Climate Change Law in China in Global Context

Xiangbai He, Hao Zhang, Alexander Zahar

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351724470
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

In Climate Change Law in China in Global Context, seven climate change law scholars explain how the country's legal system is gradually being mobilized to support the reduction of greenhouse gas emissions in China and achieve adaptation to climate change.

There has been little English scholarship on the legal regime for climate change in China. This volume addresses this gap in the literature and focuses on recent attempts by the country to build defences against the impacts of climate change and to meet the country's international obligations on mitigation. The authors are not only interested in China's laws on paper; rather, the book explains how these laws are implemented and integrated in practice and sheds light on China's current laws, laws in preparation, the changing standing of law relative to policy, and the further reforms that will be necessary in response to the 2015 Paris Agreement on Climate Change.

This comprehensive and critical account of the Chinese legal system's response to the pressures of climate change will be an important resource for scholars of international law, environmental law, and Chinese law.

1 China’s legal system

Sources of law and institutions related to climate change

Ancui Liu

Overview

Since the United Nations Framework Convention on Climate Change (UNFCCC) was concluded in 1992, climate change and its adverse effects have been considered a common concern of humankind.¹ One of the sustainable development goals is to combat climate change and its adverse effects.² The Chinese government has shown its ambition in this respect by implementing the UNFCCC and contributing to the finalization of the Paris Agreement.³ China has also taken measures to deal with climate change domestically.⁴ To understand these measures, the first step is to be clear about what China’s current laws and policies are and which of them could guide and control activities related to climate change in China.

1 United Nations Framework Convention on Climate Change, United Nations Treaty Series, vol. 1771, p. 107, New York, 9 May 1992, Preamble.

2 ‘Goal 13: Take Urgent Action to Combat Climate Change and Its Impacts’ <www.un.org/sustainabledevelopment/climate-change/> accessed 29 November 2019.

3 For instance, the Clean Development Mechanism (CDM) is one of the financial mechanisms under the Kyoto Protocol. China has participated in CDM projects. See Xi Wang and Tang Tang, ‘Research and Scholarship on Climate Change Law in Developing Countries’, in Daniel A. Farber and Marjan Peeters (eds), Climate Change Law, 121 (Elgar Encyclopedia of Environmental Law, Edward Elgar, 2016). For China’s efforts during the negotiation of the Paris Agreement, see Gao Xiaosheng, ‘The Paris Agreement and Global Climate Governance: China’s Role and Contribution’ (2016) 2 China Quarterly of International Strategic Studies 378–380; Hongyuan Yu, ‘The Paris Climate Agreement and China’s Role in Global Climate Governance’ (2016) 2 China Quarterly of International Strategic Studies 197–198.

4 For domestic efforts that address climate change, see Pu Wang, Lei Liu, and Tong Wu, ‘A Review of China’s Climate Governance: State, Market and Civil Society’ (2018) 18 Climate Policy 666–668; Gao (n 3), 376–378.

The literature has analysed current laws and policies related to climate change in China, usually examining the loopholes or legal gaps and giving recommendations on how to improve on them.⁵ Many scholars have proposed the adoption of a climate change law as well as suggestions to revise existing legal rules.⁶ Local regulations and policies have also been looked at, and it has been shown that local governments are seeking innovative ways to regulate climate change.⁷ (For more on the trends in Chinese scholarship in this respect, see the next chapter in this book.)

5 Just to name a few, Yulia Yamineva and Zhe Liu, ‘Cleaning the Air, Protecting the Climate: Policy, Legal and Institutional Nexus to Reduce Black Carbon Emissions in China’ (2019) 95 Environmental Science & Policy 5–7, 9–10; Yen-Chiang Chang, Chuanliang Wang, Mehran Idris Khan, and Nannan Wang, ‘Legal Practices and Challenges in Addressing Climate Change and Its Impact on the Oceans – A Chinese Perspective’ (2020) 111 Marine Policy 103354; Pan Xiaobin, ‘Construction of Climate Change Law System in China’ (中国应对气候变化法律体系的构建) (2016) 6 Nankai Journal (Philosophy, Literature and Social Science Edition) (南开学报:哲学社会科学版) 78–85; Wang Jian, ‘Thoughts on Legal Problems of the Global Response to Climate Change Context’ (全球气候变化背景下我国法律应对问题的思考) (2016) 2 Theory Research (学理论) 110–112. Alex Wang, ‘Climate Change Policy and Law in China’, in Cinnamon P. Carlarne, Kevin R. Gray, and Richard Tarasofsky (eds), Oxford Handbook of International Climate Change Law, 635–669 (Oxford University Press, 2016). Some publications focus on emission-trading systems, which are important market-based mitigation measures in addressing climate change. See, for example, Coraline Goron and Cyril Cassisa, ‘Regulatory Institutions and Market-Based Climate Policy in China’ (2017) 17 Global Environmental Politics 99–120; Zhe Deng, Dongya Li, Tao Pang, and Maosheng Duan, ‘Effectiveness of Pilot Carbon Emissions Trading Systems in China’ (2018) 18 Climate Policy 992–1011. See also Chapter 2 of the present book.

