Rights of Nature: the nuances of the Latin American experience

María Valeria Berros, UNL-CONICET

2024

In recent years, the debate on the recognition of the rights of nature has grown substantially in Latin America and the world. It is presented in multiple ways, mainly associated with major constitutional and legal reforms, as in the cases of Ecuador and Bolivia, or in relation to emblematic judicial cases, such as the ruling on the Atrato River in Colombia. At the same time, processes of reinterpretation of existing law in a more eco-centric sense can also be identified. In the following paragraphs, we will examine this multiplicity of nuances to broaden the horizons of reflection on this contemporary phenomenon.

The constitutional and legislative experiences are, as we know, the best known and most studied. In 2008 Ecuador, through its constitutional reform, opened the way to a new legal status for nature or Pachamama. From being considered an object to be exploited or protected, it became a subject of rights. This inclusion was inspired by the worldviews of indigenous peoples, especially Andeans, as well as by the social and environmental movements that played a relevant role in the constituent process that contains Sumak Kawsay or Buen Vivir as a cross-cutting proposal. Article 10 of this constitutional agreement determines that nature is a legal entity, and this is developed in Chapter 7, which establishes the right to the existence, maintenance and regeneration of its vital cycles and the right to restoration.

Puerto Ayora, Santa Cruz Island, Galápagos (2014) Ph. María Valeria Berros

In the case of Bolivia, Law 71 of 2010 on the Rights of Mother Earth, which recognizes the following rights: to life, to the diversity of life, to water, to clean air, to balance, to restoration and to live free of contamination (article 7) and Law 300 of 2012, which also establishes a link between the Suma Qamaña or Vivir Bien with this type of expansion of rights, are of central importance. This recognition of rights is also replicated in provincial and local regulations. This is the case, for example, in Argentina, Brazil, Colombia, Mexico and Peru. 

This set of regulations is considered disruptive because it takes nature from the legal status of objects to be exploited or protected in terms of the environment that surrounds us, to the level of subjects with own rights. Thus, the legal status of nature or of ecosystems is reviewed and a series of challenges are generated for decision-making, for the implementation of these rights, and for the emerging judicial decisions that rely on this type of innovative juridical tools. 

However, in addition to this process, we can also observe another process, less striking perhaps, but which opens the door to reinterpretations of the law already in force. In general, the constitutional clauses in Latin America that recognize the right to a healthy environment do so in the following terms: “all inhabitants have the right to a healthy environment”, “everyone have the right to a healthy environment”. The term inhabitant and everyone is the focus of attention in legal doctrine. Aníbal Falbo from the National University of La Plata in Argentina asks the following question: why have we never think about the content of the word inhabitants? His answer is that our anthropocentric lenses did not allow us to read these norms from another perspective. However, legislation that has expanded rights also allows us to revise those lenses and even make it sound strange that the protection of the environment is aimed only at humans. 

Finally, another prolific field of recognition of the rights of nature is that of court rulings even in countries that do not contain such recognition in their existing law. The 2016 Colombian case deciding on the contamination of the Atrato River opens this path. This river was recognized as a subject of rights by the Colombian Constitutional Court, which in turn appointed a guardian as its representative. This Court interpreted the law from the perspective of biocultural rights, placing in dialogue biological and cultural diversity, among other arguments that were associated with the eco and biocentric perspectives. Even though the arguments of the ruling incorporate a juxtaposition of issues that may even be somewhat contradictory, what is certain is that as a result the decision not only resolved the Atrato River, but also opened a new way for the expansion of rights of nature. Since that moment until now several Colombian courts adopted similar decisions about rivers and other ecosystems. Finally, although without explicitly recognizing rights, other courts have also been turning towards ecocentrism. This is the case, for example, of the Supreme Court of Justice of Argentina which, in some rulings in recent years, has introduced the ecocentric or systemic paradigm and the consideration of the interests of the systems themselves, to decide on conflicts related to rivers and wetlands and the application of the in dubio pro natura principle, which weighs the need to decide on conflicts in the way that is most protective of nature.

Delta del Paraná, Provincia de Santa Fe, Argentina (2021) Ph. María Valeria Berros

This brief overview allows us to broaden the horizons as well as the stories that can be told about the rights of nature. If, on the one hand, we have the well-known, re-foundational experiences of Ecuador and Bolivia, on the other, we can also observe smaller-scale stories in which people fight for the recognition of the rights of certain ecosystems in local legislatures or bring court cases in which existing law is adapted in an ecocentric sense. Making these stories visible also allows us to return to a not insignificant issue: the undeniable symbolic force of this topic as part of the repertoire of battles for rights recognition.    

Further readings and resources

Berros, M. V.; Carman, M. (2022) Los dos caminos del reconocimiento de los derechos de la naturaleza en América Latina. Revista Catalana de Dret Ambiental, 13 (1), 1-44. 

Falbo, A. (2017) El término “habitantes” del artículo 41 de la Constitución Nacional excede a los seres humanos, Revista de Derecho Ambiental, 52, 137-143.

Documentary (2018) The rights of nature. A global movement. Available in:

https://www.youtube.com/watch?v=kuFNmH7lVTA (Spanish version) /

https://www.youtube.com/watch?v=RupkZM8dV14 (Spanish subtitles version)

United Nations Initiative Harmony with Nature: http://www.harmonywithnatureun.org/