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The Environmental Human Rights under the Perspective of Basic Rights — An Analysis of the Dilemma Facing the Legalization of Environmental Rights
November 30,2018   By:CSHRS
The Environmental Human Rights under the Perspective of Basic Rights
— An Analysis of the Dilemma Facing the Legalization of Environmental Rights
 
TIAN Shiyu*
 
Abstract: Given the dilemma facing legalization on environmental rights, it is necessary to re-examine the nature and function of environmental human rights under the theoretical system of basic rights. Its justification approach follows a logical chain from a rights-based approach to basic rights. The difficulty in legalizing environmental rights reflects the disputes over the basis for environmental law. Re-constructing the right-based approach in environmental law can justi-fy the rights-oriented path to the environmental rule of law. The basic rights system with human rights as the core can explain the constitutional environmental human rights. As the basic rights not enumerated in the Constitution, the environmental human rights have such func-tions as the right of self-defense, the right to benefit, and institutional, organizational and procedural guarantees due to its dual nature of subjective right and objective law.
 
Keywords: environmental rights   basic rights   human rights   base
 
The issue of environmental rights has long been a concern to the academic community. However, while the theoretical discussions have lasted for a long time, there have been few responses in China’s legislative practice. Based on this situation, the focus of current studies on environmental rights should shift from the theory of legislation to the theory of interpretation. Given that environmental rights have not been clearly defined “as part of the law”, it is of great significance to reflect how to interpret the relevant norms within the legal framework of basic rights for the future development of environmental rights theory and civil rights practice. In addition, perhaps due to the difficulty in legalizing substantive environmental rights, studies on environmental rights have tended to favor procedural rights in recent years. Despite the importance of procedural justice, substantive rights are the fundamental basis for environmental rights. Therefore, the author will start from the dilemma facing environmental rights legislation to further explore the nature and function of environmental human rights, based on the theories for the basis of environmental law and basic rights, supplemented by the approach to legal dogmatics.
 
Ⅰ. The Dilemma of Legalizing Environmental Rights and Reconstruction of the Basis for Environmental Law

One unavoidable problem in the study of environmental rights is the legalization of rights, of which the claims and obstacles can only be understood through discus-sions about the basis for environmental law. The rights-based theory that underlies environmental rights remains to be justified, and rethinking the disputes over the basis for environmental rights should ultimately be based on the local development path of China’s environmental law.
 
A. The dilemma of legalizing environmental rights and the myth of a rights-oriented path
 
In today’s modern industrial society, with the rapid economic development, en-vironmental pollution is becoming ever more serious. In 1960, doctors of the Federal Republic of Germany applied to the European Human Rights Commission for the abandoning of atomic waste into the North Atlantic to be declared a human rights violations. Since then, environmental rights have entered the historical arena to become a “weapon” for people to cope with environmental crises. Based on this, some scholars have proposed that environmental rights are an inevitable outcome of human progress, and the legalization on environmental rights is also the development trend of national constitutions and laws.1 For more than three decades, the issue of environmental rights has been widely discussed as a research focus within China’s academic community, and initiatives calling for this right to be “written into law” have been found in most research results. For example, Professor Lü Zhongmei advocates that the environmental rights should be defined as practical rights in law.2 Even administrative law scholars have proposed that people’s right to enjoy a healthy living environment should be regarded as a basic right specifically written into the Constitution.3
 
Meanwhile, some other scholars have gradually adopted “hard-headed thinking” on this issue. Based on empirical analyses of the correlation between environmental rights and the environmental rule of law in various countries, they have reexamined the importance and necessity of environmental rights. The reservations to environmental rights in the constitutions and judicial practices of developed countries such as the United States seem to indicate that an effective environmental protection system is more meaningful than a declaration of rights.4 Thus it can be seen that the main difficulty with legalization on environmental rights lies in the generalization of concept, the uncertainty of content and the consequent problems in practice. The theory of environmental rights has been questioned due to its complex content and vague connotations.5 The proposal in the United States’ for environmental rights to be included in the Constitution was coldly received by Congress and state legislatures because it was difficult to translate the wording into executable judicial means.6 Even environmental rights advocates acknowledge that there are problems with environmental rights to be solved in terms of rights orientation and practical interpretation.7
 
