Beyond the Formalistic Design of ‘Rights’ and ‘Directives’: Framing Environmental Constitutionalism as a Collaborative Model

Abstract

Environmental constitutionalism refers to the growing constitutional recognition of the environment. Given the diverse designs of constitutional environmental provisions across the world, environmental constitutionalism is construed broadly to reflect both rights and non-rights provisions related to environmental protection. The constitutional entrenchment of environmental rights is the most common expression of environmental constitutionalism. Yet, such a purely rights-based approach ignores the distinctive constitutional design formulated as non-rights directive principles. Central to this debate is the perceived appropriateness, or inappropriateness, of treatment by courts of directive principles as if they are judicially enforceable rights. By exploring the limitations of this twofold division of environmental constitutionalism into conventional rights and directive principles, this article argues that such an approach positions the enforcement of environmental constitutionalism into the binaries of courts versus legislatures. However, environmental constitutionalism should be repositioned towards a collaborative model, the achievement of which requires interactive dynamics among the legislature, the executive, and the judiciary. Through a relational perception of separation of powers, this article offers an innovative understanding of environmental constitutionalism by integrating environmental governance with the values of constitutional collaboration, within which shared responsibility for enforcement is placed among the separated powers.