In the past decades, calls for environmental protection have emerged from different parts of society, from civic action groups to members of the community. In the same regard, these demands are indeed backed up by well-researched studies and well-documented cases and accounts of the adverse implications of environmental abuses and maltreatment. These are eventually heeded by legislative bodies in both local and international scale. Nevertheless, ratification of such laws in pursuit of protecting the environment may not be enough. At this point, enforcement of such laws is as important as its existence and ratification. This task is given to the state. The effective enforcement averts the possibility of these laws as merely ceremonial at the most and be treated as mere suggestions for those who appear to have encountered environmental dilemmas on their normal day-to-day functions. As indicated, the international community has started decades ago to create a standardised set of laws that could be implemented by nations all around the world. Nevertheless, there are certain elements indicating whether these laws are practicable in a universal sense. Certain states and nations may not see it fit to implement certain provision of the law in their local settings. This issue is well seen in the context of the Hong Kong Special Administrative Region (HKSAR). To this end, the primary objective of this paper is to provide a detailed examination of the existing laws in environmental protection and the consequent enforcement of HKSAR on these legislations. The secondary objective is to compare these legal initiatives as well as the effectiveness of enforcement with the legal regime governing in other countries. For the purposes of this thesis, the foreign countries to be regarded will include Australia and the United Kingdom. Moreover, it is also deemed important for this study to address another legal regime in Asia in its pursuit for environmental viability. To this end, the study will also look into the case of China.
II. Background and Concept behind the Statement
Studies focusing on the environment and its protection have constantly been regarded by lawmakers and politicians in both international and local levels in determining the proper rules and legislations needed in a particular state. For instance, studies have mentioned several areas of concern which could be addressed by legislation. These include the quality of the air, the quality of water, level of noise pollution, waste disposal, and its consequent environmental impacts.[1] The need to determine the need to address these perceived elements involving the environment intensifies almost in a daily basis. Particularly, with the continuous and unrelenting drive of state towards development and urbanisation, these stated elements will continue to deteriorate unless the state places a firm stand on its protection and act on breaches on these laws.[2]
Focus on the environmental regime governing Asian countries has been rather scant as compared to the discussion relating to the United States and European Union.[3] However, these types of discussions relating to these major countries tend to provide a model for less developed ones in the enforcement of such laws. For instance, the study of Babbitt, tried to justify the criminalisation of the laws covering environmental protection to intensify the enforcement of the laws and some level of protection because of the consequent deterrence it could bestow as precedent cases are established.[4]
In the context of China, it has won it bid and anticipating the hosting of the 2008 Summer Olympics in Beijing. Articles have noted that the city, as well as the entire country’s environmental well-being was rather skint. Coal burning and emissions from automobile and the industrial areas were not regulated.[5] The rivers were brimmed up with sewage and pollutants. In this regard, the state has been up in arms in battling this deteriorating state of environment in China. In the recent study of Schmidt,[6] he pointed out that hosting the summer Olympics should “serve as a catalyst for environmental improvement and help to promote sustainable development” on the part of China. Chepesiuk on the other hand indicated that this would be feasible considering the fact that the “country’s leadership can make tough big-ticket decisions and implement them quickly.”[7]
A. Statement of the Problem
The study intends to look into the enforcement of environmental laws in Hong Kong. Specifically, the discussions will provide a comparative analysis of the implementations in other states like China, United Kingdom, and Australia. To keep the discussions coherent and systematic, the dissertation will answer the following questions:
1. How does the Hong Kong Special Administrative Region implement laws pertaining to:
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
2. How does the implementation of laws in the Hong Kong Special Administrative Region fare up with China in terms of
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
3. How does the implementation of laws in the Hong Kong Special Administrative Region fare up with Australia in terms of
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
4. How does the implementation of laws in the Hong Kong Special Administrative Region fare up with United Kingdom in terms of
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
5. How can Hong Kong implement these existing environmental laws in the impending Beijing 2008 Summer Olympics?
B. Significance of the Study
There appears to be a scarce amount of studies and articles pertaining to the capabilities and competencies of the special administrative region to implement its laws pertaining to the protection of the environment. In the same regard, there has yet to be a study that focuses on the regard of judicial bodies on “environmental crimes” in the said region. This dissertation will be able to unlock the information on the level of implementation and criminalisation of breaches of environmental legislation. In the same regard, the assessment will also be based on the presentation of the level of implementation and regard of courts on the respondent countries. In doing so, not only does the dissertation provide the readers an analysis of the legal conditions in Hong Kong, it also gives a detailed description of the legal systems of enforcement implemented in Australia and China.
