23
Jun

ENVIRONMENTAL CONSTITUTIONS: AN ANALYSIS FROM ITALY TO THE REST OF THE WORLD

The strong impact of climate change on the environment has highlighted the relationship between ecosystems and the realization of human rights. National Constitutions have, therefore, progressively dedicated special provisions to environmental protection, highlighting a growing attention to the issue. In Italy, just a few months ago, by expressly recognizing the right to the environment in Article 9 Const. a fundamental step was taken toward greater environmental and climate justice.

Environmental protection: between Constitutional Court jurisprudence and the Constitution

On Feb. 22, 2022, Italy’s Official Gazette no. 44 published Constitutional Law No. 1 of Feb. 11, 2022, which inserts environmental protection into Articles 9 and 41 of the Constitution. 

Article 9-which already protected the landscape and historical and artistic heritage-now includes a new paragraph, which states that the Republic “shall protect the environment, biodiversity and ecosystems, also in the interest of future generations. State law shall regulate the ways and forms of animal protection.” Thus, in a perspective of openness toward the affirmation of innovative primary values, for the first time, the Italian Constitution expressly recognizes protection to the environment.

With the amendment of Article 41 of the Constitution, new limits are imposed on free private economic initiative, then leaving it to the legislature to regulate its concrete implementation. It is stated, in fact, that economic initiative “[…] may not be carried out in conflict with social utility or in such a way as to cause damage to health, the environment, security, freedom, and human dignity. The law shall determine the appropriate programs and controls so that public and private economic activity may be directed and coordinated for social and environmental purposes.”

Prior to this amendment, the term “environment” was expressly contemplated by the Constitution for the sole purpose of the division of powers between the state and the regions; Article 117 of the Constitution already assigned environmental protection to the exclusive jurisdiction of the state. The provision had been an occasion for constitutional jurisprudence to confront the issue. On that occasion, the Constitutional Court, valuing complexity, had qualified “environmental protection” as a “transversal matter,” which, by its nature, cannot be strictly circumscribed and delimited within stable boundaries. It, on the contrary, “inextricably invests and intertwines with other interests and competences.” But not only that. The protection of the environment had found a place in the elaboration of the jurisprudence of the Constitutional Court through Article 9 of the Constitution, which had already protected the landscape from before. Of this norm, the Constitutional Court offered an extensive interpretation, understanding “landscape protection” as “landscape-environmental protection,” thus recognizing the connotation of the environment as a fundamental value of the system. It is clear, then, how the constitutional reform incorporates the approaches first reached by the Constitutional Court, which is credited with grasping the social function, intergenerational character and systemic meaning of the environment.

Environmental Principles in European Constitutions

The interpretive work of the Constitutional Court and the recent amendment of the Italian Constitution are part of a broader European and global context that is increasingly attentive to environmental issues.

European states have gradually included in their Constitutions* new provisions on environmental protection, which are sometimes substantiated by the formulation of: programmatic principles (objectives imposed on the state) and intergenerational principles, right to a healthy environment (individual subjective rights, rights that are directly actionable or subject to judicial protection), fundamental rights (having as their object the environment in itself or as inclusive components of a right), rights-duties (adding elements of obligation), and animal rights.

In the European scenario, the first examples of environmental rights are found in the constitutional texts of Spain (1978), the Netherlands (1984), Germany (1994) and France (2005). The Preamble of the French Constitution recalls the duties defined by the Charter of the Environment, which incorporates its principles, formulating guarantees in favour of the ecosystem, human health and future generations and the close correlation between them. Croatia, on the other hand, includes the protection and preservation of nature and the environment among the fundamental values of its constitutional order, adding specific reference to all components of the natural environment necessary for the very existence of the Croatian Republic. Poland, after defining the duties of public authorities and identifying the protection of nature as a condition for the limitation of individual freedom, addresses citizens by reminding them of their obligations and responsibilities regarding the care of the quality of the environment.

Response to a global challenge

New environmental rights are continually being recognized in constitutional jurisprudence around the world. In Ecuador, following constitutional amendment, the rights of nature (of Mother Earth or “Pacha Mama”) have become entrenched in society, helping to spread an all-encompassing environmental consciousness throughout the population. Prior to the promulgation of the new Constitution of Kenya in 2010, the Nairobi High Court made clear the need and duty to protect natural resources through a specific right, thus emphasizing the importance of the environment to the full enjoyment of fundamental rights. Argentina, on the other hand, constitutionalized the principle of sustainable development and, addressing future generations, reminded them of their right to enjoy an environment suitable for the realization and satisfaction of their needs. 

Drawing from environmental principles and human rights, national constitutions have developed an unprecedented legal approach that can contribute not only to the consolidation of environmental jurisprudence but also to the protection of the environment itself against the climate threat. Indeed, in many cases, this phenomenon has resulted in an innovative effort that has created new legal guarantees. Constitutional endorsement is an effective response to the environmental rights protection needs expressed by different national communities. After all, the effective recognition of the constitutional status of such rights appears indispensable for developing an environmental consciousness capable of formulating an effective climate strategy too often obstructed by short-sighted political and economic interests. Environmental rights thus permeate the cultural dogmas of nations and condition the fate of future generations. Each state has developed unique regulations guaranteeing, each time in a different way, new environmental principles and rights with the ultimate intent of laying the foundation for widespread awareness of a common threat.

The strong impact of climate change on the environment has highlighted the relationship between ecosystems and the realization of human rights. National Constitutions have, therefore, progressively dedicated special provisions to environmental protection, showing a growing attention to the issue. In Italy, just a few months ago, by expressly recognizing the right to the environment in Article 9 of the Constitution, a fundamental step was taken toward greater environmental and climate justice.

Edited by Camilla Pollera, Italian Climate Network Volunteer

* Const. Belgium art.23; Const. Bulgaria art. 15, 55; Const. Croatia art. 3, 50, 52, 70; Const. Estonia art. 34, 53; Const. Finland art. 20; Const. France Preamble; Const. Germany art. 20; Const. Greece art. 24; Const. Italy art. 9, 41, 117; Const. Latvia Preamble, art. 115; Const. Lithuania art. 53; Const. Luxembourg art. 11a; Const. Malta art. 9; Const. Netherlands art. 21; Const. Poland art.5, 31, 68, 74, 86; Const. Portugal art.9, 52, 64, 66, 90; Const. Romania art. 35; Const. Slovakia art. 20, 23, 44, 45; Const. Slovenia art. 5, 67, 72, 73; Const. Spain art. 45; Const. Sweden art. 2, 15; Const. Hungary art. 10, 11.

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