A. Civil society involvement in FTA environmental chapters

Until recently, environmental concerns had remained at best anomalous to Chinese FTAs. The FTA between China and Switzerland, concluded in 2013, was the first to include environmental provisions. The agreement marks a significant departure from previous Chinese FTA practice, a result of Switzerland’s insistence that environmental protection, among other issues, be integrated into the trade negotiations.Footnote ¹⁹ The incorporation of environmental chapters, as part of a package of “non-trade concerns”, was tested again in 2015 in the FTA between China and South Korea.Footnote ²⁰ In the ensuing years this approach proved an outlier in China’s trade negotiations, as a few subsequent agreements signed with major trade partners, such as the 2015 China-Australia FTA and the 2020 Regional Comprehensive Economic Partnership agreement, refrain from addressing environmental issues. However, several recent “upgrades” of existing agreements, namely those with Chile,Footnote ²¹ Singapore,Footnote ²² and New Zealand,Footnote ²³ seem to indicate that standalone environmental chapters have become standard in the new generation of bilateral Chinese FTAs.

Despite progress in substantive clauses, the procedures and institutions for implementing and enforcing environmental provisions remain systematically limited, if not weak, in the previous and the new generations of Chinese FTAs alike. It should be noted that mixed empirical evidence exists as to whether traditional enforcement tools, such as binding dispute settlement and sanction-based enforcement, are more effective than cooperative approaches in giving effect to sustainability-related FTA obligations. This is reflected in scholarly debates around paired terminologies denoting different means of implementation and enforcement – “conditional” versus “promotional” approaches,Footnote ²⁴ and “sanctions-based” versus “cooperative” approaches.Footnote ²⁵ Put differently, the adoption of promotional or cooperative approaches does not presuppose a weaker implementation structure and vice versa. But promotional approaches should not be equated with a monitoring vacuum. As a representative illustration of promotional approaches, the majority of post-2010 European Union (EU) FTAs, while precluding the applicability of regular dispute settlement and trade sanctions, establish extensive and formal intergovernmental oversight bodies and civil society mechanisms to bring about compliance.Footnote ²⁶ In marked contrast, the means of implementation and enforcement applicable to the environment clauses under Chinese FTAs remain ad hoc in nature and restricted in scope. Not only has the availability of binding dispute settlement procedures and sanctions been ruled out, but inter-governmental, environment-specific monitoring bodies are likewise frequently absent.Footnote ²⁷ Instead, the standard implementation structures comprise governmental contact points for day-to-day communications and case-specific consultations, on the one hand, and pledges to review the FTAs’ environmental impact, which often lack explicit time frames, on the other hand.Footnote ²⁸ Compared to the institutions and procedures adopted by EU FTAs to materialize the promotional approach,Footnote ²⁹ the effectiveness of mechanisms for monitoring and detecting non-compliance with environmental provisions in Chinese FTAs seems doubtful, and it is likely that questionable environmental practices could easily slide under the radar.

Against this backdrop, it may not be surprising that civil society inclusion has been given little attention in the environmental chapters of Chinese FTAs. While only a handful among the myriad of FTAs worldwide have institutionalized environmental or sustainability-related civil society involvement, relevant declaratory language and ad hoc arrangements honouring public participation can be frequently seen.Footnote ³⁰ But no such references, either by formal mechanisms or by informal indications, can be found in the five Chinese FTAs that have incorporated environmental components to date. It therefore seems that civil society is considered irrelevant to the operation of those FTAs’ environmental provisions. Admittedly, China may not play a decisive role in the drafting of every FTA to which it is a signatory, especially in circumstances where it exerts relatively limited influence over treaty design as compared to its trade partners.Footnote ³¹ However, the consistent absence of relevant treaty language from all of its FTAs can at least indicate that recognizing and empowering the legitimate role of civil society in environmental issues is not a matter of prominence on China’s FTA negotiating agenda. This reflects an understanding of international trade relations – even when what is at issue are non-trade matters that have far-reaching impacts on and arguably more immediate connections with civil society actors – as a concern of and by the State.

B. Civil society involvement in domestic environmental laws

It would be unfair to characterize China’s approach to climate change as State-centric on the sole basis of observations from the international plane, as domestic channels may have afforded room for civil society scrutiny in governmental decision-making. This proposition, however, finds little evidence in China’s national laws and practices in relation to climate change.

Within the body of Chinese laws regulating environment-related civil society involvement, the revised Environmental Protection Law (EPL) sits at the centre. Through legislative amendments in 2014, a new chapter titled “Information Disclosure and Public Engagement” was introduced into the EPL. While the majority of public engagement mechanisms specified in that chapter are limited to transparency and the right to information,Footnote ³² the revised EPL does establish two avenues for more active forms of participation. First, Article 57.2 affirms the right of citizens and organizations to report to a higher-level oversight authority that a local environmental agency has failed to fulfil its “supervising and administrative responsibilities”. The Article stops short of spelling out any procedural guarantee, including whether the reported local agency or the oversight authority is required to take follow-up actions.