C. Scope and Coverage
The study will be discussing the laws pertaining to air quality, noise, wastes, water quality, and environmental impact assessment implemented in Hong Kong. In the same regard, research will be made on such areas and its implementation in the respondent countries of China and Australia. Along with the description of the actual laws implemented in the said respondent countries, court decisions and some case laws relating to the environment laws will be taken into account. Moreover, the study will also consult past and existing academic and scholarly articles covering environmental enforcement with the rest of the world.
III. Literature Review
This part of the study seeks to establish the theoretical frameworks of the dissertation by discussing the claims and observations held by the existing literature. Specifically, the discussions will be covering existing studies on international treaties on the environment, the watchdogs that protect these treaties, trends towards criminalisation, the implications of international events like the Olympics in the environment, and observations regarding the legal regime of environment protection in China and Australia.
A. International Treaties
In the international arena, the issues of environmental protection and polices are covered primarily of treaties and signed agreements of particular participants of a certain international assembly. One such treaty is The Rio Declaration on Environment and Development. Basically, this treaty intends to point out certain issues of the environment surrounding sustainable development.
The agreement establishes a precautionary principle in environmental protection. This is displayed in the passage in the signed treaty indicating that
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”[8]
Basically, this passage presents the intention of the agreement to use policies to prevent any possible act that may compromise the sustainable development of a particular nation. However, issues related to economic and investment opportunities are linked to such conditions of sustainable development. As Cowling indicated in his study,[9] noted in his study that multinational corporations tend to favour operations in a developing country because of the possibility of making the most of its natural resources. In recognising this reality, he further intimated that developing nations are not in the position to protect its resources for purposes of sustainable development given the motive of multinational corporations. The Rio Declaration dismisses this apparently unequal situation for developing nations. This is seen in Principle 11 of the declaration indicating that
“States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.”[10]
Other international agreements have focused it attention to what was noted as “transfrontier pollution.” Basically, this type of pollution affects not only a particular area in the globe; it implicates a greater and wider range of adverse effects in the environment. The Geneva Convention on Long-Range Transboundary Pollution is the prevailing agreement that covers this issue. Created in 1979 in the first world climate conference, the principle of the agreement is to take into consideration the implications of sulphur emissions and its relation to acid rain.[11] The possibility of the occurrence of greenhouse effects has been one of the greatest issues at that period. The problem in that regard is that despite the decrease in the sulphur emissions, the increase of nitrous oxide has been apparent as the increase in road traffic in the rest of the world is becoming commonplace.[12]
This agreement is closely connected to the subsequent high profile international conventions and protocols. Basically, these said agreements focused entirely on the possibility of climate change and how to prevent it. These include the United Nations Framework Convention on Climate Change which spawned the Kyoto Protocol on Global Warming. In the said protocol, the countries participating in the said convention “agree to cuts in emissions of three of the most important gases: carbon dioxide, methane, and nitrous oxide.” [13] Studies have mentioned the adverse implications of climate change to both the environment and the public. For instance, the work of Ebi, Kovats, and Menne intimated that population sheath may be compromised by drastic changes in the levels of heat and consequent torrential rainfalls as a result of global warming.[14] They also mentioned the possibility of intensification and even evolution of infectious diseases present in the environment.
In the context of marine protection, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter was ratified in 1972. It is more commonly known of the London Convention of 1972. Basically, the said convention covers the intentional disposal of waste in the sea. Along with this is the list of substances that have different levels of adverse effects once they are dumped in water systems. Nevertheless, a clear shortcoming of this agreement is that it doesn’t cover the discharges from land-based structures.[15] This agreement is succeeded by Protocol 1996 and successfully addressed this previously mentioned shortcoming. In the said innovation, changes were made to emphasise new concepts like “precautionary approach” and punishment of the perpetrators of pollution.[16] In the same regard, Protocol 1996 has also changed the actual list from the London Convention to a “reverse list.” This means that those that intend to dump substances in the sea, these substances have to correspond to the listed elements. If the dumped substances are not included in the list, then sanctions will apply.
B. International Watchdogs
As indicated in the earlier parts of this dissertation, the performance and enforcement of environmental laws are as important as its actual ratification. The following discussion will be describing the organisations and international bodies that seek to carry out the principles of the international agreements indicated above. For instance, the United Nations Commission for Sustainable Development (UNCSD) is the sanctioned authority by the UN to handle the implementation of the agreements ratified in the Earth Summit in 1992. Specifically, the UNCSD is tasked to make sure that the member countries have corresponding laws that honours the principles of the Rio Declaration on sustainable development, which the United Nations coined as Agenda 21.
