Environmental Reviews and Case Studies: Green Revolutions: A Political Economy Analysis of the Environmental Movement's Impact on a Working Rule of Law in China

Abstract

China has consistently striven toward economic growth at the expense of civil and political rights; however, China faces an impasse as its severe restrictions on civil and political rights threaten to damage its economic growth, a tension that is best illustrated by the environmental movement. With the advent of new technologies, the lack of transparency and public awareness that has allowed corruption to thrive is decreasing. As a result, China is beginning to accept that economic rights may be inextricably linked to environmental rights, and that it must sometimes yield to the latter in order to preserve the former. Specialized environmental courts, created by local courts to manage environmental unrest, are the perfect target for concrete reforms that, if successful, would improve the rule of law in China. Moreover, the centralization of local environmental courts may create the backdoor opportunity that the Central Communist Party needs to pierce local protectionism and advance its sincere interests in both protecting the environment and quelling visible unrest.

Notes

Notes

1. Wen Bo, Asia Society Fellow and Pacific Environment China Program Codirector, interviewed on August 2, 2007.

2. Nash equilibrium, in game theory, represents the strategic best outcome between parties that have repeated interactions and, oftentimes, goals that are at odds. The Nash equilibrium represents the outcome that no party can unilaterally better his or her position by changing his or her strategy.

3. Within the political structure, individuals must play multiple roles; even, for example, Hu Jintao, who is the president, chairperson of the CCP, and the chairperson of the Central Military Commission.

4. The media is wholly controlled by the CCP. All stories that run on the news networks in China must pass government inspection before being broadcast. Moreover, the Chinese government rigorously controls information available on the Internet through a multitiered system of firewalls, tracking and monitoring systems, a 24-hour team of hackers, contracts with major search engines (Google is the latest one to report privacy abuse), and a team of government employees who serve as fake bloggers to diffuse debates on RSS feeds. For general information about control of information, see the Human Rights in China website (http://www.hrichina.org).

5. For example, the 2008 Water Pollution Law and the 2004 Solid Waste Law place the burden of proof on defendants, who, to avoid judgments, must show that pollution did not cause losses.

6. These are separate institutions from SEPA, discussed earlier.

7. In any study of the Chinese court system, a crucial system to understand is the Basic-Level People's Courts (BLPCs, also known as local courts), with which the vast majority of complainants have contact. With the approval of provincial-level courts, local courts may establish renmin fating, or People's Tribunals (PTs), staffed by local court judges in an outlying area to make it easier for parties from that area to come to court. PTs have jurisdiction to hear civil, criminal, and some commercial cases. PT opinions carry the weight of local court decisions, and appeals are brought in intermediate courts, which are a level above the local courts. The presence of PTs remains significant and may be a useful tool in attaining justice. Of the 5.7 million first-instance cases adjudicated in 2000 by BLPCs, two million were heard by PTs (Falu Nianjian Chubanshe 1988, 1989). Tribunals were staffed with 37% of BLPC total personnel but heard 67% of all cases; there were 75, 553 cadres and police in PTs of the total 280,000 in all courts (Zhang and Wu, 2000).

8. In 2002, the Ministry of Finance and the People's Bank of China issued a joint notice furthering the government's stated policy of separating state agency revenues from expenditures (shou zhi liangtiao xian). The notice provides that all fees received by the SPC and several other central government bodies are to be deemed central government financial revenues; fees received by local courts and other local government bodies are to be deemed revenues of the body's supervisory department. Because local courts do not have an official supervisory department, their fees presumably will be included in local government revenues. The notice does not state a corollary rule that budgetary allocations to courts may not be dependent on their fee collections (Ministry of Finance & People's Bank of China, 2002).

9. When a case involves an object of commercial value, courts can set litigation fees at a percentage of the amount in controversy.

10. It is important to note that it is difficult for courts to distinguish between political interference and interference by officials in their personal capacity when advice is unsolicited. Typically, a written note is sent to the court, instructing the court to adjudicate a certain way; notes are kept in an internal file and are considered seriously by the court. Further, lower courts commonly ask superior courts for advice in adjudicating particularly political cases (Fu, 2005, p. 205).

