- Nukhet Turgut, Ph.D.
Head, Dept. Environmental Law, School of Law,
Ankara University, TURKEY
Cemal Gursel Cad., Cebeci-Ankara, TURKEY
Eubios Journal of Asian and International Bioethics 8 (1998), 169-171
Currently, partly because of such demands, and partly as a result of heated debates, and putting of environmental issues in political agenda of states, almost all constitutions have been made or amended after l970 contain provisions relating to environmental protection. However it is surprising to know that there is still not any article to protect the environment in some leading countries' constitutions such as US with the exception of some states constitutions (2) , and France in spite of a long time and intense efforts. Until l994 Germany was also sharing the same situation with these countries. But there are sub-constitutional regulations containing provisions similar to those placed in the constitutions in these countries. As far as international human rights documents are concerned there is not yet any specific provision relating to protect the environment except some regional documents such as African Human and Peoples' Rights Charter (3) recognizing the right to environment.
The main reasons for the reluctance on recognizing a right to
the environment explicitly in the constitutions of some leading
countries of the world are the difficulties of identifying the
object of right to environment, putting it in practice, and to
formulate it. Another assumption is that recognizing such a right
will cause contradictions to established human rights (4). When
we look closely at the history and characteristics of the established
human rights we can point out many reasons to disprove them. Without
going into details (5) it can be briefly said that these assumptions
including the contradictions are also true for most of the fundamental
human rights. But this fact did not prevent their recognition
2. Different Formulations on Environmental Protection in Constitutions
If we analyze the constitutions having provisions on environmental protection we can remark that there are three main different formulations about the issue. Firstly some constitutions have only a requirement stating the environmental protection as a state goal and duty which are called policy guidelines or programmatic provisions by some writers, and are debated as far as their binding effects are concerned. Secondly there are constitutional requirements which explicitly formulate a right to environment. The well-known examples of this kind of formulations are Spanish and Portages constitutions.
Thirdly some constitutions recognize a right to environment implicitly. For instance the amended 56th article of Turkish Constitution of l982 states that "everyone has a right to life in a balanced and healthy environment". Although, in this formulation, it has been emphasized the right to life indeed, since this right has been regulated in another article of the same constitution we reach the conclusion that the 56th article aims and recognizes the right to environment indirectly as linking it with the right to life. In this sense there is a similarity between the Turkish Constitution and the Stockholm Declaration promulgated at the United Nations Conference on the Human Environment held in l972. This declaration, on its first principle, states 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...". As we can see this principle does not regulate the right to environment clearly or otherwise. But it is the first important international document that establishes a link between the human rights concept and environmental protection.
A final observation on the formulation of environmental protection stated in the constitutions is, whether recognized as a right or simply stated as a duty of state, environmental protection has also been defined as the duty and responsibility of citizens. In this context Spanish Constitution formulated this duty under the terms of "the duty of defense of the environment". Our constitution (Turkish) in its second paragraph of the 56th article states that "it is the duty of state and citizens to prevent pollution, to protect the health of environment, and to improve the environment".
During the debates on whether or not it is really necessary to
have constitutional regulation to protect the environment, some
commentators suggested that it is not important to have constitutional
regulations on environmental protection as far as some specific
laws regulate the issue. At the starting point of this point of
view there is an argument that all constitutional requirements
anyhow need a law to be implemented. In spite of rightness of
this argument in certain extent, in general, we can not share
the same view because of the importance of constitutional requirements
in many ways. First of all a constitutional provision on
environmental protection, whether it is stated as a right or policy
goal, can serve as an interpretative guideline for both the regulators
and judges. In this context even "...the state goal of 'environmental
protection' can act as a guideline for the interpretation and
coordination of the many undefined legal terms in environmental
law". On the other hand and more importantly when there is
a such provision the legislatures are under the obligation to
prepare relevant laws to protect the environment. Finally when
there is a conflict between different interests the environmental
interests will have a chance to be balanced with other interests
at equal conditions.
3. Characteristics of the Right to Environment
The right to environment has been recognized as a human right in those constitutions having provisions on the issue. That means the anthropocentric perspective has been taken into consideration and in this context the humans beings are the subject of the right to environment as well as treating their needs as important. The consequence of this kind of ethical approach is environmental goods and values will be protected not because they have their own intrinsic values but as a result of their response to human needs, and humans beings will decide which degree this protection should be. This formulation is the natural result of the traditional human rights concept.
Recognizing the right to environment as a human right is important to protect the environment but its not sufficient because of differences between the characteristics of this right and traditional human rights. In this respect we can notify some important differences. From viewpoint of traditional human rights there must be an interest to be protected, and this interest must be identifiable and also individual. However, environmental goods, because of their collective characteristics and complexity, are not suitable this kind of determinations. Another important difference is related to the right and duty concepts. As far as traditional human rights are concerned the person who has a right (for instance to property) has a duty to respect the others peoples' right. But from the perspective of the right to environment the duty of the rights owner is in respect of the object of the right. In this context right and duty concepts are linked each other on the same object. To put it more concretely, we can say that everyone has a right to environment but also has a duty to protect the same environment. That's why most of constitutions recognizing the right to environment have also stated the duty of citizens. As will be analyzed below this characteristic is very important to override the insufficient aspects of traditional human rights concept to protect environment.
