Transcript Document

UCC Law & the Environment
2013
Drivers behind Constitutional
Environmentalism: A comparative
examination
Dr. Roderic O’Gorman (DCU)
Constitutional Environmentalism: any
reference to the environment, animals or
ecological issues contained with a national
constitution or bill of rights with similar
status.
Constitutional Environmentalism
a) Environmental Rights
• 1) Environmental
Procedural Rights
• 2) Right to
Environment
• 3) Right of
Environment
c) Animal
Rights/Welfare
b) Environmental Duties
• 1) Duty on State
• 2) Duty on Citizen(s)
A) Environmental Rights
• 1) Environmental Procedural Rights include those
associated with rights of participation in decision
making, access to information and ability to access
justice.
• 2) Right Of environment envisages a value in the
environment beyond mere human benefits. Such an
approach argues that the environment should be
held as a good on its own merits, and protected as
such.
• 3) Right to Environment is conceptualised as a right
pertaining to each individual – the environment is
valued not on its own merits, but in light of its
importance for human existence.
B) Environmental Duties
• Within European constitutions in particular, there is
a consistent trend of making reference to
environmental duties. The bearers of these duties
are usually either the citizens or the State.
1) Duty on the State
• Widely framed. May be based on well established
environmental principle, such as “sustainable
development” (Poland – Art 74) or proper planning
(Portugal – Art 9)
• May involve limitation on how economic activity is
carried out: Slovakia Art 55(1) – “The economy of
the Slovak Republic is based on the principles of a
socially and ecologically oriented market economy”.
2) Duty on Citizens
• Duties on citizens can be framed as a general
obligation on all citizens to respect the environment
(Art 35 – Estonian) or it can more specifically apply
to the actions of individual citizens (Art 35(3) –
Charter of Fundamental Rights of Czech Rep).
C) Constitutional Protection of Animals
• We see brief references to animals, regarding
protection: Germany (Art 20a), Slovenia (Art 72(4)),
Sweden (Art 7(1)(4)) but also as items of property Malta (Art 37)
Theme 1: Emergence of new democracies
• Sub-theme: There seems to be a drive
towards ‘modernity’ or ‘homogenisation’
with other countries/organisations.
• Sub-theme: Deliberate break with the past
Romania
• Article 35 of the 2003 Constitution
contained a specific reference to the State
acknowledging a right to a healthy, well
preserved and balanced environment.
Poland
• New Polish Constitution of 1997
• Article 5: duty on the State to protect the
environment, based on the principles of
“sustainable development”.
• Duty on the State to pursue long term
environmentally sound policies, a duty on the
public regarding the environment, and an
express right to information on environmental
quality and protection.
• No specific ‘right to environment’.
Article 71 of the (former) 1952 Polish Constitution
• "Citizens of the Republic of Poland shall have
the right to benefit from the natural environment
and it shall be their duty to protect it”.
Hungry
• Art 18 (former constitution) – “The Republic of
Hungary recognizes and shall implement the
individual's right to a healthy environment”.
• New Constitution (2011)
• Art 21(1) – “Hungary shall recognise and enforce the
right of every person to a healthy environment”.
• Art 20(2) the right to physical and mental health in
21 shall be secured by “... ensuring that [...]
agriculture remains free from any genetically
modified organism, by providing access to healthy
food and drinking water, by managing industrial
safety and healthcare, [...], and by ensuring
environmental protection”.
Theme 2: Long Term Public Pressure
• Germany
• 1993 – federal constitutional commission.
• 1994 – environmental provision added via Art
20a. Some controversy about potential impact.
• 2002 – Phrase “and the animals” is added to Art
20a.
• Long term public support for environmental &
animal welfare issues.
• Green Party in power in 2002.
Theme 3: Strong Political Leadership
France
• Charter of the Environment 2005.
• Driven by President Chirac.
• “Legacy building”
• Government appointed commission – significant
public consultation.
• Chirac intervened at two key stages. Major problems
were with his own party.
• Passed by Congress in 2004.
• Bourg & Whiteside – “It is no exaggeration to say
that there would be no Charter for the Environment
in the French constitution had it not been for
Chirac’s personal, reiterated efforts on its behalf”.
Ecuador
• 2008 a new Ecuadorian Constitution was approved
in a referendum. Based on proposal for new
constitution the leftist President Correa, put forward
during his successful election campaign in 2006.
• Article 71(1): “Nature or Pachamama, where life is
reproduced and exists, has the right to exist, persist,
maintain and regenerate its vital cycles, structure,
functions and its processes in evolution”.
• Provisions have been described as the brainchild of
the President.
• Community Environmental Legal Defense Fund
provided support to the Ecuadorian Constitutional
assembly in authoring the relevant provisions
www.celdf.org
• Wheeler case (2011) A provincial court used the
provisions of Article 71 to find a state government
liable for damages caused by flooding due to the
dumping of material.
• The Court determined that “ ... a ‘healthy’
environment is more important than any other right
and affects more people”.
• Subsequently, the Government has used the
provisions to assist it in court cases about taking
over privately owned mining companies.
Theme 4: Environmental Protection as an
Uncontroversial Amendment
Netherlands
• Dutch Constitution was significantly amended in
1983 to include references to a wide range of social
rights,
• Included a duty on the State to keep the country
habitable and to protect and improve the
environment – Art 21.
• “…in the debates about the Constitution in
Parliament little attention was paid to article 21”.
• the amendment was adopted alongside a number
of new social rights provisions that would have
significant cost implications: labour rights, welfare
rights and health rights.
Iceland
• Undertook an innovative process to draw up a
completely new constitution, following financial
crisis.
• The old 1944 Constitution made no reference to the
environment. The 2012 Draft Constitution includes
provisions on ‘Nature and Environment of Iceland’
(Article 33) and ‘Natural Resources’ (Article 34).
• Anecdotally, the provision on the environment
received little attention during the discussion of the
Convention. However Art 34 proved more
controversial and was put to a separate public vote
along with the entire constitution.
• “Iceland’s natural resources that are not private
property shall be the joint and perpetual property of
the nation. No one can acquire the natural
resources, or rights connected thereto, as property
or for permanent use and they may not be sold or
pledged”.
• Explanation: being “... not simply a reiteration of
Iceland’s sovereign right over the natural resources
within its jurisdiction [...] rather, the purpose of this
provision is to establish a particular type of right of
ownership of natural resources which are not
privately owned”.
• The Icelandic people gave a resounding Yes vote of
82.9% on this provision.
Conclusion
• Bunracht na hEireann is one of only six EU states
with no constitutional environmentalism.
• Including environmental provisions in our
Constitution, in particular a ‘right to environment’, is
a vital element in allowing Irish people secure basic
rights related to their health, their workplace, public
spaces and their enjoyment of their property.
• How do we change this state of affairs?
1) Get public opinion onside
• Create broad public consensus on the
issue
• Ensure it is not seen as a threat to
employment
• Demonstrate to the public that they have a
stake in the environment. Link the right to
environment with the right to health
2) Accept eventual provision may not go as
far as we desire
• Whatever provision is adopted can be
interpreted by later courts.
• An environmental provision will permeate
the legal consciousness. Provisions in
both France & Germany have had more
widespread implications
3) Convince significant political players and
social partners to get involved