Abstract
The general theory of environmental orthodoxy is based on the idea that by introducing the issue of the environment and the need to protect and protect it in the constitution as a reference norm, we will see the establishment of the legal order in this field. In this chapter, an attempt has been made to analyze the content of the constitutions of Latin America in the context of environmental issues and the conservation of natural resources with a comparative approach and as an example. The basic hypothesis of this chapter is based on the fact that today, paying attention to the issue of the environment at the level of constitutions means following sub-norms and the legal system from the norm of reference and the effects that this right can have in the legal system. This is well reflected in the constitutions of Latin America.
TopIntroduction
Orientalism and fundamentalism in the field of environment is a relatively new topic in the field. Studies in public law (Deville, 2014; Randrianandrasana, 2016). For example, in France after 2005 and 2008, with the adoption of the Basic Charter on the environment and constitutional amendments, it has shown itself at the level of reference norms (Mashhadi, 2013; Georgian, 2009). Although constitutional law has traditionally been the science of examining political institutions and initial perceptions of this discipline are also based on the study of the state-country structure and organizational relations between institutions. (Laferriére, 1974) Now constitutional rights are not merely the formulation of political institutions or political power. The most important and prominent content and function of constitutional rights, along with the framework of political institutions and phenomena, is identifying and guaranteeing citizens’ rights. In other words, fundamental rights are a branch of domestic public law that deals with the political relations between rulers and rulers (Foster & Grundmann, 2001). For this reason, in the institutional approach, the links between this field and environmental rights can not be relied upon. In other words, whenever we define fundamental rights in terms of the study of the regulation of powers and the guarantee of rights; Guaranteeing the right to a healthy environment is included in the second part of this definition. With this description, after the formation of the environmental crisis, especially after the seventies, many world constitutions have addressed this issue. In this article, while expressing the general theory of environmental protection of the environment, we have tried to introduce and analyze this issue in the constitutions of Latin American countries.
Environmental orthodoxy has been thematically introduced into the constitutions with some delay (formal fundamentalism) and has played its role as the reference environmental norm. (Fundamentalism of Mahavi) (Taghizadeh, 2004, Mashhadi, 2014; Ghazi Shariat Panahi, 1995). There is no doubt that the content of the issues raised in the constitutions is a function of the fundamental issues of the political society, which can be placed in the framework of the general theory of the observance of the issues of the constitution from the fundamental issues of the political society.
In the early stages of nation-state formation, the issue of the environment was not given much attention. It is not surprising that most of the first constitutions, such as the 1958 Constitution and previous French laws, and the Iranian constitution, do not explicitly mention the need to protect the environment.
Key Terms in this Chapter
Right to a Healthy and Ecologically Balanced Environment: The right to a healthy environment refers to an environment in which life can develop adequately. It is the way in which the right to the environment has been discussed internationally and incorporates notions such as access rights, the right to water and the rights of future generations. In addition, the ecologically balanced environment refers to the intrinsic value of the environment, where it is not only being protected due to its relationship with people, but also because we value it in itself.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.” All issues related to responsibility for cost for environmental remediation and compliance with pollution control regulations involve this principle.
Common Goods: Refers to those goods that are neither public nor private property, but belong to the entire community. They are assets that nature has made common to all people, such as water, air, the sea, riverbanks and ecosystem functions. “Being common prevents them from being sold or appropriated by the State or private, and recognizes everyone's right to access them to satisfy their fundamental rights and to participate in their governance,” explains Ezio Costa, lawyer and director FIMA executive.
Equity: Defined by UNEP to include intergenerational equity—“the right of future generations to enjoy a fair level of the common patrimony”—and intragenerational equity—“the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources”—environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.
Rights of Nature: The discussion about the rights that belong to nature has to do with rethinking the relationship between humanity and the environment that surrounds us, explains Florencia Ortuzar. To grant rights to nature is to recognize it as something valuable per se, beyond its usefulness for humans, as it is traditionally conceived today. By recognizing rights, it ceases to be an object that can be appropriated to be understood as a subject that has the right to develop to its fullest and to be respected and protected. In 2008, Ecuador became the first country in the world to recognize in its Constitution inalienable rights to nature, thus making it a subject of law.
Public Participation and Transparency: Identified as essential conditions for “accountable governments...industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas, etc. a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedures.
Environmental Democracy: Refers to the possibility of exercising the 3 rights of access, for which States must ensure access to information and the ability of people to participate. The Escazú agreement, says Valentina Durán, director of the Environmental Law Center of the University of Chile, seeks to guarantee the exercise of these 3 rights in Latin America and the Caribbean. Durán adds that Constitutions such as the one in France ensure the rights of access to information and environmental participation.
Healthy Environment: Unlike a pollution-free environment (enshrined in article 19 No. 8 of the current Constitution), this concept refers to an environment whose ecosystem functions fulfill their role, which can provide well-being and health to living beings that they inhabit it A pollution-free environment, on the other hand, has to do with what the State defines as pollution. “With this, there is the absurdity that in the slaughter zones, for example, we can have environments 'free of contamination,' but which, of course, are not healthy,” says Florencia Ortúzar, a lawyer at the Inter-American Association for the Defense of the Environment (AIDA).
Right of Access to Environmental Justice: Possibility of people or communities to go before an independent judicial body or court to protect their rights to information and participation and environmental rights in general, through an independent and expeditious judicial process, which contemplates reparation for environmental damage.
