- 法制改革与法治发展：中国与芬兰的比较
- 陈甦 (芬)尤拉·柳库恩
- 12字
- 2020-08-29 04:07:02
第二部分 可持续与环境法治
The Environmental Constitutional Right in Finland：Achievements，Problems and Prospects
Jukka Viljanen[1]
【Abstract】Section 20 of the Finnish Constitution provides the provision of protecting environmental constitutional right，which entered into force in 1995. Despite of early references as a declaratory right the importance of the environmental constitutional provision is significant. The change in the constitutional interpretation is related to putting more weight on environmental issues and less on the question of right to property. In the legislative processes the constitutional environmental right has been providing a stimulus to improve environmental legislation. This positive trend is also apparent in the case-law of the Finnish courts with the famous case of Vuotos providing a turning point by the Finnish Supreme Administrative Court. Environmental rights considerations were taken into account in the major water energy building project. However，more is yet to be expected from the Finnish courts in relation to applying international human rights sources and especially the case-law of the European Court of Human Rights，which is related to environmental protection. There are many elements under the environmental rights which are not yet consistently applied in the domestic courts’ reasoning.
1.Introduction
There has been an obvious need to have a comprehensive research for effects of the Finnish constitutional environmental right during the period of over 20 years since the fundamental rights reform entered into force. This means that there was a need to evaluate how the new type of constitutional rights was implemented in practice and how it has influenced the legislative processes in environmental matters. The Ministry of Environment financed Environmental Constitutional Right project that was done by the University of Tampere Public Law Research Group. The project provided results in the form of both an academic article and a report for the Ministry. Heta Heiskanen and Siina Raskulla co-wrote the report with me[2]. In addition，we have published an article in the Finnish Environmental Law Review[3].
I will discuss in this article how constitutional environmental right has been developed in Finland，what are the major achievements，what have been the most serious problems and what kind of prospects we can see in the future.
As a part of the Finnish fundamental rights reform in 1995（969/1995，entered into force 1.8.1995），the right to healthy environment（14a §）was introduced and it was later incorporated into the new Constitution（Act 731/1999）which entered into force 1 March 2000. The Section 20 was named as responsibility for the environment.[4]
Section 20-Responsibility for the environment
Nature and its biodiversity，the environment and the national heritage are the responsibility of everyone.
The public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment.
The first paragraph includes a general responsibility clause towards nature and biodiversity. Primary dealing of environmental issues as administrative in their nature illustrates the strong role of the state as a both duty-bearer but also as a supervisor of environmental interests.
However，the responsibility for environment is placed not just on authorities but on everyone. This means that corporations and individuals are duty-holders in ensuring the environmental protection. This requires that necessary environmental legislation and criminal law have been enacted in such way that the responsibility is shared by those who produce environmental harm.
The specific duty of public authorities to protect the healthy environment concerns both direct and indirect actions of the state and local authorities. When the threshold of duration and severity of the environmental harm is attained，obligations may include duties to regulate，supervise and enforce acts of private actors. The Finnish fundamental rights reform was strongly influenced by the European case-law and other international treaty obligations，which will be discussed in other articles.
The second paragraph of the Section 20 should be understood as including constitutional commission to develop legislation that would expand people’s possibility to influence decision-making concerning their living environment（Constitutional Law Committee Opinion PeVL 38/1998 vp，p. 2）. Participatory rights in the Finnish environmental system include not just public hearings but also an obligation to distribute necessary information especially in relation to environmental permits，city planning and construction. The transparency of the environmental decision-making is also important in order to guarantee sufficient access to information.
The good practices in the field of participatory rights have been constructed on a premise that when individuals are capable of following the environmental decision-making process from the early stage by receiving information，and thus their rights related to participation are better ensured. These practices also increase the possibility to take an environmentally relevant action at the right time of the process rather than having the irretrievable harm to be taken place. Often the timing of the participatory action is crucial in achieving the sought outcome.
