HU Jing*

 

Abstract: Environmental rights in the early days, as a product of the combination of environmental crises and the ideas of human rights, had a tendency toward being considered absolute. Absolute environmental rights are of enlightening significance in the context of “existing problems in the absence of a system.” However, absolute environmental rights only consider environmental protection while excluding social and economic interests, and therefore cannot be exercised in legal practice. Legal practice now recognizes relative environmental rights that coordinate environmental protection and social and economic development. Given the ambiguous content of environmental rights, it is inappropriate to use external restrictions, and only internal restrictions can be applied. The content of environmental rights should be changed to take into account social and economic factors, and the inevitable result of the change is the shift from absolute environmental rights to relative environmental rights. The legislative purpose of environmental laws in various countries is the dualism of purpose that coordinates environmental protection with social and economic development. The dualism of purpose dovetails with relative environmental rights, and environmental rights should be positioned as purposive environmental rights in environmental law.

 

Keywords: human rights · absolute environmental rights · relative environmental rights · dualism of purpose · purposive environmental rights 

 

Environmental rights are dealt with in a separate chapter independent of economic, social and cultural rights under the Human Rights Action Plan of China (2021-2025).¹ The increased status of environmental rights in China’s human rights system underscores the positive significance of preserving the concept of environmental rights in environmental law and highlights the necessity of pondering on the relationship between environmental rights and the law. Many scholars have made valuable explorations of how to situate environmental rights in the law, but absolute environmental rights and relative environmental rights are rarely studied. No paper that meets the search conditions was obtained on China National Knowledge Infrastructure (CNKI) when “relative environmental rights” or “absolute environmental rights” are used as keywords and title names to search academic journals. A full-text search using the “relative environmental rights” produced seven papers; and the keywords “absolute environmental rights” produced 11 papers. In addition to the scarcity of papers, there is no systematic review and analysis of the connotations of environmental rights from the perspectives of absolute environmental rights and relative environmental rights. As a result, the academic circle lacks a comprehensive and in-depth understanding of the role of environmental rights in the law on the environment. To begin with, this paper expounds on the background and causes of the emergence of absolute environmental rights as well as its weaknesses, points out the general adoption of relative environmental rights in legal practice, and analyzes the necessity of absolute environmental rights being replaced by relative environmental rights. Then, the paper demonstrates the correspondence between the dualism of the purpose of environmental law and relative environmental rights. It leads to the conclusion that the appropriate positioning of environmental rights in environmental law is purposive environmental rights. 

 

 

A. Environmental rights are the product of the combination of environmental crises and the ideas of human rights

Environmental rights were first discussed in the 1960s. In 1960, a physician from the Federal Republic of Germany lodged a complaint with the European Commission of Human Rights on the dumping of radioactive waste into the North Sea, arguing that this act violated the fundamental human rights of citizens. The Commission dismissed the complaint on the grounds that the European Convention on Human Rights did not stipulate a clean and healthy environment. Thereafter, proposals to retroactively include environmental rights on the list of human rights under the European Convention on Human Rights were not approved at European Environmental Protection Conferences, European Meeting of Ministers on the Environment and other European conferences.²

 

In the early 1970s, Nobel Peace Prize winner René Cassin, a well-known international law scholar, submitted to the Hague Academy a report on the inclusion of the right to a healthy and elegant environment into the existing human rights principles. In 1971, the European Conference on Human Rights regarded the right of individuals to live in a clean environment as a theme. In 1973, the European Draft on Human Rights in Natural Resources was developed at the European Conference of Ministers of the Environment held in Vienna, advocating environmental rights as a new human right and its inclusion in the Universal Declaration of Human Rights.³

 

In 1967, the Japan Federation of Bar Associations published a White Paper on Human Rights, decrying “public hazards as a violation of human rights.” As a result, there was a strong plea for the adoption of laws to stipulate the rights of countries, groups and individuals in the use of the environment and their obligations to protect the environment.⁴ In March 1970, the Tokyo Declaration⁵ was issued at the International Symposium on Public Hazards held in Tokyo, Japan, in which 42 social scientists, etc. from 13 countries participated. It was stated that “the right of everyone to enjoy the environmental rights whereby elements such as their health and well-being are not harmed as well as the heritage bequeathed by the present generation to future generations shall be a right to natural resources with natural beauty, and be enshrined in the legal system as a basic human right.”⁶

 

The introduction of environmental rights is closely associated with the environmental crisis confronted by mankind as well as the development of the human rights ideas, and is also the result of the adoption of a human rights approach to environmental protection. 

 

 

The theory of absolute environmental rights was advanced in Japan in 1970. Absolute environmental rights refer to the right of citizens to enjoy a good environment that takes precedence over the economic and social values of the environment and excludes the balance of interests. Japan was previously a major producer of public hazards. In the 1970s, the theory of absolute environmental rights held sway in Japan, which was the result of excessively rectifying the neglect of environmental protection at that time. Japan’s Disaster Countermeasures Basic Act in 1967 stipulates “the protection of the health of the people and the maintenance of the living environment” in the legislative purpose, and also stipulates that “the living environment shall be protected in coordination with the sound development of the economy.” The public and academic circles believe that the content of balancing environmental protection and the sound development of the economy in the legislative purpose was influenced by the financial and industrial circles. It shows the idea of industrial priority, the correction of which led to Japan’s environmental protection swinging from the extreme of industrial priority to the extreme of the absolute priority of the environment.⁷