Sustainable or Sustainable Development: According to the UN, development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs.
Carbon Neutrality: Existence of a balance between the amount of greenhouse gas (GHG) emissions (equivalent carbon dioxide) that is emitted and what is “captured or absorbed” from said emissions. The balance implies that there is “neutrality” of GHG, as its name indicates, but it does not mean that gases are not emitted into the atmosphere. According to Javiera Valencia, geographer of the UACh Austral Patagonia Program, the key point in carbon neutrality is how emissions are captured. In that sense, technology is an option, for example, the application of filters. However, nature plays a crucial role in purifying the air through the process of photosynthesis. Forests, peatlands and oceans are the main carbon sinks.
Intergenerational Justice: Ensure that future generations have the same opportunities as us. “Our use cannot compromise the use of future generations, for example, by destroying ecosystems or cycles of regeneration of resources such as water,” says Costa.
Prevention: The concept of prevention etc. can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing, or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques, and similar techniques can all be seen as applications of the concept of prevention.
Access Rights: Principle 10 of the Rio Declaration (1992) AU105: The in-text citation "Rio Declaration (1992)" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. , establishes that the best way to address environmental challenges is with the broad participation of the people involved. To this end, the Principle enshrined three fundamental rights as pillars of sound environmental governance: access to information, access to public participation and access to justice.
Ecosystem Service: Ecosystems provide essential services for the survival and well-being of people. Some examples are: the water cycle, clean air and food. “In order for people to be able to benefit from these services, the State must ensure certain conditions, such as; granting the right to access these services and providing quality education opportunities for the whole society”, says María José Brain, in charge of Planning of the Austral Patagonia Program, UACh.
Ecological Constitution: It is a Constitution that incorporates transversally and as an ordering axis, the protection of the environment, the health of people and the harmony between society and nature. For Ezio Costa, this requires rules in the section on principles, rights, duties and organization of the State. This includes, for example, rules that ensure citizen participation in environmental decisions and autonomy of local and regional governments in the management of the environment and natural resources, among many other things.
Sustainable Development: Defined by the United Nations Environment Programme as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs,” sustainable development may be considered together with the concepts of “integration” (development cannot be considered in isolation from sustainability) and “interdependence” (social and economic development, and environmental protection, are interdependent). Laws mandating environmental impact assessment and requiring or encouraging development to minimize environmental impacts may be assessed against this principle. The modern concept of sustainable development was discussed at the 1972 United Nations Conference on the Human Environment (Stockholm Conference) and the driving force behind the 1983 World Commission on Environment and Development (WCED, or Bruntland Commission). In 1992, the first UN Earth Summit resulted in the Rio Declaration, Principle 3 of which reads: “The right to development must be fulfilled to equitably meet developmental and environmental needs of present and future generations.” Sustainable development has been a core concept of international environmental discussion ever since, including at the World Summit on Sustainable Development (Earth Summit 2002 AU106: The in-text citation "Earth Summit 2002" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. ) and the United Nations Conference on Sustainable Development (Earth Summit 2012 AU107: The in-text citation "Earth Summit 2012" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. , or Rio+20).
Environmental Law: Environmental law is a collective term encompassing aspects of the law that protect the environment. A related but distinct set of regulatory regimes, now strongly influenced by environmental legal principles, focuses on managing specific natural resources, such as forests, minerals, or fisheries. Other areas, such as environmental impact assessment, may not fit neatly into either category but are nonetheless important components of environmental law. Previous research found that when environmental law reflects moral values for betterment, legal adoption is more likely to be successful, usually in well-developed regions. In less-developed states, changes in moral values are necessary for successful legal implementation when environmental law differs from moral values.
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle as follows, to protect the environment, States shall widely apply the precautionary approach according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle may play a role in any debate over the need for environmental regulation.
Ecosystem: An ecosystem is a biological system made up of a community of living organisms and the physical environment in which they interact. It is a unit made up of interdependent organisms that share the same habitat (including people). “The Constitution must evolve in its consideration of the territory”, says Florencia Ortúzar, “to be considered as much more than the geographical terrain over which Chile has sovereignty”. “The territory must be understood in terms of the ecosystems it houses.”
Non-Regression Principle: The non-regression principle aims to constantly improve environmental standards by avoiding the rollback of environmental protection or the adoption of retrogressive regulations. “For example, if the values of a norm are revised, the new values ??must raise standards and never lead to unprotecting the environment”, explains Valentina Durán.
Climate Refuges: Those areas with pristine habitats of high environmental value where ecosystems are healthy and the different species can take refuge from current and future stressors and negative effects of climate change. Ideally, these areas should be protected and no intervention beyond the minimum.
Environmental Justice: The equitable distribution of environmental burdens and benefits among those who inhabit the territory. According to Ezio Costa, this means that there can be no sacrifice zones that take away all the contamination for the benefit of others.
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment. UNEP considers transboundary responsibility at the international level to prevent damage to neighboring environments at the international level as a potential limitation on the rights of the sovereign state. Laws that limit externalities imposed upon human health and the environment may be assessed against this principle.
Climate Action: Any policy, measure or program that aims to reduce greenhouse gases, increase the ability of communities to adapt and build resilience to climate change, or support and finance such plans. Climate action is one of the Sustainable Development Goals (SDGs) that the member states of the United Nations adopted for 2030.