Right to Environment in other countries

1. A new principle of law was established called "standstill clause", which precludes measures containing a substantial regression or a deterioration of the actual level of protection guaranteed by the current legislation, without reasons of public interest. This means that a non-substantial retrogression is admissible, and, any retrogression is admissible if it is justified by public interest (which  can be considered as weak points of the doctrine).

2. The other new principle reads as "in dubio pro natura". It means that in case of doubts or of several possible interpretations of law, the one has to be preferred that is more favourable towards nature. 

3. The Belgian authors assert that a possible evolution in the case law was identified, which would tend to transform slowly a guaranteed legitimate interest into a subjective right (M. Martens, 2007 and similarly C. Romainville, 2013). Behind this evolution, an influence of the ECtHR case-law to Art. 8 of the ECHR has been indicated, as weel as the jurisprudence of the Belgian Constitutional Court. 

 

 

France

In France, the right of everyone to live in a balanced environment, beneficial for health, has been recognized as a part of a separate constitutional document, the Charter of the Environment in 2005. The Charter in its 10 articles provides for the constitutional foundations of the environmental protection in France. There has been a vivid academic debate about the legal character of the rights stipulated in the Charter. They were confirmed as having the status of a full constitutional value but their real implementation in practice has been developing only very slowly and in small steps. Moreover, there is apparently a divergence between the approach of lower courts and the highest court instances towards the Charter’s rights. Whilst the lower courts tend to interpret the Charter as a full-fledged part of the constitutional law, the Conseil d’État and the Conseil constitutionnel are much more conservative, keeping the interpretation of the environmental rights narrow and restrictive. A good example is the case of stopping a rave-party in the region of Champagne a short time after the Charter came into force. The Administrative court in Châlons en Champagne treated the right to environment as a “fundamental freedom”, which enabled him to take the necessary immediate measures. But such an approach towards the right to environment was never confirmed by the highest courts.

A new dimension to the right’s enforcement has been brought by the new constitutional procedure of a QPC - question prioritaire de constitutionnalité in France in 2010 that enables to review laws before the Conseil constitutionnel. However, theup to now case law of the QPC does not cover the right to environment; from the Charter, Article 7 on the public participation in the environmental decision making is the most frequent.

 

The Constitution of Finland of 11 June 1999 recognizes a “soft version” of the right to a healthy environment in its Section 20 (that states that “the public authorities shall endeavour to guarantee for everyone the right to a healthy environment”), together with the responsibility of everyone for nature and its biodiversity, the environment and the national heritage and with the possibility of everyone to influence the decisions that concern their own living environment. The recognition of the right has had its connection with the governmental and parliamentary influence of the Green Party of Finland in the 1990th. The right has been characterized as a collective right with predominantly declaratory effects that has no direct normative consequences. This does not mean, however, that the right to a healthy environment has no positive impact in Finland: the contributions of this “young” human right are seen as developing so far, with a far-reaching potential for future generations who may even today be interpreted as its holders. The main benefits of the right can be regarded in:

Finish commentators state that Finish high courts apply the “ordinary” environmental legislation a lot in environmental cases but hardly use the right to a healthy environment to support their argumentation. There has been only one ground-breaking case in which the right to a healthy environment was successfully invoked, the case of Vuotos. The core of the case lay in the process of licencing a large water reservoir for power generation. Parts of an affected territory were located in a planned Special Protection Area and in a planned Site of Community Importance, i. e. in areas of Natura 2000. That is why also the European Commission was involved in the case. Moreover, permitting the reservoir presupposed cutting down a large forest area. In the first stage, the Finnish Water Court granted the licence including the consent with tree felling, which lead to a high amount of complaints from NGOs and individuals, as well as to a criticism from the European Commission. Afterwards, the Finnish Administrative Court overturned the licensing decision of the Water Court and the Supreme Administrative Court confirmed this annulment. Both administrative courts used the right to a healthy environment to support their argumentation. They stated inter alia that the recognition of this right requires an interpretative change in certain provisions of the Water Act, originating from 1961.
 

Spain

Spain was one of the first countries in Europe that constitutionalized the right to environment in 1978. In Art. 75 of the Spanish Constitution, a “right of everyone to enjoy an environment adequate for the development of one’s personality and the duty to protect it” is recognized. The interpretation of the right went through a certain development in more than 40 years it has been in force. There has been a large academic debate about the right’s legal character and enforceability. However, the courts have not much contributed to the right’s clarification, there is almost no case law related to the right to environment. There were some environmental cases especially those regarding the noise disturbances but in their solution the courts relied more on other constitutional rights, e.g. the right to life and physical integrity and the right to private life.

 

 

Portugal

The Portuguese Constitution recognized the right to environment as early as in 1976. Article  66 formulated the right of everyone to a healthy and ecologically balanced environment for human life and the duty to protect it.  In the academic literature, the range of attitudes towards the right’s nature and substance is enormous; one of the common elements seems to be the narrow linkage between the environmental right and duty   within the “derecho-deber“ couple.  As for the case law, there is only one case that can be mentioned as an example of a successful application of the right to environment: the swallows nest case. The case was heard by the Portuguese Supreme Court in 2000, which, as the last instance of the whole legal battle, agreed with the suing environmental NGO that removing the dozens of swallow nests and preventing them from future nesting on the building of the court in Nisa constituted a breach of the right to environment.

In the Portuguese law, also the public suit (actio popularis) is established and can be used for the benefit of the environment. The constitutional right recognized in Art. 52 of the Constitution is implemented in Act No. 83/95 on participation and public suit. Despite the fact that introducing the whole mechanism of actio popularis has been well accepted in Portugal, the application in practice is rare.