For explicit positioning of environmental rights in Constitutional debates

Going beyond the debate on environmental rights as utopia
In debates over Constitutional amendment, there are many advocates who claim that environmental rights should be stipulated in the Constitution.

Recent surveys on Constitutional amendments also suggest that people are more interested in environmental rights rather than debates over Article 9 (renunciation of war). This tendency is prominent especially among the younger generation.

For example, the result of a nation-wide opinion poll regarding the Constitution conducted by the Yomiuri Shimbun in April 1999 showed that "environmental issues" was at the top of respondents' concerns (37%), outnumbering "renunciation of war/the Self-Defense Forces" which had been the top concern up until the previous year.

However, despite such upsurging awareness, a conceptual definition on which environmental rights are based and the format or expression in which they should be stipulated in the Constitution have not been argued at all, except for opinions expressed and debates conducted among certain scholarly communities of experts on "environmental laws"

As Professor Takehisa Awaji of Rikkyo University Law School said, it has been contained in "a certain utopia-like argument over environmental rights, which would not come into effect in real societal conditions".

This is how the idea of environmental rights emerged
In the beginning, the idea of "environmental rights" was introduced in the following context:

In 1969, Professor Joseph L. Sax of the University of Michigan Law School wrote a draft of the "natural resources conservation and environmental protection act". The Michigan Environmental Protection Act (MEPA) based on the draft was submitted to the House on April 1,1970.

The contents of the act were so epochal that some called it an "April fool".

Section 2 (1) of MEPA provides as follows: the attorney general, any political subdivision of the states, any instrumentality or agency of the state or a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against the state, any political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity for protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction.

In other words, it is possible for any person, company or other organization to take legal action against pollution, impairment or destruction of the air, water, land and other natural resources, or violation of the public trust in regard with natural resources. The public trust refers to an obligation of administrative entities which hold the trust of the public to manage and maintain the natural resources as common assets of the public so that the public can freely make use of them.

As for Japan, the issue of environmental rights was publicly raised for the first time at an international conference on pollution sponsored by the International Social Science Council (ISSC), held in March 1970. At that time, it adopted the Tokyo declaration requesting the legal right to enjoy the environment and the right to care for natural resources which the present generation leaves for the next generation as a kind of human rights.

This was followed by an action by the Bar Association in Osaka to advocate environmental rights as a basic right for all people to enjoy a good environment and be able to eliminate environmental pollutants based on Article 25 of the Constitution.

Environmental rights in Japan in the early stage invoked the other kinds of human rights
The legal grounds of environmental rights is "the principal of sharing environment", i.e. environment is for all people and no one can arbitrarily destroy this.

Also, controlling, utilizing and polluting the environment monopolistically by one of the sharers without the approval of the others is considered illegitimate and a violation of the rights of the other sharers.

As the current Constitution of Japan does not have any provision specifically regarding the environmental rights, it must be positioned within the "new human rights" which are not included in a catalogue of human rights stipulated in the Constitution of Japan.

Therefore, environmental rights in Japan at present refers to a set of rights that cover the conservation of the environment through the invocation of human rights already stipulated in the Constitution.

Among the Constitutional basic rights, the right to pursue happiness, stipulated in Article 13 (personal rights), and the right to live, in Article 25, are typically quoted for possible invocation of environmental rights.

The idea of the right to pursue happiness in Article 13, which was included in General Douglas MacArthur's draft, embodies the basis for possible salvation of the untitled human rights, unlisted human rights and new kinds of human rights which are likely to emerge in the ongoing social changes (environmental rights, the right to know, the right to privacy, etc.).

Environmental rights in Article 13 invoked by the right to pursue happiness is "the right that individual enjoyment of the environment shall not be impeded by public authorities" and is characterized as a civil liberty.

Although the right to live in Article 25 usually refers to economic survival, the interpretation can be expanded to cover environmental survival.

Environmental rights in Article 25 invoked by the right to live is "the right to request public authorities to take affirmative action in order to conserve the environment" and is characterized as a social liberty.