Theoretically, if the oversight body does not respond, such inaction constitutes a “specific administrative act” under China’s Administrative Reconsideration Law and Administrative Procedure Law.Footnote ³³ In turn, the reporting citizen or organization may initiate a procedure against the oversight body within the administrative system (administrative reconsideration) or through judicial means (administrative litigation). However, the inaction of the oversight body concerns its failure to provide a response, not its supervision of the local authority. Therefore, even if the oversight body subsequently responds by simply declining to investigate the matter or stating that no issue has been found regarding the local authority’s performance of mandate, it would be deemed to have adequately remedied its inaction. Alternatively, the reporting person or entity may directly target the reported local authority in a reconsideration or litigation procedure. In that case, however, the reporting party must demonstrate that they “have interests” in the administrative act at issue.Footnote ³⁴ This element has been narrowly interpreted by Chinese courts as requiring that the concerned administrative act particularly affect the interests of one or more specific persons or entities (i.e. the applicant or plaintiff), as opposed to the interests of the non-specific, general public.Footnote ³⁵ The impact of climate change, on the other hand, is comprehensive and global in scale. While climate change may give rise to geographically limited, localized environmental issues that affect a specific, identifiable population, such as air pollution, the burden to establish that a citizen holds specific individual interests in an authority’s failure to carry out established climate mitigation commitments per se is almost insurmountable.

The difficulty of proving specific individual interests is not the only obstacle that dampens the prospect of harnessing the reporting mechanism for civil society involvement in climate matters. It is clear from the wording of Article 57.2 that the reporting mechanism is directed at failures to perform environmental mandates by local authorities. This is somewhat paradoxical as climate decision-making in China exhibits a top-down character. Research has shown that China’s policy orientations regarding climate change are contemplated and determined by central-level decision-makers, which then go through a process of “State-signalling”, where the “signals” of policy objectives defined by the central government are conveyed down the administrative hierarchy for local authorities to operationalize.Footnote ³⁶ When it is the central administration that decides to deviate from its climate mitigation commitments, challenging local authorities that are simply observing instructions from above would be futile. In this regard, the pathway offered by Article 57.2 of the EPL and the two administrative laws is hardly useful when it comes to addressing questionable climate decision-making rooted at the central level.

The second and rather high-profile mechanism for active public participation is predicated on the right of environmental NGOs to initiate environmental public interest litigation (EPIL) proceedings, embodied in the new Article 58 of the revised EPL. This revision is often cited as a salient example of expanded environmental public participation in China, as it indeed eliminated various legal hurdles that were previously faced by environmental NGOs in climate litigation. Prior to 2012, the former Civil Procedure Law stipulated that only persons or entities with “immediate interests” in a lawsuit may qualify as plaintiffs.Footnote ³⁷ Similar to the obstacles confronting citizens in environmental administrative litigation, the burden to establish direct, specific interests in a global-scale environmental and socio-economic issue like climate change proved onerous, not to mention that environmental NGOs were often bringing lawsuits in the place of affected local communities that lacked the resource or motivation to engage in lengthy legal proceedings. The EPIL system was introduced with a view to tackling this very problem. A relevant provision was first pinned down in the 2012 Civil Procedure Law, which specified that “relevant organizations” may initiate proceedings against “acts that harm social public interest, such as environmental pollution”.Footnote ³⁸ Article 58 of the revised EPL then spells out the definitional elements of “relevant organizations”, including one requiring that any such organization must “have been dedicated to public interest activities to promote environmental protection for more than five consecutive years”.Footnote ³⁹ Taken together, the two provisions expressly confer upon environmental NGOs the legal standing as EPIL plaintiffs.Footnote ⁴⁰

Much applauded as this reform may be, the very nature of the EPIL as a civil procedure mechanism limits its relevance to involving civil society in relation to governmental decision-making. It is evident from existing practice that the EPIL is intended for targeting corporate polluters and does not involve public authority defendants.Footnote ⁴¹ As such, it is simply impossible to utilize the EPIL to directly impact on State decision-making processes. Some scholars have gone further to suggest that given the subordinate role of the judiciary to the executive in China, it is unlikely that any form of climate litigation would ever leave space for holding the government accountable.Footnote ⁴²

A. The dual motives underlying China’s climate decision-making

As this subsection will proceed to demonstrate, China’s climate decision-making is primarily and profoundly shaped by two interrelated considerations: to maintain competitiveness in green industries and to prevent social unrest that may arise from politically disruptive issues like energy security.Footnote ⁴⁸ Climate change is not viewed in itself as a matter of environmental imperative whose cause, effect, and solution entail intricate distributive and socio-economic implications, but rather an opportunity for industrial leadership and an insidious threat to political stability.

The objectives of industrial growth and political stabilization are amply reflected in China’s domestic policies and practices. Regarding the former, one illustration can be found in the State Council’s first Industry Development Plan regarding electric vehicles (EVs), which characterizes supports for promoting the EV industry as “a strategic initiative … to cultivate a new point of economic growth and advantages in international competition”.Footnote ⁴⁹ In relation to the latter, the significance of political stability and security is visible from the mixed signals in the policy realm of climate change in recent years: amid international commitments from the Chinese leadership to “strictly control” the production and consumption of fossil fuel and carbon-intensive products,Footnote ⁵⁰ the latest Five-Year Plan on energy identifies security as the ultimate basis for modernizing the energy system and explicitly endorses the promotion of oil and gas production capacity.Footnote ⁵¹

It should be stressed that placing climate protection among several and possibly competing policy objectives is commonly seen in the domestic policy-making of various States and regions,Footnote ⁵² and perhaps inevitable for a developing country confronted with various intractable socioeconomic issues. However, at the heart of the present discussion are not multipurpose policies per se. As will be argued below, what makes China’s case distinctive is twofold: on the one hand, the regard given to climate change not as a self-standing issue in its own right, but rather as an instrumental discourse that can be deployed for the pursuit of industrial leadership and prevention of social disruptions; and on the other, the State-centric approach that provides little room for civil society involvement, as discussed in Section I, which leaves decisions based on pro-growth and instability-averse considerations insulated from stakeholder scrutiny. This, in turn, puts a question mark on the reliability and sustainability of China’s mitigation efforts.

