'The Recognition of the Rights of Nature in Latin America – The Lost Linkage with the Rights of Future Generations' by Luis A. López Zamora in Hélène Ruiz Fabri, Valérie Rosoux and Alessandra Donati (eds) Representing the Absent (Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, 2023) comments
This Chapter involves a study on the Rights of Nature (RoN). RoN comprehends the establishment of a set of specific rights, as well as the recognition of a new legal subject (nature) at the national and at the international levels. For example, on the international level, various international forums slowly envision nature as a potential right holder. Even though this has yet to transpire in formulating and adopting an international treaty establishing that, the language of the RoN now commonly appears in different international soft law documents. Latin American jurisdictions have served as inspiration for those documents, since the recognition of RoN in the region has been considered as paradigmatic. However, the regional recognition of nature's rights has not been free of ambiguities, especially when it is considered together with the recognition of another new legal entity: the Future Generations. The interactions between those new right holders in Latin America have been scarcely studied; this contribution seeks to fill that gap.
Recognising the Rights of Nature (RoN) is part of a global trend, in which Latin America has been considered a success story. Specialised scholarship highlights that in some Latin-American jurisdictions, the recognition of RoN has been enshrined at the constitutional level or, alternatively, pro‐ claimed by constitutional courts or tribunals. According to the scholarship on the subject, such recognition entailed a breakthrough in protecting nature as it extends legal protection to the environment for its intrinsic value. The purpose of this Chapter is to subject that statement to critical analysis. Unlike much of the regional and international scholarship that has studied the rise of the RoN in Latin America, we will not assume that such recognition has occurred innocuously or that – in any case – it has not caused complications in the legal systems where RoN have been incorporated.
To demonstrate our position, we will take into account two tendencies we have observed during the course of this research: (a) Recognition of the RoN in the region has been executed without a detailed explanation of why this process was necessary. Some of the questions that remain unanswered are: Was the recognition of the RoN vital, bearing in mind that there were already legal frameworks in place in the Region protecting the environment? Was the recognition of the RoN warranted, bearing in mind the cost of implementing a new set of rights? (b) It is a fact that that recognition usually occurs in connection with the implementation of the rights of future generations. It should be borne in mind that in both scholarship and adjudication these two sets of rights have been considered together as if they were part of a similar phenomenon. Indeed, the proclamation in the region of the RoN is usually followed by references to the rights of future generations. Are those two sets of rights connected? Furthermore, if they are connected, how does their normative interplay transpire?
To find answers to these questions, we will consider the legal reasons behind the recognition of the RoN in Latin America. This issue has scarcely been explored. That exercise will allow us to observe that the primary reasons for recognising the RoN have been procedural-based. For example, the proclamation of the RoN leads to the recognition of nature as an entity capable of holding rights – therefore – as a legal subject. As a result, nature has access to proceedings that are capable of protecting its interests, which were previously non-existent. Some of these proceedings are constitutional remedies which can protect nature directly. Another example of the proce‐ dural reasons behind the recognition of the RoN is that through those rights, the rights of future generations can be made effective. To explain this, it is important to bear in mind that the implementation of the rights of future generations faces theoretical and practical limitations. For example, in a dispute settlement context it is difficult to concretely determine the rights or interests of future generations. Without that determination, these rights and interests are merely rhetorical recognitions with no practical application.
After reviewing the procedural reasons for the recognition of the RoN mentioned above, we have found that in both cases the RoN have been formulated directly or indirectly in connection with the rights of future generations and -in some cases- with the sole purpose of making the imple‐ mentation of those rights possible. This suggests that the recognition of the RoN in Latin America has not been based on the value nature possesses in and of itself, but for the service it can provide to human interests. We will consider the inconsistency of that outcome, and the theoretical incompatibility between the Latin American practice in the matter and the reasons why the RoN were formulated in scholarship in the 1970s.
