I Introduction
Foreign relations law defines the foreign relations power of subjects of international law.Footnote 1 It encompasses the domestic law of each nation that governs how that nation interacts with the rest of the world.Footnote 2 In China, there is no field of foreign relations law recognised as such. Rather, the questions animating foreign relations law are deeply entrenched in fragmented provisions among hundreds of different legal texts. Given this fragmentation, this chapter focuses on the negotiation, conclusion, approval and implementation of international environmental treaties and agreements. In 1972, the opening of the Stockholm Environmental Conference marked the beginning of international environmental law and global environmental cooperation. As a part of international law, the functioning of international environmental law largely depends on the willingness and national capacities of states. Since many environmental problems have consequences that reach beyond national jurisdictions, domestic environmental laws and policies will impact other states and global environmental governance. The focus of this chapter is on law and practice concerning Chinese foreign relations law on global environmental governance. It will look into how China has been constructing its foreign relations law relating to environmental governance both nationally and globally and will propose that Chinese foreign relations environmental law and policy be conceived as a basic structure of foreign relations law.
The next part of this chapter will demonstrate the current status of Chinese foreign relations law and how Chinese international law scholarship perceives it (Section II). It will be highlighted that a comprehensive field of Chinese foreign relations law is so far only a product of scholars’ efforts. The third part of the chapter will address why Chinese law does not include a general foreign relations statute (Section III). I maintain that traditional doubts, caution and silence from the law constitute three main factors. Yet, since 1972, the relationship between environmental governance in China and its global counterpart has turned out to be rather dynamic. This dynamic relationship has been developed and reinforced by ‘Chinese environmental diplomacy’, which helps to explain its role in Chinese ‘foreign relations environmental law and policy’ (Section IV). As Campbell McLachlan wrote, the ‘distribution of foreign relations power between the organs of government’ is one of the functions of foreign relations law.Footnote 3 Therefore, in the fifth part of the chapter, I will explore how powers of Chinese public authorities have been allocated with regard to the negotiation, conclusion, approval and implementation of international environmental treaties and global environmental institutions (Section V). I propose that Chinese administrative organs have developed a coordinated approach to ‘external environmental relations’. In part six, I will discuss the legal status of environmental treaties in China, their place in Chinese law and mechanisms of implementation (Section VI). The conclusion will briefly summarise the main findings on the encounters between global environmental law and governance and Chinese ‘external environmental relations’ (Section VII).
II Debates on Chinese Foreign Relations Law
The history of foreign relations law as a field of study in China is relatively short. A Chinese international law scholar, Professor Liu Renshan of Zhongnan University of Economics and Law, pinpointed that Chinese foreign relations law is an important part of the Chinese legal system. He proposed that ‘foreign relations law’ entails an interconnected and composite legal system comprised of laws, regulations and other normative legal documents dealing with external relations.Footnote 4 According to his account, this field of the law fulfils two specific functions: first, it defines the allocation of powers in foreign affairs, such as which public organs have the right to declare war, deploy peacekeeping forces, send envoys or negotiate and approve international treaties. Second, it governs how international law becomes a part of Chinese law. With regard to these two functions, he listed three categories of sources in Chinese law, the constitution, special lawsFootnote 5 and provisionsFootnote 6 concerning foreign relations. Furthermore, he emphasised that Chinese international lawyers should explore relationships between international law and Chinese domestic law. In May 2016, a conference on ‘Chinese Foreign Relations law: A New Agenda’ stressed the importance of international legal research and practice, especially on matters affecting China and the Chinese people. From then on, a few Chinese scholars have devoted themselves to the topic. Based on his previous research, Liu Renshan extended his proposals on current drawbacks of China’s foreign relations law – namely lack of systematicity, illogical legislative gaps and lack of applicability – and made suggestions how to organise it in a more systematic manner.Footnote 7 On the basis of his analysis of Chinese courts’ contributions to international law,Footnote 8 Cai Congyan, Professor of International Law at Xiamen University School of Law, emphasised the importance of Chinese foreign relations law, mapped its current structureFootnote 9 and sketched the functions of Chinese domestic courts in the interpretation and implementation of international law.Footnote 10 Overall, current voices in Chinese scholarship focus primarily on the ‘significance, status and proposed structure’ of Chinese foreign relations law. The current work of these scholars is mostly constructive and extrapolated from theoretical considerations. There is no statute on foreign relations law in the current Chinese legal system. However, that does not mean that foreign relations law does not exist or does not have practical relevance. To the contrary, the questions animating foreign relations law are deeply entrenched in fragmented provisions among hundreds of different legal texts.
