FAN Jinxue*

 

Abstract: Although the academic community still has some theo-retical divergences on whether environmental rights should be a basic human right or a basic constitutional one, there are an increasing number of countries including this right in their constitution. Based on the constitutions in 193 countries, this paper aims to examine the fundamental situation of incorporating environmental rights into a constitution. It has been concluded that environmental protection as a right is written into a constitution in three aspects, namely, as a con-stitutional right, a civic duty, and a national policy, principle or social goal. Through summarizing these, this paper argues that including en-vironmental rights in a country’s constitution is the means by which all citizens shall enjoy a good, healthy, sustainable and harmonious en-vironment suitable for their development, have timely and comprehen-sive access to reliable information about environment, participate in making public decisions related to the environment, and ask for legal remedies and compensation for any infringement on their environmen-tal rights, or injury or damage to their environmental property. But even after environmental rights are incorporated into a constitution, there may be theoretical and practical difficulties in their implementa-tion.

 

Keywords: constitutional environmental rights     basic duty     na-tional policy     right relief

 

Although scholars at home and abroad still have theoretical divergences on whether environmental rights belong to basic human rights or constitutional rights, countries which have incorporated environmental rights into their constitutions are growing. In view of the fact that the constitutional environmental rights have a prac-tical character, scholars should analyze the reasons why many countries in the world have written environmental rights into their constitution while other countries have not, the differences over regarding constitutional environmental rights as basic rights, basic duties, national policies, or social goals, as well as the theoretical and practical challenges of incorporating environmental rights into a constitution, and so on. They are not only the core of this article, but also the issues that this article is trying to ad-dress.

 

 

In light of the current constitutional texts of the 193 member countries of the United Nations contained in the Constitutions of the World¹, the author has investi-gated the basic situation of environmental rights incorporated into the constitution of these countries and put forward some possible problems and preliminary explanations.

 

As a result of the author’s analysis, 69 of the 193 countries have included envi-ronmental rights as basic rights in their constitutional texts, 8 countries have taken environmental protection as a basic duty, and 44 countries regard environmental pro-tection to be a national social policy or goal. There are 72 countries that have not writ-ten environmental rights or environmental protection into their constitutions, among which 59 countries formulated constitutions before the 1980s, and only 13 of the countries adopted a new constitution after the 1980s. See the table below.

 

 

Of the 69 countries that regard environmental rights as constitutional rights, 26 are in Africa, including Angola, Benin, Burkina Faso, Burundi, Cape Verde, Cam-eroon, Chad, Comoros, C?te d’Ivoire, Democratic Republic of Congo, Ethiopia, Guinea, Mauritania, Morocco, Mozambique, Niger, Republic of Congo, Rwanda, Sao Tome and Principe, Senegal, Seychelles, South Africa, South Sudan, Sudan, Togo, and Uganda; 20 are in Europe, including Belarus, Belgium, Bulgaria, Croatia, France, Finland, Greece, Hungary Latvia, Macedonia, Moldova, Montenegro, Portugal, the Romania, the Russian Federation, Serbia, Slovakia, Slovenia, Spain, and Ukraine; 10 are in the Americas, including Bolivia, Brazil, Chile, Colombia, Dominica, Ecuador, Honduras, Paraguay, Peru, and Venezuela; and 13 are in Asia, including Armenia, Azerbaijan, Georgia, Iraq, Kyrgyzstan, the Maldives, Mongolia, Nepal, the Philip-pines, South Korea, Timor-Leste, Turkey, and Turkmenistan.

 

Of the 8 countries taking environmental protection as a constitutional civic duty, 1 is in Europe, namely, Estonia; 3 are in the Americas, including Cuba, Guyana, and Haiti; and 4 are in Asia, including Bhutan, Laos, Tajikistan and Uzbekistan.

 

Among the 43 countries that have adopted environmental protection as their national policy or social goal, 6 are in Europe, including Andorra, the Czech Re-public, Lithuania, Poland, Sweden and Switzerland; 16 are in Africa, including Bissau, Burundi, Equatorial Guinea, Gambia, Ghana, Gabon, Guinea Eritrea, Le-sotho, Madagascar, Malawi, Mali, Namibia, Nigeria, Swaziland, Zambia, Cen-tral Africa; 5 are in the Americas, including El Salvador, Guatemala, Nicaragua, Panama, and Suriname; 1 is in Oceania, namely Palau; 16 are in Asia, including Afghanistan, Bahrain, Cambodia, China, India, Indonesia, Iran, Kazakhstan, Myan-mar, North Korea, Qatar, Saudi Arabia, Syria, Thailand, Vietnam, and Yemen. Of the 72 countries that do not consider environmental protection to be a basic right, civic duty or national policy, 59 established their constitutions before the 1980s, of which 16 are in Europe, including Ireland (1937, the date here refers to the year most recently adopted, remaining in use today), Austria (1920), Canada (1867), Cyprus (1960), Denmark (1953), Germany (1949), Iceland (1944), Italy (1947), Liechtenstein

 

(1862), Luxembourg (1868), Malta (1964), Morocco (1962), the Netherlands (1814), Norway (1814), San Marino (1974), Sweden (1974), and the United Kingdom, 8 are in Africa, including Botswana (1966 ), Egypt (1971), Libya (2011, interim dec-laration), Mauritius (1968), Somalia (2012), Tanzania (1977), Tunisia (1959), and Zimbabwe (1979), 14 are in Americas, including Argentina (1853) , Barbados (1966), the Bahamas (1973), Costa Rica (1949), Dominica (1978), Grenada (1973), Jamaica (1962), Mexico (1917), Saint Lucia (1978), Saint Vincent and the Grenadines (1979), Trinidad and Tobago (1976), the United States, and Uruguay (1966), 11 countries are in Oceania, namely, Australia (1901), Kiribati (1979), Marshall Islands (1979), Micro-nesia (19), Nauru (1968), Papua New Guinea (1975), Samoa (1960), Solomon Islands (1978), Tonga (18), Tuvalu (1978) and Vanuatu (1975) and 10 countries are in Asia, namely Bangladesh (1972), Brunei (1959), Lebanon (1926), Jordan (1952), Kuwait (1963), Japan (1946), Singapore (1965), Sri Lanka (1978), and the United Arab Emir-ates (1971).