On the other hand, the United Nations Economic Commission for Europe (UN-ECE) also holds on the responsibility of implementing protocols indicated in the Geneva Convention on Long-Range Transboundary Pollution.[17] The UN-ECE specifically has to make sure that the eight protocols ratified in the convention are properly followed and possess similar legislations in the participant countries. Protocols on ground-level ozone, organic pollutants, sulphur emissions, organic compounds, and nitrogen oxide are among those included in the mandate of the commission.
In 1972, the United Nations Environment Programme (UNEP) was created to help individual states to deal with the concerns of sustainable development. According to the work of Molle, UNEP has to carry out the following activities
“Assessment and protection of atmosphere and terrestrial ecosystems; promotion of environmental science and information; early warning of problems and emergency response capacity to deal with environmental disasters and emergencies”[18]
Moreover, it is also maintained that countries who fail to comply with the self-enforcing requirements of the company may be taken to the International Court of Justice. In any case, the organisation could also act as a body that broker arrangements with countries that are seen to closely breach the said agreement.
Aside from organisations sanctioned by the United Nations, private organisations and civic groups tend to heed the call and remind states and other private organisations of their responsibilities as indicated in environmental law. One of the most noted and well-renowned organisations are Greenpeace. According to their website, the organisation is described as
“a global campaigning organisation that acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace by catalysing an energy revolution to address the number one threat facing our planet: climate change; defending our oceans by challenging wasteful and destructive fishing, and creating a global network of marine reserves; protecting the world’s remaining ancient forests and the animal, plants and people that depend on them; working for disarmament and peace by reducing dependence on finite resources and calling for the elimination of all nuclear weapons; creating a toxic free future with safer alternatives to hazardous chemicals in today’s products and manufacturing; and porting sustainable agriculture by encouraging socially and ecologically responsible farming practices.”[19]
Created in 1971, the organisation has been fighting environmental breaches from global warming and genetic testing to nuclear power and nature destruction. The quote above indicates that not only does the organisation focus on abuses; it also tries its best to encourage sustainable consumption of the natural resources. Over the years, the organisation has acquired the favour of the public as accounts of their extraordinary feats as well as the actual footages of “heroic” programmes established them as the protector of nature and mother earth.
This organisation in fact has spawned numerous other organisations operating in a much smaller scale, specifically regional and local operations. In Hong Kong, there are three existing environmental organisations: Friends of the Earth, Green Power, and the Conservancy Association. These organisations tend to focus on environmental education and discuss issues on conservation and policies of the government.
C. Criminalisation of Environmental Offences
A recent trend in the ratification and enforcement of environmental laws is to “make the polluter pay.”[20] Basically, this is an element of the principle of environmental protection and pollution control which is often misconstrued by legislators and states as they implement these environmental laws. For instance, Adler pointed out that “pollution control efforts should focus upon instances where an unwanted emission causes actual harm and not on whether a company complies with a permit or generates the right amount of waste.”[21] This is a classic example of the implications of misinterpretations and possible skewed perception on how the law should be created. Pollution control should therefore focus on the harm done instead of the compliance of those involved.
This is similarly inked with the efforts to extensively criminalise the breach of environmental laws. In the United States, scholars have indicated that the laws implemented in the land are described as “over-criminalised.”[22] This merely points to the imposition of sanctions on the perpetrators of what has been coined as “green collared crimes.” It has been noted in studies that the main rationale of this criminalisation of environmental laws is to ensure protection through deterrence.[23]
However, the issue on imposing such sanctions and presenting rather harsh repercussions for polluters still is subject to debate. For instance, there have been claims as to whether deterrence should be equated with the culpability of the offender.[24] Essentially, this claim covers the sentencing approaches held by courts hearing environmental cases. The problem is that “the substantive law, however, does not grade the offenses or otherwise make meaningful distinctions among offenders based on culpability.”[25] This means that the process of sorting tends to encounter some discrepancies depending on the level of culpability of the offenders.
In the context of the actual sanctions, criminalising these environmental offences mentioned falls on monetary and non-monetary sanctions.[26] The former includes those that involve fines and other fees for damages as seen by the courts, the latter on the other hand includes those that involves possible community service and even incarceration. This is rather complex on the part of the individual states implementing these environmental laws since “non-monetary sanctions are costly to impose.”[27] The issue on whether monetary sanctions will suffice as a means to actually deter the future actions detrimental for the environment. As Babbitt and his colleagues place it, “a harmful act will be more difficult to deter with monetary sanctions alone when benefits to the violator are high, harm is substantial, the probability of imposing sanctions is low, and/or the level of violator assets is modest compared to harm done.”[28]
D. International Events and the Environment
International events tend to also leave major implications on the environment. This reality has been apparent yet has been tackled scarcely in literature. A recent article of Schmidt has highlighted the environmental implications of major sporting events.[29] The article indicated that such events tend to place an immense “environmental footprint” which essentially equates to the abuses both intentionally and unintentionally imposed.
