Did the environment make it through the constitution? A South American perspective. However much attention environmental treaties receive in the mass media there¡¯s still an overwhelming lack of enforcement related to environment responsibilities and obligations. Despite of the 400 or more multilateral agreements on climate change on existence, paradoxically the implementation mechanism is barely at draft stage. The international order is sustain in a trust system, one can find compliance without penalties for transgressions. The disorder of the international order seems to have left behind the principle ¡°pacta sunt servanda¡± and with it the obligation of effectivization of ratified treaties. Under no circumstance must one undermine the crucial importance of international instruments and their implementation, but no matter how much is said in the international arena, the effectivization of environmental rights is seen at national level. Having said that, it remains a question to be made: what kind of legal and political recognition receive the environment at constitutional level? First of all, it seems necessary to explain the reasons why focusing on the national constitutional evolution and constitutional the recognition to a healthy environment are an imperative. The grounds to prioritize the constitutional analysis and to promote the constitutional development of environmental resources include: 1. reflecting the fact that environmental protection is a fundamental to ensure human rights; 2. strengthening poor environmental performance and preserving natural wealth and biodiversity; 3. protecting people¡¯s right to health and life, considering environmental hazards as a deprivation of core human rights; 4. clarifying the responsibility of all governments to protect the environment; 5. acknowledging that environmental rights and responsibilities are core elements of indigenous law; and 6. keeping up with the evolution of international law. Having said that, the systematization and quantification of the global current situation would be the next one:
| 149/193 | National Constitutions incorporate environmental protection provisions, while 44 are completely silent on the matter of environmental protection. | | 144/193 | Of them include government¡¯s responsibility to protect the environment in their constitutions imposing upon the state an obligation to conserve or protect the environment. | | 98/193 | Constitutions include substantive rights to environmental quality at constitutional level. 68 from them talk about the right to a healthy environment or an environment not harmful to health and 25 describe the right in terms of an ecologically balanced environment. | | 86/193 | Constitutional systems provide individual responsibility to protect the environment. However, 6 of them establish an individual responsibility but do not establish an individual right to a healthy environment or impose environmental obligations upon the state. | | 74/193 | Nations has recognized constitutionally the right to health. | | +40/193 | States include constitutional references to the rights, health or well-being of future generations. | | 31/193 | Countries constitutionally provide procedural rights specifically related to environmental protection, including the right to information, the right to participate in decision-making and the right of access to the judicial system to challenge government decisions, unconstitutional laws or alleged violations of individual rights. | | 21/193 | National constitutions include the right to food. | | 20/193 | Nations has established constitutional requirements for the protection and/or provision of clean water. | | 15/193 | States has established that the enforceability of government duties to protect the environment appears to be explicitly precluded. | | 15/193 | Constitutions specifically restrict the use of private property when that use could cause environmental damage. | | 13/193 | Countries established constitutionally that certain rights, including the right to a healthy environment, may only be invoked according to specific conditions that must be set forth in legislation. This is described as a constitutional provision that is not ¡°self-executing.¡± | | ¡¾12/193 | Constitutional and Supreme courts in at least a dozen nations have ruled that the right to a healthy environment is an implicit and essential element of the constitutional right to life, amplifying the constitutional block. | | 2 /193 | States recognize the right of nature. |
At first glance, one could definitely make ¡®the¡¯ statement, in spite of the multiplicity of international documents ratified by the States, the right to the environment is recognize in slightly more than a half of the international community. Not only shall be remarked that less than 25% of the members of the United Nations have constitutionally recognized the right of future generations, but also that there¡¯s an 84% of the General Assembly which has not provided procedural rights. Furthermore, less than 11 % of the countries have established requirements for the protection and provision of clean water and the effectivization of the right to food. Nevertheless, what is not surprising is the fact than less than 8% of the world has constitutional regulations restricting the use of private property when it can cause environmental damage.