 

Thirteen countries have enacted new constitutions since the 1980s and have not included environmental protection in the texts, including Algeria (1996), Antigua and Barbuda (1981), Belize (2012), Bosnia and Herzegovina (1995), Djibouti (1992), Fiji (1990), Israel (1992), Liberia (1984), New Zealand (1985), Oman (1996), Pakistan (1987), Saint Kitts and Nevis (1983) and Sierra Leone (1991).

 

There has been a gradual increase in the number of countries that have included environmental rights in their constitutions Tim Hayward, a professor at the University of Edinburgh in the United Kingdom stated, on Constitutional Environmental rights published in 2005, that 30 or so countries in the world clearly defined environmental rights in constitutions by around 1997.² Twenty years later, another 39 countries had clearly stipulated environmental rights in their constitutions. From the perspective of the indivisibility of rights and duties, the eight countries which regard protect-ing or caring for the environment as a civic duty recognize environmental rights as a constitutional duty. As a result, there are actually 77 countries with constitutional environmental rights. Except for 58 countries whose constitutions were formulated later than the 1970s, there were only 13 countries that do not stipulate constitutional environmental protection. The main reason is that the proposition of environmental rights was only a product of the early 1970s, and in the 1990s the environmental rights became truly emerging human rights or basic rights.³ The majority of countries that enacted new constitutions or constitutional amendments in the 1980s or 1990s have identified protecting environmental rights as national policy and a social goal in their constitutional texts. It can be asserted that the number of countries with constitution-al environmental rights has steadily increased over the past two decades. China has confirmed “environmental rights” in its National Human Rights Action Plan (2009-2010) and used the concept of “environmental rights and interests” in the Progress in China’s Human Rights Cause of 2012, Progress in China’s Human Rights Cause of 2013, Progress in China’s Human Rights Cause of 2014, On Development and Prog-ress of Human Rights Cause in Xinjiang of 2017, National Human Rights Action Plan 2012-2015, National Human Rights Action Plan 2016-2020 and there are scholars and members of the Chinese People’s Political Consultative Conference who propose putting environmental rights into the constitution.⁴ Even countries such as Japan and the United States that have not written environmental rights into their constitutions, have actually raised the issue of constitutional environmental rights. In Japan, for ex-ample, at the Japan Bar Association’s public seminar on pollution in September 1970, the Osaka Bar Association’s lawyers used the basic human rights in Articles 13 and 25 of the Japanese Constitution advocate “to protect the environment from destruction, dominate the environment and enjoy a good environment,” which raised a heated dis-cussion⁵. In the United States, as early as in 1970, Richard Ottingger, a member of the US Congress, proposed incorporating environmental rights into the US Constitution. In 1976, 37 state legislatures initiated a proposal to incorporate environmental rights into the constitution.

 

 

According to the above investigation into the constitutions of various countries, environmental protection as a right is written into constitutions in one of three ways, namely, a constitutional right, a civic duty, or a national policy, principle or social goal. What are the specific connotations and characteristics of these?

 

 

Among the 69 countries that regard environmental rights as constitutional rights, their perceptions of environmental rights are basically the same with only slight dif-ferences. These differences are mainly reflected in the scope of environmental rights. The existing constitutional environmental rights include not only substantive rights, but also procedural ones. However, there is a big cognitive difference on the nature of constitutional environmental rights.

 

 

Substantive environmental rights refer to all kinds of specific rights by which citizens may put requests and claim relative interests about the living environment. These rights include the specific criteria to judge the substantive environmental rights. This raises questions such as” What is a “good” environment? What is a “healthy” environment? What is an environment “suitable for human development”? What is a “non-polluted” or “clean” environment? And so on.

 

According to the constitutional provisions of 69 countries, expressions of the main body of substantive environmental rights in the constitutional texts include three basic elements: the subject, the content and the object of the rights.

 

The subject of environmental rights: With the exceptions of the Article 24 of the Greek Constitution, which stipulates “some people”, Article 24 of the Sudan Constitu-tion and Article 16 of the Philippine Constitution as “people”, Article 47 of the Chad Constitution and Article 19 of the Chile Constitution as “all people”, Article 35 of the South Korean Constitution as “nationals”, Article 33(1) of the of Bolivia Constitution and Article 145 of the Honduras Constitution as “citizens” and Article 14 of the Ecua-dorian Constitution as “residents”, the constitutions of the other 60 countries all state the subject of environmental right to be “everyone”, “every one”, “anyone”, and “all Citizens”. It can be seen that these expressions of the subject of environmental rights in the constitutional texts of these countries can be divided into three categories, “peo-ple” or “all people”; “anyone” or “everyone”; citizens or nationals.

 

The object of environmental rights: All countries regard the “environment” as the object of environmental rights⁶. However, there are still some subtle differences in the specific expressions in countries’ constitutions. There are two basic models. The first model is that subjects have the right to enjoy an X environment, where X stands for “good”, “healthy”, “coordinated”, “ecologically balanced”, “suitable “, “clean”, “non-polluted”, “comfortable and sustainable” and other decorative concepts. For example, Article 55 of the Bulgarian Constitution stipulates: “Everyone has the right to enjoy a healthy and good environment in accordance with established standards and norms”; Article 20 of the Finnish Constitution states: “Everyone has the right to enjoy a healthy living environment”; Article 42 of the Constitution of the Russian Federation states: “Everyone has the right to obtain a good environment” and so on. The second model is that subjects have the right to live in a Y environment. Y and X represent the same meaning, vision and ideal, that is, to live in a non-polluted, clean, and healthy environment. For example, Article 1 of the French Environmental Charter of 2004 stipulates: “Everyone has the right to live in a balanced and conducive envi-ronment”. Article 37 of the Moldova Constitution states: “Everyone has the right to live in a life-saving, health-enhancing and eco-safe living environment”. Article 35 of the Korean Constitution stipulates: “Citizens have the right to live in a comfortable environment“, and so on.