The study focused on events like the Summer and Winter Olympics, Superbowl, and World Cup. He noted that the in the 2006 Superbowl of the National Football League, the amount of carbon dioxide emitted from transportation and use of facilities summed up to over 500 tons in that day. The Athens Olympics in 2004 recorded 500,000 tons within its two weeks of operations. On the other hand, the study mentioned that the World Cup consumed three million kilowatt-hours worth of energy for every game it played and not to mention the litter amounting to over ten tons. [30]
Other major sporting events like the NASCAR races in the United States have also been tackled and mentioned to have considerably impressed a massive footprint in the environment of the US.[31] In this type of sport, environmental problems like noise pollution and emissions from leaded gas are mentioned to contribute to that footprint.
However, international bodies like the UNEP have been doing its share to deal with these issues. In the same account, the administrative bodies that govern these events have also taken the initiative to police their activities and minimise their impact to a particular site. One such example is the initiative of the International Olympic Committee (OIC) and the individual Olympic Organizing Committee (OOC) in the host countries have maintained the principles indicated in Agenda 21 of the UN. Even in countries like China where the 2008 Summer Olympics will be held, initiatives towards minimising the adverse implications of pollution though information and educational drives are implemented.
IV.Methods and Procedures
The dissertation will be using the descriptive form of research. Basically, this form of study is based on observed data.[32] (1996, 443) In this study, the assumptions and observations are to be based on the empirical evidence regarding environmental laws and the specific actions take in the special administrative region of Hong Kong as well as those in Australia and China. However, there are some limitations on the use of the said methodology. Basically, the study would not be able to make inferences on causality.[33] Nevertheless, the findings will be able to create an impetus for further research on the topic. Though there may not be any conclusive statement that could be made on this study, the findings highlight the conditions surrounding the existing legal regime in the management and protection of the environment in Hong Kong. It is in these findings that the recommendations on certain developments in the environmental laws in the region. On the other hand, the study will primarily acquire qualitative data and analysis. This means that the study will be employing inductive reasoning in its analysis and observation of the data extracted from the primary sources of the study which include China and HKSAR legislation, court decisions and case laws in Australia, and discussions from academic and scholarly journals directly related to the topic. [34]
V. The Environmental Laws in Hong Kong (20)
This part of the study will be the part where the comparison of the existing legislation on the respondents countries of China and Australia. Basically a description of the Hong Kong legislation will be made first and will consequently be compared to the legal regime present in the said countries. Since the focus of this study is Hong Kong, it is imperative to provide the governing legislation involving the environment in the said administrative region. In the same manner, providing such an account on this set of legislation will make research on similar laws and case laws in the other respondent countries of China, Australia and the United Kingdom. Specifically, the areas of concern to be covered include air quality, noise, waste, water quality, and environmental impact assessment. To provide a summary of the points of argument, a sub-conclusion will be given after every end of a particular set of environmental legislation.
A. Conditions of Air Quality in Hong Kong
The following discussions will include the primary legislations that involve the protection of the air quality of the special administrative region. The data below are to be based on the actual manuscript of the legislations.
1. Air Pollution Control Ordinance (Cap.311)
The primary legislation covering the protection of the quality of air in Hong Kong is the Air Pollution Control Ordinance (Cap.311).[35] This law was originally enacted in 1983 to deal with emissions and other harmful discharge in the air of HKSAR. This means that the law covers motor vehicles, industrial and power plants, construction and the dangers of asbestos.
In the said ordinance, a set of objectives called Air Quality Objectives (AQA) indicated in s7 and s8. The elements of “sulphur dioxide, nitrogen dioxide, carbon monoxide, photochemical oxidants, lead, total suspended particulates and respirable suspended particulates” are included in the air pollutants noted as among those which the administrative region has to deal with.
In the same regard, the ordinance allows the authorities to bestow legal notices if they sense any breach on the legislation. For instance, s10 of the ordinance indicates that the authorities could give possible offenders Air Pollution Abatement Notice if any of the stated air pollutants were detected on the “polluting activity.” On the other hand, s30 of the ordinance provides the administrative region the authority to give out notices to take certain actions if they find out that air pollution results from any form of improper design or operation of their equipments. Similarly, Asbestos Abatement Notices are also in order once the state recognises any operation in poor from regarding asbestos removal activity as indicated in s79 of the ordinance.
