The risk Chile takes by establishing 'rights of nature'

Chile is at risk of further complicating its environmental legal framework by granting ‘rights of nature’, as included in the draft constitution that will be voted on in a referendum on September 4, according to Jorge Viñuales (pictured), professor of law and environmental policy at the University of Cambridge.

“This is both vanguardist and anthropocentric, since it equates nature with an individual,” Viñuales told BNamericas, adding that this could be more complicated than it looks.

“What we call nature is, from a scientific standpoint, an extremely complex object with both a microscopic and macroscopic dimension. In this infinite range of faces of nature, it’s not clear who’s subject to these rights, what these rights exactly are, and who can exercise them,” he said. 

While he does admit that rights of nature could serve as a more robust concept to protect the environment, as other concepts such as sustainable development normally end up in practice putting economic development above environmental protection, Viñuales says that there are other, more effective alternatives to achieve that goal. 

“Even those rights, like any other subjective right, have legitimate restrictions,” he said.

Viñuales also said it is likely the measures passed by the constitutional convention drawing up Chile’s new constitution will eventually lead to conflicts regarding issues such as trade and foreign investment.

“From the point of view of international law, constitutional law is seen simply as domestic law and, subsequently, in a lower hierarchic plane,” he said, adding that this could also mean renegotiating existing agreements, something that has been called out by other critics to the constitutional proposal. 

These include possible effects on key industries such as mining and agriculture, as well as possible clashes with human rights such as access to water and housing.

As for how other countries handle this issue, Viñuales said that there is no set definition of “ecological constitutionalism,” but several constitutions make explicit references to environmental protections using different concepts. 

“Each concept used, be it environment, nature, natural resources, etc, has important implications for its legal function,” he said, but admits that, in general, environmental protections are only enacted when they do not have adverse economic consequences. 

In practice, this means “development as green as possible, but development before all else,” according to the academic.