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Constitutional environmental rights
Section 12. Science of law
Manushaqe Artan, European University of Tirana, PhD in Law, the Faculty of Law E-mail: artanslatinje@yahoo.com
Bisha Eugena, Karl-Franzens University of Graz, PhD in Law, the Faculty of Law E-mail: eugenabisha@yahoo.com
Constitutional environmental rights
Abstract: According to the Albanian Constitution the environmental law is not specifically granted as a fundamental right, consequently and the right of claim in case of environmental damage and the issues that are related with the environment are not in a constitutional level.
The samples that are offered are Italy, France, Portugal, Spain etc. The raise in a constitutional level would guarantee the fundamental right to protect health and life quality, also the environment, but also as well approximate the domestic legislation with that community of Aquis Communautaire, as a future part of the Europian Union.
Keywords: constitution, environmental right, health, quality of life, Constitutional Court.
Introduction
The Albanian constitution in its 183 articles has not sanctioned directly the environmental right as a fondamental right to have a healthy and clean environment, but it considers the framework of the right to information, and so, as a right within social objectives.
Article 56 of the Albanian constitution states: Everyone has the right to be informed about the state of the environment and its protection. The public concerned. This article guarantee the basic right of the individual to be informed about the environment, but not the right to press charges for environmental damage as a directly fondamental right, as "The right for a Healthy and Clean Environment...!".
Law No. 119/2014 "For the right to information" has come to and in accordance with Article 23 and 56 of our Constitution for the right of information.
1-2 Article 59 of the constitution states about the social objectives:
The state, inside the constitutional competences and the means at its disposal, and the fulfillment of private initiative and responsibility, "aims":
e) a healthy environment and ecologically suitable for present and future generations;
f) rational exploitation of forests, waters, pastures and other natural resources on the basis of the principle of sustainable development;
2. Fulfillment of social objectives cannot be claimed directly in Court. The law defines the conditions and the extent to which may require realization of these objectives.
Analysis
In the article 59/1, point e) and f) are treated as fundamental social rights, within the social objectives, Well as a set of circumstances and not as a circumstance itself for the right to a healthy and clean environment. The question that arises? Is the direct target of the individual and society "the right of his health", to have a more healthy and clean air quality according to standards, either domestic or international? Is there a guaranteed protection of flora and fauna directly from the Constitution? Is it reflected the principle of an integrated approach of the environment and the sustainable development?
All these rights according to the Constitution, are guaranteed by the extent and conditions defined by law.
The right to have a clean and healthy environment [6, 121], to ensure the health and quality of life does not enjoy Constitutional protection as the basic higher rate, but it leaves this warranty to other legal norms under the hierarchy of the Constitution, as conventions, codes and laws.
Environmental laws by analyzing the matter are transversal laws, they must protect in front of global developments and exploitation of natural resources, health, life and her quality, and "the principle of mutual responsibility".
What does Constitutional legislation of other countries predict to protect the environment.
Italian Constitution (IC) has not provided directly to environmental protection as the rate itself, and does not define as a fundamental principle, but it comes from the interpretation of the article, its 9, 32, 42, 44.
Section 12. Science of law
Changes in the IC of 2001 in the part V Article 9 thereof mention for the first time the term environment in the context of the state expertise regarding standards of flora and fauna ecosystem 2-1-1GJ IC says: "Environment is a common non material good, consisting of different components, each of them in isolation or separately may constitute object unrighteously".
It is known now the doctrine and jurisprudents have already developed the concept of environmental regulations, ranging from 9 to article 32 of the Constitution, to see it as a broader and unified concept. This includes all elements of the natural environment, including Sandblast, soil, water, flora, fauna, the consequences to the detriment of health.
To understand the importance of protecting the environment as IC says, means you'll get back considering what happened the last twenty years with economic developments — political — environment in the field of the environment and to give her the value of a basic norm, the environment needs to be protected as part of determining the quality of life.
