Enforcing the Elusive: Environmental Rights in East European Constitutions
By Ryan K. Gravelle
INTRODUCTION
Few would dispute that today environmental issues are of paramount universal importance; the realities of ecological destruction are thrust constantly upon the citizens of the world. Beginning in the late 1960s and with the first Earth Day in 1970, these issues took on an impending global tenor and evolved from a general acknowledgment of concern to specific large-scale instrumental action. International organizations began to look at the expansion of existing human rights as including a right to the environment. The first step in this direction is generally acknowledged to have been the United Nations Conference on the Human Environment, held in Stockholm in 1972; from this point onward, a vast framework of international and national environmental structures emerged. For most developed nations, adopting an expanded environmental focus became simply a matter of working within an existing legal matrix. As the metamorphosis from concern to specific right began, however, certain nations seized the opportunity to grant, via a constitutional provision or domestic law, a right to a healthy environment. The nations of post-Communist Europe, perhaps to spearhead the cleanup of a half-century of neglect, included in their constitutions such comparatively bold environmental rights. A debate has thus ensued over the wisdom of placing in constitutional instruments positive social and economic rights such as that to a clean environment. More specifically, criticism has most often arisen with respect to the difficulty of enforcing these constitutional rights. If the drafting is not precise in its language, then theoretically, the attempted granting of an environmental right might become nothing more than a general statement of public policy incapable of enforcement. Moreover, even a self-executing provision is impotent if the nation lacks the effective legal structures for implementation. Such concern is particularly salient for the new East European democracies, which have vast historical and cultural differences from their more established western counterparts. This note will detail the necessary elements and pitfalls of these new constitutional rights, outline several theories on effective implementation, and offer some new thoughts on how best to enforce East European constitutional rights to the environment.
Few would dispute that today environmental issues are of paramount universal importance; the realities of ecological destruction are thrust constantly upon the citizens of the world. Beginning in the late 1960s and with the first Earth Day in 1970, these issues took on an impending global tenor and evolved from a general acknowledgment of concern to specific large-scale instrumental action. International organizations began to look at the expansion of existing human rights as including a right to the environment. The first step in this direction is generally acknowledged to have been the United Nations Conference on the Human Environment, held in Stockholm in 1972; from this point onward, a vast framework of international and national environmental structures emerged. For most developed nations, adopting an expanded environmental focus became simply a matter of working within an existing legal matrix. As the metamorphosis from concern to specific right began, however, certain nations seized the opportunity to grant, via a constitutional provision or domestic law, a right to a healthy environment. The nations of post-Communist Europe, perhaps to spearhead the cleanup of a half-century of neglect, included in their constitutions such comparatively bold environmental rights. A debate has thus ensued over the wisdom of placing in constitutional instruments positive social and economic rights such as that to a clean environment. More specifically, criticism has most often arisen with respect to the difficulty of enforcing these constitutional rights. If the drafting is not precise in its language, then theoretically, the attempted granting of an environmental right might become nothing more than a general statement of public policy incapable of enforcement. Moreover, even a self-executing provision is impotent if the nation lacks the effective legal structures for implementation. Such concern is particularly salient for the new East European democracies, which have vast historical and cultural differences from their more established western counterparts. This note will detail the necessary elements and pitfalls of these new constitutional rights, outline several theories on effective implementation, and offer some new thoughts on how best to enforce East European constitutional rights to the environment.