In the Finnish legal system there is no constitutional court which would have the highest authority to interpret the content of the constitutional provision and ensure that the legislation is in compliance with the constitutional provision. Every court is empowered to provide rulings relating to the interpretation of the constitutional provision and when the application of an Act would be in evident conflict with the Constitution，a court would give primacy to the provision of the Constitution（Section 106 of the Constitution）. In Finland application of human rights in environmental litigation has concentrated mostly on the administrative courts and more specifically on certain fields of environmental issues such as environmental permits or environmental impact assessment.
The constitutional interpretation is guided by the prior scrutiny by the Constitutional Law Committee of the Finnish Parliament（perustuslakivaliokunta）. The Committee supervises that the legislative proposals and other matters brought for its consideration are in compliance with the Constitution and international human rights obligations and gives the authoritative interpretation of the constitutional provisions（Section 74 of the Constitution）. The Committee is comprised of members of the Parliament，but its reasoning is juridical rather than political. This is due to the fact that the Committee’s opinions are heavily influenced by expert statements made by the constitutional scholars and other experts. The Committee’s opinions and especially interpretation on the which legislative order should be applied are considered to be binding on other parliamentary committees. They have to make necessary modifications in order to avoid procedure for the constitutional enactment that requires higher majority（Section 73 of the Constitution）.
Next this article illustrates how the constitutional environmental right has supported the development of the environmental legislation. After that the environmental right is discussed in light of the interpretation of the Constitutional Law Committee and the Finnish courts.
2.Comparative Research Describing Positive Effects of Constitutionalizing the Right to a Healthy Environment
Finland is not the only country that has introduced some kind of constitutionalizing of the right to a healthy environment. According to David R. Boyd there are 147 countries in which constitution provides environmental rights or/and responsibilities.[5] In his book “the Environmental Rights Revolution” David R. Boyd has strongly supported the side effects of the constitutionalizing the right to a healthy environment. His comparative research on the environmental rights revolution is listing several benefits of the constitutional right.[6] These include：
①provide a stimulus for stronger environmental legislation
②enhance implementation and enforcement of environmental laws and policies
③create a level playing field with competing economic，social and cultural rights
④offer a safety net，filling gaps in environmental legislation
⑤compel progress in alleviating the unjust distribution of environmental harms
⑥play educational role，need for environmental protection
⑦increase accountability
⑧protect laws from future rollbacks
⑨encourage greater citizen participation in decisions and actions to protect environment
From the perspective of the Finnish constitutional law the recognition of content of the right to environment in the legislative work has been one of the clearest benefits that can be identified back to the constitutionalizing environmental right. This development has provided a counter force to strong reliance on the right to property，which was typical in the previous constitutional argumentation. In the Finnish legal discourse this is transparent in the change of limitation test applied in the context of the right to property（Section 15 of the Constitution）. A similar limitation doctrine is applicable for every right. This test includes doctrines that are consistent with the European Court of Human Rights limitation clauses.
Most of other benefits in the Finnish legal system relate to the relationship between the legislation and the Constitution. The constitutional right provides a stimulus for stronger environmental legislation. The Environmental Protection Act（EPA）was reformed and new Act entered into force in 1 September 2014. The participatory rights are provided under EPA or the general provisions of the Administrative Procedure Act（APA，6.6.2003/434）. The Administrative Procedure Act includes both obligation for authorities to make clarifications and also the obligation to organize hearings. Especially Section 41 of APA refers to the obligation that possibility to influence has to be reserved in those issues where decision has a significant impact on a living environment，work or other circumstances. Also the Environmental Protection Act includes provisions both distributing information to the public and organizing public hearings.
The Constitutional provision is also protecting environmental laws from rollbacks under future governments. In addition，while in the early decisions the Constitutional Law Committee described the right as declaratory and focused on its divergence compared to other constitutional rights，the Committee’s cumulative practice gives a more comprehensive picture of the provision and its influence on the legislation.