Recently, China has proposed a programme on rule of law in foreign relations, which may lead to the official establishment of foreign relations law as a field of law in the near future. On 31 October 2019, the Central Committee of the Communist Party of China adopted fifteen major decisions on ‘Adhering to and Improving the Socialist System with Chinese Characteristics and Promoting the Modernization of the State Governance System and Capabilities’.Footnote 11 Among these, the thirteenth decision focused on ‘independent foreign policy of peace and promotion of the building of one community of human destiny’, advocating five objectives on foreign relations and law, which are ‘establishment of foreign-related institutional mechanisms’, ‘coordination of foreign exchanges on part of the People’s Congress, the central government, the Central Committee of the Communist Party, the military, local governments, and people’s organizations’, ‘strengthening the Party’s overall planning and coordination of all Party external work’, ‘strengthening the rule of law in foreign relations’ and ‘establishment of a legal system for work related to foreign states’. The thirteenth decision symbolises that the Chinese government is pursuing a systematic construction of ‘foreign relations law’. For the Chinese government, the next step is how to shape its structure and define its scope of application. We will need to assess in the future the impact of this ambition of the government.
III The ‘Underdeveloped’ Foreign Relations Law in China
Two factors contribute to explaining why foreign relations law is so far underdeveloped in China: China’s traditional perspectives on international law (subsection A) and the silence of Chinese law (subsection B).
A Traditional Perspectives on International Law: Doubt and Caution
China’s traditional perspectives on international law depend on the historical experience of certain diplomatic practices.Footnote 12 Some authors have characterised the Chinese modern period (from 1840 to 1949) to be ‘semi-colonial and semi-feudal’.Footnote 13 During this period, the first acquaintance with international law is the treaty of Nanking (1842),Footnote 14 the first unequal treaty in Chinese diplomatic history influencing Chinese attitudes towards international law.
After 110 years of fighting against aggressors, the government of the People’s Republic of China, established in 1949, perceived international law as a Western instrument against socialism. Until 1966, China adopted a strategy of ‘Start All Over Again’, which means that the new Chinese government would stay away from the Western legal system. During the Cultural Revolution (1966 to 1976), China’s diplomacy was still in progress, for example, to retrieve legal rights in the UN and participate in the Stockholm environmental conference, even if international legal research had been ceased. From 1949 to 1978, before the ‘Reform and Opening-up Policy’ was adopted, two characteristics were constitutive for China’s approach towards international law: first, a suspicion towards traditional international law that primarily protected developed states to the detriment of most undeveloped nations and, second, respect for the principles of ‘sovereignty’, ‘territorial integrity’, ‘independence’, ‘equality’ and ‘mutual respect’. After the adoption and implementation of the ‘Reform and Opening-up Policy’ in 1978, China revived international law research and teaching and promoted interactions between international law and diplomacy. From 1979 on, China became a participant of and contributor to the international legal order, for example, it joined over 300 multilateral treaties and 130 international organisations.Footnote 15 With the expansion of its opening-up policy, China became aware of the role of international law in protecting national interests. In its foreign relations, China successfully requested the Alabama Court of the United States of America to dismiss the case of the Huguang Railway BondsFootnote 16 on the grounds of absolute jurisdictional immunity and non-payment of odious debts by appointing its legal counsel to make an appearance on behalf of China in 1984.Footnote 17 Another example, the Guanghua Dormitory (or Khoka-ryo student dormitory) case (1987–2007)Footnote 18 portrays China’s recognition and succession practices in international law.
