Jankaripatra – Magh 2066 B.S.

Mainstreaming of Environmental Rights in New Constitution: Right to Clean and

Healthy Environment

Advocate L.B. Thapa*

IUCN
1
1. Introduction

Human beings who are fond of development have significantly affected and polluted the
Earth‟s surface as well as the atmosphere and even the stratosphere in course of the past
two decades of development. 1 Keeping the biodiversity which includes the human beings
also and the entire ecosystem balanced, clean and healthy 2 means also to guarantee the
human rights of the third and the fifth generation of mankind 3. The natural resources and
the national heritage of a country is the common asset of all the citizens of that country.
The citizens of a country have a meaningful correlation with these resources from
different perspectives such as the country‟s economic development and environment
conservation, etc. 4. Clean, healthy and sustainable environment is a natural boon and
ancestral legacy for mankind. The present and the future generations should be entitled to
live in a clean, healthy and sustainable environment and it is everyone‟s fundamental
right to enjoy and share that environment together. The concept of clean environment will
be meaningful only when the entire ecosystem is clean5. Keeping this notion in view, the
Roman philosophers also said it is everybody‟s responsibility to maintain a clean and
healthy environment and that all the living beings, humans included, and the non-living
things have their inalienable right to exist in a balanced, wholesome and healthy
environment. The beginning of the intellectual and historical reference goes back to the
Greek philosophers.6 The Greek philosophers Plato and Aristotle viewed air and water
(environment) as related to the government and in their view, Greek political parties
becoming capable of running a democratic government was made possible by the clean
and healthy environment found there. 7 The great French philosopher Montesquieu had
said cowardice and infirmity were caused by the environment while studies prove the fact
that nature and the environment are primarily responsible factors on which the famous
economist Malthus based his theory of population and food and the famous scientist
Charles Darwin based his theory of struggle for survival.
May be inspired by similar concept, our religion and culture also stress the worship of
nature comprising forests, rivers, mountains, air, water and the sky. They also stress on
keeping the sources of rivers and water bodies clean and healthy as these are the basis of
life. It is not only our religious and cultural duty but also legal duty to keep the nature
clean and healthy. Science has already proved that our survival is possible only in a
clean, healthy and sustainable environment.8

A big challenge lies ahead in the present times as to how to stop and prevent
environmental degradation and pollution and provide the right to a clean and healthy

*Coordinator, Inclusion of Environmental Rights in New Constitution of Nepal Project.

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environment to all the living beings including insects, plants and humans. Issues like
political, social, gender, cultural, religious, economic, regional and ethnic rights that are
being advocated with the help of the political parties will have meaning only if there is a
clean and healthy environment rich in bio-diversity. The above-mentioned rights would
be automatically restricted if there is a serious damage or degradation in the environment.
Will the State be able to guarantee the opportunity to the people of all social strata and
groups whether they are rich or poor or belong to one or the other religious, political,
cultural or social groups to earn a living in such a situation? The objective of this
information booklet is to inform and apprise all those concerned regarding the topics and
knowledge within the expertise of IUCN in the context of the Constituent Assembly
carrying out the great historic job of drafting the New Constitution as it is also IUCN‟s
responsibility to do so by explaining what kinds of rights and privileges it would be
appropriate to incorporate in the New Constitution to always keep the environment clean,
healthy and sustainable and by elucidating on the efforts that have been undertaken
worldwide for that purpose.

2. Reasons for Initiation of Environmental Rights

Mankind, in course of excessive exploitation of existing environmental resources in the

world, has been using the available advanced technology over the last some decades for
leading a luxurious life. Because the level of pollution emitted in the beginning was
within tolerable limits, it did not have an adverse effect on the external environment and
public health. In the meantime, the pollutants released in the environment and the Earth
surface due to the uncontrolled human activities started to cross the limits. Consequently,
the uncontrolled development activities and pollution that crossed the tolerable limits
caused serious damage on the fundamental rights of the living beings, including humans,
to live in clean and wholesome environment and made us incapable of maintaining the
expected environment.
Different efforts have been made at various levels to address these problems and to
incorporate the provisions of forward-looking environmental rights on the natural
resources, services and goods required for maintaining the entire bio-diversity and
ecosystem and for fulfilling human needs. A number of conventions and covenants like
the Convention on Conservation of the Cultural and Natural Heritages of the World, the
Convention on International Trade in Endangered Species and the Convention on
Biodiversity have been formulated and implemented at the local, national and multi-
sectoral levels. The Legislature, Executive and Judiciary of different countries have
contributed to pollution control and environmental conservation measures in accordance
with these conventions and agreements.

3. Need for Clean and Healthy Environment

The existence of the entire human race is possible only in a clean, healthy and sustainable
environment. Therefore, the Supreme Court of India, in its decision on a case, M.C.
Mehata versus Union of India (1992), accepted that it is the inalienable right of every
citizen to live in a clean, healthy and pollution-free environment and this notion has also
been adopted in Article 21 of the Indian Constitution. In this connection, the respected

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Supreme Court of Nepal, in a case related to the Godavari Marble Industry, has
internalized the fact that existence of bio-diversity, including that of man, is possible only
in an unspoiled ecosystem characterized by clean and healthy environment; stating the
right to life is encompassed in the right to clean and healthy environment. In this way, the
Supreme Court, in its decision on this case, has internalized that the existence of the
biodiversity is only possible in a clean and healthy environment with unspoiled
ecosystem.9

A clean and healthy environment is sine qua non for existence of all the living beings
including humans and for maintenance of the ecological balance. The rest of the basic
rights guaranteed by the Constitution become meaningless in the absence of the right to
clean, healthy and sustainable environment. Among the different rights that the State has
bestowed to an individual, the right to freedom is the most significant one. There can be
no two opinions that the right to live is inherent in the right to freedom, and a clean and
wholesome environment is necessary for exercising this right. Hence, there can be no two
opinions that environmental resources, services and goods and human livelihood as well
as human health will be adversely affected in the absence of clean and healthy
environment. That mankind will be ultimately deprived of the inherent right and
opportunity to participate in different activities like education, study and research, sight-
seeing, engaging in trade and business, politics, social, spiritual and cultural realms and
in income-generating activities due to the unhealthy and polluted environment remains a
bitter truth. Thus, it is necessary that overall environment should be healthy for utilization
of the above-mentioned opportunities.

