El derecho a un medio ambiente sano: su reconocimiento en el constitucionalismo comparado y en el derecho internacional

Abstract

During the last three decades the recognition of some kind of rights about environmental protection has been developed around the world, in international public law as in internal constitutional law. Despite this, it has been a excruciating question to define the content of this kind of rights. The general category of the right to a healthy environment receives a different treatment in different legal systems and has a complex set of facets hard to be insert into an unity. This work try to describe the situation of the recognition of the right to a healthy environment in the international and the national level with the final aim of state that this situation of fact demands to define a legal content of it, despite the difficulties that have been noted by the scholars, tending to underline the impossibility of give to it a real legal status. We are facing a legal reality answering with more or less success to social needs and it is required to accept the process of general recognition of the right and to extract conclusions of this. After the presentation of the status of the situation in international main documents and significant constitutions, the work makes a proposal to give content to the right to a healthy environment in a double sense. First, we have a defensive approach, which aims to give individuals the legal weapons to react against actual aggressions that affect them directly; and second, we have the cooperative point of view, which aims to give them access to the decision-making process. The first approach more or less reacts to actual harm. The second is intended to prevent harm. This could be a starting point to advance in define a legal content of this right.