Protection of environmental rights In China

Science and Law

legal systems
The protection of environmental rights in China

right to environmental conditions of a specified quality: safe, healthy,

ecologically sound, adequate for development, sound etc.
the right to a healthy environment, right to a clean environment, the right to a balanced environment that shows due respect for health
Human rights and environmental rights are intent winded.

countries with constitutionally protected right to a healthy environment
Light green:

countries with constitutionally provisions for a healthy environment

national constitutions, expressed in a variety of ways.
Individual right:
Constitutional

of South Africa (1996): everyone has a right to an environment that is not harmful to their health or well-being.
Constitution of the Republic of Korea: all citizens shall have the right to a healthy and pleasant environment. The State and all citizens shall endeavour to protect the environment.

Human Rights (ECHR)
Article 2: the right to life and the

environment
Article 8: the right to respect for private and family life and home
Urgenda Foundation vs. the Netherlands (2016~2019)

of China (2018)
Article 26: the State protects and improves the

environment in which people live and the ecological environment. It prevents and controls pollution and other public nuisance.
A state duty, not an individual right
Discussion on whether environmental rights should be enshrined in China’s constitution law?

as a state duty
Environmental laws and regulations set forth certain

standards and prohibitions.
An implementation gap remains between government obligations and environmental results.

An individual right to a healthy environment
provide a strong impetus and means for implementing and enforcing environmental protections.
Provide an important safety net where there are gaps in existing legislation.
Provide important norms and forums for addressing environmental issues, especially in instances when a country has yet to act.

coordinated development of material, political, spiritual, social, and ecological civilization

to build China into a great modern socialist country…
Guiding ideology of China’s green development and environmental protection

development in a wide range of laws, regulations and policies.

Article 9, General Provision of Civil Law (2017): private parities shall conduct activities contributing to the conservation for natural resources and environmental protection.
Revisions on environmental laws, regulations and policies.

,the right to health, property rights and interest.
Tort Law:

Chapter 8 Liability for Environmental Pollution
Article 65: when any harm is caused by environmental pollution, the polluter shall assume the tort liability.
Private damage/harm
Strict liability
Ex-post remedy

the substantive and procedural legality of any administrative decision, act

or omission.
Any natural person, legal person or organization with a substantial interest in administrative action have the right to file a complaint against public authorities.

fundamental principles in China’s policy framework
Environmental Protection Law 2015
Access to

environmental information
Pubic participation in decision-making
Access to justice

persons and other organizations shall, according to the law, have

the rights to obtain environmental information.
Information disclosure by public authorities
Information disclosure by private entities

(EIA)
Article 56, EPL 2015: for a construction project for which

an environmental impact assessment is required by the law, when preparing such a EIA report, the construction entity shall fully inform the public and solicit their opinions.
If the public concerned is not informed, the competent public authorities shall require the construction entity to fulfil this obligation.
Public hearing or inquiry

of environmental damage
No individual victim
Public interest litigation
Citizen suit

in U.S. in 1970s

Protection Law 2015
Administrative Procedure Law 2017
Ecological Environmental Damage Compensation Reform

2017

interest litigation

under the civil affairs department at or above the level

of a districted city;
Focusing on environmental protection for more than five consecutive years and without any record of violations.
NGOs should not seek for any economic benefit from bringing PIL.
NGOs could claim for monetary compensation in EIL.

may file a lawsuit against polluters when NGOs do not

bring a PIL.
Procurators play a supplementary role.

Administrative Public Interest Litigation
Article 25, Administrative Procedural Law
Procuratorate could file a suite against public authorities for failing to perform duties.
Procuratorial recommendations should be issued before bring the lawsuit to the court.

sue the polluters for the environmental pollution and ecological damage

caused by their activities
The coordination between PIL and ecological damage compensation
The coordination between enforcement authority and the right to compensation

of environmental rights
To encourage various actors to participate in

environmental matters.
To provide comprehensive safeguard to environmental rights and interests

actors
The division between administrative and judicial branch
The rise and fall

of NGOs in environmental protection