The Constitution and the Environment

• Author: Winston Anderson
• Pages: 61-82

Page 61

4. TheConstitutionandtheEnvironment

There is an increasing tendency in modern

constitution-making to include in the fun-

damental human rights provisions a right

to a clean and healthy environment.1 At present

the constitutions of more than 100 states recog-

nize such a right, though the actual wording var-

ies markedly from one country to the next.2 e

basic formulations are provisions that declare

that a state has a duty to protect and preserve the

environment,3 that a citizen has a duty to conserve

the environment,4 or that an individual has a sub-

stantive right to environmental integrity.5 In some

cases there is a combination of duties binding on

the state and citizen alongside the individual’s right

to a clean and healthy environment.6

Where the constitution does not yield express

provisions on the environment, gallant attempts

have been made to link traditional civil and politi-

cal rights with a certain quality of the environ-

ment.7 e provisions most frequently pressed into

1. For an exhaustive discussion of developments up to 1991, see

Ernst Brandl & Hartwin Bungert, Constitutional Entrenchment

of Environmental Protection: A Comparative Analysis of Experiences

Abroad. 16 H. E. L. R. 1 (1992). e article looks

at the constitutional provisions in, for example, Switzerland

(1971), Greece (1975), Spain (1978), Portugal (1976) as revised

in (1982), Turkey (1982), the Netherlands (1983), and Brazil

(1988).

2. See S C L D F, H R 

 E: T L B   H R 

 E (Report to the U.N. Sub-Commission on

the Prevention of Discrimination and Protection of Minorities,

1992); and E L D F, H R

  E (Issue Paper 2001). For a succinct

summary, see P S, P  I

E L291 (2003).

3. Brandl & Bungert supranote 1, at 21, including China, Germany,

Greece, Honduras, Mexico, the Netherlands, Nigeria, Panama,

Romania, and Taiwan.

4. Id., including Algeria, Bolivia, Haiti, and Russia.

5. Id., including Burkina Faso and Hungary.

6. Id., including Brazil, Chile, Colombia, Ecuador, Guyana, Ni-

caragua, Peru, and Turkey.

7. e most blatant attempts have been made in the context of the

European Union, as discussed below.

service are those concerned with the fundamental

right to life, to protection of privacy and family

life, and to protection of private property.

However, the constitution can prove to be a

double-edged sword. Although it can be used

proactively to protect and preserve environmental

rights, the constitutional protection of such inter-

ests as private property can easily ser ve to frustrate

the application of principles seeking to protect the

environment for the public good. e constitu-

tion can a lso limit the use of certain branches of

law to protect the environment, notably, criminal

law. Moreover, its status as the supreme law of the

land means that the constitution could condemn

environmental legislation deemed inconsistent

therewith. At minimum, environmental legisla-

tion, regulations, and common law rules can only

survive insofar as they are consistent with the

constitution.

Perspectives on Human Rights and the

Environment

Several perspectives on the concept of “human

rights and the environment” may be identied.

ese are of signicance in providing the philo-

sophical backgrounds which may be used to but-

tress judicial decision-making on the human right

to environmental quality.

Environmental Standards as Implementation of

Human Rights

One approach is to use environmental protection as

a means for fullling human rights standards.8 e

8. Michael R. Anderson, Human Rights Approaches to Environmental

Protection: An Overview, in H R A 

E P(Alan E. Boyle & Michael R.

Page 62 Principles of Caribbean Environmental Law

critical focus here is on environmental law as the

guarantor of a protection that would help ensure

the well-being of future generations as well as the

survival of those who depend immediately upon

natural resources for their livelihoods.9

It cannot be said with any condence that

this approach is readily embraced by the interna-

tional human rights regime. Modern international

human rights begin with the adoption of the Char-

ter of the United Nations in 1945 (U.N. Charter),

which established the global objective to promote

and encourage “respect for human rights and for

fundamental freedoms for all without distinction

as to race, sex, language or religion.”10 ese rights

and freedoms were later elaborated in the Univer-

sal Declaration of Human Rights of 1948,11 which

was in turn supplemented in 1966 by two treaties:

the International Covenant on Economic, Social

and Cultural Rights (ICESCR),12 monitored by

the Economic, Social and Cultural Rights Com-

mittee, and the International Covenant on Civil

and Political Rights (ICCPR),13 scrutinized by the

Human Rights Committee. Together, these three

legal agreements make up the International Bill of

Human Rights (IBHR).