It is very important that ecosystem, biodiversity, animals and plants as well as all the
components of the environment are healthy. Apart from this, it is equally necessary that
the environment is pure, serene, clean and healthy even for the continuity of life and the
world in their original state. Keeping this importance of environment in mind, various
countries have given place to environmental rights in their respective constitutions in tune
with the time, place and context. The constitutions of different countries have assigned
necessary responsibilities for the conservation of environment and natural resources, and
for the prevention and control of environmental degradation and pollution in order to
ensure the right to clean and healthy environment. 10

Almost all the constitutions formulated after 1992 have enshrined the right to clean and
healthy environment. The constitutions of Hungary, South Africa, Nicaragua and Turkey
have made provisions for ensuring appropriate, respectable and healthy environment; the
constitution of Korea has made provisions for ensuring pleasant environment; and the
constitutions of Peru, Philippines and Portugal have made provisions for ensuring natural,
clean and ecologically balanced environment while the constitution of Chile has
provisions guaranteeing a safe and pollution-free environment. 11 The understanding that
implementation of constitutional environmental rights should be guaranteed is rising. 12
The constitutional environmental rights are ensured when the rights of the present and
future generations to live in clean, healthy and sustainable environment are incorporated
under the inherent rights instead of under the Responsibilities of the State or the Guiding
Principles and Policies of the State. These rights should be tailored towards their

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incorporation in the wider definition of environmental health by rising above the
definition of human-centric health in which conservation and protection of bio-diversity
is also recognized. 13 Therefore, the pressing need of incorporating these vital rights to
clean, healthy and wholesome environment in the constitution in the context of Nepal is
proved from the above examples.

From the viewpoint of the environmental experts, the lack of specific and clear definition
of environmental terms like „healthy‟, „wholesome‟ or „adequate/sufficient‟ and the
definition of environment being totally human-centric are the reasons behind the non-
implementation of the constitutional right to clean and healthy environment that is so
fundamentally essential for the survival of life and the world. The universal bio-centric
approach has been accepted with efforts being made towards ensuring the effective
implementation of some constitutional environmental rights provisions in which model
provisions for ensuring environmental rights are included in course of drafting the
constitution by clearly defining terms like „healthy‟,‟ wholesome‟ or
„adequate/sufficient‟. 14

3(A) Implementation

It would be fitting here to dwell on the implementation status of constitutional

environmental rights in the context of many of the world constitutions adopting the
inalienable right to live in a clean, healthy and wholesome environment as the basic
human rights. Complex issues related to rationality, redress, scope and jurisdiction and
content have arisen in the context of implantation of the constitutional environmental
rights.15 Judicial audit of most of the constitutional environmental rights has not been
carried out. 16 Normally, the courts are found unwilling to have some of the judicially-
audited basic environmental rights automatically implemented and complied to. 17
Nevertheless, this trend is gradually changing. The tendency of the law courts
automatically implementing and enforcing the constitutional environmental rights is
increasing, slowly. 18.

Only a limited number of environmental rights are deemed to be appropriate for

implementation in the course of conducting judicial auditing. Among the major
constitutions known to have provisions for implementation of environmental rights by
courts are the constitutions of the South Africa, Portugal, Argentina, Colombia and Costa
Rica. 19 It would be appropriate in Nepal‟s context to incorporate constitutional
environmental rights in the Constitution so that they would be automatically
implemented, considering the non-implementation of the constitutional environmental
rights in the past as well as at present. According to a study of the provisions on
constitutional environmental rights in different countries conducted by Kate Watson, the
constitutional environmental rights should have the following features in order for them
to be worthy of implementation:

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3 (A) 1 Rights of negative restriction

The major problem or weakness in the implementation of the constitutional

environmental rights is that most of the constitutional environmental rights are referred to
as positive rights. The constitutional environmental rights which are listed as positive
rights in this way only remained confined to the policy commitment of the State. These
rights, however, can not be applicable on an individual basis in the condition of their non-
implementation. Several courts are found to have effectively interpreted and implemented
such positive rights due to the court‟s activism even in the absence of complementary
laws in most of the cases. Therefore, it has been suggested to use restrictive language in
the process of formulating constitutional environmental rights for resolving problems
encountered in the implementation of positive rights. 20 As a conclusion from the above
study and explanation, it would be appropriate to incorporate in the Constitution the
environmental rights under fundamental rights section in the form of negative restrictive
provisions in Nepal‟s context too. If environmental rights are incorporated in the
Directive Principles and Policies of the State as positive rights as was done in the past
constitutions, it would be considered as undermining, neglecting or taking lightly the
right of every Nepali citizen to overall development, including their environmental,
cultural, political, social and economic rights.