As to the environmental rights in Article 25, a leading argument is that the provision does not mean the immediate acquirement of the tangible right to claim by individuals, but the law to embody the rights makes it tangible.

Such a stipulation is called program provision, which provides a guideline to national politics. It has a connotation of obligatory request to the legislative body to enact such laws from the Constitution side.

Imminent pollution issues prompted environmental rights debates in Japan
The reason why they had to claim environmental rights hastily, so much so that they had to invoke the other basic rights already stipulated in the Constitution, was because imminent environmental issues, such as worsening of pollution, were looming in Japan in the 1970s.

Due to the contemporary social context, victims of environmental damage took it upon themselves to seek the judicial power to prevent any further pollution, namely, to define environmental rights as individual rights on Constitutional grounds in order to have the court approve claims for suspension of the violation and compensating damages.

However, in all such cases, the court's decisions were that so-called environmental rights cannot be approved on Constitutional grounds.

The main reasons are as follows:
First, in terms of positive law, there are no grounds to acknowledge environmental rights.

The court viewed both Article 13 and 25 of the Constitution as program provisions declaring the nation's obligation, and not as laws granting tangible rights directly to each individual.

Secondly, the basic attributes of environmental rights are too ambiguous to be the grounds of claims for suspension of the violation.

Thirdly, claims for suspension and compensating damages against acts violating human life, etc. can be made on the grounds of personal rights and property rights, without acknowledging environmental rights.

Fourthly, local residents derive their interest and rights, not directly from scenic views and the environment itself, but from economic deeds, such as tourism services, utilizing scenic views and the environment (hence, reflected interest), which cannot serve as the grounds for claiming suspension of the violation.
In such an unfavorable climate, there was barely one precedent case in which the court approved the claims for suspension and damages. The Court of Appeal for the Osaka Airport pollution lawsuit approved, in its ruling in November 1975, the above-mentioned claims for the violation of personal rights (Article 13 of the Constitution). Although it did not acknowledge environmental rights, it stated that "interests regarding the life, body, mind and the living of an individual can be considered personal rights as a whole".

Causes of failure in establishing environmental rights in Japan
As mentioned above, despite the fact that the efforts to establish environmental rights in Japan were started in 1970, not so far behind that of the United States, there have not been any notable effects found in Japan up until today, in terms of judicial salvation by claiming environmental rights on Constitutional grounds. The only exception is the scholarly world and some effective developments of arguments were seen there.

How, then, did efforts to establish environmental rights by invoking the basic rights in the current Constitution face limitations?
First of all, the intention of personalization of environmental rights on the grounds of the Constitution was limited to judicial relief at civil lawsuits, namely the court's approval of claims for suspension of the violation and compensating damages. Hence, substantial environmental rights comprehensively combined with proper responses from judicial, legislative and administrative branches failed to be established.

This confusion is a consequence of mixing up environmental rights as personal rights with those of individual rights.

Secondly, the subjects of environmental rights, such as "definition and affected areas of the concerned environment", "concept of violation of the rights", "holder of the rights and their range" were not well-defined and too weak a ground of claim for suspension of the violation.

Thirdly, while considering that environmental issues further expand their affected areas and increase complexity, in lawsuits on issues of violation of personal rights brought in by individuals as plaintiff, it has become more and more difficult to derive judicial decisions admitting that the violation of the concerned environment is beyond the limitation of acceptance, due to the balance between private interest and public interest.

Fourthly, as long as individual interests of residents, which are pro-scenic views and pro-environment, are considered reflected interests by the judicial body, environmental rights invoked by the other kinds of basic rights stipulated in the Constitution could not possibly be recognized as grounds for claiming suspension of the violation.

Fifthly, in civil lawsuits of environmental rights as personal rights, unless the wrongdoing, i.e. destruction of the environment, against the plaintiff as an individual is proved, the claims by the plaintiff will not be approved. Therefore, the judicial body cannot save the environmental damage, which appears gradually in a wide range and in a complex form, just by environmental rights based on individual rights. Thus, there is a limitation to claim environmental rights on the grounds of the Constitution considering interests, which are hard to access as the personal interests of the individual plaintiff, as individual rights.