The dilemma concerning legalization on environmental rights essentially reflects a more fundamental proposition, that is, disputes over the basis of environmental law. The “basis of law” thesis established in the first half of the 20th century refers to “the foothold in the law”,8 which involves a dispute over a rights-based or obligations-based theory when it comes to environmental legal relations. In contrast to the rights-based theory that the environmental rights rely on, the obligations-based theory serves as the starting point and basis for most critics in their arguments against environmental rights. Based on the distinction between individualism and holism method-ologies, the debate over the basis of environmental law focuses on the logical starting point of legal norms. Rights-based advocates believe that environmental rights are an embodiment of individual free will so that environmental law should construct institutions along a rights-oriented path. Obligations-based advocates, on the other hand, believe that environmental protection relies on obligation norms based on the public’s environmental interests.9
 
Environmental rights stem from the response to environmental crises, but the worsening environmental situation seems to go against the original intention of universal empowerment. The long-standing mainstream of rights-based theory in the traditional jurisprudence community seems to have begun to waver in the disputes over the basis for environmental law. First, it is under question from the analytical frame-work. Law-based theory, which is limited to the scope of rights and obligations, is difficult to apply to public law due to its neglect of power, and environmental law, which has both a public and private nature, also finds it difficult to rely on the rights-based theory 10 for institutional construction. The neglect of power also causes misunder-standing of power. An excessive denial of power by the rights-based theory restricts the management role of state institutions, causing a hidden danger of social chaos.11 Second, it is constrained by limited environmental resources and the public nature of environmental interests. Obligations-based advocates believe that the essence of environment problems lies in the challenge to human activities posed by the ultimate limit of natural bearing capacity. Therefore, the distribution of limited resources by environmental law needs to reflect a “spirit of obligation”.12 The expansion of individ-ual interests under the rights-based theory will undoubtedly aggravate the ecological crisis.
 
B. The reconstruction of the rights-based approach in environmental law
 
The difficulty with the rights-based approach in environmental law may be the crux to legalizing environmental rights and a misconception of national environmental management power and environmental public interests is fundamental to the questioning of rights-based theorists. Based on this, to clarify the roles of rights and obligations can be helpful for reconstructing the rights-based approach in environmental law.
 
With the critiques from an overall analytical framework, to explore the core essence of the rights-based approach we need to start from the relationships among rights, obligations and power. Clarifying the dynamics and rational balance among the three is where the value of legal regulation lies. In the context of a market economy and democratic politics, the law achieves rights by means of obligations, so the rights should be the basis in the “rights-obligations” relationship; when it comes to the rights-powers relationship, although the latter can effectively accommodate the conflicts among the former, the rights justify the power. Therefore, only by adopting the rights-based approach can power be properly restricted, thus ensuring rights can be successfully achieved.13
 
Specifically, in the field of environmental law, on the one hand, rights-based theory focuses more on the element of power in addition to the rights and obligations, and regards the relationship between the rights and power as one of its important connotations. For example, to protect the environmental rights and interests of citizens, it is often necessary for government agencies to restrict legal acts that may endanger human health, property and the ecology itself.14 Given the power imbalance between power and rights, it is necessary to adhere to the rights-based approach to achieve checks and balances.
 
On the other hand, the rights-based theory does not encourage an unlimited ex-pansion of rights, instead, it sets a certain limit of legal obligations.15 For example, most countries have obligations clauses specified behind their clauses of constitutional environmental rights.16 And the restrictions imposed by those obligations, the necessary design, over the individuals’ rights have also significantly neutralized the conflict between individual and public interests. It can be seen that the pursuit of rights does not necessarily lead to environmental deterioration, and even worse, sometimes the failure of environmental law is due to an insufficient implementation of the rights-based approach.17
 
Amid the battle for building a basis centered on either rights or obligations, envi-ronmental law must ultimately lead to environmental protection.18 Therefore, the basis for environmental law should be based on an examination of the spirit of the times and the value of law.19 The legislative intent of environmental law is an epitome of its spirit and value.
 