6 For instance, Yamineva and Liu (n 5), 8–10; Tian Danyu, ‘Study of Legislation on Climate Change’ (应对气候变化立法研究) (2018) 3 World Environment (世界环境) 62; Li Yanfang, Zhang Zhongli, and Li Cheng, ‘Toward Specialized Legislation to Address Climate Change in China’ (我国应对气候变化立法的若干思考)’ (2016) 33 Journal of Shanghai University (Social Sciences) (上海大学学报: 社会科学版) 8–11. Comparative studies have also been carried out. See Xiangbai He, ‘Legal and Policy Pathways of Climate Change Adaptation: Comparative Analysis of the Adaptation Practices in the United States, Australia and China’ (2018) 7 Transnational Environmental Law 347–373; Isabella Neuweg and Alina Averchenkova, ‘Climate Change Legislation and Policy in China, the European Union and the United States’, in A. Averchenkova, S. Fankhauser, and M. Nachmany (eds), Trends in Climate Change Legislation, 37–59 (Edward Elgar, 2017).

7 Miranda Schreurs, ‘Multi‐Level Climate Governance in China’ (2017) 27 Environmental Policy and Governance 169–171; Pan Xiaobin, ‘Research on Climate Change Prior Legislation of Chinese Local Government’ (中国地方应对气候变化先行立法研究) (2017) 38 Law Science Magazine (法学杂志) 136–137. This mode is summarized by some scholars as a bottom-up approach. See Schreurs (n 7), 169; Pan (n 7), 133; Peter H. Koehn, China Confronts Climate Change: A Bottom-up Perspective, 1–2 (Routledge, 2015).

This chapter is structured as follows. The first section will explain the sources of law in China and their hierarchy. This will provide readers with a background against which to understand China’s climate law. The country’s international legal obligations on climate change are important parts of Chinese climate change regulations. Therefore, in the second section, the international law that regulates climate change will be discussed. The third section will focus on Chinese laws and policies that address climate change. Lastly, the fourth section will discuss the institutions in China with its responsibilities related to climate change.

Introduction to the Chinese legal system

This section is about the Chinese legal system generally, including its sources of law and their hierarchy. The Chinese legal system and sources of law are different from those of other countries. Terms such as laws and regulations do not have the same meanings in the Chinese legal context as they do elsewhere. From a typological perspective, Chinese laws and policies related to climate change can be better understood once they are categorized into different sources of law.

Character of the Chinese legal system

The Chinese legal system is not a pure form of a civil law system, although it shares features with that system. It is often described in the literature as a socialist legal system with Chinese characteristics.⁸ An important characteristic of the Chinese legal system is the leadership of the Communist Party of China.⁹ The enactment and implementation of laws are heavily influenced by Party policy. For some new emerging issues, the use of policies is regarded as an appropriate tool.¹⁰ For instance, policies on emission-trading systems and low-carbon cities came into existence before laws on those topics did.¹¹ A policy may be transformed into legislation after it has been tried out for a while.¹² The emphasis of the Party has been shifting from economic development to environmental protection.¹³ The balance of these two interests should therefore be considered when Chinese laws and policies as a response to climate change are analysed.

8 Roderick O’Brien, ‘Comparative Law and China’s Socialist Legal System’ (2014) 2014 Journal of South African Law 130; Xin Chunpeng, ‘The Socialist Legal System with Chinese Characteristics and Its Significance’ (中国特色社会主义法律体系及其重大意义) (2014) 36 Chinese Journa...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• List of tables
• List of contributors
• Introduction
• 1 China’s legal system: sources of law and institutions related to climate change
• 2 Scholarship and running debates on climate law and policy in China
• 3 China in global context: continuity and discontinuity in international and domestic climate change law and policy
• 4 Renewable energy laws and policies in China in the context of climate change
• 5 China’s legal framework for emission trading and other market initiatives
• 6 Regulation of sources and sinks in China’s domestic offset scheme
• 7 Monitoring, reporting, and verification of greenhouse gas emissions in China: a legal analysis
• 8 China’s legal and policy framework for adaptation: challenges and responses
• 9 Towards a breakthrough in China’s climate change litigation: environmental public-interest litigation filed by NGOs
• Bibliography
• Index