A Trend to Strengthen Common (Shared) Rights and Limit Individual Rights: An Overview to Environmental Rights in Europe Zhou Xunfang 1. Introduction Environmental Rights have to a large extent broadened the scope of environmental law in developed European countries during latest decades. A lot of European conventions, bilateral agreements and domestic environmental laws have gradually showed us a new trend, that is, to strengthen moral and spiritual oriented common (shared) rights and limit property-oriented individual rights with a series of new procedural rights as instruments. Except for keeping individualism tradition in environmental matters, some new common-rights terms have also become legal language in Europe. These new terms have been created by scholars, UN legal documents and international law latest decades. One can see very frequently the new phrases including Future Generations’ Environmental Rights, Citizens’ Environmental Rights, People’s Rights,1 Right to a Good Environment, 2 Right to Clean Air and Water,3 Right on Access to Information, Public Participation in Decision-making, Access to Justice in Environmental Matters, Indigenous People’s Environmental Rights, Children’s Environmental Rights, 4 Women’s Environmental Rights and so forth. In addition, scholars use Human Rights for the purpose of strengthening and interpreting common (shared) rights in environmental matters. Then the line between common (shared) environmental rights and human rights are coming to be more vague. For instance, when one categorizes the Right to Live in An Environment Adequate to His/Her Health and Well-being, 5 including “[e]very person of present and future generations”,6 which kind of rights should it belong to? One may also find some broader expressions, “life, health and well-being for human beings, animals and plants”, 7 or “[t]o protect persons, animals and plants, their biological communities and habitats against harmful effects or nuisances and to maintain the fertility of the soil”,8 which is much more different than the continental legal tradition. As a result of these moralized expressions, we have got many controversial legal “Subjects” and right-holders. These new subjects include Citizens, Individuals, Human beings, People, Peoples, Indigenous People, Women, Children, Present Generation, Future Generations, even “Human beings (or Persons), Animals and Plants” as a whole. It has brought a lot of interesting questions and debates to the legal field recent years. Meanwhile, in environmental matters, citizens’ individual rights in EU, Nordic and other developed European countries are stepping into a new era. In the new era, individual rights are going to further depth and breadth to justice, equality and fairness in comparison with the first and second generation of the human rights. Of course, “[r]ights talk is also frequently confused and inconclusive”.9 And in environmental law, the concept of the Environment and the scope of the law remains a problem. 10 Then which matters should be concerned is also a troublesome question. 11 Consequently, it is uncertain that which rights are subject to environmental rights. According to the tradition of continental law, the legal nature of the civil and public rights is very different. But now, it is very difficult to tell the legal nature of the common (shared) rights, for example, citizens’ Right to a Good Environment. Every citizen in a certain society may enjoy a good environment individually, if the Environment as a whole is indeed healthy. But nowadays a right to a good environment is very much a luxury, in many countries. To enjoy a right to a good environment for individuals, is not as easy as to enjoy a right of owning a piece of land which can be gotten only by one’s own efforts and by law. In other words, to pursue the right to a good environment for citizens is an everlasting mission for Governments who have the guardians’ responsibilities to maintain and enhance the quality of the environment for human beings. 12 Difficultly, today’s governments are so busy that they even have to care a good environment for animals, especially for livestock. For example, foot-and-mouth disease sheep and crazy cattle are the bad results of human beings’ technology abuse. As everyone knows, abuse of technology has also brought a great deal of economic loss and environmental problems. The governments had failed to keep the environment in a good condition in environmental administration in past times and so human beings have gotten a lot of punishment from nature. It has certified that the environmental issues are indeed the governmental system engineering. Luckily, lawmakers in Europe have gradually changed the legal tradition through limiting property-oriented individual rights and strengthening the common (shared) rights in consideration of the overburdened environment and human needs of future. And then, the common (shared) environmental rights are not the traditional individual rights anymore. In comparison with the eldest civil and criminal law, environmental law is still young so far, whatever in practice or in theory. The environmental issues are so sharp that mankind have to use all the means in a comprehensive way to maintain and protect the environment. Except for international cooperation, one may see another kind of “cooperation” in environmental protection, the “cooperation” among law, policy, politics, morality, ethics, education, religion, worship and customs.13 And so, it is not too strange that one sees a pan-moralism and vague approach 14 in legal language and documents, as Americans had done in 1969 in their Environmental Policy Act and many legal documents in European countries might have taken its example latest decades. In theory, one can say human beings have the right to a good environment. Indeed, when the environment is kept in a good condition meanwhile citizens enjoy the comfortable lifestyle to use the environment, one can of course consider that the citizens are enjoying a good environment and then they reach the right to a good environment. But, how can we judge that the environment is good enough for citizens’ right to a good environment while citizens have equally individual rights to use and pollute the environment for developing the economy? Obviously, there exists a conflict between right to a good environment and right to use the environment. The right to a good environment is not the traditional individual rights anymore. Today there are two types of environmental rights, one is property-oriented right, the other is moral and spiritual oriented right. I call the former right to use the environment and the latter right to a good environment. We can see in Europe a new trend to strengthen citizens’ common (shared) rights meanwhile limit individual property rights. This trend is very valuable to human society, and makes the legal system more amiable. 2. Two Types of Environmental Rights 2.1 The interrelationship among human rights, environmental rights and environmental procedural rights The study on environmental rights has become the center of attraction in European legal field recent years. Some lawyers consider the environmental rights as an important part of human rights. And in general, lawyers give a human-rights-oriented interpretation to environmental rights. And also, there are many different opinions to specific environmental rights. Anyway, it must be something that bridge human rights, environmental rights and procedural rights in environmental matters. To make sure the interrelationship among the rights involved, would help us a lot for reclassification to the existing environmental rights in the environmental law in European countries. 2.1.1 Human rights have improved the development of environmental rights Human rights Conventions have obviously given great influence to environmental rights in international environmental law during latest decades in the world. European lawyers have also contributed a lot of interpretations in developing the scope and the concept to environmental rights by using existing human rights treaties. For example, R. R. Churchill has searched very hard from human rights treaties and he has found a lot of traces to environmental rights in the existing human rights treaties. 15 According to Churchill’s findings, the treaties containing or relating to “civil and political” environmental rights include the International Covenant on Civil and Political Rights (1966), the European Convention on Human Rights (1950), the American Convention on Human Rights (1969) and the African Charter on Human and People’s Rights (1981). And the menu of environmental rights in the human rights treaties should include The Right to Life (i.e. the State should take positive measures to reduce risk to life in environmental matters), The Right to Be Free of Interference with One’s Home and Property (i.e. to prevent one from noise and other neighboring nuisance), The Right to Fair Trial (i.e. against to state’s proposal harmful to the environment) and, Freedom of information (access to environmental information). Churchill hopes further achievement in Right to Fair Trial by judicial practice because he interprets in vain for any obvious trace in fair trial. The treaties concerning economic, social and cultural rights include the International Covenant on Economic, Social and Cultural Rights (1966), the European Social Charter (1961) and the Protocol to the American Convention on Human Rights (1988). From the said treaties Churchill gets the Right to a Healthy Environment, the Right to a Decent Working Environment, the Right to Decent Living Conditions and the Right to Health. Furthermore, there is a group of “third generation rights” in the African Charter on Human and People’s Rights (1981). That is, among other things, the right to development, the right to peace and the right to a generally satisfactory environment. One may have noticed that the expression of “the right to a generally satisfactory environment” is different from the right to a good environment. As for the “Right to Development”, however, is quite different from the expression of “right to a sustainable development”. As everyone knows, the right to development is typically expressed in the Rio Declaration on Environment and Development (1992): “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”16 In European Union, there once existed an expression “sustainable growth”, 17 which had criticized by scholars. But it is now placed by “sustainable development” in the Amsterdam Treaty 1997.18 Right to development in the African Charter on Human and People’s Rights first and foremost means present generation people’s right to subsistence in developing countries where it becomes the premise of right to health and life. And in Europe, “sustainable development” includes both present and future generations’ right to development. And so, the right to development perhaps hints a violation of future generations’ right to development. 