2. Ozone Layer Protection Ordinance
In the context of ozone protection, the special administrative region has enacted quite a few set of laws that covers this area of environmental protection. The discussion here will present the Ozone Layer Protection Ordinance (Cap. 403) 1989 and Ozone Layer Protection (Controlled Refrigerants Regulation)
a) Ozone Layer Protection Ordinance (Cap. 403) 1989
This ordinance makes the Vienna Convention of 1985 and Montreal Protocol of 1987 effective under the regime of Hong Kong. This means that Hong Kong has to comply with the obligations and responsibilities provided by the said international treaties. Basically, this legislation prohibits the manufacturing of any ozone depleting substances.[36] However, this is not an actual total ban on such items; the law also indicates that these ozone-depleting substances are sanctioned if and only if they are to be used primarily on academic purposes and if they are no more than 1 kilogram in a 12-month period. In the same regard, the law also covers those who import and export these types of substances. This means that the traffic of these substances is also controlled by the state. In s5 of the ordinance, it calls for the registration and the need to acquire a license to manufacture and import or export (s4 and s6) these substances. It also indicates the monetary and non-monetary sanctions imposed by the state. Failure to register is liable to ,000 fine while operating without a license or any breach of the conditions of the license is liable to a ,000,000 fine with a 2-year imprisonment.
In the same regard, the ordinance provides the authorities power to enforce the said laws.[37] The said laws give the state authority to enter and search, and even to use reasonable force on a person or a particular area suspected to have breached the ordinance. In the same regard, the state is given the power to summon documents from a person for examination and investigation as to whether it has breached the ordinance or not. Similarly, the state is also given the power to seize control of anything other an aircraft, vessel or vehicle. At any rate, the ordinance gives the state the capacity to take whatever it requires to implement these provisions within its jurisdiction.
b) Ozone Layer Protection (Controlled Refrigerants Regulation)
This piece of legislation is to place a ban on the venting of “controlled refrigerants” from motor vehicles and refrigeration equipments in the atmosphere. Basically, this law covers the air-conditioning apparatus of motor vehicles in the region as well as refrigeration equipment possessing over fifty kilogram of “controlled refrigerant charge.”[38]
Another central principle of this legislation is to provide the region with equipment to “recover, recycle and reclaim” these controlled refrigerants.[39] This also provides the Director of Environmental Protection (DEP) to decide on which elements are to be classified as controlled refrigerants. Along with this, another central principle of this piece of legislation is establishing a record indicating the addition and movement of controlled refrigerants in HK.[40] In accordance to this, penalties and sanctions are noted in this legislation as any form of non-compliance is detected by the government.
3. Comparison with other countries
The following discussions will cover similar areas of law which includes the protection of the ozone layer and air pollution control in three countries.
a) China
The environmental regime in People’s Republic of China is covered by the Law on the Prevention and Control of Air Pollution. It was ratified in September of 2000. The law covers the demands on construction projects particularly on the emission of dust particles and use of equipment in construction sites. In the same manner, the laws indicate the implementation of a fee system depending on the types and quantities of the pollutants that a particular organisation or any individual liable for any project have produced. Along with the laws that control the pollution from motor vehicle emission, waste gas and other offensive vapours in the country, the state has also ratified a system that intends to eradicate any obsolete equipment that appears to emit harmful elements in the atmosphere.
Same as with the context of Hong Kong, the legal regime in China allows for monetary sanctions for offenders which could amount to RMB 500,000. In the same manner, the case could also be forwarded into criminal prosecution. This means that the legal regime in China also allows for non-monetary sanctions in its enforcement of environmental laws. Though there has been an incredible improvement in the sustainable management, there have been reports indicating that a considerable backlog of cases is seen in local governments of China.
Another impending concern in the Chinese setting is the implementation of the 2008 Summer Olympics in Beijing. As indicated in the literature review, such events leave a huge environmental footprint in the host country. According to the reports of the environment ministry in China, the state has allotted over RMB 45 billion to address the ecological and environmental predicaments of the city and the rest of the country. One such initiative is the attempt to increase the forested area in the city which also includes the tree-belt that spans approximately a hundred and twenty-five kilometres. This is to limit the number of dust storms that takes place in the city.
b) Australia
The legal regime implemented in the Australian setting is covered by the Environment Protection and Biodiversity Conservation Act 1999. Along with the other elements of the environment, the said regime protects the air quality of the continent.[41] In this regard, this thrust has become the mandate of the Department of the Environment and Water Resources particularly to protect both air quality and the water resources of the continent. In the context of the Australian implementation of protecting air quality, their main goal is to basically protect the ozone by implementing non-statutory initiatives like National Environment Protection Measure which deals with quality of air as well as the standards required to meet for fuel quality.
