Jankaripatra – Magh 2066 B.S. Mainstreaming of Environmental Rights in New Constitution: Right to Clean and Healthy Environment Advocate L.B.
Human beings who are fond of development have significantly affected and polluted the Earth‟s surface as well as the atmosphere and even the stratosphere in course of the past two decades of development. 1 Keeping the biodiversity which includes the human beings also and the entire ecosystem balanced, clean and healthy 2 means also to guarantee the human rights of the third and the fifth generation of mankind 3. The natural resources and the national heritage of a country is the common asset of all the citizens of that country. The citizens of a country have a meaningful correlation with these resources from different perspectives such as the country‟s economic development and environment conservation, etc. 4. Clean, healthy and sustainable environment is a natural boon and ancestral legacy for mankind. The present and the future generations should be entitled to live in a clean, healthy and sustainable environment and it is everyone‟s fundamental right to enjoy and share that environment together. The concept of clean environment will be meaningful only when the entire ecosystem is clean5. Keeping this notion in view, the Roman philosophers also said it is everybody‟s responsibility to maintain a clean and healthy environment and that all the living beings, humans included, and the non-living things have their inalienable right to exist in a balanced, wholesome and healthy environment. The beginning of the intellectual and historical reference goes back to the Greek philosophers.6 The Greek philosophers Plato and Aristotle viewed air and water (environment) as related to the government and in their view, Greek political parties becoming capable of running a democratic government was made possible by the clean and healthy environment found there. 7 The great French philosopher Montesquieu had said cowardice and infirmity were caused by the environment while studies prove the fact that nature and the environment are primarily responsible factors on which the famous economist Malthus based his theory of population and food and the famous scientist Charles Darwin based his theory of struggle for survival. May be inspired by similar concept, our religion and culture also stress the worship of nature comprising forests, rivers, mountains, air, water and the sky. They also stress on keeping the sources of rivers and water bodies clean and healthy as these are the basis of life. It is not only our religious and cultural duty but also legal duty to keep the nature clean and healthy. Science has already proved that our survival is possible only in a clean, healthy and sustainable environment.8 A big challenge lies ahead in the present times as to how to stop and prevent environmental degradation and pollution and provide the right to a clean and healthy *Coordinator, Inclusion of Environmental Rights in New Constitution of Nepal Project. 1
the respected 2
. Therefore. Executive and Judiciary of different countries have contributed to pollution control and environmental conservation measures in accordance with these conventions and agreements. healthy and sustainable and by elucidating on the efforts that have been undertaken worldwide for that purpose. In the meantime. M. gender. Reasons for Initiation of Environmental Rights Mankind. economic. cultural. the pollutants released in the environment and the Earth surface due to the uncontrolled human activities started to cross the limits. religious. to live in clean and wholesome environment and made us incapable of maintaining the expected environment. cultural or social groups to earn a living in such a situation? The objective of this information booklet is to inform and apprise all those concerned regarding the topics and knowledge within the expertise of IUCN in the context of the Constituent Assembly carrying out the great historic job of drafting the New Constitution as it is also IUCN‟s responsibility to do so by explaining what kinds of rights and privileges it would be appropriate to incorporate in the New Constitution to always keep the environment clean. Consequently. The above-mentioned rights would be automatically restricted if there is a serious damage or degradation in the environment. plants and humans. accepted that it is the inalienable right of every citizen to live in a clean. 2. in its decision on a case. services and goods required for maintaining the entire bio-diversity and ecosystem and for fulfilling human needs. A number of conventions and covenants like the Convention on Conservation of the Cultural and Natural Heritages of the World. healthy and sustainable environment. political. in course of excessive exploitation of existing environmental resources in the world.environment to all the living beings including insects. The Legislature. it did not have an adverse effect on the external environment and public health. national and multisectoral levels. social. the uncontrolled development activities and pollution that crossed the tolerable limits caused serious damage on the fundamental rights of the living beings. Need for Clean and Healthy Environment The existence of the entire human race is possible only in a clean. Because the level of pollution emitted in the beginning was within tolerable limits. regional and ethnic rights that are being advocated with the help of the political parties will have meaning only if there is a clean and healthy environment rich in bio-diversity. Mehata versus Union of India (1992). healthy and pollution-free environment and this notion has also been adopted in Article 21 of the Indian Constitution. has been using the available advanced technology over the last some decades for leading a luxurious life. Different efforts have been made at various levels to address these problems and to incorporate the provisions of forward-looking environmental rights on the natural resources. Will the State be able to guarantee the opportunity to the people of all social strata and groups whether they are rich or poor or belong to one or the other religious.C. the Supreme Court of India. In this connection. Issues like political. 3. the Convention on International Trade in Endangered Species and the Convention on Biodiversity have been formulated and implemented at the local. including humans.
