共同但有区别责任原则在公海环境治理领域的适用问题

Issues on the Application of the Principle of Common But Differentiated Responsibilities in Environmental Governance on the High Seas

共同但有区别责任原则(以下简称“共区原则”)在公海环境治理领域发挥作用的同时,也面临着理论和具体实践领域的适用困境。在理论层面,该原则的法律性质存在争议,构成要件尚不明确,亦不确定该原则是否存在例外。从实践层面看,共区原则在海洋酸化治理、公海塑料污染治理、公海持久性有机污染物治理,以及国家管辖范围以外区域海洋生物资源的养护与可持续利用方面存在区别责任被忽视、弱化或共同责任难以落实的困境。上述困境的成因包括旧的权力导向理念不利于公海治理以及公海环境治理中的区别责任的界定标准不够科学。未能充分考虑发展中国家的区别责任;难以确定各国的历史性责任;发达国家怠于承担或弱化技术转让和资金支持的区别责任是该原则在具体实践领域适用困境的成因。笔者建议在理论层面明确共区原则在公海环境治理中的法律原则地位、细化有区别责任主体的分类和具体形式、以及坚持以实质公平为核心。在具体实践领域,笔者建议在海运减排领域考虑发展中国家的诉求,并在其他海洋酸化治理事项中充分落实共同但有区别责任原则,在塑料公约谈判中重视并适用共区原则,优化持久性有机污染物治理的资金支持和技术援助,积极推动BBNJ协定的能力建设和海洋技术转让机制实施。

While making difference in the field of environmental governance on high seas,the principle of common but differentiated responsibilities(CBDR)faces difficulties in its application from the perspective of theory and practice.In theory,there is a controversy in the legal nature of the CBDR.The elements of this principle remain unclear,and it is also uncertain whether there are exceptions to it.In practice,the CBDR applies to controls and management of ocean acidification,plastic pollution and persistent organic pollutants on the high seas,and the conservation and sustainable use of marine biological resources beyond national jurisdiction.However,the differentiated responsibilities seem to be ignored or weakened and it ap-pears to be difficult for the developing countries to take the common responsibilities.The causes of the above dilemmas are the outdated power-oriented approach to the high seas governance and the low standard for de-fining the differentiated responsibilities for high seas environmental governance.In practice,the reasons for the above-mentioned dilemmas are a lack of the international community to fully consider the differentiated responsibilities of developing countries,a difficulty in determining the historical responsibilities of each country and the weak willingness of the developed countries to assume differentiated responsibilities for technology transfer and financial support and tend to weaken differentiated responsibilities.At the theoretical level,it is important to clarify that the CBDR should be regarded as a legal principle in the envi-ronmental governance on the high seas.And it is very important to improve the classification of countries of differentiated responsibilities,improve the specific formation of differentiated responsibilities and insist on substantial equity.In practice,it is recommended to consider the demands of the developing countries in the field of maritime emission reduction and fully implement the CBDR in other controls and measures of the o-cean acidification.It is also important to emphasize and apply the CBDR within the negotiations of the Plas-tic Treaty,optimize financial support and technical assistance in the control of persistent organic pollutants and actively promote the capacity building and marine technology transfer mechanism of the Marine Biodi-versity of Areas Beyond National Jurisdiction(BBNJ)Agreement.