New Tunisian constitution: the right of the reader


New Tunisian constitution: the right of the reader

The concept of “descendant” rights raises a fundamental legal question: who is the holder and beneficiary of rights? If the law is customarily aimed at a particular right holder, the idea of a beneficiary that does not exist or may be formed in the future challenges the basis of the law. What rights do people who don’t exist have? Who will guarantee and enforce it?

This legal dilemma is part of the third generation of human rights. This group of rights not only considers individuals but also considers existing or future groups as beneficiaries. It includes environmental rights, development rights and [solidarity]. “The present generation’s declaration of responsibility for the next generation” is the best model for this modern and future relationship.

In 1997, UNESCO published 12 articles defining the responsibilities of the current generation and fully protecting the needs and interests of contemporary and future generations. This includes in the modern age, people have a responsibility to protect and improve the environment and sustainable development of the world’s power, and by avoiding irreversible residual problems or damage, to ensure that the “descendants from the earth’s ecosystems that benefit the rich”. The “Tunisian constitution” on January 27, 2014 established a guarantee of “the security of the next generation”.

1. To participate in the constitution of “the rights of future generations”

The “constitution” of 27 January 2014 contains the concept of posterity and the means to adjust it at multiple levels.

Affirm the rights of future generations

It is worth noting that the direct loading of [this right] links the rights of future generations to the right to environmental rights and sustainable development. “Preamble” makes it clear that “it helps to ensure climate security, to protect the environment, to ensure the sustainability of our natural resources, and to maintain a stable life for future generations.” Article 42 further confirms this, which stipulates that the state “shall protect the cultural heritage and ensure the rights of future generations”. Section 129 explicitly supports the organizational level, which provides for the establishment of a commission on sustainable development and the committee on the rights of future generations.

This constitutional approach to the rights of future generations raises important questions about how the term is defined. The Tunisian constitution, as well as some domestic and international legal texts, must be formulated, but not defined or specified. “The constitution” contains this principle to recognize the rights of generations still in development or in the future; We should not forget that the idea of future generations transcends the rights of children and youth, as well as the rights of the unborn.

2. Supplement the constitution of the rights of future generations

Mentioned here, the question is whether the new “constitution” clearly endorse the concept of offspring is made of the concept of “legal consequence”, or just in rights declaration, no consequences of political or moral duty. In addition, how does the law (broadly) confer the legal meaning of this concept and produce a set of relevant rights and obligations?

Moral case. In the preface, the constitution guarantees “stability for future generations” and “the sustainability of natural resources”. This constitutes a moral obligation to achieve fairness among a generation. The preamble to the 1973 Washington convention mentions that future generations are the subject of law, particularly in the field of environment and development, which deals with trafficking in animal and plant species.

The “brundtland report” in 1987 also supported this view, which unequivocally affirmed that “large-scale development of limited resources will destroy natural unity and poor offspring”. This was later recognized in all international conventions in the Rio earth summit (such as the Rio convention on biological diversity and the preamble to the convention on climate change).

In the field of international law, the international court of justice ruled on 25 September 1997 that the obligations of children to future generations were treated fairly. The basic principle is to treat natural resources (and other resources, such as cultural resources) as legacy from generation to generation, and no generation has the right to waste or monopolize.

The legal case would be the principle of protecting the rights of future generations. According to article 42 of the constitution, the state has the following requirements: “protect cultural heritage and protect the rights of future generations”. This provision is a direct model of the rights of future generations. Take responsibility to ensure it. This is the only state of the constitution that explicitly guarantees this. So how do we measure current generation’s responsibility to future generations?

According to the regulations of the preface of “constitution”, “safe life” for future generations, will put all of the rights, freedom and constitutional safeguard mechanism will be descendants of rights granted to a new level of development level as the level of modern people enjoy. This establishes legal and institutional responsibility for these [future] generations. This responsibility for spanning time and generation can be achieved through the following major aspects:

Preservation of existing things: this is done by contemporary generation in the preservation material and non-material cultural heritage of the role of, as now this generation from used to accept;

The “reasonable” use and management of existing [resources] : this has a fundamental relationship with natural resources, particularly water, soil, energy and biodiversity, including genetic diversity. The present generation cannot seize all these resources and waste them. and

Develop [existing resources] : to seek new resources for future generations for future generations.