In 2014, the Chinese government adopted a strategy of a ‘socialist rule of law’.Footnote 19 The strategy emphasised that ‘China will vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen its discourse power and influence in international legal affairs, … safeguard the proper interests of its citizens and legal persons abroad, and foreign citizens and legal persons in China’.Footnote 20 It can be taken from this that China is serious about shaping a new international law order based on their understanding of the principles of ‘sovereignty’ and ‘cooperation’.Footnote 21 While the idea of a ‘socialist rule of law’ as such cannot tell us how China will attain these objectives through specific actions, it forms the background also for the growing scholarly interest in a Chinese foreign relations law.
B The Silence of Chinese Law on Foreign Relations
As far as international law is concerned, China’s Constitution only specifies which organs have the authority to conclude and approve a treaty.Footnote 22 The ‘Law on the Procedure of the Conclusion of Treaties’, adopted by the Standing Committee of the National People’s Congress in 1990, enumerates three categories of treaties that shall be concluded by three corresponding public authoritiesFootnote 23 but does not stipulate the status of treaties in the Chinese legal system. There is also no systematic law concerning how an approved treaty will be implemented in the Chinese legal order. The Civil Procedure Law provides that international treaties shall prevail unless China has formulated reservations.Footnote 24 But the logic of ‘primacy’ cannot be applied to other areas of the law. In WTO law and the law of sea, China adopts the mode of ‘transformation’, which means that specific domestic laws ensure compliance with approved treaties. Consequently, fragmentation and unpredictability characterise the current status of international treaty application in China. As Professor Cai has pointed out, fragmentation and unpredictability also imply flexibility,Footnote 25 and the purpose of this flexible attitude and approach is to progressively find adequate solutions.
IV Chinese Foreign Relations Environmental Law and Policy
While Foreign Relations Law in general is still underdeveloped in China, it can be said that Chinese foreign relations environmental law and policy conforms to a basic structure of foreign relations law. Before discussing the allocation of China’s public powers in global environmental governance and the legal status of environmental treaties in China as key topics of foreign relations law in Sections V and VI of this chapter, I will sketch the encounters of international and domestic environmental law and governance that have resulted from Chinese environmental diplomacy since the 1970s (subsection A) and have led to congruent basic legal principles of Chinese and international environmental law (subsection B).
A Chinese Environmental Diplomacy
Chinese environmental diplomacy has contributed to international and national environmental law. Chinese environmental diplomacy began in 1972,Footnote 26 which also marks the beginnings of international environmental law. In 1972, the Chinese government sent delegations to participate in the Stockholm Conference. It was also the first time that China participated in a multilateral conference for the protection of the environment. Unfortunately, the issues in this conference were not deeply discussed in China because of the ‘Cultural Revolution’. This ‘revolution’ plunged the legal system and social order into chaos. However, it did not stop the progress of Chinese diplomacy, for example, the Government of the People’s Republic of China was recognized as ‘the only legitimate representatives of China to the United Nations’ in 1971.Footnote 27 The reason why China still participated in the Stockholm Conference was that China expected the conference to open valuable opportunities for interacting with the Western world without damaging core national interests.Footnote 28 The first Prime Minister of the People’s Republic of China, Zhou Enlai (周恩来), asked delegations to positively express ideas, policies and understanding and promote independence, economy and solidarity with ‘third-world’ countries.Footnote 29
Stockholm turned out to offer an opportunity for pushing forward domestic environmental protection in China. Learning from global environmental problems at the conference, the delegations reported to Prime Minister Zhou that China also experienced serious environmental degradations. In 1973, the State Council opened the first conference on national environmental protection in Beijing, which put environmental protection on the national agenda. In its aftermath, China adopted a series of laws and regulations. China’s Constitution (1978) firstly provided that China protects the environment and natural resources, prevents and eliminates pollution and other public hazards.Footnote 30 The most remarkable evidence is that the Standing Committee of the National People’s Congress adopted the first comprehensive environmental protection law in 1979.Footnote 31
