AN eva lUATION OF THE CHINESE LEGAL SYSTEM(六)
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upport of governments. This at the same time brings about new problems. Firstly, different from the environmental rights provided in the Constitution of some countries, China’s Constitution stipulates environmental protection as a state responsibility. This further reinforces the feature of government-leading. This practice has many advantages, but results in another problem. This approach lasted for more than thirty years and caused the public to depend on the government. For new mechanisms (such as recycling economy, clean production, low carbon life, environmentally friendly and energy saving society) that highly rely on public participation, indifference of the public may reduce their efficiency. Secondly, the major problem that exists in the government-led mechanism is divergences among departments caused by the division of power and duties. Table 1 shows an example in the general provisions of the legal fields. The types of provisions are basically at policy levels and have difficulty in being upgraded to laws and regulations. This directly affects the process of ruling by law on this most important area. In addition, practices 2013] CHINESE LEGAL SYSTEM ON SUSTAINABLE DEVELOPMENT 117 show that some local governments have negative opinions on public participation in environmental protection. With the historical background of “national policy,” Chinese governments would rather keep sustainable development above the public will, which negatively impacts public participation, human rights and good governance. Thirdly, the problem is deviation from objectives. In China, local governments have a decisive option in implementing sustainable development. In 2005, the Green GDP Assessment Project of the State Council was jointly rejected by local governments. This leaves a deep impression on people. Up till now, China’s green economy still faces great challenges.20 The main problem is that the Green GDP Assessment lessens the achievements of local governments and brings hardly any benefits to the project. When asked about the legislation on climate change and sustainable development, John R. Nolon and Patricia E. Salkin stated, “As a result, most of these state plans lack goals and strategies for the involvement of local governments and fail to recognize the benefits of municipal actions.”21 Similar problem exists in Europe. “It can be noted that with a few exceptions the European Union shows a clear preponderance of the executive branch of government in sustainability issues, while parliaments, as the actual lawmaking bodies, seem to have been pushed too far into the background, at the expense of trying to engage as wide and large a range as possible of conceivable stakeholder groups. It must be said that a more comprehensive involvement of parliaments would not only constitute a signal of unity, but support for the sustainability debate from within parliaments would also give the topic more attention and thus more weight among the general public. In addition, stronger involvement of parliaments might also result in 20 Some provinces showed great interest in this study. Thus, Beijing, Tianjin, Chongqing, Hebei, Liaoning, Zhejiang, Anhui, Guangdong, Hainan, Sichuan were finally designated to participate in tests starting from the beginning of 2005. The test includes: setting up regional environment accounting framework, launching surveys in losses caused by pollution and conducting environment accounting. After the publication of the “China National Green Accounting Report 2004,” some provinces requested to withdraw from the experiment. See Ke Zhou, 绿色GDP 缘何遭地方政府杯葛 (Analysis of Local Governments’ Boycott of Green GDP), 法制日报 (Legal Daily). Dec. 22, 2006. 21 John R. Nolon & Patricia E. Salkin, Climate Change and Sustainable Development Law in a Nutshell, West Publishing Co. (Eagan), at 52 (2010). 118 FRONTIERS OF LAW IN CHINA [Vol. 8: 103 better effectiveness with a view to implementation and further development of strategies. Parliamentary advisory boards for sustainable development could, for instance, constitute a focused means of support for and monitoring of related government policies. As a consequence, the quality of the legal provisions adopted in this domain would be improved, and governments would be in a better position to assess the economic, social and ecological consequences of the measures adopted.”22 C. Basic Economic Laws of Utilitarianism and Socialism The two elements “development” and “restriction” of sustainable development might easily be associated with utilitarianism. In fact, the American recognition of the binary purposes of environmental protection and China’s imbalanced development policies, such as “focusing on economic construction” and “letting a group of people get rich first,” demonstrate the features of utilitarianism, and add local features to sustainable development. Utilitarianism infuses vigor to sustainable development, but over consumes its sustainability at the same time. In China, utilitarianism has spontaneous relations with basic economic laws of socialism. This relation threatens the purity of sustainable development and might even lead sustainable development to astray. The basic economic law of socialism (hereinafter, the “basic law”) is “to ensure the satisfaction of people’s increasing material and cultural requirements to the maximum by increasing socialist production on the basis of intense technology.”23 This basic law inherits the principles of British utilitarianism. But it is the regress of Bentham’s theory of “the greatest happiness of the most majority of people.” On the other hand, utilitarianism is on the opposite side of the essential requirements of sustainable development. The first difference is to what extent to satisfy the needs of people. The Basic Law claims to meet the maximum material and economic requirements, whereas sustainable development stresses to meet human being’s basic needs. In 2001, 22 Sustainability Strategies in the European Union and Options for Underpinning Them in the National Parliaments. An Expert Study by Forum Sustainable Austria commissioned by the Federal Ministry of Agriculture, Forestry, Environment and Water Management. 23 Josef Stalin, Economic Problems of Socialism in the U.S.S.R., People’s Publishing House (Beijing), at 31 (1975). 2013] CHINESE LEGAL SYSTEM ON SUSTAINABLE DEVELOPMENT 119 Science published a thesis by 23 world famous sustainable development scholars. In this thesis, sustainable development is defined as “the essence of sustainability is how to maintain the earth sur |
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