From these limitations, the recognition that it is needed to position the environmental rights as independent "new human rights" in the new Constitution has emerged.

Movements in Japan and in the world
Now let us take a look at drafts of the new Constitution proposed so far in Japan, as well as, examples of environmental rights or provisions to protect the environment in foreign constitutions.

The followings are actual proposals:

Amendments to the Constitution experimentally drafted by Yomiuri Shimbun

In November, 1994, the Yomiuri Shimbun announced its experimental amendments to the Constitution, which drew attention from various circles.

The provision regarding environmental rights in this experimental amendments is as follows:
Article 28 (Environmental rights)

(1) Every person shall have the right to enjoy a good environment and be obligated to endeavor to conserve it.

(2) The State shall endeavor to conserve the good environment.

Heisei Constitution drafted personally by M.P. Kazuo Aichi

Provision regarding environmental rights in the "Heisei Constitution" (the third edition, February 2000) privately drafted by Mr. Kazuo Aichi, a member of the House of Representatives, whom I greatly respect, is as follows:
Article 33 The rights and obligation regarding environment

(1) Each person shall have the right to enjoy a good environment and the obligation to maintain the good environment, as well as to pass it on to future generations.

(2) The State shall endeavor to maintain and improve the good environment.

Samples of environmental rights stipulated in foreign constitutions

The number of States stipulating environmental rights or provisions on environmental protection in their constitutions has been dramatically increased since the Stockholm Declaration at the 1972 United Nations Conference on the Human Environment.

Countries stipulating environmental rights or provisions on environmental protection in one way or another in their constitutions, as far as I could find, are listed in Note 1 shown below.

Also, in the U.S., it is considered that a provision in the Ninth Amendment, i.e. " The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. " includes environmental rights as new kinds of human rights.

Furthermore, provisions regarding environmental rights are stipulated in the National Environmental Policy Act (NEPA 101c) and state constitutions (please refer to Note 2 shown below).

Here are some examples of constitutional provisions of environmental rights in some countries:

1. Republic of Korea
Article 35 (Environmental rights)

(1) All citizens shall have the right to a healthy and pleasant environment. The State and all citizens shall endeavor to protect the environment.

(2) The substance of the environmental right shall be determined by Act.

2. Spain
Article 45 (Environmental rights, duty to preserve environment)

(1) Everyone has the right to enjoy an environment suitable for the development of the person as well as the duty to preserve it.

(2) The public authorities shall concern themselves with the rational use of all natural resources for the purpose of protecting and improving the quality of life and protecting and restoring the environment, supporting themselves on an indispensable collective solidarity.

(3) For those who violate the provisions of the foregoing paragraph, penal or administrative sanctions, as applicable, shall be established and they shall be obliged to repair the damage caused.

Articulo 45

(1) Todos tienen el derecho a disfrutar de un medio ambiente adecuado para el desarrollo de la persona, asi como el deber de conservarlo.

(2) Los poderes publicos velaran por la utilizacion racional de todos los recursos naturales, con el fin de proteger y mejorar la calidad de vida y defender y restaurar el medio ambiente, apoyandose en la indispensable solidaridad colectiva.

(3) Para quienes violen lo dispuesto en el apartado anterior, en los terminos que la ley fije se estableceran sanciones penales o, en su caso, administrativas, asi como la obligacion de reparar el dano causado.
3. Germany
Article 20a (Protection of Natural Resources)

The state, also in its responsibility for future generations, protects the natural foundations of life in the framework of the constitutional order, by legislation and, according to law and justice, by executive and judiciary.

Artikel 20a [Schutz der naturlichen Lebensgrundlagen]

Der Staat schutzt auch in Verantwortung fur die kunftigen Generationen die naturlichen Lebensgrundlagen im Rahmen der verfassungsmasigen Ordnung durch die Gesetzgebung und nach Masgabe von Gesetz und Recht durch die vollziehende Gewalt und die Rechtsprechung.