 

The summaries of the content of rights are not the same. The constitutions of some countries summarize it as a “good environment,” such as Article 39 of the Azerbaijan Constitution, Article 23 of the Belgian Constitution, Article 46 of the Belarusian Constitution, the preamble of the Haggau Constitution, Article 115 of the Latvian Constitution, Article 23 of the Montenegrin Constitution, Article 42 of the Russian Federation Constitution, Article 44 of the Slovak Constitution, and Article 36 of the Turkmenistan Constitution; some constitutions add the word “healthy”, such as “healthy and good environment,” as stated in Article 55 of the Bulgarian Constitution, Article 37 of the Moldova Constitution; and Article 35 of the Romanian Constitution some add “balanced” or “ecologically balanced” to parallel with “healthy” as “a bal-anced and healthy environment” such as Article 73 of the Cape Verde Constitution, Article 14 of the Ecuadorian Constitution, Article 1 of the French Environmental Charter, Article 23 of the Maldives Constitution, Article 7 of the Paraguayan Constitution, Article 16 of the Philippine Constitution, Article 66 of the Portuguese Consti-tution, Article 61 of the Timor-Leste Constitution, Article 56 of the Turkish Consti-tution, and Article 127 of the Venezuelan Constitution; some only stipulate it as “a healthy environment”, such as Article 33(2) of the Armenian Constitution, Article 29 of the Constitution of Burkina Faso, Article 47 of the Constitution of Chad, Article 79 of the Colombian Constitution, Article 19 of the Cote d’Ivoire Constitution, Article 70 of the Croatian Constitution, Article 53 of the Constitution of the Democratic Repub-lic of Congo, Article 20 of the Finnish Constitution, Article 37(3) of the Constitution of Georgia, Article 145 of the Honduran Constitution, Article 21 of Chapter 2 of the Hungary Constitution, Article 48 of the Kyrgyz Constitution, Article 42 of the Con-stitution of Kenya, Article 43 of the Macedonian Constitution, Article 16(2), of the Constitution of Mongolia, Article 31 of the Moroccan Constitution, Article 8 of the Senegalese Constitution, Article 74 of the Serbian Constitution, Article 72 of the Slo-venia Constitution, Article 41 of the Constitution of South Sudan, and Article 50 of the Ukraine Constitution; Article 196 of the Brazilian Constitution directly summarizes environmental rights as a “right to health”; some constitutions stipulate it as “an envi-ronment conducive to human development”, such as Article 49 of the Rwandan Con-stitution and Article 45 of the Spanish Constitution, “a clean and hygienic environ-ment” such as Article 44 of the Ethiopian Constitution, “a healthy and pollution-free environment” such as Article 39 of the Angolan Constitution, “a healthy, comfortable and sustainable environment” such as Article 27 of the Benin Constitution, Article 35 of the Constitution of the Democratic Republic of Congo, and Article 16 of the Guin-ean Constitution, “a sustainable and balanced environment with respect to health” such as Article 19 of the Constitution of Mauritania, “a harmonious environment” such as Article 90 of the Mozambican constitution and Article 2(22) of the Peruvian constitution, “a healthy and happy environment” such as Article 24 of the South Afri-can Constitution, “a clean environment” such as Article 35 of the Niger Constitution, “a clean, healthy and ecologically balanced environment” such as Article 38 of the Con-stitution of the Seychelles, “humanistic environment” such as Article 49 of the Consti-tution of Sao Tome and Principe, “a clean and hygienic environment” such as Article 39 of Uganda’s Constitution, “a comfortable environment” such as Article 35 of the South Korean Constitution, “an environment suitable to live” such as Article 33(1) of the Iraqi Constitution, “a healthy, protected and harmonious environment” such as Ar-ticle 33(1) of the Bolivian Constitution, “a sustainable, healthy, ecologically balanced and appropriate environment” such as article 67(1) of the Dominican Constitution or “a pollution-free environment” such as Article 19 of the Chilean Constitution.

 

Therefore, the content requirements concerning the substantive environmental rights can be basically summed up as a “good” and “healthy” environment. Other words and phrases such as “pollution-free”, “clean and hygienic”, and “suitable for human development” all have the meaning of “healthy”, so “a healthy environment” has already embraced these meanings. A “harmonious”, “sustainable”, and “human-istic” environment “suitable for human development” is a higher requirement for en-vironmental rights from the sustainable and harmonious perspective of a healthy and good environment. In other words, a good and healthy environment suitable for human development is not only harmonious, but also sustainable. Therefore, combined with the constitutional provisions of various countries, the substantive concept of environmental rights can be summarized as follows: environmental rights mean that all people or citizens have the right to a people-friendly, good, healthy, sustainable and harmonious environment. Tim Hayward generalizes the core concept of constitutional environmental rights as “everyone’s right to an environment that can fully achieve their health and well-being”.⁷

 

 

Among the 69 countries that stipulate environmental rights, 10 stipulate, in addi-tion to substantive rights, procedural environmental rights,⁸ namely, the right to obtain the relevant information about environmental rights and ask for remedies after their environmental rights have been violated. Briefly, these can be listed as follows:

 

Article 46 of the Belarusian Constitution stipulates: “Everyone has good environ-mental rights and is entitled to compensation if his or her rights have been infringed and losses have been caused.”

 

Article 42 of the Constitution of the Russian Federation states: “Everyone has the right to enjoy a good environment, get reliable information about the environment, and claim compensation for the loss of his or her health or property as a result of an ecological violation.”

