Guest Editorial: Symposium on the Rights of Nature and Constitutional Law

Yaffa Epstein

Uppsala University

Most of the world’s constitutions, at least 150 according to a 2019 UN report, include environmental protection. Many of these constitutional provisions oblige the state to protect the environment, while many others establish a human right to a healthy environment. Some constitutions contain both types of environmental provision.

Only Ecuador’s constitution, rewritten in 2008, contains an explicit right for the environment itself. Its preamble states a goal of building “A new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumak kawsay”.  Its chapter on the enforcement of rights declares nature to be a subject of rights as guaranteed in the constitution. Its groundbreaking rights-granting provisions state: 

Article 71. Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.

All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate.

The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.

Article 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.

Despite being enshrined in the constitution, it was not initially clear that these rights would have a legal impact. Early attempts by activists to litigate these rights provisions were largely unsuccessful. However, five cases decided by Ecuador’s Constitutional Court in the second half of 2021 have confirmed that the constitutional rights of nature are judiciable rights that entail binding obligations on the state and others. In his blog post, Professor Hugo Echeverria of Universidad de los Hemisferios, Ecuador, will analyze how substantive constitutional rights for nature have been developed and defined through these judicial decisions.

The constitutional protection of the rights of nature is not limited to jurisdictions that have explicitly constitutionally enshrined these rights, that is to say Ecuador. The Constitutional Court of Colombia, for example, held in 2016 that the Atrato river was a subject of rights, a decision followed by the judicial recognition of the legal personhood of various other national entities, including the Colombia Supreme Court’s 2018 declaration of the legal subjectivity of the Amazon ecosystem. As discussed by Dr. Mihnea Tănăsescu of Vrije Universiteit Brussel, Belgium, the legal recognition of nature’s rights intersects with constitutional law in a variety of ways. In his contribution, Tănăsescu uses the examples of Ecuador and New Zealand to contrast approaches to the constitutional protection of nature’s rights.

Rights of nature jurisprudence is perhaps most established in Ecuador and other Latin American countries, but instances of the legal recognition of rights of nature have occurred in over a dozen countries around the globe, including such diverse legal systems as New Zealand, Uganda, Bangladesh, and the United States. In Europe however, the legal recognition of natures’ rights has been minimal. Nevertheless, rights of nature are often present in the political conversation around environmental protection. In their symposium contribution, Alex Putzner of Sant’Anna School of Advanced Studies, Italy and Dr. Laura Burgers of the University of Amsterdam, Netherlands, discuss the status of proposals to recognize rights for nature in Europe, which have included several proposals for constitutional amendments. While these proposals have not gained traction thus far, successes in Ecuador, New Zealand and elsewhere may spur European activists and politicians to continue to advocate similar developments in Europe.

On the other hand, 2021 also saw several groundbreaking constitutional environmental rights cases in Europe, though these cases concerned the human right to a healthy environment and the rights of future generations rather than the rights of the environment itself. In my symposium contribution, I discuss the potential of rights for nature in Europe in contrast with the human environmental rights invoked in recent climate litigation.

The IACL Research Group on the Rights of Nature and Animals is grateful to present this online symposium in collaboration with the IACL blog. Thank you to our contributors, and thank you to Anna Dziedzic for editorial assistance.

Dr. Yaffa Epstein is a researcher in Environmental Law and Pro Futura Scientia Research Fellow at the Swedish Collegium for Advanced Study at Uppsala University, Sweden.

Suggested Citation: Yaffa Epstein, ‘The Rights of Nature and Constitutional Law’ IACL-AIDC Blog (15 February 2021) https://blog-iacl-aidc.org/nature-animals/2022/2/15/guest-editorial-symposium-on-the-rights-of-nature-and-constitutional-law.