 

In September 1970, two lawyers, Nito ichi and Ikeo Takayoshi delivered a report entitled “The Jurisprudence of Environmental Rights” at the Japan Federation of Bar Associations’ Human Rights Advocacy Conference. This report advocated referring to various rights related to the environment as “environmental rights,”⁸ advanced the theory of absolute environmental rights, and claimed that environmental rights have absolute precedence over other factors. Moreover, environmental rights should exist as a specific right to claim in litigation, the core of which is that changes to the environment must be subject to the consent of all inhabitants.⁹ Nito ichi and Ikeo Takayoshi expounded on the connotation of environmental rights: Citizens have the right to govern the environment and enjoy a good environment. Based on this right, citizens have the right to claim the exclusion or prevention of acts that contaminate the environment or that are interfering with or will interfere with the comfortable life of citizens. Environmental rights in this sense cover the domination of a certain environment.¹⁰ Under the idea of absolute environmental rights, each inhabitant, from the perspective of environmental protection, has the supreme right to initiate legal proceedings and stop by means of court ruling any act that leads to environmental pollution and destruction, such as the siting and operation of factories, coastal landfills, and the construction of housing land.¹¹ In the eyes of the advocates of absolute environmental rights, environmental rights are a substantive right¹² with a strong nature of property rights. They only see the environmental value of the environment, but ignore its economic and social value, and refuse to balance the many values. 

 

The proposal of the “theory of absolute environmental rights” was actually subject to a special historical background at the time. Environmentalists tended to take radical positions in the 1960s and 1970s when environmental problems were prominent but there was a lack of political and legal countermeasure. During that period, the severity of environmental problems was fully exposed and attention was paid to this issue, but the legal system for the environment had yet to be established despite the existing problems. People had a pervasive sense of insecurity and distrust of government and big business, and wanted to be protected through high-level and sacred rights. The trend of social movements was increasing, and people were prone to launch full mobilization because of certain demands. Without a deep understanding of the complexity of environmental problems and the difficulty of seeking countermeasures, the easiest solution is to establish legal rights.¹³

 

The emergence of absolute environmental rights is also related to the characteristics of human rights. Human rights are a special right. The well-known Declaration of the Rights of Man and of the Citizen of 1789 refers to human rights as “natural, unalienable, and sacred rights.” Even the legislature and the constitutional bodies must not infringe these rights. This concept has a tendency toward absolutism of rights and antagonism towards the state.¹⁴ Human rights are needed only when domestic laws and practices cannot effectively protect human rights. If access to food, equal treatment or freedom of association were available through the judicial procedure, people would not make an issue of human rights. Human rights are essentially used by the oppressed or the disenfranchised to challenge or seek to change domestic political and legal practices, and provide moral standards for domestic political and legal changes.¹⁵ Therefore, whether from a historical or realistic viewpoint, human rights are targeted at the state. Human rights mean asserting certain demands on the state. 

 

Through the above analysis, it is easy to see that environmental rights in the early days, as a product of the combination of environmental protection and the ideas of human rights, had a tendency toward being absolute. The practice of combining the statements on the environment and human rights is enlightening. Instead of following an objective or value-neutral path, it focuses on the demonstration of a special interest that serves the special interests at the expense of other interests.¹⁶ Some scholars have pointed out that environmental rights are the product of the environmental rule of law in the budding stage. As an instinctive reaction of the rights culture to environmental crises, environmental rights are virtual rights.¹⁷ When an environmental problem occurs, environmental rights become theoretical weapons for political mobilization to seek legal changes, and serve as enlightening concepts and ideas. Absolute environmental rights can be regarded as a political offer, but this offer is greatly compromised in legal practice. 

 

 

The theory of absolute environmental rights has been opposed by some scholars from the beginning. These scholars believe that if the absolute power of environmental rights is granted, the court will rule to end all acts in the operations or construction that constitute the causes of environmental degradation according to a lawsuit filed by the residents of the local region, and there is a risk that the industry will come to an end. In this case, the right to live a culturally advanced life, which is included in the right to the pursuit of happiness as stipulated in Article 13 of the Constitution of Japan, is threatened by environmental rights.¹⁸ If the environment is regarded as being supreme, the exploitation of resources, acts of production, and the development of civilization that mankind has conducted so far will be fully negated in the name of environmental destruction, which is not rational.¹⁹

 

According to Nomura Yoshihiro, a Japanese scholar, the concept of environmental rights per se implies that one can claim damages and cessation of infringement for the slightest infringement on environmental rights, which carries the risk of being excessively absolute. He advocated that in order to avoid conceptual law and deductive discussions, it is necessary to weigh specific interests and consider the appropriate degree of protection. He advocated that instead of using the “environmental rights” or “sunshine right,” the wording of sunshine interests should be used, and infringement should be constituted only when it goes beyond what is tolerable. Harada Naohiko, Awaji Takehisa, and Kato Ichiro also pointedly identified the problems of environmental rights.²⁰ Apparently, Nomura Yoshihiro is even concerned that the concept of the right leads to an understanding of absolute right, and advocates that interests should replace rights. He has insightfully pointed out that the essence of environmental rights is interests rather than rights, because he sees the relativity and inclusiveness of interests. 