politics. services and goods and human livelihood as well as human health will be adversely affected in the absence of clean and healthy environment. It is very important that ecosystem. clean and ecologically balanced environment while the constitution of Chile has provisions guaranteeing a safe and pollution-free environment. Nicaragua and Turkey have made provisions for ensuring appropriate. it is necessary that overall environment should be healthy for utilization of the above-mentioned opportunities. spiritual and cultural realms and in income-generating activities due to the unhealthy and polluted environment remains a bitter truth. social. in its decision on this case. serene. 12 The constitutional environmental rights are ensured when the rights of the present and future generations to live in clean. stating the right to life is encompassed in the right to clean and healthy environment. Among the different rights that the State has bestowed to an individual. biodiversity. is possible only in an unspoiled ecosystem characterized by clean and healthy environment. In this way. and for the prevention and control of environmental degradation and pollution in order to ensure the right to clean and healthy environment. various countries have given place to environmental rights in their respective constitutions in tune with the time. and the constitutions of Peru. animals and plants as well as all the components of the environment are healthy. 10 Almost all the constitutions formulated after 1992 have enshrined the right to clean and healthy environment. there can be no two opinions that environmental resources. Apart from this. it is equally necessary that the environment is pure. The rest of the basic rights guaranteed by the Constitution become meaningless in the absence of the right to clean.9 A clean and healthy environment is sine qua non for existence of all the living beings including humans and for maintenance of the ecological balance. study and research. South Africa. in a case related to the Godavari Marble Industry. Keeping this importance of environment in mind. Philippines and Portugal have made provisions for ensuring natural. respectable and healthy environment. Hence. 11 The understanding that implementation of constitutional environmental rights should be guaranteed is rising. has internalized the fact that existence of bio-diversity.Supreme Court of Nepal. Thus. The constitutions of different countries have assigned necessary responsibilities for the conservation of environment and natural resources. the constitution of Korea has made provisions for ensuring pleasant environment. including that of man. has internalized that the existence of the biodiversity is only possible in a clean and healthy environment with unspoiled ecosystem. place and context. healthy and sustainable environment are incorporated under the inherent rights instead of under the Responsibilities of the State or the Guiding Principles and Policies of the State. and a clean and wholesome environment is necessary for exercising this right. sightseeing. healthy and sustainable environment. There can be no two opinions that the right to live is inherent in the right to freedom. engaging in trade and business. the right to freedom is the most significant one. That mankind will be ultimately deprived of the inherent right and opportunity to participate in different activities like education. the Supreme Court. These rights should be tailored towards their 3
. clean and healthy even for the continuity of life and the world in their original state. The constitutions of Hungary.
Argentina. „wholesome‟ or „adequate/sufficient‟ and the definition of environment being totally human-centric are the reasons behind the nonimplementation of the constitutional right to clean and healthy environment that is so fundamentally essential for the survival of life and the world. The universal bio-centric approach has been accepted with efforts being made towards ensuring the effective implementation of some constitutional environmental rights provisions in which model provisions for ensuring environmental rights are included in course of drafting the constitution by clearly defining terms like „healthy‟. the constitutional environmental rights should have the following features in order for them to be worthy of implementation:
.15 Judicial audit of most of the constitutional environmental rights has not been carried out. According to a study of the provisions on constitutional environmental rights in different countries conducted by Kate Watson. scope and jurisdiction and content have arisen in the context of implantation of the constitutional environmental rights. Complex issues related to rationality. 16 Normally. the pressing need of incorporating these vital rights to clean. Only a limited number of environmental rights are deemed to be appropriate for implementation in the course of conducting judicial auditing. From the viewpoint of the environmental experts. 17 Nevertheless. considering the non-implementation of the constitutional environmental rights in the past as well as at present.‟ wholesome‟ or „adequate/sufficient‟. the lack of specific and clear definition of environmental terms like „healthy‟. 13 Therefore.incorporation in the wider definition of environmental health by rising above the definition of human-centric health in which conservation and protection of bio-diversity is also recognized. Among the major constitutions known to have provisions for implementation of environmental rights by courts are the constitutions of the South Africa. Colombia and Costa Rica. the courts are found unwilling to have some of the judiciallyaudited basic environmental rights automatically implemented and complied to. this trend is gradually changing. The tendency of the law courts automatically implementing and enforcing the constitutional environmental rights is increasing. Portugal. 18. healthy and wholesome environment in the constitution in the context of Nepal is proved from the above examples. 19 It would be appropriate in Nepal‟s context to incorporate constitutional environmental rights in the Constitution so that they would be automatically implemented. healthy and wholesome environment as the basic human rights. slowly. redress. 14 3(A) Implementation It would be fitting here to dwell on the implementation status of constitutional environmental rights in the context of many of the world constitutions adopting the inalienable right to live in a clean.