Its defense can't attend Natural abstract aesthetic goals, but expresses the need for a natural habitat where man lives as citizen and creates community acts to make it absolute primary value of his Environmental citizenship Integrity. Legal protection of the environment finds its genetic source directly in the Constitution and that therefore the environment is understood in the sense of unity to the public good, not its material, although not exclude the dual nature of its material and immaterial to set forth and prove as untouchable assets at their borders.
In another civil section of the Court of Cassation, it says that the environment can not be conceived as a single material, but it must be regarded as an indirect value protected by the Constitution, in view of which the state could adopt uniform standards across the country.
The environment is a transversal matter CCI states, and therefore regions can not operate, the type of urban, industrial, agricultural or regional activity in complete autonomy and the territory as environment does not understand geographical unit defined in the Constitution.
Portuguese Constitution of 1976, the environmental right as a fundamental right has it combined in two of its articles, the Article 66 of her It attributes all of the rights to a healthy environment and life, ecologically balanced and the duty to defend it. Relying on Articles 66 and 52 of the Portuguese Constitution, every citizen has the right to sue to protect the working environment and the damage caused to it.
Spanish Constitution of 1978 in the article number 45 thereof, defines the environment: Everyone has the right to enjoy an environment suitable for personal development and the duty to preserve it, complaints against public authorities will be made only when the person has a "Personal interest".
So if the Spanish Constitution in article number 45 states that every person who has a personal interest standing to bring this claim for environmental damage facing the Spanish authorities at every level, Albanian Constitution not only guarantees this as the right of a person at the constitutional level but in a sophisticated bureaucratic way expresses in Article 59, paragraph 2, filing claims for protection of the environment (environmental damage) Fulfillment of social objectives can not be claimed directly in court. "The law determines the conditions and the extent to which may require realization of these objectives".
French Constitution has become part of its "Environmental Charter" [8], a suite in the French Constitution which talks about human rights and human freedoms and rights associated with it as the right to a healthy environment and ecologically clean, this card proclaims allegiance to the Charter of Human Rights of 1789 in France.
Recommendations:
1. The right to petition for the environmental damage comes as a fundamental constitutional right guaranteed in the Italian legislation and the decisions of the Constitutional Court and the Cassation Court, by interpreting indirectly constitutional norms. They would make a pretty good source for constitutional legislation, which increase the effectiveness and efficiency in the protection of rights and freedoms fitting tribute to human rights in the field of environment [9] and sue.
2. Other models may be obtained as constitutional examples ofAlbanian constitutional law are the Constitution of Ecuador, Portuguese Constitution, Polish, the Spanish one, can become part of the Albanian judiciary with interpretative provisions or Ad Hoc in order to protect human health and the environment, quality of life, and directly sue in court.
3. Rise of the claim for environmental damage (environmental protection) in the constitutional level in developing countries like Albania comes as a primary duty to protect the freedoms and fundamental rights, as that of health, quality of life and environment as a whole, but also for an approximation as quickly as possible of Albanian legislation with the Acquis Communautaire, as the next member of the European Union.
References:
1. Constitution of the Republic of Albania, 1998 (revised 2008).
2. Constitution of the Republic of Italy, 1948.
3. Constitution of the Portuguese Republic, 1976.
4. Spain's Constitution ,1978.
5. Constitution of the Republic of Ecuador, 2008.
6. Constitutional Court of Italy (decisions nr. 121, April 30, 1986; nr. 641, December 30, 1987)
7. Ambiente e principi costituzionali nel diritto comparato, in: D. Amirante (a cura di) Diritto ambientale e Costituzione, Milano.
8. [Electronic resource]. - Available from: www.assemblee-nationale.fr/italiano/8db.asp#charte_env (date 10.03.2016).
9. Pacific Rim Law & Policy Journal Association Legislative decree, dated, 03/04/2006. - No. 15 .