 

In fact, the Japanese theory of environmental rights is generally questioned and rejected in legislative, judicial, and environmental administrative practices.²¹ Because absolute environmental rights exclude weighing the pros and cons and overemphasize the value of protecting the environment, it is fundamentally flawed, and can only serve as a transitional idea²². This transitional nature is manifested in its transition into relative environmental rights. 

 

 

Corresponding to the theory of absolute environmental rights, the theory of relative environmental rights holds that changes in the environment bring both harm and benefits, a comprehensive evaluation should be made, and it is inadvisable to see only the harm caused by acts of changing the environment. People have diverse needs, not only environmental needs, but also economic, cultural and other needs, particularly economic needs. Economic needs are met primarily through the exploitation and utilization of natural resources as well as production activities. Therefore, the conflict between economic development and environmental protection is inevitable. Economic development and environmental protection should be balanced to obtain the greatest comprehensive benefits, and this naturally leads to some losses in environmental benefits. Whether in theory or in practice, the theory of relative environmental rights is more reasonable and realistic.²³

 

 

Environmental rights are not widely recognized in terms of international laws. Environmental rights are not included in any global conventions on human rights, except for two regional legal instruments. Article 24 of the African Charter on Human and Peoples’ Rights of 1981 provides that: “All peoples shall have the right to a general satisfactory environment favorable to their development.” Article 12 of the Additional Protocol to the American Convention on Human Rights of 1988 provides that: “Everyone shall have the right to live in a pollution-free environment and to benefit from urban infrastructure services, in particular safe water supply and pollution treatment facilities.”²⁴

 

Environmental rights are somewhat recognized in the so-called international “soft law”, that is, documents that are not legally binding. The Declaration of the United Nations Conference on the Human Environment adopted at the United Nations Conference on the Human Environment held in Stockholm in 1972 recognized environmental rights for the first time. Principle I of the Declaration emphasizes that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” However, after the adoption of the Declaration, Principle I, like most other parts of this Declaration, was not construed to reflect customary law. In discussing the outcomes of this Declaration, the United Nations General Assembly did not recognize that the rights stipulated in Principle I reflected international law, nor proclaimed such a right. In contrast, the United Nations General Assembly stated on the same day that Principles XXI and XXII stipulate “the basic rules governing the (international law of) this matter” It can be seen that the earliest international documents on environmental law that stipulated environmental rights also have reservations. Principle I of the Rio Declaration on Environment and Development of 1992 makes the following provisions: “Human beings are entitled to a healthy and productive life in harmony with nature.” Compared to the Declaration of the United Nations Conference on the Human Environment, it emphasizes productive life. From a human rights standpoint, this statement is in fact a retrograde step for the development of the Declaration of the United Nations Conference on the Human Environment. Such a declaration is not a legally binding document in form and does not create a new legal right.²⁵ This means that the international community’s understanding of environmental rights has become more realistic after two decades. 

 

 

All countries regard the “environment” as the object of environmental rights, the object to which environmental rights point is the environment. The summary of the content of the rights is not exactly the same. The constitutions of various countries sum up such an environment as “a good environment”, “healthy and good environment”, “balanced and healthy environment”, “healthy environment”, “environment suitable for human development”, “clean and hygienic environment”, “healthy and pollution-free environment”, “healthy, comfortable and sustainable environment”, “healthy environment featuring sustainable development as well as balance and respect”, “harmonious environment”, “healthy and happy environment”, “clean environment”, “clean, healthy and ecologically balanced environment”, “culturally advanced living environment”, “clean and hygienic environment”, “comfortable environment”, “environment suitable for survival”, “healthy, protected and harmonious environment”, “healthy, ecologically balanced and suitable environment”, and “pollution-free environment”. The requirements for substantive environmental rights can basically be summarized as a “good” and “healthy” environment.²⁶ Article 110b of the Constitution of the Kingdom of Norway for example stipulates: “Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained.”²⁷ This provision directly states the requirements of production in the concept of environmental rights. 

 

Some constitutional provisions on environmental rights include provisions on the use of legislation to define the content of environmental rights. Article 35, Paragraph 2 of the Constitution of the Republic of Korea, for instance, stipulates that “The content and exercise of environmental laws shall be prescribed by law. Article 35, paragraph 2, of the Constitution of Romania stipulates that “The State shall provide legislative guarantee for the exercise [of environmental rights]”²⁸. Article 24 of the Constitution of South Africa also provides that the environment shall be protected for the benefit of present and future generations by taking appropriate legislative and other measures. 

 

The constitutional provisions on environmental rights in various countries attach many modifiers to the environment, and some constitutional provisions on environmental rights also stipulate the definition of environmental rights through legislation. This undoubtedly makes possible the balance of interests, with the idea to recognize relative environmental rights. 

 

 

In terms of domestic law, many countries include environmental rights in their constitution, but only a few recognize the justiciability of environmental rights.²⁹ An analysis of written judgments on cases of environmental rights litigation in some countries shows that judges adopt relative environmental rights instead of absolute environmental rights. Judges interpret environmental rights in conjunction with economic and social factors, diluting or making relative environmental rights through coordinating environmental rights and related rights. 