I want to highlight that there is a consensus that Section 20 is not only declaratory in nature，but it can be used as an interpretive guide both at the legislative process and by courts while they apply laws in practice.
The constitutionalizing the environmental right has placed an added weight on environmental issues in the balancing of different competing rights，especially with right to property. The Committee has reiterated that because the right to property and right to healthy environment are part of the same fundamental rights catalogue，both of these rights can have influence on each other’s interpretation in situations where the new legislation is intended e.g. to achieve sustainable balance between individuals and nature（Constitutional Law Committee Opinion PeVL 20/2010 vp）.
The Constitutional Law Committee has found that Section 20 is applicable and relevant e.g. in assessing restrictions on fishing（PeVL 14/2010 vp），restrictions on certain type fishing methods（PeVL 20/2010 vp），safeguarding architectural heritage（PeVL 6/2010 vp），mining industry（PeVL 32/2010 vp），control of drinking water（PeVL 44/2010 vp），export and import of cultural property（PeVL 47/1998 vp），extraction of soil（PeVL 2/1997 vp）and private forestry（PeVL 22/1996 vp）.
One of the concrete examples of the constitutional provision’s influence is related to the protection of endangered species（PeVL 20/2010 vp）. The Constitutional Law Committee criticized the high threshold for using restrictions. The ban of certain catching methods cannot be introduced even if this is required in order to preserve the endangered species in the particular region. The initial wording implied that restrictions could be enacted just in the stage that the relevant species is almost extinct.
This environmentally rights-oriented opinion of the Constitutional Law Committee was taken into account by the Parliament and the initial provision was reformulated in order to lower the threshold for protective measures. The prohibition of certain types of traps could be instigated also when the measures were necessary in order to preserve the species. This modification was significant especially in order to provide necessary protection for Saimaa ringed seal，which was endangered due to certain types of fishing traps.
3.The Role of the Constitutional Environmental Right in the Finnish Jurisprudence
The sporadic appearance of environmental constitutional right in the case-law is typical to the environmental case-law. The Supreme Administrative Court has taken a very cautious approach in order to apply the right. The constitutional argumentation is normally applied in cases where there is a some kind of a lacuna on the law or it is a hard case that needs more argumentation than in uncomplicated cases.
One of the first transparent environmental rights cases was the landmark Vuotos judgment（KHO 2002：86）. The environmental permit was sought to include a huge artificial water area that would extend to 242 square kilometers and would include a water power plant. Thus，the case concerned nationally important energy project with major environmental impacts in the northern part of Finland. The Supreme Administrative Court confirmed the rejection of environmental permit for building the Vuotos reservoir and interpreted the legislation in a human rights friendly way.
The rejection of the permit to build the Vuotos reservoir illustrates the transformation of interpretation of the Water Act. Even though the interpretation according to the water legislation included balancing of interests but it used to be dominated by the interests of the energy industry whereas the environmental values were subsidiary to those of building water energy. During the process the power company Kemijoki made a strong argument based on previous case-law trying to diminish the interpretative value of the constitutional right to environment. However，they failed to convince the Supreme Administrative Court. The Court clearly distinguished the Vuotos case from its previous approach to Water Act cases. The Court confirmed that the right to environment provides a statement on the value of the nature and guides application and interpretation of the law.
It could be analysed that one of the key premises to allow a departure from earlier continuum of water building was that Section 20 of the Constitution was enacted in 1995（entered into force 1.8.1995，14 a §，incorporated to the Finnish Constitution 1.3.2000，20 §）and it should be taken into account while interpreting Water Act provisions.
Overall，the rejection of the Vuotos reservoir was a major turning point in the Water Act interpretation and in the Finnish environmental law in general. While traditionally the environment used to provide justification for restricting the property rights only in very limited circumstances，the Vuotos case illustrates that the balancing is made in a similar way as is done with other conflicting fundamental rights.
