The Right to a Healthy Environment

• Author: Environmental Law Institute
• Pages: 13-38

II. The Right to a Healthy Environment

African nations figure prominently among nations worldwide in incor-

porating environmental provisions into their constitutions, if not neces-

sarily in their application.27 In fact, at least 32 countries in Africa (ap-

proximately two-thirds) have some constitutional provisions ensuring

the right to a healthy environment. This number is likely to increase, as

the draft Constitution for the Democratic Republic of the Congo in-

cludes environmental provisions, and other countries (such as Kenya)

are contemplating similar provisions. After analyzing textual constitu-

tional provisions in nonsecular (based entirely or in part on Islamic

law), civil law, and common law jurisdictions, this part examines ways

in which environmental advocates and courts have given life and force

to such provisions.

A. Islam and Environmental Rights

Legal theorists have argued that because all major religions incorporate

principles relating to the environment and imposing a duty to protect it,

no differences exist between the rights-based approaches to a clean envi-

ronment in secular and Islamic countries.28 While the Qur’an is silent on

a human right to a clean environment, the large body of Islamic environ-

mental ethics stresses the duty of the individual Muslim to care for the

natural environment.29 This duty is closely connected to the belief that

the earth is the creation of Allah, and therefore both the individual and the

state must take responsibility for Allah’screation as part of their religious

and ethical obligations.30

Nevertheless, the constitutions of most nonsecular African coun-

tries—Algeria, Egypt, Libya, Mauritania, Morocco, and Tunisia—do not

contain environmental provisions. Sudan is the only exception to this gen-

eral trend: Article 13 of Sudan’s 1998 Constitution sets forth environmen-

13

27. For an early survey of countries with constitutional rights to a healthy environment,

see Edith Brown Weiss, In Fairness to Future Generations: International

law, Common Patrimony and Inter-Generational Equity app.B(1989).

28. Lau, supra note 7, at 285-86.

29. Id.at286. See generally Abubaker A. Bagader et al., Environmental Protection in

Islam,IUCN Envtl. Pol’y & L. Paper No.20 Rev. (IUCN The World Conser-

vation Union 1994); Richard Foltz, Is there an Islamic Environmentalism?,22

Envtl. Ethics 63 (2000).

30. See Lau, supra note 7, at 286.

tal principles. Although it remains to be seen how Sudan’s courts and gov-

ernment will interpret, implement, and enforce this provision, this devel-

opment bodes well for the potential development and application of con-

stitutional environmental rights in other nonsecular African nations.

Notwithstanding the lack of constitutional right-to-environment pro-

visions in nonsecular countries, legal theories and judicial mechanisms

exist that could guarantee environmental rights of citizens even absent

incorporation of other approaches to protection and enforcement. For ex-

ample, discussing Pakistan’s mixed Islamic and common law system,

Martin Lau concludes:

Rather than trying to find Islamic equivalents to secular human rights,

Pakistan’sjudiciary has reduced Islamic law in the context of public in-

terest litigation to a basic right to justice in its widest form. The recog-

nition of a basic human right in Islamic law has repercussions in the

field of Pakistan’s environmental law. General ethical principles on

conservation and environmental protection can be interpreted both in

the light of the secular fundamental right to life and the Islamic right to

justice. The concept of Islamic justice enables the aggrieved party to

approach the court, whereas the right to life empowers the court to give

relief. As a result, Pakistan’sjudiciary has not only begun to take an ac-

tive interest in environmental protection but has also successfully re-

futed the widely accepted argument that Islamic law and individual

rights are irreconcilable.31

Most African nonsecular countries have a comparable constitutional

right to life, which could be interpreted in a similar way.This approach is

explored in Part III.

B. Civil and Common Law Jurisdictions

With the exception of Sudan, countries with constitutional environmen-

tal provisions have either a civil law or common law tradition. In Africa,

approximately one-half of the nations have legal systems based entirely

or in part on civil law, and almost two-thirds of these civil law jurisdic-

tions have constitutional environmental provisions. Approximately

one-third of African nations have common law systems, and of these

roughly one-half have constitutional environmental provisions. As civil

and common law nations do not differ substantially in the text of their

14 CONSTITUTIONAL ENVIRONMENTAL LAW

31. Id. at 301-02.