The “Environmental Protection Law (Trial)” promulgated by China in 1979 and the “Environmental Protection Law”, formally adopted in 1989, all referred to “socialist modernization construction” as their legislative intent, with a strong sense of a planned economy.20 After the revision in 2014, the legislative intent of the “Environmental Protection Law” changed to emphasize the construction of an ecological civilization and sustainable economic and social development, which is rightly regarded as a big step forward. At the same time, however, it is also necessary to recognize that China’s environmental legal system has not yet reached the “historical turning point”, that is, the explicit declaration of substantive environmental rights,21 but strongly advocates procedural environmental rights such as the access to environmental information, public participation and supervision. In addition, although the legislation redefines the relationship between environmental protection and economic development, the development model centered on economic construction in the past 40 years of reform and opening up has created a deep-rooted political and ecological outlook that features the supremacy of the economy and even a “GDP growth only” approach. In this context, civil environmental rights and interests are likely to be ignored.22 In order to bridge the historical gaps left by the development of China’s environmental law, great attention should be paid to the construction of rights.
 
In short, a theoretical boom and a lack of practice in environmental rights point to rethinking the basis of environmental law. The rights-based approach in environmen-tal law should be reconstructed centering around the elements of rights and obligations. Considering the localization in the spirit of the times, the current environmental rule of environmental law should also focus on the rights path.
 
Ⅱ. Environmental Rights as Basic Constitutional Rights
 
The reconstructed rights-based theory of environmental law helps to re-justify the rights path for the environmental legal system. However, the real obstacle to environmental rights is the lack of a foundation for basic rights. Therefore, it is necessary to trace the history of the theory of human rights and then understand the nature of environmental human rights as basic rights.
 
A. Environmental human rights based on the theory of human rights
 
The theory of environmental rights contains many theoretical divisions. The con-notations of environmental rights are defined in both broad and narrow senses. But the most influential one is “civil environmental rights”, that is, the right of citizens to live in a good environment. In this context, some scholars have proposed the necessity of creating environmental rights lies in the need of citizens for such rights while they are not regulated by the traditional jurisprudence and system.23 Indeed, private law theories such as traditional property rights and torts can hardly meet the needs of modern environmental protection. However, scholars’ advocating of environmental rights will inevitably raise the question of whether the rights’ basis for environmental protection lies necessarily and only in the environmental rights?24
 
We must face the problems presented by environmental rights research. Some scholars have pointed out that most of the research on environmental rights follows a path “from environmental law to environmental law, from environmental rights to environmental rights”, with environmental protection less likely to be organically linked to basic laws such as Constitution and jurisprudence. 25 Thus, the link between environmental protection and existing basic human rights is deliberately cut off,26 which has led to a cursory reference to “including a certain right into the Constitution” without careful examination of our Constitution.27 Therefore, besides calling for environmental rights to be constitutional, it is necessary to conduct standardized research of the rights under the framework of rule of law.28 The most important thing is to clarify the link between environmental rights and human rights.
 
Environmental protection is inseparable from the practice of human rights. The guaranteeing of the rights to existence and development depend on a good environment and good maintenance of the air, soil and water. In the early years of industrial civilization, environmental pollution was small in scale. People could protect their own rights to health and property through tort claims. However, with the emergence of large-scale pollution and ecological damage, the basic rights of citizens have come under severe crises for disrupted preconditions.29 Therefore, the origin of environmen-tal rights is accompanied by the development of international human rights law. The Federal German doctors’ case raised the concerns of the European human rights theory on environmental rights and interests. The relevant clauses in the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment and the 1992 Rio Declaration were considered to have a major impact on the recognition of environmental rights in domestic laws.30
 
Regarding the relationship between human rights and environmental rights, there are mainly two kinds of theories: positive and negative. The former considers environmental rights to be a new type of human rights, while the latter regards environmental rights as the premise for the fulfillment of human rights.31 To clarify the relationship between the two, we can start by analyzing the typified theories of human rights. Modern natural law theory divides human rights into those based on presovereignty and those based on sovereignty, which correspond to “natural rights” and the civil rights with political attributes.32 Theories involving the classification of environmental protection include the intergenerational human rights theory proposed by the French scholar Karel Vasak. In this theory, apart from the first generation of civil political rights and the second generation of economic, social and cultural rights, environmental rights and the right to peace and the right to development became the third generation of human rights.33 Chinese scholars have also proposed that, based on the development history of human rights, environmental rights constitute the core human rights in the third period, the sublimation period.34 In  addition, under China’s National Human Rights Action Plan (2009-2010), environmental rights were protected as part of economic, social and cultural rights, and the National Human Rights Action Plan (2012-2015) also confirmed the protection of environmental rights.35 It can be seen that despite the controversies as to whether environmental rights can be considered as independent human rights, it is a basic consensus that human rights development in the new era must respond to environmental issues.
 