21 Special provisions should be made under which the legislative laws formulated by the Legislature as an alternative should automatically be implementable as fundamental rights such as environmental rights that are very vital and significant. cultural. It is possible to incorporate such provisions in the Constitution only when the framers of the Constitution are sensitive to the body and content of the related provisions in the Constitution. Several courts are found to have effectively interpreted and implemented such positive rights due to the court‟s activism even in the absence of complementary laws in most of the cases. Therefore. The constitutional environmental rights should be automatically implemented on their own. and these rights are of the kind that should be directly and automatically implemented even when the rest of the legislative environmental laws are not in force. it would be appropriate to incorporate in the Constitution the environmental rights under fundamental rights section in the form of negative restrictive provisions in Nepal‟s context too. If environmental rights are incorporated in the Directive Principles and Policies of the State as positive rights as was done in the past constitutions. The important fact is that environmental rights could be fully guaranteed if the provision the courts shall implement the environmental rights even when legislative laws related to environmental rights are not implemented is clearly incorporated in the Constitution as the restrictive rights. the environmental rights can be implemented in a meaningful manner in future if the framers of the Constitution gave attention to incorporating the provisions of constitutional environmental rights as per the suggestions the environmental rights experts have given. however. These rights. 22 Hence. 3 (A) 2 Automatic implementation The provision of automatic implementation is also one of the features required of the constitutional environmental rights for them to be worthy of implementation. social and economic rights. including their environmental. 23 Everybody has concluded that the provision on locus standi on environmental rights is very narrow or restricted in scope in Nepal too. it would be considered as undermining.3 (A) 1 Rights of negative restriction The major problem or weakness in the implementation of the constitutional environmental rights is that most of the constitutional environmental rights are referred to as positive rights. can not be applicable on an individual basis in the condition of their nonimplementation. 20 As a conclusion from the above study and explanation. political. it has been suggested to use restrictive language in the process of formulating constitutional environmental rights for resolving problems encountered in the implementation of positive rights. 3 (A) 3 Locus standi on environmental rights A comprehensive definition of locus standi is necessary for ensuring the implementation of constitutional environmental rights. The constitutional environmental rights which are listed as positive rights in this way only remained confined to the policy commitment of the State. experts are of the opinion that the status and aspects of the claims can be 5
. neglecting or taking lightly the right of every Nepali citizen to overall development. In this connection.
there is still much room for hope as the Constituent Assembly (CA) members on the Committee have expressed commitment to include topics that have been missed out in the draft report at a latter date. Although this provision is not included in the preliminary draft of the Committee.8 per cent out of the total respondents who gave their opinion and inputs for the new Constitution suggested that natural and cultural heritage should be protected for the benefit of both the present and future generations. there remains the possibility of implementation of environmental rights if the provision of the inalienable right of the present and future generations to live in clean. the terminologies used under this concept or paradigm are not able to carry wider and deep meanings and definitions. states that approximately 58. 3(B) Human-centric Vs. The principle that the broader definition of environmental health should take into account the different aspects of biodiversity also is rapidly gaining currency. these rights should rise above human-centric concept or paradigm. 26 So. healthy and sustainable environment is included under the Basic Rights section of the Constitution to be formulated by the Constituent Assembly based on Nepal‟s own and various other countries‟ practices. among others. brought up and live respectably in a healthy environment and that nobody could snatch away such rights.27 Normally. „healthy‟ or „wholesome‟ environment. Besides remaining focused on the main features required for the constitutional environmental rights to be clearly implementable.24 Similarly. ruled that the unborn child and infants have the inherent right to be born. 25 It becomes clear from the Committee‟s report that the rights and interests of the future generations should be protected by means of the Constitution. Bio-centric Environmental Rights Experts in the field of environmental rights have produced facts that environmental rights should be broadly bio-centric instead of human-centric. brought up and live respectably. in the recommendations section of the report. claiming that the inherent right of the unborn children and infants to be born. in response to a case/writ petition of Oposa filed by also children. the report prepared by the National Interests Protection Committee of the Constituent Assembly. the Philippines Supreme Court adopted the principle of the right of the future generations and gave an extensive definition and explanation of entitlements. In delivering its verdict. Only under such conditions can individuals sensitive to the rights and welfare of the future generations initiate action necessary for the protection and promotion of their rights which have been lost or are on the verge of losing by invoking the locus standi when the rights of the progeny are infringed upon or are likely to be snatched away. has been violated. However.recognized by linking locus standi to environmental rights with the rights of the “progeny or the future generations” in the draft of the Constitution in an encouraging and liberal manner. humancentric rights means the limited rights clearly comprising of „sufficient‟.28 It is true that environment conservation has not really taken off since the clear-cut definition and interpretation of provisions on constitutional environmental rights have not risen above 6
. in a very liberal manner. The Supreme Court of the Philippines. The well-being of the future generations can be protected only when constitutional environmental rights are incorporated under the inherent rights that the future generation could also enjoy.
31 It is proven from the studies conducted by Kate Watson that these standards or indicators are as determined by the administrative and /or the legislative rules and /or the regulations determined as per the special condition prevalent in the countries concerned. in practice. and to full compensation against environmental pollution as well as the right of the nature. It is criticized that the courts. Still. mining industries. and Use of extended language by incorporating various other topics covered by healthy environment. the provision made in that Article defines the meaning of environmental health in broader manner. Article 2 Part 16 of the Constitution of Philippines states that the State shall provide to the people the right to balanced and healthy environment that is in tune with the nature and in harmony with balanced nature. Judicial interpretation has also been made in accordance with the basis and spirit of the provision of this Article. factories. It would be worthwhile to define in the Constitution the environmental rights in a bio-centric approach by clearly establishing the rights of the community deriving its livelihood from environmental resources. and also recognized them in that sense.human welfare and are not bio-centric in the wider sense. Therefore. it would be appropriate and practical to use 'inclusive language' or list to determine what is included in the „healthy environment‟ instead of using „complete/ precise‟ or rigid language or list. 3(C) Examples of Implementable and Bio-centric Provisions The constitutions of the countries listed below are found to have incorporated the recognized main features as stated for ensuring the implementation of provisions on constitutional environmental rights or bio-centric rights: 3(c) 1. In the case concerning Oposa. have defined these human-centric terminologies in a restricted sense meaning mankind‟s basic right to live. However. oil-drilling companies. oil industries. this provision is also human-centric. ships. gave a comprehensive explanation and stated that the said right incorporated the following topics: Prevention and control of toxic smoke emitted by vehicles and factories-industries.29 This kind of narrow and restricted definition is found to have been in practice in Colombia and Chile. the court. decision-making. instead of giving them wider definition. it would be appropriate to define healthy environment in the Constitution by considering this aspect. to meaningful participation in policy formulation. services or goods to equitable access and to equitable distribution of benefits. Therefore. 32 However. evaluation and monitoring processes.30 The conclusions drawn from a study of environmental rights in world constitutions conducted by Kate Watson suggest to include in the Constitution of Nepal now being drafted the following provisions under the broader bio-centric constitutional environmental rights by rising above human-centric concept or paradigm: Providing inter-generational dimension under which rights related to the present generation would also become rights of the future generation. or local 7
. animals and plants to live in a healthy environment. by not limiting itself to only on issues of human health and also by covering wider field. it is a fact accepted by all that it is not possible to determine the universal definition of the benchmarks of a healthy environment.
