The Internationalization of Constitutional Law

Since the middle of last century, environmental protection gradually attained worldwide attention for its interlock with human rights and economic development. Environmental rights were not a focal point in the early international human rights regime, but in stead the scope of existing rights was enlarged to encompass environmental concerns through the arguments of human rights institutions, NGOs and the national courts. Lately, the international instruments addressing environmental problems influence both the national and regional levels, either embodied within the provisions of legal documents, or being actively referred by the courts. At the national level, although there still is much debate on the definition and scope of a “right to environment”,[1] it has won substantive support in many courts, as well as explicit recognition as a constitutional right in some countries. Furthermore, despite there being no international legally binding instrument recognizing right to environment, there is, at the regional level, a development towards legalizing the right to environment. For the past two decades, the legislation of environmental rights constituted the most vibrant part of national law-making. The process also has certain reciprocal effects regarding the influence of national and regional norms on international law; however, this question falls outside the scope of this article, as it will only focus on the influence of the international discourse on national level developments.

I. The International Development of Environmental rights

(I)The Stockholm Declaration

The Declaration of the United Nations Conference on the Human Environment, also known as the Stockholm Declaration, adopted on the 16th of June, 1972, proclaims the relationship between human rights and environmental protection.

The universality of human rights was recognized already in 1948 by the promulgation of the Universal Declaration of Human Rights, a development that followed the atrocities committed by the axis forces during the World War II and that continued up until this day. At the time when the universal human rights standards were being formulated, environmental problems did not attract much attention, and consequently international human rights law has not traditionally touched upon the issue. The serious environmental disasters from the 1950’s onwards, including what has been called the “eight public harm incidents”, including the London smog, the asthma events in Yokkaichi, Japan, etc,[2] gradually put environmental issues on the agenda. The influence of a degrading environment on human health, the relationship between environmental protection and enjoyment of human rights has been, and continues to be hotly debated at both national and international levels ever since.

The incidence of environmental problems cannot be delimited by national boundaries. Any environmental damage, either from natural disasters or directly through human action will exert profound influence on the enjoyment of human life, consequently international and transnational efforts has to be made to deal with the problems that occur. Similarly to international human rights, this challenges the traditional concepts of national sovereignty; furthermore, these concerns place responsibilities on individuals beyond the usual scope of personal liberties. Although the discussion on whether there is a need to develop a separate right to a clean environment initially was limited to developed countries, the issue has been spreading rapidly throughout the world.[3]

In this context, the UN convened the Conference on Human Environment in June of 1972. One result of the Conference is the Declaration on Human Environment, also called as the Stockholm Declaration. It firstly articulated the relationship between environment and human being, environmental protection and human rights.

Principle 1 proclaims:

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 document is very important in the sense that it purported the implication of environmental protection to human rights protection.

(II)The Brundtland Report

Although the proclamation of the relationship between human rights and environmental protection in the Stockholm Declaration and the significance of the declaration is widely recognized; however, since then there has been no big step further in the establishment of a specific right to environment within international law. It is to a large extent attributed mainly to the broad scope of the term “environment” and the close relationship between environmental degradation and economic growth. In spite of no clear recognition of a specific right to environment at the international level, the international community, through inter alia United Nations and international NGOs, have never stopped their efforts in developing a functional definition of the right to environment. The main achievements since the Stockholm Declaration until the late eighties include, the 1986 United Nations General Assembly recognized the relationship between the quality of human environment and the enjoyment of basic human rights (UNGA resolution 2398 (XXII) 1986); Convention on the Rights of the Child refers to aspects of environmental protection in respect to the child’s right to health.[4] However, the most important document in this time-period is the Brundtland Report. The report was prepared by the World Commission on Environment and Development (WCED), which was established as an independent body by the UN General Assembly in 1983 and chaired by the Norwegian Primer Minister Gro Harlem Brundtland.[5] In 1987, the Commission submitted the report “Our Common Future”, the Brundtland Report, to the General Assembly. In the report, the commission indicated that: We have in the past been concerned about the impacts of economic growth upon the environment. We are now forced to concern ourselves with the impacts of ecological stress - degradation of soils, water regimes, atmosphere, and forests upon our economic prospects. [6] In order to formulate realistic proposals for dealing with the critical environment and development issues, the report introduced the concept of sustainable development and defined it as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.[7] The sustainable development was not firstly raised by the report, but it is the Brundtland Report that has made the concept have the worldwide influence.