[Note 1]Known countries stipulating environmental rights or provisions on environmental protection in their constitutions:
Andorra, Angola, Argentina, Armenia, Azerbaijan, Austria, Belarus, Bulgaria, Cambodia, People's Republic of China, Congo, Croatia, Cuba, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, India, Iran, Republic of Korea, Laos, Lithuania, Macedonia, Madagascar, Mauritania, Mongolia, Namibia, Nepal, Norway, the Netherlands, Oman, Pakistan, Paraguay, the Philippines, Poland, Portugal, Russia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Thailand, Turkey, Yugoslavia

[Note 2] Known states in the United States which include provisions regarding environmental rights in their state constitutions:
Illinois, Massachusetts, Michigan, Pennsylvania, Rhode Island, Texas

Challenges to be considered in the future
In light of these experimental amendments and examples in foreign countries, which have already included environmental rights in their constitutions, shown above, points that I think should be examined and considered in the future constitutional debate in Japan are as follows:

  1. Whether the environmental rights stipulated in the Constitution should be abstract rights or tangible rights.

    Among those countries stipulating environmental provisions in their constitutions, very few apply the provision directly in court.

    Some countries, such as Portugal, directly protect environmental rights. However, when exercising the rights, it is necessary to follow the provisions of laws other than the constitution.

    Nonetheless, their ideas of environmental rights are not necessarily abstract. By stipulating environmental rights in their constitutions, their judicial branches are showing a strong norm on environmental rights that cannot be ignored by their legislative and administrative branches.

    The characteristics of this strong norm are supposed to make the spirit of environmental rights reflected in the legislative process of the positive law.

    Certain realms (for instance, the realm of environmental rights claimed by residents against violation of scenic views and environment, which the court has denied as reflected interest) cannot be covered by environmental rights invoking existing personal rights. In such realms, it is probable that there will be renewed lawsuits seeking for admission of claims for suspension of the violation based on environmental rights stipulated in the Constitution.

  2. Whether to establish substantial environmental rights or to exercise them for judicial relief.

    As mentioned in the previous item, stipulation of environmental rights in the constitution will present a strong norm that cannot be ignored at each stage of the legislative and administrative process. Therefore, substantial environmental rights perhaps can be established by proper coordination among judicial, legislative and administrative branches, without excessively relying on judicial relief by personalizing the environmental rights on the grounds of the personal rights in the Constitution.

  3. Environmental rights: human-oriented doctrine or eco-system-oriented doctrine?

    When incorporating environmental rights into the German constitution, there occurred debates among political parties over the subject of protection; whether it should be "the natural foundations of life for humankind" or "the natural foundations of life". And their conclusion was to eliminate the part "for humankind".

    This means that it was confirmed that environmental rights take stand of life-oriented doctrine, rather than defeat of human-oriented doctrine.

  4. Whether the State should be obligated to protect the environment.

    Both Yomiuri's draft and Aichi's personal draft shown above declare environmental rights in the former clause and explicitly state the State's obligation to environmental protection in the latter clause.

    Stipulation of the State's obligation to protect the environment as a public asset will put pressure on legislative branches directing to prioritize the environment when legislating.

    Some people view this State's obligation to environmental protection as a provision of the national goal, and hence, it does not refer to individual's right to claim certain activities by the government.

    Nevertheless, in a case where the State fails to fulfill the obligation of protection, it is still possible that the so-called right to seek the exercising of the regulatory authority, under which people can press the State to fulfill the obligation, would be recognized.

  5. Whether responsibility of the present generation as a trustee of the environment for future generations should be incorporated in environmental rights.

    Although the current Constitution includes provisions of "rights trusted by future generations" in its Preamble, Articles 11 and 97, these provisions have not been invoked for the sake of environmental rights so far.

    Aichi's personal draft, mentioned above, includes the provision that, "Each person shall have ...the obligation to ...pass it on to future generations."

    Mr. Aichi, in his explanation of his draft, said that, "based on the fact that a good environment has fragility which could be lost in one generation, when it comes to environmental rights, it was necessary to explicitly state the obligation of the present generation to pass the good environment on to the future generations".

    The constitution of Georgia and the state constitutions of Pennsylvania and Illinois in the United States, also mention the obligation to protect the environment for future generations.