3 (A) 2 Automatic implementation

The provision of automatic implementation is also one of the features required of the
constitutional environmental rights for them to be worthy of implementation. The
constitutional environmental rights should be automatically implemented on their own,
and these rights are of the kind that should be directly and automatically implemented
even when the rest of the legislative environmental laws are not in force. 21 Special
provisions should be made under which the legislative laws formulated by the Legislature
as an alternative should automatically be implementable as fundamental rights such as
environmental rights that are very vital and significant. It is possible to incorporate such
provisions in the Constitution only when the framers of the Constitution are sensitive to
the body and content of the related provisions in the Constitution. The important fact is
that environmental rights could be fully guaranteed if the provision the courts shall
implement the environmental rights even when legislative laws related to environmental
rights are not implemented is clearly incorporated in the Constitution as the restrictive
rights. 22 Hence, the environmental rights can be implemented in a meaningful manner in
future if the framers of the Constitution gave attention to incorporating the provisions of
constitutional environmental rights as per the suggestions the environmental rights
experts have given.

3 (A) 3 Locus standi on environmental rights

A comprehensive definition of locus standi is necessary for ensuring the implementation

of constitutional environmental rights. 23 Everybody has concluded that the provision on
locus standi on environmental rights is very narrow or restricted in scope in Nepal too. In
this connection, experts are of the opinion that the status and aspects of the claims can be

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recognized by linking locus standi to environmental rights with the rights of the “progeny
or the future generations” in the draft of the Constitution in an encouraging and liberal
manner. The well-being of the future generations can be protected only when
constitutional environmental rights are incorporated under the inherent rights that the
future generation could also enjoy. Only under such conditions can individuals sensitive
to the rights and welfare of the future generations initiate action necessary for the
protection and promotion of their rights which have been lost or are on the verge of
losing by invoking the locus standi when the rights of the progeny are infringed upon or
are likely to be snatched away.

The Supreme Court of the Philippines, in response to a case/writ petition of Oposa filed
by also children, among others, claiming that the inherent right of the unborn children
and infants to be born, brought up and live respectably, has been violated, ruled that the
unborn child and infants have the inherent right to be born, brought up and live
respectably in a healthy environment and that nobody could snatch away such rights. In
delivering its verdict, the Philippines Supreme Court adopted the principle of the right of
the future generations and gave an extensive definition and explanation of entitlements,
in a very liberal manner.24 Similarly, the report prepared by the National Interests
Protection Committee of the Constituent Assembly, in the recommendations section of
the report, states that approximately 58.8 per cent out of the total respondents who gave
their opinion and inputs for the new Constitution suggested that natural and cultural
heritage should be protected for the benefit of both the present and future generations. 25
It becomes clear from the Committee‟s report that the rights and interests of the future
generations should be protected by means of the Constitution. Although this provision is
not included in the preliminary draft of the Committee, there is still much room for hope
as the Constituent Assembly (CA) members on the Committee have expressed
commitment to include topics that have been missed out in the draft report at a latter date.
26
So, there remains the possibility of implementation of environmental rights if the
provision of the inalienable right of the present and future generations to live in clean,
healthy and sustainable environment is included under the Basic Rights section of the
Constitution to be formulated by the Constituent Assembly based on Nepal‟s own and
various other countries‟ practices.

3(B) Human-centric Vs. Bio-centric Environmental Rights

Experts in the field of environmental rights have produced facts that environmental rights
should be broadly bio-centric instead of human-centric. Besides remaining focused on the
main features required for the constitutional environmental rights to be clearly
implementable, these rights should rise above human-centric concept or paradigm. The
principle that the broader definition of environmental health should take into account the
different aspects of biodiversity also is rapidly gaining currency.27 Normally, human-
centric rights means the limited rights clearly comprising of „sufficient‟, „healthy‟ or
„wholesome‟ environment. However, the terminologies used under this concept or
paradigm are not able to carry wider and deep meanings and definitions.28 It is true that
environment conservation has not really taken off since the clear-cut definition and
interpretation of provisions on constitutional environmental rights have not risen above

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human welfare and are not bio-centric in the wider sense. It is criticized that the courts, in
practice, have defined these human-centric terminologies in a restricted sense meaning
mankind‟s basic right to live, instead of giving them wider definition, and also
recognized them in that sense.29 This kind of narrow and restricted definition is found to
have been in practice in Colombia and Chile.30 The conclusions drawn from a study of
environmental rights in world constitutions conducted by Kate Watson suggest to include
in the Constitution of Nepal now being drafted the following provisions under the
broader bio-centric constitutional environmental rights by rising above human-centric
concept or paradigm:
 Providing inter-generational dimension under which rights related to the present
generation would also become rights of the future generation; and
 Use of extended language by incorporating various other topics covered by
healthy environment.

However, it is a fact accepted by all that it is not possible to determine the universal
definition of the benchmarks of a healthy environment.31 It is proven from the studies
conducted by Kate Watson that these standards or indicators are as determined by the
administrative and /or the legislative rules and /or the regulations determined as per the
special condition prevalent in the countries concerned. Therefore, it would be appropriate
and practical to use 'inclusive language' or list to determine what is included in the
„healthy environment‟ instead of using „complete/ precise‟ or rigid language or list.
Therefore, it would be appropriate to define healthy environment in the Constitution by
considering this aspect. It would be worthwhile to define in the Constitution the
environmental rights in a bio-centric approach by clearly establishing the rights of the
community deriving its livelihood from environmental resources, services or goods to
equitable access and to equitable distribution of benefits, to meaningful participation in
policy formulation, decision-making, evaluation and monitoring processes, and to full
compensation against environmental pollution as well as the right of the nature, animals
and plants to live in a healthy environment.

