Development of environmental rights in China: substantive environmental rights or procedural environmental rights

• Author: ZHU Xiao, WANG Shenghang, Eva-Maria Ehemann
• Pages: 24-56

FRONTIERS OF LAW IN CHINA

VOL. 12 MARCH 2017 NO. 1

DOI 10.3868/s050-006-017-0003-6

FOCUS

PUBLIC PARTICIPATION IN ENVIRONMENTAL PROTECTION

DEVELOPMENT OF ENVIRONMENTAL RIGHTS IN CHINA: SUBSTANTIVE

ENVIRONMENTAL RIGHTS OR PROCEDURAL ENVIRONMENTAL RIGHTS

ZHU Xiao*, WANG Shenghang**, Eva-Maria Ehemann***

Abstract The relationship between environmental and human rights is very significant.

On this basis, humans shall have the right to claim to live in a healthy environment. In

China, the study of environmental rights began in the 1980’s. After more than thirty

years of discussions on environmental rights, there are a series of environmental rights

theories in China. However, scholars have not formed a consensus on some fundamental

theories of environmental rights. Moreover, some experts consider that environmental

rights include substantive environmental rights and procedural environmental rights,

whereas others argue that environmental rights only include substantive environmental

rights. Furthermore, the nexus and difference between the right to environment and

environmental rights are not clear. “Environmental rights” are treated as a broad concept,

its scope includes all rights which are related to the environment. They certainly do not

only include substantive, but also procedural environmental rights. Even though the

introduction of substantive environmental rights has faced both legislative and practical

difficulties, the topic has become a central issue in Chinese academic research.

Keywords environmental right, substantive right, procedural right

INTRODUCTION ...................................................................................................................... 26

I. OVERVIEW OF ENVIRONMENTAL RIGHTS THEORY .................................................... 26

A. Statistics of Research of Environmental Rights in China ..................................... 27

B. The Main Theories of Environmental Rights in China......................................... 28

1. Narrow Environmental Rights Theory.............................................................. 28

* (竺效) Ph.D. in Environmental Law, School of Law, Renmin University of China, Beijing,

China; Professor in Environmental Law, School of Law, Renmin University of China, Beijing 100872, China.

Contact: x.zhu@ruc.edu.cn

** (王盛航) Ph.D. Candidate, School of Law, Renmin University of China, Beijing 100872, China. Contact:

sh.wang@ ruc.edu.cn

*** Eva-Maria Ehemann, Ph.D. Candidate, Faculty of Law, LMU Munich, Munich, Germany. Contact:

eva.ehemann@jura.uni-muenchen.de

2017] DEVELOPMENT OF ENVIRONMENTAL RIGHTS IN CHINA 25

2. General Environment Rights Theory................................................................ 29

3. Negative Environmental Rights Theory........................................................... 29

C. Understanding of Environmental Rights .............................................................. 29

1. The Definition of the Right to Environment..................................................... 29

2. The Definition of Environmental Rights.......................................................... 30

3. Discrimination of Substantive Environmental Rights and Procedural

Environment Rights.......................................................................................... 30

II. PARADIGM SHIFTS WITHIN HUMAN AND ENVIRONMENTAL RIGHTS IN WESTERN

DEVELOPED COUNTRIES........................................................................................... 31

A. The Development of the Nexus between Ecological and Human Rights on the

Level of the United Nations ................................................................................ 31

B. Environmental Rights Legislation in the United States ....................................... 34

C. The Dilemma of Substantive Environmental Rights Legislation in Japan........... 37

D. Environmental Rights in the European Union and European Countries ............ 38

1. Environmental Implications within the European Charta of Human Rights and

the European Charter of Fundamental Rights................................................. 39

2. Procedural Rights in Environmental Matters in Europe: The Aarhus

Convention...................................................................................................... 40

3. Substantive Environmental Rights Guaranteed in European Nation

States............................................................................................................... 41

III. TRANSFORMATION OF DISCUSSION ON SUBSTANTIVE AND PROCEDURAL

ENVIRONMENTAL RIGHTS IN CHINA ....................................................................... 43

A. The Dilemma of Substantive Environmental Rights in China ............................43

1. The Dilemma of Substantive Environmental Rights Legislation.................. 43

2. The Dilemma of Execution of Substantive Environmental Rights................ 43

3. The Dilemma of Research of Substantive Environmental Rights................. 44

B. The Development of Procedural Environmental Rights in China...................... 45

1. Improvement of Procedural Environmental Rights Legislation.................... 45

2. Theoretical Study of Procedural Environmental Rights Increased................ 45

IV. PRACTICE OF PROCEDURAL ENVIRONMENTAL RIGHTS IN CHINA ........................... 46

A. Emergence and Content of Procedural Environmental Rights in China ........... 46

1. Emergence of Procedural Environmental Rights in China............................ 46

2. Content of Procedural Environmental Rights in China................................. 47

B. Practice of Disclosure of Environmental Information in China ........................ 48

1. Development of Legislation on Disclosure of Environmental Information in

China ............................................................................................................. 48

2. Disclosure of Governmental Environmental Information............................. 49

3. Disclosure of Enterprise Environmental Information.................................... 50

C. Practice of Public Participation in Environmental Protection in China........... 51

1. Development of Public Participation in Legislation in Environmental

Protection....................................................................................................... 51

26 FRONTIERS OF LAW IN CHINA [Vol. 12: 24

2. Public Participation Approaches in Environmental Protection...................... 52

D. Practice of the Right of Access to Justice in China........................................... 54

1. Litigation with Respect to Compensation for Environmental Pollution

Damage.......................................................................................................... 54

2. Environmental Public Interest Litigation ...................................................... 55

CONCLUSION.......................................................................................................................... 56

INTRODUCTION

Since the 1970’s there has been a profound discussion on whether substantive

environmental rights should be incorporated in international human rights treaties,

nevertheless an explicit recognition has not taken place. On the domestic legislative level,

many countries and regions have established environmental rights within their

Constitutions. Since the 1990’s, many scholars have changed the research mentality,

focusing on the study of procedural environmental rights from substantive environmental

rights. After critical discussion on the principal theories of environmental rights in China,

it can be summarized that environmental rights include both substantive and procedural

environmental rights. Furthermore, there is a certain dilemma of the study of

environmental rights in China, because the Chinese Constitution does not clearly define

the right to environment. While research and legislation of substantive environmental

rights show a slow progress, procedural environmental rights legislation has made some

achievements.

First, the article analyzes the main theories of environmental rights in China. In this

part, the definition of environmental rights and the right to environment, and

discrimination of substantive and procedural environment rights are mainly discussed. In

the second part, this article analyzes the situation of the US, Japan and the European

Union, to find the reasons for the shift in legislation from substantive to procedural

environmental rights in developed countries. Part three discusses the dilemma of

substantive environmental rights in China and the development of procedural

environmental rights in China. The final part provides an introduction of the practice of

procedural environmental rights in China, including the system of environmental public

participation and environmental information disclosure as well as environmental public

interest litigation.

I. OVERVIEW OF ENVIRONMENTAL RIGHTS THEORY

In China, the study of environmental rights began in the 1980’s. “Citizens Should

Have Environmental Rights — Discussion on the Environment, Law, and Citizenship

Issues,” the first article on environmental rights, was published by Professor LING

Xiangquan in 1981. He argued that environmental rights form a necessary precondition

for the realization of labor rights and recommended the establishment of specific

provisions in the new constitution. Another article relating to that topic, “Discussion on