 

Article 7 of the French Environmental Charter states: “Everyone has the right to obtain the environmental information controlled by the public authority and participate in the formulation of public decisions that may have an impact on the environment, according to legal conditions and restrictions”. Article 74 of the Serbian Constitution states: “Everyone has the right to a healthy environment and the access to timely and comprehensive information on state’s environment.”

 

Article 72 of the Constitution of Slovenia states: “Everyone has the right to a healthy living environment in accordance with the law. When the circumstance and degree of personal injury to the living environment are in accordance with the law, compensation must be made.” Article 50 of the Ukrainian Constitution states: “Every-one has the right to an environment conducive to life and health, as well as the right to claim damages for the infringement of the above right.”

 

Article 39 of the Constitution of Azerbaijan states: “Everyone has the right to live in good conditions. Everyone has the right to claim compensation for the ecological approach to the health and wealth.”

 

Article 48 of the Kyrgyz Constitution provides: “Everyone has the right to an en-vironment conducive to life and health, and to compensation for the loss of his or her health or property caused by others’ actions of using natural resources.”

 

Article 34 of the Bolivian Constitution stipulates: “Any individual or group has the right to bring lawsuits against actions damaging public resource in the name of protecting the environment and resisting environmental damage.”

 

Article 42 of the Kenyan Constitution stipulates: “Everyone has the right to a clean and healthy environment.” Article 70 (1) states: “When someone claims that the right to a clean and healthy environment recognized and protected by Article 42 has been, is or may be denied, infringed or threatened, he or she may, in addition to obtain other legal remedies, file a remedy to a court on the matter.”

 

From the above-mentioned constitutions that stipulate procedural environmental rights, these rights include only three categories: the first is the right to obtain time-ly, comprehensive and reliable information about the environment; the second is the right to participate in formulating policies that may affect the environment; the third is the right to require legal remedies and compensation after environmental rights have been violated. Among the above 10 constitutions, the Constitution of the Russian Federation stipulates the first and third categories, the French Environmental Charter provides the first and second categories, the Constitution of Serbia only provides the first category, and the other seven constitutions stipulate only the second category. In the second category, all the other six countries, except Kenya, emphasize damage to health or property caused by an infringement on environmental rights, in other words, to enjoy the right to relief, the action of infringement is a requirement, and the result of damage is also necessary. If there is an environmental tort without loss of legal consequences, no constitutional responsibility for compensation shall be shouldered. Article 70 of the Kenyan Constitution, on the other hand, clearly stipulates that with clean environmental rights recognized and protected by the Constitution, individuals can apply for a remedy to the court, no matter that their rights have been, are being, or may be denied, violated, infringed or threatened, besides, the actual loss is not a ne-cessity.

 

Judging from the above-mentioned constitutional provisions on environmental rights, the concept of constitutional environmental rights are both substantive and pro-cedural. Therefore, the concept of constitutional environmental rights can be attribut-ed to the rights of all people or citizens (nationals) to enjoy a sound, healthy, sustain-able and harmonious environment suitable for human development, have the timely and comprehensive access to reliable information on the environment, participate in formulating policies that may affect the environment, and require legal remedies and compensation after environmental rights have been violated.

 

 

The cognition about the nature of environmental rights is not the same in all 69 countries. Some constitutions classify environmental rights as “basic rights”, some as “the rights of people and citizens”, some as “human rights”, some as “economic, so-cial and cultural rights”, some as “general and basic principles”, some as “basic objectives and guiding principles”, some as the “rights to health” or a constitutional “right”, and so on.

 

Specifically, there are 22 countries that attribute environmental rights to constitu-tional “basic rights”, these are Angola, Armenia, Azerbaijan, Bulgaria, Burkina Faso, Chad, Dominica, Finland, Georgia, Guinea, Latvia, Macedonia, Maldives, Moldova, Mongolia, Nepal, Peru the Republic of Congo, Romania, Slovakia, Turkmenistan and Uganda;11 countries regard environmental rights as “economic, social and cultural rights”, namely, Bolivia, Cape Verde, Croatia, Iraq, Mozambique, Portugal, Sao Tome and Principe, Senegal, Slovenia, Timor-Leste, and Turkey; 15 countries attribute envi-ronmental rights to “the rights of people and citizens or nationals“, namely, Armenia, Belarus, Belgium, Benin, Georgia, Greece, Kyrgyzstan, Macedonia, Niger, Rwanda, Russia, South Africa, South Korea, Togo, and Ukraine⁹; 5 countries that attribute environmental rights to “human rights”, namely the Democratic Republic of Congo, Montenegro, Serbia, Seychelles, and Venezuela; 6 countries that attribute environ-mental rights to “rights and freedoms”, namely, Colombia, Chile, Ecuador, Hungary, Kenya, and Paraguay; 2 countries that have the environmental right in the preamble, namely, Comoros and HGM; 1 country that attributes environmental rights to “dem-ocratic rights”, namely, Ethiopia, 5 countries that attribute environmental right to the general and basic constitutional principles, or national policies and social goals: Mau-ritania, the Philippines South Sudan, Spain, and Sudan;¹⁰ and 2 countries that directly regard environmental rights as “rights to health”, namely Brazil and Honduras.

 

Judging from the classification of environmental rights in the above constitutions of various countries, there are only 22 countries that explicitly regard environmental rights as the “basic rights” in their constitutions, 20 countries which regard them as “human rights” or “the rights of people and citizens”, 11 countries that regard them as economic, social and cultural rights, 6 as constitutional rights and freedoms, 2 as “rights to health” and 7 as “preamble” or basic policy.

 

 

There are 8 countries that have not taken environmental rights as citizens’ rights, but as their duties in their constitutions, including Bhutan, Cuba, Estonia, Guyana, Haiti, Laos, Tajikistan, and Yemen. Their constitutional provisions are as follows:

 

Article 5 of the Constitution of Bhutan states: “It is an important duty of every citizen to promote the protection of the natural environment, the conservation of bio-diversity in Bhutan, and the prevention of various forms of ecological degradation, including noise, visual and physical pollution.”

