The Idea of “Codification” of Human Rights to Environment
November 13,2022   By:CSHRS
The Idea of “Codification” of Human Rights to Environment
LYU Zhongmei* & ZHANG Bao**
Abstract: As China has embarked on a new journey to comprehensively build a modern socialist country and marches toward the Second Centenary Goal,improving the protection of human rights in environmental protection has become a key task to meet people’s growing demand for a better life. The international community has reached a consensus on the human rights attribute of environmental rights, and China has also recognized it in its National Human Rights Action Plan of China (2021-2025). Early claims for environmental human rights gave birth to modern environmental law at the international level, while the global consensus on sustainable development promoted the new development of environmental human rights. In China, the construction of a “beautiful China” has become the national goal confirmed by the Constitution. The confirmation of environmental rights in the planned environmental code can further clarify the connotation of the value system of the code and help clarify the institutional structure and attribution logic of the code. Based on the subjective right and objective value of environmental rights, the specific scheme for the “codification” of environment rights is to construct the system from three levels of ontological provision, guarantee provision and relief provision.
Keywords: environmental human rights · compilation of China’s environmental code · national obligation of protecting human rights · construction of the system of environmental rights
General Secretary Xi Jinping stressed in his speech at the 37th group study session on February 25, 2022, that respecting and protecting human rights is an unremitting pursuit of the Communist Party of China (CPC). The Party’s century-long history of struggle was marked by its unremitting efforts to unite and lead the people in fighting for, respecting, protecting, and further developing human rights. As China has embarked on a new journey to comprehensively build a modern socialist country and march towards the Second Centenary Goal, we need to promote the all-round development of human rights, adhere to the path of human rights development in China, respond to the people’s expectations for a better quality of life, constantly meet people’s ever-growing demands for rights in various aspects, promote the coordinated development of economic growth, democracy and the rule of law, ideology and culture, fairness and justice, social governance, and environmental protection, and improve the protection of all human rights in an all-round way while promoting the coordinated material, political, spiritual, social, and ecological progress.1 In 2021, the Standing Committee of the National People’s Congress included the study on the compilation of the environmental code into its legislative work plan.2 In 2022, the Standing Committee of the National People’s Congress will continue to compile the environmental code in mature areas of legislation.3 In the process of compiling the environmental code, it is an important task to deeply understand the significance of environmental human rights and put forward a reasonable “codification” scheme to implement Xi Jinping Thought on the Rule of Law and ecological civilization and improve the human rights protection in environmental protection in China.
I. Environmental Rights as the Source and Flow of Human Rights
Human rights and environmental protection are intertwined and interdependent. A clean and healthy environment is necessary for the enjoyment of fundamental human rights such as the rights to life and health. On the contrary, respecting and protecting human rights is also an effective guarantee for promoting environmental protection. For this reason, the relationship between human rights and the environment has attracted extensive attention from the international community, and the calls for recognition of the human right to a clean and healthy environment continue. On October 8, 2021, the United Nations Human Rights Council adopted Resolution 48/13, formally recognizing the right to a clean, healthy and sustainable environment as an important human right and recommending the United Nations General Assembly recognize it, too.4 The National Human Rights Action Plan of China (2021-2025) issued by the State Council Information Office of China in September 2021 officially regards environmental rights as a kind of human rights on par with economic,social, and cultural rights, civil rights, and political rights, which indicates that the human rights attribute of environmental rights has been recognized in national policies.5
Viewed from the development history of human rights, the development of environmental rights can be roughly divided into two stages with the 1990s as the dividing line: the first stage before then was mainly initiated by developed countries, and the second stage since then is mainly being driven by developing countries. However, at any stage, the right to a clean and healthy environment is closely linked with and accompanied by human rights.
