Constitutional Reflection On "Environmental Rights In Constitution"

"Environmental rights" was born in the 1960s.Once it came out,it was widely concerned by countries all over the world.It is still a hot topic in the legal field to this day.In recent years,with the deterioration of China's ecological environment and the frequent occurrence of haze and weather,people are increasingly eager to protect the ecological environment.The state attaches great importance to the quality of citizens living environment,the construction of ecological civilization and the protection of natural resources.Chairman Xi pointed out that" green water and green mountains are the golden mountains and silver mountains".Against this background,China's environmental law community advocates that "environmental rights" be included in the Constitution as a basic right of citizens.Throughout the world,many countries have written "environmental rights" into the constitution text when formulating new constitutions or revising the original ones.This seems to have become a small craze,and at the same time has become some environmental law scholars in China.We advocate one of the grounds for its inclusion in the constitution.So should China follow this upsurge and write "environmental rights" into the constitution?Most constitutional scholars in China have reservations about this.Theoretically speaking,the more civil rights are,the better.The generalization of rights will lead to internal contradictions in China's rights system,and it is difficult to ensure the realization of a right only by setting a right;The degree of tolerance of the environment is different,similar to social welfare.It depends more on the development level and financial affordability of a country.Therefore,it is more suitable for discussion by the political and democratic process than protection by means of basic rights.The author agrees with this.We cannot think that all the problems can be solved by simply writing "environmental rights" into the Constitution.In order to prove this conclusion,the author explored the problems of the doctrine of "environmental rights into the constitution" in China,and found the reason why this method should not be used to construct legal norms.On the surface,this right,as an imported product,naturally has a shadow of the universal international concept.In addition,China's legislative practice in recent years has shown a trend of convergence with the mainstream international approach.This claim seems reasonable.But in fact,putting a certain right into the constitution is not a simple modification of the constitution text.There are many elements behind it that need to be considered,such as whether the theoretical basis for entering the constitution as a basic right is complete,and it is clearly written into the constitution text The effectiveness of the country's environmental protection,whether it meets the expectations of legislators,and what impact "environmental rights enshrined in the constitution" will have on our country.Through the analysis of the literature and the research on the legislative practice of various countries,the author found that the answers to the above questions are negative and negative,so he concluded that the creation of "environmental rights" is unnecessary and infeasible,and verified that ""Environmental rights in the Constitution" is not an effective way to solve China's environmental problems.However,it is not enough to conclude that "environmental rights are included in the constitution" is not a solution to China's environmental problems.We also need to solve the problem of how to carry out environmental protection under the existing framework in order to help China's environmental protection cause.Taking article 20a of the German Basic Law as the reference object,the author discusses the rationality of China's mechanism construction of the environmental constitution with the"national target" model At the same time,taking Article 26 of China 's Constitution as the normative basis and combining the newly added section on environmental protection in the 2018 Constitution,the constitutional basis of environmental protection is explained,and the rationality of the revised part of the Constitution is carried out Argument.Not only that,but through analysis of the author,I found that the provisions of environmental protection in the basic laws of China's civil law,criminal law,etc.,complemented the environmental provisions of the Constitution and made up for the lack of environmental constitutions.At present,China has formed a relatively complete environmental protection legal system with the Constitution as the commander and supplemented by the basic laws,which is sufficient to respond to the functional expectations of environmental protection,protect the environmental rights and interests of our citizens,and promote the development of China's environmental protection cause.