Monday, November 23rd, 2009...4:26 am

Guangzhou Environmental Protest – A Lesson for China’s Legal Reform

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Chanting “Lv Zhiyi, Step Down! (Lv: vice secretary of Guangzhou, chief of environmental bureau)”, “Come Out, Mayor!”, “We Demand Dialogue” and “Respect Public Opinion!”, hundreds of citizens in Guangzhou marched to city hall in the morning of Nov. 23 to protest the construction proposal of a trash incineration plant in Pan Yu.

With the resonance of Xiamen protest against the construction of a PX-plant, which leads to the movement of its location, the Guanzhou protest similarly shows great promise. That is not to say the results will certainly be favorable to the citizens, but the protest shows a matured citizenry in making public demands regarding environmental concerns:

1. during the protest, despite the crowdedness, the protesters took notice to remind each other not to step on the lawn, and as a result, the grass was not trod on;

2. the entire protest was carried out (and ended) in a non-violent and rational manner: in the confrontational exchanges with the authorities, citizens were able to retort back government officials not without a sense of humor;

3. greater civil engagement and unity: there are reports of nearby printing shops offering free copying service for protesters to make copies of their slogans; later on when the protesters staged their sit-out, locals bring food and water to them; netizens uses twitter to publicize the event broadcasted by participants

So what is the lesson of this protest which may or may not succeed in changing the government’s plan? I believe it should, and will to some extend, make the government think more carefully about our environmental policy.

As highlighted in Obama’s trip to China, environment is a field in which we’d expect to see great changes in the next decade. Indeed, China has taken significant steps in the use of renewable energy. (See NYTimes reporting here; and James Fallows’ post here) And I propose that China should make considerable legal reforms to address the environment issues. (for China Environmental Law blog’s coverage of the protest, see here)

The legal issues of the Guangzhou trash incineration plant is, by and large, that of human rights to a clean environment. Even though the specific environmental right was underlined in only two regional laws, namely,  the 1981 African Charter, which demands “all peoples shall have the right to a general satisfactory environment favourable to their development”; The 1988 Protocol of San Salvador to ACHR, the first and only instrument according an individual right to a clean environment, provides in its Article 11 that: (italic added)

1. Everyone shall have the right to live in a healthy environment and to have access to basic public services.

2. The state parties shall promote the protection, preservation and improvement of the environment.
meaning the state has a positive responsibility to environmental protection.

In a broader understanding, the environmental human rights is concluded from the rights underlined in U.N. Covenant of Civil and Political Rights and U.N. Covenant of Social, Economic and Cultural Rights: the right to life; the right to a standard of living adequate for health and well-being; the right to the highest attainable standard of health; the right of all peoples to freely dispose of their natural wealth and resources; safe and healthy working conditions; the right to enjoy the benefits of scientific progress and its applications; and the right of peoples to self-determination and the pursuit of economic and social development.

The Stockholm Declaration on the Human Environment (1972) Principle 1 states (emphasis added):

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.

Principle 13:

In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population.

and the Rio Declaration on Development and Environment (1992) Principle 10 states:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

These principles underscore the environmental human rights as a procedural rights, rather than vaguely-defined substantive rights, for both individuals and state-actors. The right to information, participation and judicial proceedings is reaffirmed and strengthened in The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1998).

China is not a Party to 1998 Aarhus Convention, yet the problem emerges in this Guangzhou protest calls for procedural rights to be granted to the citizens in order for the government to fulfill its positive obligation of environmental protection. Such procedure rights include, inter alia, public access to information concerning the project in relation to the environment, possible impact, in the case of harm to human beens, the preventative measures, etc; public participation and consultation in planning, decision-making, project-assessment; right to reparation and judicial review, etc.