To start with, the underlying and ultimate goals of industrial growth and political stabilization place climate objectives in a precarious state, where in times of collision the latter can be readily sacrificed in pursuit of the former. China’s capability of organizing efficient climate mitigation efforts is undeniable, as demonstrated by its government-led creation and shaping of renewable energy and EV markets.Footnote ⁵³ What is problematic is that a government that can wield a unified, top-down approach on industrial and political grounds can also, based on the same rationales, swiftly shift its policy priorities when climate mitigation has little to do with economic gains or social stability. This propensity is particularly notable in China’s outbound investments under the Belt and Road Initiative (BRI). Despite its pledge in 2021 to refrain from building new coal-fired power projects overseas,Footnote ⁵⁴ China’s investments in fossil fuel projects in BRI countries have yet to take a downward turn.Footnote ⁵⁵ While this trend may appear puzzling from an environmental standpoint, the dual economic-political incentive holds much explanatory power: “grey” investments abroad are economically profitable, while the ensuing environmental effect of globally increased greenhouse gas (GHG) emissions is often not immediately felt and the social repercussions have little impact back home.Footnote ⁵⁶ In parallel, it is worth noting that the scenario where promoting green industries no longer makes economic sense is not merely hypothetical. With public incentives to advance green supply chains sweeping major and emerging economies,Footnote ⁵⁷ China’s current leadership in the global renewable energy and EV markets does not promise a secured future.

In addition to denting the credibility of China’s mitigation efforts, treating climate protection as a secondary instrument at the service of economic and political objectives entails equity concerns. While tackling the climate crisis is of salience for the entire humankind, climate mitigation and green transition do not impact all stakeholders in the same fashion. For China, decarbonization is likely to cause layoffs in carbon-intensive sectors and engender increase in energy prices, which can be detrimental to poor households.Footnote ⁵⁸ But these two groups of stakeholders – traditional polluting companies and low-income households – are markedly distinct in terms of visibility and resources. Carbon-intensive industries in China, including coal, electricity, oil, gas, steel, and cement, are dominated by State-owned enterprises (SOEs),Footnote ⁵⁹ which are not only entities of commercial purposes but also instruments for implementing national policies.Footnote ⁶⁰ Such strategic importance has brought to SOEs decades of government financial support and preferential regulatory treatment,Footnote ⁶¹ and consequently conduits and leverages to influence governmental decision-making processes.

Marginalized communities, in contrast, are far less visible and frequently underrepresented. Empirical records have showed how this procedurally disadvantaged stance in climate decision-making can give rise to substantive harm. China’s top-down approach to climate change, under which the central government directs and determines objectives to be carried out by lower-level authorities, is operationalized by a bureaucratic performance evaluation system within the administrative hierarchy. As the system sets quantified targets (for example, energy intensity standards) to measure the performance of officials in conducting State-set climate policies and promotes or demotes them accordingly,Footnote ⁶² local bureaucrats are captured by a strong incentive to “hit the numbers”, sometimes to the detriment of certain stakeholders. The relatively vulnerable population, being often more diffuse, less resourceful, and thereby less capable of triggering social disruptions, is therefore placed in a more susceptible position. Indeed, certain regional authorities in China were reported to have cut off electricity to hospitals, homes, and rural villages as a last-minute measure to meet energy efficiency targets imposed by higher-level governments.Footnote ⁶³

B. Climate “governing” and civil society at the periphery

The preceding discussion showcases the precarious reliability and equitability of China’s climate mitigation efforts. Exposing the questionable policies to the watchful eyes of civil society would likely spark opposition from negatively implicated citizens that seek their removal, which clearly contradicts the pro-growth and instability-averse motives that give rise to these policies in the first place. The limited room for civil society to contest State decision-making is, therefore, arguably a concomitant effect and external manifestation of the deep-rooted considerations that underlie China’s climate policies.

In that regard, it seems that the regulations and instruments analyzed in Section I represent a deliberate choice by Chinese legislators to preserve the centrality and unquestionability of (central level) government authority on the issue of climate change. Civil society actors are moulded into a given role, with their participation permitted only insofar as they advance the climate policies pre-defined by the government. It is then only logical that civil society structures to enable stakeholder discussion and deliberation of FTA implementation have been constantly absent from the environmental chapters of Chinese FTAs. Overall, since the authority to determine whether and how to carry out China’s climate commitments lies with central-level authorities, allowing civil society to interfere with State decision-making through “monitoring, exposing, criticizing, and condemning”Footnote ⁶⁴ is out of the question.

At this point, it seems clear that for China, climate change is a matter of governing rather than of governance. Its climate decision-making is addressed in a strict hierarchical structure where the administrative State maintains absolute authority, whereas the space for non-State actors to play a role is at best limited, which, according to Fisher’s conceptualization,Footnote ⁶⁵ amounts to a mode of governing as opposed to governance. The aforementioned fundamental motives further demonstrate the State-centric trait ingrained in China’s climate decision-making. As the centrality of government authority is deemed incontestable and deliberately preserved, civil society remains at the periphery of China’s governing of climate change.