A. Stage 1: The claim for environmental human rights giving rise to the modern environmental law
Environmental problems are closely related to modernity, or they are a prominent manifestation of modernity. Around the beginning of the 20th century, faced with the increasing environmental problems brought about by the Industrial Revolution, countries were forced to enact several pollution-related laws. However, these early measures for pollution control did not take environmental protection as an independent legal concept, but as a link of industrial regulation at most, which required the prevention of direct damage to neighboring parties from industrial activities. In essence, it was an extension of real estate relations in the field of private law in public law.6 Led by this thinking, these few laws showed the value orientation of respecting industrial freedom to the maximum extent. The state could not intervene in the use of the ecological environment, as public goods that could be freely accessed, as long as it did not cause significant harm to the health and property of the people, thus forming the legal principle restricting the exercise of administrative power.7
In the 1960s, Rachel Carson’s famous book Silent Spring opened the door to the modern environmental movement, thus setting off the first wave of the environmental movement worldwide. As people were shocked at the serious consequences caused by environmental problems to their life and health, they began to appeal to the state to take active measures to protect and improve the environment. However, under the traditional rule of law principle, the state only had the negative obligation of not infringing on civil freedom and providing minimum survival care. According to this idea, environmental problems could hardly be regulated by the government without legal authorization and a definite awareness of the damage. Therefore, people tried to “green” existing human rights, especially the rights to life and health, as the foundation of legitimacy and justification for the state to undertake the task of environmental protection,8 and held that the rights to life and health cover human rights to the minimum requirements for environmental conditions.9 But, in the traditional law, the core of the right to life was only to provide the minimum level of subsistence security, and the “good” environment is not under the obligation of the state; the right to health focused primarily on the prevention and treatment of human diseases, and the government had no right to intervene if there was no causal link between the environment and health. Therefore, only when the source of the task was legitimate, could citizens require the state to undertake the task of environmental protection. Thus, environmental rights were put forward as a kind of human rights, because protecting human rights was the value of the state’s existence and the legitimate basis for the exercise of national rights.10
As the environmental protection movement swept across the globe, countries began to study the legal response to environmental problems. In 1968, Sweden promoted the adoption of the UN Resolution 2398 on the convening of a global conference on the human environment, calling for a global debate on the legal basis of the right to a sound environment.11 In 1972, both the Preamble and Principle I of the Stockholm Declaration adopted at the United Nations Conference on the Human Environment recognized the link between human rights and environmental protection. During the drafting of the declaration, some countries, represented by the United States, suggested the inclusion of “the right of everyone to a healthy and safe environment,” but developing countries preferred the statement in Principle I of the declaration, that is, to recognize the “fundamental rights of human beings to freedom, equality and adequate conditions of life,” rather than the right to a healthy environment itself.12 It is not hard to see that developing countries still focused on the right to subsistence at that time. Although the claim for environmental rights as a kind of independent human right was not established at the conference, the discussions before and after the conference on the relationship between the environment and human rights significantly promoted the efforts of developed countries to protect human rights and take environmental protection as a basic task that countries under the rule of law should undertake, either because environmental degradation would affect the “fundamental right to adequate conditions of life” or because people have an independent and fundamental right to a clean and healthy environment, thus giving birth to the environmental law in the modern sense.13 With the 1976 Constitution of Portugal as the starting point, the legislation of environmental rights officially started.14
However, before the early 1990s, the promotion of environmental human rights was not very smooth at the level of international and domestic laws. In the 1970s and 1980s, there were only a dozen countries that “incorporated” environmental rights into their constitutions. Major developed countries, such as the United States, Germany, France, and Japan, did not amend their constitutions to establish environmental rights. In particular, the United States reversed its support for independent environmental human rights at the Stockholm Conference and firmly opposed the inclusion of independent environmental human rights in the Rio Declaration.15 Some scholars asserted that the theory of environmental rights had fallen into disuse.16 Objectively speaking, this judgment was roughly in line with the situation at that time. But in the new century, things have become very different.17 The fundamental reason for the temporary silence of environmental rights lied in the accomplishment of their “phased historical mission.” Namely, as the basis of human rights and natural laws calling on the state to assume the responsibility of environmental protection, they spawned modern environmental law. Since the developed countries had promulgated environmental laws and established a relatively comprehensive environmental law system, it was no longer a top priority to recognize environmental rights in their constitutions. Due to the difficulty of constitutional amendment and the crisis response of the environmental law, the research on environmental rights inevitably stagnated as there was no new demand for environmental rights and fundamental rights must be established.
B. Stage 2: Sustainable development promoting consensus on environmental human rights
The United Nations Conference on Environment and Development held in 1992 put forward the view of sustainable development and reached a global consensus. Also, the Rio Declaration did not recognize independent environmental human rights, but declared in Principle I that “Humans have the right to a healthy and productive life in harmony with nature.”18 According to the debate at the conference, the absence of environmental rights in the declaration was not an oversight, but a deliberate arrangement.19 However, the greatest contribution of the Rio Declaration was the establishment of the principle of sustainable development, which promoted environmental protection into the national strategies of all countries, thus triggering a new round of upsurge in the incorporation of environmental rights in constitutions. By the end of 2019, 156 countries established environmental rights directly or indirectly, among which 110 protected environmental rights through the constitution, 126 ratified regional treaties that explicitly contained the right to a healthy environment, and 101 made clear provisions on environmental rights in environmental legislation.20 After decades of continuous efforts at the level of domestic and international laws, the United Nations Human Rights Council ultimately adopted a resolution in 2021 formally recognizing environmental rights as a kind of human right. Although the resolution is not legally binding, its nearly unanimous votes (43 votes in favor, none against, and 4 abstentions) indicated the international community’s consensus on the expression, content, and importance of environmental rights, which was a milestone and a catalyst for receiving more recognition of environmental rights internationally and domestically.21
The research on environmental rights reached a new climax around 2000, which essentially resulted from the new global cognition brought by the change in the global environmental situation. Because of the first concentrated outbreak of environmental problems in the developed countries around the 1970s, environmental rights, as the basis for people in these countries demanded the state assume national environmental obligations, “cooled down” naturally after completing their historical mission. But since the 1990s, the severity of global environmental problems has once again sounded the alarm, with the environmental crisisclearly a human survival and development emergency, forcing people to think about the protection of environmental rights on a larger scale and a deeper level. With the rapid development of economic and industrial globalization, pollution has shifted from developed countries to developing countries. New environmental problems keep emerging, and old environmental problems have spread from local areas to all parts of the world in new forms and evolved from individual problems to systemic problems. On the one hand, the problems of environmental pollution and ecological damage in developing countries have become increasingly serious, exposing the obvious deficiencies in the basic framework of their environmental legal systems, which have been established but are still fragile in most developing countries,22 making developing countries face a similar situation to that faced by the developed countries in the 1970s. However, in the 1970s, the people wanted to force the state to establish an environmental regulation system through environmental rights, now the people hope that they can enjoy a higher level of protection from the state through environmental rights. In essence, they both require the state to protect the fundamental human right of citizens to a clean and healthy environment.