(III) Rio Declaration and the Conception of Sustainable Development

In 1992, UN Rio Conference on Environment and Development was convened. In this conference, the participants discussed the topic on the relationship between environment and development and how to tackle the tension between them. In order to strike a balance between the economic growth and the environmental protection, the 1992 Rio Declaration reinforced the concept of sustainable development.

By reinforcing the democratic procedural rights in the area of environmental protection, the Rio Declaration aimed to balance the stressing tension between environmental protection and economic growth by strengthening public participation in the process of environmental decision-making. Rio Declaration emphasizes the importance of international cooperation and public participation in dealing with environmental problems. In principle 20, it proclaims:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Within the context that there could be no consensus on the expression of “right to environment” among the international community, it is difficult to speak of a singular right as often without the practice within other rights discourses, the Rio Declaration provided the international community with an alternative choice for international cooperation on the environmental protection. The Declaration uses the terminology of state responsibilities rather the rights of the people to address environmental problem. Although there is no explicit expression of right, the document substantively emphasizes protection of participatory environmental rights from three aspects: the right to environmental information, participation in environmental decision-making and access to judicial redress.

Another result of the Rio Conference is “Agenda 21” which called for the fulfillment of basic needs, and improved living standards for all, better protected and managed eco-systems and a safer, more prosperous future. The participatory countries signed it and drafted their own national Agenda 21 afterwards. Nowadays, the concept of sustainable development has become a guide principle in the process of environmental decision-makings, and also in the jurisdiction.

II. The Definition and Scope of Right to Environment

From the very beginning when a right to environment was proposed, there was hot debate on definitions and feasibilities of a separate right to environment in legal system. The most common critique to a right to environment is that the meaning of environment is so broad that it is impossible to be qualified as a legal term.

(I)The Definition and Scope of Right to Environment

Environment, as a very general concept, includes almost everything around us, e.g. water, air, food, soil, etc.. Dictionaries define “environment” as the “objects or the region of surrounding anything”. Accordingly, it encompasses both the features and products of the natural world and those of human civilization. On this definition the environment is broader than, but includes, nature, which is concerned only with features of the world itself. [8] The concept of environment is so broad and consequently the scope of environmental problems is so wide that there are arguments on the possibilities of defining a right to environment in legal implication. Due to the limitation of human knowledge, the scientific uncertainty involved in the environmental process makes environmental decision-making a balancing consideration between risks and benefits. To make it more complicated, the environmental problem has close relation with development, and sometime the byproduct of development, and the tension between environmental protection and economic growth makes environmental decision-making also very political for being as a bargaining process among groups of different interests .

(II) Right to Environment and Environmental Rights

The differentiation here in this text between a right to environment and the environmental rights related to the debate on the definition and scope of a right to environment. As we have discussed, there are arguments against the idea of establishing a specific right to environment. Instead, the people holding the opinion insisted that the protection of a right to environment could be implemented by applying established rights, such as right to health, right to life, right to water, right of indigenous people, right of culture, right to environmental information, right to participation in environment decision-making, etc., which are generally called environmental rights for their implication to environmental protection. The fulfillment of these rights is either impaired by environmental harm or crucial to participation of environmental affairs.

In this text, for convenience, the author uses environmental rights generally including any right which has environmental implications no matter whether it is a separate right to environment or not, but does not intend to focus on the differentiation, unless it causes unnecessary ambiguity.

(III)Stimulating Achievement of Environmental Rights at the Lower Levels

Although there is still debate on environmental rights, nobody denies the crucial role of a clean environment to enjoyment of human life. The controversies on how to define a right to environment and the necessity of a right to environment to be established as a separated human right or constitutional right did not hinder environmental protection achieving very important status within different legal regimes, either being incorporated into lower level of regional convention or national law, or wining substantive respect from human rights treaty institutions and national courts.