that: Prevents pollution and environmental degradation. This is a broad and highly effective constitutional environmental right. the Brazilian constitution has laid down the environmental rights. happiness and prosperity of an individual. urban waste. Part 6. roads or places frequented by people and inhabited by a community or where there is human settlement. polluting underground water sources. [The provision in this Clause has provided restrictive rights. protect and preserve the environment for the present and future generations. it has so far not become a topic of judicial audit. 34 Nevertheless. it is a norm that it is the Judiciary‟s duty to make assessment and explain about the environmental rights as well as to issue directives as to how to implement or execute the said environmental rights. duties and obligations. Conserves the environment for the well-being of the present and future generations through appropriate legislative and other means. Article 24 of the Constitution of South Africa36 provides the following rights to every citizen: 3(c) 3 a.] 3(c) 3. In this manner. leaving strip-mining or open-pit-mining uncovered or in a state unfit for re-use. environmental rights have been comprehensively defined in the Oposa case.33 3(c) 2. healthy and sustainable environment. The present and future generations and all living beings including animals and plants have the inalienable right to live in a clean. 35 3(c) 3. destroying or killing fishes or marine animals or biological marine resources by using explosive substances.communities throwing industrial waste. and it is the duty of the Government and the community to defend. Environment that does not have adverse effects on the health. dumping of organic and inorganic waste on the open land. Topic 7. and other such activities. practicing slash and burn cultivation. their implementation would be questionable if the language similar to positive rights is used in the Responsibilities section. An important fact in this court ruling is that it would be appropriate to incorporate the language used in the court‟s decision on the case as constitutional environmental rights without depending on the judicial interpretations.” In this way. effluents and sewage in the water and on land. and Ensures environmentally sustainable development and use of natural resources while carrying out equitable economic and social development activities. Promotes environment conservation. these provisions have clearly defined the responsibilities of the State and stressed on effective implementation of the goals and objectives of all the constitutional provisions.b. In such a model of the constitutional environmental rights. although the key concept of the wider bio-centric approach has been given prominent place in the State policy. Article 225 of the Constitution of Brazil states: “Every person shall have the right to balanced environment in ecological dimension. which is a public asset for use by the people and which is inevitable for healthy living.37 8
. Therefore. However. in rivers and on sea-shores. A human-centric term „Every person‟ has been subtly used without focusing on the intergenerational aspects. destroying any species of plants and animals.
Bruckerhoff has suggested the following model provisions as per the spirit of the language of the Convention on Biodiversity for securing constitutional environmental rights. in clear terms. situation and context. The court can evaluate and interpret these rights from its perspective as suits the time. in addition to some other provisions: 3(D) 1. guarantee the wider environmental right of safe climate as well as pure air. It is not suitable to remain reserved in the use of required words related to the basic rights that are concerned with the present and future generations‟ right to live and their right to livelihood.Therefore. Hence. extensive provisions for environmental rights in the New Constitution that is being formulated. 3(D) 2 (b) Provide protection to vegetation. the Government shall: 3(D) 2 (a) Provide the opportunity for conservation of bio-diversity and sustainable utilization of its components. scenic land and clean atmosphere free of poisonous chemical substances and other forms of pollution. So. These provisions intend to provide wide range of rights. it is necessary to appropriately address the unclear language mistakes in course of preparing the draft of the environmental provisions in the Constitution. 3(D) 2 (c) Maintain the required number of species that can withstand the load/pressure in natural conditions by protecting and preserving the natural habitats and ecosystems. It would not be appropriate for the CA members involved in framing the New Constitution to leave out important topics on environmental rights with the thinking that the court will do the rest of the job in future. plants and animals in a way that will lessen cruelty towards animals. J. Recognizing the core norms and values of nature. 3(E) American Model of Constitutional Provisions and Environmental Rights Incorporating the provisions stated below under the inherent rights will.38 3(D) 1 (a) Every individual as well as the future generation shall have the right to an ecologically balanced healthy environment full of bio-diversity. however. 3(D) Model Provisions of Constitutional Environmental Rights The following provisions have been made with the aim of ensuring implementation of the constitutional environmental rights and of making arrangements for comprehensive biocentric approach based on the provisions discussed above. besides providing to the present and future generations the fundamental inalienable and automatically-implementable right to healthy environment. and 3(D) 2 (e) Promote sustainable development. have the authority to have them implemented individually. trees and animals.39 3(D) 2. it is appropriate to specifically incorporate in the Constitution the following
. save species from becoming extinct and prevent the risk in the ecosystem activities of vegetation. The Government may not deny or violate these rights. it would be wise to make. potable water.