On the other hand, in the face of new environmental problems such as global climate change, biosecurity, energy depletion, accidents and leaks at nuclear power plants, and hazardous chemicals, developed countries are also confronted with more new difficulties in environmental protection, which leads to the rising of people’s voices for the establishment of independent environmental human rights.23 Therefore, although developing and developed countries do not agree on the manifestations of environmental problems and the severity of environmental regulations, they have reached a consensus on protecting the human rights of citizens to a clean and healthy environment. Resolution 48/13 of the UN Human Rights Council fully embodies the process of reaching this consensus: In September 2020, the representatives of Costa Rica, Morocco, Slovenia, Switzerland, and the Maldives formed a core group on human rights and the environment, and began to discuss and solicit views on the possibility of recognizing environmental human rights at the international level; By March 2021, countries that were reluctant to recognize environmental rights, such as Germany, began to recognize the rights, and 15 UN agencies and more than 1,000 non-governmental organizations offered their support. Six months later, the resolution was adopted.24
C. China’s policy recognition of environmental human rights
In 1972, heeding the alert of international environmental problems, China sent a delegation to the United Nations Conference on the Human Environment, which started China’s exploration of modern environmental protection. In August 1973, China held its first national conference on environmental protection and formulated the first comprehensive normative document on environmental protection. In 1978, the Constitution of China stipulated for the first time the state’s obligation for environmental protection. In 1979, China enacted its first comprehensive environmental protection law and began the process of enacting individual environmental protection laws. In 1982, China’s Constitution reaffirmed the state’s obligation to environmental protection, promoted the legislation of environmental protection onto the “fast track,” and gradually established a relatively complete legal system for environmental protection. In 1992, the Chinese delegation attended the United Nations Conference on Environment and Development, put forward China’s ten policies for sustainable development, and signed Agenda 21 at the conference. While actively participating in the negotiations of several UN ecological and environmental conventions, China incorporated sustainable development into its national strategy and several national laws. Entering the new era, China has accelerated the pace of ecological civilization construction and continuously improved the level of the rule of law in ecological and environmental protection. In 2018, the Amendment to the Constitution of China included “ecological civilization” in the Constitution, and clarified the national goal of building a “beautiful China”, the national task of protecting and improving the ecological and living environment, and the function of the State Council for ecological and environmental improvement, thus achieving the incorporation of departmental laws in the Constitution.25
Academically, Chinese scholars continued to study the human rights attributes of environmental rights. In the early 1980s, some scholars proposed that environmental rights should be incorporated into the Constitution, which kicked off the research on environmental rights.26 After the United Nations Conference on Environment and Development, the research of environmental law scholars on environmental rights reached a climax and achieved more fruitful results;27 at the same time, constitutional scholars began to pay attention to this field and proposed that China’s constitution had established “environmental rights” from the perspective of constitutional interpretation.28
In terms of human rights policies, China issued four editions of the “National Human Rights Action Plan” in 2009, 2012, 2016, and 2021 consecutively, gradually clarifying the human rights attribute of environmental rights.
In the first three editions of the National Human Rights Action Plan of China, “environmental rights” are not defined separately, but as a part of the “Protection of Economic, Social and Cultural Rights.” The first and second editions state that the goal of national environmental protection is to “strengthen environmental protection”, while the third edition states that it is to “implement the strictest environmental protection system.”29 The National Human Rights Action Plan of China (2021-2025) released in September 2021 first defines “environmental rights” as independent fundamental human rights, sets them on par with economic, social, and cultural rights and civil and political rights, and puts forward the action goal to “adhere to the principle that lucid waters and lush mountains are invaluable assets, remain committed to respecting nature, following its ways and protecting it, promote harmonious coexistence of humans and nature, promote ecological progress and build a beautiful China, so as to create a sustainable environment for human beings and later generations.” The protection scope of environmental rights has also expanded from pollution prevention and control to ecological protection and climate change, and the means of protection has shifted from government leading to multi-party governance. The importance of protecting the right to be informed, the right to participate, and the right to action has been emphasized.30 This shows the ruling idea and state position that the human rights attribute of environmental rights has been recognized, and the protection level of environmental rights has been constantly improved under the guidance of Xi Jinping’s Thought on an Ecological Civilization.
The Constitution of China specifies the national task of ecological civilization construction, and the compilation of the environmental code, as an important means to undertake national tasks and perform national duties, provides a constitutional basis for the incorporation of environmental rights into the environmental code. The substantial progress in the claim for environmental human rights at home and abroad has provided good conditions for the codification of environmental rights. So, what is the significance of establishing environmental human rights for the compilation of the environmental code? How should the environmental code provide institutional guarantees for environmental human rights? All these are theoretical and practical questions that must be answered by the environmental code under study.
