is to protect areas of environmental sig- nificance, and, accordingly, community education and tourism activities are said to be tightly controlled.7 7
Apart from NNRs, China has other forms of protected areas related to wet- lands, including National Forest Parks and National Wetland Parks.78 National Wetland Parks were introduced in 2000 and are administered under the 2013
Regulations on the Protection and Management of Wetlands. There are report- edly over 200 wetland parks in China, but as WANG and colleagues point out, most of the parks are 'either under construction or are so-called "paper parks,"
which exist only in writing.'79 On the whole, it seems that wetland parks have not been well-studied in China, with the possible exception of Xixi National Wetland Park-China's first, declared in 2005, located in Hangzhou, a city southwest of Shanghai.8 0 The purpose of wetland parks like Xixi differs from
NNRs in one key respect: whereas education, tourism and leisure are all
72 Ziliang GUO and Guofa CUI, 'Establishment of Nature Reserves in Administrative Regions of Mainland China' (2015) 10(3) PLoS One 1.
73 PRC, Report under the Ramsar Convention (n 37) 38.
74 China Dialogue, 'Will China's New Wetlands Protection Rules be Adequate?' (25 May 2017) < chinadialogue.net/article/show/single/en/9814-Will-China-s-new-wetlands-pro tection-rules-be-adequate- >.
75 GUO and CUI (n 72).
76 Ibid.
77 Guangyu WANG et al, 'National Park Development in China: Conservation or Com- mercialization?' (2012) 41(3) AMBIO 247.
78 Ibid.
79 Ibid.
80 See, for example: Yu-Feng LA et al, 'Characteristics of Temporal and Spatial Distribution of Water Quality in Urban Wetland of the Xixi National Wetland Park, China' (2010) 31(9) Chinese Journal of Environmental Science 2036; and Yi-Liang GAO, 'The Practices and Improvements of the Xixi National Wetland Park Model, Hangzhou' (2oo6) 2(1) Wetland Science & Management 55.
encouraged in wetland parks, NNRs are mainly intended for conservation and scientific purposes.81
At the provincial level, governments are also playing an important role in the protected areas framework. At the time of writing, there were over one hundred 'provincial wetland reserves,' including in Yunnan, Jiangsu, Liaoning, Shandong and Fujian. WANG and colleagues estimate that just over half of China's 34 provinces have passed some form of local regulations for wetland protection.8 2 The provinces most relevant to the protection of tidal areas and shorebird habitat in the Yellow Sea are: Hebei; Shandong;Jiangsu and Liaoning.
Of the four, Hebei has the most comprehensive regulations, possibly driven by the fact that it is the location of Baiyangdian, one of the largest natural lakes in China.
While the establishment of a 'massive network of [protected] wetlands'8 3 is indeed a positive development, effective protection will be difficult to enforce without a national wetland law and guidance from the national government.84 One of the problems with having both provincial and national rules is that key terminology can conflict. For example, as LIN and CHEN point out, the definition of 'wetland' in the national regulations 'conflicts with the defini- tions in at least four provincial regulations on wetland protection.8 5 Moreover, despite the increase of NNRs and Provincial Nature Reserves along the Yellow Sea coast, there are still several biodiversity areas that receive no legal pro- tection. For instance, intertidal habitats for shorebirds adjacent to the cities of Yingkou (Liaoning Province), Rudong (Jiangsu Province), and Ningbo (Zhejiang Province) remain unprotected.86 Together, these areas host close to 50,000 waterbirds between them, and are so statistically significant in terms of birdlife numbers that they could fulfil the criteria for Ramsar status.87
81 See Lili PAN, Lijuan CUI, and Ming WU,'Tourist Behaviors in Wetland Park: A Preliminary Study in Xixi National Wetland Park, Hangzhou, China' (2010) 201(1) Chinese Geographical Science 66.
82 Zongming WANG et al, 'China's Wetlands: Conservation Plans and Policy Impacts' (2012)
41(7) AMBIO 782.