A. The substantive scope and procedural design of the SRP

The SRP is given shape by two instruments: the CPTPP, in which Article 20.9 forms the legal basis of the SRP and frames its substantive and procedural aspects; and the Procedures for Considering Submissions and Responses adopted by the CPTPP’s Environment Committee (“Committee Procedures”)Footnote ⁶⁸ – an FTA body composed of senior government representatives from each party’s relevant trade and environment authoritiesFootnote ⁶⁹ – which further details the functioning of the SRP and clarifies its relationship to other FTA procedures and institutions. Overall, the SRP mechanism comprises three processes, operating across national and international arenas.

The first process may be termed “domestic self-evaluation”. Specifically, an individual or organization of a CPTPP party may file a submission to that party (the respondent party) with respect to its implementation of the environment chapter.Footnote ⁷⁰ The CPTPP imposes only minimal procedural constraints at this stage: while the parties are required to respond timely to the received submissions and make their evaluation criteria publicly available,Footnote ⁷¹ each party maintains full discretion to establish its own criteria for evaluating submissions.Footnote ⁷² Although Article 20.9.2 does lay down a set of factors that may play a part in measuring the merit of a submission, such as whether the submitted matter affects trade or investment between the parties, whether it is subject to ongoing domestic judicial or administrative proceedings, and whether it has been previously referred to other domestic authorities for remedy, it clearly indicates that those factors are non-exhaustive and non-binding.Footnote ⁷³

The second process is referral. According to Article 20.9.4, any other party “may” refer the published submission and response to the Environment Committee and request that the Committee discuss the submitted matter. As such, the referral process is not automatic and depends on another party’s decision to actively intervene.

It should be noted that the scope of referable matters differs from the substantive confines of domestic self-evaluation, as referrals can only be made with respect to submissions that allege failures of respondents to “effectively enforce [their] environmental laws”.Footnote ⁷⁴ “Environmental law” is a defined term under the CPTPP, conditioned by elements of form and objective. In terms of form, an “environmental law” denotes a statute or regulation of a party, including “any that implements a [p]arty’s obligations under a multilateral environmental agreement”.Footnote ⁷⁵ Regarding objectives, an environmental law should maintain its “primary purpose” in the achievement of “the protection of the environment” or “the prevention of a danger to human life or health” through one of three means: the control of the emission of pollutants or environmental contaminants, the control of environmentally hazardous or toxic chemicals, or the conservation of biological diversity.Footnote ⁷⁶ As the reduction of GHG emissions falls under the scope of the first means, climate change-related statutes and regulations, including those intended for giving effect to the Paris Agreement, should qualify as “environmental laws” under the CPTPP.Footnote ⁷⁷

While this is not prescribed in Article 20.9 per se, an additional requirement is imposed by the Committee Procedures that a referring party should provide justifications alongside its referral request. The exact wording specifies that the referring party “will” explain and justify its referral “with reference to” Article 20.9.2 of the CPTPP,Footnote ⁷⁸ which, as discussed above, is an enabling clause that grants parties the authority to adopt their own criteria for evaluating submissions. Read in conjunction, it appears that those respondent-defined criteria serve as one key point of reference for determining the justifiability of referrals.

Following the referral, the request and the justifications would be circulated to the respondent for provision of additional information. If the referring party so requests, the SRP would proceed to the third phase, where the Committee decides whether the referred submission merits its consideration.Footnote ⁷⁹ Again, the respondent-defined evaluating criteria have considerable weight in the Committee consideration process: while the Committee is not strictly bound by those criteria, the conformity of a submission to the applicable respondent-defined criteria constitutes one of the grounds on which the Committee “may” deny consideration.Footnote ⁸⁰

The objectives of the Committee consideration process are stipulated by the CPTPP as “further understanding the [submitted] matter” and “consider[ing] whether the matter could benefit from cooperative activities”.Footnote ⁸¹ As further spelled out in the Committee Procedures, these objectives may be advanced by developing through experts or existing institutional bodies “a formal written report based on facts relevant to the submissions and responses”, utilizing the respondent’s available domestic channels, and facilitating cooperation between the respondent and other CPTPP parties.Footnote ⁸²

All of these follow-up actions are facilitative in nature, with no express connection to the inter-State consultation and dispute settlement procedures applicable under the environment chapter.Footnote ⁸³ In fact, the Committee Procedures have clarified that the two sets of mechanisms – the SRP, on the one hand, and inter-State consultation and dispute settlement, on the other – are independent from each other.Footnote ⁸⁴ Moreover, if the same matter is raised in inter-State consultation after it is referred to the Committee, the SRP would be given priority.Footnote ⁸⁵ This effectively introduces, in circumstances where a related environmental submission has been made, an additional step preceding the initiation of formal inter-State dispute settlement. Considering that the SRP pursues more cooperative solutions, this seems to signify the Committee’s preference for less adversarial approaches to the implementation and enforcement of environmental provisions. The same feature emerges when the SRP is juxtaposed with other representative petition mechanisms, which the next subsection now turns to.