3(C) Examples of Implementable and Bio-centric Provisions

The constitutions of the countries listed below are found to have incorporated the
recognized main features as stated for ensuring the implementation of provisions on
constitutional environmental rights or bio-centric rights:
3(c) 1. Article 2 Part 16 of the Constitution of Philippines states that the State shall
provide to the people the right to balanced and healthy environment that is in tune with
the nature and in harmony with balanced nature. 32 However, this provision is also
human-centric. Still, the provision made in that Article defines the meaning of
environmental health in broader manner. Judicial interpretation has also been made in
accordance with the basis and spirit of the provision of this Article. In the case
concerning Oposa, the court, by not limiting itself to only on issues of human health and
also by covering wider field, gave a comprehensive explanation and stated that the said
right incorporated the following topics:
Prevention and control of toxic smoke emitted by vehicles and factories-industries; oil
industries, ships, oil-drilling companies, factories, mining industries, or local

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communities throwing industrial waste, urban waste, effluents and sewage in the water
and on land, in rivers and on sea-shores; dumping of organic and inorganic waste on the
open land, roads or places frequented by people and inhabited by a community or where
there is human settlement; leaving strip-mining or open-pit-mining uncovered or in a
state unfit for re-use; practicing slash and burn cultivation; destroying or killing fishes or
marine animals or biological marine resources by using explosive substances; polluting
underground water sources; destroying any species of plants and animals; and other such
activities.
The present and future generations and all living beings including animals and plants
have the inalienable right to live in a clean, healthy and sustainable environment.

In this manner, environmental rights have been comprehensively defined in the Oposa
case. An important fact in this court ruling is that it would be appropriate to incorporate
the language used in the court‟s decision on the case as constitutional environmental
rights without depending on the judicial interpretations.33

3(c) 2. Part 6, Topic 7, Article 225 of the Constitution of Brazil states: “Every person
shall have the right to balanced environment in ecological dimension, which is a public
asset for use by the people and which is inevitable for healthy living; and it is the duty of
the Government and the community to defend, protect and preserve the environment for
the present and future generations.” In this way, the Brazilian constitution has laid down
the environmental rights, duties and obligations. In such a model of the constitutional
environmental rights, although the key concept of the wider bio-centric approach has
been given prominent place in the State policy, their implementation would be
questionable if the language similar to positive rights is used in the Responsibilities
section. 34 Nevertheless, these provisions have clearly defined the responsibilities of the
State and stressed on effective implementation of the goals and objectives of all the
constitutional provisions. 35
3(c) 3. Article 24 of the Constitution of South Africa36 provides the following rights to
every citizen:
3(c) 3 a. Environment that does not have adverse effects on the health, happiness and
prosperity of an individual; [The provision in this Clause has provided restrictive rights.
A human-centric term „Every person‟ has been subtly used without focusing on the inter-
generational aspects.]

3(c) 3.b. Conserves the environment for the well-being of the present and future
generations through appropriate legislative and other means, that:
 Prevents pollution and environmental degradation;
 Promotes environment conservation; and
 Ensures environmentally sustainable development and use of natural resources
while carrying out equitable economic and social development activities.

This is a broad and highly effective constitutional environmental right. However, it has so
far not become a topic of judicial audit. Therefore, it is a norm that it is the Judiciary‟s
duty to make assessment and explain about the environmental rights as well as to issue
directives as to how to implement or execute the said environmental rights.37

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Therefore, it would be wise to make, in clear terms, extensive provisions for
environmental rights in the New Constitution that is being formulated. It is not suitable to
remain reserved in the use of required words related to the basic rights that are concerned
with the present and future generations‟ right to live and their right to livelihood. The
court can evaluate and interpret these rights from its perspective as suits the time,
situation and context. It would not be appropriate for the CA members involved in
framing the New Constitution to leave out important topics on environmental rights with
the thinking that the court will do the rest of the job in future. So, it is necessary to
appropriately address the unclear language mistakes in course of preparing the draft of
the environmental provisions in the Constitution.

3(D) Model Provisions of Constitutional Environmental Rights

The following provisions have been made with the aim of ensuring implementation of the
constitutional environmental rights and of making arrangements for comprehensive bio-
centric approach based on the provisions discussed above, in addition to some other
provisions:
3(D) 1. J. Bruckerhoff has suggested the following model provisions as per the spirit of
the language of the Convention on Biodiversity for securing constitutional environmental
rights.38
3(D) 1 (a) Every individual as well as the future generation shall have the right to an
ecologically balanced healthy environment full of bio-diversity. The Government may
not deny or violate these rights. These provisions intend to provide wide range of rights;
however, have the authority to have them implemented individually.39

3(D) 2. Recognizing the core norms and values of nature, the Government shall:
3(D) 2 (a) Provide the opportunity for conservation of bio-diversity and sustainable
utilization of its components;
3(D) 2 (b) Provide protection to vegetation, plants and animals in a way that will lessen
cruelty towards animals, save species from becoming extinct and prevent the risk in the
ecosystem activities of vegetation, trees and animals;
3(D) 2 (c) Maintain the required number of species that can withstand the load/pressure
in natural conditions by protecting and preserving the natural habitats and ecosystems;
and
3(D) 2 (e) Promote sustainable development.

3(E) American Model of Constitutional Provisions and Environmental Rights

Incorporating the provisions stated below under the inherent rights will, besides
providing to the present and future generations the fundamental inalienable and
automatically-implementable right to healthy environment, guarantee the wider
environmental right of safe climate as well as pure air, potable water, scenic land and
clean atmosphere free of poisonous chemical substances and other forms of pollution.
Hence, it is appropriate to specifically incorporate in the Constitution the following

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provisions under the basic rights to provide inter-generational justice under the
environmental rights.

