Transboundary resource disputes are often analyzed by reference to two nebulous and conflicting principles that have emerged in international environmental law: “equitable and reasonable utilization” and “no significant harm.” Frequently overlooked in this context is the potential value of other canons of international law — especially human rights law, criminal law, and the rules governing the use of force — in adding definition to the muddled contours of these foundational precepts. This Article therefore undertakes an assessment of sovereign rights and obligations regarding shared natural resources which arise from these other bodies of law. In doing so, it offers new lenses through which to evaluate competing state resource claims. It also provides fresh perspective on longstanding controversies in international law relating to extraterritorial jurisdiction, conflict of rights, and non-military attacks or uses of force.
In July 2015, China’s national legislature brought in prosecutor-led civil environmental public interest litigations (“EPILs”) for thirteen selected provincial areas of the country. After a two-year legal experiment, this prosecutor-led civil EPIL system was then established nationwide in July 2017. Yet, can it be said that prosecutorial regulators in China are in fact a paper tiger? Drawing upon content analysis of the 655 prosecutor-led civil EPILs and in-depth interviews with twelve frontline prosecutors and judges, this article examines the dynamics of regulatory practice and the motivation of the Chinese prosecutorial organs to engage in environmental regulation through litigation. Based upon the above two legislative landmarks in the law reform of this area, the regulatory practice of prosecutorial organs can be viewed as having occurred in three stages, with each stage featuring a distinct regulatory model: ad hoc regulation through local innovation before July 2015, forced regulation during the legal experiment from July 2015 to July 2017, and perfunctory regulation after the nationwide establishment of the prosecutor-led civil EPIL system in July 2017. The data show that the Chinese prosecutorial organs have engaged in a larger number of such lawsuits since the second stage, but they have shown a strong preference for cases with less complicated facts, weak and small defendants, and minor environmental violations. Three factors that influence regulatory motivation are employed to analyse the change in regulatory models: the ambiguity of the law, the top-down political pressure for regulation, and the cost of regulation. This study highlights the very limited effectiveness of vertical political pressure in boosting prosecutorial regulation and the strong impacts of the cost of regulation and the ambiguity of the law. In particular, the high cost of regulation that takes weak regulatory capacity, lack of regulatory autonomy, and the winning rate-oriented performance appraisal system into account have significantly weakened the motivation of prosecutorial organs to pursue civil EPILs. The findings of this study echo the conditions present in the successful prosecutorial regulations in Brazil and contribute to the scholarship about prosecutorial regulations in the field of environmental protection in the Global South.