 

 

(1) South Africa

 

Article 24 of the Constitution of South Africa provides that everyone has the right — a: to an environment that is not harmful to their health or well-being; and b: to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that i. prevent pollution and ecological degradation; ii. promote conservation; and iii. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.³⁰

 

The case of BP Southern Africa (Pty) Ltd. v. MEC for Agriculture, Conservation and Land Affairs³¹ is a litigation case in which the administrative authority refused the applicant’s application to build a gas station on their own land. The refusal by the administrative authority was mainly based on environmental concerns. The applicant claimed that it was rejected not because the gas station posed a danger to the environment, but because there were two other gas stations three kilometers away from the applicant’s location, and that the administrative authority believed that too many gas stations would impose greater competition on the existing gas stations. In the view of the judge, environmental rights should be interpreted under the conditions of intergenerational environmental protection and sustainable development, and the understanding of the positive obligations of the state based on environmental rights should take account of environmental as well as economic and social factors.³² This case confirmed that the principle of integration among environmental protection, economic development and social needs constitutes the core content of sustainable development. According to this court, the broad definition of “environment” contains all the conditions and factors that influence people’s lives and habits, including social and economic conditions as well as factors. Regarding the state obligations under article 24 (b), the court held that the administrative body is obliged to develop comprehensive environmental management plans, and take into account various factors, including international treaties and approaches based on the broadly defined “environment” in the Environmental Protection Act, particularly social and economic conditions.³³

 

Social and economic considerations for sustainable development were explained convincingly in more detail in subsequent constitutional rulings. In the case of Fuel Retailers Association of Southern Africa v. Director General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province,³⁴ the act of the administrative body issuing environmental permits for the construction of gas stations was challenged. The applicant argued that the administrative body did not take account of the social and economic impact. The court emphasized the interrelation of environmental, economic and social factors in sustainable development, and further stated that the Constitution provides that the need for environmental protection should be considered in the course of economic and social development. In accordance with the Constitution, environmental factors should be balanced by the concept of sustainable development as well as social and economic factors. The court made it clear that the routine competition between economic-social development and environmental protection should be taken into account as we pursue sustainable development.³⁵ Regarding article 24 of the Constitution, the court upheld that economic and social development must be coordinated with environmental protection.³⁶

 

(2) The United States

 

Article 1, paragraph 27, of the Constitution of the State of Pennsylvania provides that “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” While efforts to seek indictable environmental rights at the federal level have failed in the US, there are successful cases in this state. In the case of Payne v. Kassab (361 A. 2d 263, 273, Pa. 1976), for example, the State of Pennsylvania decided to widen the roads, but road widening would result in a reduction in the size of common space, tree felling and the reduction of footpaths in an area of historic value. The affected citizens requested the court for an injunction to stop this act. The court refused to construe Article 1, paragraph 27, of the Constitution as banning any damage to the environment. It believed that this article allowed for the normal exploitation of state property, and applied the concept of public trust to the administration of the state’s public natural resources at the constitutional level, arguing that restricted exploitation was preferable to lack of exploitation. The Court held that the purpose of paragraph 27 was to strike a balance between realistic environmental and social concerns. To this end, the court performed the following three balance tests to determine whether environmental risks are outweighed by the exploitation benefits: (1) whether it complies with all currently effective state statutes and regulations governing the conservation of public natural resources; (2) whether the record shows that reasonable efforts have been made to minimize damage to the environment; (3) whether the environmental harm caused by the challenged decision or act clearly outweighs the benefits, thus constituting an abuse of discretionary power.³⁷ It can be seen that the balancing of interests is still the crux of the matter. 

 

 

Section 36(2) of the Constitution of South Africa provides that rights should be prescribed by other constitutional provisions. In the case of In Re Kranspoort Community,³⁸ Kranspoort Community requested the restitution of land rights on the grounds of Article 35 of the Restitution of Land Rights Act relating to property rights. On the grounds of environmental protection, opponents argued that this area is environmentally sensitive, that the state of use at the time is conducive to environmental protection, and that the restitution of land rights would harm the sustainable management of farms from an environmental perspective. The focus of dispute in the case is whether environmental factors could confront property rights set forth in Article 35 of the Restitution of Land Rights Act. The court with extensive discretionary power can take account of many factors, including the feasibility of restitution. Although the concept of feasibility is not defined in the Restitution of Land Rights Act, the Court held the view that the considerations for whether the restitution of land rights is possible and feasible include the characteristics of the land and the surrounding environment during the period of forcible occupation of real estate, the characteristics of land use by the land rights holder during the period of forcible occupation of real estate, the changes in the land and surrounding areas since the forcible occupation of land, the external and internal defects of the land, local official plans for land use, general characteristics of the intended use of the land by the rights holder, and so on. 

 

Regarding the first consideration, the Court recognized that the area was environmentally sensitive and that the state of land use at that time was beneficial to environmental protection. The Court also held that restitution of land rights is advisable if, from an environmental protection perspective, it does not harm sustainable farm management. The Court further noted that modern conservation methods are not intended to set environmental protection against communities and their activities, but to incorporate communities into the sustainable management of the environment, particularly as part of the historical sites of the local region. In accordance with Article 35 (2) (c) of the Restitution of Land Rights Act, in conjunction with Article 24 of the Constitution, the Court decided that the restituted land rights needed to be restricted to ensure the people’s equal access to the restituted property. In this regard, the Court considered the factor of sustainable development. In view of the risk of unsustainable depletion of renewable farm resources, the Court considered the capacity of young people in the community to have equal access to the restituted property in the future. The Court also considered intergenerational equity, arguing that intergenerational equity is one of the key components of sustainable development.³⁹

 

Environmental rights call for environmental protection, while other rights have other needs. Therefore, the balance among rights is essentially a balance between environmental interests and other interests. Environmental rights supported by legal practices are essentially relative environmental rights. Logically, relative environmental rights can be construed as the outcome of reconciliation between absolute environmental rights and other values and interests. This indicates that relative environmental rights contain other values or interests, and naturally reflect the inclusion of economic and social considerations as well as the de-purification of absolute environmental protection. 