The right to effective remedy has been one of the issues where the Finnish courts have relied on the right to environment. In the Hunting Act case（KHO 2004：76）the Supreme Administrative Court relied heavily on the Section 20.2 as a critical part of its argumentation. The problem has been that conservation of birds was considered under the Hunting Act rather than a legislation that would follow the logic of environmental legislation.
The Supreme Administrative Court reiterated that in the first instance the Constitution is fulfilled by enacting legislation，but the provision of the Constitution can also have influence on the interpretation of flexible legal norms. The right to appeal in the context of hunting legislation was therefore widened to include also the similar type of associations that had the right to appeal in accordance of the Nature Conservation Act. Thus，the local ornithological association was granted a right to appeal.
An analogous judgment of applying right to environment in order to promote the right to appeal can be found in the case allowing hunting of wolves（KHO 2007：74）. The Supreme Administrative Court founded its widened interpretation on the right to appeal to the Section 20.2 of the Constitution together with references to the logic of the Nature Conservation Act. Therefore the Supreme Administrative Court considered that two regional nature conservation associations had a right to appeal on the decision of hunting authorities providing an exception to the preservation of wolves.
4.International Human Rights Obligations Concerning Environmental Protection in the Finnish Law
The relationship between international human rights obligations and how they are contributing to Finnish environmental rights will be dealt in an article by Heta Heiskanen[7]. I want to shortly point out that it is clearly stated in the preparatory work and subsequent practice that Section 20 should be considered in light of other constitutional rights and environmentally relevant international human rights obligations. Thus，the connection to international human rights system is inherent to the environmental constitutional right.
On the right-holder side even the future generations are mentioned as one of the right-holders/subjects in the preparatory texts of the Constitution. It is also mentioned that there are such specific values that are not only considered to be rights for individuals. It is inherent to the concept of environmental protection that certain values come out of the intrinsic value of nature.
Thus，The Finnish environmental constitutional right is incorporating similar concepts that can be found in the principle 3 of the Rio Declaration on Environment and Development（1992）in relation to inclusion of future generations into the scope of protection（Government proposal，HE 309/1993 vp，p. 66）.
The Finnish practice confirms findings emphasizing the importance of dialogue between different legal orders on environmental issues. The trend to make fairly few references to the international case-law could be related to the fact that there have not been any clear environmentally relevant judgments among the Finnish cases before the Strasbourg Court.
It would be relatively easy to introduce more references to the European Court of Human Rights in the future. This requires of course also that the applicants acknowledge in their submissions the relevant case-law and requires that the courts also take these judgments seriously.
5.Concluding Remarks
The development of the Finnish legal culture cannot be described as Boyd’s “environmental rights revolution”. However，both the case-law and constitutional practice are however implying that in the Finnish legal culture environmental protection has established a prominent position both at the legislative and judicial proceedings. It is reasonable to state that the list of benefits presented by David R. Boyd is also relevant in evaluating the impacts of the process of constitutionalizing environmental right in Finland. The high quality of the Finnish environmental legislation does not make the constitutional provision as redundant.
Instead，the constitutional environmental provision and high-quality substantive environmental legislation could be seen as complementing each other. The constitutional provision gives weight to the environmental argumentation both at the drafting of new environmental legislation and applying legislation in force in accordance with human rights friendly interpretation.
The role of the Section 20 has been significant especially，during the legislative process，introducing new measures and mechanisms to environmental protection system. Like David R. Boyd has identified there are positive effects as the constitutionalizing the right to a healthy environment can provide a stimulus for stronger environmental legislation. In the Finnish context the right to environment has removed the imbalance building into the Finnish constitutional rights system.
However，there are absorbing potentials in Section 20 which are not yet fully utilized. There is a manifest failure to incorporate relevant international case-law to national jurisprudence in environmental cases.
Section 20 itself has been used relatively rarely in environmental cases，even though some cases can be identified especially from the recent years. The Supreme Administrative Court is cautious on using the human rights argumentation，if the ordinary environmental legislation provides a sufficient basis for its legal reasoning. The courts have taken cautiously positive approach to the role of environmental NGOs in the environmental litigation.
