A Study On Environment Law's Reply To The Protection Of Cultural Diversity

Cultural Diversity and Biological Diversity were born together and grown together.The Convention on Biological Diversity 1992 recognized the positive significance of cultural diversity to the natural environment.Mankind is the product came from the environment,also the shaper of it.The tools we used and the result we got are culture.Culture is adaptable.The original diversity of culture wascaused by the diversity of the natural environment;culture is active.Diverse lifestyle and means of production can make proper use of all kinds of resources,not to a particular one,thus preserving the diversity of biology and environment.In history,the extinction of culture is often accompanied by the deterioration of environment.There are certain cultural factors in environmental problems.If there is only one culture left,the natural world will gradually lose its vitality,and vice versa.At last,it is a natural and cultural desert to us all.Therefore,protecting and promoting the diversity of human culture is not only the task of law,but also the bounden duty of environmental law.The definition of culture at the early stage of society is more extensive than today.It almost covers all aspects of human life.The concepts of politics,economy,law,religion,philosophy,science and technologyare integrated into one culture.After law had got its independent from the whole cultural system,it begins to examine culture as an outsider.Law leads culture to civilizationand safeguards culturewith its diversity.Amongall legal departments,environmental law has its own unique integrated perspective while the natural and cultural elements have been unifiedinto ecological system as a whole.However,the modern environmental law overemphasizes objectivity than sociality,universality than diversity,scientific than humanistic.We often choosemajority over minority,environmental rightsover cultural rights.It is not enough as to the respect the cultural diversity.The way to deal with it could be leaving some reasonable space of the minority from legal world,such as the autonomy of the ethnic groups and the inherent rights of the aboriginal people.Moreover,environmental rights and cultural rights belong to human rightscategory,which means they can be easily co-managed.Systems like comprehensive management of the ecosystem,national park,cultural and ecological protection areasmight be the future of environmental law.This thesis will firstly study the interaction between culture,law and environment,which leads us to the necessary to protect cultural diversity in environmental law.By combing the international and domestic legal system,it is shown that cultural diversity has been well preserved in concepts,principles,rules and systems of environmental law.Secondly,I will analyze the phenomena and reasonsfor environmental law's sometimes failure to cope with cultural diversity.Then,I will forward some suggestions on the legislation and implementation of environmental law in China in order toenhance the preservation of both cultural and naturalenvironment.The thesis has five chapters.The first chapter begins with the close relationship between culture and law,culture and environment,cultural diversity and environmental law,followed bythe discussion on why cultural diversity needs legal protection and why it has to be the environmental law.First,law is one form of cultural expression.Law is shaped by culture.Culture has constantinfluence on law by providing for legislative resources and affecting the implementation of it to a certain extent.On the other hand,law can guide the direction of cultural evolution and protect citizen's legitimate cultural rights and interests.Second,culture is part of the environment.It is natural environment that shapes the original pattern of the culture while culture can also transform the environment to meet the needs of human survival and development.Some culture can help with rationally use and protectionof the environment.In a word,culture and environment are related and integrated.Third,cultural diversity nourishes environmental law by serving as the source of it,enhancing the implementation of it and consisting of it.These interactions and connections reflect the necessity of environmental law to protect cultural diversity.The second chapter has two parts.One is the international law and the domestic law system for the protection of cultural diversity.The other is the unique role and perspective of environmental law in the protection of cultural diversity.Culture is constantly changing.We value the diversity of cultural expression rather than culture itself.The value of cultural diversity has been universally recognized and international community protects it by legal means.Differs from other legal departments,environmental law has its own integrated,ecological perspective and regulating methods.Besides,environmental law has many advantages in protecting cultural diversity.It is because the requirement of cultural diversity is consistent with the purpose,content and means of environmental law.The promotion of cultural diversity is primarily to guarantee people's cultural rights.One of the contents of environmental law is to protect human rights,such as the right to health and the right to the environment.These rights are gradually considered to be the fundamental rights of human beings and the fulfillment of human rights are the goal of social development,that is,the common affairs of human beings.Furthermore,preserving cultural heritage and the environment are also what people really want.To achieve all that goals,the most reliableway is to ensure public participation,especially for those of minority groups,aborigines,farmers and other vulnerable ones.Environmental law has makingall effort to protect the interests of these disadvantaged groups above.Both international and the domestic environmental law have recognized the value of their cultures and have a proper tilt to their legitimate rights and interests.As to their production and living,the attitude of environmental law is to keepthe freewill and diversity as much as possible.In third chapter it is demonstrated the protection of cultural diversity lying in environmental law's ideology such as the concept of sustainable development,the spirit of the rule of law in the environment,the construction of ecological civilization;the principles such as the coordinated development,the integrated protection,the public participation,etc;the specific rules such as the object,the subject,and the action;And the concrete system such as comprehensive ecological management,national parks,cultural and ecological protection areas.However,in reality,there is still a conflict caused by the tension between the two,and environmental law often tends to choose environmental interests over cultural interests,because environmental interests often represent public interest,thus causing the loss of cultural diversity.For instance,while transplanting environmental laws,local culture such as customary laws,customs and ideas might be suppressed.Local environmental legislation doesn't work according to local culture.There is even an attitude to unrespect traditions,local knowledge,and folk experience.The reasons might come from the natural contradiction between the nature of environmental law and the protection of cultural diversity,for its modernity and commonality.The last chapter is specific to how should China's environmental law cope with respecting and promoting cultural diversity.First of all,there should be some ideological changes with environmental ethics,humanistic spirit,and the eco-frendly factors in traditional culture.In legislation,we should adjust the basic structure of environmental law;strengthen local environmental legislation to focus onlocal cultural and environmental conditions.It is important to value the role of environmental customary law,and pay attention to the combination of domestic practice and foreign experience when learning fromthe outside.In the implementation,we should promote the co-management mechanism of the public body and the private subject,which can ensurelocal residents' right to participate.The judges should balance the environmental and cultural interests between the plaintiff and defendant in court while the government should give full play to the quasi-judicial role of the administrative mediation of the civil disputes in the environment.Always respect for the right of self-determination byenhancing the autonomy of environment and cultural affairs at the grass roots and the rural place,Last but not least,make good use of the existing civil dispute resolution system.