The Rights of Nature in South America

At present, in many jurisdictions ‘nature’[1] is not capable of holding rights and is considered as “property” capable only of protection through indirect means which are often specifically targeted to protect the rights of legal persons rather than nature itself. Nature often has no legal rights to protect itself on its own merit, it relies on third-parties or activist interest groups to do so for it through legislation often not designed solely for its protection.

Rights – what and how?

The concept of “rights of nature” or “rights for nature”, is the recognition of nature’s right to have legal rights similar to human rights and rights afforded to legal persons, like corporations. Nature Finance defines Rights of Nature (RoN) as encompassing a range of legal mechanisms giving nature a right to have its interests be argued before the law and found in favour of by courts, as though it were a human litigant.

Where have the rights of nature been recognised?

Latin America has a wealth of biodiversity and important ecosystems, including the Amazon rainforest which spans eight different countries, including Ecuador, Bolivia and Colombia; it is also an area where the rights of nature have been significantly developed compared to other areas of the world. South American jurisdictions have developed the rights of nature through constitutional reform and court jurisprudence in relation to rivers, forests and specific ecosystems.

Constitutional protections

Some Latin American jurisdictions have amended their constitutions in order to provide protection to nature, while some have gone as far as granting rights to nature.

Ecuador

On 28 September 2008, Ecuadorians voted to amend their constitution to give rights to nature and was the first constitution amended in such a way. The Constitution was amended to include within Title II a new Chapter seven on the rights of nature. Article 71 of Chapter seven states “Nature…has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structures, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.” The Chapter sets out the provisions concerning how nature should be protected and that the Ecuadorian state should apply “preventative and restrictive measures” on activities which could lead to the destruction of ecosystems and extinction of species.

Bolivia

Following a successful rights of nature movement, the Bolivian constitution was amended in 2010 and 2012 to include the indigenous principle of “buen vivir” (the “good way of living”) designed to protect nature.  In 2010, the government passed the Laws of the Rights of Mother Earth containing 10 articles designed to protect nature and recognise its rights.

In 2012, a more substantive piece of legislation was passed, The Framework Law of Mother Earth and Integral Development for Living Well. The 2012 legislation provided for the establishment and incorporation of new public institutions including the Mother Earth Ombudsman’s Office and the Plurinational Mother Earth Authority, which would be tasked with the protection of nature and upholding the principle of buen vivir which encompasses taking into account the importance of the natural world.  The more substantive legislation also amended the constitution to include laws recognising (although not going as far as recognising them as a right for nature in and of itself) nature’s right to life and to exist, the right to continue vital ecosystem cycles and processes free from human intervention and alteration, the right to not be polluted and the right to “not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities”.

While Bolivia’s legislation seeks to protect nature, rather than to grant nature constitutional rights, there have been considerable issues with enforcement of the legislation and tensions between the desire of indigenous communities and corporations with regards to Bolivia’s nature. Concerns have been raised about the contradictions within the constitution between the concept of “Buen vivir” which arguably promotes the destruction of nature for economic progression and the protection of nature on the other.

Colombia

While Ecuador recognises nature’s rights and Bolivia recognises the need to protect nature for nature’s sake, Colombia’s constitution offers a third level of watered-down protection for nature, Colombia’s constitution was amended to recognise the right to a healthy environment, which is arguably the least progressive development for nature, but it is still considerably more developed than in other jurisdictions.

Courts

The national courts of Ecuador, Bolivia and Colombia have also stepped in to opine on nature rights and in some instances have handed down judgments with far reaching impacts; however, enforcement of these judgments is often a difficult process and the tensions between nature and exploitation lead to difficulties in practically implementing judgments.

Ecuador

In judgment 1149-19-JP/21, the Constitutional Court of Ecuador, Ecuador’s highest court, ruled that plans to mine for copper and gold in the protected cloud forest were unconstitutional and violated the rights of nature under Chapter seven of the Ecuadorian constitution. Local communities brought a claim that there had been a violation of the rights of nature and a violation of the rights of communities in the area to be properly consulted prior to the explorative searches for the minerals. The lower court partially accepted the claim and held there had been a violation of the right to prior consultation under Article 61.4. However, local authorities filed for an additional remedy at the Constitutional Court to seek the express recognition from the Court on the rights of nature in this instance.

In the case, known as Los Cedros ruling, the Constitutional Court held that the rights of nature in Articles 10 and 73 of the Constitution would be violated, alongside the right to water (Article 12 and Article 313) and the right to a healthy environment (Article 14), alongside the right to prior consultation were all violated. The Court defined the rights of nature at paragraph 31,32 as: “not rhetorical lyricism, but a transcendent statement and a historical commitment […] these values are part of the constitutional preamble which presents the fundamental values of the Ecuadorian people.”

