Tag Archives: constitutional rights

The Implicit Constitutional Right to Live in a Healthy Environment (D. R. Boyd)

Author

David R. Boyd

Keywords

constitutional rights, healthy environment, environmental rights, human rights

Abstract

The right to a healthy environment has rapidly gained constitutional protection around the world. In at least twenty countries, recognition of the right to a healthy environment first occurred through court decisions determining that it is implicit in other constitutional provisions, primarily the right to life. The right is now recognized explicitly in the constitutions of 90 countries spanning Europe, Asia, Latin America, the Caribbean and Africa, and is recognized as an implicit and enforceable constitutional right in at least twelve additional countries. The decisions of international courts and tribunals provide further support for concluding that the right to life necessarily includes the right to a healthy environment.

Citation

(2011) 20 Review of European Community & International Environmental Law 171

Paper

The Implicit Constitutional Right to Live in a Healthy Environment

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Constitutional rights to an ecologically balanced environment (I. Larmuseau)

Author(s)

Isabelle Larmuseau

Keywords

constitutional rights, ecologically balanced environment, environmental rights, environmental protection

Abstract

Distinguished speakers from several European and non-European countries were willing to come to Ghent on 28 September 2007, to provide an answer to the question if the right to an ecologically balanced environment should receive express provision in the constitution of a modern democratic state. Is environmental protection sufficiently important to receive guarantees for it at the highest level? Should environmental protection be considered a human right? A growing number of states constitutionalize environmental rights. Belgium for example introduced in 1994 the right to an ecologically balanced environment in its constitution. The question arises why not all EC-Member States laid down this right in their constitution. What are the arguments pro and contra? Which legal consequences can be deduced from the constitutional right to an ecologically balanced environment? Should environmental issues be given priority over other policy objectives, as a result of the constitutional status of the right? Could a constitutional right remedy an eventual gap in legal protection of interested parties? Does a constitutional recognition of a fundamental right to an adequate environment generate ‘illusory’ expectations, as the implementation and enforcement of this right is not evident? What is the experience in practice, inside and outside Europe?

This book is the written report of the exposé of Prof. Dr. Luc Lavrysen (University of Ghent, Judge in the Belgian Constitutional Court, President of EUFJE), Prof. Dr. H.F.M.W. van Rijswick (University of Utrecht), Ms. Rita Raum-Degrève (Chairman of EELA, Chairman of the Luxembourg Environmental Law Association), Prof. Dr. Branca Martins da Cruz(Lusíada University of Porto), Ms. Tonia Pediaditaki (Lawyer in Athens), Mr. Daniel Lawrence (Fresh- fields, Chairma, of the U.K. Environmental Law Association), Mr. Arlindo Daibert (Attorney of the City of Rio de Janeiro Attorney General’s Office) and Prof. Dr. Dinah Shelton (Georges Washington University), who talked about their experience having or not having constitutional environmental rights. The book also contains a transcription of the debate afterwards.

Citation

V.V.O.R. Report 2007/2

Paper

Constitutional rights to an ecologically balanced environment

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The Intersection between Constitution, Human Rights and the Environment: The French Charter for the Environment and the New Ex Post Constitutional Control in France (D. Marrani)

Author

David Marrani

Keywords

legal orders, French Constitution, environmental rights, human rights, French Constitutional Council, GMO, constitutional rights, green constitution

Abstract

There is a lot to be said about how environmental issues are reshaping the way we are living in the twenty-first century. Not only are those issues affecting the human race, but they are also affecting legal orders, sometimes even in their most conservative ‘parts’. The Charter for the Environment was integrated in the French Fifth Republic Constitution in 2005. It became the legal basis of many unforeseen changes, particularly the important recognition of its value by the ‘public law’ courts. Environmental rights seem to have become human rights after the 2008 landmark decision of the French Constitutional Council on the constitutionality of the statute on GMOs. In that decision, the Council reaffirmed the constitutional value of every right and duty defined in the Charter. The impact of this statement has recently been amplified with the introduction by the 2008 constitutional amendment of an ex post constitutional control. It is, therefore, time to consider whether the rights declared in the Charter are becoming ‘true’ constitutional rights.