II. Unique Function of Environmental Human Rights in the Compilation of Environmental Code
The compilation of the environmental code aims to provide a systematic, coordinated and implementable legal system guarantee for realizing the goal of building a modern country with harmonious coexistence of humans and nature.31 On the one hand, as the highest form of ecological environment legislation, the environmental code should respond to the environmental rights that reflect the harmonious coexistence between humans and nature and require the state to provide more high-quality ecological products to meet people’s growing needs for a beautiful ecological environment. On the other hand, the codification of environmental laws is inseparable from environmental human rights, which play a special role in integrating the value system with sustainable development as the core, communicating the institutional logic of the environmental code, and clarifying the attribution idea of the environmental code. The irreplaceability of environmental human rights must be recognized.
A. Environmental human rights are integrated into the value system of the environmental code
The United Nations Human Rights Council declared that “having a clean, healthy and sustainable environment is a human right.”32 Thus, sustainability is an important criterion for defining environmental human rights. This not only shows the close relationship between sustainable development and environmental human rights but also reflects the important role of environmental human rights in the realization of the Sustainable Development Goals.
There are two obvious differences between the environmental code, as a legal means to undertake the national task of ecological environment protection, and the civil code. First, it must take the implementation of national strategies as the value goal, and second, it must pursue the substantive rule of law. As a result, the environmental code cannot take rights as the main line like the civil code, nor can it only focus on a formal system of legal norms. In comparative jurisprudence, this is evident no matter what approach countries take to compile the environmental code.33 In China, as a strategy of administering a country, ecological civilization construction aims to achieve sustainable development of the Chinese nation.34 Therefore, China’s compilation of the environmental code can take sustainable development as the teleological value and logic thread that represent the institutional civilization of the new era, to expand the values of fairness, justice, and security of traditional laws based on the combination of instrumental rationality and value rationality of sustainable development, and form a value system with sustainable development as the teleological value and ecological security, environmental justice, intergenerational fairness and public interest protection as the instrumental value.35
In terms of teleological value, sustainable development aims to meet the needs of present and future generations, indicating its logic of “ecological sustainability as the basis, economic sustainability as the condition, and social sustainability as the goal”, which inevitably involves the balance of economic, social and environmental interests. In the context that the rights to subsistence and development, which represent economic and social interests, have been recognized as human rights by laws and policies, the legal confirmation of environmental human rights will offer basic rights basis for the “balance,” “weighing” and even “rival” between the environment and economic and social interests, provide “people-oriented” values for the “three kinds of sustainability” within sustainable development, promote the sequential selection of “social sustainability as the goal — ecological sustainability as the basis — economic sustainability as the condition,” and form the framework sequence of pollution control, natural ecological protection, and green and low-carbon development36 to prevent environmental codes and standards from deviating from the track of promoting all-round human development.
In terms of the instrumental value, the views of humans, the future space and the system of sustainable development have posed a great challenge to the basic values of fairness, justice, order, and security of traditional laws, requiring environmental legislation to update traditional legal values and establish new values that meet the requirements of ecological and environmental protection, such as ecological security, environmental justice, intergenerational equity, and public interest protection. As a new type of human rights, environmental human rights have distinctive characteristics of collective rights and appear in the form of “bundles of rights,” rather than a single right.37 The legal confirmation of environmental human rights will provide specific forms of right expression for environmental law values such as ecological security, environmental justice, intergenerational equity, and public interest protection, which not only combines the teleological value and instrumental value of sustainable development but also provides internal logical support for the compilation of the environmental code.
From the current situation of China’s environmental legislation, environmental laws are positioned as “the law for regulating regulators,”38 and citizens are only obliged to protect the environment. This not only makes the people confused about the legitimate source of environmental regulation, but also makes the environmental regulation focus on material factors only and ignore human factors, that is to say, they only emphasize the government’s command and control of sewage discharge, regard the public’s right to a clean and healthy environment as the reflected interests of administrative regulation, and even equate environmental rights with the state’s right to environmental administration, and hold a negative attitude towards public participation.39 Therefore, to establish environmental rights in the environmental code, fulfill the basic requirement of the Constitution that “The state respects and safeguards human rights”, and reflect the new need to improve the protection of human rights of ecological and environmental protection in China in the new era will not only help determine the source and foundation of the national task of environmental protection and strengthen the awareness of the legitimacy of the exercise of environmental executive power, but also provide a solid right basis for extensive public participation, and promote the modernization transformation of China’s environmental rule of law from command and control (“law of regulation”) to diversified joint governance (“law of governance”) by recognizing the subject status of citizens/the public in environmental governance and taking the protection of human dignity and well-being as the highest pursuit.40
B. Environmental human rights communicate the institutional logic of the compilation of the environmental code
The construction of the “law of governance” with sustainable development as the main value line is the basic positioning of the environmental code, which also determines the basic framework of codification, that is, to provide a basis for “good governance” by enacting “good laws,” so as to ensure the realization of citizens’ right to live in a clean, healthy and sustainable environment. The codification of environmental rights has not been incorporated into the Constitution, thus environmental rights have not yet become “fundamental rights.”41 However, as the “continuation” of the environmental constitution and the projection of constitutional order42the environmental code’s provisions on environmental rights can also play a role in confirming fundamental rights to a large extent.43
It is generally believed that fundamental rights have the dual nature of subjective rights and objective laws. As subjective rights, fundamental rights mainly play the role of the right of defense and the right to benefit, and as objective laws, fundamental rights mainly provide an institutional guarantee, organizational and procedural guarantee, and narrow protection for the realization of fundamental rights by the state.44 The right of defense and the right to benefit are the core power of the first two generations of human rights, i.e., the right to liberty and the right to subsistence (a kind of social right). As the “third generation of human rights,”45 environmental rights adopt the protection mode of the first two generations of human rights in form, but there are significant differences in practice.