2.1.2 Environmental rights should be seen as a new independent right branch rather than a part of human rights Human rights could be defined and interpreted in many ways according to different viewpoints and, if we treat environmental rights as a part of human rights, it would be more confused and not helpful to the conceptual development of the environmental rights, which should be seen as a new independent right branch. In broadest sense, human rights may mean all aspects of the legal and political rights enjoyed by all individuals. The broadest interpretation is obviously not helpful to our discussion. Let’s take the “third generation” human rights as an example for further explanation. The third generation human rights has given a lot of contributions to the new trend of the environmental rights. For example, we have got a series of common (shared) rights in environmental law. Suppose that environmental rights is a part of human rights, one will hardly find a piece of accepted principle to abide by in worldwide legal field, not to speak the enforcement of the law. Actually, the Human Right(s) has been a most controversial concept which lawyers and governors hold different standpoints and interpretations. In global sense, the different views would be much more than in Europe according to the different societal conditions and cultural backgrounds in all the countries. For example, as Hans Chr. Bugge notes, “[t]he different interpretations between the East and the West may be seen as a reflection of the ideological gap by the division of two systems to human rights that the civil and political rights are the inheritance of western democratic and liberal values while economic, social and cultural rights are more in line with the ideology of former welfare and socialist states.” 19 When people interpret “Human Rights” with respective ways in international environmental law, many practical questions would bring out. Especially in practice, human rights would also be a good excuse for overusing the natural resources. On the other hand, if one treats environmental rights as a part of human rights in international level, one perhaps has to treat all the international environmental declarations and conventions as international human rights declarations and conventions. And then, the boarder lines among legal branches would vanish. 2.1.3 Environmental rights make human rights fruitful In strict sense, human rights are the rights being suggested by international human rights conventions. Environmental Rights will be partly covered by and relevant to human rights, in consideration of human rights relying on and relating to the Environment in so many aspects nowadays. It is not strange that one can see such situation very often in international law, because human beings link to the environment so tightly. However, human rights couldn’t be an empty concept. All nations have given their own contributions to human rights by their special political and cultural experiences and state practices, which enable human rights to be fruitful with three generations. Actually, all kinds of legal rights including environmental rights in domestic and international law have to a very large extent enriched human rights. In return, international human rights have improved the development of domestic and international law. 2.1.4 All rights in international law are relevant to the environment and human rights The environment is the stage of human activities and human rights are the fundamental rights which everyone needs. And so, all rights in international law are unavoidable relevant to both the Environment and Human Rights. For example, when one talks about women’s rights, one means i.a. women’s rights to use land, to a good environment, to public participation in decision-making, to work, to recreational and aesthetical activities. I don’t think that human rights are in a superior order and all specific rights are subject to it. Actually, all kinds of rights are relational in a logical legal system. But their borderlines are also very clear in different legal branches, at least in theory. 2.1.5 The procedural rights in environmental matters do not in my opinion belong to environmental rights As a new specific branch of legal rights, environmental rights need to be safeguarded by effective procedural rights. It is not different from the substantive rights in other legal branches. If the right-holders could not get enough operational procedural rights, for example, access to information, public participation in decision-making and access to justice in environmental matters, to support their rights when the rights violated or should be potential violated by decision-makers or other right holders, they would probably lose their rights. It is not suitable to put the procedural rights into the Environmental Rights menu. All those procedural rights should come back to their own position. In a certain legal system, the procedural rights in my opinion are an independent group, which are used for defending the substantive rights with a series of special rules, principles and techniques. Of course, one can see that a special procedural law would be needed under a special circumstance. And as a kind of legislative technique, some special procedural articles will also be attached to a substantive law. Then one gets special procedural rights in special matters. And also, the rights to access to information, public participation in decision-making and access to justice in environmental matters suggested by the Aarhus Convention are special procedural rights in environmental matters. Anyway, they still belong to the procedural rights other than environmental rights. On the other hand, traditional procedural law should be reformed in consideration of the needs of environmental protection. It is undoubtedly that these new procedural rights are challenging traditional procedural law: the traditional procedural law is not so effective to protect the common (shared) environmental rights, and needs to be modified to meet the new demands of environmental protection and common (shared) rights. In this sense, the new group of procedural rights in the Aarhus Convention is indeed valuable to safeguard the common (shared) rights. 2.2 Two types of Environmental Rights with a new trend to strengthen common (shared) rights and limit individual rights 2.2.1 Definition In the final analysis, Environmental Rights can be divided into two types: one type is the Right to a Good Environment and the other type is the Right to Use the Environment. Right to a Good Environment is common (shared) right. Its legal subject is human being as a whole, including present and future generations. 20 Yet some laws may hint that other animate species living on the expense of the same environment would share the common right with human beings. In fact, the real legal subject is the present generation of human beings. The future generations of human beings and other animate species are the nominal legal subject, due to unrealistic for them to enjoy the legal rights. The future generations of course have no chance to enjoy their rights in present time, while the other animate species are unaware of their “rights”. They are only entitled the moral right in a legal way in environmental law. The right to a good environment is typically expressed as “the right of every person of present and future generations to live in an environment adequate to his or her health and well-being.” 21 It has a group of detailed common rights and the list should include: right to clean air, right to clean water, right to clean product, environmentally aesthetic right, environmentally cultural right, outdoor recreation right and so on. The purpose of these rights is to benefit human beings’ health, spiritual invigoration and joviality, happy feelings to life. Therefore, the right to a good environment is moral and spiritual oriented right and it is only the common shared right. The Right to Use the Environment is mainly the right to property and the right to engage in activities relating to property. I call it property-oriented individual right. The right to use the environment is set up on the basis of private ownership in Europe and they come originally from the traditional civil rights. But it is not the civil right anymore because the environmental law strictly limits it on the purpose of strengthening common (shared) rights. It includes for example land use right, fishing right, hunting right, herborizing right, 22 wood cutting right, shipping right, mining right, pasturing right, genetic right and, implicitly, polluting right.23 2.2.2 Description to the two types of environmental right in Europe The two types of environmental right in developed European countries are always described in the objectives-article of the environmental law, or separately prescribed in a series of domestic environmental acts in written law system countries. Example 1: “The purpose of this Code is to promote sustainable development which will assure a healthy and sound environment for present and future generations. Such development will be based on recognition of the fact that nature is worthy of protection and that our right to modify and exploit nature carries with it a responsibility for wise management of natural resources. The Environmental Code shall be applied in such a way as to ensure that: 1. human health and the environment are protected against damage and detriment, whether caused by pollutants or other impacts; 2. valuable natural and cultural environments are protected and preserved; 3. biological diversity is preserved; 4. the use of land, water and physical environment in general is such as to secure a long term good management in ecological, social, cultural and economic terms; and 5. reuse and recycling, as well as other management of materials, raw materials and energy are encouraged with a view to establishing and maintaining natural cycles.”24 Example 2: “The purpose of this act is to contribute to safeguarding nature and environment, thus enabling a sustainable social development in respect for human conditions of life and for the conservation of flora and fauna. The objectives of this act are in particular: 1. to prevent and combat pollution of air, water, soil and subsoil, and nuisances caused by vibration and noise, 2. to provide for regulations based on hygienic considerations which are significant to man and the environment, 3. to reduce the use and wastage of raw materials and other resources, 4. to promote the use of clearer technology, and 5. to promote recycling and reduce problems in connection with waste disposal.” 25 Example 3: “The aim of this Act is to: 1. maintain biological diversity; 2. conserve nature’s beauty and scenic value; 3. promote the sustainable use of natural resources and the natural environment; 4. promote awareness of and general interest in nature; and 5. promote scientific research.” 