Many constitutions foresee provisions on the environment and/or nature. Yet, the approaches and legal forms in which the environment and nature are mentioned, vary. In my contribution, I will provide an overview of provisions on the environment and nature in selected Latin American and European constitutions and the ECHR's approach. Based on the comparison of the approaches, I will test the hypothesis that the concept of rights of nature could prove to better protect future generations and the climate than the concept of the protection of the environment.
The Rights of Nature (RoN) granted by the Ecuadorian Constitution (CRE) of 2008 are often described as an achievement of the indigenous movement. Nevertheless, the relationship between RoN and indigeneity is rather contested.
By using the method of intercultural interpretation – developed by the Constitutional Court – and the concept of hybridity – a key element of postcolonial theories – this paper will interpret the RoN as a so called third space of dialogue that enables and demands negotiation between different epistemes. This becomes obvious when looking at Art. 71 CRE that addresses “Nature or Pachamama” and therefore requires a dialogue between diverging ways to conceive the environment.
These negotiations between indigeneity and western legal thinking can enhance the way of seeing legal personality and (subjective) rights and might overcome some of the deficiencies of subjective rights that have triggered serious criticism of both indigenous and western scholars.
The public activity of a government, whatever its form of organization revolves around a political-administrative direction of society, that activity is conditioned by the type of legitimacy and political organs of the State. This consideration on the type of State have their effects on the type of norms and public policy that govern that State (at least in theory). In that sense, a constitutional state of rights may recognize the rights of nature and apply an appropriate public policy for compliance, while a legal state will have greater difficulties. For this reason, the role of public policy and public administration in Ecuador and Colombia will be analyzed, through the review of some cases in which the rights of nature in both countries have been discussed.
The introduction of the Rights of Nature (RoN) into the Ecuadorian Constitution in 2008 generated much hope amongst environmental movements. Yet, the belief that these rights would ‘quasi automatically’ lead to social change soon diminished when in 2009 the government declared industrial mining a new strategic economic sector.
In recent years, resistance movements against mining have emerged. Part of these movements’ resistance strategy has been to file constitutional lawsuits against mining projects. By dealing with two specific cases from a legal anthropological perspective, I explore the reasons behind the mobilisation of the RoN in these lawsuits, the hopes attached to this new set of rights, the disappointments such legal actions have generated, as well as the contestations over the meaning of the RoN in court. My contribution is based on five months of ethnographic fieldwork in court rooms as well as amongst lawyers, activists, NGOs, and people from affected communities.
The so-called Rights of Nature (RoN) are first and foremost a creation of – mostly Latin American – constitutions. It may be well asked, however, whether RoN should also have their place at the level of international law. Recent case-law of the Inter-American Court of Human Rights can be understood as embracing this concept and elevating it to the international stage. In addition, involving other elements from the international law cosmos may bolster an emerging “International Law of RoN”. After all, traditional international law with its non-focus on the individual may be capable of engaging with non-anthropocentric approaches even more flexibly and productively than (most) domestic legal orders. Nonetheless, the challenges remain enormous, and it is far from clear whether the time is ripe for welcoming genuine RoN in international law.