Re-Thinking Of The Constitutionalization Of Environmental Rights

Environmental rights theory is one of the hot topics of the discussion among the environment protection laws and constitutional law'field. On the issue of the constitutionalization of environmental rights, only one voice can be heard, saying that environmental rights should be lined in the constitution law as human basic right. Through investigating from the opposite respects the reason and purpose of the formation of environmental rights, the decline conditions and the normative structure models in other foreign countries, the thesis intends to probe on a series of obstacles existing in the process of the constitutiorializing of environmental rights in China, to find out a proper model for the legalization of environmental rights.The thesis includes four parts. Part one mainly introduces the process and the reason of the formation of environmental rights in foreign countries, and the purpose of establishing environmental rights in law; in the meantime introduces and analyzes the decline conditions of environmental rights in foreign countries.Part two introduces and discusses the normative structure models and the deductive construction of foreign environmental rights, putting forward that there are only two normative structure models of environmental rightsin law: the constitutionalization model and the legalization model , inwhich the legalization model takes the lead.Part three analyzes the current obstacles in the constitutionalization of environmental rights in China in jurisprudence: the vagueness among the conception, the subject, the content and the properties of environmental rights; the conflicts among the contents of environmental rights and between the environmental rights and the principles of interests balance; the conflicts between environmental rights and constitutional rights proposed by scholars.Part four analyzes a series of obstacles in the practice of constitutionalizing environmental rights: one is the legal vacancy and conflict of environmental rights each other; the second is the dilemma of judge' s judgement in the judicial practice; the third is the technology limit; and the fourth is the financial difficulty.