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Rights of Nature in the new Chilean constitution: comparative law lessons to make it real

Monserrat Madariaga Gómez de Cuenca, PhD Student, UCL Faculty of Laws

On March 25, 2022, the Chilean constitutional convention approved a provision recognizing the Rights of Nature:

‘Article 4. On the Rights of Nature. Nature has a right to being respected and protected in its existence, regeneration, maintenance and restauration of its functions and dynamic balances, which comprehend natural cycles, ecosystems and biodiversity.

The State, through its institutions must guarantee and promote the Rights of Nature according to the Constitution and Laws.’

This is innovative provision emerges as a response to the factual inefficiency of current regulation to prevent environmental degradation. On the one hand, environmental degradation is palpable and visible to all: water scarcity, ocean depredation, disappearance of native forest through fires and exploitation, ecosystems threat and destruction, loss of biodiversity, to name a few. On the other, the right to live in a healthy environment provided for in the current 1980 Constitution has little or no meaning to many, where ‘sacrifice areas’ are particularly symbolic to the above.

This blog post will (1) present the legal institution of the rights of nature and (2) its development in international and comparative law. Building on this, (3) it will offer some valuable lessons on how to materialize this right into a real experience. Part of this analysis draws on my previous contribution to the Greenpeace expert paper on Europe’s Green Recovery (see Dooley et al. (2020)).

1) The Rights of Nature

Recognition of the Rights of Nature acknowledges the existential value of nature. Current institutions are designed precisely to omit that intrinsic value, as they are underpinned by mainstream economic theory that only ´assigns´ value to natural resources, but not to nature. This permeates environmental institutions. For example, if one looks at environmental impact assessment, an instrument broadly used around the world, the rationale is to measure, maybe minimize and compensate, but ultimately, legalize environmental damage. Local communities usually have a right to participate, and indigenous consultation is mandatory, but their incidence is shockingly limited.

Human rights instruments are not necessarily an allied to protect the environment, since they follow a similar anthropocentric rationale, which might or might not align with nature protection. In some cases they even oppose, serving as justification to cause ‘legal’ environmental damage, under the cover of property rights and even social rights (health and use of plastics, for example). Moreover, the interest-based approach that is characteristic of human rights regimes does not assert independent rights of nature (see Chapron, Epstein, and Lopez-Bao (2019)). This independent standing is necessary, as there will not always be a coincidental individual or collective right affected when nature is being hampered. Furthermore, when rights are in conflict and ‘when people and corporations have rights and nature does not, nature frequently loses, as evidenced by the continuing deterioration of the environment’ (see Chapron, Epstein, and Lopez-Bao (2019)).

Before alarms about a possible ‘nature dictatorship’ arise, I should make clear that giving nature rights means to represent the interests of nature in the decision making process as a relevant coexistent one. It does not mean an automatic yielding of all other interests to it. This approach is a novel trend in comparative and international law, gaining recognition due to its eco centric approach. Coincidentally (or not) it emerges in global south countries, and in some cases, through the demands of indigenous people.

2) International and comparative law:

Nature rights are recognised both in international law and other domestic orders. Internationally, the IUCN World Declaration on the Environmental Rule of Law (2016) is straightforward when asserting the obligation to protect nature regardless of its worth to humans (see IUCN, Principle 1) and the rights to and of nature to exist, thrive, and evolve (see IUCN, Principle 2).

Recognition of the rights of nature in comparative law varies. Bolivia, for example, takes a general right of standing approach by granting legal personhood and rights to mother earth or pacha mama (2010 Law on the Rights of Mother Earth), and specifying the content of these rights and how they align with Bolivia’s ‘living well’ development strategy (see Law No. 300). In a similar trend, countries as Colombia and India have achieved protection of nature rights by granting legal personhood to specific nature elements (Colombian Amazon and Atrato river, and Indian Ganges river) through judicial review. New Zealand and the Maori People recognized ecosystem Te Awa Tupua rights in a treaty settlement agreement (yes! This is an example of pluri-national state action) which also recognizes the Maori people stewardship role (and powers) in the management of the area. A final example would be the 2008 Constitution of Ecuador, which states: ‘Nature will be subject of rights recognized by this Constitution’.

3) Key aspects:

A first question that arises from the provision drafted by the Chilean constitutional convention is whether the wording can be interpreted as a recognition of legal personhood of nature. It would be ideal to make it explicit, as this will allow for representation of nature in current and future decision-making processes and institutions. Legal representation has been crucial to protect key ecosystems through the designation of special habitats -through administrative acts-, such as the designation of marine protected areas in Palau. It also has played a magnificent role in protecting nature -and communities!- through judicial review, when government decisions have threatened vital ecosystems as the Colombian Astrato river, the Amazon and the Indian Ganges river cases show. Legal standing is vital to protect one’s interest, and so it is to protect nature’s interest. Representation theory should calm any anxieties. If anyone wonders: ‘But how can nature appear in Courts?’ Not to worry, corporations are legal fictions and have been acting through representation for centuries.

A second lesson would be to be aware of the dependence the protection of the environment has on a development strategy coherent with it. It is the duty of the State to outline a strategy that consider the rights of nature (and hence, the rights of future generations). If not, this clause could be as deprived of meaning as the current ‘right to live in a healthy environment’ or, alternatively, its implementation would have to rest on the shoulders of citizens engaging in constant administrative opposition or litigation. Ecuador´s experience shows little effectiveness of the constitutional recognition of the rights of nature in policy making and a large amount of litigation as the main tool to implement this provision (see Bedón-Garzón). The expectation of this provision is that the State as a whole, and particularly in its policy making endeavours, acknowledges the rights of nature by creating a seat on the table for nature. And it should be a big seat, which makes us think of new paradigms and amendments to core policies, including environmental impact assessment, planning law, a limitation to extractive activities, a full stop to the commodification of water, among many others policies in need of radical transformation to be coherent with the aimed protection of the Rights of Nature.

A third and final point of this contribution, is to call for a multi-actor and multi-level comprehension of environmental law governance when protecting the Rights of Nature. This includes non-state actors. However, draft article 4 is right in allocating this responsibility to the State (which is to be re-formed in the same Constitution). Within the State, we should pay attention to more than the central government role in developing policies that protect the Rights of Nature. Examples show the importance of the judiciary (see Annex below, particularly Colombia and India) as well as local governments (see Annex below, particularly USA). Will the Chilean judiciary step up or are we still to see how construction permits and property rights continue to outweigh the survival of a whole ecosystem and human safety? Cases like Hotel Punta Piquero and Dunas de Con Con, as well as a recent ruling by the Chilean Supreme Court regarding access to a minimum of litters of drinking water for deprived communities show a trend towards a greener judiciary, but only after years of litigations and appeals. Local and regional governments are another relevant actor. In the US, Municipalities ordinances have recognized the rights of nature. Endorsement of the new democratically elected regional governments as they move forward in protecting nature is essential. It is beyond comprehension that Rodrigo Mundaca, former environmental activist and current governor of Valparaiso is facing trial for standing for nature. Environmental degradation is best known and harshly suffered by the community, and local governments are key to respond to those. Civil society and of course, corporations also have a large role to play, and it will be the duty of this new State to promote strong green agency for these actors as well.

Many other ideas and reflections will be prompted by the reader in a simple reflection about the topic, hence, I will leave you to them.

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