Cultural relics are protected under China's EPL. Photo credit: https://www.smithsonianmag.com/history/were-terracotta-warriors-based-on-actual-people-180954321/

Preserving Culture with EPIL

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Like its natural environment, China’s heritage – as embodied in its architectural landmarks, archaeological sites, historic urban neighborhoods, traditional villages, and cultural landscapes – is under threat from the country’s rapid development.[1] One approach to slowing the loss of Chinese heritage is through law, including the Environmental Protection Law (2014 revision). The law, while focused on the natural environment, also calls for the preservation of cultural heritage, by including cultural relics[2] and historic sites[3] in its definition of “environment” (article 2); obligating governments at all levels to protect cultural relics from damage (article 29); and envisioning increased protections for urban historic sites (article 35).

Cultural relics are protected under China's EPL. Photo credit: https://www.smithsonianmag.com/history/were-terracotta-warriors-based-on-actual-people-180954321/

Cultural relics are protected under China’s EPL. Photo credit: https://www.smithsonianmag.com/history/were-terracotta-warriors-based-on-actual-people-180954321/

A notable addition to the Environmental Protection Law in its 2014 update is article 58, which allows non-governmental organizations (NGOs) meeting certain requirements to file environmental public interest litigation (EPIL) challenges against actors engaging in activities damaging the environment. The NGO China Biodiversity Conservation and Green Development Fund (CBCGDF) has employed the EPIL legal tool in at least three challenges to activities damaging Chinese cultural resources. The first, in Henan province, involved the 2014 demolition by the Magu village committee of five out of seven protected rural historic structures. CBCGDF brought an EPIL challenge in municipal court against the village as well as the district, town, and municipal governments. The mediated result of the case was that the two historic buildings still remaining out of the original seven were given special protective status, a first in Chinese heritage preservation.[4]

CBCGDF’s second EPIL cultural-resources challenge took place in Jiangsu province. In 2009, Huai’an city granted municipal preservation status to the school in Qinghe district that Premier Zhou Enlai attended as a child. Seven other nearby historic structures were also protected. In the intervening years, Huai’an city undertook a district commercial development that traded on the school’s association with Premier Zhou. Despite the connection to the historic school the project resulted in the loss from their original sites of six of the other protected heritage structures. CBCGDF brought an EPIL suit in municipal court against this outcome. As of June 6, 2016, the court has accepted CBCGDF’s standing to bring challenge under EPIL, though no result has been issued.[5]

The third CBCGDF challenge involved rectifying damage to cultural landscape in Henan province. There,

Chinese jujube trees define regional landscapes. Photo credit: http://www.chinesereddate.com/

Chinese jujube trees define regional landscapes. Photo credit: http://www.chinesereddate.com/

in Xinzheng city in 2014, town and village governments engaged in a rushed and unauthorized removal of centuries-old jujube trees, which are significant character-defining features of the regional cultural landscape and are protected by the municipal government as part of the cultural heritage. That removal, described as “transplanting” by government authorities, ultimately resulted in the death of at least one-third of the trees. The intermediate court in Zhengzhou found in favor of CBCGDF, ordering the town and village governments to pay considerable fines for environmental restoration as well as plant 9,500 replacement jujube trees.[6]

EPIL is young, and its potential power as a legal tool to protect cultural relics and heritage is still yet to be thoroughly explored and pushed. The initial findings from these three cases are mixed. On the one hand, the jujube-tree case offers promise, as the offending actors were forced to mitigate some damage to the cultural landscape through both monetary compensation and physical restoration. The heritage-building cases, however, demonstrate the overall problem with after-the-fact litigation: once a historic resource is lost potential remedies are often merely punitive rather than effective tools for positive preservation outcomes. Better mitigation measures, including professional architectural documentation prior to demolition, should occur as part of the pre-project planning and design review stages.

[1] See (e.g.) Cheng Yingqi, “Overdevelopment is destroying China’s heritage,” China Daily, 4 August 2010, http://www.chinadaily.com.cn/china/2010-08/04/content_11089311.htm; Tania Branigan, “China loses thousands of historic sites,” The Guardian, 14 December 2009, https://www.theguardian.com/world/2009/dec/14/china-historic-sites-survey; and Lu Na, “Census reveals loss of 44,000 heritage sites,” China.org.cn, http://www.china.org.cn/china/2011-12/30/content_24289241.htm.

[2]人文遗迹

[3]风景名胜区

[4] China Biodiversity Conservation and Green Development Fund, http://www.cbcgdf.org/ProjectShow/4859/634.html.

[5] China Biodiversity Conservation and Green Development Fund, http://www.cbcgdf.org/ProjectShow/4859/634.html.

[6] China Biodiversity Conservation and Green Development Fund, “Governments Fined $555,000 for Killing 500-Year-Old Trees,” 2 January 2018, http://www.cbcgdf.org/English/NewsShow/5010/4108.html.

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