26 According to Jan H. Jans, the objects to be pursued by the European Community policy on the environment are formulated in the first paragraph of Article 130r of the 1992 Treaty on European Union,27 from which one also sees the two types: “Community policy on the environment shall contribute to pursuit of the following objects: --preserving, protecting and improving the quality of the environment; --protecting human health; --prudent and rational utilization of natural resources; --promoting measures at international level to deal with regional or worldwide environmental problems.” 28 Even in constitutional law, one can find the legal foundation of the two types of environmental rights. For example, article 110b (1) of the Norwegian Constitution says: “Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved. Natural resources should be made use of on the basis of comprehensive long-term considerations whereby this right will be safeguarded for future generations as well.” And the newest Finnish Constitution amended in 1995 explicitly states a Right to a Healthy Environment. Its section 14 reads: “Responsibility for nature and its biodiversity, for the environment and for our cultural heritage is shared by all. Public authorities shall strive to ensure for everyone the right to a healthy environment as well as the opportunity to influence decision-making concerning the living environment.” As we know, the environmental law is still a young legal department. It lacks of developed code such as French Civil Code, German Civil Code to be a template. One then has to search very hard for a general picture to the environmental rights. Actually, the environmental law historically rooted in several traditional legal branches such as the neighboring law, property law and administrative law. As Hans Chr. Bugge shows in his article, for example, Norwegian pollution law has stepped “[f]rom quite modest pieces of legislation covering only very limited problems to a steadily broader scope and more general rules”, with “[t]hree different approaches to the pollution problem: an economic efficiency approach, a legal approach of justice and fairness, and an ethical approach rooted in eco-centrism”.29 And so, various rights with different legal nature and philosophic approaches have gradually been fused together by environmental law. These two types of environmental rights are the result of the tendency to strengthen common (shared) rights and limit individual rights in the environmental law. 2.2.3 The trend of the environmental rights The two types of environmental right are just like the two edges of the same sword that the holder should keep both edges sharply in the same level in accordance with his purpose to forge it. Today’s European lawmakers are in their best efforts to maintain sharpness of the two edges through using human being’s best logos in order to use the legal sword effectively. The environmental law guarantees that everyone enjoys adequately an individual property right to use the environment under the social framework of democracy, freedom and equality; meanwhile, it guarantees that citizens share a right to a good environment. Furthermore, the ambitious environmental law even hopes that the law benefits to next generations, and if possible, to animals and plants. The structure of environmental rights has been making a great change to European legal tradition: a change from preferential respecting individual rights to generally strengthening collective individuals’ rights. Actually, the right to use the environment has no too much difference than traditional individual rights, except for some special limitation on the purpose of environmental protection and long-term plan; but the right to a good environment is for all individuals as a whole, the legal subject is not any specific individual anymore. It perhaps goes a little closer to the Eastern logos: the public interest shared by all people is paramount and it is essentially for Individuals finally. And so, single individual’s property right is weakened a little meanwhile public’s well-being is promoted, at least in latest environmental law. In other word, the environmental law limits specific groups of individuals engaging in industrial and commercial activities which harmful to Environment in order to protect common (shared) rights of human beings, the individual’s assemblage. Such a tendency is also proved by article 29 of Universal Declaration on Human Rights. It states: “(1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in democratic society.” Historically, Europe is considered as the seedbed of modern industry and technology. The fundamental reason of this change is that the harm to environment and human health was done mainly through industrial activities with advanced technology since industrial revolution on. And individuals, those who held or owned high technology, 30 which brought high dangers to human beings and the environment, were the minority in society. And, on the contrary, the majority of human beings formed a large group of weakness, which would be always the victims of industrial pollutions.31 They had to pay for the marginal costs of the environmental harms to their health, even though the polluters paid for the visible damages.32 The first generation individual property rights had to a large extent damaged and polluted the environment. As we know, many natural beautiful things in the world had gone because of pollution and damage. Such situation has changed gradually in for example Nordic countries where all citizens’ have got enough chances to maintain “[t]he fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”.33 One can see very often the prohibitions to individual property rights in environmental law. There are innumerable articles about permit, license, quota, time and space limitation, environmental assessment and etc. The purpose of those prohibitions and limitations is to reach the goal of that strengthen common (shared) rights and limit individual rights. However, the new trend is really coming to us since 1990s. 2.3 Clarification to several “common (shared)” circumstances On the surface, the common (shared) rights would have several forms existing in domestic, bilateral, multilateral, EU and global environmental law. Then, the conceptual clarification is needed. Essentially, only non-property-oriented rights could be and have to be shared. The purpose of setting up morality-oriented common (shared) rights is for safeguarding citizens’ fundamental personal rights --- right to life, right to health, right to safety, right to clean air and water, right to aesthetical and recreational outdoor activities in a dignity level in correspondence with the step of developed civilization. It is different from the fundamental rights merely in survival level, as the governments of the developing countries have claimed --right to development and right to existence.34 2.3.1 “One earth”: no any property-oriented interest outside the territory but governments’ common responsibilities to their citizens It is natural that the Earth is the common heritage of human beings and our human beings as a whole had to, have to and would have to co-exist on the earth. But this is not a common (shared) right. Under the circumstance for out of territory of a given State, individuals (citizens) as a whole of the state have no original or inherent co-ownership or any other kind of share to the natural resources within the territory of other states in accordance with the principle of sovereign right: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 35 In other words, there are no rights for citizens (individuals) outside the territory to share; on the contrary, there is a unilateral obligation for one State (on behalf of its Citizens) not to cause damage to the environment of other states. The unilateral obligation of State (on behalf of its citizens) is for the common (shared) rights of uncertain individuals of other countries in moral sense. In legal sense, it never exists a unilateral obligation in international law. The State’s responsibility in environmental matters only means all the states have a legal responsibility to the common rights of citizens (individuals) of their own countries in accordance with international environmental conventions. 2.3.2 “National treatment and Non-discrimination”: Reciprocity rather than common rights In international law, citizens could be individually treated in environmental matters as no difference than citizens in opposite party states, according to the principles of national treatment and Non-discrimination. It does not mean the citizens can enjoy the common (shared) rights to natural resources in other party states. The national treatment and Non-discrimination is still in the level of reciprocity in many cases under worldwide circumstance. It remains international cooperation issue. According to the existing legal systems in the world, common (shared) rights root deeply in the inherence of human nature of the people inside the territory. And so, foreign citizens who are entitled national treatment and non-discrimination couldn’t share a part of the common rights. The common (shared) rights are only within a domestic legal scope.36 One may argue that nowadays human beings are confronting with the tide of globalization and the environmental law stands in the front of this tide and then the common (shared) rights are subject to human beings as a whole. The idea is right and attractive; but one couldn’t see it until the legal systems are in the same level and the globalization comes to be true. 2.3.3 That everyone has an absolute right to clean air doesn’t mean that one has a property right to air There are still many kinds of non-economic natural resources and they are not the legal objects under domestic circumstance. For example, one may agree that the Air is impossible to be shared in a legal stand, because no law treats the Air as an object of legal ownership until today. And so, nobody has a right to the Air. But one still has a legal obligation to keep the Air in a good condition in accordance with the air pollution law, while he engages in an activity which may cause adverse influence to the air environment. That is to say, one needn’t a shared right to air, because he has a natural ability to get it; but absolutely, he needs a right to clean air. The traditional individual rights in continental law are on the basis of private property rights. But now one finds an absolute right to natural resource without ownership in environmental law, namely, a shared right to Air, the “public good”. 