A Reflection On The Idea Of Constitutionalizing The Right To Environment

In recent years,due to the increasingly restricted living environment,people have begun to reflect on the relationship between survival and the ecological environment.The purpose is to be able to seek a better environment for one’s own survival through various means,so the environmental right is proposed.After decades of controversy and research,the constitutionalism of environmental rights is the current mainstream view.However,there are also many problems in the theory of environmental rights in the constitution,which requires careful reflection on its rationale and practical feasibility.Environmental rights originate from the tense relationship between man and nature.Unlike other rights in the past,they are the desire for freedom and the desire for economic and social rights.The problem it faces is a specific environmental crisis.Sorting out the origin and development,concept,legal basis,characteristics,etc.of environmental rights can not only understand the connotation of environmental rights,but also pave the way for the basic theory of environmental rights as a new type of right.When the existing concept of rights and relief system are no longer satisfied with effectively solving the increasingly prominent environmental resource allocation and human and nature issues,environmental rights are proposed as a solution to environmental resource allocation and human and nature social issues.What followed was the question of the legal hierarchy of environmental rights,and the constitutional theory of environmental rights came into being.Thus,there is a discussion on whether it is necessary for environmental rights to be included in the constitution.In an era when rights discourse is so prevalent,many scholars have called for environmental rights to be included in the constitution,and related research results have increased year by year.At the same time,there are also foreign experiences for reference.These trends make people mistakenly believe that enshrining environmental rights into the constitution is a very urgent matter.In this regard,we should calm down and consider the reasons and shortcomings of environmental rights that cannot be included in the constitution.Only in this way can we better study more new types of rights.Otherwise,there are some rights waiting to be included in the constitution every year.As long as there is a right that has not yet been included in the constitution,it will trigger discussion and bring about some research without substantive progress.It is extremely unfavorable to build a good legal system.The theory of constitutionalization of environmental rights argues that environmental rights are a human right and therefore need to be constitutionalized.And the construction of "ecological civilization" is also based on the needs of environmental rights,so environmental rights should be included in the constitution.However,the above propositions are not enough to eliminate the deficiencies of the constitutionalism of environmental rights.First,the human rights attributes of environmental rights are not clear,and there are constant questions about the human rights attributes of environmental rights.Secondly,environmental rights as a constitutional right may have an adverse effect on the constitution.The entry of environmental rights into the constitution may lead to the generalization of constitutional rights and affect the realization of constitutional values.Third,the litigability of environmental rights is also controversial.Even if environmental rights are litigable,subsequent enforcement will also face difficulties.Finally,the constitution of environmental rights is not the best way to achieve environmental governance.The experience in governance of environmental issues brought about by environmental rights in constitutional countries and countries that are not in the constitution is not enough to prove the important role of environmental rights in environmental governance.On the contrary,our country takes the constitution as the commander,and the environmental legal system with detailed departmental laws to form a "national goal" environmental governance model is more effective.This model not only conforms to China’s legal system but also to China’s national conditions.It has more room to play a role than the environmental right into the constitution,and it has more practical effects in governing China’s environmental problems.From the current point of view,the argument that environmental rights are included in the constitution is not sufficient to support the theoretical and practical basis for the inclusion of environmental rights in the constitution.Environmental rights lack the feasibility and necessity of entering the constitution in our country.We should be cautious about the constitutionalization of environmental rights.Without fully considering the defects of the constitutional theory of environmental rights,it is not necessarily a wise move to blindly imitate the constitutional environmental rights of other countries and call for the constitutionalization of environmental rights.