Constitutionalization of environmental rights: experience of the Republic of Belarus and foreign states



This article discusses the experience of securing environmental rights in the Constitution of the Republic of Belarus and foreign countries. It is concluded that through the constitutionalization of environmental rights, a solid fundamental legal platform is created for solving environmental problems.

Keywords : constitution, environmental rights, right to a favorable environment, environment.

Today, the environmental problem is on the agenda of many states. Disbalance of natural ecosystems, environmental pollution, degradation of natural resources and threats to human health are just some of the environmental problems. The cause of many of these problems was the man himself and his activities.

The 2023 UN Environment Report Climate Change: The Summary states that “human activities, principally through emissions of greenhouse gases, have unequivocally caused global warming, with global surface temperature reaching 1.1°C above 1850–1900 in 2011–2020” [1].

Of course, ecology and human rights are interrelated, since an unhealthy environment can lead to violations of human rights; at the same time, respect for human rights plays an essential role in protecting the environment.

The right to a clean, healthy and sustainable environment as a universal human right was recognized at the global level by the UN General Assembly in a resolution adopted in July 2022. Despite the recommendatory nature of the resolution, it is a catalyst for action and empowers ordinary people to hold their governments accountable in a very powerful way [2].

The vast majority of states have recognized the right to a clean, healthy and sustainable environment in some form in international agreements, their constitutions, legislation, laws or policies. In this sense, the constitutions of states play a special role, because enshrining the right to a healthy environment in national constitutions certainly encourages states to enforce it.

Article 46 of the Constitution of the Republic of Belarus proclaims the right of every person to a favorable environment and to compensation for harm caused by the violation of this right. In addition, the Constitution of the Republic of Belarus enshrines such basic environmental rights as the right of citizens of Belarus to receive information about the state of the environment (Article 34), guarantees of the right to health care (Article 45), which is ensured, among other things, by measures to improve the environment [3].

The Constitution of the Russian Federation establishes three independent environmental rights: the right to a favorable environment; the right to reliable information about her condition; the right to compensation for damage caused to health or property by an environmental offense [4].

Article 45 of the Spanish Constitution establishes the right to an adequate environment for human development and the obligation to preserve the environment [5].

In some constitutions, the right to a favorable environment is not directly enshrined, but follows from the meaning of their provisions. For example, the right of citizens to a favorable environment follows from the meaning and content of the legislative norm enshrined in paragraph 1 of Article 31 of the Constitution of the Republic of Kazakhstan, which states that “the state aims to protect the environment favorable for human life and health” [6].

There are constitutions that contain some reservations, restrictions and conditions when securing the right to a favorable environment. For example, Article 35 of the South Korea’s Constitution stipulates that “all citizens shall have the right to a healthy and pleasant environment”, but includes a subclause that “the essence of environmental law is determined by law”. Article 56 of the Turkish Constitution grants “the right to live in a healthy and balanced environment”, but subsequently conditions this right on the government having sufficient resources to improve environmental protection [7, р. 206].

Some constitutions do not enshrine environmental rights. For example, the US Constitution does not contain an explicit right to a pure aggregate. At the same time, environmental rights appear in the constitutions of some states: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania and Rhode Island, New York, etc. [8].

Overall, researchers point out that more than 150 countries have constitutional environmental provisions of some kind and in at least 88 countries, these take the form of explicit constitutional environmental rights [7, р. 27].

The first step in the constitutionalization environmental right, according to researchers, is the inclusion of a clearly worded substantive right to a clean environment in the constitution in clear, direct and enforceable language devoid of equivocation. This is usually couched using various “evaluative-descriptive” terms including “ecologically sound”, “habitable”, “conducive”, “viable”, “decent” or simply “safe” environment. The Constitution of Colombia stipulates that “every individual has the right to enjoy a healthy environment”; Kenya’s Constitution provides that “every person has the right to a clean and healthy environment” while Ecuador’s Constitution uses the phrase “ecologically balanced environment” in conferring a substantive constitutional environmental right [7, р. 205–206].

Thus, the constitutions of many states recognize environmental human rights, thus creating a solid fundamental legal platform for solving environmental problems. A fundamental environmental right, enshrined in many constitutions, is the human right to a favorable environment. However, other environmental rights of citizens are closely related to the human right to a healthy environment, such as: to receive timely, complete and reliable environmental information from state bodies and organizations; bring claims to the courts for compensation for harm caused to their health and property as a result of violation of environmental legislation; and others.

References:

1. Climate Change 2023: Synthesis Report. — Текст: электронный // IPCC: [сайт]. — URL: https://www.ipcc.ch/report/ar6/syr/ (дата обращения: 28.05.2023)
2. The human right to a clean, healthy and sustainable environment. — Текст: электронный // UN Digital Library: [сайт]. — URL: https://digitallibrary.un.org/record/3982508?ln=en (дата обращения: 28.05.2023).
3. Constitution of the Republic of Belarus. — Текст: электронный // Pravo.by: [сайт]. — URL: http://law.by/databank-business/constitution-of-the-republic-of-belarus/ (дата обращения: 28.05.2023).
4. Constitution of the Russian Federation. — Текст: электронный // КонсультантПлюс: [сайт]. — URL: https://www.consultant.ru/document/cons_doc_LAW_28399/ (дата обращения: 28.05.2023).
5. Constitución Española. — Текст: электронный // Senado de España: [сайт]. — URL: https://www.senado.es/web/conocersenado/normas/constitucion/ detalleconstitucioncompleta/index.html#t1c2s1 (дата обращения: 28.05.2023).
6. Constitution of the Republic of Kazakhstan. — Текст: электронный // ЮРИСТ: [сайт]. — URL: https://online.zakon.kz/Document/?doc_id=1005029&pos=124;-40#pos=124;-40 (дата обращения: 28.05.2023).
7. Abba, P. Constitutionalising Environmental Rights for Sustainable Environmental Protection in Nigeria’s Niger Delta Region / P. Abba. — Exeter: University of Exeter, 2018. — 392 c. — Текст: непосредственный.
8. Environmental Rights in State Constitutions. — Текст: электронный // Sabin Center for Climate Change Law: [сайт]. — URL: https://blogs.law.columbia.edu/climatechange/2021/08/31/environmental-rights-in-state-constitutions (дата обращения: 28.05.2023).