Chapter

The Challenge of Effective Implementation

Tim Hayward

in Constitutional Environmental Rights

Published in print December 2004 | ISBN: 9780199278688
Published online July 2005 | e-ISBN: 9780191602757 | DOI: http://dx.doi.org/10.1093/0199278687.003.0004
The Challenge of Effective Implementation

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Responds to critical claims that constitutionalising the right to an adequate environment would not be prudent due to difficulties making it justiciable and difficulties that could make success on the merits unlikely in cases appealing to it. Shows these difficulties are not insurmountable and do not arise from the inherent nature of rights or of environmental problems. What surmounting them does involve, though, is ensuring that courts have the requisite institutional and constitutional competence, which critics consider to be, respectively, unfeasible and undesirable. It is shown that there is no serious obstacle to the development of the requisite institutional competence, which, if necessary, can be achieved through the establishment of specialist environmental courts. As for questions of courts’ legitimate constitutional competence, these arise not only for environmental rights, but for fundamental rights more generally. Also points out that litigation is not the only, or most significant, purpose in constitutionalising the right.

Keywords: competence of courts; enforcement; environmental court; human rights; implementation; judiciary; jurisprudence; justiciability; liability; precautionary principle; right to an adequate environment

Chapter.  12853 words. 

Subjects: Political Theory

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