B. The significance of respondent discretion in the SRP: a comparative analysis

Including petition mechanisms in the implementation and enforcement structures of environmental provisions has been a prominent feature of several US FTAs dating back to as early as the 1990s and, more recently, adopted by the European Commission in relation to the TSD chapters of EU FTAs. The petition mechanisms under US FTAs, first introduced in the 1994 North American Agreement on Environmental Cooperation (the NAAEC), have maintained an FTA-specific and international model. Five of the existing US FTAs have created their respective “Submissions on Environmental Enforcement Matters” (SEEM) proceduresFootnote ⁸⁶ with largely identical institutional structures: a Secretariat is established to receive and review petitions by nationals from any FTA party, while a Council comprising government officials from each FTA party has the authority to appoint the head of the Secretariat and instruct the Secretariat to take certain actions in SEEM reviews.Footnote ⁸⁷ The EU’s petition mechanism, namely the “Single Entry Point” (SEP) system administered by the European Commission, is shaped as a centralized, domestic-level procedure applicable to all EU FTAs, accepting complaints from EU-based stakeholders that assert breaches of TSD provisions by the EU’s FTA partners.Footnote ⁸⁸ That is, the SEP targets alleged violations by third countries but not by the EU itself.

Several important distinctions set the SRP apart from both models. First, the domestic self-evaluation and referral processes are a unique invention of the SRP. Under both the SEEM and the SEP, authorities that are entrusted with the mandate to consider alleged violations are external to the responding parties, which technically prevents the latter from wielding control over submitted matters from the outset. In contrast, the SRP allocates that authority across two levels, commencing with the respondent’s assessment of its own record. Where no other CPTPP party chooses to make a referral request, the process of Committee consideration would not be triggered at all.

Second, respondents are authorized to establish their own evaluating criteria, regarding which the CPTPP merely offers several non-binding considerations that each party is free to adopt, modify, or dispose of. This approach is markedly different from the models adopted by the SEEM and the SEP, under which the criteria for determining the merit or priority of submissions are pre-defined in FTA textsFootnote ⁸⁹ or by the reviewing authority.Footnote ⁹⁰ Moreover, as the Committee Procedures set consistency with respondent-defined criteria as one of the grounds for justifying referrals and denying Committee consideration, their legal weight extends beyond the self-evaluation process to subsequent phases.

Third, the SRP exhibits a clearly cooperative character in its independence from and priority over formal dispute settlement procedures. The EU model marks a notable difference here, as it expressly recognizes the SEP as a precursor to a range of actions, including the invocation of inter-State dispute settlement mechanisms.Footnote ⁹¹ The SRP shares relatively greater commonality with the US SEEM procedures in terms of follow-up actions, as both models put emphasis on devising cooperative activities and make no explicit reference to FTA dispute settlement procedures.Footnote ⁹² Moreover, the development of “a formal written report based on facts relevant to the submissions and responses”, as envisaged by the SRP, bears evident resemblance to the preparation of “factual records” under the SEEM, which are intended to present relevant facts in a detailed and objective manner without making findings on the FTA consistency of the measures submitted.Footnote ⁹³ Still, prioritizing pre-existing submissions over inter-State consultation and dispute settlement is a feature specific to the SRP, as there is no explicit requirement under any SEEM mechanism that inter-State procedures give way to prior SEEM reviews. In practice, the US indeed requested environmental consultation on certain species conservation matters with Mexico under the United States–Mexico–Canada Agreement (USMCA) one year after four environmental NGOs submitted the same issue to the corresponding SEEM Secretariat.Footnote ⁹⁴ The relevant SEEM procedure is still ongoing.Footnote ⁹⁵

These differences highlight a defining feature of the SRP, namely the considerable degree of discretion enjoyed by responding parties. By virtue of self-evaluation and the legal weight accorded to respondent-defined criteria, the SRP permits a responding government to maintain substantial control over the impact of civil society submissions. Where a submission is subject to Committee consideration, the cooperative character and procedural priority of the SRP further afford a useful buffer against formal and more confrontational inter-State procedures. Overall, the SRP provides civil society with a venue to expose questionable State practice, while limiting the possibility that civil society submissions would actually result in curbing the government’s decision-making authority.

A. Substantive fit and procedural compatibility

To claim that the SRP may bring change to China’s climate governing approach, one must first establish that the relevant policies and practices fall within the substantive scope of the SRP. As discussed in Section III, the domestic self-evaluation process addresses the implementation of CPTPP environmental obligations, whereas the subsequent phases of referral and Committee consideration are only relevant when the submission concerns the effective enforcement of domestic “environmental laws”, including those that implement the Paris Agreement. It is therefore necessary to examine the scope and content of environmental clauses under the CPTPP, on the one hand, and existing Chinese environmental laws as per the CPTPP’s definition, on the other hand.

Among the substantive commitments under the CPTPP’s environment chapter, two provisions are of particular relevance. To start with, each party “affirms” under Article 20.4 “its commitment to implement the multilateral environment agreements to which it is a party”. While specific indication of the UNFCCC and the Paris Agreement is absent, the reference to multilateral environment agreements (MEAs) in this provision (which may be conveniently termed the MEA consistency provision) renders it a medium for assimilating commitments existent under multilateral climate instruments.Footnote ⁹⁶ Actions and omissions in relation to climate matters that appear contradictory to the Paris Agreement may therefore provide grounds for an SRP submission alleging breaches of Article 20.4. Alternatively, questionable practices concerning climate mitigation may fall within the ambit of Articles 20.3.4 through 20.3.6, which dictate that no party shall “fail to effectively enforce its environmental laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the [p]arties” or “waive or otherwise derogate from … its environmental laws in a manner that weakens or reduces the protection afforded in those laws in order to encourage trade or investment between the [p]arties”. As such, these so-called “effective enforcement” and “non-derogation” provisions operate, in circumstances where trade and investment interests generate incentives for backsliding, to anchor each party’s environmental regulatory standards at the level existing when the agreement enters into force.