 

 

 

The relationship between man and the environment is a relationship in which man utilizes the environment. The environment includes environmental elements such as the atmosphere, water, land, and oceans, as well as organisms that live in it. The resources by extension are roughly equivalent to the environment, both of which refer to certain natural existence or elements. When the same natural element is called the “environment,” its ecological function is emphasized. When it is called “a resource,” its economic function is emphasized. Natural elements serve the functions of environmental support and resource supply. The functions of environmental support are to provide clean air, clean water, beautiful landscape, etc.. The functions of resource supply are divided into the environmental capacity function such as disposing of polluting substances; material provision function such as providing minerals, timber, medicinal materials, food and other resource products; and material production function such as providing arable land, forest land, water areas, sea areas and other sites.⁴⁰ The environmental support function is in fact an ecological function, and the resource supply function is an economic one. 

 

If the rights discourse is used, rights that regard the environment as the object can be divided into the right to instinctive use and the right to exploitative use. The subject of the right to instinctive use is a natural person, and the object is the environment, but its content is an ecological benefit based on the ecological function of the environment. The subject of the right to exploitative use of the environment is mostly enterprises, and the object is also the environment. Its content is economic interests generated based on the economic functions, and its object can be embodied as natural resources and environmental capacity. The right to exploitative use of the environment is divided into the right to use natural resources and the right to use environmental capacity. The right to use natural resources includes land use rights, the right to use sea areas, aquaculture rights, fishing rights, mining rights, water extraction rights, etc. The right to use environmental capacity mainly refers to the right to discharge pollutants by means of environmental capacity.⁴¹ The right to instinctive use of the environment is actually the right to the environment. 

 

 

The object of the right to exploitative use can be visualized because the object is a corporeal thing or can be conceptually materialized. Natural elements such as land, mineral resources, and water areas are corporeal objects that can be disposed of or are exclusive. Although the environmental capacity is not a corporeal object, it can be determined by scientific calculations and its consumption can be monitored using the existing technologies, and therefore it can be disposed of. The right to exploitative use falls into the category of property rights. In contrast, it is difficult to visualize the object of environmental rights. It can be said to be a certain existence or effect composed of various natural elements that can be disposed of, such as land and water, as well as natural elements that cannot be disposed of, such as the atmosphere. You can enjoy this benefit when entering a certain area and the right is not exclusive. Environmental rights are realized by sharing.⁴² It is the power of the administrative organ to grant the right to exploitative use. Whether it is granted and its content are the result of the comprehensive consideration by the administrative body based on environmental and economic factors. 

 

Environmental rights are one of the multiple rights or interests that can be imposed on the same environment. The subject is citizens, and the rights are built on the ecological value of the environment, primarily with the goal of safeguarding health. The typical forms of rights based on the needs of economic and social development are the right to use natural resources and emission rights. Of course, use in some cases does not necessarily constitute rights, but may only exist in the form of interests. For example, the water environment serves multiple purposes such as agriculture, fishery, navigation, recreation, elimination of pollutants and ecological protection. Although the objects are the same, it serves different interests of different subjects, or the same interests of different subjects. The creation of different rights concerning the water environment is essentially the distribution of multiple purposes of the water environment among different subjects. The most important criterion for judging a good environment, which is the object of environmental rights, is the environmental quality standards, which reflect the level of economic and social development as well as the technological level of a country in a certain period. It is based on the universality of human health. Moreover, regional differences are special and dynamic. Therefore, the 

content of environmental rights is ambiguous.⁴³

 

 

The provisions of environmental rights do not include constitutive requirements and legal consequences. These are not rules and should be included in the scope of principles. Sieckmann, a German scholar, regards principles as “rational necessity” with purposive characters. Principles express an ideal state that should be achieved. However, in terms of the feasibility of the law, this ideal may not be fully achieved after being measured against other goals, but can only be realized in part.⁴⁴ The ideal state is bound to be compromised by the baptism of law, or tamed by the law. In theory, absolute environmental rights can be tamed in two ways: one is external restrictions. In other words, it retains the absolute environmental rights, keeps the content of environmental rights unchanged, and balances them externally with economic and social factors as well as other rights. The other is internal restrictions. In other words, economic and social factors and other rights are used to internally transform the content of environmental rights. The method of external restriction is more suitable for property rights. The object of property rights can be disposed of, the content is clear, and the right to possession, use, income, and disposal are unambiguous. Restrictions can be imposed externally without destroying the overall content of property rights. 

 

Since the content of environmental rights is ambiguous, it is bound to create a sense of chaos if external restrictions are imposed on them. However, this ambiguity is precisely suitable for imposing internal restrictions on environmental rights. At a time when the concept of environmental rights is widely accepted, it is appropriate to use internal restrictions to de-purify the ecological values based on health as emphasized by environmental rights, and to add social and economic value factors, so that the environmental quality status that satisfies environmental rights is the status after economic and social factors are softened or the environmental rights are balanced with other rights. When the content of environmental rights takes account of multiple values, the needs for economic and social development are intrinsic to environmental rights, which then become relative. From the perspective of restricting property rights based on environmental protection and other considerations, the socialization of property rights is manifested as a concession from the property rights. From the perspective of environmental rights, absolute environmental rights are the logical starting point, and environmental rights becoming relative is a compromise between environmental rights and property rights. It is also the result of the mutual coordination between environmental protection and economic and social development. It is a case of the two sides of the same coin. 