However, linking environmental protection to human rights does not necessarily lead to the existence of environmental rights in the human rights system. The environmental clauses in international human rights documents may also be just political declarations.36 Whether a right is actually elevated to a human right depends on two criteria. The first is the moral right naturally enjoyed as “human beings”, and the second is the one that exists in the norms recognized in the practice of human society. As environmental rights meet these criteria, they should and can be regarded a basic human right.37 Based on this, some scholars formally put forward the concept of “environmental human rights”, that is, “the right to keep the environment away from toxic pollution and the right to own natural resources”.38
 
B. The nature of environmental human rights as basic rights
 
The introduction of environmental human rights provides a theoretical basis for environmental rights as a basic right, but environmental human rights do not naturally have the status of a basic right, and a constitutional interpretation of the relevant provisions of the constitution is required. In particular, the types of environmental clauses in constitutions vary from country to country. According to statistics, there are currently 86 national constitutions that stipulate environmental rights, while others establish national policy clauses or environmental obligations.39 Clause 1, Article 26 of the Constitution of China stipulates that the state protects and improves the living environment and ecological environment, and prevents pollution and other public hazards. As this clause is put in the general principle part of the Constitution, it is a basic national policy in nature,40 being of no necessary relevance to the basic rights listed in Chapter II of the Constitution.
 
It is worth noting that the 2004 Constitutional Amendment is directed to Article 33 of the chapter on Fundamental Rights, adding “the State shall respect and protect human rights” as the third clause. This human rights clause endows the constitutional basic rights system with a certain degree of openness, and the rights defined as human rights are likely to be included into the basic rights so that they are guaranteed by the Constitution. Thus, even if the chapter on basic rights does not provide for environmental protection, environmental human rights may also become “rights equal with basic rights”41
 
At the same time, however, it is necessary to pay attention to the criteria or timing of the equal with basic rights, that is, how environmental human rights can have the status of basic rights, which depends on an examination of unlisted rights in the constitution. Due to the broad connotation of human rights and the authoritativeness of the constitution, it is impossible and unnecessary to include all rights with the nature of human rights into the category of unlisted basic rights. Therefore, in the constitutional practice, there are such approaches to identification of unlisted basic rights as the principle of “Stare decisions” or democracy-orientation. Among them, civil law countries such as Germany regard “human dignity” as the core spirit of basic rights, which also serve as the yardstick for basic rights.42 Furthermore, some scholars advocate such rights should be measured from both subjective and objective dimensions, that is, subjectively there is a universal and urgent demand for rights from the public, and objectively there are such rights confirmed by other countries’ constitutions or international human rights laws.43 Based on this, in the context of the global ecological crisis and the prevalence of environmental rights in comparative constitutions, environmental human rights have become one of the basic rights not enumerated in the Constitution. On the one hand, the ecological crisis is not only a threat to individual life, but also a challenge to human dignity, leading to increasing public demand for environmental protection; on the other hand, the empirical analyses of environmental rights also confirm the legislative practice of environmental rights.44
 
On that basis, behind the seemingly chaotic situation of the environmental rights, they have been rerecognized as the environmental human rights, the fundamental nature. Although China’s constitutional environmental clauses are national policies in nature, the existence of constitutional human rights clauses makes it possible for the environmental human rights to become basic rights not enumerated in the Constitution.
 
Ⅲ. Dual Nature of Environmental Human Rights and the Function System
 
The German doctrine of basic rights is instructive for the development of the theory and institutional practice of environmental human rights in China. As the basic right not enumerated in the Constitution, environmental human rights naturally have the dual nature of basic rights and the corresponding function system, which is em-bodied in the human rights and environmental clauses of the Constitution.
 
