Right to a healthy environment?(Dianne Saxe, Envirolaw, Apr. 5, 2013)
The answer to the title of today’s post is in 177countries of the world, but not in United States, Canada, China, Japan, Australia, and New Zealand, among 16 “laggards”, according to the report reviewed today. Why not? Those few countries that do not have substantive protection apparently are influenced by a series of concerns including the fear of the court taking precedence over legislators, a fear of a “flood of litigation” or “too vague to be useful”. Makes you wonder, especially if you are a Canadian, especially at a time when full government action is needed (and absent) to take on the challenge of climate change and air pollution.
[Stockholm Declaration, 1972] “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, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”
“the right to a healthy environment is not found in pioneering human rights documents such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), or the International Covenant on Economic, Social, and Cultural Rights (1966)”
“177 of the world's 193 UN member nations recognize this right [to a healthy environment] through their constitution, environmental legislation, court decisions, or ratification of an international agreement..The only remaining holdouts are the United States, Canada, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia.”
“some subnational governments recognize the right to a healthy environment, including six American states, five Canadian provinces or territories, and a growing number of cities”
[BUT] “constitutional environmental rights are: Too vague to be useful, Redundant because of existing human rights and environmental laws, A threat to democracy because they shift power from elected legislators to judges, Not enforceable, Likely to cause a flood of litigation, Likely to be ineffective”
[France constitution 2001] “Charter for the Environment that incorporated recognition of the right to live in a healthy environment, the obligation to protect the environment, the precautionary principle, and other key ecological principles”
[Portugal consititution, 1976] “Everyone has the right to a healthy and ecologically balanced environment and the duty to defend it.”
“Constitutional recognition of the right to a healthy environment requires that all proposed laws and regulations be screened to ensure that they are consistent with the government's duty to respect, protect, and fulfill the right.” « seeking a federal injunction requiring the national government to take all necessary steps to reduce CO2 emissions by at least 6% each year, beginning in 2013."