Москва
+7-929-527-81-33
Вологда
+7-921-234-45-78
Вопрос юристу онлайн Юридическая компания ЛЕГАС Вконтакте

Comparative legal analysis of environmental rights in the Russian Federation and China: current issues

Обновлено 01.07.2024 07:29

 

The article is devoted to the study of the environmental rights of citizens living in the territory of the Russian Federation and the People's Republic of China. The author focuses on the analysis of domestic legislation on environmental protection and judicial practice of the designated states that are members of the BRICS interstate association. A comparative legal analysis allows us to conclude that in each state, despite the similar environmental rights of citizens, there are key environmental indicators that allow us to distinguish the category of rights under consideration and identify topical issues related to their implementation.

 

Keywords: environmental rights, Russia, China, environmental indicators.

 

Comparative legal research of the member countries of the BRICS interstate association is of particular relevance in the process of studying the environmental rights of citizens. To date, the environmental rights of citizens of most modern states are not always fully implemented, national legislation does not always contain important indicators necessary for the effective application of this category of rights, in practice there are a huge number of issues related to the designation of the interaction of an environmental offense or crime committed and subsequently a negative result for Russian and Chinese citizens, and a number of other topical issues and problems of concern to modern society.

A positive factor in the development of national legislation is the adoption of numerous long-term development programs, concepts, plans, strategies, etc.

In this study, our focus will be on the analysis of significant issues related to the implementation of environmental rights in the Russian Federation and the People's Republic of China.

Having analyzed the norms of Chinese environmental protection legislation, it should be noted that legal entities - individuals have the right to receive information about the environment, participate in environmental protection and monitoring, in case of environmental pollution by an organization / individual, other citizens have the right to contact the head departments of environmental protection <1>.

--------------------------------

<1> The Law of the People's Republic of China "On Environmental Protection" (adopted on 12/26/1989 at the 11th meeting of the Standing Committee of the National People's Congress of the 7th convocation, amended on 04/24/2014 at the 8th meeting of the PC of the National People's Congress of the 12th convocation) (entered into force on 01.01.2015) // Portal Law of China CJO.

 

From the analysis of the provisions of the legislation on environmental protection of Russia, it follows that citizens have the right to a favorable environment, to protect it from negative effects caused by commercial and other activities, unforeseen situations of a natural and man-made nature, to information corresponding to reality about the state of the environment and a number of other rights <2>.

--------------------------------

<2> Federal Law No. 7-FZ of January 10, 2002 (as amended on 12/25/2023) "On Environmental Protection" (with amendments and additions, intro. effective from 01.01.2024) // NW RF. 2002. N 2. St. 133.

 

Having studied the national legislation in the field of environmental protection of Russia and China, we emphasize that Chinese citizens do not have formal consolidation of environmental rights in full, unlike Russian citizens. To a greater extent, the legislation of the People's Republic of China pays attention to the control and management of national programs of economic and social development, protection and improvement of the environment.

For a more detailed analysis of the identified issues, it is necessary to focus on the study of judicial practice in Russia and China.

The Supreme People's Court of the People's Republic of China, in case of establishment of environmental damage caused to the environment, includes the costs of preventive measures arising from the adoption of reasonable emergency response measures to reduce or prevent marine pollution, environmental degradation and reduction of natural resources, restoration costs necessary for the adoption or intended adoption measures for the complete or partial restoration of disturbed marine natural resources and functions of ecology and the environment, losses during the restoration period, including the loss of marine natural resources and the loss of ecological and environmental service functions until the partial or complete restoration of disturbed marine natural resources and functions of ecology and the environment, and the costs of investigation and assessment incurred in connection with the study, survey and monitoring of contaminated areas, as well as the assessment of pollution risks and other damage and the actual damage <3>.

--------------------------------

<3> Regulations of the Supreme People's Court on certain issues related to the consideration of cases related to disputes on compensation for damage caused to marine natural resources, ecology and the environment // Official website of the Supreme People's Court of the People's Republic of China.

 

Based on the formulated position of the Constitutional Court of Russia, the features of environmental damage are presented in the form of uncertainty in the correlation of adverse effects and damage to the environment, indicating the absence of full compensation for damage by similar objects and the possibility of calculating an estimate of its size. The damage / harm caused in the field of ecology is characterized by the complexity of its expression, since it contains social and economic harm. In the first case, we are talking about human health or life and those medical consequences associated with getting various kinds of diseases. In the second case, the emphasis will be on property damage due to the impossibility of replacing it with other similar objects or non-payment of compensation due to the absence of the above-mentioned relationship. In case of damage/harm, the polluter is obliged to effectively eliminate it and return the resources of nature to their former form, as well as to apply a set of measures to eliminate pollution <4>.

