Environmental constitutionalism: utopia, tradition, or innovation? - Part II

  Articoli (Articles)
  Filippo del Monte Alia
  21 March 2023
  5 minutes, 33 seconds

The perception of skeptics

We have already introduced the topic of environmental constitutionalism in a previous article and talked about the important innovations introduced by some countries in the Global South that refer to principles and traditions belonging to indigenous cultures to change the human-environment relationship within the constitutional text. In fact, as already explained, the approach that still dominates the current legal paradigm is the anthropocentric one, which, as its name implies, places man at the center of a natural world from which, although he is part of it, he is separated, being considered as an entity superior to nature. This means that when it comes to legislating on environmental issues, such laws are necessarily weaker, since they defend an entity, whose interests are considered secondary to those of man. This is not to say, however, that this new generation of environmental constitutions acts in the exclusive interest of the environment. In fact, Article 9.6 of the Bolivian Constitution proposes to preserve the environment in the interest of future generations, thus still placing the human being at the center of the picture and continuing to maintain an approach that makes a distinction between the natural and human worlds.

However, the phenomenon of deforestation has been growing steadily in the country since the 1980s, even estimating that the pace has doubled in the last 20 years, losing 8.1 percent of land previously occupied by primary forests. Some data published by the World Resources Institute, estimate that the hectares of forest land lost between 2021 and 2022 amount to 6.7 million, a figure that brings Bolivia into the ranking of the top 10 countries in the world for forest land loss. These figures demonstrate how an environmental initiative at the constitutional level must always be accompanied by political will to be effective. This may support the argument of skeptics, who claim that the constitutional incorporation of values and principles to protect the environment is not followed by concrete judicial initiative and that therefore these principles are not de facto actively employed in the fight for the environment.

This critique, however, should not apply only to environmental constitutionalism, but is applicable to whatever legislative or policy instruments one chooses to adopt to counter the climate crisis. It is undoubtedly true, as the Bolivian data also point out, that political or legal rhetoric devoid of real commitment is merely a waste of time. At the same time, it is policy and law that are the instruments that have the real authority to impose a decision or a course of action.

Global constitutionalism

In this regard, a further strand of thought that has taken hold among scholars on the subject is whether the study of environmental constitutions can be given a global slant. This strand of thought, or legal theory, is called global environmental constitutionalism.

Let’s clarify what we are talking about. We have already explored the meaning of environmental constitutionalism and some of its forms, and before adding the adjective global, it is first necessary to explain what global constitutionalism means. The term has no single definition and has multiple levels of meaning, ranging from a slow phenomenon of convergence of constitutional texts from around the world to the possibility of constitutionalizing international law. The latter interpretation is that international law must either take on the characteristics of a national constitutional text or adopt one that applies to the entire world community. The concept remains unclear precisely because scholars on the subject are divided and there is still debate about how to implement such a project within a world order that is often referred to as anarchic. The UN Charter is often cited as a precursor or symptom of a slowly emerging global constitution. Like a constitutional text, the Charter is an almost universally accepted law, superior to all other international laws and treaties (Art 103), requires a very complex procedure for amendment, etc... although there is still much debate as to whether we can speak of a world constitution in this case.

Let’s apply the global perspective to environmental constitutionalism

The question many scholars are therefore asking is this: can we talk about a world constitution for the environment? Opinion on the matter is, of course, divided.

In 2011, Professor Daniel Bodansky asserted that neither the constitutional character of international environmental protection nor the existence or emergence of such a feature could be asserted. Bodansky points out that all major international environmental treaties do indeed claim to be a pivotal document for the preservation of a particular aspect of the environment, even establishing special institutions based on those treaties, but fail to establish themselves as a superior source of law at the center of a broader system of law or to give rise to anything resembling a constitutional system.

However, in 2019, Professor Louis Kotzé decided to reopen the question closed by Bodansky. Kotzé bases his opinion on the Global Pact for the Environment initiative, the negotiation of which began in 2018 following a United Nations General Assembly resolution. This initiative aims to become a global law text for the environment that encapsulates within it all the fundamental principles of international environmental law. The goal is to go beyond the 1992 Rio Declaration and create a new institutional apparatus and reference point on the subject. However, the idea of the environment behind this document still refers to the Western tradition, without hinting at an influence from Latin American constitutionalism and ignoring the global trend to revisit human-environment relations. Nevertheless, the innovative and constitutional nature of the document is evident, which is evident not only from the above-mentioned goals of the initiative, but also from the texts of the articles themselves, which list the principles behind the text and the duties that all states have towards the environment. Kotzé concludes by saying that the Global Pact still has the flaws of the way of thinking that has characterized environmental law for decades, and therefore like them would still be too weak to bring about a real change of course. At the same time, the intention to restructure the international environmental legal system cannot be missed, and it is undoubtedly a major step forward from when Bodansky made his analysis in 2011.

Translated by Denise Praticò.


Bibliography: 

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L'Autore

Filippo del Monte Alia

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Ambiente e Sviluppo

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constitution international law