 

Article 27 (2) of the Cuban Constitution stipulates: “The protection of water, air, land, animals, plants and the natural environment is the duty of every citizen.”

 

Article 53 of the Estonian Constitution states: “Everyone has the duty to care for the living environment and the natural environment, and to compensate for the envi-ronmental damage caused.”

 

Article 25 of the Guyana Constitution states: “Every citizen has the duty to par-ticipate in activities aimed at improving the environment and protecting the health of the nation”.

 

Article 52 (1) of the Constitution of Haiti stipulates: “Citizenship is the sum of citizens’ moral, political and economic duties to the country, including ... respecting and protecting the environment”.

 

Article 19 of the Lao Constitution stipulates: “All organizations and citizens must protect the environment and natural resources.”

 

Article 44 of the Constitution of Tajikistan states: “It is everyone’s duty to protect nature and historical and cultural monuments.”

 

Article 35 of the Yemeni Constitution stipulates: “The environmental protection is the responsibility of the state and society, as well as the religious and national duty of every citizen.”

 

There are three modes for the above constitutional provisions on the duties of environmental protection: The first is that environmental protection is a citizen’s duty, such as in the constitutions of Cuba, Tajikistan, and Yemen. The second is that citizens have a duty to protect environment, such as in Estonia and Guyana. The third is that citizens must protect the environment, such as in the Laos Constitution. Both of the first and second modes set “environmental protection” as a constitutional duty of cit-izens. The third mode uses the strongest obligatory expression, “must”, which shows that the constitutionalists have the strongest legal sense towards the constitutional duty of “protecting the environment”.

 

Compulsory provisions for environmental protection actually give everyone en-vironmental rights. From the view of Karl Marx, “there are no rights without duty and no duty without rights,”¹¹ and Tom Paine’s deduction that “the declaration of rights is a declaration of duties from the perspective of interaction”,¹² it can be concluded that “duty means right”. It is the duty of every citizen to protect the environment. That is every citizen has the right to a healthy environment. Therefore, the constitutions of the above eight countries confirm the environmental rights of citizens in the form of civic duties.

 

 

There are 44 countries that regard environmental protection as a national policy or social policy goal in their constitutions. The mode of expression for the provisions is: The state (should) + ensure / guarantee / protect + environment. For example, Ar-ticle 26 of China’s Constitution stipulates: “The state protects and improves the living environment and the ecological environment, and prevents pollution and other public

 

hazards”. Article 6 of the Constitution of Equatorial Guinea states: “The State ensures that nature can be protected”. Article 48 (2) of the Indian Constitution states: “The State should be committed to protecting and improving the environment.” Article 74 of the Polish Constitution stipulates: “The State shall implement the policy of ensur-ing the ecological security of present and future generations. Environmental protec-tion is the responsibility of state institutions.” Article 15 of the Swedish Constitution states “to protect human health or the environment.” Article 2 (4) of the Constitution of the Swiss Confederation stipulates: “The Swiss Confederation is committed to the sustainable protection of the natural environment“, and so on.

 

As a country’s constitutional policy or goal, environmental protection is a pre-amble or proclamation of the constitution aimed at showing the world the attitude and philosophy to protect the environment. Its basic function is to encourage governments to take active actions to protect the environment. Ronald Dworkin pointed out: the policy “stipulates a goal that must be achieved, generally concerning about the im-provement of certain economic, political or social situations.”¹³ Although the policy has a certain degree of binding force to the state or government, such a force is polit-ical and moral. Thus the policy will not have a direct legal nature of litigation. In the process of implementing national policies and social goals of environmental protec-tion, the state is an active implementer and promoter, and the state’s responsibility in implementation is moral or political responsibility instead of a legal one.

 

A noteworthy issue is that although many countries advocate and support en-vironmental protection and regard it as national policy and a social goal, and even if some laws on environmental protection have been promulgated in practice, these countries have refused to recognize constitutionally their citizens’ environmental rights. There are many reasons for this. One of the important reasons is that as a con-stitutional right, rights, duties and responsibilities of its subjects cannot be identified.

 

 

Through investigating the constitutional texts of 193 countries, it can be seen that although more and more countries have enacted environmental rights in the basic rights of the constitutional system, the seven most developed and industrialized coun-tries in the world — the United States, the United Kingdom, Germany, France, Italy, Japan and Canada — have not established constitutional environmental rights, and even a representative developing country such as China has not clearly established them either. This situation may itself means that it is already the consensus of all countries that environmental protection is a common vision and mission of mankind that should be incorporated into national policies or social goals to make all nations strive to protect the human environment, however, the confirmation of environmen-tal protection as a constitutional right may face a double dilemma both in theory and practice.

 

 

What is the nature of constitutional environmental rights as a new kind of right? Is it a pure moral or constitutional right? Or is it a positive social right? We can find out the dilemma of the right cognition from the 69 constitutional texts that establish the environmental rights. The constitutions of 22 countries explicitly declare environ-mental rights to be “basic rights”, the constitutions of 20 countries declare them to be “human rights” or “the rights of people and citizens”, while the constitutions of 11 countries classify them as “economic, social and cultural rights.”