Citation

(2014) 16 Environmental Law Review 107-121

Paper

The Intersection between Constitution, Human Rights and the Environment: The French Charter for the Environment and the New Ex Post Constitutional Control in France

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Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights (J. J. Bruckerhoff)

Author(s)

Joshua J. Bruckerhoff

Keywords

nature, anthropocentricism, constitutional rights, environmental rights, environmental health, environmental protection, biodiversity, jurisprudence

Abstract

Is it possible to use constitutional rights to protect the intrinsic value of nature? This question should seem somewhat paradoxical. Constitutional rights are, by their very nature, anthropocentric-they confer a right to people and to people only.1 This Note argues, nonetheless, that it is possible to use constitutional environmental rights to defend nature from environmental harm. Many countries (and some U.S. states) purport to grant their citizens a constitutional “right” to a healthy environment.2 These constitutional environmental rights remain largely untested in the courts;3 however, when they have been invoked, most courts have construed the right very narrowly. The courts hold that the right to a healthy environment only restricts state action that is likely to cause environmental harm that creates a signiflcant threat to human health, such as pollution.4

This current understanding and enforcement of environmental rights is flawed because it is too anthropocentric.  A right to a healthy environment should actually guarantee a healthy environment, not just an environment that satisfies minimal health standards for humans. This Note argues why environmental rights should protect nature’s biodiversity and how this goal can be accomplished within a workable constitutional-rights framework.

Scientists warn that human activities are threatening the survival of the world’s plant and animal life.5 Moreover, mounting evidence illustrates the importance of protecting nature’s biological diversity, or biodiversity.6 This evidence shows that biodiversity is critical to both overall environmental health and human well-being. Incorporating biodiversity protection into constitutional environmental rights will ensure that the rights will actually guarantee a truly healthy environment for present and future generations.7

There are two principal avenues for incorporating biodiversity considerations into environmental rights jurisprudence. First, the constitutional provision should link the concept of environmental rights with a broader definition of environmental health. Some current constitutions already accomplish this goal by not just guaranteeing a “livable” or “healthy” environment but by granting “a right to an ecologically balanced environment”8 or, stated more profoundly, a right to “a balanced and healthful ecology in accord with the rhythm and harmony of nature.”9 second, and more importantly, courts should interpret and apply environmental rights more broadly. Because courts are unlikely to expand environmental rights on their own initiative, advocates of environmental rights should (1) highlight the scientific evidence that illustrates the interrelationship between biodiversity and human health and (2) emphasize the nexus between cultural values-specifically the rights of indigenous peoples-and overall environmental health.10 Ultimately, this Note aims to establish a workable constitutional framework for how citizens could rely on environmental rights to protect biodiversity.

This Note is divided into five parts. Part I emphasizes the importance of biodiversity law in environmental protection and explains the differences between anthropocentrism and biocentrism. Part II explains why a constitutional environmental right should be part of a comprehensive environmentalprotection regime. It also presents an argument for why environmental rights should be less anthropocentric. Subsequently, Parts III and IV discuss the two principal avenues for incorporating biodiversity considerations within environmental rights jurispmdence. Part III discusses how the constitutional text itself affects both the enforceability and application of environmental rights. It explains why most environmental rights provisions have not been enforced and notes that even when courts have enforced the right, they have limited its reach. Therefore, it outlines how an effective environmental right should be written to guarantee that it provides biodiversity protection while remaining individually enforceable. …

Citation

(2008) 86 Texas Law Review 615

Paper

Note, Giving Nature Constitutional Protection: A Less
Anthropocentric Interpretation of Environmental Rights

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The human right to water and reform of the Irish water sector: Owen McIntyre

Author

Owen McIntyre

Keywords

Human right to water, water sector reform, privatization of water services, constitutional rights, bodily integrity, dignity

Abstract

The austerity measures imposed upon Ireland under the terms of the 2009 EU/IMF financial bail-out package include the introduction of charging for domestic water and sanitation services, which has led to the establishment of a new national water utility and plans to roll out a nation-wide programme for the installation of domestic water meters. The introduction of such a charging scheme raises a range of, as yet, unanswered questions concerning, for example, the use of social safety nets for those unable to pay, safeguards regarding disconnection or reduction of service in the event of non-payment, the accountability of the new utility for any failure to supply adequate water, and arrangements for meaningful public participation in decision-making concerning water services. While one would normally expect such key policy choices to be guided by the emerging human right to water and sanitation, no applicable provision of Irish law expressly supports the concept. However, policymakers might want to take account of the good governance values inherent to this emerging human right, as there exists the possibility that certain provisions of Irish law, and applicable provisions of European human rights law, might be interpreted so as to impose such values. While much of the current discourse on the human right to water and sanitation concerns its possible application in developing countries, Ireland might hold lessons for other developed countries facing austerity-driven water sector reform, including arrangements for the privatization of water and sanitation services.

Citation

(2014) 5/1 Journal of Human Rights and the Environment 74-101

Paper

The human right to water and reform of the Irish water sector

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