Introduction to Hungarian and International Enviromental Law

Introduction to Hungarian and International Enviromental Law

Which are the environmentally relevant provisions of the french Constitution and how are they ensured in judicial cases?

The environmental law concerns the study or the elaboration of legal rules aiming at the understanding, at the protection, at the use, at the management or at the restoration of the environment under all its forms - ground, aquatic and marine, natural and cultural, even non-ground (space law).

It is a technical and complex, local and global law (European, maritime law, international) rapidly growing, fields of which tend to densify according to the social, scientific and technical gains.

The environmental law is a fundamental and transverse law. The right for a healthy environment is very recent in the modern culture (it especially developed in the 1970s). Developed in various scales and legal systems, fruit of a specific story, the environmental law covers the hierarchy of the standards in particular in international law, in community law and in national law even local.

Besides its normative aspect, imposing obligations of public order - compared with the hard, the environmental law can take also the character of soft law, without imposing of legal obligations but just standards of behavior recommended to the actors of the law. It is also one of scopes of anticipation of the principle of prevention and the precautionary principle as well as notions of environmental studies, conservation measures, compensatory measures and environmental responsibility or of refund of ecological debt. It questions and it is questioned by the environmental ethics, the law for the health (environmental health) and the law emerge from future generations.

The problem of the necessary implementation of an international law of the environment crystallized from the 1990s around the summit of Rio and its conventions and international declarations.

The environmental law associates various approaches and concerns various sub-branches which make the everyday life of the jurists of the environment:

• Those connected to elements composing the environment: air law,  straight ahead some water and the sea, law of grounds, law of the biodiversity and the biotopes;
• Those connected to human activities: law of the hunting, the fishing, the energy;
• Those connected to harmful or polluting activities: law of the noise, law of the classified installations, straight ahead the purification, the law of the industrial or natural major risks;
• Those connected to a particular object: law of the nature conservation (including now in certain countries the night-environmental protection against the light pollution, the law of the chemical, law of waste, law of sites, historic monuments, etc.;
• Those connected to a branch of industry to which we affix its appropriate environmental legal problems: farming and environment, industry and environment, services and environment. The declension can go to the infinity by sub-sector: fish farming, nuclear power, tourism, health-environment, etc.;

Every time, for each of its sub-branches, the environmental law comes according to the legal order which he questions: local / national / international including the community law for Europe with for example the community law of the environment.

This interaction is also made towards other legal branches like the criminal law, like the commercial law, like the business law, like the tax law and we shall evoke then the criminal law of the environment for example, even by crossing both aforesaid subcategories as an example of community criminal law of the environment.

In France, it is now centred by a code of the environment.

The environmental law is a rather recent transverse law for the legal sciences.

Transverse, it browses more than about fifteen pre-existent codes and accumulates the aspects of public law and private law. Modern, technical and complex right it is the object, in France, of a particular code called Code of the environment, come into effect by the Decree of September 18th, 2000.

Her recognition is doubtless due to the creation of the Ministry of the Environment in 1971.

But initiatives such as the law on the national Parks of 1960 then the law on the water of 1964 constitutes big advances of this slow recognition for the environment in France, later compared to other western countries.

The environmental law knew a constitutional consecration with the charter of the environment, wanted by Jacques Chirac and promulgated on March 1st, 2005 by the Congress. This one creates the third generation of human rights (after the subjective rights of the Declaration of the Rights of Man and of the Citizen of 1789 and the social and economic rights of the Introduction of the Constitution of 1946), the legal consequences of which are still uncertain. The jurisprudence to come will show if this law for the environment turns out to be a law enough precise to be dedicated by the courts. A first step was crossed in this direction by the prescription of decree proceeding-freedom returned on April 29th, 2005 by the Administrative Court of Châlons-en-Champagne, said jurisprudence Teknival, which for the first time recognizes in the " right for a healthy and balanced environment " the quality of fundamental freedom. The priority question of constitutionality (QPC) also gave more long-range one legal and normative in the Charter of the environment.

The production of French legal rules in the field of the environment also depends on standards which are superior to it, namely:

• The international law of the environment (more than 300 conventions or multilateral treaties without counting the bilateral agreements); he can take also the character of soft law, without imposing of legal obligations.
• and especially, considering the European integration, the community law of the environment the transposition of which is at the source of more than 85 % of the French law of the environment

In the field of the environment, the question of the distribution of the respective skills of the Parliament and the government settles in traditional terms. It is governed by the article 34 of the Constitution, which gives competence to the Parliament, to define the subject of the " fundamental principles (…) of the regime of the property, the right realities and the civil and commercial obligations " and to fix the rules of the "fundamental guarantees granted to the citizens for the exercise of the public liberties ". It is not thus surprising that the big texts of the French law of the environment are of legislative origin and it especially as the Constitutional Council dedicated the vast competence of the legislator on the subject. In 2005, a constitutional revision spread the domain of the law to the " fundamental principles (…) Of the environmental protection " (constitutional Law of March 1st, 2005, article 3). The National Assembly was equipped in 2009 of a Parliamentary committee of the sustainable development and the town and country planning; whereas to the Senate it is the Commission of the Economy, the sustainable development and of the town and country planning which deals with these questions.

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