 

How to understand the category of constitutional environmental rights? In my opinion, no matter what environmental rights are classified as, there is a basic criteri-on that all rights that cannot be called for relief should be classified as moral or oblig-atory human rights. If this criterion is used to determine the nature of constitutional environmental rights, then should constitutions regard them as “basic rights”? The different categories of the constitutional environmental rights of all countries all give justiciability to them, for instance, of the 22 constitutions that have categorized envi-ronmental rights as “basic rights”, the Constitution of Azerbaijan provides for the sua-bility of rights; of the 11 constitutions that attribute environmental rights to “economic, social and cultural rights”, the constitutions of Bolivia and Slovenia set forth the claimability of rights; and of the 15 constitutions that attribute environmental rights to “the rights of persons and citizens or nationals”, 4 states, including Belarus, Kyr-gyzstan, Russia, and Ukraine set forth the suability of rights; of the six constitutions that regard environmental rights as “rights and freedoms”, the Kenyan Constitution also provides for the suability of rights. Obviously, the category of the nature of con-stitutional environmental rights is not important and what is important is whether the rights can be remedied. According to the law of “no remedy, no right”, the rights with no enforceable remedy for violations are not real rights, but can only be classified as “moral rights” or an “obligatory human rights.” This kind of obligatory right needs a country to carry out concrete implementation according to its own development stage and system design, otherwise it will stranded on the moral level.

 

According to the attributes of basic rights, “inherent rights as a human being” belong to the individual’s rights enjoyed by citizens, the defensive rights against the state. Its main functions include an individual’s resistance to the state and the obtain-ment to remedies through certain channels.¹⁴ Zhang Xiang said: “basic rights are seen as individual’s claims or assertions made in response to a State’s actions, and they have restrictions on the scope and means of national activities.” In China, “according to the constitutional provisions and the status of basic rights in the legal system, basic rights should be mainly against the State, with State as the subject of duty.”¹⁵ If the constitutional environmental rights are analyzed in accordance with the above-men-tioned characteristics of the basic rights, they cannot be included in “basic rights

 

“even as” basic rights. “The subjects of the constitutional environmental rights are not just individuals but also all things influenced by the “environment,” such as legal persons, human beings, countries, even animals and plants. The environmental rights go against all actions that infringes on the “environment”, while the state is only an “indirect” offender, through its omission or misconduct in relation to the deterioration or damage to the environment.

 

In addition, the majority of countries that attribute environmental rights to “basic rights” provide no judicial remedy for the violation of environmental rights. Although some scholars, such as Tim Hayward, have tried hard to demonstrate the constitution-al status of constitutional environmental rights as “basic rights,”¹⁶ in the author’s view, such efforts may not succeed because of their incommensurability with basic rights. In other words, even though “environmental rights” can be raised to the level of “basic rights” in a constitution that cannot eliminate the theoretical and practical difficulties faced by constitutional environmental rights.

 

Economic, social and cultural rights belong to second generation human rights with a positive nature. Such rights impose on states or governments an obligation to act proactively to guarantee that citizens can live and work in conditions consistent with a basic level of human dignity. What they need is not the state’s restraints or non-intervention but active intervention and actions. Therefore, the economic, social and cultural rights, including the right to subsistence, social security, education and environment, are not legally admissible objects and can only be gradually realized in accordance with the economic and social development of a country. The duty pro-vided by the Universal Declaration of Human Rights for the fulfillment of economic and social rights to all countries is ethical, and even Article 2 of the International Covenant on Economic, Social and Cultural Rights merely requires states to take steps or methods to gradually reach the full realization of the rights recognized in the provisions. Such provisions stipulate no legal effect, but a moral and ethical duty which should be performed in good faith. Some foreign scholars believe that civil and political rights are regarded as “absolute” and “immediate”, while economic, social and cultural rights are regarded as programmatic and gradual and therefore they are not the rights with a strict meaning. In addition, civil and political rights are “referable”, so courts and similar jurisdictions can apply them effortlessly, while economic, social and cultural rights are more politically oriented.¹⁷ Therefore, the suitability of constitu-tional environmental rights being considered social rights is also facing difficulties.

 

However, from the above-mentioned suitability analysis on the constitutional provisions of environmental rights of relevant countries, the relief is not constitu-tional, but legal, in other words, the relief is stated legally in constitutional form. For example, Article 42 of the Constitution of the Russian Federation states: everyone has “the right to claim compensation for the loss of his or her health or property caused by the implementation of ecological violations”. Then who is the subject of “implementing ecological violations”? Not the state or government, but legal persons or individuals.Such environmental litigation against legal persons or individuals can only be a gen-eral lawsuit. Similarly, Article 39 of the Constitution of Azerbaijan states: “Everyone has the right to compensation for the loss of his or her health and property caused by the implementation of ecological violations”; Article 46 of the Belarusian Constitution stipulates: “(Everyone) is entitled to compensation if such the right is infringed and a loss is caused”; Article 48 of the Kyrgyz Constitution states: “Everyone has a right to demand compensation for damages to their health or property for the use of nature”, and Article 50 of the Ukrainian Constitution states: “Everyone has a right to claim compensation for damages caused by the violation of environmental rights; among others. In these provisions, the subjects of environmental violations are also legal persons or individuals. Article 72 of the Slovenian Constitution stipulates straightfor-wardly the subjects of environmental violations as “individuals,” namely, “individuals injury to the environment must be compensated when the extent and circumstances are in line with the law.” As a result, there is a puzzling question. Even if the constitu-tional environmental rights are legally appealable, the relief is mostly legal rather than constitutional. Constitutional remedies should be aimed at the legislative infringement of the state or government concerned. If the remedy can be realized through legal means such as civil, administrative or criminal means, it must be legal. Unless all le-gal methods are unable to obtain relief, constitutional remedies will come into play.

 

Therefore, judging from the nature of the remedies provided by constitutions, it cannot be generally assumed that all the constitutional remedies must be constitution-al. Although legal and constitutional remedies guarantee the same legal benefits, their subjects of duty are different, with the former referring to non -state institutions or individuals, and the latter referring to a state’s legislative acts. In this sense, no matter what type of constitutional environmental rights are assigned, as long as there is legal remedy, there is an actual right of prosecution.

 

 

The purpose of incorporating environmental rights into a constitution is to im-plement these rights. However, once the constitutional environmental rights enter the implementation stage, they will inevitably encounter the dilemma of conceptual inter-pretation, judicial remedy and accountability.

