International Examples of Constitutional Recognition of the Environment

There are already a number of countries that have constitutionally recognized the right to a healthy environment. Canada can look to these examples to better understand why, even all the way back in 1978, CELA wanted Bill C-60 to include environmental protections.

International Examples of Constitutional Recognition of the Environment:

1. Norway: In 1992, the Northern European country of Norway added Article 112 to its Constitution. [1] This provision states that, “every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.” [2]

Recently, the first constitutional challenge of this provision was filed in a Norwegian court and although ultimately unsuccessful, it was the first case of its kind and is likely to be used as a stepping stone for future lawsuits. The case began in 2016, when Greenpeace Norway and the Norwegian environmental non-governmental organization, Nature and Youth (the plaintiffs) filed a lawsuit against the government of Norway (the defendants), alleging that the government was in violation of Article 112. [3]

The plaintiffs argued that when the government of Norway awarded drilling licenses to oil and gas companies, including the nationally owned Statoil, licenses which would allow them to drill for oil in the Barents Sea – the northernmost drilling sites in the Arctic – they were violating their constitutional promises.

The plaintiffs’ main argument is that the allowance of arctic drilling sites and the choice to expand drilling would negatively impact the environment, especially for future generations, in direct violation of Article 112. They also argued that this drilling activity would contribute to climate change, making it impossible to meet the climate targets that were agreed to when Norway signed onto the Paris Agreement.[4]

Although the court ruled that the arguments raised by the environmental groups were more political than legal, allowing the planned drilling to go ahead, the case was unprecedented and will likely be used by other countries and other environmental groups as precedent or inspiration for their own constitutional challenges. [5]

2. Costa Rica: In 1994, Costa Rica was one of the first countries to enshrine protection for the environment in its constitution. Article 50 of the Costa Rican Constitution states that, “the State will procure the greatest well-being to all the inhabitants of the country, organizing and stimulating production and adequate distribution [reparto] of the wealth. All persons have the right to a healthy and ecologically balanced environment. For that, they are allowed to denounce the acts that infringe this right and to claim reparation for the damage caused. The State will guarantee, will defend and will preserve this right. The Law will determine the responsibilities and corresponding sanctions.” [6]

Since then, Costa Rica has developed a reputation for being one of the leading proponents of environmental protection in the world. For example, in 2013, a UN Special Rapporteur on Human Rights and the Environment visited Costa Rica. At a press conference at the end of his visit, the Independent Expert recognized “Costa Rica as a pioneer in environmental protection and respect for and protection of human rights”. [7] The Independent Expert’s report applauded a number of Costa Rican environmental efforts including their success at reforestation which meant an increase in forest cover from 26% in the 1980s to 52% in 2013, [8] as well as their implementation of a Certificate for Sustainable Tourism driven by the Costa Rican Tourism Institute and designed to categorize and differentiate tourism enterprises according to the degree to which they comply to a model of sustainability and proper management of natural, cultural, and social resources. [9]

3. France: Former French President Jacques Chirac pushed for the French Environmental Charter to be incorporated into the French Constitution and by March 2005, he was finally successful in doing so. [10] Since then, the numerous environmental provisions incorporated into the Constitution -provisions which include reference to the precautionary principle, polluter pays principle and guarantees to a healthy environment – have influenced numerous French legislative outcomes.

Click here for a definition of these concepts in our Fundamentals of Law section.

For example, in 2011, France became the first country in the world to ban hydraulic fracturing or fracking – a method of extracting oil or natural gas from underground rock – citing the Constitution in doing so. Further, the Council of State, which is the highest level of administrative court in France, has based more than a dozen decisions on this Constitutional provision, ranging from decisions on nuclear power to those protecting mountain lakes. [11]

By 2013, more than 100 countries had incorporated some degree of environmental protection into their constitutions. In addition, a number of Canadian provinces and territories have also recognized an Environmental Bill of Rights including Quebec, Ontario, the Yukon, the Northwest Territories, and Nunavut. Despite the difficulties inherent in provincial guarantees to a healthy environment, these documents do serve to demonstrate that there is Canadian support for constitutional guarantees to environmental rights.

<< Was protection of the environment added to the Constitution in 1982?

Why should we include the environment in the Constitution? >>

[1] David R. Boyd & Emmet Macfarlane, “David Boyd wants the right to clean air and water enshrined in the constitution. But Emmett Macfarlane says Parliament should be the arbiter of the environmental laws we need. Should Environmental Rights be in the Constitution?” (3 March 2014) Policy Options online: http://policyoptions.irpp.org/magazines/opening-eyes/boyd-macfarlane/. 

[2] The Constitution, as laid down on 17 May 1814 by the Constituent Assembly at Eidsvoll and subsequently amended, most recently in May 2016, Norway, s 112.

[3] Arthur Neslen, “Norway faces climate lawsuit over Arctic oil exploration plans” (18 October 2016) The Guardian online: https://www.theguardian.com/environment/2016/oct/18/norway-faces-climate-lawsuit-over-oil-exploration-plans.

[4] Greenpeace International, Media Briefing, “A Climate Court Case Against the Norwegian Government for Opening new oil fields in the Arctic” online: https://issuu.com/gp.nordic/docs/media_20briefing_20lawsuit; United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107, art 1, 31 ILM 849 (entered into force 21 March 1994).

[5] Mikael Holter, “Norway Beats Back Lawsuit Seeking to Curb Arctic Oil Drilling” (4 January 2018) Bloomberg online: https://www.bloomberg.com/news/articles/2018-01-04/norway-beats-back-lawsuit-seeking-to-curb-arctic-oil-drilling.

[6] Political Constitution of The Republic Of Costa Rica 1949 with Amendments through 2011, s 50 (CR).

[7] United Nations Human Rights Office of the High Commissioner, Media Briefing, A/HRC/25/53/, “Independent Expert Concludes Visit to Costa Rica Mission” (1 August 2013) online: http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13609&LangID=E.

[8] United Nations Human Rights Office of the High Commissioner, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, UNHRC, 25th Sess, Supp No 53, A/HRC/25/53 at 6.

[9] United Nations Human Rights Office of the High Commissioner, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox at 13.

[10] 2005, CONST, Charter for the Environment. (FRN).

[11] David R. Boyd, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (Vancouver: University of British Columbia Press, 2012) at 196.

 

 

 

The Canadian Constitution And Environmental Law

Lesson Plan: Fundamentals of Environmental Law
Lesson Plan: Canadian Charter of Rights and Freedoms
Lesson Plan: Tragedy of the Commons
Lesson Plan: Climate Litigation

Curriculum Connections

Newsletter

Join our new AlbertaEnviroLaws Facebook group to ask questions, participate in discussions and other online engagement. Please share this widely so that the high school teachers and students in your circles hear about this great new resource for supplemental online learning. AlbertaEnviroLaws Facebook Group