Article 1 The Right to Balanced Ecosystem and Healthy Environment

a. The citizens of the present and the future generations shall have the right to live in
an ecologically healthy environment. These rights comprise the right to get fresh
air, potable water and live in unspoiled land and clean atmosphere free of toxic
chemical substances and other forms of pollutants.
b. These rights shall be automatically implemented. However, these rights should be
consolidated and systematized under the directives of the State Legislature.
c. Any individual or group, if they believe their environmental rights have been
violated, shall get redress from the State courts against the persons, private sector
and public organizations guilty of violating the environmental rights. It is the
responsibility of the Government Attorneys to implement these provisions on
environmental rights concerning citizens of the present and future generations,
even if they do not get instructions issued by the State Legislature.
d. The environmental rights mentioned in this paragraph shall remain as the
fundamental rights of citizens of the present and future generations, and the State
courts shall also give recognition to these rights as any other basic rights.

What can be clearly said after studying these provisions is that incorporating the
provision that the rights of the country's present and future generations to ecologically
balanced, clean, healthy and sustainable environment shall be protected will be very
useful and necessary for the best interests of the indigenous nationalities deprived of the
opportunities to participate in the mainstream of development due to economic, social,
cultural, religious, gender and geographical discriminations as well as of the indigenous
peoples on the verge of losing their identity including the nomadic Raute tribe. It is
necessary that all sides concerned pay attention as to how more and more of these rights
could be incorporated in Basic Rights Section of the Constitution rather than getting
entangled by expressing doubts over the State's capacity to implement these rights, and
having these provisions included in the Constitution as suggested.

Article 2. Environmental Responsibilities/Obligations

It would be the responsibility of the State to maintain the environmental resources as the
gift for its citizens to be preserved and protected for the future and also to exercise its
authority of conserving, preserving and upgrading these resources for the wellbeing of
the present and future generations. In utilizing the country's environmental resources or
developing new technologies, the State shall adopt the concept and approaches of taking
precautionary measures with the objective of fulfilling and promoting these obligations.

4. Provisions of Constitutional Environmental Rights

A study of the provisions on constitutional environmental rights enshrined in the

constitutions of 127 countries of the world in relation to the inalienable rights of the

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present and future generations to live in clean, healthy and sustainable environment for
mainstreaming the environmental rights in the new Constitution shows that two major
provisions in the related constitutions under the following headings. It is believed the
environmental rights of even the future generations could be secured if some of these
provisions that are suitable for our country could be adopted.

The provision of clean and healthy environment for a happy future and prosperous
livelihood is enshrined in the Preamble of the constitutions of five countries including
Afghanistan, the Federal Islamic Republic of Comoros, Micronesia and Zambia.

The right to clean and ecologically balanced environment and biodiversity has been
guaranteed as inherent right by the constitutions of 41 countries including Afghanistan,
Angola, Azerbaijan, Benin, Brazil, Bulgaria, Burkina Faso, Cameroon, Cape Verde,
Chad, Chile, Colombia, among others.

Afghanistan, People's Republic of Ecuador, Mongolia, People's Republic of Angola,

Federal Democratic Republic of Ethiopia, the Republic of Mozambique, Argentina,
Republic of Georgia, Democratic People's Republic of Korea (DPRK),Austria, Republic
of Macedonia, Republic of Paraguay, Republic of Azerbaijan, Republic of Moldova,
Republic of Portugal, Republic of Benin, Republic of Chad, Romania, Federal Republic
of Brazil, Republic of Chile, Republic of Seychelles, Republic of Bulgaria, Colombia,
Slovenia, Burkina Faso, Republic of Congo, the South African Republic, Cameroon,
Costa Rica, Turkey, Cape Verde, East Timor, Venezuela, Yugoslavia and the states of
Hawaii, Illinois, Pennsylvania, Montana in the United States of America.

The right to an adequate, basic, healthy and balanced ecosystem has been enshrined
as the inevitable and inherent right of the citizens including of the present and future
generations in the constitutions of 35 countries, including Albania, Andorra, Bhutan,
Cambodia, Ecuador, El Salvador, South Malawi and Mongolia.

The People's Republic of Ecuador, Republic of Albania, Qatar, the Czech Republic, El
Salvador, Andorra, Romania, Eritrea, the People's Republic of Angola, Satomo Principe,
Finland, Argentina, Saudi Arabia, the Republic of Malawi, Austria, Republic of Malawi,
Austria, the Seychelles Republic, Mongolia, Bhutan, Slovak Republic, Republic of
Panama, the Federal Republic of Brazil, Republic of Slovenia, the Free State of Papua
New Guinea, the Kingdom of Bulgaria, the Republic of South Africa, Peru, Colombia,
Switzerland, Republic of Philippines, Republic of Portugal, Turkmenistan, Namibia,
Micronesia and the US states of Los Angeles and Montana.

The basic rights of the citizens to get environmental information has been
incorporated in the constitutions of 11 countries including Albania, Republic of Georgia,
Moldova, Ukraine and Yugoslavia, among others.

Republic of Albania, Republic of Georgia, Slovak Republic, Argentina, Republic of

Moldova, Republic of Ukraine, Republic of Belarus, Kingdom of Norway, Federal
Republic of Yugoslavia, People's Republic of Ecuador, Russian Federation.