I4. Implementation of the Right to Environment Apart from the debates about whether or not it is correct to recognize a right to environment as far as its characteristics are concerned, and even it is recognized as a right because of intrinsic values of environmental goods, there is an important fact that only human beings can implement this right. Environmental goods must be represented by some individuals or groups called environmentalists. That's why our efforts should intensify over the dimension of the above mentioned duty of the right to environment. This duty concept has a very broad meaning covering both passive and active duties. As having passive duties individuals or citizens must obey the rules protecting environment such as not to cause pollution or degradation. Because of insufficiency of passive duties to achieve the goal of environmental protection we need active obligations to ensure the same goal. So active duty, being the most important part of above mentioned duty, obliges individuals to demand from other natural or moral persons including public authorities not to pollute environment, and also to ask governments for some legal opportunities such as to be informed about environmental decisions, to participate in environmental decision making process and access to justice to put into practice this duty. In this context, to implement the right to environment, there should be some restrictions put on the human behaviours as well as on their other rights such as right to property, and there must be some efficient sanctions in legislation in case of violations of these obligations. That's why individual environmentalists, especially non governmental organizations, as guardians of environment, should have above mentioned rights to make this legal process work.
Currently all of above mentioned rights which legally called as procedural rights are accepted by every people even those does not want to recognize the right to environment, and as a result of this consensus these procedural rights have placed in environmental legislation of almost every country. Some well-known international declarations (e.g. Rio Declaration on Environment and Development (7)) and conventions (Framework Convention on Climate Change (8), and Biological Diversity Convention (9)) also have provisions relating these procedural rights. Recent examples of these kinds of documents are the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters prepared by UN European Economic Council and opened for a signature in 23-25 June l998 in Arhus, Denmark (10).
There are some important points to implement these rights effectively.
As far as the right to access to information is concerned, it
is essential to ensure that citizens without shoving a special
interest can be able to obtain all information, with some exemptions
which are supposed to be regulated carefully in necessary areas,
in time, meaning before the relevant decision is given (11). It
is also must ensure that individuals take the copies of documents
related to environmental information, free of charge or at least
with a reasonable price not exceeding normal copies expenses.
As regards to public participation in environmental decision making
public authorities must develop the ways to encourage individuals
to participate in those process besides recognizing effective
opportunities to put out their opinions and objections.
When we took into consideration empirical developments in both national an international levels we can say that there are some trends on the protection of environmental goods including aesthetic values apart from human beings, even though their scope is limited with some minor examples such as the protection of endangered species and the establishment of specially protected areas, in spite of the dominance of the anthropocentric approach in environmental legislation. That means even if they reflect an anthropocentric point of view, there is a possibility to interpret the current legislation to protect environmental values. Another important trend on this way is the establishing of the precautionary principle. This principle means that the scientific uncertainty should not be used as an excuse anymore for not taking necessary steps to protect environment. On the other hand, we should mention that the attempts on recognizing a right to environment as an universal right in the way of including it into current human rights documents have not been ended.
To interpret and implement the current environmental legislation
in the direction of achieving the goal of environmental improvement
we need environmentalists. As much as their numbers and capacities
are increased they will be more efficient on environmental protection.
To achieve this result it is necessary to raise the environmental
consciousness of people. That's why the environmental education,
meaning making the every person understand that her or his can
be able to shape his or her future, is very important. Increasing
of public awareness is an indicator of the changes in human attitudes
against environment. In this sense it is very important to change
the consumption patterns. So as a result of perception of this
fact the major documents, such as Rio Declaration and Agenda 21,
prepared in recent international conferences emphasized the necessity
of changing the current consumption patterns especially in developed
countries. I think this is an important point if we take into
account the sustainable development concept described officially
in a report called Our Common Future and prepared by the
United Nation Commission on Environment and Development. According
to the definition stated in this report, sustainable development
is a development which responds the needs of present generations
without taking risk the capabilities of next generations to respond
their needs. The needs concept is described as necessary or fundamentals
needs of human beings in different chapters of the report. So
taking as a base this interpretation, we should say that it is
necessary to ensure the social justice first between present generations,
and later between present and next generations. Without taking
into account the social justice concept it won't be easy to change
human attitudes to the environment because of the complexity of
life and its ethical, political, economical, cultural and legal
1.See, Karel Vasak, "Pour une Troisime Generation des
Driots de L'homme", in Essays on International Humanitarian
Law and Red Cross Principles in Honour of Jean Pictet (ed. C.
Swinarski), the Hague l984, 837-45.
2. For the related provisions of these constitutions see E. Dick Howard, "State Constitutions and the Environment", 58 Virginia Law Review l972, l93-229.
3. 26 June l98l, 2l ILM 59, l982.
4. For a detail explanation see N¸khet Turgut, «evre ve Yurttaþlar, Yurttaþlarýn «evrenin Korunmasýndaki Rol¸ (Environment and Citizens, The Role of Citizens on Environmental Protection), Ankara l993, p.44-52.
5. For more details see Ibid.
6. See Karl-Heinz Ladeur, "Environmental Constitutional Law" in European Environmental Law (ed. Gerd Winter),Tempus Series, Dartmouth, l996, 26.
7. See 31 ILM l992, 874.
8. See 31 ILM l992, 849.
9. See 31 ILM l992, 818.
10. United Nations Economic and Social Council, ECE/ CEP/ 43.
11. For more detail see Gerd Winter, "Freedom of Environmental Information" in European Environmental Law (ed.G. Winter), Dartmouth l996, 81-94.