Identifier: TDX:543
Authors: Jaria Manzano, Jordi
Abstract:
This work tries to define the framework that the Spanish Constitution builds to allow the development of environmental policies. The environmental protection is considered as one of the main elements of the constitutional economic model, which redefine the relationships between the human beings and their environment through the regulation of productive processes and exploitation of natural resources. According to this point of view, the environmental protection in the modern law systems is related to a need to establish rules for the economic activity of industrial societies to stop the degradation of the living conditions defined by the structure of the physical environment around the human being. From this point of departure, the work is divided in three main parts: context, concept and constitutional development.The first task to do is to show that the appearance of legal norms about the environment is a relatively new phenomenon which begins with the take of conscience of the magnitude of the effects of human activity in the natural world. This happens since the Second World War and, more intensely, since the 60's. With that historical contextualization we try to locate the appearance of environmental law in the framework of the crisis of ideological presuppositions of Modernity about the relationship between the human being and the nature, as developed in the industrial and technological culture of the last centuries.Second we define the constitutional concept of environment 'adequate to development of the person' as the normative configuration of the physical global space according to the teleological orientation defined by the Constitution. Therefore we exclude the restrictive approaches to the legal concept of environment because we consider that they do not fit in the interpretation of the constitutional text.For this reason, despite the article 45.1 of the Spanish Constitution is formally the recognition of a right, we consider that it is primarily the recognition of a power of the government, because, in order to protect the environment, we need previously a normative definition of the protected form of it, which cannot depend on the exercise of individual rights. In fact, this constitutional norm gives the government some kind of authorisation to put limits in the exercise of certain rights as the property.Anyway, despite the Constitution allows several possible solutions in environmental politics, we defend that it is not possible any environmental policy within the framework defined by the fundamental norm. Therefore, in the cases in which the normative activity of the Parliament does not fit with the constitutional mandate to protect an environment 'adequate to development of the person', it will be possible the declaration of inconstitutionality by the Constitutional Court. The possibility of control the legislator is a sufficient argument to justify too the intervention of the courts in the control of the government. We must situate in this framework the exercise of the individual right recognised in the article 45.1 of the Spanish Constitution, which works principally as a title to put in act the possibility of control. In this context we can interpret too the right to environment 'adequate to development of the person' as a title to take part in the decision-making process. We defend that this right, as recognised in the Spanish Constitution, is the principal foundation to give support to the participation of the citizens in these processes, without the necessity of any other title to take part. Related to this is the possibility to urge the ulterior control of the decision by the courts if necessary.
Repositori URV