Chinese environmental diplomacy was not limited to be a learner. From the 1990s onwards, China became active in promoting its understanding of international cooperation. At the 1992 Rio Conference, China and other developing countries insisted that the notion of ‘Common but differentiated Responsibilities’ be one of the guiding legal principles in global environmental governance.Footnote 32 China proposed that industrialised countries should take leading responsibilities for tackling global environmental problems not only for their historical contributions but also for their comparative higher capabilities. At last, the Rio legal instruments reflect this proposal.Footnote 33 The principle of ‘Common but differentiated Responsibilities’ has been one of guiding principles in Chinese environmental diplomacy.Footnote 34
B Congruent Basic Legal Principles of Chinese and International Environmental Law
To better understand Chinese foreign relations environmental law and policy, it is necessary to take into account those Chinese environmental legal principles which overlap with international environmental law. This exercise helps to identify connections and understand official attitudes towards Chinese foreign relations law on environmental governance. Articles 4 and 5 of the Chinese ‘Environmental Protection Law (2014 Revision)’ manifestly stipulate four basic legal principles.
The first principle is the ‘coordination of economic and social development with environmental protection’.Footnote 35 Before the 2014 revision, Chinese environmental protection was coordinated with economic and social development.Footnote 36 In other words, the purpose of environmental protection is to fully realise economic development. After the revision, environmental protection shall be equal to economic development. The principle of coordination, in essence, is consistent with the principle of sustainable development in international law.Footnote 37
The second principle is ‘prevention first’. Generally, the principle holds that any pollution and risk of pollution should be prevented or controlled before they are created. In international environmental law, prevention as a principle only underscores the obligation of states to prevent environmental damage within and beyond their own jurisdiction. Article 5 of the Chinese Environmental Protection Law provides that environmental protection should be focused on prevention. Both public and private entities and individuals should take responsibilities for preventing risks and damages. The three techniques usually applied under the principle in China – environmental impact assessment, environmental standards and environmental monitoring – are consistent with international environmental practices.
The third principle, ‘public participation’, as enshrined in Principle 10 of the Rio Declaration, has been transformed into Chinese environmental law. It is applied in public information, environmental management and impact assessment, class action etc. In 2015, the Ministry of Environmental Protection issued an order on ‘Measures for Public Participation in Environmental Protection’, which portrays special communication channels (letters, faxes, email, ‘12369’ tip-off hotline, public hearings, notification and financial support) to facilitate the participation of non-state actors in environmental decisions.
‘Polluter pays’, the fourth principle, evolved from the Organisation for Economic Co-operation and Development (OECD) and highlights the ‘internalization’ of environmental costs and the assumption of the ‘burden’ by environmental polluters and beneficiaries.Footnote 38 Based on the OECD RecommendationsFootnote 39 and the Rio Declaration,Footnote 40 Chinese environmental law broadens its contents by incorporating an environmental tax law,Footnote 41 rules on the insurance for environmental liabilityFootnote 42 and a compensation mechanism for ecological protection.Footnote 43
The above four principles are stipulated in both international and Chinese environmental law. The normative congruence on the level of principles has been recognised in the Chinese official position on national and international environmental governance in general.Footnote 44
V The Allocation of China’s Public Powers in Global Environmental Governance
The allocation of powers to negotiate, conclude and approve treaties and agreements is one of the core issues in foreign relations law. Due to fragmentations and complexities in international environmental law, and silences in Chinese constitutional law, Chinese departmental regulations provide for different functions for the respective public authorities in individual treaty regimes.Footnote 45 This section will analyse the allocation of China’s public powers in global environmental governance. In 2018, China has completed the ‘State Council Institutional Reform Plan’.Footnote 46 After the reform, the power to negotiate all multilateral environmental treaties was transferred to the Ministry of Ecology and Environment. However, the competence of the Ministry is not exclusive. I will first set out the administrative actors involved in China’s ‘external environmental relations’ (subsection A) before I turn to the allocation of powers in the conclusion and approval of environmental treaties and agreements (subsection B) and in international cooperation with global environmental institutions (subsection C).
