Constitutionalising Environmental Protection: How to Create a Right for Nature?
by Joey Gompels
In 1992, a ten year old boy in Costa Rica filed an appeal against the pollution of his local river and set a precedent in the nation for the rights of nature . Carlos Roberto Mejía Chacón and his supportive family couldn’t have imagined their frustration at poor waste management would lead to constitutional reform in the decade to come . The principle behind their success was simple: the dumping of rubbish in their local river and the waste build-up was a violation of the human right to life. The chamber of San José (local court) ruled that the right to life is reliant on clean waterways and healthy ecosystems and enforced a clean up by the local municipality as well as a functional waste management system . This broader point was unprecedented in Costa Rica: the idea that human rights could be applied to the environment as well as to individuals . Fast-forward to 2018 and a very similar line of reasoning was a key part of the multilateral Esaczú agreement in Costa Rica . The focus of this article will be how human rights and rights for nature interact and whether legal systems and treaties can be an effective vehicle for environmental protection and fighting the climate crisis.
The Esaczú agreement is a multilateral treaty signed by 24 countries to date and ratified by 12 . It takes its precedent from The Aarhus Convention, an international treaty promoting environmental democracy and transparency, adopted in 1998 . It is significant for multiple reasons:
- It is the first environmental agreement which spans across Latin America and the Caribbean.
- It is the only binding agreement stemming from the UN Conference on Sustainable Development (Rio+20)
- It includes specific protections for ‘environmental human rights defenders’ .
At the heart of the treaty is a desire ‘to combat inequality and discrimination and to guarantee the rights of every person to a healthy environment and to sustainable development’ . This goal will be realised through increased public participation, cooperation between nations and greater transparency . The third point is especially significant in Latin America, where land and environmental activists face dangerous consequences for trying to prevent damage to the environment . This is one model of creating rights for nature, by linking them to fundamental human rights.
There are questions to be asked, however, about how enforceable rights for nature are when formulated in this indirect way. If a right for nature is always linked to a human right, are we really assigning value to nature itself or just its use to humanity? In New Zealand, a different approach has been taken: The Whanganui River, which is 290km long and runs through the North Island of New Zealand, has long been sacred to the Maori people, specifically the Whanganui tribes who derive their name and spirit from the river . In 2017, the river made history when it became the first in the world to be formally recognised as a legal person . This was also the culmination of a lengthy court case. In both examples, it’s clear that the judicial system has an important role to play in protecting and creating rights for nature.
Both approaches have different merits. Some elements that made the solution in New Zealand viable may not be as effective elsewhere. In the argument for giving nature legal personhood, we will require different justifications in different cultural settings. The multilateral aspect of the Esaczú agreement shows collaboration between nations is possible on a human rights basis. The admission of greater responsibility by a region,rather than one exceptional nation, should give us hope. It’s clear across the board that the judicial system is a vital part of fighting to protect nature and constitutionalising rights for the natural world.
Joey is a Philosophy graduate interested in sustainable development, finance and the ethics of how we transition to a zero carbon economy. He would like to do further study in the application of law to fighting the climate crisis.
References Katarina Zimmer, ‘The human right that benefits nature’, BBC, https://www.bbc.com/future/article/20210316-how-the-human-right-to-a-healthy-environment-helps-nature, [accessed on 23/07/2021].
 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, United Nations, https://repositorio.cepal.org/bitstream/handle/11362/43583/1/S1800428_en.pdf, [accessed on 23/07/2021].
 ‘Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean’, United Nations,https://www.cepal.org/en/escazuagreement, [accessed on 23/07/2021].
 Aarhus Convention, European Commission, https://ec.europa.eu/environment/aarhus/, [accessed on 23/07/2021].
 ’Defending Tomorrow’, Global Witness, https://www.globalwitness.org/en/campaigns/environmental-activists/defending-tomorrow/, [accessed on the 23/07/2021].
 Kate Evans, The New Zealand river that became a legal person, BBC, https://www.bbc.com/travel/article/20200319-the-new-zealand-river-that-became-a-legal-person, [accessed on the 23/07/2021].