In the same account, the Department of the Environment and Water Resources also covers the monitoring of air toxins that could be add up to ozone depletion. Products that contain aerosol particulates coming from consumer products and combustion engines are also monitored by the department. Essentially, the enforcement of laws in the protecting the air of Australia is based on the principles of Montreal Protocol on Substances that Deplete the Ozone Layer.
B. Noise Control
The legal regime controlling the noise of the special administrative region is divided into several distinct laws. Essentially these laws cover traffic noise to civil aviation control measures. Basically, these laws comprise of what is noted as statutory controls over the environmental implications of noise in Hong Kong. The following legislations include the Noise Control Ordinance, Civil Aviation (Aircraft Noise) Ordinance, and Road Traffic Ordinance. On the other hand, the Civil Aviation (Aircraft Noise) Ordinance covers the certification of aircrafts to comply with a set of standards.[42]
1. Noise Control Ordinance (Cap. 400)
The Noise Control Ordinance, which was originally implemented in 1989, covers areas of constructions, motor vehicles and even the operations of plants and factories in Hong Kong.[43] This ordinance could be deemed as the framework for all the noise control management initiatives of the administrative region. For instance, the provisions of this ordinance control the level of noise in the area of general construction work.[44] Provision on the control of mechanical equipment as well as the manner of carrying out construction works which creates a considerable amount of raucous. The ordinance indicates that these rather loud construction practices are to be carried out only within specified bounds of the stipulations.
Other construction-related activity that the said ordinance covers is percussive piling. The ordinance states that pilling should similarly be done within a specified time frame which is prohibited between 7pm to 7am.[45] In other activities like those present in industrial and commercial establishments, the ordinance also tries to manage such activities like ventilation noise and other clatter coming from their operations. Failure to comply allows the authorities to serve Noise Abatement Notices to offenders.[46]
Other areas on which this ordinance affects largely includes neighbourhood activities, noisy products, and even intruder alarm systems.[47] In the context of neighbourhood activities, the noise control authority in this area is the police force of the special administrative region. Basically, this stipulation of the ordinance covers the control of noise between 11pm to 7am.[48] In the context of noisy products, the transfer of goods from manufacture, importation and exportation of such materials such as percussive breakers and air compressors are controlled by the ordinance.[49] The EPA and the police commissioner are the authorities who are the control authorities of the said stipulation. In terms of the alarms system, the ordinance limits the length of the alarm to no more than 15 minutes. In the same regard, this applies with vehicle alarms which are expected not to sound unless it is being tampered or in the process of being stolen.[50] This means the state expects the owners of the vehicle to set the alarm at the prescribed setting by the ordinance. In the similar pattern, the length of the alarm is expected not to last over five minutes.
2. Civil Aviation (Aircraft Noise) Ordinance (Cap. 312)
This particularly applies to the aircrafts intending to use the Hong Kong International Airport. The Civil Aviation Ordinance on the other hand covers the prohibitions and rules relating to the aircrafts coming and going in and off the special administrative region.[51] Particularly, the law tries to control the traffic of subsonic aircrafts or jet planes within the air space of the region. The law particularly stipulates that “narrow-bodied jet aircrafts” should satisfy the demands of the requirements and noise standards of international noise control regime.
In the same regard, the ordinance only permits such types of engine to operate within the airspace of Hong Kong to have certain certification from the control body that manages the enforcement of these laws.[52] In this context, the control authority for the enforcement of this ordinance is the Director General of the Civil Aviation in Hong Kong.
3. Road Traffic Ordinance (Cap. 374) 1982
And lastly, Road Traffic Ordinance (Cap. 374) 1982 sanctions the police enforcement of the law relating to complaints on noise and even traffic concerns.[53] This ordinance works hand-in-hand with the Noise Control Ordinance in its demands on all vehicles in Hong Kong to register and satisfy a series of standards geared towards the elimination of noise pollution in the region. The control authority at this category is given to the Commissioner for Transport.
4. Comparison with other countries
The following discussion will present the legal regime regarding noise pollution in China and Australia.