In terms of subjective rights, the first two generations of human rights emphasize the right to defend against infringement from the state and the right to benefit from the minimum payment or services provided by the state, from the perspective of individual rights. Thus, individuals have the right to make claims to the state in public law. Environmental rights are collective rights and the rights of present and future generations. Unless individual rights and interests are damaged, generally no claims should be made to the state. Countries exercise collective rights mainly by “entrusting” them to environmental groups under certain conditions. Specifically, as subjective rights, environmental rights are not realized through subjective litigation, but through objective litigation.
In terms of objective laws, the compilation of the environmental code itself is an embodiment of the institutional guarantee of environmental rights, which is a requirement for legislators, that is, the state must take positive measures to protect citizens from third parties outside the state in the process of realizing their fundamental rights.46 Depending on the different stages of infringement on environmental rights, corresponding protection obligations cover prevention, exclusion, and relief. Traditional prevention mainly refers to the defense against dangers, which is to prevent the urgent danger judged based on the rule of thumb. However, with the rapid development of science and technology, environmental risks such as climate change and health damage to large numbers of people have become significant threats to environmental rights. Therefore, the state’s obligation of protection should also extend to risk prevention.47
The fundamental rights attribute of environmental human rights can well communicate the institutional logic of the environmental code, that is, the codification focuses on how to implement the state’s protection task of environmental human rights. At the level of subjective rights, the environmental code can directly define environmental rights as legal rights, entitle social organizations to file public interest lawsuits, and stipulate the public’s rights to know, participate, express, and supervise. At the level of objective laws, corresponding regulatory measures can be specified in various sections such as pollution control, natural ecological protection, and green and low-carbon development based on the idea of “ex-ante prevention, in-process control, and ex-post relief.”
C. Environmental human rights clarify the attribution idea of the compilation of the environmental code
Environmental damage (including environmental pollution and ecological damage) will cause “damage to the people” and “damage to the environment.” The former refers to personal and property damage, usually relieved by the tort mechanism; and the latter is ecological environmental damage, which refers to the adverse change of environmental factors, biological factors, and the degradation of ecosystem functions caused by the above-mentioned factors.48 From the perspective of rights and interests, the former infringes on personal rights and property rights; the latter infringes on “human rights to the environment,” namely, environmental rights. The establishment of environmental rights in the environmental code can provide a basis for defining the 
consequences of infringement of environmental rights as ecological environmental damage, or defining the rights and interests infringed by ecological environmental damage as environmental rights and is conducive to clarifying the attribution logic of the environmental code.
As a kind of public damage or public interest damage, the basic causes of ecological environmental damage roughly involve two situations: first, the regulatory measures formulated by the state can effectively safeguard a clean, healthy, and sustainable environment, but the parties concerned violate the national regulations and cause damage; second, the parties concerned comply with the national regulations, but still, cause damage. In the first situation, for the protection obligation in a narrow sense, the state must investigate the legal responsibility of the actor, including imposing penalties for violations and requiring the violator to remedy the ecological environment damage caused. Based on the re-subjectivization of the objective value order of fundamental rights, the right of claim for protection can be derived, that is, when the government fails to properly perform its statutory duties, eligible social organizations have the right to file administrative public interest lawsuits for supervision. The establishment logic of the German environmental group litigation is a case in point.49 In the second situation, because the ecological environmental damage is not caused by the fault of the parties involved, the state cannot investigate the liability of the parties if private interests are not harmed.50 At this point, it is necessary to evaluate and adjust the national regulatory measures. However, as the formulation and adjustment of national policies involve the assessing of complex interests and policy judgment, it is not appropriate to deduce the protective right of citizens to request the state to formulate and adjust laws and policies in principle.
Thus, knowing the correspondence between “personal rights, property rights, and private interest damage” and between “environmental rights and ecological environmental damage,” it is not hard to understand the attribution logic of the environmental code: natural persons, legal persons, and other organizations that cause any damage to private interests because of the development and utilization of environmental resources should bear traditional tort liability, with no intervention of public power; for ecological environment damage, the government should take preventive and remedial measures according to the obligation to protect fundamental rights. Of course, the person causing the damage to the ecological environment should still be the subject of the responsibility for prevention and remedy, and the responsibility should include the punishment for illegal behavior and remedy for illegal consequences. Different countries have different provisions on the responsibility for remedying (repairing) the ecological environment. In some countries, such as the United States, natural resource trustees seek redress from the party responsible for it.51 Some countries, such as Germany, solve the problem through the administrative approach of “ordering the party concerned to repair it + performance on behalf of the party concerned”52. However, they all have the distinct nature of public law, and the difference lies in whether the accountability procedure is performed in the form of public law or private law. Even countries that take countermeasures in public law should also discuss how to give play to the role of citizens and their groups in the relief of ecological environment damage to compensate for possible administrative system failures.53 In essence, because of the failure of government law enforcement that may be caused by the “citizen-state-citizen” standard model of fundamental rights, the “citizen-citizen” civil public interest litigation mechanism should be used to supplement the government law enforcement.