Comparing to the stigmatic situation in reaching a consensus on a right to environment at the global level, the progress at national and regional levels is much more stimulating. At the regional level, both the African Charter on Human Rights and People’s Rights and Protocol of American Convention on Human Rights have an explicit expression on a right to environment ,and the corresponding treaty institutions of human rights are also very active when interpreting the environment-related rights. Within the framework of the European Convention of Human Rights, environmental rights won substantive respect with interpretation by European Court of Human Rights on articles 8, 10 and other articles of the Convention. At the national level, almost every constitution includes provisions on environmental protection, and some of them explicitly recognize a right to environment.

III. National Norms on Environmental Protection

The process of internationalization of constitutional law is quite obvious in the area of environmental protection. The spirit cherished in international instruments influenced the national practices and was incorporated into the national law, either written into wording in the legal code or referenced during judicial considerations. Since international instruments usually are the basic common sense reached worldwide and regarded as the basic standards, state parties have to self-exam by reference to international instruments. In this part, I will mainly exam constitutional development on environmental protection at national level.

Comparing to the discouraging progress on international law-making on a right to environment, states went much further in the field of environmental legislation. Nowadays, almost all countries have environmental provisions in their constitutions either as a right or as a state policy. During the process of national legislation, international experience is learnt; especially the worldwide discourses on relationship between environmental protection and human rights protection have far-reaching influences on national legislation. Based on their special traditions and situations, many countries take their own paths on the environmental protection.

(I)Early Constitutional Provisions on Environmental Protection

National legislation on environmental protection is also related to the environmental crisis, but varies according to different context of culture, tradition, level of development and international exchanges and etc..

The earliest constitution addressing environmental problem is that of Switzerland. In the Constitution of 1874, it stipulated: The federal legislate on protection of the man and his environment from infringement. The federal fights against air pollution and noise pollution.[9]

The new established socialist countries after World War II were among the countries which addressed environmental protection comparably early. Those countries often addressed environmental protection from the perspective of protecting public properties. Such as the Poland Constitution of 1952 states: Properties of people, including the mineral resources, power, water, forest and so on,…… should be protected by the state and the citizen. [10]The Czech Constitution of 1960 states: The state takes care of the nature and protect it and the beautiful scenery so as to provide a resources for the well-being of people and the suitable environment for the working and rest of people. [11]However, a large scale of legislation on environmental protection is after the 1972 Stockholm Declaration.

(II)The Vibrant Development of Environmental Legislation

The expression on right to environment in the Stockholm Declaration has far-reaching meaning for national environmental legislation. Although the Stockholm Declaration is not legal-binding, most countries did transform it into national laws. Since 1972, almost all countries which passed new constitutions or constitutional amendments include environmental expressions either in the terminology of fundamental right or state policy, or the combination of both.

i. Environmental Protection as the State Policy

No one denies that environmental protection is a very important task for the state so that almost all countries take environmental protection as a state policy, which means all governmental departments should consider the policy when making decisions which have impact on the environment.

ii. Environmental Protection as the Fundamental Right

After the Stockholm Declaration, a right to environment was explicitly recognized in some countries, whereas the qualification language on the right is far from homogeneous. Such as the 1980 Constitution of Chile guarantees everyone "the right to live in an environment free from contamination”. (art. 19 (8)). The Constitution of the South Korea (1987) proclaims that "All citizens have the right to a healthy and pleasant environment”. (chap. II, art. 35). The 1983 Constitution of Ecuador guarantees “the right to live in an environment free of contamination” (title II, sect. 1, art. 19 (2)). The revised Constitution of 1990 of Hungary "recognizes and enforces the right of everyone to a healthy environment". (chap. I, sect. 18). The Constitution of South Africa, which came into force on the 27th of April 1994, stipulates that "Every person shall have the right to an environment which is not detrimental to his or her health or well-being" (sect. 29). [12]

