CONSTITUTIONALISM AND THE RIGHTS OF NATURE

THE SOUTH AMERICAN EXPERIENCE IN A COMPARATIVE PERSPECTIVE

Resumo

Since the 1970s, the constitutional protection of the environment has become a central subject of constitutionalism. Triggered by normative production in the international field and by the strengthening of environmental movements across the globe, the constitutional protection of the environment was projected as a legal trend that circulated through different constitutional systems. This circulation dialogues with the most diverse legal traditions and cultures, which represent acquisitive evolutions to the democratic constitutionalism’s common heritage. The most recent constitutional cycle in South America, which came about with the 1988 Brazilian Constitution, was greatly enriched by the most recent Andean constitutions, such as the Ecuadorian (2008) and Bolivian (2009). These constitutions are characterized by a “biocentric turn” in what it refers to the protection of the environment and biodiversity. The Ecuadorian case innovates in particular by providing in the constitution for the protection of “the rights of nature” (art. 71). More recently, the Chilean Constituent Assembly – established after several social protests in the country’s public sphere – also recognized the rights of nature in its new Constitution Project, precisely in article 9. Therefore, it can be considered as a new element in the circulation and dialogue of constitutional models of environmental protection in South American countries, being it an innovative contribution from this part of the globe. Taking it into consideration, the aim of this article is to analyze in a comparative perspective the protection of the rights of nature in the 2008 Ecuadorian Constitution and in the Chilean Constitution Project, which is being carried out by the current National Constituent Assembly. It is inscribed in the field of comparative constitutional law, in a functional-structural perspective, grounded on the study of law in the grammar of constitutional policies, carried out through a hypothetical-deductive approach. The hypothesis states that the protection of the rights of nature can be conceived as a new political, legal and epistemological frontier of environmental constitutionalism in South America and may be considered as a trend in the subcontinent and in other parts of the globe. The article is divided into three parts: I – Environmental constitutionalism: conceptual and historical elements; II – Constitutionalism and the rights of nature in 2008 Ecuadorian Constitution; III – The rights of nature in the Chilean Constitutional Project in a comparative perspective.