 

Although the object of the right to utilize natural resources or the emission right is also the environment, it is built on the economic value of the environment and is not an environmental right.⁴⁵ Environmental rights are established based on the ecological values of the environment centering on human health. The two share the same object, which is the environment. The environmental conditions that take into account the economic and social values of the environment are not as pure as the absolute environmental rights expect. Absolute environmental rights are the offer before relevant interests are balanced. Environmental rights can give appropriate weight to the competition between ecological values and other social values. The latter has an identity of rights, especially those related to economic development⁴⁶. It is more beneficial to retaining the concept of environmental rights by imposing internal restrictions on absolute environmental rights to tame absolute environmental rights into relative environmental rights, and transform the challengers into partners, and revolutionaries into integrators. It is a necessary choice to keep the concept of environmental rights on the legal level. Environmental rights as challengers or revolutionaries must be extreme, and perform a role in political games. Environmental rights as partners or integrators must be gentle and perform a role in legal adjustments. Absolute and relative environmental rights have their respective proper places. 

 

 

The exercise of basic rights cannot be separated from concrete laws, and basic rights are inevitably associated with concrete laws. This is essential for maintaining the unity of a country’s legal system and the order of law as integrity. The purpose of concrete laws best reflects the positioning of a concrete law in a country’s law currently in force and in the order of law as integrity. The German scholar Boeckenfoerde has divided the exercise of basic rights in the legal system into “interpretation” and “Konkretisierung”. According to this view, the force of constitutional environmental rights is divided into interpretative force and concretized force. Interpretative force is achieved through the interpretation of environmental rights by courts in lawsuits. The concretized force refers to authorizing the legislative body to exercise legislative autonomy to formulate the environmental legal system, and the environmental legislation should reflect the requirements of environmental rights.⁴⁷ The content of the constitution, of course, reflects the role of the constitution in influencing sector law. The constitution restricts the order of sector law.⁴⁸ From the perspective of the order of law as integrity represented by the constitution, the concretized force of environmental rights is mainly reflected through the environmental law as a sectoral law, and environmental rights should correspond to the legislative purpose of environmental law. However, we need to verify it through empirical analysis. 

 

The content of legislative purpose can be summarized into two categories: First, value purpose, which characterizes the concept and basic values of legislation. It is usually expressed in abstract language, without involving specific requirements. Second, instrumental purpose, which is usually expressed in explicit language, involves specific requirements.⁴⁹ The instrumental purpose is guidelines for specific system design, but is means of value purpose. The legislative purpose referred to herein is limited to value purpose. 

 

 

Section 1 of the United States National Environmental Policy Act of 1969 defines the purposes of the Act as: “encourage productive and enjoyable harmony between man and his environment; promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man”. Canadian Environmental Protection Act of 1999 states: “An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.” The preamble provides: “Whereas the Government of Canada seeks to achieve sustainable development that is based on an ecologically efficient use of natural, social and economic resources and acknowledges the need to integrate environmental, economic and social factors in the making of all decisions by government and private entities.” The legislative purpose of the Federal Law on Environmental Protection of Russia stipulates that: “The present Federal Law lays down а legal foundation for the state policy in the field of environmental protection as ensuring а balanced solution for socio-economic tasks, preservation of а favorable environment, biological diversity and natural resources for the purpose of meeting the needs of the present and future generations, enhancing law and order in the field of environmental protection as well as ecological safety.” The South African Environmental Management Act of 1998 states in its preamble: “sustainable development requires the integration of social, economic and environmental factors in the planning, implementation and evaluation of decisions to ensure that development serves present and future generations.” Article 2 of the Basic Law on the Environment of the Republic of Korea stipulates that the legislative purposes are: “Whereas the quality of the environment and its maintenance, the protection of a comfortable environment and the maintenance of coordination and balance between man and the environment are essential for the enjoyment of a healthy and cultural life by citizens, as well as for the preservation of national territory and the sustainable development of the country. The state, localities, enterprises and nationals should endeavor to maintain and promote a good environment. Priority should be given to environmental maintenance in the use of the environment. While the present generation can generally enjoy the benefits of the environment, it will be preserved for future generations.” According to the preamble of the Law on Environmental Protection adopted by Vietnam in 1993, the purpose of this law is to protect the environment, safeguard the health of the people, ensure the right of everyone to live in a healthy environment, and serve the country’s goal of sustainable development. According to Article 1 of the Basic Law on the Environment promulgated by Taiwan, China in 2002, the purpose of the law is to improve environmental quality, boost the health and well-being of the people, conserve environmental resources, and pursue sustainable development in order to promote environmental protection.⁵⁰ Article 2 of the Environmental Law in Italy stipulates that the legislative purpose is to promote the improvement in the quality of life of the people through the protection and optimization of the environment as well as the prudent and rational use of natural resources.⁵¹ The Swedish Environmental Code (Chapter 1) states that it is intended to promote sustainable development in order to ensure a healthy and good environment for present and future generations.⁵² Article 1 of the Environmental Protection Law of the People’s Republic of China stipulates that the legislative purpose is: “to protect and improve the environment, prevent and control pollution and other public hazards, safeguard public health, promote ecological civilization improvement and facilitate sustainable economic and social development.” 