IV. The Role of Judicature in the Process of Internationalization of Constitutional Law

(I)The Significance of Constitutional Right to A Clean Environment

As a new department of the law, environmental law came into being as an aftermath of environmental crisis. The role of the state as a trustee of the public resources[13] in management of environmental affairs was then emphasized, and consequently the administration achieves the power to regulate on environmental affairs for public interests. However, since the administrative body enjoys the discretion on its decision, it is difficult for a citizen to challenge the administrative decisions other than from the perspective of procedure. Recognizing that there is a fundamental right to environment will of course take steps further. Being a constitutional right, environmental rights would enjoy a trumping force when they encounter other social values or policies. The environmental rights could even be balanced against some traditional rights, such as right to property. If there is no such recognition in the constitution, the environmental rights would surely be lost when encountering these rights.

In addition, most environmental decisions are made by the administration in name of public interests, and concern balancing amongst different interests. If there is a constitutional right to environment, it will has two-folded meaning to the court: firstly, although the court has to respect the administrative discretion when applying the principle of legality review, it could judge the administrative decisions from a substantive perspective; secondly, the people own the right to judicial action to challenge the decisions from the perspective of both procedure and substantive.

(II)The Role of the Court

A constitutional right to environment is very crucial in environmental protection. However, by comparison on judicial practice among different countries with different expressions on environmental rights, we could find that whether the rights could be implemented or not actually very much depends on the role the court prefers to play, and how much the court could contribute to the cultivation of a environmental-friendly legal culture.

Such as in India, there is no explicit expression on the right to environment in the constitution. The state has a duty to protect and preserve the ecosystem. This is a part of the directive principles of state policy and not a fundamental right. However, by judicial reasoning in a series of cases, the Supreme Court of India did introduce a right to environment by expanding the constitutional right to life in article 21.

The article 21 of India Constitution states: “No person shall be deprived of his life or personal liberty except according to procedures established by law.” By recognizing several unarticulated liberties that were implied by article 21, the Supreme Court interpreted the right to life and personal liberty to include the right to a clean environment. In a series of cases since 1980’s, the Supreme Court interpreted the right to life to include the right to a wholesome environment, right of enjoyment of pollution-free water and air for full enjoyment of life, right to livelihood.[14] Although there were some refrained cases during the period, for the past 20 years, the Supreme Court played a very active role in cultivating a social value cherishing environmental protection. The practice of the Supreme Court of India has a model influence on its counterparts in neighborhood countries, such as Bangladesh, Pakistan, etc. Through judicial reasoning on the right to life, the judicature of both countries established a right to a clean/healthy environment.[15]

When the active role of the court in cultivating an environmental-friendly legal culture in India, Pakistan and Bangladesh was widely praised, another important actor in the process should not be ignored. Those are environmentalists or NGOs. In India, most environmental cases were raised as public interest litigations. Together with a comparably liberal view of standing hold by the court, most of the environmental claims were supported by the court. Contrary to Indian practice, there are some countries, such as Hungary, Brazil and Ecuador, which do have an explicit constitutional right to environmental protection, however without active involvement of environmental activists and NGOs, the right lies dormant and not much utilized.[16]

(III)The Critique of Judicial Activism

As a typical representative of judicial activism on environmental cases, Indian Court won wide support from environmental organizations, however, at the same time, it stirred up very strong critique on it. Traditionally, the court would rather be self-constraint when encountering political or social problems. Since environmental decisions often involve balancing among interests of different groups and balancing between risks and benefits, it is argued that the environmental decisions should be decided through a democratic rather than a legal process. As an unelected organ, the court is not qualified to do the decisions. In addition, since environmental decisions often involve technical expertise, the competence of the court for dealing with environmental decisions keeps being challenged. In the context, the courts in different countries behaved quite different when dealing with the right violation claims related to environmental harm.

