No abstract

While 148 of the 196 national constitutions in effect today manifest some form of environmental constitutionalism, the fact that some states have not adopted such provisions suggests that their spread is not inexorable. This article investigates the factors which affect whether a state adopts environmental constitutionalism. By undertaking a historical analysis of those countries which have so amended their constitutions, it identifies the context in which the constitutional change takes place as a significant consideration. The context of constitutional change influences the amendment process, which is then opened up to a range of other factors, both external (learning/persuasion, acculturation/emulation) and internal (political leadership, public and sectoral engagement, constitutional ideology, national environmental damage), all of which are considered by examining previous efforts to enshrine environmental constitutionalism. The article concludes by highlighting four specific responses that are key to successful amendment processes, namely: capitalizing on crisis situations; ensuring that economic concerns are adequately addressed; leveraging the support of the public and politicians; and linking environmental protection to national values.

The Paris Agreement moves away from top‐down agreed national targets towards a bottom‐up system in which each party submits regular nationally determined contributions (NDCs). The Agreement outlines a highly adaptable process in which, every five years, parties are required to update their NDCs, which must represent a progression on their existing contribution. This article analyses the extent to which the European Union’s 2030 Climate and Energy Policy Framework has created an adaptable structure that reflects the Paris Agreement’s ratchet mechanism. The article contrasts this approach with the carbon budget process adopted under the United Kingdom’s Climate Change Act. The article assesses the respective advantages and disadvantages of creating a system where targets are easily increased on a medium‐term basis allowing responsiveness to changed circumstances such as scientific data indicating the need for more rapid emission reductions, versus a stable system that provides greater certainty for economic actors.

Since the Single European Act in 1987, the European Union has had increasing competence to legislate on environmental matters. However, while the EU must now integrate environmental protection requirements into the definition and implementation of its policies and activities, there is no explicit protection of a 'right to environment' within Union law. The absence of such a right is unsurprising, as the debate on the existence and applicability of environmental rights is both recent and unresolved.

Ever since the conceptual division of rights into three separate categories; civil, political and social, the legal status of social rights has been controversial. This divergence in views is illustrated by the decision of the Council of Europe in 1950 to protect civil and political rights through a judicial format where adherence to the European Convention on Human Rights (ECHR) was ensured by the European Court of Human Rights, whereas social rights were addressed separately through the European Social Charter (“Social Charter”), with merely a reporting mechanism to the European Committee of Social Rights.