These three levels require the implementation of principles and mechanisms that will ensure the rights of future generations. It is worth mentioning, therefore, what legislation the constitution will enforce in 2014.

3. Implement the constitution and protect the rights of future generations

In 2014, the “constitution” explicitly refers to the rights of future generations, including a series of rules and principles for the formulation and implementation of these rights. This has fundamental links to various fields, including the environment, natural resources, development methods and economic, social and cultural rights, and establishes a framework for the rights of future generations.

“The state should ensure a sound and balanced environment”

Since 1988, Tunisia environmental legislation often appear, almost covers all [field] : forestry, environmental impact, renewable energy, natural resources, modify water laws and regulations, biological agriculture, and establish environmental structure [through] national environment protection, government departments responsible for environment.

Since then, the evolution and diversification of environmental problems have contributed to the publication of some legal texts. It is not easy to be united in the light of the unbalance of the meaning at certain points of time and the lack of coordination between them. Since 2005, this has led to serious consideration of environmental regulations; In 2010, the code was carefully implemented. At the end of 2013, department experts in charge of environmental affairs wrote the draft technology. This important legislative work is aimed at developing a consistent legal legislative perspective covering all environments. This will strengthen and standardize environmental legislation, address its shortcomings, clearly identify the rights of future generations and establish mechanisms to ensure those rights.

In principle, the draft affirmed all principles of environmental law: environmental information rights, participation rights, precautionary principles and environmental claims. The draft also embodies the precautionary principle in protecting the rights of future generations. According to this principle, if there is no deterministic activity that causes environmental damage, the activity must be avoided or restricted until certainty becomes possible, even if it takes decades. This clearly reflects the principles of contemporary responsibility for future generations; The current generation may not decide to take action to deprive or implicate those.

In terms of mechanism, the draft support protection measures, especially the public circulation of the environmental impact assessment, in addition to the projects and equipment, these measures also include all kinds of text: strategy, policy, planning and legal texts. Therefore, future generations will not be affected by the mistakes of modern people, not only through projects and equipment, but also in major decision-making.

In addition to the existing environmental legislation, the draft has greatly enriched the concept and specification of protected areas, the provisions of biosafety, the protection of natural scenic areas, mountains and oases. The management system of noise, vision, radiation and light pollution is established.

“Water rights are guaranteed. Protection and rational use of water should be a national and social obligation.”

In its nature, water right is a fundamental right that is directly related to the right to life. The water Canon in March 1975 was not explicitly recognized, although many changes were made. However, due to the pressure and civil society organization’s struggle to include this right in the “constitution”, it is necessary to reconsider the legal system for the management of the water in Tunisia.

The review of the system actually precede the adoption of the constitution and the events of 14 January 2011. In 2009, under the supervision of the department of agriculture, an expert committee set out to establish a new version of the water to either modify existing laws or enact new regulations and enforce regulations. They decided to introduce new regulations, which the committee submitted to the government in June 2012. There are several reasons for the draft to be approved, the most important of which is the following.

The new draft code is based on a key concept, which is completely different from the 1975 code, which is the scarcity of water and the difficulty of obtaining it. Unlike the philosophy of the 1975 code, such a philosophy would help to manage and use demand rather than supply. This approach can improve the use and governance of resources and protect future water resources.

In the framework of sustainable development, including the right management of water resources, the environmental and social aspects of this approach are strengthened, without undue emphasis on the economic dimension;

According to the principle of “water integration”, the comprehensive management of water resources will strengthen the decentralization of water resources management according to the possibility of water distribution in the basin.

Strengthen the management of [water] between groups and associations;

Supporting legal and institutional frameworks for dealing with floods and natural disasters, particularly water scarcity and drought;

Strengthen oversight mechanisms and traditional responsibilities and establish new and effective mechanisms, including arbitration, mediation and reconciliation; and

Strive to develop water resources and find new sustainable resources.

In Tunisia, this new way of water will also need a specific water problem management structure, in order to balance various overlapping [requirement], especially the requirement of the economist, and balance the different USES of water, whether economic, social and environment.

“Natural resources are the property of the Tunisian people; The state exercises their sovereignty over them in their name.”