In utilizing the country's environmental resources or developing new technologies. private sector and public organizations guilty of violating the environmental rights. What can be clearly said after studying these provisions is that incorporating the provision that the rights of the country's present and future generations to ecologically balanced. Environmental Responsibilities/Obligations It would be the responsibility of the State to maintain the environmental resources as the gift for its citizens to be preserved and protected for the future and also to exercise its authority of conserving. 4. cultural. clean.provisions under the basic rights to provide inter-generational justice under the environmental rights. gender and geographical discriminations as well as of the indigenous peoples on the verge of losing their identity including the nomadic Raute tribe. and the State courts shall also give recognition to these rights as any other basic rights. Any individual or group. The environmental rights mentioned in this paragraph shall remain as the fundamental rights of citizens of the present and future generations. the State shall adopt the concept and approaches of taking precautionary measures with the objective of fulfilling and promoting these obligations. Provisions of Constitutional Environmental Rights A study of the provisions on constitutional environmental rights enshrined in the constitutions of 127 countries of the world in relation to the inalienable rights of the 10
. even if they do not get instructions issued by the State Legislature. It is the responsibility of the Government Attorneys to implement these provisions on environmental rights concerning citizens of the present and future generations. shall get redress from the State courts against the persons. preserving and upgrading these resources for the wellbeing of the present and future generations. However. if they believe their environmental rights have been violated. c. d. Article 2. these rights should be consolidated and systematized under the directives of the State Legislature. potable water and live in unspoiled land and clean atmosphere free of toxic chemical substances and other forms of pollutants. These rights shall be automatically implemented. It is necessary that all sides concerned pay attention as to how more and more of these rights could be incorporated in Basic Rights Section of the Constitution rather than getting entangled by expressing doubts over the State's capacity to implement these rights. religious. These rights comprise the right to get fresh air. and having these provisions included in the Constitution as suggested. social. The citizens of the present and the future generations shall have the right to live in an ecologically healthy environment. Article 1 The Right to Balanced Ecosystem and Healthy Environment a. healthy and sustainable environment shall be protected will be very useful and necessary for the best interests of the indigenous nationalities deprived of the opportunities to participate in the mainstream of development due to economic. b.
Federal Republic of Brazil. Republic of Belarus. Cape Verde. Republic of Albania. Republic of Georgia. the Czech Republic. the Federal Republic of Brazil. People's Republic of Ecuador. among others. Namibia. Finland. Micronesia and Zambia. Colombia. basic. Republic of Malawi. the Republic of Mozambique. It is believed the environmental rights of even the future generations could be secured if some of these provisions that are suitable for our country could be adopted. Kingdom of Norway. Argentina. Burkina Faso. Republic of Benin. Venezuela. Republic of Georgia. Angola. Afghanistan. Republic of Moldova. Federal Republic of Yugoslavia. Cameroon. Bhutan. Slovak Republic. Peru. The provision of clean and healthy environment for a happy future and prosperous livelihood is enshrined in the Preamble of the constitutions of five countries including Afghanistan. Mongolia. Chile. Austria. Argentina. Benin. Brazil. Republic of Albania. The basic rights of the citizens to get environmental information has been incorporated in the constitutions of 11 countries including Albania.Austria. Republic of Panama. the Free State of Papua New Guinea. Republic of Azerbaijan. Republic of Slovenia. Satomo Principe. Pennsylvania. Costa Rica. Eritrea. the South African Republic. Cameroon. the Federal Islamic Republic of Comoros. the Seychelles Republic. Chad. El Salvador. including Albania. Yugoslavia and the states of Hawaii. Turkey. healthy and sustainable environment for mainstreaming the environmental rights in the new Constitution shows that two major provisions in the related constitutions under the following headings. Cape Verde. Russian Federation. East Timor. the Kingdom of Bulgaria. Republic of Chad. Ecuador. Ukraine and Yugoslavia. Republic of Macedonia. Romania. Republic of Moldova. Republic of Ukraine. the People's Republic of Angola. Argentina. Andorra. Micronesia and the US states of Los Angeles and Montana. among others. 11
. Burkina Faso. Democratic People's Republic of Korea (DPRK). Republic of Paraguay. Turkmenistan. Austria. the Republic of Malawi. Romania. Colombia. The People's Republic of Ecuador. Switzerland. healthy and balanced ecosystem has been enshrined as the inevitable and inherent right of the citizens including of the present and future generations in the constitutions of 35 countries. Bulgaria. Colombia. Slovenia. Bhutan. Republic of Seychelles. The right to an adequate. Moldova. South Malawi and Mongolia. Republic of Bulgaria. Qatar. Republic of Portugal. Saudi Arabia. El Salvador. Federal Democratic Republic of Ethiopia. Illinois. The right to clean and ecologically balanced environment and biodiversity has been guaranteed as inherent right by the constitutions of 41 countries including Afghanistan. People's Republic of Ecuador. Azerbaijan. Slovak Republic. People's Republic of Angola. Republic of Congo. Montana in the United States of America. Republic of Georgia. Cambodia. Republic of Chile. the Republic of South Africa. Andorra. Republic of Portugal. Mongolia.present and future generations to live in clean. Republic of Philippines.