Finally，the protection of participatory rights can be enhanced with new technical devices and applications that collect data from internet. Some cities have also promoted public participation with introducing regional working groups. These good practices allow individuals access to information in early phases of the decision-making process in matters related to environment.[8]
芬兰的环境宪法权利：成就、问题和前景
朱卡·维尔雅宁
【摘要】1995年生效的芬兰宪法第20条规定了环境宪法权利。尽管在早期被认为是一项宣告性权利，有关环境宪法权利的规定仍然具有非常重要的意义。在宪法解释方面的主要变化就是更强调环境问题，而弱化非财产权的重要性。在立法过程中，环境宪法权利促进了环境立法的改善。这一积极的发展趋势明显地反映在芬兰法院的判例法中：芬兰最高行政法院在沃托斯（Vuotos）案中的判决是这方面的一个转折点。在重大水力发电建设项目的规划过程中必须考虑环境权利，但是芬兰法院在适用有关环境保护的国际人权法律渊源，特别是欧洲人权法院的案例法方面还需进一步努力。环境权利的许多要素尚未在国内法院的推理中得到一致的适用。
[1] Professor of Public Law，Faculty of Management and Business，Tampere University.
[2] Jukka Viljanen，Heta Heiskanen，Siina Raskulla，Timo Koivurova & Leena Heinämäki：Miten ympäristöperusoikeus toteutuu？Ministry of Environment，2014.
[3] Jukka Viljanen，Heta Heiskanen and Siina Raskulla：Ihmisoikeuksien yleiset opit ja suomalainen ympäristöoikeudellinen argumentaatio. Ympäristöjuridiikka（2016），86-109.
[4] See more on environmental constitutional right in Finland e.g. Pekka Vihervuori：Oikeus ympäristöön（PL 20 §）. In Pekka Hallberg，Heikki Karapuu，Tuomas Ojanen，Martin Scheinin，Kaarlo Tuori and Veli-Pekka Viljanen（eds.）：Perusoikeudet. Helsinki 2011，753-782；Tapio Määttä：Ympäristö eurooppalaisena ihmis-ja perusoikeutena：kohti ekososiaalista oikeusvaltiota. In Liisa Nieminen（ed.）：Perusoikeudet EU：ssa. Helsinki 2001，ss. 263-326；Elina Pirjatanniemi：Vihertyvä rikosoikeus. Oikeus（2005）：34，316-318；Veli-Pekka Viljanen：Perusoikeusjärjestelmä ja ympäristö. In Veli-Matti Thuren（ed.）：Oikeus ja oikeudenmukaisuus：Oikeustieteen päivät 3.-4.6.1999 Joensuussa. Joensuu 1999，91-101；Leena Heinämäki：Ihmisoikeudet ympäristönsuojelussa. In Elina Pirjatanniemi—Timo Koivurova（eds.）：Ihmisoikeuksien käsikirja. Tallinna 2014，528-554.
[5] David R. Boyd，The Environmental Rights Revolution，A Global Study of Constitutions，Human Rights，and the Environment（UBC Press Vancouver-Toronto）2012，pp. 51-52，122.
[6] David R. Boyd，p.122.
[7] See Article “International Human Rights Obligations Contributing to Finnish Environmental Rights” by Heiskanen in this book.
[8] See the Finnish good practices mentioned in the report of the UN Independent Expert John H. Knox. Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe，clean，healthy and sustainable environment，3 February 2015，A/HRC/28/61，para 45. “In 2009，the Government of Finland implemented the Action Programme on eServices and eDemocracy，which was designed to develop new tools for citizen participation in land-use planning. One aspect of the programme is Harava，an interactive map-based application used by local governments to collect feedback from citizens，including by marking on an online map where they believe a new protected area should be located. Another programme，called Alvari，has been adopted at the subnational level in Finland by the city of Tampere. It created public advisory groups that have participated in more than 350 planning-related decisions since 2007.”