Geography Reference
In-Depth Information
trouble with the meaning of the “law.” If laws contain prohibitions that are viewed almost
unanimously as simply too draconian to actually apply, it is unclear what prohibitions
ought to replace them. Thus, aspirational laws and regulations, while perhaps useful
in pointing a conceptual arrow in the direction of a desired future situation, do little to
wrench the system from the rule of men toward the rule of law. By attempting to do too
much too soon, such laws may—faced with the inevitability of strong opposition and
discretionary officials—achieve too little too late.
12
Donald Clarke has pointed out that, unlike in most Western democracies, Chinese
courts are not well suited (in fact, may not even be intended) to adjudicate and balance
competing rights. Rather, the principal effect of laws is to specify which organs of state
government will have the power to make those kinds of decisions. But if so, the effect
of aspirational law is merely to put on hold the ultimate questions bearing on conflicting
claims, leaving them essentially unanswered until a decision on any given case comes from
a bureaucrat. The ball, instead of being handled, is effectively kicked down the playing
field. Aspirational statements in Chinese environmental laws function merely to admit
that the interests of economic development and natural resource preservation are both
important, that they may, in any given case conflict, but they then provide no criteria to
guide the decision-making process amid that conflict in any given situation. These “laws
fail to anticipate the possibility that certain government interests, particularly those of
departments with major economic responsibilities, might diverge sharply from those of
local environmental protection officers.”
13
A State Forestry official was recently quoted by
political scientist Jerry McBeath as admitting that “Different levels of government have
different interests; but our government structure is unitary, and it assumes that everyone
will share the same interest. This is delusion of thought.”
14
THE 1988 WILDLIFE PROTECTION LAW
China has had national legislation bearing on wildlife conservation since at least 1969,
and the State Council issued some additional circulars and announcements encouraging
wildlife protection in the 1970s and 1980s.
15
But it was with the passage of the national
Wildlife Protection Law of 1988 (hereafter, “the 1988 Law”) and its official implementa-
tion in 1989, that Chinese really turned their attention to the legal protection of wildlife.
Today, the 1988 Law is praised throughout Chinese writing on conservation efforts, duti-
fully reprinted in topics ranging from student texts to species descriptions, and generally
held up as the pillar of the Chinese wildlife conservation system.
16
It is therefore worth
having a detailed look, article by article, at exactly what it says, what it leaves out, and
how it operates in practice.
17
The 1988 Law does four important things: (1) it designates all wildlife as belonging to
the State, thereby emphasizing the State's interest in its protection and rational use; (2)
it designates species that merit special State protection, and generally prohibits killing
of individuals belonging to these taxa, thereby appropriating sole power of use of these
species to governments;
18
(3) it encourages bureaus entrusted with wildlife conservation
(generally forestry bureaus) at the national and provincial levels to establish nature reserves
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