Malta. Republic of Cape Verde. the Chechen Republic. Pakistan and Nigeria are some of the main constitutions that have accepted through judicial decisions the environmental rights as the basic rights of the citizens although they have not directly made provisions for environmental rights in the Basic Rights sections of their constitutions. Republic of Slovenia. Republic of Vanuatu. Qatar. the Free States of Papua New Guinea. Republic of Cuba. Mexico. Democratic People's Republic of Laos. Republic of Congo. the Czech Democratic Republic and Republic of Mozambique. Republic of Lithuania. Republic of Burundi. Cooperative Republic of Guyana. Republic of Cape Verde. Mongolia. Kingdom
. Madagascar. East Timor. Republic of Costa Rica. The provision of individual's responsibility to conserve the environmental resources has been enshrined in 23 constitutions including that of Burundi. Republic of Ukraine and the Federal Republic of Yugoslavia. Republic of Hungary. Russian Federation and Free States of Papua New Guinea. Republic of Poland. Republic of Ghana. Republic of Slovakia. Chechen Republic. the Russian Federation. Greece. Croatia. Republic of Mali. East Timor. Republic of Nicaragua. Republic of Cuba. Democratic People's Republic of Korea. Republic of Latvia. People's Republic of Ecuador. Republic of Korea. Republic of Chad. Kuwait. People's Republic of China. Eighteen constitutions including those of the Republic of Turkey. Bolivia. Slovenia.Seven constitutions have included the provision of compensation against environmental damage and pollution as basic right. China. Twenty-seven constitutions including that of Bahrain. Belarus. India. Republic of Belarus. Finland. Slovak Republic. Republic of Croatia. the Cooperative Republic of Guyana. Ghana. Costa Rica. among others have provisions that state it is the responsibility of the State to protect and conserve all types of environmental resources. Thailand. Republic of Macedonia. Republic of Mozambique. Republic of Madagascar. the Federal Republic of Yugoslavia. Republic of Tajikistan. among others. the Cooperative Republic of Guyana. Republic of Kazakhstan. Republic of Uzbekistan. Congo. Republic of Mali. Spain. the Free States of Papua New Guinea. Republic of Croatia. Equatorial Guyana. have assigned that conservation of environmental resources is the responsibility of both the State and the individual. Equatorial Guyana. People's Republic of China. Cuba. Republic of Bolivia. Bangladesh. Republic of Bolivia. Republic of Ghana. Bahrain. Burkina Faso. The constitutions of Uganda and Uruguay state that it is the basic right of every citizen to get clean drinking water. Romania. Tajikistan. Republic of Benin. Republic of Belarus. Eritrea. They are the constitutions of the Republic of Azerbaijan. The constitutions of India. Haiti.
services and goods to indigenous peoples who have lost their identity or are on the verge of losing it like the nomadic Rautes. Haiti. It is found that several countries. It would be considered environmental rights have been fully protected in a meaningful way if the provision of giving full compensation in connection with the environmental damage as well as humanitarian loss caused or likely to be caused in course of the infrastructure development is incorporated in our Constitution also. in an unfettered manner. (b) The right to equitable access and sustainable use of environmental resources.
5. Conclusion and Recommendations A study of environmental provisions of different countries of the world shows that every country has recognized and given space to the environmental rights in their respective Constitutions based on their existing environmental. These rights have been accepted as the inherent rights of the present and future generations. besides including them in the Basic Rights section. who are guilty of damaging or polluting the environment or instigating the same or not making efforts to stop such activities. fully accountable /responsible for the damage caused or likely to be caused due to their negligence. goods and services and to equitable distribution of the benefits accruing from the utilization of such resources. at least. the Constitutions of which have made no mention of environmental rights prior to the Rio Conference on Environment in 1992. The State and the individual could be stopped from becoming apathetic to environmental conservation if provisions are made for making the officials of the State or individual.of Thailand. healthy and sustainable environment as the fundamental rights. in a clean. and most of the countries that are party to the Convention on Biodiversity. Most of the Constitutions formulated after 1992 have given space to the environmental rights in the Preamble itself. the Russian Federation. The provision on environmental rights can be implemented only when infrastructural mechanisms required for maintaining a clean and healthy environment are provided for in the Constitution. the 13
. Saotomo Principe and the US state of Illinois. many countries are found to have adopted the principles of environmental jurisprudence and the concept of sustainable development and proximity as the basic fundamental standards in the form of constitutional environmental rights. the Socialist Republic of Viet Nam. healthy and sustainable environment. the following provisions were to be incorporated under the Fundamental Rights section in the New Constitution: (a) The right of the present and future generations to live and grow up. amended their Constitutions to incorporate the environmental rights. cultural and economic conditions. Since 1992. The opportunity for all-round development of the present and future generations could be guaranteed if. The Constitutions of most countries have given space to especially balanced and healthy ecosystem full of biodiversity and to the inalienable right of the citizens to live in clean. the Federal Republic of Germany. social.