A Administrative Organs Involved in ‘External Environmental Relations’
More than one Chinese administrative organ is taking action in global environmental governance, such as negotiations, conclusion and approval of international environmental treaties and international cooperation. These collective and coordinated actions of administrative organs are based on their allocated powers.
In general, it is the State Council that conducts Chinese foreign affairs including the negotiation and conclusion of international treaties.Footnote 47 In practice, the Ministry of Foreign Affairs has been empowered to negotiate international environmental treaties on behalf of the People’s Republic of China and the Chinese government. To achieve division of powers and goal congruence, China has devised a scheme of ‘external coordination’ in multilateral environmental agreements negotiations. In other words, there is not one single public organ that is empowered to negotiate global environmental treaties or agreements.
At present, there are over ten administrative departments involved in the process of external coordination, which consists of three steps. First, the Ministry of Foreign Affairs plays a role as the ‘Window Unit’. The Ministry of Foreign Affairs traces and notifies the everyday development of all issues. Secondly, the Ministry of Foreign Affairs will contact public authorities and assign specific issues to them on the basis of relevance and expertise. For example, matters involving green technologies or forestry will be assigned to the Ministry of Science and Technology and the Ministry of Agriculture and Rural Affairs respectively. The authorities entrusted with the exercise of these assigned powers will set up specialised study groups to propose ideas and draft documents on their own. After respective investigations, all these groups will gather together to exchange ideas, draft, revise and finalise position papers for international negotiations. However, this coordination does not work well all the time. Due to the multifaced nature and complexity of environmental issues, different public organs might propose conflicting environmental policies and goals affecting the process of ‘external coordination’ in environmental diplomacy.Footnote 48
B Allocation of Powers on Conclusion and Approval of International Treaties and Agreements
Article 89 of China’s Constitution provides for the functions and powers exercised by the State Council. Item 8 of this article clearly empowers the Council to conduct foreign affairs and conclude treaties and agreements with foreign states, which is also provided in Article 3 of the ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’.
Questions of approval are more complex. According to the Constitution, two public authorities shall be involved, the Standing Committee of the National People’s CongressFootnote 49 and the President of the People’s Republic of China.Footnote 50 Article 3 of the Law on the Procedure of the Conclusion of Treaties stipulates that the Standing Committee of the National People’s Congress is competent to approve treaties and important agreements, while the President shall approve treaties and important agreements in pursuance of the decisions of the Standing Committee of the National People’s Congress. The authority of approval of the President of the People’s Republic of China is derived from the Standing Committee of the National People’s Congress. In practice, none of China’s international treaties and agreements has been approved by the President. It is noteworthy that the Standing Committee of the National People’s Congress only approves ‘treaties and important agreements’.Footnote 51
1 Approval of Certain Treaties by the Standing Committee of the National People’s Congress
The ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’, literally understood, fully empowers the Standing Committee of the National People’s Congress to approve all international treaties. Article 7 enlists the ‘treaties and important agreements’ that shall be approved by the Standing Committee of the People’s Congress:
(1) treaties of friendship and cooperation, treaties of peace and other treaties of a political nature;
(2) treaties and agreements concerning territory and delimitation of boundary lines;
(3) treaties and agreements relating to judicial assistance and extradition;
(4) treaties and agreements which contain stipulations inconsistent with the laws of the People’s Republic of China;
(5) treaties and agreements which are subject to ratification as agreed by the contracting parties;
(6) other treaties and agreements subject to ratification.