A. The dual nature and transition of functions of basic rights
 
Guided by practice, the Basic Law for Federal Republic of Germany reviewed the Weimar Constitution, and gradually endowed the basic rights with the dual nature and increased the force of basic rights, through constitutional enactment and inter-pretation.45 The ideological origin of the dual nature theory of basic rights lies in the revival of German natural law after the war. Guided by the concept that human rights precede sovereignty, and basic rights are above state power, basic rights, on the one hand, can be regarded as “subjective rights” that justify individual lawsuits; on the other hand, basic rights are also restricted to public powers as “objective laws”.46 At the same time, the dual nature of basic rights is further reflected in the improvement of the functional system of basic rights. The function of basic rights as “subjective rights” includes the right of self-defense and beneficiary rights, which respectively correspond to the state’s negative obligation and benefit obligation; while the basic rights as “objective law” have the function of objective order of values, corresponding to the state’s protection obligation.47
 
The fulfillment of basic rights depends on the Constitution’s response to social changes. Under the rule of the national constitution, there has been a gradual transition to a social constitution with stratum differentiation giving way to functional differentiation.48 In this context, constitutional basic rights are no longer a mere existence, as individuals against the state, but have the double function of integrating and shaping social values.49 Today, human health and environmental issues have required that the Constitution expand from mere restriction of political power by rule of law to social governance including the environmental system. Therefore, the basic rights related doctrines have instructive significance for the theory and practice of environmental human rights. Although a lack of a constitutional review system in China makes it difficult for basic rights to enter the judicial system, the idea of establishing subjective rights is conducive to the development of environmental human rights theory. At the same time, China’s constitutional environmental provisions also need to emphasize the value of objective law so as to protect environmental human rights by restraining state power and urging the fulfillment of state responsibilities.
 
B. Environmental human rights as the subjective rights and objective law
 
The dual nature and function of environmental human rights are embodied in China’s constitutional norms, namely the human rights clauses of Article 33 and the environmental state policy clauses of Article 26. The environmental human rights derived from the human rights clauses are of subjective nature and are rescriptive; while the environmental state policy clauses reveal the environmental human rights as objective law and function as the objective order of values.50
 
Environmental human rights as “subjective rights” function as the right of self-defense and the right to benefit. First, the right of self-defense is the core function of subjective rights. When these basic rights are violated, people can request the state to stop the violation by this function. The cases where the right of self-defense in en-vironmental human rights apply mainly include violations caused by the state’s legal acts and factual acts. The former is a direct violation of state power, such as infringements caused by a neglect of license review; the latter is a violation of environmental rights and interests during the provision of public services. Due to the inherent public nature of the administrative factual acts, the claim for defense can only be exercised when the violation exceeds a reasonable limit.51 Second, the function of the right to benefit is the most important function of the basic rights of the socialist constitution, because in the socialist constitutional structure, the interests of the state and the people are highly aligned, while the main purpose of the basic rights is to motivate the state to fulfill its obligations so as to create conditions for the fulfillment of civil rights.52 In terms of environmental human rights, citizens have the right to request the state to provide a good living environment, including measures to protect and improve the environment, provide relevant environmental information, etc.53 In addition, the functions of the right of self-defense and the right to benefit do not cover all the functions of environmental human rights as basic rights, so that some scholars have also proposed the function of claim rights.54
 
The value of objective law for basic rights allows environmental human rights to require the state to provide institutional guarantees, organizational and procedural safeguards. First of all, the connotations of environmental human rights need to be clarified and practiced through specific systems. Traditional basic rights are considered to only restrict administrative power, and when environmental human rights develop to have the function as the order of objective values, all parts of the legal system, including legislators, must respect those objective values and provide them with necessary institutional guarantees. Specifically, the legislature needs to establish and improve basic environmental protection systems such as the environmental standards system, the environmental impact assessment system, and the emissions permit system.55 Second, environmental human rights practices must be carried out under the guarantee of certain organizations and procedures. The state, through the establishment of environmental management institutions, specific authorities and operational modes in charge of managing environmental affairs among other systems of rules, will set up an administrative management network for the fulfillment of environmental human rights. At the same time, procedural safeguards involve administrative licensing, hearing and avoidance procedures, which further require judicial procedures to ensure effective remedies.56
 
In short, the German basic rights theory is of instructive significance for the development of China’s environmental human rights. The environmental and human rights clauses of our Constitution constitute the basis of norms of the dual nature of environmental human rights. Therefore, environmental human rights also have the functions as the right of self-defense and beneficiary rights as subjective rights, as well as the functions of institutional guarantees and organizational and procedural safeguards as objective law.
 