e IBHR is supplemented by four regional

human rights treaties. First, the Convention for

the Protection of Human R ights and Fundamen-

tal Freedoms (European Convention on Human

Rights) was adopted in 1950.14 It is largely enforced

through the European Court of Human Rights

(European Court), and any person who claims

that his or her rights have been violated under the

convention may take a state party to the European

Court for relief.15 Second, the European Socia l

Anderson eds., 1996); see also, Alexandre C. Kiss, Concept and

Possible Implications of the Right to Environment, in H

R   T-F C: A G C

(K. E. Mahoney & P. Mahoney eds., 1993); Francoise Jarvis &

Ann Sherlock, e European Convention on Human Rights and

the Environment, 24 E. L. R. 15 (1999).

9. See, Michael R. Anderson, Human Rights Approaches to Environ-

mental Protection: An Overview, in H R A

 E P(Alan E. Boyle & Michael R.

Anderson eds., 1996).

10. Quoting U.N. Charter art. 1, para. 3. See also U.N. Charter

preamble and art. 55.

11. G.A. Res. 217A (III), U.N. GAOR, 3d Sess, 1st plen. mtg.,

U.N. Doc. A/810 (Dec. 10, 1948).

12. G.A. Res. 2200A (XXI) (Dec. 16, 1966), 993 U.N.T.S. 3, 6

I.L.M. 368.

13. G.A. Res. 2200A (XXI) (Dec. 16, 1966), 999 U.N.T.S. 171, 6

I.L.M. 368.

14. European Convention on Human Rights, Nov. 4, 1950, 213

U.N.T.S. 222. e European Convention on Human Rights

and has since been augmented by 12 protocols.

15. Importantly, the court has the power to award damages. Although

court decisions are not automatically binding, they are normally

Charter, which was adopted in 1961,16is a com-

panion to the European Convention on Human

Rights.

ird, the American Convention on Human

Rights (ACHR) was agreed upon in 1969,17 and its

implementation is supervised by two main bodies:

the Inter-American Commission on Human Rights

(Inter-American Commission) and the Inter-Amer-

ican Court of Human Rights (Inter-American

Court). Both bodies are organs of the Organiza-

tion of American States (OAS). Finally, there is the

African Charter on Human and Peoples’ Rights.18

is charter is interpreted by the African Commis-

sion on Human and Peoples’ Rights (the African

Commission); the commission is tasked with pro-

moting and protecting human rights and collective

rights throughout Africa. e African Commission

reports to the Assembly of Heads of State and Gov-

ernment of the African Union.

As these legal agreements were adopted largely

before the watershed United Nations Declara-

tion on the Human Environment 1972, which

placed “the environment” on the international

agenda, none of the international human rights

treaties asserts anything close to a fundamental

right to a clean and healthy environment. ere

is an occasional reference to the link between the

environment and human rights, but none identify

environmental rights as the subject of specic rules

of protection.19 e truth is that these instruments

were primarily conceived to confer and were ini-

tially interpreted as being concerned with bestow-

ing on the individual the civil and political rights

emanating from the French and American revolu-

tions of the eighteenth century.

complied with. e provision allowing for individual action was

an innovative (and remains the most robust) arrangement for

individuals to vindicate human rights under a treaty regime. A

state may sue another state party before the court, but this is

rarely done.

16. Oct. 18, 1961, 529 U.N.T.S. 89.

17. Nov. 21, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 99. e ACHR

was supplemented by the Additional Protocol to the American

Convention on Human Rights in the Area of Economic, Social

and Cultural Rights, Nov. 17, 1988, 28 I.L.M. 156 (Protocol

of San Salvador).

18. June 27, 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58.

19. See supra note 2, at 294. e United Nations General Assembly

did recognize for the rst time the relationship between the quality

of the human environment and the enjoyment of basic rights

in a resolution adopted in 1968: see Problems of the Human

Environment, G.A. Res. 2398 (XXIII), U.N. Doc.

A/L.553/Add. 1-4 (Dec. 3, 1968). Article 24 of the African

Charter on Human and People’s Rights, supranote 18, provides

that “[a]ll peoples shall have the right to a general satisfactory

environment favorable to their development.”