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Seven constitutions have included the provision of compensation against
environmental damage and pollution as basic right. They are the constitutions of the
Republic of Azerbaijan, Republic of Belarus, the Chechen Republic, People's Republic of
Ecuador, the Russian Federation, Republic of Ukraine and the Federal Republic of
Yugoslavia.

The constitutions of Uganda and Uruguay state that it is the basic right of every citizen
to get clean drinking water. The constitutions of India, Bangladesh, Pakistan and
Nigeria are some of the main constitutions that have accepted through judicial decisions
the environmental rights as the basic rights of the citizens although they have not directly
made provisions for environmental rights in the Basic Rights sections of their
constitutions.

Twenty-seven constitutions including that of Bahrain, Belarus, Bolivia, China, Costa

Rica, Croatia, Cuba, East Timor, Equatorial Guyana, among others have provisions that
state it is the responsibility of the State to protect and conserve all types of
environmental resources.

East Timor, Bahrain, Republic of Ghana, Equatorial Guyana, Republic of Belarus,

Greece, Eritrea, Republic of Benin, the Cooperative Republic of Guyana, Republic of
Mali, Republic of Bolivia, Republic of Korea, Malta, Chechen Republic, Kuwait,
Mexico, People's Republic of China, Republic of Latvia, Republic of Mozambique,
Republic of Costa Rica, Republic of Macedonia, Democratic People's Republic of Korea,
Republic of Croatia, Republic of Madagascar, Republic of Cuba, Qatar, Romania.

The provision of individual's responsibility to conserve the environmental resources

has been enshrined in 23 constitutions including that of Burundi, Congo, Ghana,
Cooperative Republic of Guyana, Madagascar, among others.

Republic of Bolivia, Republic of Ghana, Republic of Nicaragua, Republic of Burundi, the

Cooperative Republic of Guyana, the Free States of Papua New Guinea, Republic of
Cape Verde, Haiti, Republic of Poland, Republic of Chad, Republic of Hungary, Spain,
People's Republic of China, India, Republic of Uzbekistan, Republic of Congo, Republic
of Kazakhstan, Republic of Vanuatu, Republic of Cuba, Mongolia, the Federal Republic
of Yugoslavia, the Czech Democratic Republic and Republic of Mozambique.

Eighteen constitutions including those of the Republic of Turkey, Thailand, Tajikistan,

Slovenia, Slovak Republic, Russian Federation and Free States of Papua New Guinea,
have assigned that conservation of environmental resources is the responsibility of
both the State and the individual.

Burkina Faso, Democratic People's Republic of Laos, Republic of Slovakia, Republic of

Cape Verde, Republic of Lithuania, Republic of Slovenia, Republic of Croatia, Republic
of Mali, Republic of Tajikistan, Finland, the Free States of Papua New Guinea, Kingdom

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of Thailand, the Federal Republic of Germany, the Russian Federation, the Socialist
Republic of Viet Nam, Haiti, Saotomo Principe and the US state of Illinois.

5. Conclusion and Recommendations

A study of environmental provisions of different countries of the world shows that every
country has recognized and given space to the environmental rights in their respective
Constitutions based on their existing environmental, social, cultural and economic
conditions. It is found that several countries, the Constitutions of which have made no
mention of environmental rights prior to the Rio Conference on Environment in 1992,
and most of the countries that are party to the Convention on Biodiversity, amended their
Constitutions to incorporate the environmental rights. Most of the Constitutions
formulated after 1992 have given space to the environmental rights in the Preamble itself,
besides including them in the Basic Rights section.

The Constitutions of most countries have given space to especially balanced and healthy
ecosystem full of biodiversity and to the inalienable right of the citizens to live in clean,
healthy and sustainable environment as the fundamental rights. These rights have been
accepted as the inherent rights of the present and future generations. Since 1992, many
countries are found to have adopted the principles of environmental jurisprudence and the
concept of sustainable development and proximity as the basic fundamental standards in
the form of constitutional environmental rights.

It would be considered environmental rights have been fully protected in a meaningful

way if the provision of giving full compensation in connection with the environmental
damage as well as humanitarian loss caused or likely to be caused in course of the
infrastructure development is incorporated in our Constitution also. The State and the
individual could be stopped from becoming apathetic to environmental conservation if
provisions are made for making the officials of the State or individual, who are guilty of
damaging or polluting the environment or instigating the same or not making efforts to
stop such activities, fully accountable /responsible for the damage caused or likely to be
caused due to their negligence.
The provision on environmental rights can be implemented only when infrastructural
mechanisms required for maintaining a clean and healthy environment are provided for in
the Constitution. The opportunity for all-round development of the present and future
generations could be guaranteed if, at least, the following provisions were to be
incorporated under the Fundamental Rights section in the New Constitution:

(a) The right of the present and future generations to live and grow up, in an
unfettered manner, in a clean, healthy and sustainable environment;
(b) The right to equitable access and sustainable use of environmental resources,
goods and services and to equitable distribution of the benefits accruing from the
utilization of such resources, services and goods to indigenous peoples who have
lost their identity or are on the verge of losing it like the nomadic Rautes, the

13
 indigenous nationalities, underprivileged communities, women, Dalits, Madhesis
and the gender and religious minority classes.
(c) The right to get environmental information in an unrestricted manner and the right
to participate without discrimination in the environmental policy formulation,
decision-making, evaluation and monitoring processes in a meaningful way based
on one's political, economic, religious, social, gender, geographical and regional
status.
(d) The right to adaptation for protecting oneself from the adverse impact of climate
change.
(e) Besides making provisions on the right to get full compensation from the related
government office-bearers, public and private organizations and individuals,
among others, causing significant environmental damage or pollution or for
colluding to cause such damage, the New Constitution should also have
provisions on the fundamental duties. Apart from other duties, the fundamental
duties should also include the provision that it would be the responsibility of
every individual to protect and preserve the environmental resources, goods and
services. Among the provisions of institutional mechanisms for enforcing the
different rights, it would be appropriate if provisions are made in the New
Constitution for Commission on Environment, the Environmental Conservation
Council, Environment Committee and Environmental Court o Tribunal also.
Thus, it can be expected that the inalienable right of the present and future
generations to clean, healthy and wholesome environment would be established in
the real sense of the word if those provisions are incorporated in the New
Constitution as topics that are automatically implemented.