The following remarks will focus on environmental treaty practice with respect to Article 7 paragraphs 4 to 6.
Firstly, according to Article 7 paragraph 4 of the ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’, if provision(s) in an international environmental treaty or agreement depart from existing national law, the Standing Committee has exercised the power of approval over the instrument, for example, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (approved in 1991),Footnote 52 the 1992 United Nations Framework Convention on Climate Change (approved in 1992)Footnote 53 and the 1992 Convention on Biological Diversity (approved in 1992).Footnote 54
Secondly, Article 7 paragraph 5 provides that the Standing Committee shall approve an international treaty or agreement that shall clearly be subject to ratification as agreed by the contracting parties. For example, the Committee approved the Convention for the Protection of the World Cultural and Natural HeritageFootnote 55 in 1988.Footnote 56 The most recent case is the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques,Footnote 57 which was approved in 2005.
In practice, the Standing Committee has exercised its power according to Article 7 paragraph 6, the so-called ‘miscellaneous clause’. The Committee is competent if a new agreement or protocol substitutes an old one that was subject to approval or actually approved by the Committee. For example, in 2006, the 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other MatterFootnote 58 was approved based on the notion of ‘succession of treaty’Footnote 59 because the 1972 Convention was also subject to approval by the Standing Committee. Two further recent examples are the 2013 Minamata Convention on MercuryFootnote 60 and the 2015 Paris Agreement,Footnote 61 which were approved by the Committee in 2016. Although both treaties were neither subject to the national constitutional procedure nor successors of earlier treaties, the Committee still approved them because of their significant implications to environment and human health.Footnote 62
2 Approval of Other Agreements by the State Council
Article 7 of the ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’ defines the realm of agreements that shall be approved by the Standing Committee. Those agreements that do not fall under one of the six items of Article 7 may be subject to approval by the State Council. For example, the State Council approved the 2000 Cartagena Protocol on Biosafety to the Convention on Biological DiversityFootnote 63 in 2005. The question is when does the State Council exercise its power. No statute specifies those circumstances that empower the State Council.
It is unclear how allocated powers function in international environmental agreements that do not fall under Article 7 of the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties. The Standing Committee virtually approved several environmental agreements affecting human health or environment that do not fall under Article 7 without further legislation. As for the State Council, no statute supports its power of approval even if the power has been practically exercised. I would prefer to identify these practices as ‘unpredictable’ consequences caused by ‘legal lacuna’. To achieve predictability, Chinese law should further clarify how to allocate the two public authorities to exercise powers on approval on the grounds of existing practices.
C Allocation of Powers in International Cooperation with Global Environmental Institutions
Apart from concluding international environmental treaties or agreements, China has been also active in cooperating with global environmental institutions. Among these, two institutions, the ‘Global Environmental Facility’ and the ‘South-South Cooperation Fund’ reflect how Chinese public powers interact in international environmental cooperation, as shown in Table 15.1 below.
