How to protect Hong Kong's biodiversity
For the greater part of the last 150 years, there have been two general perceptions about Hong Kong's biodiversity: that it was either limitless, or of marginal value for the city's welfare. Either way, the conservation of natural resources remained a low priority in the government's economic and environmental legal policy.
It has been suggested that Hong Kong's conservation policy was captured by a Cantonese expression, 'Sweep before your own door'. In other words, individuals in a community would only care about the condition of their own private land and ignore the public commons.
This approach is beginning to change. The diversity of Hong Kong's biological legacy gives it an environmental richness that also touches the economic landscape. It includes diversity on the level of genetics, species and ecosystems.
Biodiversity is now prominent on the special administrative region's political radar screen. It was put there by an increasingly impatient public, an emergent environmental professional class, largely populated by determined academics, dynamic non-governmental organisations and a sophisticated, if underappreciated, civil service.
The recent proposal to extend the Convention on Biological Diversity - adopted at the 1992 Earth Summit in Rio de Janeiro - to Hong Kong is a significant example of how environmental politics is finally coming of age here.
The main aims of the convention are to conserve biodiversity; ensure sustainable use of the components of biological diversity; and provide for the sharing of benefits arising from the exploitation of biological resources in a fair manner. It advances conventional regulatory approaches to the conservation of biodiversity. That is because it recognises that natural resources are a common concern of humanity, and that any rational conservation policy must acknowledge the relevance of development policy.
The convention is legally binding and obliges members to incorporate, within its law, principles of conservation and the sustainable use of biodiversity. It appreciates that biodiversity conservation requires investment, but claims that over the long run such investment will have not only an ecological but also an economic payoff. It calls for national biodiversity action plans to be written and incorporated into environment and development plans.
In particular, the treaty requires parties to: identify important areas of biodiversity in their jurisdiction; establish protected eco-areas; restore degraded systems; protect traditional ecological knowledge; keep out alien species that threaten sound ecosystems; and minimise risks created by biotechnology.
Hong Kong's formal recognition of the convention will be useful for the advancement of biological diversity law in the SAR. On the legal and institutional front, a melange of notable conservation laws has already been built up. For instance, an internationally recognised environmental impact assessment law is well-established and a rich judicial review jurisprudence on environmental law is emerging.
Regrettably, much of Hong Kong's remaining regulatory framework governing biodiversity, while extensive, is outdated and outmoded. One overarching concern is the degree to which the concept of sustainable development will be incorporated into domestic environmental regulations. In the recent harbour reclamation dispute decided in the Court of First Instance, currently under appeal, a judge went so far as to declare that, on the basis of the international law of sustainable development, environmental interests should supercede economic interests - in particular, town planning decisions. Such a holding would advance Hong Kong beyond any conventionally recognised standard of sustainable development. Likewise, policymakers have been confronting vulnerabilities in their conservation policy on issues concerning habitat destruction and species extinction.
Another area of interest, particularly in light of its cultural value and commercial potential, is traditional Chinese medicine. The convention provides special protection to traditional ecological knowledge and calls for the sharing of benefits between the indigenous custodian and the pharmaceutical firm that is able to exploit that knowledge.
The application of the convention to this emerging biotechnology industry will be of considerable interest. The new Hong Kong is gradually recognising that public resources can no longer be treated as private commodities and that their value can no longer be measured by short-term and narrowly constructed considerations.
Hong Kong's reformed biodiversity conservation law will ensure the true reclamation of a long-neglected, but still priceless, resource: our environmental commons.
Bryan Bachner is an associate professor at the School of Law, City University of Hong Kong