Thus, the attribution idea of the compilation of the environmental code can be clarified. First, for illegal acts that cause damage to the ecological environment, administrative penalties are mainly imposed. However, due to the various types of violations, provisions can be made separately in the sections of pollution control, natural ecological protection, and green and low-carbon development; second, for the damage to the ecological environment that has been caused, the responsible party should bear the responsibility for repairing it. Since the Civil Code and the special environmental law both stipulate the civil liability and administrative order means, it is required to choose which provisions to follow after discrimination;54 third, for personal and property damage caused by the ecological environmental damage, which belongs to the traditional tort liability category, it can be connected with the Civil Code through the referral clause55.
III. Institutional Expression and Implementation of Environmental Human Rights in the Environmental Code
Since the 18th National Congress of the CPC, China has seen sweeping, historic, and transformative changes in ecological environmental protection, made remarkable progress in green development and reached an unprecedented level in the protection of people’s environmental rights and interests. With a solid political foundation laid by Xi Jinping Thought on the Rule of Law and Xi Jinping Thought on an ecological civilization, practical experience accumulated from relevant legislation and policies, and theoretical support from abundant academic research results, the conditions for the incorporation of environmental rights into the environmental code have been ripe.56 Unlike the fundamental rights enshrined in the Constitution, which adjust the relationship between citizens and the state and indirectly realize its effect on a third party, the environmental code directly adjusts the legal relationship among citizens, legal persons, and other organizations around the protection of the ecological environment. The diversity of environmental legal relations determines the necessity to reposition the roles of government, enterprises, and the public, conduct the type of demonstration on different legal relations, establish three-dimensional relations among multiple subjects, and coordinate the complex conflict of interests involved.57 The institutional expression and implementation of environmental rights in the environmental code can be carried out from three aspects: ontological provisions, guarantee provisions, and relief provisions centering on the characteristics of environmental legal relations.
A. Direct expression of environmental rights in the environmental code
As the substantive right of citizens to pursue a clean and healthy environment, environmental rights should be established in the form of general provisions in the environmental code as a fundamental rule governing the code.58 This is the most direct declaration of fulfilling the requirement of the Constitution that “The state respects and safeguards human rights” and the most effective means to realize the integration of values of environmental codification. Therefore, general provisions on the rights and obligations of all parties can be made based on integrating Articles 4 and 6 of the Environmental Protection Law. The section on environmental rights may stipulate that citizens have the right to live in a clean and healthy environment in the form of “basic rights + basic national policies” (Paragraph 1). The protection of the environment is a basic national policy for China. The state shall adopt measures favorable for the prevention and control of environmental pollution, natural ecological protection, and green and low-carbon development, so as to coordinate economic and social development with the work of environmental protection (Paragraph 2). In the section on obligations, it should be stated that citizens, legal persons, and other organizations shall have the obligation to protect the environment (Paragraph 1). Local people’s governments at various levels shall be responsible for the environmental quality within areas under their jurisdiction and shall take effective measures to improve the environmental quality (Paragraph 2). Enterprises, public institutions, and any other producers/business operators shall prevent and reduce environmental pollution and ecological destruction (Paragraph 3). Citizens shall enhance environmental protection awareness, and adopt a low-carbon and energy-saving lifestyle (Paragraph 3). Through the two provisions, the main content of environmental legal relations is clarified, that is, protecting citizens’ environmental rights is not only the basic task (national policy) and value goal of the state but also the obligation of citizens, enterprises, public institutions, and other producers/business operators. However, compared with the positive obligation of the state, this protection obligation is indirect and negative, limited to the mandatory provisions of the law, corresponding legal liability arises only when specific damage is caused to environmental rights.
What needs to be clarified are other relevant rights and interests of citizens, legal persons, and other organizations, generally including procedural rights such as the right to know about the environment, right to participate and right of action, and other related rights such as the right of pollutant discharge, right to carbon emissions, right to water, mining rights and fishery rights. A number of scholars see procedural rights of environmental protection as the content of environmental rights.59 However, the legal interests protected by procedural rights are procedures, while the legal interests protected by substantive rights are substantive interests such as life, health, freedom, property, personality, and so on. Environmental rights cannot be both substantive rights and procedural rights.60 Besides, the content and procedures of the two are also different. Procedural rights require the state not only to provide procedures but also to ensure the legitimacy of procedures. Environmental rights require the state to provide a good environment. But countries have different criteria as to what is a “clean and healthy environment.” Moreover, even if the procedures provided by the state are legitimate, there is no guarantee that the environment is “clean and healthy.”61 Procedural rights are merely the specific application of the right to be informed and the right to participate stipulated in the Constitution in the field of environmental protection. They are the “neighboring rights” of environmental rights and are related to environmental rights to facilitate the realization of environmental rights.