The Court also found that the cloud forest itself deserved protection, rather than nature as a whole in Ecuador. To determine this the court applied a two-step test (paragraph 62) to determine if the proposed economic activity from the mining plans would violate the rights held by nature under the Constitution:

1.      there should be the existence of a potential risk of severe and irreversible damage to nature; and

2.      a lack of full scientific certainty about the negative impacts of the activity.

These two steps set a high standard of proof to be achieved by the mining corporation in the case and the Court found that there was a real risk of irreversible damage to  Los Cedros and that the respondents had not provided sufficient scientific evidence to give clarity about the negative impacts.

Bolivia

The Isiboro Sécure Indigenous Territory and National Park, known as TIPNIS, is one of Bolivia’s most biodiverse regions marking the boundaries between the Andes and the Amazon rainforest and is an area of extreme ecological fragility. In 2017, the Bolivian government granted permission for the construction of a 190-mile road through the centre of TIPNIS with permits licensed on the grounds that the road would benefit indigenous communities and their opportunities for development.

The Global Alliance for the Rights of Nature’s established court, the International Rights of Nature Tribunal, a permanent tribunal designed to “foster the international rights of nature law”, heard the claim of indigenous communities who argued that the construction project would cause “permanent and structural damage” to their communities and cause the displacement and extinction of flora and fauna.

The Tribunal agreed to hear the case and determined that it would impose a moratorium to prevent construction while it sent a delegation to Bolivia to conduct investigations in TIPNIS. The Tribunal presented its report in January 2019 and concluded that the Bolivian state had violated the rights of nature, particularly Articles 67 to 73, including the violation of the inherent rights of mother earth, established in Article 2 of the Declaration, Article 7 of Law No. 071 and Article 9, paragraph 1 of Law No.300 of Bolivia, specifically the rights to exist and be respected, to their integrity and vital functioning and to the regeneration of their biocapacity and continuation of their cycles and vital processes free from human disruption, amongst other violations. The Tribunal ordered that the Bolivian Government must ensure the immediate and permanent halting of the construction of roads within certain areas of TIPNIS and enact a new law to guarantee the conservation and protection of TIPNIS while respecting the rights of the indigenous communities living there.

Colombia

In the Atrato River Case, Judgment T-622/16, which concerned intensive mining activities and illegal logging in the Colombian Atrato River Basin, a group of claimants who lived in the region claimed their rights, including the right to a healthy environment, had been violated by the Colombian government for failing to prevent these activities.

While the Constitutional Court upheld that those living in the basin had the right to enjoy a healthy environment, the Court went a step further than the constitutional provisions, to find that the river itself had the right to protection, conservation and maintenance through an interpretative reading of the Constitution. The Court concluded that the principle of the social rule of law, meaning the state has to be actively involved to ensure social justice, mandated the effective protection and safeguarding also of nature and biodiversity, particularly due to the fact that the constitution is based on ancestral customs and knowledge, as well as social integrity which meant that it could not be interpreted in a way so as to give humans dominance over nature. As a result, the Constitutional Court found that the Atrato River itself had rights and ordered that the Colombian authorities create legal guardians who would protect the river.

The Supreme Court of Colombia has subsequently adopted similar decisions in relation to other rivers, specific ecosystems and island national parks.

Where do rights for nature go from here?

While Ecuador, Bolivia and Colombia were the first South American jurisdictions to take legislative or judicial steps to recognise the rights of nature, other South American countries have followed in their footsteps. Panama introduced a new model law in 2022 granting a human right to a healthy environment and rights to access environmental information and justice. Similarly, in 2022 Chile began the process of adopting the rights of nature through amending its constitution.

Arguably, Latin America has seen the most significant development in terms of the rights of nature. While not all jurisdictions have amended their constitutions, nature is increasingly protected in this part of the world compared to others and many court cases have been successfully litigated in Latin American court rooms. Arguably, the presence of deeply rooted indigenous knowledge and understanding of nature plays a considerable role in the development of rights of nature in Latin America, due to the importance of nature within indigenous teaching, knowledge and culture. Indigenous communities represent a large proportion of the claimants of global south climate related litigation, including litigation relating to the rights of nature. Therefore, we should expect to see more litigation relating to the rights of nature advanced by indigenous communities.

While many court cases have been successful and rights of nature have progressed most comprehensively in Latin America, further development is required to ensure the protection of nature in its own right. Difficulties with enforcing legislation, establishing public bodies and enforcing guardian status over natural areas have been difficult in most of the above referenced jurisdictions. Similarly, there is increasing tension in many of these jurisdictions between nature and the economic benefits from extracting natural resources which will cause tension between the judiciary and the executive in terms of enforcement of the rights of nature.  

[1]meaning the phenomena of the physical world collectively, including animals, plants, the landscape and the features and products of the earth, as opposed to humans or human creations