One might question the relevance of these obligations to the present discussion based on their nature and content. First, the wording of the MEA consistency provision, which speaks of “affirming” existing commitments, is not strictly obligatory. Second, the effect on FTA trade or investment or the intent to exert such an effect, as a constituent element of the effective enforcement and non-derogation provisions, may be difficult to demonstrate.Footnote ⁹⁷ Both can result in high evidentiary thresholds for establishing breaches of the two provisions. However, it is not the purpose of the SRP and its initial phase of domestic self-evaluation – being non-judicial processes – to legally establish FTA violations. The inceptive stage of the SRP seeks to enhance transparency regarding the parties’ implementation of the environment chapter, with a view to exposing problematic on-the-ground practices through the input of civil society submissions. It is then up to another party to consider whether a plausible case exists for a referrable submission, the scope of which, as expressly demarcated by the CPTPP, stops at failures to effectively enforce domestic environmental laws. In other words, as long as some connections can be made between a party’s action or inaction and its CPTPP obligations to initiate the SRP, what is more salient for the substantive relevance of the mechanism henceforth is not proving an FTA violation in the legal sense, but rather the relation of the practice at issue to the concerned party’s environmental laws.

To recapitulate Section III.A, the definitional clause in Chapter 20 of the CPTPP limits the form of an “environmental law” to a “statute or regulation” of a party or a provision thereof, including “any that implements a [p]arty’s obligations under a multilateral environmental agreement”.Footnote ⁹⁸ The two questionable instances in China’s climate mitigation practices exemplified in Section II – providing continued investments to fossil fuel-related industries and implementing low-carbon policies in a manner that may be detrimental to marginalized stakeholders – seem both to be in collision with major Chinese laws and regulations that fit this definition. With respect to the latter example, the invisibility of marginalized communities in China’s implementation of climate measures runs counter to the principle of public participation enshrined in the revised EPL. As Article 53 of the EPL obligates governments and environmental agencies to “disclose environmental information” and “facilitate public participation and monitoring in environmental protection”,Footnote ⁹⁹ a failure to consult implicated stakeholders prior to implementing a climate change-related measure arguably constitutes a non-enforcement of the EPL.

The case with the former is relatively less straightforward, as there is no existing Chinese law that directly and explicitly prohibits or regulates investments to fossil fuel industries. However, Article 7 of the Energy Conservation Law stipulates that China “implements industrial policies favourable to energy conservation and environmental protection” and “restricts the development of high-energy-consuming and high-polluting industries”; the same article further provides that the State Council and local governments “shall promote energy conservation and reasonably adjust industrial structures”.Footnote ¹⁰⁰ In construing this Article, there may be an argument that the policy commitments made by China to implement the Paris Agreement, though not in the strict sense “environmental laws” under the CPTPP, can provide important interpretative context. According to China’s NDC implementation report, its climate regime has as its centrepiece a State Council instrument titled “The Action Plan for Carbon Dioxide Peaking by 2030”.Footnote ¹⁰¹ The Action Plan provides explicitly that to promote industrial carbon peaking, “additional production capacity” should be prohibited or strictly controlled in the steel, non-ferrous metals, building materials, and petrochemical sectors.Footnote ¹⁰² Investments in new fossil fuel-related projects in these industries might, therefore, be challenged as inconsistent with the spirit of Article 7 of the Energy Conservation Law as informed by the Action Plan.

Overall, “hooks” relating to the concerns identified in Section II seem more or less recognizable in China’s domestic environmental laws; hence the substantive fit of the SRP. One may find the hooks somewhat frail or propose alternative interpretations of the cited provisions.Footnote ¹⁰³ It should be reiterated, however, that the claim above is a modest one. It pertains solely to the applicability of the SRP and, in contrast to typical discussions surrounding inter-State dispute settlement, is not concerned with advancing a formal legal assertion that China has failed to effectively enforce its environmental laws. Rather, it simply examines the pertinence of the SRP by discussing if the issues undermining China’s climate mitigation efforts can be framed in the substantive matrix of this mechanism. The analysis above answers in the affirmative.

Having demonstrated its substantive fit, what remains to be explicated is why the procedural design of the SRP embodies potential for experimenting with civil society involvement in China’s case. As delineated in Sections I and II, the pro-industry and instability-averse motives that underlie China’s climate decision-making perpetuates a State-centric approach to administering climate change, which in turn begets substantial restrictions over civil society involvement. Against that backdrop, an international instrument that seeks to furnish room for involving civil society may, in theory, resort to one of two pathways: drastically reforming the State-centric approach to create extended spaces for civil society actors, or taking the political-economic structures as given and cutting a limited opening for civil society to exert some impact. To realize the fundamental changes required by the former is exceedingly arduous if not implausible, especially when the country in question has plainly stated its understanding of climate change as a domestic policy issue exempt from international influence.Footnote ¹⁰⁴ It is therefore only sensible to consider that the deeply ingrained pro-industry and instability-averse mentality and the resultant State-centric approach are likely to persist in the foreseeable future.

