Legal Reasoning in Environmental Law

Legal Reasoning in Environmental Law

A Study of Structure, Form and Language

Douglas Fisher

Legal Reasoning in Environmental Law provides a comprehensive review and analysis of the range of legal reasoning processes to support the understanding, interpretation and application of international, regional and national rules of environmental law.

Chapter 12: Rules in the form of constitutional rights

Douglas Fisher

Subjects: environment, environmental law, law - academic, environmental law, legal theory, public international law

Extract

International human rights law seeks to protect human values from a number of different perspectives: life, health, culture, property and perhaps even development and environment. Some connect with each other. Others are potentially in conflict. In particular the existence of human rights in relation to life has justified the emergence of human rights in relation to the environment. Similar developments have taken place as a result of regional declarations of human rights: for example in Africa and in Europe. Consistently with this it has become increasingly common for states to incorporate fundamental values within their constitutions. The value of constitutionally entrenched fundamental rights depends upon – once again – structure, form and language. It is no surprise that there is a variety of structures, forms and language. There may be statements of function, of value, of policy, of rights or of obligations. A number of examples will demonstrate the point. Article 26 of the Constitution of the People’s Republic of China 1982 states: The state protects and improves the environment in which people live and the ecological environment. It prevents and controls pollution and other public hazards. The state organises and encourages afforestation and the protection of forests. Article 9 confers upon the state the ownership of all natural resources. Moreover: The state ensures the rational use of natural resources and protects rare animals and plants. Appropriation or damaging of natural resources by any organisation or individual by whatever means is prohibited. These provisions declare the functions of the state in respect of the environment and its natural resources.

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