 
* TIAN Shiyu ( 田时雨 ), ph.d. candidate at Renmin University Law School.
 
1. Cai Shouqiu, “A preliminary Study of Environmental Rights,” Chinese Social Science 3 (1982): 32.
 
2. Lü Zhongmei, “On Citizens’ Environmental Rights,” Chinese Journal of Law 6 (1995): 67.
 
3. yang Haikun, “The Revision of Constitution of Citizens’ basic Rights Should be well-designed,” Legal Fo-rum 4 (2003): 99.
 
4. Gong Gu, “Cold Thinking on Environmental Rights Fever – Questions about the Importance of Environmen-tal Rights,” Journal of East China University of Political Science and Law 4 (2009): 127-128, 132.
 
5. wu weixing, “discrimination of the Content of Environmental Rights,” Law Review 2 (2005): 140.
 
6. wang wei and xie Haibo, “On the difficulty in Legalizing Environmental Rights in the United States and Its Causes,” Journal of Shanghai Jiaotong University (Philosophy and Social Sciences Edition) 4 (2014): 31-32.
 
7. Lü Zhongmei, “On the Civil Environmental Rights,” Chinese Journal of Law 6 (2000): 135.
 
8. Tong Zhiwei, “The Gains and Losses of the Study of the Law-based Approach in the First Half of the 20th Century,” Studeis in Law and Business 6 (2000): 6.
 
9. Zhang xiangwei, “The Future Orientation of Environmental Law Research: Environmental behavior - From
the perspective of the disputes over the base,” Modern Law 3 (2014): 108.
 
10. Tong Zhiwei, “Review of the Rights-based Theory,” Chinese Legal Science 6 (2000): 57.
 
11. Ibid., 60-61.
 
12. xu xiangmin, “Limit and distribution--On the base of Environmental Law,” China Population, Resources and Environment 4 (2003): 24-25.
 
13. Liu wanghong, “Theory Logic of the Right-base Approach - discussions with professor Tong Zhiwei,” Chi-nese Legal Science 2 (2001): 22.
 
14. Ibid., 22.
 
15. Qian dajun,“Environmental Law Should be Rights-based – Criticism of the Rights-based Theory against the Theory of Obligations-based Theory” Law and Social Development 5 (2014): 154-155.
 
16. Zhu Qian, “Environmental Rights: A New Approach to discussion,” Legal Science (Journal of Northwest
University of Political Science and Law) 5 (2004): 99.
 
17. Ibid.
 
18. Zhang xiangwei, “The Future Orientation of Environmental Law Research,” 108.
 
19. Liu wanghong and Zhang Zhiling, “On the Core Category and basic Category of Jurisprudence,” Nanjing University Law Review, Spring Volume (2000): 153.
 
20. xun Qingzhi, “Legalization of Environmental Human Rights in China and Its political Obstacles,” Journal of Nanjing University of Technology (Social Science Edition) 1 (2014): 17.
 
21. Ibid., 20.
 
22. Ibid., 20-21.
 
23. Lu Zhongmei, “On Citizens’ Environmental Rights,” 62.
 
24. Zhu Qian, “Rethinking the Rights Foundation of Environmental Law - A Concern about the Mainstream View of Environmental Rights,” Jiangsu Social Sciences 2 (2007): 143.
 
25. wu weixing, “Review, Reflection and prospect of Thirty years of Theoretical Research on Environmental Rights in China,” Law Review 5 (2014): 184.
 
26. xun Qingzhi, “Legalization of Environmental Human Rights in China and Its political Obstacles,” 140.
 
27. Zhang xiang, “The Systematic Thinking of basic Rights,” Tsinghua Law Review 4 (2012): 13.
 
28. Chen Haisong, “The Functional System of Constitutional Environmental Rights--On the ‘Interpretation’ Conversion of Environmental Law Studies,” Social Science Journal 6 (2013): 75.
 