2.3.4 “Species’ right”: human moral obligation other than interspecies’ shared rights There is another kind of shared rights suggested by some environmentalists and animal liberationists. That is, animate species including mankind have the equal rights to natural resources, to life and health. As mentioned above, there is a vague approach to legal subject in the environmental law. More and more domestic environmental laws pay attention to the well-being of animals and plants and give humane concerns to animals. The new moral approach in latest decades is not very hard to be perceived in dozens of legal documents. One might have noticed without astonishment that an academically legislative suggestion for interspecies environmental law has also been contributed to the law students’ textbook.37 However, animate species have no legal consciousness to their rights. Instead, “it is part of our moral obligation to other living beings”.38 3. Rights to use the environment 3.1 Use the environment: anthropocentric or eco-centric According to the animal liberationist Peter Singe, human beings are an animate species in Nature without any privilege right to other animate species.39 Then Peter Singe would probably think human beings use the Environment in real society only according to their nature of inherence, I suppose. As an animate species we acclimatize ourselves to other animate species and inanimate objects of the Environment meanwhile the nonhuman species and inanimate objects acclimatize themselves to human beings as well. In this sense, no any difference from other animate species, we just live on the expense of the Environment when we use the environment. But the problem is, we human beings do create and reform the environment for our own purposes since our ancients had stepped to legally organized society. As a dominative species of the environment, anyway, human beings treat historically and realistically the latter as their own property and belongings as well. In this sense, human beings get the right to use the environment according to their own rules, so-called human-centric approach. The content of the right to use the environment for human beings includes two sides. On one side, right to natural environment which includes wildlife, natural forest, land, water, air, mine and so forth. On the other side, right to man-made environment, which is mainly treated as among other things individual private property including city, town, village, building, harbor, and historical and cultural relics etc.40 3.2 Two kinds of capacity: human beings’ capacity and environment’s capacity If the result of using environment is not detrimental and adverse to human beings, we needn’t a right to a good environment actually. The quantity and quality of the right to a good environment equals the quantity and quality of the obligation to eliminate the adverse influence to environment. In other words, a limitation to the capacity of polluting and damaging environment should be to the level of least influence to the environment that the environment itself can bear and absorb. There are two kinds of capacities: one is Human beings’ capacity to pollute environment as well as prevent pollution from environment; the other is the Environment’s capacity to bear and absorb the pollutants and adverse influences. Exactly, what we need is that we create best available technology to treat and prevent pollution meanwhile we use the similar best available technology to develop our economy. Then we can develop our society without hurting ourselves’ health and life meanwhile the environment can develop its history by its own rules. It is the very harmonious relationship with two parallel respective historical processes in the same space and time between mankind and nature that the environmental law pursues. 3.3 Limitation to human beings’ capacity: use the environment in a sustainable manner European countries have established a series of legal limitation to maintain the right to use the environment. The most important limitation is in technical and instrumental system. For example, the standard of environmental quality, the standard of emission, the administrative permit, the fishing and hunting license and quota. The limitation prohibits overuse to the environment and demands individuals to exercise their property rights in a rational and sustainable manner. The permits and licenses are used widespread in environmental law in Europe. It is the permits and licenses that have made a change to traditional individual property rights in the environmental law. However, any attempt to protect natural resources is for human beings’ future utilization in a sustainable manner other than endows animals or nature with “right(s)”, as some ethnical scholars suggest.41 Humane attitude to animals in environmental law implies among other things that human beings might have enough inhumane to destroy all the species of the world if they couldn’t restrict themselves effectively under the present situation of expanded population with too many poor people lacking of food and clothes. It is not the alarming report if one doesn’t forget the human history yet. But the moral and legal restrictions do not suggest that human beings transfer rights to animals. Animals are still an important property, at least an important source for making property, for example, genetic interests and intellective interests (i.a. to new discovered species). 3.4 Right to use wildlife in a humane manner: wildlife is still human property The right to use wildlife as a source of property, perplexedly with environmental ethics arguments, is a quite controversial issue. 42 As mentioned above, we can see a pan-moralistic approach relevant to wildlife protection in both domestic and international environmental law. Some scholars even suggest that wildlife have equal rights to other animate species in the world, a so-called eco-centric approach. One could not be able to go a little further anymore, having known these legislative suggestions below: “…[l]ead us to suggest the following laws: 1. No cetacean is any longer to be considered a human property, nor an industrial resource, nor a member of stocks of animals. 2. Individual cetaceans are to be given the legal rights of human individuals under human law. 3. Human individuals and groups of humans are to be given the rights to sue in behalf of, or otherwise represent in court, cetacean individuals placed in jeopardy by other humans. 4. Scientific research is to be initiated, encouraged, and supported to establish means of communication with the cetaceans. 5. In the event that such communication is established, further laws protecting the use of that communication between the cetaceans and the humans are to be researched and proposed to the Congress of the United states, based on equal representation between humans and cetaceans. 6. New interspecies laws, agreements, and interspecies treaties are then to be researched in cooperation with the cetaceans. It is time to recognize that the human species has maintained a human-centered, isolated existence on the plant earth because of its failure to communicate with those of comparable brain size existing in the sea. The cetaceans have a reality separate from the human reality. Their realities, defined in their own terms, their social competence, their surviving for the last fifteen million years, are to be respected, to be researched, and the consequences to be legislated into human law.”43 On the other hand, wildlife protection would imply that human beings hold the feeling of loving and cherishing life in morality behind which the environmental legal value hide. And also, wildlife protection means human beings want to keep wildlife as a source of property for future and next generations on the basis of awareness to the importance of wildlife protection to ecological balance and genetic usage which connecting with environmentally sound. The provisions of national law is a case in point: Section 1 of the Norwegian Wildlife Act 1981: “Wildlife and the habitats of wildlife shall be managed in such a way that the productivity of nature and the diversity if species be preserved. Within this framework, wildlife may be harvested for the benefit of agriculture and outdoor recreation.” Article 1 (1) of the German Federal Nature Conservation Act 1976: “The conservation, preservation and development of nature and landscape, both in populated and non-populated areas, shall be such as to effectively serve the following purposes: 1. to maintain the performance of the household of nature, 2. to preserve the exploitability of nature’s resources, 3. to conserve fauna and flora, and 4. to safeguard the variety, particularity and beauty of nature and landscapes, as a basis for mankind’s existence and as a prerequisite to recreation in nature and in landscape.” “Recognizing that wild flora and fauna constitute a natural heritage of aesthetic, scientific, cultural, recreational, economic and intrinsic value that needs to be preserved and handed on to future generations”, article 2 of the Bern Convention 1979 states: “The Contracting Parties shall take requisite measures to maintain the population of wild flora and fauna at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements and the needs of sub-species, varieties or forms at risk locally.” 3.5 Dual value of nature resource: use value and non-use value Whenever one thinks of using the environment, it always means the special use to a certain object. The objects of the right to use the environment are nature resources, such as water, land, forest, sea, fish, mineral, animal and plant.44 The value of each kind of nature resource is of dual: use value and non-use value. Let’s take the forest as an example. The forest contributes both its economic interests and ecological interests to human society. According to Dr. John Asafu-Adjaye, when we think of a forest, the value that immediately comes to mind is the utility that we derive from direct uses to timber harvesting and recreation. However, there is a range of values that is associated with a forest. The total economic value of a forest can be divided into two broad categories: use value and non-use value (or instrumental value and intrinsic value). The Use Value means the capacity of a good or service to satisfy our needs or preferences. It can be further divided into Direct Use Value (i.a. harvesting timber, non-consumptively camping, hiking and bird-watching) and Indirect Use Value (i.a. maintenance of the hydrological system, climate stabilization and soil stabilization). The Non-Use Value includes Bequest Value (i.a. preserving for future generation’s reaction), Existence Value (i.a. preserving gene pool) and Option Value (i.a. future recreation).45 The Norwegian Forestry Act directly expresses the two kinds of the Forest’s value (i.e. the use value and the non-use value), in the purpose article: “The purpose of this Act is to promote forest production, afforestation and forest protection. The aim shall be by means of rational tending to achieve satisfactory results for those engaged in forestry and ensure an efficient and regular supply of raw materials for industry. Emphasis shall also be given to the importance of forests as a source of recreation for the public, a major element of the natural scene, a living environment for plants and animals, and as hunting and fishing areas.” 