 

 

From the perspective of semantic hermeneutics, the substantive constitutional environmental rights, which cannot be clearly defined through semantic interpreta-tion, have a high degree of ambiguity and uncertainty. For example, the constitutions of various countries establish environmental criteria for their standards with such de-scriptive words as “good”, “healthy”, “clean”, “clean and hygienic”, “suitable”, “suit-able for human development”, “harmonious”, “sustainable”, “humanistic” and so on. All of these words are and ambiguous. How to define their standards? What kind of environment is “good”? What standards should be adopted? Are any other substantive concepts faced with this dilemma of interpretation? It is therefore extremely difficult

 

to make a clear and unambiguous explanation of what such rights are. The emergence of such a situation will be inherently cumbersome in the practical application of envi-ronmental rights because of the potential ambiguity of the concept and the uncertainty of their content.¹⁸ If the constitutional concept of substantive environmental rights“ is too ambiguous to be clearly and accurately expressed, it is not possible to be used as a guide in choosing the proper implementation strategy, let alone in stating a specific result in an enforcement dispute.”¹⁹

 

 

After environmental rights have been violated, who is the subject with the right to claim? From the nine countries that stipulate the suability of environmental rights constitutionally, the subject of initiating legal proceedings or remedies is “every one” or “everyone”. In addition, Bolivia’s Constitution also treats any “group” as the sub-ject of legal proceedings. Stakeholders subject to environmental violations are often not single or several people, but a group of people, including both contemporary and future generations; from the scope of the victims, they can be a village, a region, a city, a province, several cities and provinces or even a country. In the case that there is more than one stakeholder, “everyone” stipulated in a constitution is the subject of legal remedies, but ultimately, “everyone” may not be the subject of legal reme-dies. Such a situation can be illustrated by the practice of environmental protection in China. Statistics show that “there were about 53 litigations on environmental public interests from 2000 to 2013. The vast majority of plaintiffs have been administrative and procuratorial organs, and few litigations were filed by environmental groups.”²⁰ To date, no individual has filed an environmental lawsuit. The main reason is that the environmental rights and interests belong to public interests. Although they are related to the immediate interests of every individual, it is difficult for “individuals” to obtain the concrete evidence of environmental infringements. Another reason is the insti-tutional failure to grant individuals the qualification to file environmental litigation. Article 58 of the Environmental Protection Law amended in 2014 in China regards the “social organization” as the subject to initiate litigation to actions that pollute the environment, destroy the ecology, and harm the public interests of society. But not all social organizations have litigating qualifications. A qualified organization has to sat-isfy two conditions: It is registered with the Civil Affairs Department of the people’s government at or above the municipal level according to the law; and it has special-ized in public activities for environmental protection for more than five consecutive years without any illegal record. Only social organizations meeting the above require-ments can file a lawsuit in a people’s court. The litigating status of social organiza-tions is also confirmed by the Civil Procedure Law ²¹ and the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Environmental Public-interest Litigation Cases.²² In addition, according to the Deci-sion of Authorizing the Supreme People’s Procuratorate to Conduct Pilot Public-in-terest Litigation in Some Areas in July 2015 the Standing Committee of the National People’s Congress, stipulates that prosecutors at all levels are also the subjects of en-vironmental public-interest litigation.²³ According to Article 57 of the Environmental Protection Law, when discovering that any group or individual is polluting the envi-ronment or damaging the ecology, citizens enjoy the right of inspection to report to the departments in charge of environmental protection or other departments that have the responsibility of supervision and administration of environmental protection. Whether this kind of institutional arrangements with exclusion of individuals’ litigation is ap-propriate will not be commented on, abut it highlights the complexity of the subject of environmental rights relief.

 

 

These two specific dilemmas were proposed by Hayward. In his view, when environmental lawsuits enter court, it is obviously difficult to identify the causal re-lationship and legal liability for environmental disruption. In determining the causal relationship of environmental damage, the burden of proof will be borne by the plain-tiff, who must prove that harm or damage would not have taken place without the acts of the accused. If there is a variety of reasons and multiple interpretations of the injury, the test will fail. For example, in litigation of environmental pollution caused by chemicals, radiation, electromagnetic fields, or other elements, the main difficulty is to prove that the harm is caused by a specific pollutant. The situation is especially difficult when a patient’s disease is because of the accumulated effects over a long period. As for the dilemma of tracing accountability, if some industries in jurisdiction are subject to statutory regulations, it is easy to trace the legal liability for enterprises polluting the environment, and if not, it is difficult to trace the accountability.²⁴

 

(Translated by HAN Feng)

*Fan Jinxue ( 范进学 ), Professor and Doctoral tutor at the KoGuan School of Law of Shanghai Jiaotong University and doctor of law. This article is one of the phased achievements of the project “Rights and Politics” (Project No.12JJD820001), a major project of the Humanities and Social Sciences Base of the Ministry of Education.
 
1.      The textual investigation of the constitutions in this article uses the four volumes of Constitutions of the World (Beijing: China Procuratorial Press, 2012) as a blueprint, which are compiled by the Editorial Committee of Constitutions of the World with constitutions of 193 countries.
 
2.      Tim Hayward, Constitutional Environmental Rights, trans. Zhou Shangjun and Yang Tianjiang, (Beijing, Law Press, 2014), 2.
 
3.      In 1966, the United Nations General Assembly debated the issue of the human environment for the first time. In March 1970, the International Scientific Council for Social Sciences held an International Symposium on Pollution in Tokyo, Japan, which was firstly proposed the concept of environmental rights. After the meeting, the Tokyo Declaration was published, which advocated that “everyone shall enjoy the environmental rights that their health, welfare and so on should be intact” be a basic human right in the legal system. The concept of environmental rights was first included in the Declaration on the Human Environment adopted by the UN Conference on the Human Environment in Stockholm in 1972. See Hisashi Kouketsu et al., An Introduction to Japan’s Environmental Law, trans. Tian Lin and Ding Qianwen, (Beijing, China Legal Publishing House 2014), 149. In 1986, the Panel of Legal Experts of the World Commission on the Environment and Development published its Report on General Principles on the Natural Environment and Environmental Conflicts, which stated that “Everyone has the environmental rights to guarantee their adequate health and well-being”; in 1989, the United Nations Environmental Conference drafted the Hague Declaration; in 1992, the Rio Declaration on the Environment and Development was adopted by the United Nations Conference on Environment and Development in Rio de Janeiro. At this point, environmental rights had stepped on the stage of history as a new type of right. See Hou Huaixia, On the Environmental Right and Its Relief Issues in Private Laws, (Shanghai, Fudan University Press, 2011), 16-17.
 