Apart from other duties. Environment Committee and Environmental Court o Tribunal also. Writ No. Narayan Belbase. References Advocate Balkrishna Neupane Vs.U. geographical and regional status.N. decision-making. for his invaluable technical assistance. Dalits. it would be appropriate if provisions are made in the New Constitution for Commission on Environment. gender. public and private organizations and individuals. Patricia Moore. Suggestions submitted to the members of the National Interest Protection Committee of the Constituent Assembly based on the conclusions drawn from discussions. 1991. the Environmental Conservation Council. the fundamental duties should also include the provision that it would be the responsibility of every individual to protect and preserve the environmental resources.indigenous nationalities. Thanks are due to all authors. (d) The right to adaptation for protecting oneself from the adverse impact of climate change. among others. Thanks also go to Rabindra Raj Joshi and Amit Pradhan who helped with the typing and lay-out of this document. goods and services. Thus. the Council of Ministers Secretariat et al.” Janahit Sanrakshan Manch (Pro-public). it can be expected that the inalienable right of the present and future generations to clean. Supreme Court special bench decision on December 15.C. underprivileged communities. social. dialogue and panel discussion programme on the Preliminary Draft Report 14
. (c) The right to get environmental information in an unrestricted manner and the right to participate without discrimination in the environmental policy formulation. Lal Bahadur Thapa. I am deeply indebted to senior environmental law expert. Among the provisions of institutional mechanisms for enforcing the different rights. the New Constitution should also have provisions on the fundamental duties.. 1851. 1992. scholars and individuals engaged in research and studies who prepared the materials that have been borrowed and used in this Information Folio which was written in January 2010. Mr. I would like to express special gratitude to my colleague at IUCN-Thailand. Kate Watson and Chief of Regional Environmental Law Programme. economic. (2009). religious. causing significant environmental damage or pollution or for colluding to cause such damage. (e) Besides making provisions on the right to get full compensation from the related government office-bearers. Kathmandu. I. Madhesis and the gender and religious minority classes. healthy and wholesome environment would be established in the real sense of the word if those provisions are incorporated in the New Constitution as topics that are automatically implemented. Bhoj Raj Ayer and Prakashmani Sharma [Editors] (2000). women. Bishnu Prasad Pokharel. evaluation and monitoring processes in a meaningful way based on one's political. a leading figure in the environmental law sector of Nepal who is also the Resource Person in the Inclusion of Environmental Rights in New Constitution Project. Asia-Thailand. “Compilation of Cases Related to Environmental Conservation.
May. 1995. Kathmandu. Cultural Models. Padam Lal Devkota and Netra Prasad Acharya (2007). Academic Book Centre. Lal Bahadur Thapa. “Environmental Pollution: Problems and Solutions. A Compilation of Cases Related to Environment Conservation. T. Human Rights and Environmental Rights in New Constitution. Lal Bahadur Thapa. (2007). Ferris. Kate. (2008). (I.U. Writ Full Bench Number 35.” Narayan Belbase (Editor). Bishnu Prasad Pokhrel.N. Forum for Justice. Bruckerhoff.1 Gauri Pradhan (2009).C. Janahit Sanrakshan Manch (Pro-public). June 2007. 2009. Surya Prasad Dhungel Vs. working paper entitled “Clean and Healthy Environmental Rights: Basis for Basic Environmental Rights in New Constitution” presented at the twoday interaction programme on „Environmental Rights and Good-governance in New Constitution’ for the Constituent Assembly members jointly organized by International Union for Conservation of Nature (IUCN) and Janahit Sanrakshan Manch (Pro-public) on July 16 and 17. Janahit Sanrakshyan Manch (Pro-public). Environmental Justice and Equitable Justice: Possibilities and Challenges. 23 Pace Environmental Law Review. presented at 5th Annual IUCN Academy of Environmental Law Colloquium. Kathmandu. Ltd. Constitutional Environmental Rights: An Under-Utilized Resource. Bishnu Prasad Pokhrel Bhoj Raj Ayer and Prakash Mani Sharma (Editors) (2000).. August. J. 86 Texas Law Review. 2009. 15
. Thailand. Fundamental Environmental Rights. Watson (2009). 2009. Bhoj Raj Ayer and Prakash Mani Sharma (Editors) (2000).U. Review of World Constitution. J.. Parati. Brazil. (Unpublished) in IUCN Nepal files. “Compilation of Cases on Environment Conservation”. National Interest Protection Committee’s Report on the Preliminary Draft along with Explanatory Comments based on Concept Paper. National Interests Protection Committee (2009). Nepal). (2005-2006). Pramod Kumar Jha (2006). Godavari Marble Industries Pvt. Kathmandu. Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights. Constituent Assembly. L. Kirtipur.of the Committee along with explanatory comments based on the Concept Paper of the committee. International Union for Conservation of Nature (IUCN). Date of verdict October 31. Information Folio. Laxman Prasad Aryal (2009).