46 And it also states the detailed values of the Forest, in a scientific way: “In younger satisfactory forest, harvesting must only be such as is conductive to the further favorable development of the forest from the point of the view of production and quality. Other harvesting, for instance regeneration felling, must only be carried out with the permission of the Forest Authority. In other forest, thinning or regeneration felling shall be done in such a way as to further the future production or regeneration of the forest. Trees to be retained or adjoining forest must not during felling and extraction be unnecessarily exposed to damage or destruction. Harvesting shall be planned and carried out with due regard to the natural environment and outdoor recreation (cf. the third period of section 1). Care shall be taken that continued public use of paths, ski trails and other rights of way is not rendered unnecessarily difficult after harvesting has been completed. Should the Forest Authority find that a forest owner has planned, begun, or carried out regeneration felling, including clear felling, in such a way or to such an extent that it must be assumed to have a distinctly negative effect on future harvesting that it will have a substantially harmful effect on outdoor recreation or the natural environment (cf. the third period of the section 1), the Ministry (of Agriculture) can on the recommendation of the County Land Board prohibit or restrict regeneration felling in the forest in question for a specific period of time.” 47 Actually, many kinds of natural resource have dual value: the use value and the non-use value. Then both present generation and future generations can get both economic interests and spiritual interests from nature resource. In my opinion, the content of the right to use the environment for present generation is that we get only a part of the use value --- Direct Use Value form nature resources; and the Indirect Use Value is for the right to a good environment for present generation while the Non-use Value is for next generations’ environmental rights. 3.6 Dual goal in the environmental law Considering the dual value of natural resources, the European environmental law in its best effort pursues the said dual goal: environmentally sound and sustainable growth. It is very easy to search for such a goal in the environmental law. For example: Article 1 of the Convention on Biological Diversity which EU reconfirmed: “The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.” Article 2 of the United Nations Framework Convention on Climate Exchange 1992 which EU reconfirmed and all the European countries signed: “The ultimate objective of this Convention and any related legal instruments that the Conference of the parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that world prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.” In addition, Preamble of Agreement on international humane trapping standards between the European Community, Canada and the Russian Federation 1998 restates that “Reaffirming that each Party has, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit its own resources pursuant to its own environmental and developmental policies and that each Party is responsible for conserving its biological diversity and for using its biological resources in a sustainable manner”, “Acknowledging that the sustainable use of wild animals for human benefit is in keeping with the principles of the World Conservation Strategy, the World Commission on Environment and Development and the United Nations Conference on Environment and Development”. Preamble of the Convention on the Trans-boundary Effects of Industrial Accidents (Helsinki 1992) declares “Mindful of the special importance, in the interest of present and future generations, of protecting human beings and the environment against the effects of industrial accidents”, “Recognizing the importance and urgency of preventing serious adverse effects of industrial accidents on human beings and the environment, and of promoting all measures that stimulate the rational, economic and efficient use of preventive, preparedness and response measures to enable environmentally sound and sustainable economic development”. Preamble of the Convention on Environmental Impact in a Trans-boundary Context (Espoo 1991) also uses the similar expression by “ensure environmentally sound and sustainable development”. In conclusion, the environmental law gives dual considerations to natural resources. It is a different approach in comparison with the traditional property law. All the property-oriented individual rights have within a certain extent been restricted by a series of limitation and technical demands on the purpose of protecting and strengthening the common (shared) rights shared by individuals as a whole. 4. Right to a good environment: the common (shared) rights In part 3 of this article, I have discussed that many kinds of natural resources have dual value in substantial and spiritual sides and the environmental law gives a series of limitation and technical demands to property-oriented individual rights. Correspondingly, one sees a trend to limit property-oriented individual rights. On opposite side of the same coin, I will discuss a trend to strengthen common (shared) rights. Only non-property-oriented rights would be the common (shared) rights which provide the guarantee to the fundamental personal and spiritual rights. They include for example right to life, right to health, right to safety, right to clean air and water, right to aesthetical and recreational outdoor activities in a dignity level. The common (shared) rights are also the foundation for the future property-oriented individual rights of present and next generations. In a sense, to strengthen common (shared) rights is finally to safeguard the right to use the environment of all individuals. 4.1 When do we need a right to a good environment? The good environment is originally a natural existence under natural rules and conditions. Several score years ago, there is no law to state that one who cuts down trees in his own forest without quota and permit violates the common (shared) rights. At that time, the forest resource is abundant enough for maintaining the ecosystem in a good condition. If the environment is good enough, one doesn’t need a right to a Good environment. On the contrary, if the environment is in a bad condition, we absolutely need to be entitled a right to a good environment. In fact, the right to a good environment sets up on the basis of a bad environment. Today’s environment is bad enough for us to get a right to a good environment. As everyone knows, the acid rain, desertification, eutrophication of lakes, extinction of species and etc. are threatening our health, life, safety, dignity and even morality. Confronting with serious environmental deterioration, the right holders of nature resources need not only to get quotas and permits, but also to pay for the marginal costs.48 The nature resources are also the source of human beings’ health and well-being. When one brings adverse influence to the environment, he violates everyone’s right to a good environment. 4.2 Moral subjects or legal subject? I notice that scholars have found difficulties for making the Right to a Good Environment become legal right in the view of traditional standpoint. This is a typical expression in opposition to the right of a good environment: “[i]t becomes clear that the creation of environmental rights -- that is to say rights that could be enforced by legal proceeding – would have no direct role in promoting key environmental values. Sustainable development is development that protects the interests of future generations, and rights as such can only be exercised by the living. Future and unborn generations cannot seek to benefit from a right designed to protect the interests of the living. What is more, to extent that international co-operation is necessary to protect the environment, it is meaningless to give an individual an enforceable right to a sound environment, for if the environment is jeopardized by an absence of international co-operation, against whom can a right to a sound environment be enforced? Finally, as it is more widely acknowledged that the environment has an intrinsic value separate from humanity, the necessarily anthropocentric concept of environmental rights is obviously of very limited value when it is an entire ecosystem that should be protected, rather than a particular human being or group of humans within that ecosystem. It can therefore be seen that there is necessarily some difficulty in formulating an enforceable right to a healthy, decent or viable environment, and this may be one reason why no instrument of international law refers explicitly to a right to a decent environment at large.” 49 It is true that the existing law mainly protects the interests of the living. But it’s not true that the law only protects the interests of the living. One can find that the existing law also protects the interests of the deceased person and the unborn foetus. For example, in heritage law, there is foetus’ right of succession;50 in copyright law, there is a certain period protection to copyright after the author’s death.51 If we enlarge the concept of the unborn foetus, it is easier for us to accept the legal subject of future generations. Why we should reserve a part of heritage for the unborn feotus? That is because: one has to be naked born into the world; but one’s bank couldn’t be empty. Undoubtedly, everyone has the right to get money from his upper generation. Why couldn’t next generations get a good environment from us? As mentioned above, the Right to a Good Environment is the common (shared) right. Its legal subject is human being as a whole, including present and future generations. There may be a hint in law that other animate species living on the expense of the same environment would share the common right with human beings. In a realist view, the future generations of human beings and other animate species are the namely legal subject. The future generations of course have no chance to enjoy their rights in our time, while the other animate species have no legal awareness. That means they are only entitled the moral right in a legal way in today’s environmental law. But we should treat next generations and other animate species in different ways. Next generations could be legal subject, just like unborn foetus in heritage law; but the animals are still human property or the source of property, they only get human beings’ moral concerns. 