83 ZHENG et al (n 38) n116.
84 WANG et al (n 82).
85 Yanmei LIN and Yue CHEN, 'China's New National Rules on Wetland Protection' (2014) 5 IUCN AEL E-Journal 117, 124.
86 Wetlands International, 'Yellow Sea-Bohai Sea Region Coordinated Waterbirds Survey 2016' 11 < http://www.wetwonder.org/UpFilePath/2o161o568296L7.pdf >.
87 Ibid.
3.3 National Wetland Conservation Program (2004-2030)
In the early 2000S the Chinese government established a National Wetland Conservation Program 2004-2030 (NWCP).8 8 The NWCP, which was described as 'ambitious,' sought, amongst other things, to proactively 'rehabilitate habi- tats for waterbirds of international importance.'8 9 The program has laid the foundations for an additional 713 wetland reserves to be added and had a goal to ensure the effective protection by 2030 of 'more than 90% of natural wetlands.'9 0 However, this goal does not relate specifically to coastal wetlands.
The introduction of the NWCP was supported by a notice issued by the State Council seeking to 'strengthen the management of wetland protection' and requiring that the 'conversion of natural wetlands be 'strictly controlled.'91 The
NWCP has more recently been complemented by the National Government's 13th Five Year Plan (2016-2020) which also mentions the restoration of wet- lands, although the focus tends to be on the inland lakes of Hebei province such as Baiyangdian rather than on coastal and tidal areas.92 This focus seemed to shift from the 12th Five Year Plan (2011-2015) which concentrated on coastal wetlands as an area of concern.9 3
To date, the outcomes of the NWCP have been mixed. The program has been hampered, for instance, by a lack of a national legislative framework and increased decentralisation in decision-making. Moreover, as WANG et al point out, the NWCP has been compromised 'by rapid urbanization [and] excessive land reclamation' as well as a'preference of constructed wetland parks to pres- ervation of natural wetlands.'9 4 The construction of artificial sites is a serious concern of the scientific community. MA and colleagues, for example, ques- tion whether shorebirds will actually survive in these new man-made areas.9 5 There are numerous studies to suggest that birds will not move elsewhere following destruction of traditional sites.9 6 The problem is specific to cer- tain species of birdlife. As HUA and colleagues point out, 'artificial wetlands cannot completely substitute for natural wetlands [specialist birds] that rely
88 LIN and CHEN (n 85).
89 WANG et al (n 82).
90 Ibid 783.
91 Qiongfang MA et al (n 34) 1009-1010.
92 Central Committee of the Communist Party of China, 'The 13th Five-Year Plan for Economic and Social Development of the People's Republic of China 2016-2020,' Chapter 38, section 4.
93 See PRC, Report under the Ramsar Convention (n 37) 31.
94 WANG et al (n 82).
95 Emerging research is looking at this issue. See, for instance, Zhijun MA et al, 'Waterbird Population Changes in the Wetlands at Chongming Dongtan in the Yangtze River Estuary, China' (2009) 43(6) Environmental Management 1187.
96 Ibid 16.
exclusively on intertidal wetlands, as foraging habitats are more likely to suffer from the loss of intertidal wetlands than habitat generalists.'97
3.4 Management Rules on Wetland Protection (2013)
In 2013, China's State Forestry Administration promulgated the Manage- ment Rules on Wetland Protection.9 8 Among other things, the Wetland Rules prescribe measures for increased public participation in China's wetlands.99 Unfortunately, the Wetland Rules do not have the force of law in China and only provide administrative guidance about wetland restoration, use and conservation.100 The Wetland Rules lack a comprehensive monitor- ing and enforcement regime that only legislation has the ability to provide.
Nonetheless, the Wetland Rules do allow provincial governments to develop plans for wetland conservation within their jurisdictional areas.101 There is, however, no indication that provincial plans need to be connected or indeed consistent across other sites in China or indeed the Yellow Sea coastal region.