Thanks are due to all authors, scholars and individuals engaged in research and studies
who prepared the materials that have been borrowed and used in this Information Folio
which was written in January 2010. Thanks also go to Rabindra Raj Joshi and Amit
Pradhan who helped with the typing and lay-out of this document. I would like to express
special gratitude to my colleague at IUCN-Thailand, Kate Watson and Chief of Regional
Environmental Law Programme, Asia-Thailand, Patricia Moore. I am deeply indebted to
senior environmental law expert, Mr. Narayan Belbase, a leading figure in the
environmental law sector of Nepal who is also the Resource Person in the Inclusion of
Environmental Rights in New Constitution Project, for his invaluable technical
assistance.

References
Advocate Balkrishna Neupane Vs. the Council of Ministers Secretariat et al.; Writ No.
1851, 1991, Supreme Court special bench decision on December 15, 1992; Lal Bahadur
Thapa, Bishnu Prasad Pokharel, Bhoj Raj Ayer and Prakashmani Sharma [Editors]
(2000), “Compilation of Cases Related to Environmental Conservation,” Janahit
Sanrakshan Manch (Pro-public), Kathmandu.

I.U.C.N. (2009), Suggestions submitted to the members of the National Interest

Protection Committee of the Constituent Assembly based on the conclusions drawn from
discussions, dialogue and panel discussion programme on the Preliminary Draft Report

14
of the Committee along with explanatory comments based on the Concept Paper of the
committee.1

Gauri Pradhan (2009), Human Rights and Environmental Rights in New Constitution,
Information Folio, (I.U.C.N. Nepal), August, 2009.

Padam Lal Devkota and Netra Prasad Acharya (2007); Cultural Models; Academic Book
Centre, T.U., Kirtipur.

Pramod Kumar Jha (2006), “Environmental Pollution: Problems and Solutions,” Narayan
Belbase (Editor); Environmental Justice and Equitable Justice: Possibilities and
Challenges; Forum for Justice, Kathmandu.

National Interests Protection Committee (2009), Constituent Assembly, National Interest

Protection Committee’s Report on the Preliminary Draft along with Explanatory
Comments based on Concept Paper, 2009.

Laxman Prasad Aryal (2009), working paper entitled “Clean and Healthy Environmental
Rights: Basis for Basic Environmental Rights in New Constitution” presented at the two-
day interaction programme on „Environmental Rights and Good-governance in New
Constitution’ for the Constituent Assembly members jointly organized by International
Union for Conservation of Nature (IUCN) and Janahit Sanrakshan Manch (Pro-public) on
July 16 and 17, 2009.

Lal Bahadur Thapa, Bishnu Prasad Pokhrel, Bhoj Raj Ayer and Prakash Mani Sharma
(Editors) (2000), A Compilation of Cases Related to Environment Conservation, Janahit
Sanrakshyan Manch (Pro-public), Kathmandu.

Surya Prasad Dhungel Vs. Godavari Marble Industries Pvt. Ltd., Writ Full Bench
Number 35, Date of verdict October 31, 1995; Lal Bahadur Thapa, Bishnu Prasad
Pokhrel Bhoj Raj Ayer and Prakash Mani Sharma (Editors) (2000); “Compilation of
Cases on Environment Conservation”, Janahit Sanrakshan Manch (Pro-public),
Kathmandu.

Bruckerhoff, J. (2008), Giving Nature Constitutional Protection: A Less Anthropocentric

Interpretation of Environmental Rights, 86 Texas Law Review.

Ferris, L. (2007), Constitutional Environmental Rights: An Under-Utilized Resource,

presented at 5th Annual IUCN Academy of Environmental Law Colloquium, June 2007,
Parati, Brazil.

Kate, Watson (2009), Review of World Constitution, International Union for

Conservation of Nature (IUCN), Thailand, (Unpublished) in IUCN Nepal files.

May, J. (2005-2006), Fundamental Environmental Rights, 23 Pace Environmental Law

Review.

15
Minors Oposa v Sec. of the Department of Environment and Natural Resources, (1994).

Rajamani, L. (2007), The Right to Environmental Protection in India, 16 (3) RECEIL.

Shelton, D. (2002), “Human Rights, Health and Environmental Protection: Linkages in

Law and Practice”, Health and Human Rights Working Paper Series 1, World Health
Organisation.

Shelton, D., and A. Kiss (2005), Judicial Handbook on Environmental Law, United
Nations Environment Program.