When considering the legislation on a right to environment, a very interesting phenomenon is noteworthy: unlike most developed countries, many less developed countries recognize a right to environment in national constitutions, including African and Asian states. In Latin America, an explicit right to an adequate environment has been provided in the constitutions of most states in the region.[17]

(IV) The Creativity of International Treaty Institutions of Human Rights

From the 1972 Stockholm Declaration, the relationship between enjoyment of human rights and environmental protection attracted much attention and induced hot discussions. Although there are no environmental rights in the early human rights instruments, by human rights treaty institutions’ recognition on the implication of environmental protection to enjoyment of human rights, environmental rights achieved substantive progresses within the human rights regimes.

In this aspect, the European human rights system serves as a good model. The European human rights mechanism is the most developed regional human rights treaty institution, by virtue of the common tradition of state parties. The European Convention did not include provisions on environmental rights. When later dealing with the human rights violation claims related to the environmental harm, the European Court of Human Rights took a very wise way to deal with the issue. Through interpretation of the right of privacy in Article 8 of the Convention, by emphasizing implication of environmental quality to enjoyment of human rights, and other right such as right to environmental information, the Court supported the plaintiff’s claims on environmental protection, whereas avoiding reaching a decision on whether or not to recognize a right to environment. Concerning the controversy on the definition of right to environment and political dimension of environmental problems, the practice of European Court of Human rights provides a valuable experience for other human rights treaty institutions, and the national court.

V. New Trend

Since the 1960’s, the development of international environmental law is among the fastest. Its later combination with international human rights law has very profound influences on national legislation and law-implementing. International standards and practices influence the national ones, at the same time it is also a reciprocal process. Considering the current tension between environmental protection and economic growth, and the debate on the environmental rights, the most possible tendencies will be the followings:

(I)Environmental Procedural Rights Will Be of the Priority for National Law-making in the Future

The 1972 Stockholm Declaration is the first international instrument addressing environmental protection from the perspective of right,but the following instruments are changed to another direction. Rather than to focus on drafting a right to environment or to emphasize environmental rights from substantive perspective, international efforts are vibrated to focus on the procedural rights on environmental protection. The changes to a large extend could be attributed to the tension between environmental protection and economic growth, and the unresolved arguments on the definition and scope of a right to environment within international community.

Although at the global level, it seems unlikely to incorporate a specific right to environment into the human rights list in the coming future, there will be more environmental procedural rights law-makings at international, regional and national levels. The traditional civil rights, such as the right to information, right to participation and right to access to justice will receive closer attention for their implied democratic value in environmental decision-making. As a whole, these rights could be called as participatory environmental rights. The tendency on abundant environmental procedural rights legislation is accompanied and followed by the 1992 Rio Declaration ,and is originated from the experiences of Europe.[18] The most important representation of this trend is the Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters (the Aarhus Convention, 1998). The trend of focusing on procedural perspective on environmental rights happened both at the national level and international level. However, if we presume that the procedural focus of environmental rights legislation is a result of the difficulties of achieving consensus on a specific and substantial right to environment at the international level, in this sense leaving no other avenues of approach for international community, however, the focus on environmental procedural legislation on a national level can also be regarded as a reflection of the requirements of a transparent and democratic government.

(II)Development of the Substantive Right to Environment

For the reasons above, maybe we should not be too optimistic to expect a substantive right to environment established at international level. How far the concept of a substantive right to environment will go in actuality depends on the jurisdiction of the human rights treaty institutions which deal with human rights cases involving environmental harm. By looking at the judicial practice in some countries, we could find that, because the judges have to consider the different social context when delivering judgment on cases involving environmental decisions, the judgments are not always unified, and sometime quite different. It makes the environmental judgment more unforeseeable. The unforeseeable trait of judgment harms the authority and stability of the law and possibly results in the situation that although there is a tendency that the human rights treaty institutions are inclined to support the plaintiff’s human rights claims concerning environmental protection, the judgment could be a surprise. At this point, it could also be a good justification for why we need an explicit substantive right to a clean environment.

VI. Experiences for Practice in China

(I)Current Legal Framework on Environmental Protection

China, as a socialist country, also touches upon the issues on environmental protection from a perspective of protecting public properties in the Constitution of 1978. In article 26 of the current Constitution of 1982, the constitution states:

The state protects and improves the living environment and the ecological environment, and prevents and controls pollution and other public hazards. The state organizes and encourages afforestation and the protection of forests.