The Tunisian legislation dealing with the natural resources including many legal texts, including ore yards (through April 28, 2003, 30, 2003 of the laws declared by), fuel code (August 17, 1999, 1999 no. 93 issued by law, and adjust the energy law (72) in August 2004.

This legislation, while important in technical terms, needs to be reviewed today, particularly in the context of licensing (for use, development and exploration) and necessary monitoring. Tunisia is based on the present legislation idea comes from natural resources (including forest, water and soil resources), is a licensed, choice of the parties and supervise the implementation of main functions as the center. Obviously, such a practice contradicts article 12 of the constitution, which clearly stipulates that the people are the owners of the natural heritage. In view of this, the people’s representative (the legislature) has played a major role in the exercise of sovereignty over natural resources by approving agreements related to these resources.

Temporary agencies that oversee the constitutionality of the draft law affirmed this new constitutional approach. The agency, for example, made it clear in its decision to adopt the draft law on renewable energy production that some of these provisions were inconsistent with article 12 of the constitution. They argued that the draft law granted broad powers to the government, particularly in charge of the department of energy, to approve conventions relating to energy production, without the consideration of the people’s congress and its committees.

Future legislation must also clarify the composition of natural resources and establish a public legal system. This could happen in a codex or comprehensive legal text framework on property belonging to the public. The idea dates back to the early 1990s and was created by the state department of property and land services. It was built with the draft code, but this code was never submitted to the people’s congress for distribution and approval.

In fact, the role of the public property still comes from dozens of legal texts, they are different, in the protection, management and into the potential of the private sector is full of exceptions, and in the absence of any legislative oversight to conduct liquidation. The legal text that regulates public property grants administrative personnel, especially the former and current presidents, to alter the property legal nature of the property, thereby potentially clearing it.

All this deal with the practice of public property and offspring for natural resources and public property rights are not consistent, especially in its most basic level, demand by protecting to manage them, “no clear them or allowing them with the passage of time, the ownership would fail. The latter approach promotes the concept of a list, which is used by contemporary people, to develop and pass on to their offspring at least as well as they receive, preferably in a better state – more development and enrichment. Now it is time to clear the public property law. In the light of governance, participatory democracy, and people’s constitutional principles of resource sovereignty, the public property law should be revised.

Sustainable development council and future generations rights

In the section of the constitutional committee, the constitution of Tunisia establishes the commission on sustainable development and future generations (rule 129). Related to environment and sustainable development of the non-governmental organizations (especially the Tunisian association of environment and development) now is trying to set a draft law for the commission, and is developing a strategy, introduce the strategy, and to mobilize support for its acceptance and approval. The text of the constitution clarifies the general principles on which the law is based. These principles appear in articles 125 and 129. In this article, I will focus on the commission’s prerogatives.

First of all, the article one hundred and twenty-nine of the award committee’s right of consulting: “economic, social, environmental issues and development plan for the draft law shall consult the opinion”, “say concerning the matter of professional related. The authority of the commission has two points of view:

The committee’s intervention was in the draft law and the draft development plan. While these texts are important, limiting the authority of the committee to these two texts may prevent it from commenting on the draft executive order. These are issued by the President to influence future generations: government contracts, environmental impact assessments and urban planning.

The role of the committee was limited to advising. In other words, it will not have the role of reporting or regulation in terms of sustainable development and the rights of future generations. This undermines the value of its work and its expression.

How, then, should the law of the commission exceed these basic obstacles, strengthen the role of the commission, and affirm the needs of the commission?

In this case, expand the list of people who might ask for advice, to include a number of elected representatives, such as 10 legislators and citizens in public, on the basis of the petition, in addition to the views of the President and government advisory committee. To strengthen this role, the commission’s law may require it to develop relations with non-governmental organizations. This will be arranged by these organizations and appointed by the commission to submit a report to non-governmental organizations.

In general, perform articles related to the sustainable development and future generations (about the environment, heritage and the terms related to the natural resources and the sustainable development commission) will only be one part of the protection of children and grandchildren, ensure that the right to development, improve the balance of the environment. This task calls for a review of the legislative text on inequality in all sectors of society (children, youth, women) that do not reflect the desired pattern of development. According to the constitution, this should be based on participatory democracy, “good governance”, “regional balance” and “appropriate development of national resources”.


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