4.3 The detailed spiritual interests of the right to a good environment The right to a good environment is a comprehensive concept. At first, it can be divided into three groups according to different subjects: present generation’s right to a good environment (realistic shared right), next generations’ right to a good environment (inheritance right), animals’ right to a good environment (whole human beings’ right to a good environment). There are many kinds of spiritual interests in the right. For example, in the Norwegian Nature Conservation Act, citizens have “beautiful”52, “scientific”, “educational”, “historical” interests in the national assets (include natural parks, landscape, nature reserves and natural monuments). We can put a list of detailed rights to a good environment here: Right to clean air (healthy atmosphere environment) Right to clean water (healthy water environment) Right to outdoor recreation (spiritual invigoration and joviality) Right to enjoy sunshine (under the circumstances of land planning for higher buildings and skyscrapers) Right to ventilating (under the circumstances of high density of the buildings) Right to peace (against noise)…… In some aspects, there are no suitable titles to name the special environmental interests and rights. For example, one perhaps titles “the happy feelings to wild animals and flowers” Environmentally Aesthetical Right, and titles “getting self-identification and self-affirmation from motherland’s cultural relics” Environmentally Cultural (and Educational) Right. Anyway, one thing is true: all the detailed rights and interests shared by human beings are for the purpose of health, well-beings, happiness, dignity, recreation, safety, spiritual invigoration and joviality. 4.4 The conflict between the right to use the environment and the right to a good environment In Europe, the Right to a Good Environment is still within an extent of states’ moral responsibility and spiritual considerations to human beings so far.53 However, environmental rights in the final analyse are built up on the basis of economic interests. The goal of setting up the common (shared) rights in environmental law might also be disclosed by the statement of the World Commission on Environment and Development in Our Common Future: “[o]ur common future, is not a prediction of ever increasing environmental decay, poverty, and hardship in an ever more polluted world among ever decreasing resources. We see instead the possibility for a new era of economic growth, one that must be based on policies that sustain and expand the environmental resource base. And we believe such growth to be absolutely essential to relieve the great poverty that is deepening in much of the developing world.” 54 A new era of Economic Growth is what international environmental law concerns and what developed countries want. In other word, the right to use the environment is in the base of environmental rights. And then, the two types of environmental rights will conflict with each other in real life. It’s true that nowadays we can’t treat the nature resources i.a. land, forests and wild animals as pure individual property anymore. And, in Europe, the sentiment of mercifulness is also increasing, especially in Nordic countries.55 Many developed countries have aided developing countries in environmental matters and other fields, for the purpose of a harmonious environment. On the other hand, all of us know that the natural resources are still the main property and the main sources of wealth on the earth, especially under the circumstances of i.a. expansion of population, increasing worldwide poverty, extinction of more and more species, serious pollution to sea. Occasionally, local wars may struggle for the ownerships to natural resources and the market. Therefore, we may still meet the situation of conflicts between the Right to a Good Environment and the Right to Use the environment. I would like to put here a short phrase from H.R.H. Prince Philip, the Duke of Edinburgh: “Many people seem to think that the conservation of nature is simply a matter of being kind to animals and enjoying walks in the countryside. Sadly, perhaps, it is a great deal more complicated than that. For one thing nature consists of both plants and animals as well as the places and environment in which they struggle to survive. Furthermore every animal and some plants only survive at the expense of other animals or plants and mankind has gradually become the most significant exploiter of nature of them all.” 56 As a result of my analysis, the menu of the substantial environmental rights should be illustrated as follows: Environmental rights Right to use the environment Right to use the environment on the basis of individual property rights Property-oriented environmental rights Right to a good environment Right to a good environment for uncertain present generation as legal subjects Spiritual oriented individual personal rights and common (shared) rights Right to a good environment for uncertain next generations as moral and legal subjects Moral oriented common (shared) rights and inheritance rights to a good environment Right to a good environment for wild animate species as legal and moral subjects in form and as legal objects in essence Pan-moralism approach 5. The Procedural rights in the Aarhus Convention 1998 are the response to the new trend of environmental rights I have discussed above that the procedural rights expressed in the Aarhus Convention don’t belong to the two types of Environmental Rights. These procedural rights are still subject to procedural law and apply its special rules, principles and techniques. On the other hand, these procedural rights also suggest a modification to traditional procedural law. It is a response to the new trend of environmental rights: everyone needs to be entitled a legal standing in procedural law because everyone has already had a legal standing in substantive law --- everyone has already become the right holder of common (shared) environmental rights. 5.1 These procedural rights had existed in European countries before the Aarhus Convention The right to access to information, to public participation and to access to justice derives from European legal tradition. One can find without difficulty that these procedural rights have already existed separately in domestic law. For example, the United Kingdom adopted a lot of acts on access to information early in 1980s: Local Government (Access to Information) Act 1985, Access to Medical Reports Act 1988, and Environmental and Safety Information Act 1988.57 And Norway had adopted an Act Relating to Public Access to Documents in the Public Administration in 19 June 1970 as subsequently amended, most recently by Act of 10 January 1997 No.7 (Freedom of Information Act). Its section 2, para.2 states: “Any person may demand of the pertinent administrative agency to be apprised of the publicly disclosable contents of the documents in a specific case. The same applies to case registers and similar registers and the agenda of meetings of publicly elected municipal and county municipal bodies.” In the beginning of 1990s, considering that “public access to environmental information improves the quality of the environment, and that different rules among Member States will be disruptive to conditions of competition”, 58 Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment states on its preamble that “it is necessary to guarantee to any natural or legal person throughout the Community free access to available information on the environment in written, visual, aural or database form held by public authorities, concerning the state of the environment, activities or measures adversely affecting, or likely so to affect the environment, and those designed to protect it”.59 And the Directive undoubtedly improved the domestic legislation. After that, for example, Demark provided an Act on Access to Information Relating to the Environment in April 27, 1994 and its section 2 states: “Any person shall subject to the conditions and the exemptions following from Act on Public Access to Documents in Administrative Files and the Public Administration Act be entitled to become acquainted with information relating to the environment, cf., however, subsection (2) and Section 3(2) hereof. A right to access to documents according to this Act shall not be restricted by special provisions relating to access to documents in other legislation. However, this shall not apply to provisions laid down to implement obligations under Community law.” 60 Again, in 1993, the Austrian Parliament adopted the Environmental Information Act (Federal Legal Gazette Nr. 495/1993). The purpose of this act is stated in its section 1: “The purpose of the act shall be to inform the public on the environment, in particular by arranging for free access to the environmental data which are at the disposal of the administrative bodies, and by publicly announcing environmental data.” 5.2 The Aarhus Convention is the reflection to the new trend of environmental rights The Aarhus Convention is among other things the reflection of the new trend of the environmental rights. It suggests a modification to traditional procedural rights in contracting states to meet the demands of the new trend. Early in 1974, a broader access to justice had come into being in Nordic countries. In 1974, Denmark, Finland, Norway and Sweden signed the Convention on the Environment. The Convention states: “Any person is affected or may be affected by a nuisance caused by environmentally harmful activities in another Contracting State shall have the right to bring before the appropriate Court or Administrative Authority of that State the question of the permissibility of such activities, including the question of measures to prevent damage, and to appeal against the decision of the Court or administrative Authority to the same extent and on the same terms as a legal entity of the State in which the activities are being carried out. The provisions of the first paragraph of this article shall be equally applicable in the case of proceedings concerning compensation for damage caused by environmentally harmful activities. The question of compensation shall not be judged by rules which are less favorable to the injured Party than the rules of compensation of the State in which the activities are being carried out.” 61 And in 1990, the EC Directive on the Freedom of Access to Information on the Environment had made a broader access to information. Since 1990 on, many domestic information laws had amended, as appointed above. And then, naturally comes the Aarhus Convention. It is the result of the new trend to environmental rights. Environmental protection and rationally sustainable utilization to nature resources become, as mentioned above, a systematic governmental engineering in which the governments play the role of trustees of human beings including present and future generations. Meanwhile, scientificalization and democratization are the basic elements in environmental management. It would be in vain for individuals to enjoy the substantive rights to use the environment and to a good environment if the legal system lose its scientific and democratic foundation. Therefore, public participation in a largest possible extent is basically needed as a democratic foundation of environmental protection. None of us can find a way to public participation if there is no access to information of i.a. governmental policies, decisions and documents in environmental matters. And thus access to information becomes the prerequisite of public participation. As a result of failing to get information, undoubtedly, access to justice is a final solution. Right to access to justice is a judicial guarantee to get access to information and public participation. It is a way to remedy the common (shared) environmental rights by reforming the legal subjects system. In general, it is no doubt that the core of judicial procedures in Europe is to protect individual rights according to private and public law as well as international human rights law. Traditionally, there is merely access for one who has a legal standing in a specific case. But now, everyone has a legal standing in environmental matters according to the Aarhus Convention. In other word, except for a certain limitation, everyone has procedural rights to safeguard the common (shared) rights on behalf of the individual’s assemblage. 