In the absence of a national wetland law, China is left to rely on the intersec- tion of other vaguely related laws such as the Forest Law of 1998, the Land Administration Law of 2004, and the Regulation of Nature Reserves of 1994.102 3.5 World Heritage Recognition (2017)
In February 2017, China included the 'Coast of the Bohai Gulf and the Yellow Sea' on its Tentative List for inclusion as aWorld Heritage site. The Tentative List is an indication of a country's intention to list sites under the World Heritage Convention.103 China's entry for the Yellow Sea argued strongly for the protec- tion of shorebirdS.104 It emphasized that the nominated areas contained 'the largest mudflat in the world and the most extensive alluvial plain delta in [a]
97 HUA et al (n 12) 44.
98 State Forestry Administration (China), Decree No. 32, Management Rules on Wetland Protection (promulgated in 2013).
99 Ibid art 6.
1oo LIN and CHEN (n 85)122.
101 LIN and CHEN (n 85).
102 See further REN Shidan 'Protected areas law' in QIN Tianbao (ed.) Research Handbook on Chinese EnvironmentalLaw, Edward Elgar 2015, 296; see also Yasunori HANAMATSU, 'National Boundaries and the Fragmentation of Governance Systems: Amur-Okhotsk Ecosystem from the Legal and Political Perspective' in Makoto TANIGUCHI and Takayuki SHIRAIWA (eds) The Dilemma of Boundaries: Toward a New Concept of Catchment (Springer 2012) 123,137.
103 UNESCO, 'The Operational Guidelines for the Implementation of the World Heritage Convention (2016)' < https://whc.unesco.org/en/guidelines/ > para 70.
104 UNESCO,'The Coast of the Bohai Gulf and the Yellow Sea of China' < whc.unesco.org/en/
tentativelists/6189/ >.
temperate zone.'1os At the time of writing, South Korea has also proposed parts of the Yellow Sea region on its tentative list.106 China has argued its proposal is superior to South Korea's in several ways:
Compared with the coast of the Bohai Gulf and the Yellow Sea of China, the Korean coast lacks great rivers such as the Yellow River and the con- sequent vast continuous mudflats. Scattered mudflats, islands and bays surrounded by hills constitute another type of scenery on the Korean side. The Bohai Gulf-Yellow Sea coast in China support more endangered species than the Korean side.10 7
Competition between South Korea and China concerning the World Heritage Convention-a treaty rife with politicisation 0 8-is one thing, but what is desperately needed is improved cooperation and collaborative transboundary governance around the issues. There is an option, for example, that the sea be included as a transboundary World Heritage site with governance shared by both nations.109 There are some precedents of transboundary World Heritage in marine areas, including the Wadden Sea (shared by Denmark, Germany and the Netherlands), in relation to which a trilateral cooperation framework provides for 'integrated conservation and management of the property as a whole.10 One avenue would be the nomination of the Yellow Sea as a jointly- managed World Heritage property on the basis of the importance of that marine region.n1 As a recent report concluded, 'The birds and habitats of the East Asian-Australasian Flyway (EAAF) are the shared natural heritage of
105 Ibid.
io6 UNESCO, 'Southwestern Coast Tidal Flats' < whc.unesco.org/en/tentativelists/5482/ >.
107 UNESCO, 'The Coast of the Bohai Gulf and the Yellow Sea of China' (nd) <http://whc .unesco.org/en/tentativelists/6189 >.
io8 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 23 November 1972, entered into force 15 December 1975) 1037 UNTS 151. See Elizabeth KEOUGH,'Heritage in Peril: A Critique of UNESCO's World Heritage Program' (2011) 10(3) Washington University Global Studies Law Review 593; and Lynn MESKELL, 'UNESCO's World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation' (2013) 54(4) Current Anthropology 483.
109 Although the possibility of transboundary World Heritage sites was not mentioned in the text of the original Convention, the 'Operational Guidelines' under the Convention allow for the inscription of transboundary properties. See UNESCO, 'Operational Guidelines for the Implementation of the World Heritage Convention' chapter iii.c (paras 134-136)
< https://whc.unesco.org/en/guidelines/ >.
110 UNESCo, 'Wadden Sea'<http://whc.unesco.org/en/list/1314>
11i World Heritage Convention (n 1o8).