To explore all these points, we will begin (in Section 2 of this Chapter) by describing the emergence of the RoN in law and the particular theoret‐ ical discourse that promoted its recognition. At the same time, we will consider a similar trend that led ultimately to recognising the rights of future generations. In Section 3, we will describe the emergence of the RoN in Latin America and the considerations that scholarship has given to that process. With that in mind, we will revise the antecedents that allowed na‐ ture’s personhood to be recognised in the region, such as the relativisation of humans’ monopoly on the legal subjectivity given the recognition – to a certain extent – of animals’ rights. In Section 4 we will review the recogni‐ tion of the RoN in the jurisdictions of Ecuador, Bolivia and Colombia, and inquire into the reasons that led to that process. This exercise will allow us to see that the recognition of the RoN and its utilisation for procedural reasons is due to the lack of theoretical differentiation between the interests protected through the RoN and those protected through the rights of future generations. We will then explain how that lack of differentiation can have theoretical and practical implications.
The Australian Treasury has meanwhile announced settlement of the proceeding commenced in the Federal Court of Australia by Kathleen O'Donnell against the Commonwealth (Proceeding No VID482/2020).
This statement is published on the websites of the Department of Treasury and Ms O'Donnell's solicitors (Equity Generation Lawyers).
In the proceeding in the Federal Court, Ms O'Donnell claimed that the Commonwealth failed to disclose information relating to climate change in connection with the issue of Exchange‑traded Australian Government Bonds (eAGBs).
The parties have agreed that Ms O'Donnell will discontinue the proceeding with no order as to costs when the Court has approved this settlement. Climate change is a systemic risk that presents significant risks and opportunities for Australia's economy, regions, industries, and communities. Achieving Australia's emissions reduction commitments and realising the opportunities that accompany the transition will require significant investment by governments and the private sector. Uncertainty around the magnitude and timing of the physical impacts of climate change and the global transition to net zero emissions translates to uncertainty about the fiscal impacts of climate change. And, as a consequence, there is uncertainty about whether the fiscal impacts of climate change may affect (if at all) the value of Commonwealth Government Securities (also known as Australian Government Bonds or AGBs) and, in turn, eAGBs.
x The economic and climatic changes brought about by climate change will have fiscal impacts. For example, the new industries and jobs emerging from the net zero transformation will impact the structure of the economy and, in turn, the tax base. Extreme weather events are also expected to occur with increased severity and frequency, which will increase demand for disaster relief payments and infrastructure repairs. Statement 3 of the 2022–23 October Budget outlined the drivers and nature of these fiscal impacts in detail, as well as the climate-related spending being undertaken by the Australian Government to respond to climate change.
The 2023–24 Budget continues this practice by transparently reporting $4.6 billion in new climate‑related expenditure. This is further to the historic $24.9 billion in new climate‑related spending announced in the October 2022–23 Budget and is additional to ongoing climate‑related expenditure initiated prior to these budgets. The Government's approach to reporting climate‑related spending is informed by the climate‑reporting practices of international peers and is presented within the context of international best practice, as well as contributing to work underway to strengthen transparency in future budgets.
The Government is developing a package of sustainable finance reforms, including the establishment of a sovereign green bonds program and regulatory reforms, to increase the transparency and credibility of Australia's growing sustainable finance market. The Government's intention is that these reforms will assist investors to align their investment decisions with net zero emissions targets and increase the flow of capital toward new opportunities that support Australia's net zero pathway. In accordance with the requirements of the Climate Change Act 2022 (Cth), the Commonwealth will continue to publish an Annual Climate Change Statement. Among other things, the Annual Climate Change Statement addresses the risks to Australia from climate change impacts, such as those relating to Australia's economy. ....
The Commonwealth acknowledges that:
As part of investors' strategic responses to the risks and opportunities presented by climate change, investors are making commitments to reduce emissions associated with their investment portfolios.
Credit rating agencies and other stakeholders are increasingly examining the relationship between climate change and sovereign bonds. There is currently no internationally agreed framework for assessing any climate‑related risks and opportunities associated with sovereign debt instruments.
The Commonwealth will continue to engage with asset owners and relevant stakeholders to ensure that investors are informed as to the Commonwealth's policy settings and actions in relation to the risks and opportunities posed by climate change.