According to the provision in the Constitution, China established a comprehensive environment law system, which includes the Environmental Protection Law (1989), Water Law (2002), the Environmental Impact Assessment Law (2002), the Grassroots Law (2002), Law on Prevention and Control of Atmospheric Pollution (2000), Law on the Land Management (1986), Law on Prevention and Control of Water Pollution (1984), the Forest Law (1985). Since the relevant provisions on environment is one part of General Principles of the Constitution and not expressed as a right, the environmental laws at the lower level based on it are reinforcing the power or responsibilities of the state in the field of management of environmental affairs, rather than protection of the people’s rights concerning environmental affairs. Although there are provisions involving citizen’s supervision, report and accusation, the setup is not based on a right perspective [19]. In the corresponding process, citizens’ involvement is usually regarded as a useful tool to achieving the aim of better management of the state environmental affairs. The spirit behind the provisions is based on the presumption that the state has the solely power on the environmental affairs. In a word, the people have no right to claim an environmental violation of the state in the court.

(II)The Possible Tendency of the Environmental Law-making

It is undeniable that the state plays a core role in the environmental protection. The incorporation of a dimension of environmental protection in the process of decision-making is very meaningful for sustainable development. However, since everyone has alienable interests in the environmental protection, and the task of environmental protection needs everyone’s endeavor and participation, the state could not handle it without hearing the voice of citizens. In addition, since environmental problems involve almost every kind of human activities and arise as a byproduct of lawful behaviors, the better management of environmental affairs has to take a form of democratic way.[20] The importance of public participation in environmental affairs received worldwide concern from the 1992 Rio Declaration and was implemented in many countries’ legislations. Now the participatory environmental rights, mainly access to environmental information, public participation to environmental decision-making and access to justice were confirmed or recognized in legislation of different levels.

China will also follow the tendency. After the Rio Declaration, China drafted and published its own Agenda 21 to promote three aspects of participatory environmental rights. From 1992, there are many laws entering into force, such as the Provisional Guidelines on Public Participation in Environment Impact Assessment (2006), Environmental Administrative Reconsideration and Administrative Response Guidelines (2006), Environment Impact Assessment Law (2002), and Environmental Letters and Visits Guidelines (2006).[21]

Although the worldwide tendency is that both the law-maker and the court are willing to recognize a substantive right to a clean environment, and there are many countries which did recognize a right to a clean environment in the constitutions, considering social context and economic growth pressure of China, we should not expect such an environmental constitutional provision in the coming future. The very likely situation is that, by reinforcing the important status of the right to information, right to participation and right to access to justice, which already has foundations in the current Constitution, the environmental procedural rights will attract more and more attention on the environmental decision-making and judicial process.

(III)The Capacity of the Court Dealing with Environmental Cases

In China, the court is traditionally very weak comparing to other government bodies. In addition, the fact that the court‘s budget is controlled by the corresponding administrative organ makes the court be inclined to serve for achieving the objects of administrative organs. The relation between the court and the administrative body reflected in the legal proceedings is that the court is more likely to safeguard the aim of local economic growth rather protection of environmental interests of citizens. For the reasons above, considering the fact that there is no legal expression on a right to a clean environment in either the China Constitution or the Environmental Protection Law, the court will be reluctant to induce a positive interpretation on a right to environment when encountering the environmental protection claims. In fact, it is the actual case in many parts of China. However, regarding to environmental procedural rights, the court will be likely to strengthen the protection under the context that the China government promised to establish a harmony society with the nature and is willing to be more democratic on the environmental decision-makings.

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[1] The differentiation between “environmental rights” and “right to environment” is a much discussed issue, and although certain aspects of this discussion will be touched upon in this paper, an in-depth exploration of the problem will nevertheless fall outside the scope of this text.

[2] “The Eight Great Public Harm Incidents” (《八大公害事件》), cf. http://www.envir.gov.cn/hbqn/greenfront/hjyr09.htm, last accessed on April 7, 2007.

