1 College of Humanities and Law, Shandong University of Science and Technology (Qingdao, Shandong, China)
2 College of Humanities and Law, Shandong University of Science and Technology (Qingdao, Shandong, China)
Received: 29 August 2021 / Accepted: 3 October 2021 / Published: 1 December 2021
Environmental damage has become one of the most significant issues encountered by Chinese society today. The Public interest litigation system is a promising opportunity for the right access to justice in environmental litigation in China. The country has made some positive significant progress for the right access to justice in environmental matters through the current system; the system consists of civil environmental public interest litigation and administrative environmental public interest litigation. Inherent to the basic principles of human rights, there are more challenges face by the system on the right to access to justice in China. The procuratorates have standing in both, civil and administrative, whereas environmental protection social organizations, who are permitted to undertake civil cases, are in practice marginalized. Individuals, on the other hand, do not have standing in the either civil or administrative environmental public interest. This article is done to analyze the present challenges that China faces to protect and improve the right of the plaintiff in environmental litigation; analyzing and improving laws, regulations and policies; also enforcing the right to access to justice, as laws and regulations play a key role in innovation processes. Some possible suggestions on how to better establish a legal aid system and rapid of the public interest litigation system, which, so far, has almost systematically led to court decisions favorable to the indirect participation of individuals as the plaintiff. Therefore, it is important to see how the public participation mechanism impacts in practice their behaviors. Compared to individuals’ indirect participation, environmental and social organizations’ participation helps balance state power and social rights. Creating a legal framework in which innovations can develop and unfold.
Keywords: environmental litigation, environmental social organizations: non-government organizations (NGOs), environmental public interest litigation, environmental matters, China
Article 41 (2018) The Constitution of The People’s Republic of China (promulgated in March 2018 ).
Article 55 (2017) The Civil Procedure Law of the People’s Republic of China, revised on June 27, 2017. Process of legal standing in environmental litigation. Revised on 27 February 2020.
Article 58 (2015) The Environmental Protection Law of the People’s Republic of China (into force in January 2015 ), Conditions for plaintiffs to sue the court in environmental matters.
Article 7, The Supreme People’s Court (2015) The interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the hearing of Environmental Civil Public Interest Lawsuit. Available online: https://www.sohu.com/a/1564917_17087.
Articles 9 and 26 (2018) The Constitution of the People’s Republic of China, promulgated in March 2018.
Beyer, S. (2006) Environmental law and policy in the people’s republic of China. Chinese J. Int. Law, 5, 185.
Canfa, W. (2018) What Impacts Have China’s Amended Environmental Protection Law Made. Available online: https://chinawaterrisk.org/opinions/environmental-law-2-years-on/.
Client Earth (2019) A new force in China’s environmental public interest litigation. Available online: https://www.clientearth.org/latest/latest-updates/opinions/a-new-force-inchina-s-environmental-public-interest-litigation.
Deng, G. (2015) The influence of elite philanthropy on NGO development in China. Asian Study Review, 39, 22-42.
Development (2020) Public Participation and Sustainable development online module. Available online: http://www.docstoc.com/docs/44508222/Public-Participation-andSustainable-Development-On-Line-Module.
Daniel, C-G. (2015) Castles made of Stand: Public-Interest Litigation and China’s New Environmental Protection Law. Harvard Environmental Law Review, Vol 39, 242-273.
Fang, K., Wei, Q., and Kathryn, K.L. (2017) Protecting the Public’s Environmental right-toknow: Development and challenges in China’s Legislative system for EEID, 2007-2015. Environmental Law Journal, 285-315, Oxford. https://doi10.1093/jel/eqx014., 29.
Haichao, W., and Songshu, H. (2018) Examination of the issues concerning environmental civil public interest litigation. Chengdu University of Technology Journal, Social Science Edition, 14.
Han, S.L. (2017) Background Memorandum: Public Interest Litigation in China. Paul Tsai China Center of Yale Law School, 6.
Huang, Y., and Kong, J. (2019) The breaking and establishment of plaintiff qualifications in environmental civil public welfare litigation-stakeholders in the procedure of legal fiction. Shenyang University of Technology Journal, Social Science (Chinese version), 6.
IISD (2015) International Institute of Sustainable Development and the Development Research Center of the State Council, Greening China’s Financial System. Canada: The IISD, https://doi:978-1-894784-74-0.
Jiang, B. (2019) Practical development and system improvement of environmental public interest litigation in China. Asia Pacific Journal of Environment, Issue 1 (Chinese version), 26.
Jiang, H., Blazey, P., Wang, Y., and Alishiabor, H. (2020) China’s new approach to environmental governance and environmental public interest litigation. Asia Pacific Journal of Environmental Law, Vol. 23, No 1, 73.
Jin, W. (2019) Textbook Series for 21st Century: Environmental Law. Beijing: Peking University Press.
Jingjing, L. (2012) Environmental Justice with Chinese Characteristics: recent development in using Environmental public interest litigation to strengthen access to environmental justice. Florida A&M University Law Review, Forthcoming, Vermont Law School Research Paper, Vols 24-12. Available online: https://ssrn.com/abstract=2146002, 42.
Jurors, 15-16 (2018) Law of the People’s Republic of China on People’s Jurors. National People’s Congress.
Lei, X., and Lu, X. (2021) Environmental Public Interest Litigation in China: A Critical Examination. Transnational Environmental Law. Cambridge University Press, Vol 44, Available Online https://doi:10.1017/S2047102520000448., 25.