| Name of Public Authority | General Allocated Functions |
|---|---|
| Ministry of Foreign Affairs | Convening of negotiations on international conventions |
| Ministry of Ecology and Environment | Negotiation of Multilateral Environmental Agreements |
| Ministry of Science and Technology | Administration and Implementation of ecological scientific technologies |
| Ministry of Agriculture and Rural Affairs | Sustainable development in rural and agricultural matters |
| Ministry of Finance | Collecting and allocating international finance |
| Ministry of Transport | Building and promoting digital and low-carbon transportations |
| Ministry of Water Resources | Hydropower stations constructions |
| Ministry of Housing and Urban-Rural Development | Energy efficient housing |
| Ministry of Commerce | Attracting environmental-related international trade and investment funds |
| China Meteorological Administration | International climate sciences cooperation |
1 Cooperation with the ‘Global Environmental Facility’
Allocation of powers is also an issue with regard to the operation of the Global Environmental Facility (GEF), which is advocated by China.Footnote 64 As a founding member, contributing and recipient country, China has carried out a productive cooperation with the GEF since May 1994.Footnote 65 Until the end of 2019, China has been granted 1,855.84 million US dollars funding from the GEF for 213 projects concerning, inter alia, climate change, land degradation and biodiversity.Footnote 66 Without financial assistance from global contributions, it would be difficult to upgrade Chinese environmental governance. The Chinese government announced that it will prepare to implement all plans supported by the GEF. The GEF can be the major financial resource to realise national environmental protection with bilateral cooperation.Footnote 67
In practice, the Ministry of Finance plays the role of a ‘Focal Point’ in the GEF. Due to its financial nature, all plans and activities should be in accordance with considerations of the national macro-economy, which is instructed by the National Development and Reform Commission (国家发展与改革委员会). To achieve efficient collaboration, the Ministry of Finance and the Ministry of Ecology and Environment jointly established the ‘Secretary Office of China-GEF’ in 2002.Footnote 68 The Office identifies, reviews, monitors and assesses all programmes proposed by the Ministry of Finance. If a proposed programme is accepted by the Secretary Office, the Ministry of Finance will notify GEF. GEF finally decides whether the programme would be approved.
2 Launching and Building the ‘South-South’ Cooperation Fund
China is not only receiving assistance, but also contributing to environmental financing. In 2015, Chinese President Xi Jinping launched the proposition to set up a ‘South-South’ Cooperation Fund at the United Nations Development Summit. In his speech, he proposed that China would contribute two billion dollars to support developing countries to implement the ‘2030 Sustainable Development Goals’. To effectively implement the fund, the Ministry of Commerce promulgated the ‘Consultative Draft on Application and Administration of the South-South Cooperation Fund’ in 2016.Footnote 69 According to this draft, the Ministry of Commerce will administer the approval, management and supervision of funding programmes. If a foreign entity intends to receive assistance, it shall submit application files to its corresponding commercial organ or representative office in China. The Commercial Representative Offices affiliated to Chinese embassies and consulates abroad will assist the Ministry to manage and supervise the programme when the international application is approved.
VI The Legal Status of International Environmental Treaties in China
By the end of 2019, China is a state party to ninety-nine multilateral, seventy regional and bilateral environmental treaties, agreements and protocols, which almost cover all environmental areas. With the increasing number of international environmental agreements particularly two questions arise, which are another core issue of foreign relations law: the place of international environmental agreements in the Chinese legal system (subsection A) and how international treaty provisions become part of Chinese law (subsection B). This section of the chapter will address these two issues in the light of the applicable Chinese law, with a focus on international environmental law.
A The Place of Environmental Agreements in Chinese Law
An approved international treaty occupies an uncertain place under Chinese law. Under constitutional law, the hierarchy in the system of Chinese environmental law follows the hierarchy of public authorities:Footnote 71 comprehensive environmental law and standards adopted by the Standing Committee of the National People’s Congress; environmental regulations and standards adopted by the State Council; departmental regulations adopted by Central Ministries and Commissions.Footnote 72 Very few Chinese scholars contend that the legal nature of approved treaties or agreements depends on the hierarchy of public authorities. According to this view, for instance, an international environmental treaty can be equal to environmental law when it was approved by the Standing Committee.Footnote 73 I am very sceptical about this proposition. The standard of ‘hierarchy’ shall be strictly limited in the context of Chinese lawmaking. It is implausible that the status of treaties or agreements could be arbitrarily determined by the hierarchy of the approving authority without any basis in a statute.