[3] During a Conference on the Public Nuisance held in Tokyo in March, 1970, American Professor Joseph Sax’s proposed to call for a right to a healthy environment as a fundamental right, which aroused responses from different areas. The proposal was then confirmed by the Conference document Tokyo Declaration, which purported that, we request, a right of everyone to a well-being and healthy environment and the left nature heritage should be a beautiful and abundant one, should be treated as a fundamental human right fixed in the legal system(translated by the author), Lü Zhongmei (吕忠梅); 《环境法新视野》 (huanjingfa xin shiye), China University of Political Science and Law Press, 2000, pp. 104-107.

[4] The Article 24(2) of the Convention states: States Parties shall pursue full implementation of this right (of health) and, in particular, shall take appropriate measures: To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution.

[5] The World Commission on Environment and Development was established for three objectives: to examine critical environment and development issues and formulate realistic proposals for dealing with them; to propose new forms of international co-operation on these issues that would influences policies and events in the direction of needed changes; and to raise levels of understanding and commitment to action of individuals, voluntary organizations, businesses, institutions, and governments. “Our Common Future: From One Earth to One World”, part of Report of the World Commission on Environment and Development, UN Doc: A/42/427, section I: The Global Challenge, para.9.

[6] Ibid., section I: The Global Challenge, para.15.

[7] Sands, Philippe; Principle of International Environmental Law, volume I, Frameworks, Standards and Implementation, Manchester University Press, 1995, p. 13.

[8] Philippe Sands, Principle of International Environmental Law, volume I, Frameworks, Standards and Implementation ,Manchester University Press, p17.

[9] Translated by the author.

[10] Translated by the author. See Jiang Shilin,Chen Wei (姜士林,陈玮)，《世界宪法大全》（上卷）(Shijie Xianfa Da Quan, I)，中国广播电视出版社 (Zhongguo Dianshi Chu Ban She)，p.690.

[11] Translated by the author.

[12] See, “Review of Further Developments in Fields with Which the Sub-Commission has been Concerned Human Rights and the Environment”, Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur.

[13] The public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers the citizens to question ineffective management of natural resources. Dr. Jona Razzque, (2002) “Human rights and the Environment: Developments at the National Levels, South Asia and Africa”, Background Paper No.4, Jiont UNEP-OHCHR Expert Seminar on Human Rights and the Environment, Geneva. http://www.unhchr.ch/environment/index.html, last accessed on April 7, 2007.

[14] In Charan Lal Sahu Case, the Supreme Court interpreted the right to life guaranteed by article 21 of the Constitution to include the right to a wholesome environment. In Subash Kumar,6 the Court observed that ‘right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life. In Kirloskar Bros. Ltd v. ESI Corporation, the court opined that the expression ‘life’ assured in article 21 has a much wider meaning which includes a right to livelihood, better standard of living, hygienic conditions in the workplace and leisure facilities and opportunities to eliminate sickness and physical disability of the workmen.

[15] Dr. Jona Razzque; “Human rights and the Environment: Developments at the National Levels, South Asia and Africa”, Background Paper No.4 (2002), Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, Geneva.

[16] Boyle, Alan E.: Anderson, Michael R. (ed.); The Human Right Approaches to Environmental Protection, charendon Press, 1996. p.20.

[17] Tim Hayward; Constitutional Environmental Rights, Oxford Press, 2005, p.203.

[18] See the Council Directive 90/313/EEC of 7 June 1990, on freedom of access to information on the environment, Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden, adopted in 1974.

[19] Such as the article 6 of the Environmental Protection Law states: Every work unit and individual has the obligation to protecting the environment, and has the right to report and accuse of any pollution and destroy of environment caused by any work unit or individual.

[20] Principle 10 of the Rio Declaration states:

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

[21] 《环境影响评价公众参与暂行办法》 (2006-02-14); 《环境行政复议与行政应诉办法》 (2006-12-27); 《环境信访办法》 (2006-06-24) ;《中华人民共和国环境影响评价法》 (2002-10-28)。