challenges of reforming an environmental legal culture: Assessing the status quo and looking at post-WTO admission challenges for the People's Republic of China, The

Georgetown International Environmental Law Review, Spring 2002 by Ferris, Richard J Jr, Zhang, Hongjun

The Challenges of Reforming an Environmental Legal Culture: Assessing the Status Quo and Looking at Post-WTO Admission Challenges for the People's Republic of China1

I. INTRODUCTION

In 1967, the People's Daily, a leading government-controlled newspaper, carried an editorial entitled In Praise of Lawlessness. In this editorial, the author disparaged legal systems as a "bourgeois handicap."2 Shortly thereafter, in 1972, China almost refused to participate in the landmark United Nations Conference on the Human Environment held in Stockholm ("Stockholm Conference").3 The Stockholm Conference laid the groundwork for future international environmental initiatives, including the United Nations Conference on Environment and Development in Rio de Janeiro ("Rio Summit"). China's leadership, charged with deciding whether to send a delegation to the Stockholm Conference, initially supported the general opinion held by many Chinese officials in 1972 that "[t]here is no need to participate in a global conference to address the environmental protection. A Socialist nation does not suffer from the environmental ills of Capitalism. It was then-Premier Zhou Enlai's far-sighted efforts that overcame general resistance to send the delegation to Stockholm."4

Thirty-five years after the publication of the People's Daily editorial, China has developed a growing respect for the economic and other advantages of a robust legal system. Consequently, China has recently announced the launch of a new, nationwide law exam to enhance the qualifications of the nation's attorneys, including judges and prosecutors.5 Additionally, thirty years after the Stockholm Conference, China is party to more than eighty environmental treaties, has enacted more than sixteen environmental, health and safety ("EHS") statutes, issued several hundred EHS regulations, and promulgated more than one thousand EHS standards.6

Against this backdrop of fundamental shifts in approaches to law and environmental protection, China announced that it had become the 143rd Member of the World Trade Organization ("WTO") on December 10, 2001.7 China's membership in the WTO raises a wide range of issues which are not limited to the field of international trade. Rather, China's WTO membership involves the full spectrum of debates surrounding international trade, including broader questions regarding the future of China's - and the world's - environmental protection and related legal system reforms. Views of various interest groups differ concerning how China's WTO membership will affect these areas. A number of citizen groups have raised concerns with respect to the environmental and social effects of China's WTO membership.8 However, among China's major trading partners, the membership has received broad approval.9 Additionally, it is significant that the WTO members' recent decision to extend a membership invitation to China has ended a long, bittersweet struggle for involvement in the global trade regime on the part of the Chinese government.10

When asked about the effects of WTO membership on China's environmental regulatory system, one senior official at China's State Environmental Protection Administration ("SEPA") indicated his belief that the impacts of WTO membership on environmental protection would manifest over the near-term and would be unmistakably beneficial.11 The primary purpose of the WTO is to promote fairer and freer trade. WTO obligations also promote clear and effective notice of environmental, health and safety (EH&S) standards, greater public participation in law making, the strengthening of these laws in developing countries such as China, and consistent and transparent enforcement. That being said, the SEPA official's belief may not merely be an optimistic prophecy.

A number of WTO agreements establish these obligations. Of particular relevance to this discussion are: the Protocol on the Accession of the People's Republic of China;12 the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement");13 and the Agreement on Technical Barriers to Trade ("IBT Agreement").14 Requirements set forth in these agreements, in the short term, will impose on China significant pressures to reform the existing legal culture, including many aspects of the current environmental regulatory regime. A senior official on the Environmental Protection and Natural Resources Conservation Committee of China's National People's Congress commented that pressures for reform may also provide Chinese officials with long-needed motivation to support some of the more difficult and dramatic changes to the legal culture, including the creation of a more transparent environmental rulemaking system, which will contribute to the development of what many generally refer to as a "rule of law" system.15

It is important to remain realistic about the prospects of rapid development of China's legal regime. As one Chinese environmental official stated, "the goals of fully understanding, accepting and incorporating WTO-consistent practices in the current legal system in China remain distant targets, even with the strong beneficial influences of the WTO regime and WTO members."16 Increasing the challenges associated with these changes is the existence of a healthy amount of skepticism among legal officials regarding the benefits - personal as well as public - of WTO-consistent changes to China's rulemaking practices. One official at the SEPA indicated that, "if a government unit publishes all draft laws for comment, it will be very difficult to respond to all of the different observations. Our jobs will likely become more difficult and the positions of law drafters threatened if superior officials perceive that public criticism of draft regulations is too severe or politically unacceptable."17 Another official described China's situation as a new Member of the WTO - facing the need to significantly rethink the current legal system as a whole, as well as those aspects of the legal system addressing EHS issues - by indicating that "China is holding [a] two-edged sword."18 In truth, for a nation with the obvious historical, political, social, economic, and cultural burdens that weigh heavily on any initiative for widespread change, WTO membership brings opportunities for invigoration of the country's economy and a more prominent role in world affairs. But, as one official succinctly stated, "much that is unique to China may be lost or made unrecognizably foreign in the process."19