    The issue is how far the extensibility of environmental rights reaches in terms of time and space.

    Extending the range of the extensibility would end up making the definition of environmental rights per se bleary.

    Also, as long as environmental rights are not prioritized above other basic rights, extension of the range of the extensibility of environmental rights could collide with the other basic rights of the people.

    As long as "the State's obligation to protect the environment" is stipulated in the Constitution as a provision of the eternal national goal, it seems to be unnecessary to explicitly state the responsibility of the present generation as a trustee of the environment for future generations. At the end of the day, it depends on whether or not the concept of "public trust", which will be mentioned in item 10, will mature in Japan.

  6. Is it possible to compare the significance between "public interest" and "environmental interest of the public"?

    Environmental rights are basic rights as individual rights, as well as, public-interest-oriented basic rights. In past cases of civil actions based on environmental rights as individual rights, the court did not approve the plaintiff's claim for suspension of the violation and compensating damages, unless the environmental damage is recognized as exceeding an acceptable limit for the plaintiff, when comparing the significance of the individual interest of the plaintiff and the public interest of the public authorities.

    However, stipulation of environmental rights in the Constitution will lead to a renewed need to compare the significance of "public interest" and that of "environmental interest of the public", replacing the conventional judgement of acceptable limits based on a comparison between significance of "public interest" and that of "individual interest".

  7. Who holds the environmental rights?

    A dominant view is to say that it is natural persons who hold environmental rights.

    However, limiting eligible plaintiffs to individuals will generate problems due to the widening range of environmental damage, increased complexity of causes of damages and the numerical increase and qualitative diversification of damages that residents suffer.

    Some of the problems: Plural lawsuits under environmental rights can be filed separately against an identical environmental issue. Legal costs and labor are on a limited number of people despite the fact that there are a number of stakeholders. When there are many plaintiffs and they cannot claim uniformly as a whole, each has to prove individual points which would disturb the legal process.

    Article 24 (4) and (5) of French law for nature protection allow the class action. I think that review of our legal procedure, including such an option, will be needed in the future.

    As for the issue of the "right of nature" lawsuit, seeking to make nature itself eligible to be the plaintiff will be unnecessary by stipulating environmental rights in the Constitution, because the traditional judgement by the court saying the "direct value derived from scenic views and environment for residents is reflected interest, and hence, cannot be approved", will be avoided.

  8. Whether environmental rights stipulated in the Constitution need supplementary legislation or not.

    As the provisions of the Constitution must be simple, detailing the concept of environmental rights in provisions is difficult.

    Nevertheless, as I mentioned earlier, environmental rights, more than anything, have a wide range and diversified extensibility of rights.

    That, in turn, could make the concept of environmental rights bleary, and as a consequence, it might end up diluting the effectiveness of environmental rights per se.

    Therefore, I think that supplementary legislation, including positioning environmental rights in the Basic Environment Law and the new Environmental Impact Assessment Law and readjusting subject areas of environmental rights and the other basic rights which have been invoked, will be required.

  9. Is it possible to position "rights to enjoy nature" in the Constitution?

    In 1986, a concept called "rights to enjoy nature" was advocated at an assembly on human rights by the Japan Federation of Bar Associations.

    The meaning of the concept is said to consist of the "right to enjoy the blessings of nature, which every person has equally by birth", "the right to maintain balance of natural ecosystem as a member of nature" and "the right to protect and conserve nature, which is trusted by nature per se and future generations".

    Therefore, these rights are not restricted locally. Holders of the rights are not restricted, either. Moreover, these are the rights which represent not only individual rights but also nature per se and future generations.

    They also include rights based on "non-use value" of people who cannot directly encounter the natural ecosystem or scenic views.

    Unlike environmental right for protection, these rights are apt to claim the elimination of violating acts.

    Namely, these rights are considered to include the right to claim for prior suspension of the potential destruction of the environment, the right to claim for ex post facto restoration of the original status and the right to request the administration to take measures.

    Before stipulating these rights, we must consider several challenges. For example:
    First, I think that the range of violation of individual "right to enjoy nature" by an act of public authority against nature, or the cause of punishment, i.e. what kind of tangible change the act of public authority has caused to the people's rights, is not clear.

