UCC Law & the Environment 2013

Drivers behind Constitutional Environmentalism: A comparative

examination

Dr. Roderic O’Gorman (DCU)

Constitutional Environmentalism: any reference to the environment, animals or ecological issues contained with a national constitution or bill of rights with similar status.

Constitutional Environmentalism

a) Environmental Rights• 1) Environmental

Procedural Rights• 2) Right to Environment• 3) Right of Environment

c) Animal Rights/Welfare

b) Environmental Duties• 1) Duty on State• 2) Duty on Citizen(s)

A) Environmental Rights

• 1) Environmental Procedural Rights include those associated with rights of participation in decision making, access to information and ability to access justice.

• 2) Right Of environment envisages a value in the environment beyond mere human benefits. Such an approach argues that the environment should be held as a good on its own merits, and protected as such.

• 3) Right to Environment is conceptualised as a right pertaining to each individual – the environment is valued not on its own merits, but in light of its importance for human existence.

B) Environmental Duties

• Within European constitutions in particular, there is a consistent trend of making reference to environmental duties. The bearers of these duties are usually either the citizens or the State.

1) Duty on the State

• Widely framed. May be based on well established environmental principle, such as “sustainable development” (Poland – Art 74) or proper planning (Portugal – Art 9)

• May involve limitation on how economic activity is carried out: Slovakia Art 55(1) – “The economy of the Slovak Republic is based on the principles of a socially and ecologically oriented market economy”.

2) Duty on Citizens 

• Duties on citizens can be framed as a general obligation on all citizens to respect the environment (Art 35 – Estonian) or it can more specifically apply to the actions of individual citizens (Art 35(3) – Charter of Fundamental Rights of Czech Rep).

C) Constitutional Protection of Animals  

• We see brief references to animals, regarding protection: Germany (Art 20a), Slovenia (Art 72(4)), Sweden (Art 7(1)(4)) but also as items of property - Malta (Art 37)

Theme 1: Emergence of new democracies

• Sub-theme: There seems to be a drive towards ‘modernity’ or ‘homogenisation’ with other countries/organisations.

• Sub-theme: Deliberate break with the past

Romania

• Article 35 of the 2003 Constitution contained a specific reference to the State acknowledging a right to a healthy, well preserved and balanced environment.

Poland• New Polish Constitution of 1997 • Article 5: duty on the State to protect the

environment, based on the principles of “sustainable development”.

• Duty on the State to pursue long term environmentally sound policies, a duty on the public regarding the environment, and an express right to information on environmental quality and protection.

• No specific ‘right to environment’.

Article 71 of the (former) 1952 Polish Constitution • "Citizens of the Republic of Poland shall have

the right to benefit from the natural environment and it shall be their duty to protect it”.

Hungry

• Art 18 (former constitution) – “The Republic of Hungary recognizes and shall implement the individual's right to a healthy environment”.

• New Constitution (2011)

• Art 21(1) – “Hungary shall recognise and enforce the right of every person to a healthy environment”.

• Art 20(2) the right to physical and mental health in 21 shall be secured by “... ensuring that [...] agriculture remains free from any genetically modified organism, by providing access to healthy food and drinking water, by managing industrial safety and healthcare, [...], and by ensuring environmental protection”.

Theme 2: Long Term Public Pressure• Germany• 1993 – federal constitutional commission.• 1994 – environmental provision added via Art

20a. Some controversy about potential impact.• 2002 – Phrase “and the animals” is added to Art

20a. • Long term public support for environmental &

animal welfare issues.• Green Party in power in 2002.

Theme 3: Strong Political Leadership

France

• Charter of the Environment 2005.

• Driven by President Chirac.

• “Legacy building”

• Government appointed commission – significant public consultation.

• Chirac intervened at two key stages. Major problems were with his own party.

• Passed by Congress in 2004.

• Bourg & Whiteside – “It is no exaggeration to say that there would be no Charter for the Environment in the French constitution had it not been for Chirac’s personal, reiterated efforts on its behalf”.

Ecuador

• 2008 a new Ecuadorian Constitution was approved in a referendum. Based on proposal for new constitution the leftist President Correa, put forward during his successful election campaign in 2006.

• Article 71(1): “Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”.

• Provisions have been described as the brainchild of the President.

• Community Environmental Legal Defense Fund provided support to the Ecuadorian Constitutional assembly in authoring the relevant provisions www.celdf.org

• Wheeler case (2011) A provincial court used the provisions of Article 71 to find a state government liable for damages caused by flooding due to the dumping of material.

• The Court determined that “ ... a ‘healthy’ environment is more important than any other right and affects more people”.

• Subsequently, the Government has used the provisions to assist it in court cases about taking over privately owned mining companies.

Theme 4: Environmental Protection as an Uncontroversial Amendment

Netherlands

• Dutch Constitution was significantly amended in 1983 to include references to a wide range of social rights,

• Included a duty on the State to keep the country habitable and to protect and improve the environment – Art 21.

• “…in the debates about the Constitution in Parliament little attention was paid to article 21”.

• the amendment was adopted alongside a number of new social rights provisions that would have significant cost implications: labour rights, welfare rights and health rights.

Iceland

• Undertook an innovative process to draw up a completely new constitution, following financial crisis.

• The old 1944 Constitution made no reference to the environment. The 2012 Draft Constitution includes provisions on ‘Nature and Environment of Iceland’ (Article 33) and ‘Natural Resources’ (Article 34).

• Anecdotally, the provision on the environment received little attention during the discussion of the Convention. However Art 34 proved more controversial and was put to a separate public vote along with the entire constitution.

• “Iceland’s natural resources that are not private property shall be the joint and perpetual property of the nation. No one can acquire the natural resources, or rights connected thereto, as property or for permanent use and they may not be sold or pledged”.

• Explanation: being “... not simply a reiteration of Iceland’s sovereign right over the natural resources within its jurisdiction [...] rather, the purpose of this provision is to establish a particular type of right of ownership of natural resources which are not privately owned”.

• The Icelandic people gave a resounding Yes vote of 82.9% on this provision.

Conclusion

• Bunracht na hEireann is one of only six EU states with no constitutional environmentalism.

• Including environmental provisions in our Constitution, in particular a ‘right to environment’, is a vital element in allowing Irish people secure basic rights related to their health, their workplace, public spaces and their enjoyment of their property.

• How do we change this state of affairs?

1) Get public opinion onside

• Create broad public consensus on the issue

• Ensure it is not seen as a threat to employment

• Demonstrate to the public that they have a stake in the environment. Link the right to environment with the right to health

2) Accept eventual provision may not go as far as we desire

• Whatever provision is adopted can be interpreted by later courts.

• An environmental provision will permeate the legal consciousness. Provisions in both France & Germany have had more widespread implications

3) Convince significant political players and social partners to get involved