PER: 1999 Volume 2 No 1http://hdl.handle.net/10394/19862024-03-28T12:52:37Z2024-03-28T12:52:37ZNaturschutz und VerfassungsrechtCzybulka, Dhttp://hdl.handle.net/10394/19892016-04-28T21:27:07Z1999-01-01T00:00:00ZNaturschutz und Verfassungsrecht
Czybulka, D
Nature Conservation and Constitutional Law in GermanyGermany's federal structure is mirrored in its constitutional law consisting of the federation's Basic Law and the constitutions of the federal states subject to conformity with the former. "Nature conservation" in the constitutional context means the "protection of the natural basis of existence" comprising all natural values such as flora, fauna, soil, water, air, climate, landscape and their interdependencies. The process of incorporating provisions on nature conservation in the constitutions of both state levels intensified in the 1970's and 1980's leading to the amendment of the constitutions in several federal states (adopting for example state aim definitions, locus standi for nature conservation NGO's, individual rights to enjoy nature, municipal responsibilities and so forth), revived with the unification of Germany and came to a first halt with the amendment of the Basic Law in 1994, introducing Article 20a. Nature conservation directly or indirectly is subject of different categories of constitutional provisions - competences, state aims, fundamental rights and through disputed fundamental duties.
As to legislative powers the federation itself enjoys only a framework competence (see Federal Nature Conservation Act), which is unfavourable especially to the implementation of international commitments. This framework is complemented by the nature conservation legislation of the federal states to which also the executive powers in this field are allocated.
Article 20a of the Basic Law provides that "The state protects […] the natural basis of existence …". As a state aim ("Staatszielbestimmung") it addresses the state bodies which thus are legally bound to always respect and perform to the end of the constitu-tionally prescribed objective. As a provision of mere objective law, the individual has no locus standi to enforce its implementation. Its role therefore must be seen as a means of interpretation of enacted law to ensure conformity with the constitution, as a guideline for discretionary decisions and as a support in planning processes for weighing up interests. Under the latter aspect Article 20a can be understood as a principle of non-deterioration regarding the environmental situation, as a "guideline for integrity" and as a decision in favour of raising the standards of protection and implementing them.
Academic discussion on a fundamental right related to nature conservation calls for abondonment of the anthropocentric approach inherent in the constitution (human dignity). A first promising step would be to adopt an "ecological minimum standard" vested as fundamental right. However, in practice a right of nature itself is denied. Instead nature's interests are represented by the state (for example protection of certain sites and biotopes by law) and by NGO's (with locus standi in German administrative courts in most states (Länder)). Claims of individuals against the state to avert a destruction of nature are also denied. Nature conservation as fundamental duty is materialized in the principle of social commitment of property. To this extent nature conservation also amounts to an "ecological" limit for the excercise of individual freedoms guaranteed under the constitution. A respective limitation of nature conservation by these freedoms as well as the scope of any limit to nature conservation are disputed issues.
1999-01-01T00:00:00ZDevelopmental and environmental responsibilities of the "Rechtsstaat"Wolf, Jhttp://hdl.handle.net/10394/19882016-04-28T21:27:40Z1999-01-01T00:00:00ZDevelopmental and environmental responsibilities of the "Rechtsstaat"
Wolf, J
The most important difficulty facing a Rechtsstaat idea when it comes to the realization of "sustainable development", lies in the structural differences between the constitutional order based on the Rechtsstaat on the one hand, and the dynamics of political and economic planning on the order. "Sustainable development" is development that links ecology and economy in such a way that ecological harm is minimized. Development should therefore be in the interest of future generations.
There is, however, not yet much legislation concerning environmental protection, because the Rechtsstaat finds itself in a position where it cannot take sides. In no circumstances can the state legalize the ecological aspect, for this will presuppose state interference in the economic system, therefore violation a principle of the Rechsstaat. Environmental protection could thus easily be misused as the basis for allowing the state to directly manipulate the economic process.
The state has the duty to invoke which measures which could help to regulate environmental harm and to create a legal basis for future economic and technological developments which are compatible with environmental protection. The German Constitutional amendment of 1994 deliberately did not take up environmental protection in the catalogue of fundamental rights. In terms of German constitutional law, state goals bind the legislature and should be translated into legislation. Article 20a GG formulates environmental protection as a state goal.
It would be seem to be fair to suggest that the most important contribution towards getting to grips with the responsibilities of the Rechsstaat in promoting environmental protection has been made by legislative bodies in European as well as in German environmental law. The legislative measures require that precautionary measures should be taken by those who cause the environmental damage or risk. Environmental protection and economic development are inseparable in state politics. While planning economic policy the state has to take into account the environmental impact of such policy in order to give effect to the precautionary principle. The precautionary principle thus has a regulatory character and a planning law dimension.
In a Rechtsstaat the state can regulate environmental protection only through the precautionary principle so as not to interfere in economic policy. Only in this manner can "sustainable development" be maintained.
1999-01-01T00:00:00ZThe best of both worlds? some reflections on the interaction between the common law and the Bill of rights in our new constitutionO'Regan, Khttp://hdl.handle.net/10394/19872019-06-24T09:10:32Z1999-01-01T00:00:00ZThe best of both worlds? some reflections on the interaction between the common law and the Bill of rights in our new constitution
O'Regan, K
The relationship between the Bill of Rights in the South African Constitution of 1996 and the common law is analyzed in this paper. "Common law" is understood broadly to include not only the Roman-Dutch law, but also the wide variety of legal sources and traditions which make up South African law, including African tradition, Muslim practice and the English law heritage.
Firstly an exposition of the chief characteristics of the hybrid system of South African common law is given. It is shown that the common law is not codified; that it is a living and organic system of law constantly under legislative and judicial review; that its sources vary from judicial precedent to civilian authorities, English, indigenous customary and Muslim law; that the style of litigation and adjudication is English rather than Continental in Character and that when a common law rule is modified, it is done retrospectively in conflict with principles of legal certainty.
Secondly the chief constitutional provisions relating to the relationship between the Constitution and the common law are considered. The supremacy clause (section 2) renders a common law rule which is inconsistent with the Constitution invalid from the date of the Constitution unless a court gives a different ruling in accordance with justice and equity. Courts have the inherent power to develop the common law, but the Constitutional Court may do so only in constitutional matters. Two forms of constitutional normative effects may be distinguished: direct (as in sections 2 and 8(1)) and indirect (as in section 39(2)). In terms of the latter the spirit, purport and objects of the Bill of Rights are to guide the development of the common law.
Thirdly the interaction between the common law and the Constitution is thoroughly explored with reference to common law rules that are in conflict with the Constitution as well as where the common law already provides protection for the rights provided by the Bill of Rights. These matters are explored with reference to a number of recent judgments of the Constitutional Court, in some of which the common law was effectively developed.
It is concluded that the firm normative thrust of the Constitution may well prove to be a rich source of principle for the development of the common law and that the flexibility of the common law may facilitate a cross-pollination between it and the Constitution.
1999-01-01T00:00:00Z