    Secondly, as I mentioned in Item 7 (Who holds the environmental rights?), I think there is an issue of eligibility as plaintiff if nature itself becomes the plaintiff.

    Thirdly, can a right to enjoy nature as an expanded concept of environmental rights restrict the right to possess, one of the basic rights, on behalf of ecological benefits.

    Fourthly, the State's obligation of environmental protection as a provision of the national goal mentioned in Item 4 seems to cover the range of rights to enjoy nature which are trusted by future generations.

    Fifthly, can the idea of the right to enjoy nature cover Constitutional rights and obligations of the Japanese people in terms of global environmental assets beyond national boundaries?

  10. Could the idea of public trust ever be established in Japan?

    In the U.S. state of Michigan, where the idea of environmental rights were originally formed, the subjects of environmental rights are not limited to natural resources. They also include public trust, which means that the state is trusted to manage the natural resources for the people living in the state, as I mentioned before.

    Public trust can be applied to: (1) beaches, shores, intertidal zones, rivers, (2) parks, roads, commons, (3) wild fauna and flora, natural resources, the air, water, etc.

    Public interests which should be protected by public trust are: (1) use for recreation, (2) conservation of natural resources.

    In many cases, not only residents of the state but also the state itself are considered eligible to take legal action if an environment of natural resources is destroyed or their access to it is blocked.

    In such cases, in the cause of public trust, public authorities may restrict individual rights through judicial measures.

    In Japan, a similar idea to public trust is the idea of beach-entering rights.

    Beach-entering rights is one of the "individual environmental rights" as an extension of environmental rights. Other such rights proposed include "viewing right", "tranquillity right", "scenic view right", "safety right", "right to use parks and other facilities", etc.

    Beach-entering rights, also called the "right of common in the sea", stem from the idea of right of the common. The differences are:

    (1) beach-entering rights do not directly connect with profit-making activities.

    (2) As opposed to the right of common including the idea of right of common possession, that is the right to use and make profit under restriction of a certain group, beach-entering rights generally refer to individual rights.

    Beach-entering rights consist of two rights. One is the right to freely enter a beach and use natural objects without permission. Another one is the right to freely pass the land leading to the beach and access the beach.

    These rights are based on social facts of beach-entering practices. Hence they include the right to claim for elimination of hindrance to pursue the rights. However, the right does not override fishery rights or living rights of the neighbors (personal rights).

    There is a similarity between the ideas of beach-entering rights and public trust in terms of inclusion of the right to freely use natural public objects on the beach and the right of public access to the beach. However, beach-entering rights have stronger characteristics of individual right, and therefore, they are incompatible with the idea of public trust.

    If the idea of public trust is applied to the subjects of environmental rights in Japan, some of the problems mentioned before, i.e. (1) should environmental assets trusted by the future generations be subjected to environmental rights, (2) should the obligation to protect environment be given to the State, and (3) who or what can be an eligible plaintiff for the rights related with nature, would be all solved.

    However, issues on how to deal with sections that are incompatible with other basic rights in the Constitution, including the restriction of individual rights, will be a challenge.

Positioning "open environmental rights" to protect global public assets beyond national boundaries
These are the outlines of limitations of environmental rights by invoking the other basic rights in the current Constitution and what could be changed by stipulating environmental rights in the Constitution.

Although I am not a legal expert and not qualified to argue the Constitution technically, I have pursued this issue as one citizen who chose environmental issues as my lifework.

One thing I could digest after all this thinking is that the environmental assets to be protected by the Constitution are not limited to the national boundary, but also to the global public assets which are far beyond the jurisdiction of the constitution of one nation.

Before debating environmental rights in a small country, we probably need to talk about what is necessary to construct the idea of environmental rights regarding public assets in which Japan is involved, as part of the open global public assets beyond the concept of nation and what kind of concept the environmental rights stipulated in the Constitution as a basic right should be.

And the grand spirit suitable for express stipulation in the Preamble of the new Constitution must be woven throughout .

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