Last week, President Xi Jinping stressed the importance of improving the preventive legal system, in the context of important areas like public health, biosafety and ecological civilization. This would be a major improvement, as China’s existing legal framework isn’t clear on preventive cases. A preventive legal system is essential for law-based climate governance, and therefore indispensable in the context of China’s climate transition.
President Xi made the comments on 16 November, at a conference on comprehensively advancing the rule of law. It is the first time we’re aware that President Xi Jinping publicly referred to the need to strengthen the preventive legal system. This reflects a new consensus among the leadership.
Traditionally, legal systems are designed to deal with problems and damages which have already occurred. However, problems like climate change, ecological destruction, or extinction of species can’t really be rectified after they occur. Legal systems in Europe and the USA already have developed certain mechanisms to enable the prevention of environmental problems, but are generally still not very suited to mitigate global environmental risks like climate change.
Despite China’s legal system not being very clear about preventive litigation, Chinese NGOs have brought some preventive public interest cases. For example, in April 2020 the expansion of a hydropower station in Yunnan Province was halted following a lawsuit by Friends of Nature, which argued that the dam would threaten the habitat of the Green peafowl, a beautiful and endangered bird.
Chinese legal scholars have long argued for strengthening the preventive legal system, and I wrote an article on the topic in February 2020. In 2016, CCICED recommended to the State Council to strengthen environmental rule of law, including the need for access to justice for the prevention of environmental harm. In 2017, 2018 and 2019, CCICED also made related recommendations to the State Council, such as further improving the system for public interest litigation, strengthening the system of environmental impact assessments, strategic environmental assessments of new policies, plans and laws, and to integrate climate considerations throughout the legal and policy system. In 2019 and 2020, ClientEarth has also conducted studies on this topic with the Supreme People’s Procuratorate and the Supreme People’s court.
With the endorsement and guidance from President Xi, I expect that the judiciary and lawmakers will now proceed more confidently in developing the preventive legal system. Hopefully in the near future, it will become easier for prosecutors and NGOs to bring preventive public interest litigation. I also expect that upcoming legal revisions and new laws, such as the EIA Law, will make more explicit reference to the mitigation of risks such as climate change, public health crises and ecological disasters.