(2007). Pramod Kumar Jha (2006). August. 11.C. John Willey and Sons Inc. Judicial Handbook on Environmental Law. economic and human activities and the interactions and inter-relations with their components. 6 6. 8. “Environmental Pollution: Problems and Solutions”. Health and Human Rights Working Paper Series 1. Date of verdict October 31. London. note no. Shelton. 2009.. D. 2. Shelton. By environment is understood the natural. 2 4. 1995. Laxman Prasad Aryal (2009). (2002).” 86 Texas Law Review.N. Watson (2009). 1992. Forum for Justice. 269. World Health Organisation.(Editors) See Op. Narayan Belbase (editor). D. “Human Rights.. Santa Barbara. Kathmandu. (2008). Thailand. Ecological Anthropology.Cit. 4 Surya Prasad Dhungel Vs. Kate. 2009. Kiss (2005). D. “Compilation of Cases Related to Environmental Conservation. Ltd. Sydney. and A. No. Rajamani. 1991. L. working paper entitled “Clean and Healthy Environmental Rights: Basis for Basic Environmental Rights in New Constitution” presented at the two-day interaction programme on „Environmental Rights and Goodgovernance in New Constitution’ for the Constituent Assembly members jointly organized by International Union for Conservation of Nature (IUCN) and Janahit Sanrakshan Manch (Pro-public) on July 16 and 17. of the Department of Environment and Natural Resources. (1977). and A. Supreme Court special bench decision on December 15. D. Bishnu Prasad Pokharel. above . Kiss (2005). 12. 1851. 16 (3) RECEIL. Writ No. The Right to Environmental Protection in India. 10.. 11. (I.. United Nations Environment Program.. Shelton. Judicial Handbook on Environmental Law. 614 16
. Padam Lal Devkota and Netra Prasad Acharya (2007).U. Cit No. 1. (1994).Minors Oposa v Sec. Toronto. 146. 5. 3. Advocate Balkrishna Neupane Vs. International Union for Conservation of Nature (IUCN). 30. Writ Full Bench Number 35. J.U. 6. the Council of Ministers Secretariat et al. 2.. T. Academic Book Centre. Nepal). Review of World Constitution. Lal Bahadur Thapa et. 66 5. Information Folio. New York. 7. Godavari Marble Industries Pvt.” Janahit Sanrakshan Manch (Pro-public). 31 and 133-137 and Bruckerhoff. Bhoj Raj Ayer and Prakashmani Sharma [Editors] ( 2000). United Nations Environment Program. Donald L. 23. Cultural Models. Lal Bahadur Thapa. Kathmandu. Kirtipur.al. Gauri Pradhan (2009). cultural and social systems.. Hardesty. Environmental Justice and Equitable Justice: Possibilities and Challenges. Human Rights and Environmental Rights in New Constitution. Health and Environmental Protection: Linkages in Law and Practice”. “Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights. (Unpublished) in IUCN Nepal files. 9. Shelton. Kiss (2005). and A. See Op. Laxman Prasad Aryal (2009). Annotations: 1.
13. Bruckerhoff (2008). 30. above. Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights. J Bruckerhoff (2008). Shelton. Parati. presented at 5th Annual IUCN Academy of Environmental Law Colloquium. 627-628. 10. above. 37. 10. 32. J. note no. 18. 10. Ferris (2007). above. 631-632. 25. Kate Watson (2009). Ferris. D. J Bruckerhoff (2008). May. Kate Watson (2009). “Fundamental Environmental Rights”. J. Bruckerhoff. Bruckerhoff (2008). 634 and Ferris. note no. note no. Bruckerhoff (2008). 13. Kate Watson (2009). 33 ILM 173. 28. note no. L. 13. D. June 2007. Kate Watson (2009). Brazil. 13. 21. Kate Watson (2009). “Human Rights.1 27.N. above. 28. I. 16 (3) RECEIL at 278 specifically in relation to enforceability of the right in India. note no. Brazil. note no. 28. above. 22. Parati. 614 (especially at 625-630). National Interest Protection Committee’s Report on the Preliminary Draft along with Explanatory Comments based on Concept Paper. The Right to Environmental Protection in India. (2007). Shelton. above. above. note no. note no. (2002). above. note no. 622. 24. 19. (2007). Constitutional Environmental Rights: An Under-Utilized Resource. Parati. (2009). 26. 17
. (2007). above. note no. (2007). 16. 13. note no. presented at 5th Annual IUCN Academy of Environmental Law Colloquium. Bruckerhoff (2008). 635-636. Constitutional Environmental Rights: An Under-Utilized Resource. 7-8 and 30-31. 13. J. (1994). above. above. 1. note no. Health and Environmental Protection: Linkages in Law and Practice”. J. 10. National Interests Protection Committee (2009). 33. 31. 13. above.. Minors Oposa v Secretary of the Department of Environment and Natural Resources. 636-637.(especially at 625-630). presented at 5th Annual IUCN Academy of Environmental Law Colloquium. 262. above. J. Kate Watson (2009). 34. 10. 6. 2009. above. note no. See also Rajamani. 2. L.C. J. Brazil. above. 6. note no. 34. Ferris. 13. 13. (2008). above. Kiss (2005). 113 at 133. (2008). 36.U. Kate Watson (2009). and J Bruckerhoff (2008). note no. World Health Organisation. 23. 23 Pace Environmental Law Review. J. 2.2. 22. above. June 2007. 2. 35. and A. 13. note no. note no. L. L. Constituent Assembly. L. 29. (2005-2006). 10. above. 17. 86 Texas Law Review. 11. 634. Ferris (2007). 20. 14. Bruckerhoff. 15. J Bruckerhoff (2008). Suggestions submitted to the members of the National Interest Protection Committee of the Constituent Assembly based on the conclusions drawn from discussions. 10. Constitutional Environmental Rights: An Under-Utilized Resource. note no. dialogue and panel discussion programme on the Preliminary Draft Report of the Committee along with explanatory comments based on the Concept Paper of the committee. above. June 2007. L. 626-627. Health and Human Rights Working Paper Series 1. 6. note no.
10. 5.38. 10. Kate Watson (2009). above.
. Kate Watson (2009). 39. note no. above. note no. 34.