At the forefront of global environmental governance: The Rights of Nature in Latin America and Indigenous Peoples
“It sounds strange, doesn’t it? This idea that nature has rights… It’s madness. As if nature were a person! Yet it sounds perfectly normal that large US corporations should enjoy human rights.”
Eduardo Galeano (2017)
Nature as a subject of rights
According to the Earth Law Centre, the rights of Nature (hereinafter RN) are defined as “the specific rights possessed by Nature, such as the right to exist, to maintain the functioning of its life cycles and to be restored when it suffers damage”. In practical terms, this implies the ability to exercise rights and assume obligations; to take legal action on its own behalf or through third parties acting as representatives; as well as to be an active party in a legal relationship in which it would hold subjective rights; or to be a passive party and assume obligations.
The emergence of the Rights of Nature has marked a genuine ‘Copernican shift’. It represents the transition from being an object to a subject of law, with the capacity to act and to be the recipient of the State’s protective measures. This marks a break with classical theory, which has always upheld an eco-personalist model in which only human beings and legal persons (e.g. private companies) are holders of rights and duties.
These rights are grounded in an eco-centred and holistic understanding of Nature, which stands in opposition to its commodification and instrumentalisation. Nature is recognised as a living entity with intrinsic value, whose constitutional protection is not interpreted in terms of utility or efficiency in relation to human beings, but which is deserving of protection in its own right. Furthermore, human beings are conceived as an integral part of Nature and, consequently, on an equal footing with it. In other words, as human beings and Nature form an interconnected and interdependent unity, respect and love for oneself entails respecting and loving Nature in the same way. This process of self-referential recognition, empowerment and awareness-raising is also taking place within the animal rights movement; with which the DNs have a close relationship, their demands even converging.
The leading role of indigenous peoples and communities
The philosophical foundation of the Rights of Nature is deeply rooted in the indigenous worldview, whose identity as a people is intimately linked to Nature. There is a powerful social movement behind the Rights of Nature, with leading organisations such as the Global Alliance for the Rights of Nature (GARN); the Amazon Defence Front (FDA); the US-based Earth Law Centre (ELC); and International Rivers, dedicated to the protection of rivers worldwide.
It is essential to highlight that indigenous peoples are the ‘guardians of the forest’, for although they make up less than 5 per cent of the world’s population, they contribute to the preservation of more than 80 per cent of the planet’s biodiversity. This makes them a vital player in climate change mitigation measures by safeguarding forests and rainforests as CO₂ sinks and, ultimately, in achieving the objectives of the Paris Agreement (2015). Furthermore, the ancestral knowledge of indigenous peoples regarding their territories, lived in harmony with nature, is proving to be of vital importance in the fight against climate change.
On the other hand, the indigenous community is one of the social sectors most vulnerable to climate change, as well as to the systematic violation of human rights. This has led them to play a very active role in the Conferences of the Parties (COP), the United Nations’ most important annual summit on climate change. This situation is mainly due to their close interdependence with the territories they inhabit; their status as a community outside state protection systems; and the concentration of the adverse effects of climate change in the Global South and Latin America. A defining characteristic that sets them apart from other social actors also involved in climate justice—such as ‘Youth for Climate’, which bases its action on the recognition of civil, political and social rights for the sake of future generations—is that, in contrast, indigenous peoples are currently suffering the immediate consequences of the climate crisis to a far greater degree, threatening the very survival of their communities. Furthermore, their demands centre on the defence of the rights of Nature (or Pachamama), their territories, way of life and identity as a people. By way of comparison, both indigenous peoples and ‘Youth for Climate’ share the aim of greater inclusion of human rights within the international environmental framework. However, indigenous peoples face an existential threat to their territories and sovereignty. In this regard, there are also forms of resistance at a local level (known as ‘popular environmentalism’ or ‘environmentalism of the poor’) against extractive megaprojects and renewable energy developments driven by multinationals and national governments, which give rise to socio-environmental conflicts involving serious human rights violations. Notable examples include the Tehuantepec Isthmus Wind Corridor in Mexico (Iberdrola) and the Camisea gas project in the Peruvian Amazon (Repsol).