22 countries. Many of the steps that need to be taken to secure this resource in the long term will require international cooperation.'112
4 Possible Ways Forward 4.1 National Wetland Law
There have been calls for China to adopt a national wetland law since at least
2003.113 The lack of a national law dealing specifically with wetlands, includ- ing coastal wetlands, remains problematic. 114 It means that the Government is devoid of a clear mandate for controlling and protecting the unique values of wetlands across China (as opposed to considering them under 'the envi- ronment' more generally). It also means that there is no firm set of rules for the conservation and use of wetlands across the nation. For instance, there is no rule requiring specific consideration to define competence among national and local governments,115 so that the principle of 'integrated basin manage- ment'116 remains mainly aspirational.
The Chinese Government's own analysis points to its lack of a 'long term mechanism for wetland conservation.'1 1 7 These points have been raised in the past by commentators:
Currently China has a number of laws which touch upon wetland and resource protection. These include the Environmental Protection Law, the Law on the Prevention and Control of Water Pollution, the Law on Maritime Environmental Protection and the Regulations Concerning Nature Reserves. However, ... there [are] many remaining problems which the existing laws [do not] cover, such as ecological protection, unified management concepts, the coordination of work and the juris- diction over wetlands.118
112 MACKINNON, VERKUIL and MURRAY (n 16) ii.
113 China.org.cn, 'Provinces Join Hands in Yangtze River Conservation' (22 October 2003)
< china.org.cn/english/2003/Oct/78035.htm >.
114 See Qiongfang MA et al (n 34).
115 See ibid 1007.
116 ZHENG et al (n 38) 1130-1131-
117 PRC, Report under the Ramsar Convention (n 37) 11.
118 DAI Fan, 'Legislation Called for Wetland Protection' (13 March 2oo6) < china.org.cn/eng- lish/2oo6/Mar/161348.htm >.
The US-based Paulson Institute has also highlighted similar concerns with respect to coastal wetlands in China: 'Coastal wetland conservation efforts in China are still confronted with conflicts of multiple institutions and mecha- nisms.... No uniform coordination mechanism has been made available.'1 19
Other researchers have also highlighted the lack of coordination between wetland agencies in China.120 The problem exists on the South Korean side of the Yellow Sea as well, although there are success stories of provincial pro- tected areas cooperation such as the Ramsar site at South Korea's Gomso Bay, which merged successive protected areas and streamlined coordination over the tidal mudflats.121
One of the other problems related to a lack of specific legislation is that references to tidal areas such as those in the Yellow Sea are disguised by inap- propriate legal vernacular and therefore, are devalued in decision-making processes concerning proposed developments. Thus, the status of the wetlands is often only seen, at best, as one of several criteria when making decisions about the project. The Paulson Institute explains this problem succinctly:
'The marshes, mudflats and reed lands in [China's] coastal wetland areas are [often] classed as 'unused' lands, and thus become the targets of encroach- ment in balancing the cultivated land's occupation and supplement, and in supplementing construction lands.'122
Again, these problems also exist on the South Korean side of the Yellow Sea.
As KOH and DE JONGE point out, intertidal areas of the Yellow Sea are clas- sified as 'public waters' under South Korean law, which includes a vast variety of natural areas including 'the sea, sea-shores, state-owned rivers, lakes, and ditches used for public purposes.'12 3
A well-crafted wetland law should address these definitional aspects.
However, the lack of a national law is not in itself wholly determinative of a functioning regulatory system. Other national laws and policies in China should also be used to protect wetland sites and birdlife habitat, including tightening of EIA processes, protected areas frameworks and procedural con- siderations such as access to information and availability of public interest litigation for NGOs and community groups. In the end, however, it is unlikely that China can adequately address the Yellow Sea issues without a national
119 Paulson Institute (n 14) 22.
120 See Jing LEE, 'The Governance of Wetland Ecosystems and the Promotion of Transboundary Water Cooperation: Opportunities Presented by the Ramsar Convention' (2015) 40 Water International 33, 34; and also Qiongfang MA et al (n 34) ioo8.
121 KOH and DE JONGE (n 26) 610.
122 Paulson Institute (n 14) 12.
123 KOH and DE JONGE (n 26) 610.