6. Conclusion In this article, I have discussed the new trend of environmental rights in Europe during latest decades: to strengthen morality-oriented common (shared) rights and limit property-oriented individual rights through a new menu of procedural rights as instruments. Some lawyers consider the environmental rights as an important part of human rights other than an independent legal right branch. Indeed, human rights Conventions have obviously given great influence to environmental rights in international environmental law and European lawyers have contributed a lot of valuable interpretations to develop the scope and the concept of environmental rights. On the other hand, the environmental rights have also enriched human rights. Nowadays, all rights are unavoidable relevant to both the Environment and Human Rights. In this article, I have given a reclassification to environmental rights. Environmental Rights can be divided into two types: the Right to a Good Environment and the Right to Use the environment. The Right to a Good Environment is common (shared) right, while the Right to Use the environment is mainly the right to property and the right to engage in activities relating to property. I reclassify environmental rights on the consideration of that many kinds of natural resource have two kinds of use value in substantial and spiritual sides: the property-oriented Direct Use Value and ecology-oriented Indirect Use Value. In my opinion, the content of the right to use the environment is that we get the direct use value form natural resources; and the content of the right to a good environment is that we keep balance of nature and enjoy the indirect use value of natural resources. In Europe, the goal of the environmental law is of duality: environmentally sound and sustainable development. The environmental law guarantees that everyone enjoys adequately an individual property right to use the environment under the social framework of democracy, freedom and equality; meanwhile, it guarantees that citizens share a right to a good environment. In addition, the ambitious environmental law hopes that the law benefits to next generations, and if possible, to animals and plants. It has been making a great change to European legal tradition: a change from preferentially respecting individual rights to generally strengthening individuals’ common rights. All the property-oriented individual rights have within a certain extent been restricted by a series of limitation and technical demands on the purpose of protecting and strengthening the common (shared) rights shared by individuals as a whole. Single individual’s property right is weakened a little meanwhile public’s well-being is promoted. On the other hand, the Right to a Good Environment in Europe is still within an extent of states’ moral responsibility and spiritual considerations to human beings so far. The natural resources are still the main property and the main sources of wealth on the earth. The environmental rights are still built up on the basis of economic interests: a new era of Economic Growth. Therefore, the right to use the environment is in the base of environmental rights. And then, the two types of environmental rights would probably conflict with each other in real life. And the right to access to information, public participation in decision-making and access to justice in environmental matters expressed in the Aarhus Convention is a series of special procedural rights in environmental matters. It derives from European legal tradition. In fact, a broader access to justice had come into being in Nordic countries in 1974. And the EC Directive had made a broader access to information in 1990. Many domestic procedural laws had been amended in 1990s in consideration of the needs to environmental protection. These procedural rights should not belong to the two types of Environmental Rights. It is still subject to procedural law and applies its special rules, principles and techniques. On the other hand, these procedural rights have suggested a modification to traditional procedural law: everyone needs to be entitled a legal standing in procedural law because everyone has already had a legal standing in substantive law. Notes 1. On 10 December 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights and used “People” as the subject of human rights, which being used as the subject of environmental rights in environmental law in Europe as well: “The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” The differences among the concepts of people’s rights, citizens’ rights and individual rights perhaps mainly roots in the different interpretations on the basis of different social structures. For example, people’s rights most probably imply the interpretation of the ignorance to “enemy’s” rights in past times. And Citizens’ rights might suggest a different treatment to non-citizenship individuals. Individual rights also bring problem to “[e]very organ of society” which suggested by Universal Declaration on Human Rights. 2. There are different ways to describe it as i.a. Healthy Environment, Sound Environment or Environmentally Sound, Good Environment, Healthy and Sound Environment, Clean Environment, Viable Environment, and Decent Environment. I think there are no too many differences among the said expressions. Cf. i.a. Alan Boyle, The Role of International Human Rights Law in the Protection of the Environment, in Human Rights Approaches to Environmental Protection (ed. by Alan Boyle and Michael Anderson), Clarendon, Oxford 1998; and Dr. Ludwig Krämer, Focus on European Environmental Law (chapter 1), Sweet & Maxwell, London 1992. But it is still worthy to be mentioned that “[t]he right to live in dignity in a viable global environment” being expressed in Declaration of the Hague 1989 is not the right to a good environment but the right to live “[f]rom which all other rights stem”. 3. It may be considered as embodiment of Right to Life and Health in environmental law, or a subdirectory of Right to a good environment. One perhaps could also treat the Right to Clean Products as under the subdirectory. 4. For example, in art.2, para.3 of the Norwegian Planning and Building Act, a special concern gives to Children: “When carrying out the planning pursuant to this Act, special emphasis shall be placed on securing children a good environment in which to grow up.” 5. See preamble of the Aarhus Convention 1998. 6. See Article 1 of the Aarhus Convention. One can find its first version in Point 6 of Declaration of the United Nations Conference on the Human Environment (1972): “[t]hrough fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. 7. Section 1, para.3 of Norwegian Act No. 23 of 12 May 1995 relating to Land: “Ensuring that resources are used in a manner beneficial to society entails taking into account the fact that the resources shall be disposed of with a view to the needs of future generations. Land resource management shall be environmentally sound and, among other things, take into consideration protection of the soil as a production factor and preservation of land and cultural landscapes as a basis for life, health and well-being for human beings, animals and plants.” 8. Article 1 of the Swiss Federal Law relating to the Protection of the Environment 1983. 9. See J. G. Merrills, Environmental Protection and Human Rights: Conceptual Aspects, in p.25of Alan Boyle and Michael Anderson, Human Rights Approaches to Environmental Protection, Clarendon, Oxford (paperback) 1998. 10. There are very few countries that have enacted Environmental Code that would display a clear picture to the environmental law. But one can still find a code in for example Sweden. The Swedish Environmental Code, with a special kind of environmental courts built up according to it, which entered into force on 1 January 1999 had taken the place of following fifteen earlier laws: the Nature Conservation Act, the Environment protection Act, the Dumping of Waste in Water (Prohibition) Act, the Fuels (Sulphur Content) Act, the Agriculture Land Management Act, the Public Cleansing Act, the Health Protection Act, the Water Act, the Pesticides (Spreading over Forest Land) Act, the Chemical Products Act, the Environmental Damage Act, the Natural Resources Act, the Biological Pesticides (Advance Testing) Act, the Genetically Modified Organisms Act, and the Flora and Fauna (Measures Relating to Protected Species) Act. And in other countries and EU, Environmental Law as an independent legal department is in my opinion still in academic level. 11. For instance, Alexander Giliespie suggests that cultural value of the environment may also represent national identities. For example, the kiwi represents New Zealand, the kangaroo represents Australia, and the bald eagle symbolizes the United States. (See Alexander Gillespie, International Environmental Law, Policy and Ethics. Clarendon Press. Oxford 1997, p.96.) And then, is the Culture a part of Environment and should the Environmental Law concern the Cultural Diversity and cultural (historical) relics? What is the most suitable scope for the environmental law as a legal branch? Fortunately, the scope of a certain environmental legal document is quite clear. For example, article 1 of the Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden 1974: “For the purpose of this convention, environmentally harmful activities shall mean the discharge from the soil or from buildings or installations of solid or liquid waste, gas or any other substance into watercourses, lakes or the sea and the use of land, the sea-bed, buildings or installations in any other way which entails, or may entail environmental nuisance by water pollution or any other effect on water conditions, sand drift, air pollution, noise, vibration, changes in temperature, ionizing radiation, light, etc.” 12. It comes from section 101(b) of The National Environmental Policy Act of 1969, the United States of America: “[i]t is the continuing responsibility of the Federal Government to use all practicable means, consist with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may: 1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; 2) assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; 3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; 4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice; 5) achieve a balance between population and resource use which will permit high standards of living and sharing of life’s amenities; and 6. enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.” 