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
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
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"
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
In the beginning, the idea of "environmental rights" was introduced in the
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.
contents of the act were so epochal that some called it an "April
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
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
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
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
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
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,
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
Although the right to live in Article 25 usually refers to
economic survival, the interpretation can be expanded to cover environmental
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.
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.
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
However, in all such cases, the court's decisions were that
so-called environmental rights cannot be approved on Constitutional
The main reasons are as follows:
First, in terms of positive law, there are no grounds to acknowledge
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".
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.
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
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.
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
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
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
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
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
|Amendments to the Constitution experimentally drafted by Yomiuri
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
(2) The State shall endeavor to conserve the good
|Heisei Constitution drafted personally by M.P. Kazuo
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
(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
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.
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
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
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.
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.
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
(1) Todos tienen el derecho a disfrutar de
un medio ambiente adecuado para el desarrollo de la persona, asi como el deber
(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.
Article 20a (Protection of Natural Resources)
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.
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
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:
- 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.
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.
- 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.
- Environmental rights: human-oriented doctrine or eco-system-oriented
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
- Whether the State should be obligated to protect the
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
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
- Whether responsibility of the present generation as a trustee of the
environment for future generations should be incorporated in environmental
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
Aichi's personal draft, mentioned above, includes the provision
that, "Each person shall have ...the obligation to ...pass it on to future
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
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
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 "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.
- 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
- Who holds the environmental rights?
A dominant view is to say that it
is natural persons who hold environmental rights.
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
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.
- 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
Nevertheless, as I mentioned earlier, environmental rights,
more than anything, have a wide range and diversified extensibility of
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.
- Is it possible to position "rights to enjoy nature" in the
In 1986, a concept called "rights to enjoy nature" was
advocated at an assembly on human rights by the Japan Federation of Bar
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
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
They also include rights based on "non-use value" of people
who cannot directly encounter the natural ecosystem or scenic
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
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.
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
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.
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?
- Could the idea of public trust ever be established in Japan?
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
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
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
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
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.
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
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
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
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
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.
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 .