| Year of first constitutional recognition to the environment | Country | | 1979 | Peru | | 1980 | Chile, Guyana | | 1984 | Ecuador | | 1987 | Suriname | | 1988 | Brazil | | 1991 | Colombia | | 1992 | Paraguay | | 1994 | Argentina | | 1996 | Uruguay | | 1999 | Venezuela | | 2002 | Bolivia | When it comes to the South American situation, an astonishing advancement has been done over the years, being one of the world¡¯s regions which all members have implemented some sort of constitutional resource recognizing the environment. Since 1979 South America has progressively provided constitutional protection to the environment and the collective rights of the people. During the ¡¯90, the words ¡°collective rights¡± in countries like Argentina, Colombia and Venezuela have become the way to introduce this third generation of human rights, having Brazil, Venezuela, Argentina, Ecuador and Bolivia will be art of the avant-garde including the importance of a balance environment. If we divided the main categories as it is proposed in David R. Boyd document ¡°The Status of Constitutional Protection for the Environment in other nations¡±, one could say that the four main resources to be constitutionally protected are: Substantial Environmental Rights, Procedural Environmental Rights, Individual Environmental Responsibility, and Government Environmental Duty. Having said that, it is fundamental to analyze the presence of these at constitutional level in the region: | Country | Substantial Environmental Rights | Procedural Environmental Rights | Individual Environmental Responsibility | Government Environmental Duty | | Argentina | Yes | Yes | Yes | Yes | | Bolivia | Yes | Yes | Yes | Yes | | Brazil | Yes | Yes | Yes | Yes | | Chile | Yes | Yes | No | Yes | | Colombia | Yes | Yes | Yes | Yes | | Ecuador | Yes | Yes | Yes | Yes | | Guyana | Yes | No | Yes | Yes | | Paraguay | Yes | No | No | Yes | | Peru | Yes | No | No | Yes | | Surinam | No | No | No | Yes | | Uruguay | No | No | Yes | Yes | | Venezuela | Yes | Yes | Yes | Yes | Fortunately, all the countries of the south side of The Americas -Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Surinam, Uruguay and Venezuela- have ratified at constitutional level the government duty to protect the environment and the natural resources. However, there¡¯s just an 82% of the States - Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru and Venezuela- that has not constitutionally recognized the substantial rights at constitutional level, which however doesn¡¯t mean it is not incorporated in their constitutional block. Nonetheless, despite the 75% of constitutional recognition -Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana and Venezuela- of individual responsibilities and the non constitutional legal adherence of Peru to this, there are still 58% of the countries which have not made any provision ensuring the procedural environmental right of the people. It has been said a priori that some countries could have not explicitly remarked some of these resources at their national constitutions, but it doesn¡¯t mean they are not part of their constitutional block. Some of the most highlighted expansive and comprehensive constitutional blocks are the followings: - espite of the fact that Argentina added to its constitution the right to a safe and clean environment in 1994, according to its own courts the right was implicit in the right to life: ¡°the right to live in a healthy environment is a fundamental attribute of people. Any aggression to the environment ends up becoming a threat to life itself and to the psychological and physical integrity of the person, which is based on ecological balance.¡±
- Although the right to a healthy environment has been part of the Peruvian constitution since 1993, several courts decisions recognized beforehand the link between the environmental rights and the right to life: the Supreme Court ordered the suspension of economic activities due to the possibility of an environmental hazard and the implicit right to a healthy environment. Furthermore, the environmental rights were held to enable citizens to protect collective interests despite an absence of direct harm.
- It is well known that Uruguay, as it was said before, doesn¡¯t have a constitutional provision recognizing the individual and collective rights to the environment. However, Uruguayan legal experts argue the right is actually implicit in the national constitution. Additionally, the right to a safe and clean environment has been also recognized explicitly in Uruguay¡¯s framework environmental law.
On one hand, the private sector regulation with just a 42% of the region - Bolivia, Brazil, Colombia, Ecuador, and Venezuela- establishing restrictions to the use of private property when it could lead to environmental hazards. However, there¡¯s a clear progress made to protect the environment, from individual right limitations in Chile, Colombia, Ecuador and Paraguay to socio-economical development limitations in Argentina, Bolivia, Brazil, Paraguay and Venezuela. Having said that, it won¡¯t come as a complete shock that most of the countries -Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Uruguay and Venezuela- has explicitly determine the individual and collective responsibility that comes for actions and omissions when it comes to the transgression of an environmental obligation. Furthermore, the natural resources sustainable administration and proper eco-friendly land-use management have become a constitutional instrument in Bolivia, Colombia, Ecuador, Peru, Uruguay and Venezuela. In no way can be denied the Revolutionary steps have been taken by the South American region, as a primal example Bolivia, Brazil, Colombia, Ecuador and Venezuela going beyond of the classic constitutional resources recognizing the public interest of the environmental matters or the explicit provision of the protection of the biodiversity in Argentina, Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru and Venezuela. Although the major progress can be summarized in five categories: - the empowerment of an independent agency (Public Ministry) to protect collective interest, including the environment, in Brazil, Paraguay and Colombia, among others;
- the constitutional recognition of the national sovereignty over the natural resources made by Bolivia and Peru;
- the protection of humankind heritage and the right of future generations explicitly found in the Constitution of Argentina, Brazil, Guyana, Uruguay and Venezuela;
- the people authority over the government measures and decisions related to environmental issues, understanding the environment as a people¡¯s good in: Bolivia and Ecuador; and
- the recognition of rights of nature in Ecuador in 2008 and in Bolivia in 2009, the first two countries in the world highlighting the rights of ¡®Madre Tierra¡¯ or ¡®Pachamama¡¯.
Following this line of argumentation, one could affirm that South America, as a developing region, has a better developed constitutional system when it comes to environmental law than the so-called developed countries. Not only has the region positioned itself at the avant-garde of environmental rights, but also has it showed us the rise of Latino Americanism, which takes into account the state sovereignty over the natural resources, next generation¡¯s rights and people sovereignty over the environmental decisions.
References: [1] Susskind, Lawrence. ¡°Strengthening the Global Environmental Treaty System.¡± Issues in Science and Technology 25, no. 1 (Fall 2008). Boyd, David R. The Status of Constitutional Protection for the Environment in other nations - David Suzuaki Foundation, November 2013. Art. 41, Argentina Constitution.
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