In that regard, any involvement mechanism that may be acceptable to China must uphold the centrality of government discretion. Procedures whereby civil society submissions can automatically trigger review by an external authority, such as the models adopted by the SEEM and the SEP, do not seem to satisfy this prerequisite. In contrast, through its unique procedural design that accords greater discretion to responding parties, the SRP largely retains government authority as the locus of power in climate decision-making. China may therefore anticipate less impact on its State-centric approach to climate governing and be willing to tolerate the introduction of the SRP; indeed, its application to accede to the CPTPP may be understood as a readiness to do so. Recalling the discussion in Section I that neither China’s domestic laws nor the international agreements to which China is a party have thus far provided similar venues, the SRP may serve as a novel testing ground for civil society involvement in the policy domain of climate change. While the rather modest formulation of the SRP may appear far from ideal to some, compromises and balancing to get a State on board are, as always, essential for a mechanism of consensus-based international law to be operative.

B. Identifying risks of abuse

There, of course, remains the possibility that the SRP may turn out to be ineffective. Various factors, from minimizing administrative costs to eliminating barriers to policy implementation, can motivate governments to maintain only minimal engagement with civil society actors. Absent constraints, these incentives can result in a proclivity to reduce involvement mechanisms to mere strategies of legitimation.Footnote ¹⁰⁵

The magnitude of respondent discretion under the SRP renders this scenario all the more likely, not to mention its weak accountability structures. A first example arises with, again, the benefit of comparative perspectives. The EU’s SEP establishes a (non-binding) 150-day timeframe for conducting preliminary assessments,Footnote ¹⁰⁶ while the USMCA places time limits on the finalization and publication of factual records.Footnote ¹⁰⁷ The USMCA also maintains publicly available records on the progress of each submission, showing whether the applicable timelines at each stage have been met.Footnote ¹⁰⁸ Even with these requirements in place, exceeding specified time limits has not been rare in the implementation of the SEP and the SEEM.Footnote ¹⁰⁹ In contrast, no precise timeframe is imposed by the SRP on either the responding parties or the Committee, which would likely incur arbitrary delays and prolonged procedures in the provision of responses and completion of consideration.

Second, the domestic self-evaluation process, as it currently stands, is clearly susceptible to abuse. The only safeguard to ensure that civil society submissions are handled properly during this phase is entirely transparency-based, requiring that each respondent “make the submissions and its responses available to the public, for example by posting on an appropriate public website”.Footnote ¹¹⁰ There is, however, no external oversight mechanism to monitor whether the parties have adhered to the transparency obligation. Like any other procedure that allows one to rule on their own case, this creates a gap that CPTPP parties may exploit to dismiss submissions at will.

It should be noted that many NGOs routinely disclose the legal proceedings that they have initiated or taken part in, serving in effect a monitoring role that may impel governments to observe the transparency obligation. However, whether this external monitoring channel is operative in China’s case seems uncertain. There are good reasons to doubt that the environmental NGOs based in China would speak out if their submissions met with disregard from the government. Scholars have characterized NGO activities in China as a function of closeness and even alliance with State agencies and local authorities, where interaction with and support from central or local governments could substantially affect an NGO’s scope of work and available resources.Footnote ¹¹¹ Concerned about the potential backlash and disapproval from the State, it is not unlikely that a Chinese NGO would refrain from revealing the government’s questionable practices in handling submissions in exchange for flexibility in other cooperative activities, thereby rendering the monitoring function ineffective.

Third, it is noticeable that despite the extended impact of respondent-defined criteria across all three SRP processes, their appropriateness is entirely insulated from external review. This bears the question of whether the criteria currently adopted by CPTPP parties are fit for purpose. Although the SRP has not to date been invoked in practice, Australia, Japan, New Zealand, and Singapore have published their respective guidelines for assessing SRP submissions.Footnote ¹¹² Among those, Australia, Japan, and New Zealand adopt the “ongoing proceedings” criterion, which excludes the eligibility of submissions concerning issues being addressed in other ongoing judicial or administrative proceedings. Further, all four endorse the “trade effect” criterion, requiring that submissions clarify whether and to what extent the concerned measures affect trade or investment among CPTPP signatories. Both criteria are included in the list of suggested considerations under Article 20.9.2 of the CPTPP.

However, neither appears well-fitted to uphold an effective climate petition mechanism. With respect to the ongoing proceedings criterion, its precluding effect could be strategically used by governments to commence domestic judicial or administrative procedures for the sole purpose of blocking SRP submissions.Footnote ¹¹³ Indeed, the NAAEC’s SEEM mechanism has seen parties cite pending domestic proceedings as a basis for terminating submissions, whereas the Secretariat found no such proceedings that could actually address the substance of the concerned issues.Footnote ¹¹⁴ Perhaps more concerning is that, in contrast to the NAAEC where only those domestic procedures that are conducted “in a timely fashion” are regarded as “judicial or administrative proceedings” with the mentioned precluding effect,Footnote ¹¹⁵ the CPTPP does not expressly define or limit what qualifies as an “ongoing judicial or administrative proceeding”. This adds to the possibility of responding parties initiating pre-emptive domestic proceedings that lack bona fide intention. It should be noted that Article 20.7.3 of the CPTPP does impose on each CPTPP party an obligation to establish “judicial, quasi-judicial, or administrative proceedings” that are “fair, equitable, transparent and [compliant] with due process of law”, which may provide contexts for interpreting “ongoing proceedings” under the SRP. Nonetheless, as the wording of the SRP allows signatories to unilaterally construct and interpret their own evaluating criteria, there is no guarantee that all CPTPP parties would favour this contextual reading.