Legal ecocentrism in Latin America: three paradigmatic examples
The Rights of Nature (RoN) have been recognised internationally in accordance with three distinct models: a) judicial decisions by courts; b) recognition of the legal personality of Nature in constitutions and domestic legislation; c) new ‘pro-nature narratives’. They therefore represent a reconceptualisation, reformulation and expansion of the law and human rights. The innovative and recent legal construction of the Rights of Nature owes its origins to the so-called ‘Intellectual Movement for the Rights of Nature’ or the ‘Fourth Wave of Environmentalism’. Below, we shall briefly outline the three milestones that constitute the most representative expression of the Rights of Nature on a global scale.
The conferral of legal personality on Nature in the Constitution of the Republic of Ecuador (2008) and of the Plurinational State of Bolivia (2009)
Both constitutional texts show a strong similarity in the recognition of Nature as a legal subject, yet they also differ in certain respects. In the 2008 Constitution of Ecuador, adopted during Rafael Correa’s first term as president with the support of Alianza PAIS, there is no doubt regarding the constitutional enshrinement of the Rights of Nature. Article 10 of Title II (entitled ‘Rights’) reads as follows: ‘Nature shall be the subject of those rights recognised by the Constitution’. Furthermore, Articles 71, 72, 73 and 74 of Chapter Seven (entitled ‘Rights of Nature’) recognise three fundamental rights: 1) the right to have its existence fully respected; 2) the right to the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes; 3) the right to restoration. Ecuador is thus the first country in the world to enshrine the Rights of Nature in its constitutional text. Among the main proponents of this advancement in Ecuador’s new Constitution are the indigenous peoples, united within the Confederation of Indigenous Nationalities of Ecuador (CONAIE).
However, in the 2009 Constitution of Bolivia (enacted a year later), Article 33 of Chapter Five (entitled ‘Social and Economic Rights’) stipulates the following: ‘People have the right to a healthy, protected and balanced environment. The exercise of this right must enable individuals and communities of present and future generations, as well as other living beings, to develop in a normal and sustainable manner.” Here, the controversy arises as to whether the wording of Article 33 constitutionally enshrines Nature as a subject of rights. According to the author Eduardo Gudynas (2018), the Bolivian Constitution “does not recognise Nature or Pachamama as a subject of rights, but rather follows the approach of countries that place environmental issues within the framework of human rights, specifically under economic and social rights”. However, through legislation, Bolivian law has formally recognised Nature as a holder of rights. It could therefore be concluded that, regardless of subsequent legislative interpretation, the Bolivian Constitution, unlike the Ecuadorian Constitution, does not explicitly grant legal personality to Nature.
Law No. 300 – Framework Law on Mother Earth and Integral Development for Living Well
Bolivia’s Law No. 300 is one of the most illustrative examples of a legislative instrument rooted in Latin American legal ecocentrism; it is strongly influenced by the indigenous worldview; and it demonstrates enormous potential as an alternative model to European environmental legislation. In a sense, it could be described as the ‘Climate Law of the Plurinational State of Bolivia’, in that it establishes the legal framework that resolves ambiguities in the interpretation of the rights enshrined in the 2009 Bolivian Constitution, and constitutes one of the greatest legislative successes of the Bolivian indigenous movement.
Firstly, its legal classification is that of a framework law. In other words, its regulatory content is cross-cutting and diverse; much like Law 7/2021 of 20 May on climate change and the energy transition (LCCTE) of the Spanish State, or the European Climate Law. It should be noted that, with regard to regulatory implementation, this Act is complemented by Act No. 031, the Andrés Ibáñez Framework Act on Autonomy and Decentralisation. Furthermore, the Framework Act on Mother Earth serves as implementing legislation for Act No. 071 on the Rights of Mother Earth, which formally recognises Nature as a subject of rights and enshrines its legal rights.
