In an era where the environment plays a vital role in deciding the human life consequent to the unsympathetic treatment delivered by the human themselves to the Mother Nature where the poorer have become the direct victims of the adverse aftermath-specially the bad health, it is very crucial to impose a strict control over the frantic human activities to safeguard the rights of the feeble. In a way, protecting the right to a healthy environment of the mankind – who is a part of the environment –is protecting the environment itself. In as much as the courtesy of protecting the rights of human beings are concerned the recognition to the same under the Constitution is very much important as the Constitution is the supreme law of the country and the core of the legislation. Hence it is vital to inquire how a Constitution of a country be the voice of the voiceless.
In this backdrop,Is it prudent to include the right to a healthy environment in the fundamental rights chapter or the duty impose on the government under the directive principles of the Constitution to protect the environment is adequate in protecting the same?
The Constitution does not safeguard the health of the people. It safeguards the individual alienable rights guaranteed to us by the founding fathers such as the right to freedom of speech. Congress regulates the environment but through the EPA which is an organization that lobbies the congress for laws that control activities of human behavior. I would say that the protection of the environment is not a right, especially for the poor and it is definitely not covered by the constitution. The right to a healthy environment can be taken up by your average citizen to make the difference and get laws passed to protect the vulnerable.
Thank you for sharing your valuable idea.
From my present studies I came across the following findings:
As the Constitution of a country is the law of Supremacy within a country, and as other laws and regulations should be in consistent with the constitution- it is debated that a right to a healthy environment must be given a constitutional recognition. There are arguments for that concept such as increased accountability, greater citizen participation in environmental decision making, reduction of environmental injustice and also against that concept such as the threat to democracy because it shifts power from elected legislators to judges, likely to cause a flood of litigation etc for the same.
However, new research demonstrates that incorporation of the right to a healthy environment in a country’s Constitution leads directly to two important legal outcomes.
1. Stronger environment laws
2. Court decisions defending the right from violations.
The appearance of right to a healthy environment can take several forms in the constitutions:
- self-standing human right (however, the content is debated and unclear)
- as just a state aim, a political aim without justiciability (the state is committed to tackle climate change, etc.)
- as a part of other clear and concrete rights (right to information, right to privacy - the ECtHR accepted this approach)
- or a principle - very general, give place to further explanation, interpretation.
it depends which is the most effective and sufficient, but this right can have many forms.
Take a look at different state constitutions - such as the Commonwealth of Pennsylvania. States have what we call "police power" - the ability to regulate for the health, safety, general welfare, and morals of the people. The federal government does not (and that is why so many things fall under the Commerce Clause). I believe the Commonwealth of Pennsylvania has a right to a healthy environment in its constitution, as do a few other states. Creating such a right at the federal level would require a large shift in the current delegation of governance between the federal and state governments, and could usurp local and state governments of power.
it could be useful to write in a not flexible Constitution the right of environment and health because it means to consider these rights as superior to the bill and the other legislation and sources of law. It means also that any violation could be sanctionated by the constitutional courts. Right to health and right to a safe environments are the two faces of the same right that it would be related to the human dignity.
http://www.environmentmagazine.org/Archives/Back%20Issues/2012/July-August%202012/constitutional-rights-full.html
See link to book review from 2012. The book might be helpful, however for starters the review has two maps that show all the countries in the world that have right to environment embedded in their constitution.
The right to health is a human right, and to me it is even more fundamental than right to free speech. Health is directly related to life!
Thank you for taking time out of your busy schedules to answer my question.I truly appreciate your valuble inputs.
Mr. John Burchill, the link you shared is really usefull. Thanks a lot!!!
April 26, 1986 in Ukraine there was a large-scale technological catastrophe of our time - the accident at the Chornobyl nuclear power plant. According to experts, the total output of radioactive materials was 50 million curie, which is equivalent effects explosions 500 atomic bombs dropped in 1945 on Hiroshima.
According to official data generally Chornobyl affected more than 2.6 million Ukrainians, including more than 600 thousand children.
Constitutional Recognition of Right to a Healthy Environment is necessary for any country. But the data presented in the article (http://www.environmentmagazine.org/Archives/Back%20Issues/2012/July-August%202012/constitutional-rights-full.html) regarding Ukraine is not accurate enough.
Ukrainian Constitution has some specialties. Ukrainian Constitution enshrines the right not to a healthy environment, but on a safe environment (article 50).
http://www.coe.int/t/dghl/cooperation/ccpe/profiles/ukraineConstitution_en.asp
The difference is that a safe environment - an environment that has neutral effect on human health and biological processes of living organisms. While a healthy environment - an environment that has positive affect on human health and biological processes of living organisms.
A safe environment is provided by fixing standards of quality and quantity standards of environmental management. These standards are determined by the environmental legislation of Ukraine.
You might be interested to see some of the cases from different countries on the right to a health environment. Of course, court cases are not the only way such constitutional provisions may be used, but they are an imortant way.
You will find interesting cases from India (which does not have a specifi right to environment, but a directive principle that has been used to give more content to the right to life) - that country has many fascinating cases. Oposa v Facotran is a leading Philippines case. There are cases in Sri Lanka and Nepal. And South Africa as well as Latin American countries.
You might also be interested in how society uses the right. E.g. see http://cer.org.za/ (Centre for Environmental Rights in S Africa).
But whether the right is necessary is a different matter! In what sense is any right "necessary"?
I believe that the environmental rights should be protected by Constitution. Because, even right to life also subjected to the soundness of the environment. Thus, for the purpose of granting more fruitful and effective HR or fundamental rights the environment should be a paramount consideration.
Sri Lanka, we don't have environment rights enshrined in our present Constitution. However, there are suggestions to include environment rights into fundamental rights chapter. We have some pragmatic judicial decisions relating to right to a healthy environment.
India has a rich jurisprudence relating to constitutional recognition of environmental rights.
I think the right to a healthy environment is embedded in the police power of the state to protect public order, moral, health, and social welfare. The police power of the state is shrined in the constitution. But because of the urgent problem of todya's climate change and environmental degradation caused by industrialization, I think the consitutional guarantee to a healthy environment to protect the citizens must be made explicit and stressed in every constitution.
Thanks and best regards to all!
Thank you Louna...I had the opportunity to read the Article of Dr. Boyd.It was really useful.
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