| Summary: | 碩士 === 國立成功大學 === 法律學系 === 102 === SUMMARY
Recently, the word “Environmental Justice” has been widely used in Taiwan, it can be seen almost everywhere, wherever it’s on the press, academy researches, online news, or official announcement of the government, we can get a glimpse of its importance from the popularity of the word. However, despite of the fact that the main idea and relevant appeal of environment justice is important, it’s only widely mentioned and discussed in the sphere of philosophy, sociology and political science, when it comes to legal studies, it’s still an idea waiting for further development. Thus, this paper based on former studies and analysis, starting with the aspect of legal studies, discusses what kind of the orientation of the relevant idea of environment justice should be on the basis of legal construction, so as to deeply analyze and build the possible foundation of the idea environment justice, then straighten out its implied meaning in legal studies. Also, since Environmental Justice is an idea emphasizing the allocation of environmental using benefit and undertaken consequence among people, we should pursue it with justice especially when applying it to the allocation of environmental benefit and loss between the superiority and inferiority, in this way, Environmental Justice is particularly relevant to stipulated human right protection in the part of basic right in Constitution and the the two conventions: ICCPR and ICESCR. Hence, we can use the two mentioned ordinance as the legal ground of Environmental Justice in our country.
INTRODUCTION
Environmental Justice originated from a series of environments demonstrations in the U.S.A, the main appeal of it is pursuing fair allocation between environmental benefit and undertaken consequences, afterwards, by world widely promoting and the great amount of studies translated into Taiwan, Environmental Justice is being valued governmentally and non-governmentally, while in legal studies, we lack of its relevant research. Take the commonly controverted issue: storage of nuclear waste in Lanyu, the benefit of generating nuclear electricity turns to every citizen in Taiwan, while the disadvantage of generating nuclear electricity turns to only local aboriginal in Lanyu, does the condition accorde with the idea of justice?
Another example is the Ma-Chia Reservoir case, it aims at solving the lack of water in southern Taiwan, when the construction completed successfully, it can solve the lack of agricultural and domestic water using to some degree in the mentioned area. Nevertheless, as it’s completed, residents living around the reservoir for generations will lose their home, what’s worse, they have to take the risk of extinction of their aboriginal culture. In the case, it’s a similarly imbalance between environmental benefit (most people in southern Taiwan) and undertaken consequence, (local aboriginal ), does the condition accord with the idea of justice?
As a result, this paper aims at concluding the foundation of Environmental Justice in legal studies and build a system ought to be, by using the idea of Environmental Justice, through analizing and summarizing huge amount of local case of environmental injustice, in the hope of putting a stop to the environmental injustice by law.
MATERIALS AND METHODS
The method of this thesis is documentary analysis. This thesis reviews the literatures, such as dissertations, journals and public documents relevant to environmental justice issue. This thesis searches data on web of Westlaw, LexisNexis, Heinonline and Lawdata by using the key word including “environmental justice”, “environmental injustice”, “environmental right”, “collective right” and “two convention.” In addition, this thesis refers to the statement and analysis regarding to environmental justice on US Environmental Protection Agency website. This thesis analyzes the above data and makes the comparison to reach a conclusion in the study.
RESULTS AND DISCUSSION
After analizing all the possible legal ground of Environmental Justice in Taiwan, we found that from the aspect of Constitution, such as the displine of social state, it actually has intensive relevance to the idea and the practice of Environmental Justice. What’s more, in terms of basic right, aside from inherent aspect of right to liberty, social right, the newly developing indigenous right, such as environmental right, cultural right and ethnical right, are also relevant to the practice of Environmental Justice.
In the meantime, the two conventions mentioned above bear the same legal status as law in Taiwan, and it’s confirmed by Council of Grand Justices NO. 329, additionally, we have unidirectionally joined the two conventions mentioned above two convention, in this way, they bear the same legal status and effect as law. The enacted environmental human rights protection rules with the characteristic of entity and procedures are also relvant to the appeal of Environmental Justice.
Thus, with relevant displine and enacted basic right in Constitution, even the rules in the the two conventions mentioned above, Environmental Justice can serve them as its legal ground of appeal and idea, and so as to practice Environmental Justice in Taiwan.
CONCLUSION
Though we can practice Environmental Justice with the rules of basic rights in Constitution and the two mentioned conventions, when it comes to basic right, many appeals of Environmental Justice are actually relevant to indigenous right, especially in environmental right, and it still remains room for discussion in terms of the virtual content and legal position of environmental right - even the newly developing human right: indigenous right, waiting for accumulation of studies and the opinion from practicing law, hence, it becomes a limitation when we study the legal ground of Environmental Justice.
Furthermore, whether Environmental Justice can be carried out in Taiwan through the doctrine of the two conventions mentioned above, it depends on the attitude of administrative authority and legislature, and, whether the court can practice and carry out the relevant rules to Environmental Justice in the two conventions mentioned above with a more proactive approach as the guardian angel of both justice and people’s right is also a crucial point if Environmental Justice can be practiced as a legal concept.
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