On the Emerging Rights of Nature as a Constitutional Issue: From Ecuador to Ireland and to the Recognition of Nature as a Legal Person With Constitutional Rights

 

 

For those who have not been following this, it is worth noting what now appears to be the start (slow enough for its supporters) of a movement to enshrine the rights of nature within national constitutions.  Following Ecuador's pioneering efforts in this respect (2006), and building in international efforts to advance the privileging sustainability, bio-diversity, and environment  (as a human right), in December a Report from an Irish governmental Committee has now considered advancing such a  proposition in Ireland.

The Committee noted the Assembly’s recommendation that Ireland adopt the human right to a clean, healthy and sustainable environment and the recommendation that the legal rights of nature be recognised. The Committee noted that nature is protected in many jurisdictions around the world and acknowledged the increased debate and conversations taking place across Europe and internationally around the rights of nature and the human right to a clean, healthy and sustainable environment. (An Comhchoiste um Chomhsaol & Ghníomhú ar son na hAeráide Tuarascáil maidir leis an scrúdú ar mholtaí na tuarascála ón Tionól Saoránach maidir le cailleadh na bithéagsúlachta (Nollaig 2023); Joint Committee on Environment and Climate Action Report on the examination of recommendations of the Citizens’ Assembly report on biodiversity loss (December 2023) 33/JCECA/15)

The Irish discussion of the parameters and approaches to the constitutionalization of this right (not of human in nature but of nature within human human social systems as a legal person) is well worth a read and follows below (Report pp. 11-15). Whether or not such a right will be realized, and whether or not the juridical personalities of key elements of the human ecology (nature, animals, etc.) are not just recognized but vested with fundamental rights, remains to be seen.  The issues are complicated--but the complications touch on what semiotics has already started exploring as "translation" and "conversion," in which the differentiated subjectivity of non-human selves is constituted and their interactions with human social systems rationalized to some extent.  These are issues central, for example, to the relationship between humanity to generative intelligence (see here and here).

Key recommendations made by the Committee are:

• The Government begin the preparatory steps to consider a referendum or referenda to protect our biodiversity through the incorporation of the rights of nature and/or the right to a healthy environment into the Constitution within the lifetime of the current Dáil, which includes the establishment of an expert group with resources to design and draft the potential question or questions.
• The calls to action as set out in the Children and Young People’s Assembly on Biodiversity Loss should be examined and considered for implementation by the relevant government departments.
• As a complement to the National Biodiversity Action Plan (NBAP), the Government, led by the Department of An Taoiseach, sets out and oversees, communicates and implements a strategic vision for the well-being of the people of Ireland, and the future of rural communities, farmer livelihood, and rural development.
• The Department of Further and Higher Education, Research Innovation and Science develops a strategy to support the national and EU ambition on biodiversity, soil, forestry and water, involving all agencies, higher education institutes and other organisations.
• A fundamental change in approach to environmental governance across government departments and that implementation and enforcement of existing environmental law be given priority.
• Action be taken to strengthen enforcement in relation to biodiversity and environmental issues across State bodies; and a review of enforcement resources and practises be undertaken to identify possible collaboration opportunities between relevant state agencies
• Legislation governing Coillte and Bord na Mona is urgently reviewed and amended to align with national and EU laws and biodiversity objectives.
• The delivery of the National Biodiversity Action Plan should be aligned with the Climate Action Plan and overseen in the same way from the Taoiseach’s office.
• A review of current and future taxation and levies with respect to their impact on biodiversity act to amend taxation and levies which result in perverse incentives to damage nature.
• All appropriate steps be taken to significantly improve water quality in line with the EU Water Framework Directive (Press Release 14 December 2023)
  

 