a) China
The Chinese legal regime on noise pollution is covered by the Law of the People’s Republic of China on Prevention and Control of Pollution From Environmental Noise. Basically, the law defines environmental noise as
“the sound that is emitted in the course of industrial production, construction, transportation and social activities and that impairs the living environment of the neighbourhood.”[54]
The said law covers the “supervision and administration” from industrial noise, construction noise, traffic noise, and even noise from social activities. Industrial noise is defined as “the sound that is emitted by the permanent equipment used in the course of industrial production.”[55] This definition is closely intimated to the construction noise which is defined as “the sound that is emitted by the permanent equipment used in the course of industrial production.”[56] On the other hand traffic noise is defined as “of transport as motor vehicles, locomotives, motor vessels and aircraft in motion.”[57] Noise of Social Activities tends to cover those “sound that is emitted by man-conducted activities.”[58] In any case, these three types of noise as defined in the context of Chinese law are classified as pollution provided that it “impairs the living environment of the neighbourhood.”[59]
As observed in the copy of the Law of the People’s Republic of China on Prevention and Control of Pollution from Environmental Noise, it is apparent that the context of the law is more on protection and deterrence on individuals or organisations in engaging in any action that “impairs the living environment of the neighbourhood.”[60] However, unlike in the case of Hong Kong, the legal regime in China does not have any legislation in place regarding Aircraft Noise or any that point to civil aviation.
b) Australia
In the context of noise pollution, the legal regime in Australia is covered by the Environment Protection Act 1997. Like those in Hong Kong, the definition of noise pollution indicates a possibility to cause environmental harm according to the Australian legislation.[61] Basically, the legal enforcement of the prevention of noise pollution in Australia covers both residential and non-residential zones. The law indicates certain maximum levels of noise as per zone.
The problem with the said Australian legislation, it does not cover certain elements in the environment that generates noise.[62] Such elements include trains, planes, motor vehicles, and even animals. Along with these exceptions, the law also doesn’t protect the public from the noise emitted by construction and maintenance of roads.
On the other hand, certain elements that have been plainly stated to be prohibited to emit noise could do otherwise and carry on provided that they procure a permit. Such elements or events include concerts and motor racing. This implies that environmental authorisations could also be procured to allow such leisure activities for a fee.[63] Treatment of breaches and prosecution falls on the responsibility of the Environment Protection Agency (EPA). However, for them to render any initiative to consider the said breach, one must first file a complaint. Upon which, the EPA is allowed to issue a notice with a consequent on-the-spot fine to the offender.[64]
C. Wastes Management 1. Waste Disposal Ordinance (Cap. 354)
The Waste Disposal Ordinance (Cap. 354) is the foundation of the waste management regime in Hong Kong.[65] This was initially enacted in 1980 and was subjected to at least eight amendments since. The amendments constitute simple control of livestock to more complex compliance of international laws enacted in the Basel Convention.
Essentially, the Basel Convention calls for the prohibition of importing or exporting hazardous wastes within states. The ordinance thus makes the principles of the Basel Convention legally binding in Hong Kong. Specifically, it prohibits the special administrative region or any organisation that operates in its territory to carry out transboundary shipment of hazardous wastes.
Basically, this is the basis of all the rest of the waste management legislation in effect in the special administrative region. The ordinance covers the approval of licences of those who seek to collection and operation of disposal facilities of waste in the special administrative region. Other areas covered by the ordinance are the control of livestock keeping in the urban areas as well as the management and disposal of their waste products.[66] In the same manner, the control of chemical waste along with the dumping of such elements is also covered by the ordinance.[67]
2. Comparison with other countries
The following discussion will present the legal regime regarding waste management in China and Australia.
a) China
The that governs the legal regime of waste management in China is Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste.[68] In 1995, the country was able to ratify this piece of legislation and gained control to the waste management of the country, particularly with the management of hazardous wastes in the country. The law places legal responsibility on the protection of the environment. Specifically, it indicated that
“Any unit and individual shall have the obligation to protect the environment and shall have the right to report or file charges against units or individuals that cause environmental pollution by solid waste.”[69]
Unlike the legal regime in Hong Kong, waste management in the context of China only focuses on solid wastes. Basically, there is an absence of any provision pertaining to livestock or any animal wastes. However, there are similar elements in which the legal regime in Hong Kong and China do possess. Basically, the compliance on the international agreement held in the Basel Convention is shared by the government in the mainland and the special administrative region. There is a provision in the Chinese legislation that prohibits the importation of hazardous solid wastes for the purposes of serving as raw materials.[70] The problem arises when any prohibition against the export of such hazardous solid waste is not seen in the legislation. This gives due anxiety with the rest of the Chinese territory and even the rest of the world as the Chinese government eliminates any legal responsibility on itself in dumping hazardous solid wastes to the territories of other states.
b) Australia
The context of waste management protection in Australia is covered by the Hazardous Waste (Regulation of Exports and Imports) Act 1989. This piece of legislation is also implemented by the Department of the Environment and Water Resources. Similar to the law implemented in Hong Kong, the Act is ratified in order to give credence to the Basel Convention. Thus, the said act is the governing legislation that regulates the import and export of hazardous wastes in Australia. Unlike in China, the Australian setting allows for the use of hazardous substances for raw materials used in manufacturing products in the continent.[71] The original legislation that governs this area of environmental law (1989 Act) covered only those that are considered wastes without value. The amended legislation (1996 Act) however added those that could be recycled and recovered.