--------------------------------

<4> Resolution of the Constitutional Court of the Russian Federation dated June 2, 2015 No. 12-P "In the case of checking the constitutionality of Part 2 of Article 99, part 2 of Article 100 of the Forest Code of the Russian Federation and the provisions of the Decree of the Government of the Russian Federation "On calculating the amount of damage caused to forests as a result of violation of forest legislation" in connection with the complaint of the company limited liability company "Zapolyarneft" // SZ RF. 2015. N 24. St. 3547.

 

Two reports - the "White Paper" on Environmental and Resource Testing in China in 2017-2018 and the "Green Book" on the Development of environmental Justice - were published by the Supreme People's Court on March 2. The reports summarize cases related to the environment and natural resources in 2018, systematically indicate the trend of environmental lawsuits in China, which provide a judicial guarantee of ecological civilization in the country and its green development. In 2018, the Supreme People's Court of the People's Republic of China adopted:

- 26,841 criminal cases related to the environment, which is 16.51% more significant than in 2017;

- 192,008 civil cases were accepted in the first instance, exceeding the figures of 2017 by 8.17%;

- administrative cases 42,235, which exceeds the figures of the previous calendar year by 7.35%.

The Government of the People's Republic of China initiated twenty lawsuits for compensation of environmental damage at the federal level, and eight lawsuits at the municipal level <5>.

--------------------------------

<5> Data on judicial protection of the environment and resources // Official website of the Supreme People's Court of the People's Republic of China.

 

According to the data of the federal state body under the supreme judicial body of Russia, the share of cases of environmental crimes coming to the courts in 2021 was 1.3%. During the period from January 2019 to December 2021, almost 50% were convicted of environmental crimes. For example, 8,580 people were found guilty of illegal logging of forest plantations <6>.

--------------------------------

<6> Review of the practice of courts applying the provisions of Chapter 26 of the Criminal Code of the Russian Federation on environmental crimes (approved by the Presidium of the Supreme Court of the Russian Federation on 06/24/2022) // Bulletin of the Supreme Court of the Russian Federation. 2022. N 11.

 

In 2023, the Supreme People's Court of the People's Republic of China issued an interpretation directed against people who damage forest resources. The interpretation of the Criminal Law, consisting of twenty articles, promulgated by the Supreme People's Court, will enter into force on Tuesday, the country's first National Ecology Day. "The new legal document is designed to resolutely combat crimes related to damage to forest resources and meet new requirements in the field of forest protection," Zhou Jiahai, deputy head of the research office of the Supreme Court, said at a press conference. The interpretation states that those who illegally cut down trees in national parks and national nature reserves should be punished more severely than people who engage in the same activity in other areas.

"Judges are charged with the duty to protect perennial trees included in the list of protected wild plants of the state. In relation to trees that are not wild, judges, during the issuance of a judicial act, make a decision based on their type, age, cultural and historical value" <7>.

--------------------------------

<7> Interpretation directed against people damaging forest resources // Official website of the Supreme People's Court of the People's Republic of China.

 

In the course of the study, which focuses on the implementation of environmental rights of citizens of Russia and China, environmental indicators were identified.

In our opinion, environmental indicators should be understood as criteria in the field of ecology aimed at the realization of environmental rights, contributing to the designation of environmental offenses and crimes and solving urgent problems that reduce the process of restoring violated environmental rights.

In connection with the above-mentioned criteria in the field of ecology in the States we analyze, significant attention should be paid to the formal consolidation of environmental rights in national environmental protection standards, harm or damage to environmental rights of citizens, materials of judicial practice containing key legal positions on the case under consideration, the designation of the correlation of environmental illegal acts and the consequences that have occurred.

The legal reflection of environmental rights indicates the possibility of using the guarantee of judicial protection in case of violation of fundamental rights of citizens. The absence of a norm in the law on environmental protection will be a limiting factor in the application of this guarantee.

The infliction of harm/damage after an environmental offense is committed acts as an environmental indicator due to the occurrence of adverse consequences for the life and health of society.

The materials of judicial practice, including fundamental legal positions, are advisory or mandatory, depending on the judicial authority that issued the judicial act. However, there are exceptions to this rule. In the analyzed judicial authorities of Russia and the People's Republic of China, legal positions are mandatory in case of environmental damage.

The establishment of a causal relationship between an environmental illegal act and the consequences that have occurred is not always unambiguous. This is primarily due to the indicators indicated earlier in the study. Also, the impossibility of establishing this relationship is affected by the process of determining the subject who directly caused the harm and other circumstances.

Summarizing the above, we emphasize that the environmental rights of the Russian Federation and the People's Republic of China are similar, but there are individually defined features of national legislation that allow them to differentiate. Environmental indicators in the studied BRICS countries are generally identical to each other. The full realization of environmental rights is impossible due to the commission of numerous environmental offenses and crimes that indicate a low level of environmental awareness and culture.