4.      On March 4, 2013, 11 members of the CPPCC National Committee, including Li Pengde put forward a Proposal on Ecological Civilization Construction and the Incorporation of Environmental Right into Constitution to the First Session of the 12th CPPCC National Committee; on March 6, 2013, the Ecological Civilization Construction and the Incorporation of Environmental Right into Constitution, Procuratorial Daily; on November 12, 2015, Experts’ Suggest the Incorporation of Environmental Right into Constitution, Legal Evening Newspaper; Geng Zhixu, “On the Incorporation of Civic Environmental Right into the Constitution”(Master The-sis, Hehai University, 2004); Wu Weixing, “An Empirical Study on the Incorporation of Environmental Right into the Constitution”, The Law Review 1 (2008); Wang Bin, “The Necessity of the Incorporation of Environmental Right into the Constitution”, Shandong Social Sciences 1 (2008); Zhang Yisu and Chen Qiwei, “The Constitutional Framework of China’s Environmental Rights”, Law Forum 4 (2008); Zhang Shuxing et al., “The Legal Thinking on the Incorporation of Civic Environmental Right into the Constitution”, Journal of Kunming University of Science and Technology 2 (2009); Chen Baili and Yu Jun, “The Contextual Change of Rights and Its Impact on the Incorporation of Environmental Right into the Constitution”, Legal Science 6 (2009).
 
5.      Hisashi Kouketsu et al., An Introduction to Japan’s Environmental Law, trans. Tian Lin and Ding Qianwen, (Beijing, China Legal Publishing House 2014), 9.
 
6.      Article 2 of China’s Environmental Protection Law stipulates that the “environment” mentioned in this Law means the totality of natural and man-made natural factors that affect the survival and development of man-kind, including the atmosphere, water, oceans, land, minerals, forests, grasslands, wetlands, wildlife, natural monuments, cultural relics, nature reserves, scenic spots, cities and villages.
 
7.      Tim Hayward, Constitutional Environmental Rights, 3.
 
8.      Procedural environmental rights also include environmental participation, supervision and decision-making. Article 1 of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, adopted by the Economic Commission for Europe in 1998, pro-vides that “to promote the protection that all people in the present and future have the right to an environment suitable for his or her health and well-being, each Party shall guarantee the right to access to information, public participation in decision-making and access to justice in accordance with the provisions of this Conven-tion.” Article 53 of China’s Environmental Protection Law also establishes procedural environmental rights, which stipulates: “Citizens, legal persons and other organizations shall have the right to obtain environmental information, participate in and supervise environmental protection according to law”.
 
9.      The Benin Constitution lists environmental rights as “people’s rights”.
 
10.   The Spanish Constitution lists environmental rights as “basic rights”, which are not included among “the rights of citizens”, but the governmental principles of economic and social policies requiring the recognition, respect and protection of authorities.
 
11.   Marx and Engels, Selected Works of Marx and Engels, vol. 2 (Beijing: People’s Publishing House, 1995), 610.
12.   Paine, Paean Anthology, trans. Ma Qinghuai, etc., (Beijing: Commercial Press, 1981), 186.
 
13.   Ronald Dworkin, Taking Rights Seriously, trans. Xin Chunying and Wu Yuzhang (Beijing: China Encyclope-dia Press, 1998), 41.
 
14.   Compilation group of Constitutional Law, Constitutional Law (key teaching materials of Marxist theory re-search and construction) (Beijing: Higher Education Press, People’s Publishing House, 2011), 196-197.
 
15.   Zhang Xiang, Normative Construction on Basic Rights (Beijing: Higher Education Press, 2008), 21- 34.
 
16.   Tim Hayward, Constitutional Environmental Rights, 57.
 
17.   Eld, Economic, Social and Cultural Rights, trans. Huang lie (Beijing: China Social Sciences Press, 2003), 10.
 
18.   Ibid., 349.
 
19.   Tim Hayward, Constitutional Environmental Rights, 69-70.
 
20.   Ye Lengfeng, “Why Does Environmental Public-interest Litigation ‘Encounter the Cold’,” Guangming Daily, January 24, 2017.
 
21.   Article 55 of China’s Civil Procedure Law stipulates: “For acts that pollute the environment and infringe on public interests such as the legitimate rights of many consumers, the organs required by law and relevant organizations may institute legal proceedings in the people’s courts”.
 
22.   Article 1 of this judicial interpretation stipulates that the organs required by law and relevant organizations shall, in accordance with the provisions of Article 55 of the Civil Procedure Law and Article 58 of the Environmental Protection Law, initiate litigations to acts that pollute the environment and damage the ecology. These acts may have already infringed upon the public interests or have a high risk to detrimentally effect the public interests. Litigations in accordance with Paragraphs 2, 3 and 4 of Article 119 of the Civil Procedure Law should be accepted by the people’s court.
 
23.   According to the provisions of the Plan for Procuratorates to Conduct Pilot Public Litigations, if procuratorates find behaviors that undermine public interests, such as polluting the environment or infringing upon the legitimate rights and interests of many consumers in food and drug safety when fulfilling their duties, they can file a civil public-interest lawsuit even in the cases that there is no eligible subject and that the eligible subject choose not to file a litigation.
 
24.   Tim Hayward, Constitutional Environmental Rights, 75-80.