Local construction of ecological civilization and overseas reference: the ecological civilization in the Constitution in China and the Environmental Charter in France as perspectives

HE Qinhua1,2 LI Qin3

(1.Institute of History of Legal Civilization, East China University of Political Science and Law)
(2.Research Center of Legal History, East China University of Political Science and Law)
(3.East China University of Political Science and Law)

【Abstract】The environmental rights contained in the French Environmental Charter are the third generation of rights after the political rights in the Declaration of Human Rights in 1789 and the socio-economic rights in the preamble of the 1946 Constitution, guiding the continuous development of French environmental law. By reviewing and analyzing the development of the constitutional norms of environmental protection in China and France, this paper tries to explore the contribution and philosophy behind the development of environmental norms in the constitution, with a view to contributing to the improvement of the rule of law of ecological civilization in the new era in China. China has a long history of providing for environmental issues in the constitution. In the early stage of the exploration of environmental rule of law (1949–1979), the constitution only provided for the simple ownership of environmental resources and the state’s obligation to protect the environment. In the stage of healthy development of environmental rule of law (1979–2013), the huge cost of environmental pollution behind the rapid economic development made China start to think about the balanced development of economy and nature. The 1982 Constitution introduced “ecological environment” as a legal concept for the first time. In 2018, “ecological civilization” was written into the preamble of the Constitution, which together with articles 9, 22, 26, and 89 constitutes a combination of articles on environmental protection in the Constitution. The French Environmental Charter is the first declaration of rights in a developed country that specifically provides for environmental rights. Compared with the sporadic environmental provisions of China’s Constitution, which focus on the state’s obligation to protect the environment, the environmental rights and obligations of individuals in the Environmental Charter are more specific and justiciable. Its most original feature is that it places environmental rights and obligations on an equal footing, and based on intergenerational equity and the “polluter pays” principle, everyone should be held responsible for their own pollution. Compared with the systematic and perfect French Environmental Charter and its subsequent development, the construction of environmental rule of law in China still has a long way to go. First of all, we need to make ecological civilization based on the law. The Opinions of the CPC Central Committee and the State Council on Accelerating the Ecological Civilization Construction in 2015 and other programmatic documents have only completed the macro layout, and the next task is to use the rule of law thinking to refine and implement specific programs. The next step is to make the environmental rights written into the constitution. The constitution grants the state administrative organs to maintain the construction of ecological civilization and stipulates the obligation of organizations and individuals not to damage the environment, but these provisions alone are slightly insufficient. Only by establishing the environmental rights and obligations of citizens at the level of the basic law of the country and encouraging everyone to participate in environmental protection will the construction of the ecological rule of law become increasingly dynamic. In addition, it is necessary to pay attention to the harmonious transformation of laws and policies. The Loi Grenelle I and Loi Grenelle II in France break through the constraints of the French national parliament as the main law-making body, and present the characteristics of integration, principle, and policy. This legislative transformation in France, which has a well-established environmental legal system, may provide us with some implications.

【Keywords】 ecological civilization; Environmental Charter; national obligation to protect the environment; constitutional environmental rights;

【DOI】

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ISSN:1004-4043

CN:11-1451/D

Vol , No. 04, Pages 50-54

February 2021

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