13. Philosophers have set up a new course called Environmental Ethics in which they try to find valuable resource to protect environment from i.a. Native people’s beliefs, Buddhist attitude towards nature, Islamic environmental ethics, Christian spirituality, and Taoist ideas. Cf. Susan J. Armstrong and Richard G. Botzler (ed.), Environmental Ethics: Divergence and Convergence, McGraw-Hill, Inc. 1993. 14. For example, ”[h]ygienic considerations which are significant to Man and the environment”. See second point, second para., article 1 of the Denmark Consolidated Environmental Protection Act, No.698 of September 22,1998. 15. Cf. R. R. Churchill, Environmental Rights in Existing Human Rights Treaties. Alan Boyle & Michael Anderson (ed.), Human Rights Approaches to Environmental Protection, Clarendon, Oxford 1998 (Paperback), p.89-p.108. 16. Principle 3 of the Rio Declaration on Environment and Development 1992. 17. A expression of “sustainable growth” (not “sustainable development”) had existed in article 2of the 1992 Treaty on European Union: “The Community shall as its task, by establishing a common market and an economic and monetary union and by implementing the common policies or activities referred to in Articles 3 and 3a, to promote throughout the Community a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among members-States.” See Philippe Sands and Richard G. Tarasofsky (eds.), Documents in European Community environmental law, Manchester University Press 1995, p.5. For criticism to the new expression, cf. Jan H. Jans, European Environmental Law, Kluwer 1995, p.6. 18. Article 2 of the Amsterdam Treaty 1997 has changed the expression of “sustainable growth” in article 2 of the 1992 Treaty on European Union, into the expression of “sustainable development”. 19. See Hans Chr. Bugge, Human Rights and Resource Management----An Overview, Note 5. In Erling Berge & Nils Christian Stenseth (ed.): Law and the Governance of Renewable Resources. ICS press 1998, p.111. 20. For further discussion of the subjects and contents of common rights see i.a. James Crawford (ed.), The Rights of Peoples, Clarendon Press, Oxford 1992; Asbjørn Eide and Jan Helgesen (eds.), The Future of Human Rights Protection in a Changing World, Universitetsforlaget, Oslo 1991. 21.Article 1 of the Aarhus Convention 1998. A little different expression can be found in Principle 1 of The Rio Declaration on Environment and Development: “Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” 22. The Herborizing Right is a special kind of right to use the environment on the purpose of i.a. producing traditional medicines. 23. For instance, para.3, article 4 of the Denmark Consolidated Environmental Protection Act provides “Any party commencing or carrying out activities likely to cause pollution shall take measures to prevent and combat pollution and design and operate the activities so as to cause the least degree of pollution”. The given “least degree of pollution” gives a hint to polluters that one can pollute the environment in a “least degree” way. And the “least degree” is always regulated by environmental standards. 24. Section 1, Chapter 1, Part one of the Swedish Environmental Code which was adopted in 1998 and entered into force 1 January 1999. 25. Article 1 of the Denmark Consolidated Environmental Protection Act, No.698 of September 22, 1998. 26. See section 1 of the Finnish Nature Conservation Act 1996. 27. Cf. Jan H. Jans, European Environmental law, Kluwer 1995, p.13. 28. See Philippe Sands and Richard G. Tarasofsky, Documents in European Community environmental law, Manchester University Press 1995, p.14. 29. See Hans Chr. Bugge, the Historic Roots of Norwegian Pollution Law. In He Qinhua(ed.), The Vanguard of Foreign Economic Law in 20 Century, Law Publishing House, 2002. 30. In general, they always owned a large amount of private property and enjoyed market dominance. 31. According to Lucas Bergkamp, there is another kind of victims nowadays: “[i]n the international contexts, on occasions, the victims, rather than the polluters, will have to pay”, because “To secure the agreement of developing countries, compensation by developed countries may be required”. See Public and Private Law Instruments to Protect the Environment, in Helle Tegner Anker & Ellen Margrethe Basse (eds.), Land Use and Nature Protection, DJØF Publishing, Copenhagen 2000, p.182. 32. For further discussion, cf. Hans Chr. Bugge, The Principle of “Polluter-Pays” in Economics and Law. In Erling Eide & Roger van den Bergh(ed.), Law and Economics of the Environment, Juridisk Forlag, Oslo 1996. 33. Principle 1 of the Declaration of the United Nations Conference on the Human Environment. See Edith Brown Weiss, Daniel Barstow Magraw and Paul C. Szasz, International Environmental Law: Basic Instruments and References, Transnational Publishers, 1992, p.172. 34. This is why sometimes one can see a paradoxical approach in worldwide international declaration or convention. 35. See principle 2 of the Rio Declaration on Environment and Development 1992. 36. Under the trans-boundary circumstance, certain organizations may have legal standing on behalf of the public interests. For example, according to the 1974 Nordic Convention, each state has appointed one supervisory authority with the task of safeguarding general environmental interests of that state against nuisance from the other contracting states. And, in Norway, the legal interest of environmental organizations may be considered as include public interests. See Jonas Ebbesson, Individuals and Trans-boundary Pollution; Two Decades with the 1974 Nordic Convention, in Erkki J. Hollo and Kari Marttinen (eds.): North European Environmental Law. Hakapaino Oy, Helsinki 1995, p.43-45. 37. The Associated Faculty Press law textbook program, Washington 1983. For further discussion, see infra. 38. The World Commission on Environment and Development, Our Common Future, Oxford 1987, p.57. 39. See Peter Singer, Animal Liberation, paper back Avon 1990. 40. In general, historical and cultural relics are the common property, which used by individuals as for recreational, educational, and aesthetical activities. There might be a little crossover between the right to use historical and cultural relics and the right to a healthy (good) environment. 41. Peter Singer in Animal Liberation, a book from which he gains distinction as an animal liberationist, states that “[t]he ethical principle on which human equality rests requires us to extend equal consideration to animals, too”. See Peter Singer, Animal Liberation, paper back Avon 1990, p1. 42. For further discussion of animal protection see J. G. Merrills, Environmental Protection and Human Rights: Conceptual Aspects, in Alan E. Boyle and Michael R. Anderson, Human Rights Approaches to Environmental Protection, p34. 43. John. C. Lilly, Communication Between Man and Dolphin: The Possibilities of Taking with Other Species. See David S. Favre, Wildlife Cases, Laws and Policy (Chapter 7 Wildlife Rights), Associated Faculty Press, Washington 1983, p237-238. 44. Under pollution circumstance, one do have a right to pollute the environment even one can’t pollute the environment without permission. And then, we may consider that one uses the Air. 45. See John Asafu-Adjaye, Environmental Economics for Non-Economists, World Scientific, Singapore 2000, p.102-103. 46. See section 1 of the Norwegian Act of 21 May 1965 relating to Forestry and Forest Protection, as amended by Act no. 77 of 11 June 1976. 47. See section 16 of the Norwegian Act of 21 May 1965 relating to Forestry and Forest Protection, as amended by Acts no. 77 of 11 June 1976 and no.41 of 13 June 1980. 48. Cf. Hans Chr. Bugge, The Principle of “Polluter-pays” in Economics and Law. Erling Eide & Roger van den Bergh (ed.), Law and Economics of the Environment, Juridisk Forlag, Oslo 1996. 49. Alistair McGlone, The Human Rights Approach, in Erling Sevig and Hans Chr. Bugge (eds.), International Environmental Law, Juridisk § Forlag, Oslo 1994, p.86-87. 50. For example, the Norwegian Inheritance Act enables an unborn person to get inheritance right. Its section 71, para.2 states that “an unborn person may, however, only be given inheritance rights if one of his parents has been born or conceived at the time when the testator dies”. 51. For example, section 40 of the Norwegian Copyright Act provides that “copyright shall subsist during the lifetime of the author and for 70 years after the expiry of the year in which the author died”. 52. It is true that “[n]ot all the natural world is aesthetically pleasing”(see Alexander Gillespie, p.88.), in a special society. But Nature has its intrinsic aesthetical value in general. 53. As Elizabeth Dowdeswell discussed, “It has been argued that the right to a healthy environment is an extension of the right to life. States are thus under a moral duty to pursue policies which are designed to ensure access to the means of survival for all individuals and peoples.” See Elizabeth Dowdeswell, Development of International Law, in Erling Sevig and Hans Chr. Bugge (eds.), International Environmental Law, Juridisk § Forlag, Oslo 1994, p.21. 54. The World Commission on Environment and Development, Our Common Future, Oxford 1987, p1. 55. According to figures released by the OECD, Denmark, Sweden, Netherlands and Norway are the top countries in foreign aid to developing countries. Last year, Norway used 0.8 percent of its gross national product on aid, and Sweden 0.81, Netherlands 0.82, Denmark 1.06. See Aftenposten, Oslo, May 7, 2001. Donations by Norwegians to various non-profit aid groups are on the rise. Several groups in Oslo are reporting double-digit increases in the total amount of money they took in last year. See Norwegian Showing More Generosity. Aftenposten, Oslo, May 9, 2001. 56. See foreword in Simon Lyster, International Wildlife Law, Grotius Publications Limited, Cambridge 1985. 57. Gisèle Bakkenist: Environmental Information: Law, Policy and Experience. Cameron May Ltd.1994, p.19. 58. See Philippe Sands and Richard G. Tarasofsky (eds.): Documents in European Community environmental law. Manchester University Press 1995, p.275. 59. See Philippe Sands and Richard G. Tarasofsky (eds.): Documents in European Community environmental law. Manchester University Press 1995, p.276. 60. Section 3(2) states that “The Act comprises all information relating to the environment available in written, visual, aural or data-base form, irrespective of when the information is obtained.” 61. Article 3 of the Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden, Stockholm 1974. (Mr. Zhou Xunfang, Professor of law, the Dean of Faculty of Law, Central South Forestry University, China.)