B Methods of Implementation
China has been always upholding that it will conform to international law irrespective of whether this contradicted its national law and policy. Yet, current Chinese law does not provide a specific approach to implement international legal obligations. In accordance with existing practice, some legal scholars contend that there are three ways for international treaty provisions to become part of China’s domestic law: transformation through legislation (subsection 1), execution by administrative measures (subsection 2) and direct application of international treaties (subsection 3).Footnote 74 These observations are confirmed by the practice of Chinese environmental law.
1 Transformation through Legislation
The process of transformation generally takes place in two alternative ways. A first option is the enactment of special legislation. Generally, it is the State Council that promulgates departmental regulations. For example, in order to implement the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,Footnote 75 the Regulations on the Safety Management of Hazardous ChemicalsFootnote 76 were adopted in 2013. The second approach is the incorporation of treaty obligations into existing laws by amendment or revision. The typical example is that the State Council adopted the 2018 Amendment of the Regulation on the Administration of Ozone Depleting SubstancesFootnote 77 to fulfil legal obligations under the Vienna Convention for the Protection of the Ozone LayerFootnote 78 and the Montreal Protocol on Substances that Deplete the Ozone Layer.Footnote 79
2 Execution by Administrative Measures
Sometimes, administrative measures may be adopted to address harsh environmental problems, since it is time-consuming to transform international legal obligations into statute. Hence, administrative organs or offices may be authorised to promulgate regulatory documents.Footnote 80 The most recent case is the Chinese government’s ‘no’ to foreign garbage, which is a matter governed by the Basel Convention. In 2017, under the approval of the State Council, the General Office of the State Council issued a ‘Notice on the Issuance of the Implementation Plan for Prohibiting the Entry of Foreign Garbage and on the Advancement of the Reform of the Solid Waste Import Administrative System’.
3 Direct Application
Chinese environmental laws provide for general objectives, obligations and accountabilities. Normally, supplementary provisions address how an international environmental treaty will be dealt with when it is not in conformity with national laws. Out of twenty-seven national laws only two explicitly define the status of international environmental treaties in case of conflicts.Footnote 81
Article 96 of the Marine Environmental Protection Law (2017 Amendment) states that:
Where an international treaty regarding marine environment protection concluded or acceded to by the People’s Republic of China contains provisions differing from those contained in this Law, the provisions of the international treaty shall apply; however, the provisions about which the People’s Republic of China has reservations shall be excepted.Footnote 82
This provision reflects that international environmental treaty law prevails over national law in the field of marine protection. It also proves that direct applicability of environmental treaties has been presupposed in Chinese environmental law, although very few environmental laws directly pinpoint the approach. Since most provisions in environmental treaties are vague, national law normally is not in conflict with treaty provisions but concretises them for special circumstances.
VII Conclusion
China does not have a systematic law and practice concerning foreign relations. Its two characteristics of fragmentation and unpredictability can be explained by historical doubts and cautions towards international law, a western-dominated discourse and system of international law, and silence on the part of China’s Constitution. Chinese environmental diplomacy helps to further comprehend Chinese foreign relations environmental law and policy. While there is no field of foreign relations law recognised as such in China, Chinese foreign relations environmental law and policy conforms to a basic structure of foreign relations law. China devised and operated distributed authorities through external coordination in international environmental treaty negotiations. According to the law and administrative regulations, the Standing Committee and the State Council are empowered to ratify or conclude international environmental treaties or agreements under special conditions. A ratified treaty becomes part of the Chinese legal system. To achieve compliance, Chinese legislative authorities may adopt transformation, executional measures or direct application.
The overall picture painted in this chapter hence points to a nuanced answer to the question of the existence of a Chinese foreign relations law: it does not exist as a separate field, but there are many components of Chinese domestic law which fulfil typical functions of a foreign relations law. In particular, they help to construct bridges and establish boundaries between public international law and the Chinese legal framework. Further research on the prevalence of similar conditions of the Chinese legal framework for other fields of international cooperation would be a welcome addition to the global scholarship on foreign relations law as well as public international law.
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