As for the right of pollutant discharge and right to water, even though they can be considered environmental rights in a broad sense, they are fundamentally different from environmental rights. The right of pollutant discharge and the right to carbon emissions are about the utilization of environmental capacity; while the right to water, mining and fishery rights, etc., concern the utilization of natural resources. These rights are property rights in nature, and their forms and realization will harm the environmental quality to a certain extent. Thus, in terms of value orientation, these rights contradict and conflict with environmental rights.62 Therefore, these rights are not environmental rights. On the contrary, these rights contain the obligation to prevent and reduce environmental pollution and ecological damage in the exercise process and are subject to the compulsory provisions of the above general provisions in the system positioning, so they should only be regulated in the corresponding section.
B. Implementation of the environmental rights protection obligation in the environmental code
Environmental rights were originally established to provide a platform for “equal dialogue” between environmental interests and other interests, so as to enable environmental interests to occupy a place in the confrontation of traditional fundamental rights, and require the state to take corresponding measures to respond to the public’s demand for a “clean and healthy” environment. Specifically, the state should define what is the right to a “clean and healthy” environment, which is related to the specific goal of the state’s environmental regulations, or the state’s protection of environmental rights; and then the state should decide what regulatory tools need to be deployed to achieve this goal. From the perspective of administrative tasks, it involves two problems. First, how should the environmental regulation goals be set for the government? Second, what kind of power should be given to the government to achieve such goals? The former is reflected in setting the administrative goal value for the government according to certain environmental standards, while the latter is reflected in the command and control measures taken by the government to achieve this goal.63
Specifically, the legalization of environmental quality is an embodiment of the national obligation of environmental protection, and a commitment made by the state to protect citizens’ environmental human rights. Once the environmental standard is confirmed by law, it constitutes the starting point and goal value of environmental regulation. Central and local governments must work together to make the environmental conditions meet the set goals. If the government fails to achieve such goals, it will bear the corresponding political, administrative or legal responsibility. The realization of environmental goals depends on the regulation of enterprises’ environmental pollution or ecological damage. Traditional environmental regulation mainly uses the order and control means under order administration to ensure that production and operation activities will not cause the deterioration of environmental quality by setting orders or standards, permitting actors to engage in production and operation activities, supervising and inspecting production and operation activities and imposing administrative punishment on violators. These regulatory measures may limit or infringe on citizens’ right to liberty while protecting environmental rights, hence they should be subject to the principle of the rule of law, such as legal reservation, due process, and the principle of proportionality. Since the 1980s and 1990s, under the influence of the relaxation of regulation, the achievement of environmental quality goals has begun to shift from relying solely on government control to public-private cooperative regulation and social self-regulation, and a modern environmental governance system of multiple-subject governance has been gradually established.
However, due to the complexity and variability of environmental problems, and the uncertainty brought by the risk society, the environmental code is faced with great difficulty in the determination of environmental quality goals and selection of regulatory means. On the one hand, in the ecological environmental governance system, as the government undertakes a wide range of responsibilities, it is difficult to set detailed provisions in the environmental code; on the other hand, because of the numerous and extensive ecological and environmental problems, regulators must be given proper room to take appropriate measures according to the situation. This means that there will be a large number of special laws and regulations and their implementation rules in addition to the environmental code in the future. The “rule of the environmental code” will remain largely the “rule of environmental regulations, ” and the process where quality goals are set will not be filed for judicial review by the public. That is to say, the government’s active protection of environmental rights will not lead to the citizens’ right to claim higher environmental quality goals set by the government. This requires the environmental code to clearly define the principle of authorization and procedural rules, carefully authorize and restrict the procedures of regulations and standards formulation, and strengthen information disclosure and public participation, so as to enhance the scientific and democratic formulation of regulations and standards, and contribute to a “clean and healthy” environment.
C. Implementation of the environmental rights relief obligation in the environmental code
Environmental public interests cover a wide range, including not only the prevention and suppression of illegal acts but also the remediation and repair of ecological environmental damage caused by illegal acts. For the former, there is no big disagreement on the adoption of administrative regulations to correct illegal acts and the supervision with administrative public interest litigation, but there is much controversy on the mode to be used to remedy and repair the ecological environmental damage.64 Over the past nearly ten years, China has established an environmental justice system, established the plaintiff qualification of social organizations, procuratorial organs, and administrative organs in terms of legislation and policies, determined the types of civil public interest litigation, administrative public interest litigation, ecological and environmental damage compensation and civil public interest litigation incidental to criminal proceedings, and even seen the repair of public interest damage involved in criminal judgments, thus forming the situation of “integration of public and private laws, the coexistence of six litigations.” This institutional arrangement not only causes disputes in theory but also may lead to a series of conflicts of application in practice, which indicates that there are still lots of problems worthy of further study in the implementation of environmental rights relief obligations.
As a result, during the compilation of the environmental code, it is necessary to systematically check the current environmental public interest protection system with the combination of administrative and judicial means and the superposition of multiple procedures, straighten out and integrate the relief methods and procedures around certain attribution logic, so as to achieve a unity of reason and jurisprudence. A feasible idea is to limit the responsibility of administrative law enforcement to behavioral responsibility, that is, to punish and correct illegal acts; solve the problem of ecological environmental damage repair through the investigation of civil liability, establish a right of claim for public interest protection with the nature of public law, and performed in the form of private law, and clarify the sequence of different subjects; meanwhile, as for whether the defendant can be directly judged to bear the responsibility of repair in criminal cases, it needs to be fully demonstrated before making a decision.