Annotations:
1. Pramod Kumar Jha (2006), “Environmental Pollution: Problems and Solutions”,
Narayan Belbase (editor), Environmental Justice and Equitable Justice: Possibilities and
Challenges; Forum for Justice, Kathmandu, 23.
2. By environment is understood the natural, cultural and social systems, economic and
human activities and the interactions and inter-relations with their components.
3. Gauri Pradhan (2009), Human Rights and Environmental Rights in New Constitution,
Information Folio, (I.U.C.N. Nepal), August, 2009. 2
4. Advocate Balkrishna Neupane Vs. the Council of Ministers Secretariat et al.; Writ No.
1851, 1991, Supreme Court special bench decision on December 15, 1992; Lal Bahadur
Thapa, Bishnu Prasad Pokharel, Bhoj Raj Ayer and Prakashmani Sharma [Editors] (
2000), “Compilation of Cases Related to Environmental Conservation,” Janahit
Sanrakshan Manch (Pro-public), Kathmandu. 66
5. Laxman Prasad Aryal (2009), working paper entitled “Clean and Healthy
Environmental Rights: Basis for Basic Environmental Rights in New Constitution”
presented at the two-day interaction programme on „Environmental Rights and Good-
governance in New Constitution’ for the Constituent Assembly members jointly
organized by International Union for Conservation of Nature (IUCN) and Janahit
Sanrakshan Manch (Pro-public) on July 16 and 17, 2009. 6
6. Padam Lal Devkota and Netra Prasad Acharya (2007); Cultural Models; Academic
Book Centre, T.U., Kirtipur, 269.
7. Hardesty, Donald L. (1977), Ecological Anthropology, John Willey and Sons Inc.,
New York, Santa Barbara, London, Sydney, Toronto, 2.
8. Laxman Prasad Aryal (2009), See Op.Cit. No. 5, 6.
9. Lal Bahadur Thapa et.al.(Editors) See Op. Cit No. 4 Surya Prasad Dhungel Vs.
Godavari Marble Industries Pvt. Ltd., Writ Full Bench Number 35, Date of verdict
October 31, 1995; 146.
10. Kate, Watson (2009), Review of World Constitution, International Union for
Conservation of Nature (IUCN), Thailand, (Unpublished) in IUCN Nepal files. 1.
11. Shelton, D., and A. Kiss (2005), Judicial Handbook on Environmental Law, United
Nations Environment Program, 30.
12. Shelton, D., and A. Kiss (2005), above , note no. 11, 31 and 133-137 and
Bruckerhoff, J. (2008), “Giving Nature Constitutional Protection: A Less
Anthropocentric Interpretation of Environmental Rights,” 86 Texas Law Review, 614

16
(especially at 625-630). See also Rajamani, L. (2007), The Right to Environmental
Protection in India, 16 (3) RECEIL at 278 specifically in relation to enforceability of the
right in India.
13. Bruckerhoff, J. (2008), Giving Nature Constitutional Protection: A Less
Anthropocentric Interpretation of Environmental Rights, 86 Texas Law Review, 614
(especially at 625-630).
14. Kate Watson (2009), above, note no. 10, 1.
15. Shelton, D., and A. Kiss (2005), above, note no. 11, 7-8 and 30-31; Ferris, L. (2007),
Constitutional Environmental Rights: An Under-Utilized Resource, presented at 5th
Annual IUCN Academy of Environmental Law Colloquium, June 2007, Parati, Brazil.
16. J Bruckerhoff (2008), above, note no. 13, 6.
17. May, J. (2005-2006), “Fundamental Environmental Rights”, 23 Pace Environmental
Law Review, 113 at 133; and J Bruckerhoff (2008), above, note no. 13, 622.
18. Shelton, D. (2002), “Human Rights, Health and Environmental Protection: Linkages
in Law and Practice”, Health and Human Rights Working Paper Series 1, World Health
Organisation, 22.
19. Kate Watson (2009), above, note no. 10, 2.
20. J Bruckerhoff (2008), above, note no. 13, 626-627.
21. Kate Watson (2009), above, note no. 10, 2.
22. J Bruckerhoff (2008), above, note no. 13, 627-628.
23. Kate Watson (2009), above, note no. 10, 2.
24. Minors Oposa v Secretary of the Department of Environment and Natural Resources.
(1994), 33 ILM 173.
25. National Interests Protection Committee (2009), Constituent Assembly, National
Interest Protection Committee’s Report on the Preliminary Draft along with Explanatory
Comments based on Concept Paper, 2009, 262.
26. I.U.C.N. (2009), Suggestions submitted to the members of the National Interest
Protection Committee of the Constituent Assembly based on the conclusions drawn from
discussions, dialogue and panel discussion programme on the Preliminary Draft Report
of the Committee along with explanatory comments based on the Concept Paper of the
committee.1
27. Bruckerhoff, J. (2008), above, note no. 13, 634 and Ferris, L. (2007), Constitutional
Environmental Rights: An Under-Utilized Resource, presented at 5th Annual IUCN
Academy of Environmental Law Colloquium, June 2007, Parati, Brazil.
28. Ferris, L. (2007), Constitutional Environmental Rights: An Under-Utilized Resource,
presented at 5th Annual IUCN Academy of Environmental Law Colloquium, June 2007,
Parati, Brazil.
29. J. Bruckerhoff (2008), above, note no. 13, 631-632.
30. Kate Watson (2009), above, note no. 10, 6.
31. L. Ferris (2007), above, note no. 28.
32. Kate Watson (2009), above, note no. 10, 6.
33. J. Bruckerhoff (2008), above, note no. 13, 634.
34. Kate Watson (2009), above, note no. 10, 34.
35. J. Bruckerhoff (2008), above, note no. 13, 636-637.
36. L. Ferris (2007), above, note no. 28,2.
37. J. Bruckerhoff (2008), above, note no. 13, 635-636.

17
38. Kate Watson (2009), above, note no. 10, 5.
39. Kate Watson (2009), above, note no. 10, 34.

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