 

Through the analysis of the above legislative purposes, it is found that in addition to protecting the environment, the following keywords are generally used: health, sustainable development, socio-economic tasks or factors, needs of future generations, harmony, coordination or balance. According to Our Common Future, a report published by the United Nations Brundtland Commission in 1987, sustainable development ensures that it meets the needs of the present without compromising the ability of future generations to meet their own needs.⁵³ Health basically corresponds to the need for environmental protection. The needs of future generations can be incorporated into sustainable development. Harmony or balance refers to the coordination between environmental protection and economic and social development. Therefore, it is necessary to examine the relationship between coordinated development and sustainable development. 

 

It is generally believed that the coordinated development of the environment, economy and society is a principle of China’s environmental law. Some scholars believe that this principle is actually the purpose of the legislation. Legal principles are instrumental and can guide the distribution of rights and obligations as well as the investigation of legal responsibility when hearing specific cases. However, coordinated development only describes the target state of social development, without indicating how to achieve this target state. It lacks the content regarding the distribution of rights and obligations, and should not be positioned as a principle. It is the presetting of purpose, thus belonging to the legislative purpose of environmental law.⁵⁴ This is a persuasive point. At the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992, “sustainable development” became a new concept guiding environmental protection legislation. Thereafter, various countries have incorporated it into environmental legislation. Despite different expressions, they are consistent in terms of the basic spirit of the legislative purpose. The idea of “sustainable development” is a new concept or fundamental guideline of legislation.⁵⁵ By reviewing and analyzing the environmental codes of various countries,Professor Lyu Zhongmei concluded that sustainable development is regarded as a common value goal in environmental codes in various countries in the world.⁵⁶

 

In the view of Professor Jin Ruilin, coordinated development and sustainable development are essentially the same despite the different wording. Coordinated development focuses on horizontal relationships, and puts forward requirements for development in terms of the relationship among the basic factors that restrict development, while sustainable development focuses on the relationship between current needs and future needs. Both are intended to ensure the sustainable development of society. Coordinated development and sustainable development are the same in terms of the basic spirit, with the former more concrete.⁵⁷ Coordinated development concerns the operational level from the perspective of the consideration of the degree of environmental protection, which may be the reason why coordinated development is regarded as the basic principle of environmental law in China. However, it still belongs to the legislative purpose and to the dualism of purpose of protecting the health and promoting economic and social development. If only the protection of health is stipulated, it belongs to the single purpose of environmental priority.⁵⁸

 

 

The legislative purpose of Japan’s environmental law experienced the change from monism to dualism. Changes in the understanding of environmental rights can be vaguely reflected by this process. Article 1 of the Basic Law on Countermeasures Against Public Hazards enacted by Japan in 1967 stipulates that the legislative purpose is to “protect the health of the people and maintain the living environment” and stipulates that the purpose of maintaining the living environment should coordinate with sound economic development. This “coordination clause” (dualism of purpose) is suspected of favoring “economic priority,” namely respecting the freedom of industrial activities to the greatest extent, as such it was vehemently opposed by the public. In 1970, the 64th session of the Diet of Japan amended the Basic Law on Countermeasures Against Public Hazards by deleting the “coordination clause” and establishing the single purpose of “environmental priority.”⁵⁹ It represented the legislative purpose of environmental law swinging from one extreme to the other, and was suspected of overdoing the correction. Japan’s Basic Environment Law of 1993 superseded the Basic Law on Countermeasures Against Public Hazards. In accordance with Article 1 of this law, the purpose is to promote environmental protection policies in a comprehensive and planned manner, and contribute to the benefits of mankind while ensuring a healthy and cultural life for present and future generations. Article 4 concretizes it as a healthy economy that has little impact on the environmental load while maintaining the normal environment on the one hand, and building a sustainable society on the other hand. This is obviously dualism of purpose.⁶⁰ The changing legislative purpose of Japan’s environmental law reflects to a large extent the debate over absolute environmental rights and relative environmental rights. It finally ended with the acceptance of relative environmental rights.

 

Despite the changes, the legislative purpose of environmental law in various countries is dualistic. The single purpose of environmental priority is based on absolute environmental rights, while the dualism of purpose corresponds to relative environmental rights. 

 

 

The legislative purpose of environmental law is the degree of environmental protection. The degree of protection under the monism of purpose primarily considers the needs of environmental protection centering on citizens’ health. The degree of protection under the dualism of purpose is the result of coordination between environmental protection and economic and social development. Environmental rights are defined from the perspective of the living needs of citizens centered on health, and the core content is manifested in the quality of the environment. The two converge on environmental quality conditions despite different paths. Absolute environmental rights raise unrealistic requirements for environmental quality that ignores the needs of economic and social development, and exclude the balance and coordination of interests. These roughly correspond to monism of purpose. Relative environmental rights weigh environmental protection as well as economic and social interests, and the acceptance of environmental quality enjoyed by citizens is the result of coordination between environmental protection and social and economic development. These roughly correspond to dualism of purpose. Environmental laws in various countries adopt dualism of purpose. It can be seen that relative environmental rights are highly consistent with the legislative purpose of environmental law. 

