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引用次数: 0
摘要
本文考察了三个宪法环境条款,以及它们是如何在挪威、德国和法国的三个气候案件中被欧洲法院应用的。在这些案件中,指导性原则,即宪法规定的国家保护社会价值的义务,一般通过颁布立法,在有关减缓气候变化的司法裁决中发挥了关键作用。我们采用了Lael K. Weis关于指令原则的分析框架,以澄清在这三个案例中适用的减缓气候变化的机构责任分配,并认为澄清这些角色减轻了一些关于气候变化司法决策的民主合法性的批评。重要的是,虽然法院不直接执行这些类型的宪法指导原则,但它们必须对它们进行裁决。当法院根据指导原则解释宪法授权的立法时,它们就会制定新的宪法环境规范。虽然大多数关于环境宪政的学术分析都集中在环境权利上,但我们的研究证实了韦斯的论点,即针对立法机构的指导原则也是环境宪政的重要形式,值得进一步关注。
Allocation of Institutional Responsibility for Climate Change Mitigation: Judicial Application of Constitutional Environmental Provisions in the European Climate Cases Arctic Oil, Neubauer, and l’Affaire du siècle
Abstract This article examines three constitutional environmental provisions and how they have been applied by courts in Europe in three climate cases from Norway, Germany and France. In each of these cases, directive principles, that is, constitutionally entrenched state obligations to protect social values, generally by enacting legislation, played a key role in judicial decisions regarding climate change mitigation. We engage with Lael K. Weis’s analytical framework on directive principles to clarify the allocation of institutional responsibility for climate change mitigation as applied in these three cases, and argue that clarifying these roles alleviates some of the criticism regarding the democratic legitimacy of judicial decision making on climate change. Importantly, while courts do not directly enforce these types of constitutional directive principles, they must adjudicate them. When courts interpret constitutionally mandated legislation in light of directive principles, they develop new constitutional environmental norms. While most scholarly analysis of environmental constitutionalism has focused on environmental rights, our examination confirms Weis’s thesis that directive principles aimed at legislatures are also important forms of environmental constitutionalism, and deserving of further attention.
期刊介绍:
Condensing essential information into just three issues a year, the Journal of Environmental Law has become an authoritative source of informed analysis for all those who have any dealings in this vital field of legal study. It exists primarily for academics and legal practitioners, but should also prove accessible for all other groups concerned with the environment, from scientists to planners. The journal offers major articles on a wide variety of topics, refereed and written to the highest standards, providing innovative and authoritative appraisals of current and emerging concepts, policies, and practice. It includes: -An analysis section, providing detailed analysis of current case law and legislative and policy developments -An annual review of significant UK, European Court of Justice, and international law cases -A substantial book reviews section