11. The monthly salary of a judge in Beijing, the top end of the salary spectrum, might be close to 3,000 yuan a month.

12. See note 9 cases (Fu, 2005, p. 193).

13. While China fosters an emerging capitalism, a concept as crucial to capitalism as property rights does not exist fully. In expanding its economy, Beijing has allowed for the implementation of use rights that often resemble real property exchange, though for now these transactions are limited solely to developed urban areas (Economy, 2007a, p. 45).

14. As an amusing side note, the dingzi hu plight has become so notorious within the public zeitgeist that Mirage Games released a video game called Nail Household vs. Demolition Team in August of 2010. The game opens on a cleared pit, empty except for a three-story house marked “”—the Chinese character for “demolition.” The goal is to defend the house against guards and gangsters brandishing knives and bouncing on jackhammers. The characters the gamer can play include a woman in curlers who throws sandals at encroaching attackers, a potbellied man who drops dynamite from the roof, and an old man with a shotgun (Ye and Ashburn, 2010).

15. According to Chinese political philosophers like Confucius, without morally righteous men in charge, the laws by themselves will fail: “There has been man who governed, but never has there been law that ruled by itself” (Juo-Ao Mei, quoted in Fu, 2005, p. 193).

16. Its structure consists of three elements: the radical for water, indicating fairness and balance; the element of a model, an ideal worth striving to attain; and, a linear element, suggesting straightforwardness and justice (Liang, 1930/2012, p. 266).

17. According to Confucius, “If a ruler, in regulating and controlling his people, lays emphasis upon laws and resorts to punishment for their violations, the people will strive to live up only to the bare requirement of the law; they will be utterly destitute of the sense of personal honor” (Confucius, quoted in J.G.H Wu, 1928, p. 215).

18. A classic Weberian formulation for the role of legal institutions in the economy states, “The universal predominance of the market consociation requires … a legal system the functioning of which is calculable in accordance with rational rules” (Weber, 1954, p. 25).

19. The prototypical view was that “the inability of societies to develop effective, low-cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment in the Third World” (North, 1990, p. 35).

20. Lawyers in particular have become instrumental in brokering deals and facilitating transactions between judges and litigants. As repeat players before specific court divisions, lawyers often have stable relationships with a select number of judges. The widespread complicity of lawyers has caused corruption to be a normal, institutionalized, and less visible expectation of the court system. The participation of lawyers also leads to a democratization of corruption: litigants who do not have their own connection to judges can rely on the services of lawyers to bribe or influence judges or political actors who may in turn influence the decision. Any litigant with money can thus shop the “marketplace” of justice. Corruption remains the biggest problem in Chinese courts. Repeated prohibitions by the CCP, the NPC, and the SPC have failed to yield significant improvement.

21. In 1998, the courts handled 17,612 cases involving alleged violations of law by its own personnel, principally involving corruption and other economic crimes (Yang, 1999).

22. When the Guangdong International Trust and Investment Corporation (GITIC) collapsed, Chinese authorities refused to bail out investors based on the grounds that GITIC was a distinct corporate entity for which the state was not financially responsible. A number of Western and Japanese investors conveniently urged China to overlook the technicality, arguing that if they had thought China might invoke limited liability, they would have invested less or sought a higher return (Rosen, 1999).

23. The G7 represents the seven industrialized nations: the US, the United Kingdom, France, Germany, Italy, Canada, and Japan.

24. The major donors include the European Union (providing US$20 million), the World Bank (over US$8 million), the UN Development Program, the Asian Development Bank, national governments (led by Germany, Canada, and Scandinavian nations), and other major foundations (with the Ford Foundation spending close to US$10 million) (de Lisle, 1999).

25. According to the World Bank, China has a score of 5.8 in civil and political rights, whereas Russia's score is 56 (Kaufman, Kraay, and Mastruzzi, 2009).

26. Ye Hanjia v. Ruidegeng Gongsi, Guangdong local court (2001), cited by Stern (2010).

27. 62 Families from Damengwu Village v. Lianhe Xian Yuantong Liuhuangchang, Yunnan local court (2005), cited by Stern (2010).

28. In 2003, tax revenues from the Rongping chemical plant comprised more than 25% of the village's annual budget of US$2.9 million.