In essence, Law No. 300 sets out the ‘foundations of integral development in harmony and balance with Mother Earth for Living Well’. On the one hand, the concept of Integral Development for Living Well is defined as ‘the ongoing process of devising and implementing social, community, civic and public management measures and actions (…) to achieve Living Well in harmony with Mother Earth’. On the other hand, the concept of Living Well or Sumaj Kausay refers to the “alternative civilisational and cultural horizon to capitalism and modernity, which stems from the worldviews of indigenous, native and peasant nations and peoples, and is conceived within the context of interculturality”. Consequently, Law No. 300 regulates the institutional framework; planning; public administration; as well as the policies, regulations, plans, programmes and projects of the Plurinational State of Bolivia; with the aim of achieving ‘Living Well’ in harmony with Mother Earth. The idea of ‘Living Well’ permeates public policies and state laws as a guiding principle, which is referred to as the ‘comprehensive nature’ of the law.
Among the main objectives of the legislation are to promote “plural participation” in the defence of the rights of Mother Earth; to guarantee her restoration and regeneration; and to ensure social and climate justice, understood as “the right of the Bolivian people, and above all those most affected, to achieve Living Well through their holistic development”. Furthermore, it is stipulated that the pursuit of these aims must be guided by principles such as ‘Mother Earth as a collective subject of public interest’; ‘the collective and individual rights of indigenous and aboriginal peasant nations and peoples’; and the ‘non-commodification of Mother Earth’s environmental functions’. Provisions are also laid down regarding the rights and obligations of the Bolivian State in relation to land and territory, air, environmental quality, energy, waste management, climate change and education; thereby establishing it as an Environmental State governed by the rule of law. Furthermore, provision is made for the creation of the Plurinational Authority of Mother Earth as a strategic public-law body, and the Plurinational Council for Living Well in Harmony and Balance with Mother Earth as the body responsible for overseeing compliance with Framework Law No. 300.
Judgment No. 4360-2018 of the Supreme Court of Justice of Colombia (CSJC)
Judgment No. 4360-2018 of the Supreme Court of Justice of Colombia represents one of the most significant judicial decisions in the jurisprudence of the Earth and Latin American legal ecocentrism, in that it recognises the Colombian Amazon as “an entity, a subject of rights, and the holder of protection, conservation, maintenance and restoration, for which the State and the territorial entities comprising it are responsible”. Furthermore, it constitutes an exemplary case of climate litigation brought in Latin America; it was initiated by a group of children through the filing of a ‘tutela’ action against the Colombian State. Consequently, there is an exceptional convergence of the concepts of the right to nature, future generations and climate litigation.
The substance of the judgement reveals the worrying state of health of one of the planet’s greatest ‘lungs’ (6 per cent of the world’s surface area); and highlights the extraordinary importance of the biome for the survival of human beings and other animal species on planet Earth. As a result, the need to draft a proposal for a new law (lege ferenda) granting legal personality to the Amazon Rainforest—thereby establishing it as a subject of rights—has been introduced into the political debate.
The decision handed down by the CSJC is very similar to the landmark ruling 2656/18 of the German Constitutional Court (BVG). Both cases fall within the framework of climate litigation and show clear parallels in terms of formal structure; their line of argument regarding the state’s duty to guarantee; the principle of equity towards future generations; and extraterritorial liability. However, the key difference lies in the recognition of a natural ecosystem such as the Amazon Rainforest as a rights-bearing entity, as well as the CSJC’s particular understanding of the protection of individual rights as they intersect with the rights of future generations.
The children who brought the legal action argue that deforestation of the Amazon constitutes a violation of the individual right to the environment and of the rights of future generations, insofar as it contributes to an increase in greenhouse gas emissions and, consequently, to climate change. They maintain that the government has made national and international commitments to reduce deforestation to zero, which are not being fulfilled; between 2016 and 2017, the Colombian Amazon lost more than 2,100 square kilometres of natural forest under the government of former President Juan Manuel Santos Calderón (2010–2018). This demonstrates a serious lack of diligence on the part of the public authorities.