IV. Conclusion
The National Human Rights Action Plan of China (2021-2025) not only clearly defines environmental rights but also separates them from the traditional human rights spectrum as a kind of fundamental human rights. In this context, the latest development of environmental human rights can be reflected in the compilation of the environmental code based on the statement in the Constitution that “The state respects and safeguards human rights” and the national goal of building a “beautiful China.” It is necessary to establish environmental rights in the form of general provisions and implement the national obligation of protecting fundamental environmental rights in the environmental code, so that the environmental code can reflect the characteristics of the times, practice, and future orientation, and meet the people’s new demand for the right to environmental protection, thus becoming an environmental code with Chinese characteristics that protects environmental rights at a world-class level.
(Translated by SHEN Jinjun)
* LYU Zhongmei ( 吕忠梅 ), Vice President of the China Law Society, President of the Chinese Society of Environment and Resources Law, China Law Society.
** ZHANG Bao ( 张宝 ), Professor of the Law School, Zhongnan University of Economics and Law.
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27. A series of papers and monographs on environmental rights appeared in this period, such as Lyu Zhongmei,“Study on Civil Environmental Rights”, Chinese Journal of Law 5 (1995); “Restudy on Civil Environmental Rights”, Chinese Journal of Law 5(2000); The Way of Communication and Coordination: On Civil Law Protection of Civil Environmental Rights (Beijing: China Renmin University Press, 2005); “The Way and Idea of Incorporating Environmental Rights into Constitution”, Law Science Magazine 1 (2018); Wu Weixing, “On the Contents of the Right to Environment”, Law Review 2 (2005); Study on Environmental Rights: From a Legal Perspective (Beijing: Law Press · China, 2007); “An Empirical Study of Environmental Rights into the Constitution”, Law Review 1 (2008); “A Comparative Study of Environmental Rights into the Constitution”, Studies in Law and Business 4 (2017); New Development of Environmental Rights Theory (Beijing: Peking University Press, 2018).
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40. For example, the Guiding Opinions on Building a Modern Environmental Governance System issued by the General Office of the CPC Central Committee and the General Office of the State Council clearly proposes the establishment of a modern environmental governance system featuring diverse participation and benign interaction. The third edition of the National Human Rights Action Plan of China proposes to form an environmental governance system jointly governed by the government, enterprises and the public; the fourth edition further clarifies specific actions such as knowing environmental information, participating in environmental decision-making and environmental public interest litigation.
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43. If the recognition of the human rights attribute of environmental rights in the National Human Rights Action Plan (2021-2025) is connected with the provision that "The state respects and safeguards human rights" in the Constitution, it can be considered from the perspective of hermeneutics that environmental rights have been fundamental rights not explicitly enumerated in the Constitution.
44. Zhang Xiang, “The Dual Characters of Fundamental Rights”, Chinese Journal of Law 3 (2005): 21.
45. Karel Vasak, Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights, UNESCO COURIER 30: 11, Paris: United Nations Educational, Scientific, and Cultural Organization, Nov. 1977, page 2.
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51. Karen Bradshaw, “Settling for Natural Resource Damages”, trans. Zhang Bao and Deng Shunping, Environmental and Resources Law Review 1 (2019): 159-182.
52. Ma Qiangwei, “Relief System of Ecological Environment Damage in Germany and Its Enlightenment”, Research on Rule of Law 2 (2020): 72-86.
53. Zhang Ting, “Civil Liability for Ecological Damage in Japan: Significance and Limits of Private Law”, Research on Rule of Law 2 (2020): 119-130.
54. Zhang Bao, “The Nature and Position of Government Claims for Eco-environmental Damage”, Modern Law Science 2 (2020): 78-93.
55. Lyu Zhongmei, “Typo-Construction of Green Clauses in Civil Code and Its Connection with Environmental Code”, Administrative Law Review 2 (2022): 16-17.
56. Lyu Zhongmei, “Launching the Compilation of Environmental Code to Improve the Legal Protection of Environmental Rights”, Study Times, March 7, 2022.
57. Lyu Zhongmei, “Codification Model Selection and Development of Environmental Legislation in China”, Oriental Law 6 (2021): 79-80.
58. Ding Lin, “On the Construction of General Rules of Environmental Code from the Perspective of Legal Order”, Journal of Soochow University Law Edition 4 (2021): 16.
59. Hu Jing, “On Environmental Rights as Procedural Basic Rights”, Journal of Sichuan Normal University (Social Sciences Edition) 5 (2014): 5.
60. Wang Kai, “On the Development of Environmental Rights in the System of Fundamental Rights”, Political Science and Law 10 (2019): 17.
61. Ibid.
62. Yang Chaoxia, “On the Nature of Environmental Rights”, China Legal Science 2 (2020): 290.
63. Zhang Bao, Environmental Regulation: Laws and Jurisprudence, 155.
64. Zhang Bao, “Analysis of the Applicable Relationship between the Government’s Right of Claim and Right of Regulation for Ecological Environment Damage”, Legal Forum 3 (2017): 14-19; Liu Jing, “On the Mode Choice of Ecological Damage Relief”, China Legal Science 5 (2019): 267-270.
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