 

The Japanese scholar Harada Naohiko opposes lawsuits lodged in the name of environmental rights. On the other hand, he affirms that all countermeasures against public hazards must regard the realization of the idea of environmental rights as the ultimate goal.⁶¹ Environmental rights are not suitable for being used as the basis of claims in environmental law.⁶² If they need to be positioned in environmental law, they should be rights in the sense of purpose. Environmental rights in environmental law should be positioned as purposive environmental rights. 

 

For environmental rights to be enforced in the legal system, and to change from challengers or revolutionaries to integrators or partners, the move from absolute environmental rights to relative environmental rights is inevitable. It is the rationality of law to tame absolute environmental rights with strong political implications into relative environmental rights, but this is not the goal. Relative environmental rights or purposive environmental rights should be protected through a specific environmental law system that is guided by environmental legislative purpose. 

 

(Translated by NI Weisi)

 

* HU Jing ( 胡静 ), Professor at Civil, Commercial and Economic Law School, China University of Political Science and Law. This paper is a periodical result of the 2021 ministerial-level scientific research project on the construction of the rule of law and legal theory of the Ministry of Justice, “Research on the Construction of China Model of Climate Change Litigation under Double Carbon Target” (Project No. 21SFB3028)

 

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4. Cai Shouqiu, “Preliminary Study on Environmental Rights,” 31.

 

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8. Chen Quansheng, Principles of Environmental Law (Beijing: Law Press · China, 1997), 102.

 

9. Cai Shouqiu, “Preliminary Study on Environmental Rights,” 32.

 

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12. Ye Junrong, Environmental Policy and Law (Beijing: China University of Political Science and Law Press, 2003), 5-6.

 

13. Ibid., 11-14.

 

14. Louis Jossenrant, The Relativity of Rights, translated by Wang Boqi (Beijing: China Legal Publishing House, 2006), Introduction, 5.

 

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16. Jan Hancock, Environmental Human Rights: Power, Ethics and Law, translated by Li Sun (Chongqing: Chongqing Publishing House, 2007), 3.

 

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18. Harada Naohiko, Environmental Law, 33.

 

19. Osuga Akira, On the Right to Life, 203.

 

20. Nomura Yoshihiro, An Introduction to Public Hazard Law of Japan, translated by Kang Shuhua, internal materials of the Chinese Society of Environmental Management, Economics, and Law, 1982, page 316.

 

21. Xu Xiangmin and Song Ninger, “The Dilemma of Japan’s Environmental Rights Theory and Its Causes,”Legal Forum 3 (2013): 86.

 

22. Nomura Yoshihiro, An Introduction to Public Hazard Law of Japan, 384.

 

23. Chen Maoyun, “On Citizens’ Environmental Rights,” 39.

 

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27. Wu Weixing, New Development of Environmental Rights Theory, (Beijing: Peking University Press, 2018), 115-116.

 

28. Ibid., 115.

 

29. Hu Jing, “Normative Effects of Environmental Rights: Justiciability and Concretization,” China Legal Science 5 (2017): 157.

 

30. The provisions of environmental rights in the constitutions of various countries are given herein with reference to Wu Weixing, New Developments of Environmental Rights Theory (Beijing: Peking University Press, 2018), Appendix “Environmental Rights Clauses in Constitutions of Various Countries (bilingual)”.

 

31. 2004 (5) SA 124 (W).

 

32. Louis J. Kotze and Anel du Plessis, “Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa,” J. Ct. Innovation 3 (2010): 170-171.

 

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34. 2007 (6) SA 4 (CC).

 

35. Loretta Feris, “Constitutional Environmental Rights: An Under-Utilised Resource,” 41.

 

36. Louis J. Kotze and Anel du Plessis, “Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa,” 173-174.

 

37. John Swaigen, Environmental Rights in Canada (London: Butterworths Press, 1981), 227-229.

 

38. 2000 (2) SA 124 (LCC).

 

39. Loretta Feris, “Constitutional Environmental Rights: An Under-Utilised Resource,” 43-45.

 

40. Yang Zhaoxia, Legal Expressions of Concept of Ecological Civilization: On the Formation of the Third Generation of Environmental Law (Beijing: China University of Political Science and Law Press, 2019), 243.

 

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45. Yang Zhaoxia, “On the Nature of Environmental Rights,” 290.

 

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50. Ibid., 171-174.

 

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53. World Commission on Environment and Development, Our Common Future, translated by Wang Zhijia et al. (Changchun: Jilin People’s Publishing House, 1997), 52.

 

54. Feng Jia, On the Principles of Environmental Law (Beijing: China University of Political Science and Law Press, 2012), 111.

 

55. Wang Xi and Chen Weichun, “Brief Discussion on the Legislative Purpose of Basic Environmental Law,”ECUPL Journal 5 (2004): 29.

 

56. Lyu Zhongmei, “Discovering the logical thread of environmental code: sustainable development,” Science of Law 1 (2022): 76.

 

57. Jin Ruilin, Law of Environment and Resource Conservation (Beijing: Peking University Press, 2006), 102.

 

58. Ibid., 32-33.

 

59. Chen Quansheng, Principles of Environmental Law, 120.

 

60. Wang Xi and Chen Weichun, “Brief Discussion on the Legislative Purpose of Basic Environmental Law,” 30.

 

61. Harada Naohiko, Environmental Law, 34.

 

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