D. Water Quality 1. Water Pollution Control Ordinance (Cap. 358)
Hong Kong is governed by the Water Pollution Control Ordinance (Cap. 358) which was enacted in 1980. This is the foundation of the regime protecting water control zones (WCZs) within the boundaries of the administrative region.[72] This means that the law covers discharges on these WCZs, specifically of oil and other hazardous substances from vessels. This law was amended twice, 1990 and 1993, which added provisions like the removal of exemptions as well as the increase in regulation in water waste coming from commercial and industrial sectors of Hong Kong.
The core principle of the ordinance is that every sewage line in Hong Kong is required to have an effluent discharge licence. In doing so, the authorities of Hong Kong allows some level of management in the context of the physical, chemical, and microbial quality of the discharges of a particular company. Basically, this helps eliminate the possibility of harmful discharges to pollute the water systems of Hong Kong, both inland and marine.
This is similarly true in the case of sewage connections. To this end, the said ordinance intends to create a primary sewer line that would centralise the individual sewers of the Hong Kong dwellers. This also includes the intent of the state to ask the owners with redundant and disused sewage treatment facilities and septic tanks to demolish it and create a direct connection to the central sewage system.
2. Comparison with other countries
The following discussion will present the legal regime regarding water quality in China and Australia.
a) China
The legal regime in China protecting its water sources are separated by different pieces of legislation. The legislation protecting the water zones is covered by the Water Law of the People’s Republic of China which was ratified with a Presidential Decree in 1988. The said law focuses on the protection of the water sources of the republic. Water resources are defined as
“… surface water and groundwater. This law must be observed in developing, utilizing, protecting and managing water resources and in controlling water disasters within the territory of the People’s Republic of China.”[73]
Essentially, this piece of legislation tackles the “developing, utilizing, protecting and managing sea water” resources under the jurisdiction of the Chinese government.
On the other hand the legislation protecting the water sources from pollution is seen in Law of the People’s Republic of China on Prevention and Control of Water Pollution. Basically, this piece of legislation intends to
“preventing and controlling water pollution, protecting and improving the environment, safeguarding human health, ensuring effective utilization of water resources and promoting progress of the socialist modernization drive.”[74]
In connection with the laws in Hong Kong, the said legislation also covers the management of the sewage systems. Specifically, the provision states that the sewage system should be treated centrally to enable the state to monitor its discharge.[75] This is particularly seen implemented in urban sewages. In the same regard, any construction of a facility or structure that discharges sewage are also require the permission of the state. It specifically states that
“New construction projects and expansion or reconstruction projects and other installations on water that directly or indirectly discharge pollutants to water bodies shall be subject to relevant State regulations governing environmental protection for such projects.”[76]
This complements the Water Pollution Control Ordinance (Cap. 358) enacted and implemented in the HKSAR.
E. Environmental Impact Assessment 1. Environmental Impact Assessment Ordinance (Cap. 499)
In line with the purposes of avoiding further adverse implications in the environment, Hong Kong has also enacted a law requiring any project carried out in the administrative region to go through an environmental impact assessment process (EIA) and acquire permits before commencing. This is embodied in the Environmental Impact Assessment Ordinance (Cap. 499). This serves to protect the environment from any adverse effects of the project in the future.
Related legislation on environmental impact assessment includes the Environmental Impact Assessment (Appeal Board) Regulation, and Environmental Impact Assessment (Fees) Regulation. The Environmental Impact Assessment (Appeal Board) Regulation establishes the body that would hear the appeals of those offenders described under the ordinance. This also establishes the key requirement and processes implemented in the Appeal Board. On the other hand, the Environmental Impact Assessment (Fees) Regulation establishes the application of fees required in the submissions made to comply with the prerequisites of the EIAO (Cap. 499)
2. Comparison with other countries a) China
In the context of China, the State Environmental Protection Administration (SEPA) is the authority of control in the implementation of the Environmental Impact Assessment Law (EIA Law). The imposition of the law intends to monitor the environmental implications of any plan or construction project in the jurisdiction of China though analysis, projection, and evaluation. Specifically, the law covers both construction plans and development plans. In the context of development plans, the environmental impact assessments on the use of land, the regional construction, as well as the plan itself is required by the EIA law. On the part of Construction projects, there are three levels on which they have to report to the State Environmental Protection Administration (SEPA).[77] When the said authority finds flaws after the assessment of the project, the authority is allowed to put an order to cease the construction project until it satisfies the requirements of SEPA.
b) Australia
c) United Kingdom
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