29. xun Qingzhi, “Legalization of Environmental Human Rights in China and Its political Obstacles,” 144.
 
30. Na Li and yang Nan, “International perspectives on Environmental Rights and Human Rights Issues,” Legal Science (Journal of Northwest University of political Science and Law)” 6 (2009): 60.
 
31. Hou Huaixia, “On the Environmental Rights in Human Rights Law,” Journal of Suzhou University (Philosophy and Social Sciences) 3 (2009): 32.
 
32. xu xianming, “The System and Classification of Human Rights,” Chinese Social Sciences 6 (2000): 96.
 
33. Qiu ben, “On the Intergenerational division of Human Rights,” Journal of Liaoning University (Philosophy and Social Sciences) 3 (2017): 98.
 
34. xu xiangmin, “Environmental Rights Theory - From the perspective of the Historical Staging of Human Rights development” Chinese Social Sciences 4 (2004): 129.
 
35. pan Huaiping, “Thoughts on the protection of ‘Environmental Rights’ in the ‘National Human Rights Action plan’- based on the perspective of Marxist Ecological Outlook,” Journal of the Party School of the Central Committee of the Communist Party of China 3 (2013): 82.
 
36. Liu weixian, “Analysis of the Essence of Environmental Human Rights,” Journal of the Party School of Tianjin Municipal Party Committee 2 (2009): 95.
 
37. Tim Hayward, The Constitutional Environmental Rights, trans. Zhou Shangjun and yang Tianjiang (beijing: Law press, 2014), 27-45.
 
38. Jane Hancock, Environmental Human Rights: Rights, Ethics and Law, trans. Li Sun (Chongqing: Chongqing publishing House, 2007), 173.
 
39. wu weixing, “A Comparative Study of the Incorporation of Environmental Rights into the Constitution,” Studies on Law and Business 4 (2017): 175-178.
 
40. Zhang Zhen, “The Normative Structure and Implementation path of Constitutional Environmental Clauses,” Contemporary Law Review 3 (2017): 36.
 
41. Zhang xiang, “The Systematic Thinking of basic Rights,” 33-34.
 
42. Tu Zhenyu, “Methods for Identifying basic Rights Not Enumerated,” Law Science 9 (2007): 81-82.
 
43. wang Guanghui, “On the Rights not Enumerated in the Constitution,” Studies on Law and Business 5 (2007): 64.
 
44. wu weixing, “An Empirical Study of Environmental Rights to be Included into the Constitution,” Law Review 1 (2008): 77.
 
45. Zhang xiang, “The dual Nature of basic Rights,” Chinese Journal of Law 3 (2005): 34.
 
46. Ibid., 24.
 
47. Zhang xiang, “The Right to benefit of basic Rights and the State’s benefit Obligation – beginning with the Reform of the basic Rights Analysis Framework,” Chinese Law Review 1 (2006): 24.
 
48. Gao wei, “The Rewriting of Constitution in the Age of Functional differentiation: From the National Constitution to the Social Constitution,” Jiao Tong University Law Review 1 (2013): 75-76.
 
49. Li Zhongxia, “The Social Function of basic Rights,” The Jurists 5 (2014): 16.
 
50. wang Kai and Li Zedong, “The Constitutional Environmental Rights as Subjective Rights and Objective Law,” Journal of Yunnan Administration College 4 (2011): 161.
 
51. Chen Haisong, “The Functional System of Constitutional Environmental Rights — On the ‘Interpretation’ Conversion of Environmental Law Studies”, 71-72.
 
52. Zhang xiang, “On the Function of the Right of Self-defense in basic Rights,” The Jurist 2 (2005): 70.
 
53. Chen Haisong, “The Functional System of Constitutional Environmental Rights — On the ‘Interpretation’ Conversion of Environmental Law Studies”, 72.
 
54. Zhang Zhen, “The Function of the Claim Right of Environmental Rights: From Theory to practice,” Contemporary Law Review 4 (2015): 25.
 
55. Chen Haisong, “The Functional System of Constitutional Environmental Rights — On the ‘Interpretation’ Conversion of Environmental Law Studies”, 73.
 
56. Zhang xiang, “The dual Nature of basic Rights,” 27-28.
 
(Translated by NIU Huizi)
 
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