Guangzhou officials argued in their press conference that such trash incineration plants are necessary to the development of the area, and revealed plans to build one in each district to solve its own trash problem. In response the development of state vesus the well-being of individuals in Lopez-Ostra v. Spain (1994), petition against a waste plant that emit nasty fumes, the Court says:

Naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health. Whether the question is analysed in terms of a positive duty on the State – to take reasonable and appropriate measures to secure the applicant’s rights … or in terms of an ‘interference by a public authority’ to be justified … the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation.

However, the Court found the State had not taken preventative measures to protect the applicant’s private and family life under Article 8 of ECHR (1950) and had not offer procedures to address the complaint, thus not striking a balance between the town’s economic development and the individual well-being.

In a similar case dealing with complaints about a fertilizer factory – Guerra and others  v. Italy (1998) – the Court reemphasizes on a State’s obligation of positive action: (boldness added)

The Court considers that Italy cannot be said to have “interfered” with the applicants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life.

For sure, China is not a Party to ECHR, yet it should nevertheless adopt similar laws to ensure the state’s positive obligation in environmental protection, and the international community needs to address this issue because these incinerators do not only pose a direct health hazard to its surrounding residents, such as the would-be case in Pan Yu, but as the pollutants were carried away in air, they could be harmful to people as far as in North America.

In conclusion, the Guangzhou protest is a step forward in citizen awareness of environmental issue and in using non-violent civil disobedience to address public concern; the lesson for the Chinese leaders is how to use this momentum and this involved public body to push for its environmental goals. China has to make reforms on the legal front to assist, rather than quell, public participation in environmental issues and grant greater weight on environmental human rights.

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  • I agree with your conclusion that China has to make “reforms on the legal front to assist, rather than quell, public participation in environmental issues.” A first step would be to enforce the existing provisions for public participation. The Environmental Impact Assessment Law and implementing regulations (and the Administrative Licensing Law as well) provide avenues for public participation, both when the EIA is being conducted by the project developer and when the EIA is being considered for approval by the local Environmental Protection Bureau (EPB).

    In the situation in Guangzhou, the EPB would probably have been required to hold a public hearing. I don’t know where this project was in the approval process, but its EIA had reportedly not been approved. It sounds like the public was not too confident their views would be listened to in the formal hearings since the authorities were moving forward as if EIA approval was a foregone conclusion.

    Needless to say, allowing the public a say in local decision making does not come naturally to Chinese decision makers (it did not come naturally to American local officials either when public hearing requirements were first introduced in the US). It will take a significant amount of time and training to make these components of the law meaningful parts of the decision making process.

    There are other needs involved here as well–this trash has to be disposed somewhere so compromises will have to be made. I fear that what will happen in this case is the facility will be moved to a more rural area where the opposition will be less well organized and less sophisticated about asserting their rights. Thus, environmental justice issues come into play as well.

    In short, there is a lot going on here, and it presents fascinating challenges to those of us who would like to see a law-based system of rights succeed in China.

    Thanks for raising the issue.

  • Thank you very much. I agree with you. And it’s a very complicated issue. It’ll be years before China can adopt European technology of energy production from urban waste. I just feel the current EIA Law is much too vague. Article 5 asks State “to encourage relevant institutions, experts and members of the public to participate in the environmental assessment in appropriate ways”, not only limit the actual scope of citizen participants, but also lacks the kind of active actions that a State should take.

  • Ella, it`s a puzzle to me that you focus on international as a means to protect the rights of Chinese citizens, but ignore the real key: the inability of Chinese citizens to protect their property rights via lawsuits against polluters, and the fact that so much of the pollution is generated by state-owned firms.

    For China to move along the “environmental Kuznets curve”, the Chinese need property rights, which means an ability to sue and collect damages from polluters.

    Does reference to international human rights really help?

  • I agree, the Chinese need property rights, which means an ability to sue and collect damages from polluters.

  • Its amazing how long China has had pore human rites, hopefully with the internet and the world coming together, the people of China will live as free as any other nation.

  • I have to agree with Viewstreams.

    Miley C.

  • actually a excellent post. I will surely be reading this blog far more.

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