论我国宪法中环境权的表达及其实施

On the Expression of Environmental Rights in the Constitution of China and the Implementation of Such Provisions

环境权概念的兴起始于十九世纪中期的西方国家,二十世纪八十年代传入我国,在2018年我国《宪法》修改过程中,环境权是否入宪问题再次引起各方关注,学界观点不一。从全球范围看,西方国家宪法中的环境权可以表现为人的权利或自然的权利,作为人的权利的环境权可以表现为自由权、政治参与权、社会权、社会连带权等,我国《宪法》对这四种类型的环境权均进行了保障。宪法如果单独确认一项作为个人权利的环境权,环境权在与其他权利的竞争中不具有优势,反而不利于环境保护。对环境权入宪的争论应转向对我国《宪法》中环境权保障性规定的实施问题的探讨,关注环境立法质量和实施效果。

The concept of the environmental right was originated in western countries in the mid-nineteenth century and introduced into China in the 1980s. During the course of amending the Constitution in 2018, the issue of whether the environmental right should be incorporated into the Constitution aroused attention of various parties again who had different opinions. Globally, the environmental right under the Constitutions of western countries may be reflected as human rights and the rights of nature, and the environmental rights in the sense of the former may be reflected as the right of freedom, the right to participate in politic affairs, the social right and solidarity right, etc. The Constitution of China protects all such four types of the environmental right. If the Constitution only confirms the environmental right enjoyed by individuals, it will not enjoy advantages in competing with other rights, thus instead going against the environmental protection. Attention should be shifted from the debate over the incorporation of environmental rights into the Constitution to the implementation of provisions of the Constitution on guaranteeing the environmental right, focusing on the quality of environmental legislation and the implementing effects.