Rights of nature and the right to a clean, healthy,
sustainable environment
11. The Committee noted the Assembly’s recommendation that Ireland adopt the
human right to a clean, healthy and sustainable environment and the
recommendation that the legal rights of nature be recognised. The Committee
noted that nature is protected in many jurisdictions around the world and
acknowledged the increased debate and conversations taking place across
Europe and internationally around the rights of nature and the human right to
a clean, healthy and sustainable environment.
12. The Committee noted that in 2008, Ecuador enshrined the rights of nature in
its constitution and noted the Assembly’s recommendation that a referendum
be held to amend Ireland’s Constitution to protect biodiversity and to include
the substantive human right to a healthy environment and the procedural
environmental rights. Dr Ryall outlined that:

“the procedural environmental rights include the right to
information on the environment, the right to participate in
environmental decision-making and, the right to access to
justice in environmental matters”.

13. Ms Mari Margil outlined that Ecuador has the most robust enforcement and
implementation because the rights of nature have been enshrined within its
constitution for 15 years. The Committee noted the practical benefits for
nature as a result of these rights whereby mining permits have been adapted
to ensure fragile ecosystems and habitats are not affected and that
government decisions uphold the rights of nature. Thomas Linzey highlighted
that the law has been most effective with regard to cases brought by NGOs
seeking to stop permit issuances before Ecuador’s constitutional court.
14. The Committee acknowledged the stakeholder consensus that both the
substantive human right and the procedural environmental right go hand in
hand and that in order to effectively achieve the benefits associated, a
complementary approach must be taken. Dr Kelleher highlighted that potential
concerns with environmental rights include weighting those rights above other
fundamental rights or creating a toll that may be abused. The Committee
noted that while these concerns are valid, it should be acknowledged that all
rights must be balanced and existing rights will not be removed with the
addition of environmental rights.
15. Dr Ryall highlighted that enshrining something in the constitution sends a
powerful message across society that can impact political will:

“What I would say is that by constitutionalising something
it has to be seen in tandem with the existing body of law.
The two go together. It is not that we can see the
constitutional right as being separate. With the
constitutional right well-designed and well-implemented
domestic legislation, we really can bring about change.
There is no doubt in my mind that the Constitution
dimension has added value. It demonstrates that society
takes the environment seriously.”

16. While the Committee expressed concern that the complexities of a potential
referendum question would not be adequately thrashed out with the average
member of the public as it was at the Citizens’ Assembly, Dr Dobbs
emphasised that the Assembly’s recommendations around education and
public awareness should be frontloaded and embedded in advance of any
referendum to prevent misinformation and extreme viewpoints from taking
hold. Dr Ó Cinnéide emphasised the potential for a referendum to also
increase public debate and education around biodiversity issues.
17. While it was acknowledged that nature and environmental rights are
complementary, several stakeholders agreed that two separate questions
should be put to the public. Dr Kelleher emphasised that the wording of any
referendum would be key to providing a balance of rights and ensuring that
what is designed for Ireland is appropriate to the Irish constitutional context.
This would ensure that the constitutional amendment would be meaningful
and enforceable and that it complements the existing body of environmental
law in Ireland.
18. Dr Dobbs and Dr Kelleher further emphasised the importance of involving a
group of experts in the design and drafting of the question who understand
Ireland’s constitutional context and the existing international examples and
who would provide a broad expertise to inform the development of such
wording. While some Members expressed concern that two questions could
result in more human rights but no rights of nature, Dr Dobbs highlighted that
one question could run the risk of ending up with no rights at all. Dr Ryall
emphasised that whether a referendum should contain one or two questions
would depend entirely on the precise wording and how far it goes and what it
is trying to achieve.
19. The Committee noted the stakeholder view that the rights of nature should
also move into international agreements and instruments. Ms Margil
highlighted that debates are happening at an international level around the
integration of the rights of nature and the human right to a healthy
environment in international agreements. Dr Dobbs highlighted that while it is
important to look at developments in the international sphere, Ireland should
be supportive of legislation such as the Nature Restoration Law and drive
development at an EU level.