Li, B., and Fang, L. (2018) Social organizations and community service delivery in China. UNRISD. Available online: www.unrisd.org., 35.
Lin, Y. (2019) The Dilemma and outlet of social organization participation in environmental public interest litigation. Heilongjiang Ecological Engineering vocational Journal, Vol 10, UNRISD, Geneva, Available online: www.unrisd.org., 5.
Lei, L., Pu., W., and Tong, W. (2017) The role of non-governmental organization in China’s climate change governance. Wiley interdisciplinary Review, Climate Change 8(6):e4383, https://doi:101002/wcc.483, 8.
Lingke, Z. (2019) The System defect and improvements of the plaintiff qualification in Environmental Civil Public Interest Ligation. Academic World, (Chinese version), 12.
Ma, J., Wang, Q., and Dong, C. (2015) The Research Infrastructure of China Foundations: Database Introduction and User Manuel. Rochester: Social Science Research Network, Available online: https://papers.ssrn.com/abstract=2896414, 3.
Mehran, I.K., and Chang, Y.C. (2018) Environmental Challenges and Current Practice in China-A Thorough Analysis. Sustainability Journal. www.mdpi.com/journal/ sustainability., 11.
Miao, H. (2019) Sustainable Development through the right to access to justice in environmental Matters in China. Sustainability Journal, www.mdpi.com/journal/ sustainability., 3.
Miaomiao, L. (2017) Analysis on the construction of qualifications for Civil Public Interest Litigation Subjects of social organizations. Social Science, (Chinse version), 7.
Mingjie, M. (2020) Research on Legal Issues of Civil Public Interest Litigation of Chinese Environmental Protection Social Organization; The 2015 Ministry of Education Humanities and Social Youth Fund Project Research Achievement (Project No. 15YJC80042). Macau University of Science and Technology, (Chinese version), 34.
Mingjie, M. (2014) Examination of the subject qualification of the environmental protection agency of the plaintiff in environmental civil public interest litigation. Inner Mongolia Social Science, (Chinese version), 23.
OECD (2015) China in a changing Global Environment. Organization for Economic Co-operation and Development. Paris, www.oecd.org/china.
Okonkwo, T. (2017) Adjudicating International Environmental Law Litigation: recent development of cases Law. Beijing Law Review. https://doi.org/10.4236/blr.2017.83014., 8, 239-251.
Qi, G. and Sean, W. (2019) Standing to Sue Beyond Individual Rights: Who should be eligible to bring environmental public interest litigation in China? Cambridge University Press, 2, Vol 8. https://doi.org/10.1017/S2047102519000141., 327-347.
Richard, Z.Q., and Benoit, M. (2017) Public Interest Environmental Litigation in China. China Journal of Environment, 11-15.
Rio Declaration (June 1992) The Rio Declaration of the United Nations Conference on Environment and Development. UN Rio Declaration: Available online: https://www.un.org.
Report (2020) The Report Launch of China Environmental Resources Trial and the Typical Case pf the year, and China Environmental Justice. Aavailable online: http://www.scio.gov.cn/xwfbh/gfgixwfbh/xwfbh/44193/Document/1706339/1706339.htm.
The Supreme People’s Court (2016) White Paper on China’s Environmental Resources Trials. Available online: https://mp.weixin.qq.com/s?__biz=MzA4NzUyMzY2NA==&mid=2649929670&idx=1&sn=8ec3f633d2e643baa12993a2748d6092.
The Supreme People’s Court (13 July 2017) The Supreme People’s Court Issued the White paper on China’s Environmental Resources Trial (2016-2017). Available online: https://www.sohu.com/a/1565917_17087.
The Supreme People’s Court (2015) Interpretation on Several Issues concerning the Application of Law in Civil environmental public interest litigation. Beijing.
Tiantian, Z., and Yen-Chiang, Ch. (2018) Standing of Environmental Public-Interest Instigation in China: Evolution, Obstacles and Solutions. Journal of Environmental Law, Vol, 14, 64-374X, 3.
UDHR (1948) The Universal Declaration of Human Rights, UDHR. OHCHR: Available online: www.ohchr.org.
UNEP (2015) The Financial System we need, Aligning the Financial System with Sustainable Development. US, The UNEP Inquiry Report. US: Available online: www.unep.org/inquiry/.
Volpe, M. (2018) International ENGOs in China: A Significant Presence and a Fast-Changing Reality. Sin. His., Vol 5, https://doi:10.18002/sin.v5i25413., 13.
Xi, Y. (2015) The difficult survival of environmental NGOs. Innovative Finance Observation. Available online: https://finance.sina.com.cn/roll/20150315/134821724327.shtml., 17.
Xin, J. (2018) The deep challenges of current social organization participating in environmental governance and solutions. Shandong Social Science, 9.
Yuchen, Z. (2018) Analysis on the qualification of plaintiffs in Civil Public Interest Litigation in China. Hubei University of Economics Journal, Social Science Edition (Chinese version), 23.
Zhang, Q. (2020) NGOs and the Environmental Public Interest Litigation in China. Hong-Kong: CUHK LAW, Faculty online seminar, 1.
Zhilin, M., Shuchun, B., and Bing, X. (2014) Environmental legislation in China: Achievements, challenges and trends. Sustainability Journal. www.mdpi.com/journal/sustainability
Zui, G., et al. (2010) The Supreme People’s Court’s several opinions on providing judicial guarantee and service for accelerating the transformation of economic development mode. China, Supreme People’s Court 2010. Available online: https://green.sina.com.cn/news/roll/2011-01-18/152121834363.