9 Chinese Law and Policy on Marine Environmental Protection
175
marine environmental protection. The enforcement of law has been also improved
through the current ministerial reform. The developments in China’s marine policy
and laws reflect the paradigm shift of the protection of marine environment, namely
from the previous regime with the decentralized and fragmented nature to the new
regime of the centralized and integrated nature. Although China has fully established a marine legal system and disparate efforts on marine environmental there are
remaining problems and future challenges China still faces.
Firstly, the MERL, as a new mechanism and national initiative to support marine
environment protection, is just in the initial stage, and there are a range of legal
issues need to be clarified. Since the MFZ and MERL have the same legal status and
binding force according to the law, their functions will conflict each other when their
working areas overlap. The authority departments in charge of MFZ and MERL are
different, and it is unclear whose jurisdiction is prevailing, where overlap occurs.
From the technical perspective, drawing a MERL is a complex and technical process
requiring the evaluation of various elements of ecosystems, such as space, time,
process and behavior.
128 This imposes great pressure on coastal governments. To
implement the MERL more effectively, it is necessary to unify the standard and
technology for demarcation of the MERL. In addition, the ecological compensation system needs to be further improved to support the implementation of MERL.
Secondly, the ministerial reform brings new challenges for the authorities to enforce
the laws and regulations. The consolidation of ‘mega-institutions’ will be a longterm project in the future, and it takes time to see whether the new arrangement
successfully address the environmental issues. In addition, to remedy marine environmental problems, public involvement in enforcement has play an indispensable
role. However, public participation is still weak in the law-making process as well
as in law enforcement. The existing legislations can not well protect the public’s
right to participate in environmental protection. Although the revised Environmental
Protection Law granted environmental Non-Government Organisations (NGOs) that
have been registered and operating for over five years the ability to sue polluter in the
public interest,
129 public individuals are still not eligible for litigation. Public interest
litigation can be either civil lawsuits against companies or individuals or administrative lawsuit against government agencies. However, administrative litigations can
only be initiated by procuratorates.
130 The public interest litigation is a legal tool
128 Craig Loehle, Challenges of ecological complexity, Ecological Complexity, Vol. 1, 2004, pp. 3–6.
129 Environmental Protection Law (2014), Art. 58.
130 Article 25 of The Administrative Litigation Law of the People’s Republic of China (2017 Revision) provides that ‘Where the people’s procuratorate finds in the performance of functions that
any administrative authority assuming supervision and administration functions in such fields as
the protection of the ecological environment and resources, food and drug safety, protection of
state-owned property, and the assignment of the right to use state-owned land exercises functions
in violation of any law or conducts nonfeasance, which infringes upon national interest or public
interest, it shall offer procuratorial recommendations to the administrative authority, and urge it to
perform functions in accordance with the law. If the administrative authority fails to perform functions in accordance with the law, the people’s procuratorate shall file a lawsuit with the people’s
court in accordance with the law.’
175
marine environmental protection. The enforcement of law has been also improved
through the current ministerial reform. The developments in China’s marine policy
and laws reflect the paradigm shift of the protection of marine environment, namely
from the previous regime with the decentralized and fragmented nature to the new
regime of the centralized and integrated nature. Although China has fully established a marine legal system and disparate efforts on marine environmental there are
remaining problems and future challenges China still faces.
Firstly, the MERL, as a new mechanism and national initiative to support marine
environment protection, is just in the initial stage, and there are a range of legal
issues need to be clarified. Since the MFZ and MERL have the same legal status and
binding force according to the law, their functions will conflict each other when their
working areas overlap. The authority departments in charge of MFZ and MERL are
different, and it is unclear whose jurisdiction is prevailing, where overlap occurs.
From the technical perspective, drawing a MERL is a complex and technical process
requiring the evaluation of various elements of ecosystems, such as space, time,
process and behavior.
128 This imposes great pressure on coastal governments. To
implement the MERL more effectively, it is necessary to unify the standard and
technology for demarcation of the MERL. In addition, the ecological compensation system needs to be further improved to support the implementation of MERL.
Secondly, the ministerial reform brings new challenges for the authorities to enforce
the laws and regulations. The consolidation of ‘mega-institutions’ will be a longterm project in the future, and it takes time to see whether the new arrangement
successfully address the environmental issues. In addition, to remedy marine environmental problems, public involvement in enforcement has play an indispensable
role. However, public participation is still weak in the law-making process as well
as in law enforcement. The existing legislations can not well protect the public’s
right to participate in environmental protection. Although the revised Environmental
Protection Law granted environmental Non-Government Organisations (NGOs) that
have been registered and operating for over five years the ability to sue polluter in the
public interest,
129 public individuals are still not eligible for litigation. Public interest
litigation can be either civil lawsuits against companies or individuals or administrative lawsuit against government agencies. However, administrative litigations can
only be initiated by procuratorates.
130 The public interest litigation is a legal tool
128 Craig Loehle, Challenges of ecological complexity, Ecological Complexity, Vol. 1, 2004, pp. 3–6.
129 Environmental Protection Law (2014), Art. 58.
130 Article 25 of The Administrative Litigation Law of the People’s Republic of China (2017 Revision) provides that ‘Where the people’s procuratorate finds in the performance of functions that
any administrative authority assuming supervision and administration functions in such fields as
the protection of the ecological environment and resources, food and drug safety, protection of
state-owned property, and the assignment of the right to use state-owned land exercises functions
in violation of any law or conducts nonfeasance, which infringes upon national interest or public
interest, it shall offer procuratorial recommendations to the administrative authority, and urge it to
perform functions in accordance with the law. If the administrative authority fails to perform functions in accordance with the law, the people’s procuratorate shall file a lawsuit with the people’s
court in accordance with the law.’