Thus, since it is impossible for national courts to settle potential disputes, which have already
appeared and most certainly will proliferate, being just a matter of time until persons living in
“grey” areas will realize they are entitled to a healthy and ecologically balanced environment, the
procedures stipulated in international/regional instruments for the protection of a recognized and
unobserved fundamental right would have to be used.
Nevertheless, as claimed by the field literature
, we do not deny the fact that guaranteeing the
right to a protected environment, as a fundamental right, is “a step forward and a positive endeavor”
which may result in making its beneficiaries aware of the need to protect the environment in
3. Relationship with the other fundamental rights
Stating and stipulating third generation rights (among which the right to a healthy environment)
raise the issue of the correlation with the other fundamental rights in the first two generations,
which are already known and expressly guaranteed. Although there is a classification of
fundamental rights, its aim is not to divide rights, but, on the contrary, to explain the inner structure
of the unitary system of human rights, freedoms and duties. The classification should not be
interpreted as a hierarchy, because all rights have the same significance and, although some of them
depend on others or also fulfill also the function of guarantee for others, they make a unitary
At first sight, there seems to be a conflict between “generations of rights”, and which is also
what has triggered the reserves regarding recognition and guarantee.
It was (erroneously) estimated that the rights in the first generations are “affected” (more or
less) by the rights in the last generation, and consideration was (concretely) given to the “negative
impact” of the right to a healthy environment on other fundamental rights and freedoms.
Thus, as regards the ownership right, it might be “affected” by the creation of duties regarding
the environment protection, which are stipulated in Romania’s Constitution as well (article 44
paragraph 7) “The right of property compels to the observance of duties relating to environmental
The right to work might also be “affected” by forcing polluting legal entities either to cease
their activity, or to remodernize their production process.
Last, but not least, free movement might “suffer” due to the limitation or interdiction of access
to protected areas.
Above, we mentioned that “there seems” to be a conflict, because, in reality, as also indicated in
the field literature
, “the occurrence of the current environmental crisis set up the conditions for a
new approach to fundamental rights, from the perspective and in the context of environment
protection [...] The cause that led to the need of this new approach stems from the conservationism
of law as a system, but also from the perspective of its components, which makes that, many times,
the legal system is left behind by social, economic, political transformations, and by those made by
nature as well. This situation has determined at present certain incongruence between the content of
regulated fundamental rights (de lege lata) and the environmental reality, an incongruence that was
not that visible when the fundamental rights were first established [...] the content of certain
fundamental rights has to be completed or correctly interpreted. Without these operations, the
extension of the citizens’ obligation to abide by them is not set (sketched) or compliant with the
current reality even if it meets the incomplete content. The indicated incongruence cannot lead to
the breach of fundamental rights, and its immediate effect is only the deepening of the
M. Diaconu, 2 006, Dreptul la mediu sănătos în constituŃiile unor Ńări ale Uniunii Europene [The Right to a
Healthy Environment in the Constitutions of some European Union Countries]. Revista de ŞtiinŃe Juridice, nr. 4.
Available from internet: <http://drept.ucv.ro/RSJ/Articole/ 2006/RSJ4/B02DiaconuMatei.pdf>.
I. Muraru, Drept constituŃional…, op. cit., p. 206-20 7.
G. Iancu, Drepturile fundamentale…, op. cit., p. 117, 118, 126, 128-162.