Regarding the trade effect criterion, it is true that the effective enforcement provision under the CPTPP, as mentioned above in Section IV.A, encompasses an express link between a failure to effectively enforce environmental laws and its impact on international economic activities.Footnote ¹¹⁶ Therefore, if the task is to establish that a CPTPP party has violated precisely this FTA obligation, the existence of trade effects would have to be demonstrated. However, whether a civil society actor should be required to prove trade effects in an SRP submission is a different question. The inquiry is twofold: first, do all the CPTPP environmental provisions that fall within the SRP’s purview specify trade effect conditions? As discussed above, the SRP in general addresses non-implementation of CPTPP environmental provisions, whereas SRP procedures that proceed to referral and Committee consideration phases apply to submissions that assert a party’s “fail[ure] to effectively enforce its environmental laws”.Footnote ¹¹⁷ Different from the effective enforcement obligation, this quoted SRP provision is not conditioned by any link to international trade or investment.Footnote ¹¹⁸ It could well be the case that a CPTPP party’s failure to enforce its environmental laws constitutes a breach of other FTA environmental obligations that prescribe no trade effect condition, such as the MEA consistency provision mentioned above (Article 20.4). When an SRP submission takes issue with a non-enforcement of such nature, predicating its eligibility on the establishment of trade effects appears contradictory to the plain language of the SRP.

Second, where the concerned FTA provision does stipulate a trade effect condition, should the burden to establish that requirement be imposed on SRP petitioners, who are typically individuals or environmental NGOs? It should be borne in mind that while civil society actors often possess or have ready access to on-the-ground knowledge about questionable State practice and its environmental and socio-economic implications,Footnote ¹¹⁹ their province of information is unlikely to cover the measures’ impact on international trade or investment. If the purpose of installing petition mechanisms is to harness the monitoring role of civil society actors, requiring them to supply evidence outside their informational capacity seems out of tune. What should be contemplated instead is an allocation of evidentiary burden between civil society actors and FTA parties and across private petition and inter-State procedures: SRP submitters should only be required to establish a party’s failure to enforce climate laws, whereas it is the task of another CPTPP party, which decides to bring the matter into inter-State systems, such as referral processes or dispute settlement, to demonstrate any economic benefits associated with that non-enforcement.Footnote ¹²⁰

In addition, given the flexibility in formulating evaluating criteria, a party may adopt factors not listed in Article 20.9.2 that could undermine the effectiveness of the SRP. What has been clearly exemplified by the development of the EPIL in Chinese procedural lawsFootnote ¹²¹ is that owing to the broad and dispersed impact of climate change, conditioning plaintiff eligibility on narrowly interpreted “direct” or “immediate” interests would effectively block climate cases out of judicial and administrative systems. Understanding this legal characteristic of climate change is likewise necessary for the SRP. Though not concerning respondent-defined criteria per se, Singapore has proposed that referring parties should justify their referral requests by showing “substantial interest[s]” in the concerned submissions.Footnote ¹²² While the intention might be to turn away purely politically driven and unfounded referrals, an overly restrictive interpretation of the proposed term could curtail the SRP’s efficacy in addressing climate change-related submissions.

C. Achieving the SRP’s experimental potential

When contemplating ways to mitigate the identified risks of abuse, it is worth recalling the SRP’s value as a laboratory for civil society involvement in a State-centric climate governing system. Proposals should therefore be designed with a two-fold objective: to curb governments’ tendency to use the SRP arbitrarily while upholding its experimental potential.

In that connection, three modifications to the current SRP mechanism may be put forward. First, time-bound responses should be guaranteed. The Environment Committee should establish comprehensive and transparent timeframes for the referral and Committee consideration processes, while urging parties, in fulfilling their CPTPP obligation to “respond in a timely manner” in the domestic self-evaluation process, to adopt precise and binding time limits in their domestic laws.Footnote ¹²³

Second, to reduce the risk of non-transparency in the self-evaluation process, the Committee should establish and administer a centralized registry whereby all SRP submissions are initially sent, registered, and made publicly available before being dispatched to the relevant respondents for review and response. The USMCA’s dedicated website for recording progress of SEEM submissions could be of valuable reference here. Meanwhile, bearing in mind the SRP’s experimental value, it is important that such a registry only documents and disseminates submissions and does not exercise any substantive authority.

Third, the Committee should conduct periodic reviews on respondent-defined evaluating criteria. Much ink has been spilled above on the (in)appropriateness of several criteria adopted or proposed by certain CPTPP parties. However, it is not my intention to argue that the SRP should therefore follow EU and US models and authorize the Committee to define a universal set of considerations binding on all parties, as this would alter the very nature of the domestic self-evaluation process and eliminate the conditions conducive to experimentation. Rather, the point is that the appropriateness of respondent-defined criteria should not be entirely shielded from external scrutiny. Drawing upon the WTO’s Trade Policy Review Mechanism, the Committee could organize regular assessments on each party’s SRP practice, without imposing binding recommendations to modify or enforce any specific criterion.Footnote ¹²⁴

In terms of feasibility, all three proposals can be readily accommodated within the specified mandate of the Environment Committee, namely to oversee, discuss, and review the implementation of the SRP and the environment chapter.Footnote ¹²⁵ Detailing time limits, maintaining a centralized registry, and reviewing the respondent-defined criteria on a regular basis do not seem to go beyond the ordinary meaning of the Committee’s defined remit.