In Judgment No. 4360-2018, we highlight the following aspects of particular interest:
a) The CSJC implicitly recognises the Amazon Rainforest as a Global Public Good of Humanity (BPG or res communes omnium) when it clarifies that the conservation of the Amazon “is a national and global obligation; it is the planet’s main environmental axis, which is why it has been described as the ‘lungs of the world’”. Furthermore, the environmental legal principles of precaution, intergenerational equity and solidarity are applied.
b) The protection of the rights of future generations is addressed; in the Court’s words, this is based on the ‘ethical duty of solidarity amongst the human species and on the intrinsic value of Nature’. It is worth emphasising the interrelationship between the concepts of future generations and Nature as a subject of rights. Consequently, a breach of intergenerational equity is declared to be evident, with the assertion that future generations will face the effects of climate change during the periods 2041–2070 and 2071–2100. However, in BVG judgment 2656/18, the theoretical basis for the obligation to protect future generations lies in its constitutional nature, as well as in the equitable distribution of burdens between generations.
c) The principle of extraterritorial responsibility is invoked on the basis of the principle of solidarity; this establishes the Colombian State’s duty to halt GHG emissions caused by the destruction of the Amazon and to protect ‘not only the people inhabiting the national and Amazonian territories, but also those abroad (…) including ecosystems and living beings’. However, extraterritorial liability is not enshrined to the same extent as that established in BVG Judgment 2656/18, such as to oblige the Colombian State to protect victims of climate change outside its national territory as a consequence of Amazonian deforestation.
In short, the Colombian high court openly acknowledges that “despite the existence of numerous international commitments, legislation and case law on the matter, the Colombian State has not effectively addressed the problem of deforestation in the Amazon”. Likewise, it establishes the causal link between climate change (resulting from the deforestation of the Amazon rainforest with uncontrolled CO₂ emissions) and the violation of ‘fundamental rights’ (such as the right to water, air, a dignified life and health); in connection with the individual’s right to the environment and the rights of future generations.
Final conclusions
It is of vital importance to highlight the close relationship between the rights of nature and the rights of indigenous peoples; as well as to understand that the degradation of nature is a consequence not only of the loss and lack of legal protection of the rights of nature in particular, but also of a loss of control over the territories and rights of indigenous peoples in general. As indigenous peoples form an indivisible part of the solution to the conservation of the Amazon Rainforest, it is impossible to view the two in isolation from one another.
Taking into account the strengths and weaknesses of the European legislative model in comparison with the Latin American example, it would be necessary to propose the emulation and effective incorporation of the principles of Latin American eco-centred constitutionalism and the theory of the Rights of Nature into the political, institutional and legal systems of Western countries and into international law. However, their enshrinement at a legal or even constitutional level is not sufficient. It is necessary to implement judicial safeguards, increased public funding, technical tools and enforcement mechanisms to ensure their effective realisation. These have been shown to far exceed the practical effectiveness of environmental protection policies in the rest of the world, where ideas of anti-punitive approaches, soft law and conservationist principles predominate.
Against a backdrop of alarming environmental degradation, the Latin American eco-centrist proposal is gaining momentum. However, at present, its implementation in Europe remains a challenge, given the Western mindset and the prevalence of anthropocentric narratives. Nevertheless, there is still room for hope: in 2020, the ‘Proposal for a European Union Charter of Fundamental Rights of Nature’ was drawn up, a study commissioned by the European Economic and Social Committee with the aim of establishing legal recognition of the Fundamental Rights of Nature within the European Union. Furthermore, in 2022, the first European recognition of a natural ecosystem as a rights-bearing entity took place, through the adoption of Law 19/2022, which grants legal personality to the Mar Menor lagoon and its catchment area (located in the Spanish region of Murcia).
In short, climate change is a global challenge and a call for collective action by states, requiring coordinated and joint action, as its solution goes beyond their individual capacities. In this regard, the European Union is called upon to play a crucial role as a key player in global climate governance. However, the real challenge for the future lies in the effective recognition of indigenous peoples’ rights, as well as in acknowledging the indispensable role of indigenous peoples in the conservation, management and defence of the ecosystems they have historically inhabited and which sustain life; as both elements constitute central pillars of any truly transformative ecological, legal and political proposal.
By Leonardo Guzmán Benito, a lawyer and political scientist specialising in human rights and governance.
This article was selected as part of the Call for Papers by FIBGAR’s ALERTA Latam Observatory, aimed at students on the Master’s in Governance and Human Rights at the Autonomous University of Madrid. We thank the author for his valuable contribution to this forum for analysis and critical reflection on the challenges facing Latin America, and for his commitment to promoting human rights, justice and democracy in the region.
References
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