Constitutional Environmental Rights

The previous chapter showed that there is no objection of principle to constitutionalizing the human right to an adequate environment, but the critical argument to be addressed in this chapter is that there are in practice such difficulties standing in the way of its being effective and achieving its ends that it would not be prudent to constitutionalize the right. Proponents of this argument make the reasonable point that what really matters is not simply what is written in a constitution but the measures to achieve effective implementation and enforcement. The critical claim they make is that a constitutional right to an adequate environment can generate expectations which are illusory because it cannot in fact be effectively enforced. The reason given is that there are peculiar difficulties in translating the aspiration of the right into effective legal rights that citizens can rely on in courts: there are difficulties of making this right justiciable—that is, of making an admissible case on its basis in the first place; and even where a case can be brought, there are peculiar difficulties in the nature of environmental issues which make success on the merits unlikely.

In the first two sections of this chapter I examine these difficulties, showing that while in many jurisdictions at present they may be real ones, they are not insurmountable and do not arise because of anything inherent in the nature of rights or of environmental problems. What surmounting them does involve, though, is not only improving citizens' access to justice—which critics do not necessarily object to—but also ensuring that courts

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