Nowadays there is a debate on how phenomena such as environmental constitutionalism can be defined, as there is neither an unambiguous definition nor a dominant theory. However, it can be said that this phenomenon is generally defined as the inclusion at the constitutional level of articles and principles to protect the environment. Even if one looks beyond the intellectual debate on the subject, the reality presented to us is far from homogeneous and easy to understand.
A fundamental taxonomy
One of Italy's leading experts on environmental constitutionalism, Professor Domenico Amirante, states that, from an environmental perspective, there are three types of constitutions in the world: environmental constitutions, revised environmental constitutions and silent environmental constitutions. The characteristic feature of this first category of constitutions is that they have within them articles, or a section specifically dedicated to the environment from the moment the legislative text is drafted. These texts are predominantly very young, as the international community's interest in the environment began to develop in the 1970s with the Stockholm Conference. The second category includes those constitutions including articles that protect the environment within them, but which were included only after a text revision process, as the name implies, and are therefore included in a constitutional system that is not fundamentally oriented toward nature protection. They are therefore characterized by a significantly weaker commitment than "pure" environmental constitutions. Most constitutions in the developed global North fall into this category. The last type of legislative text is one that does not include any rules with an explicit function to protect the environment, which is therefore delegated to lower-ranking legislatures and to the decisions of individual judges.
Brief history of environmental constitutionalism
The previously mentioned 1972 Stockholm Conference is fundamental to our analysis. While not producing any binding documents for States, it led to the establishment of the United Nations Environmental Program (UNEP) and greatly influenced domestic and international policies. After Stockholm, several countries began to amend their constitutional texts, or when new ones were written it was increasingly common for them to include provisions for the environment. In this phase, European constitutions, especially the Spanish and Portuguese ones, were true pioneers.
The beginning of the next phase, however, can be traced back to the 1990s with the Rio de Janeiro Conference in 1992, a historic moment with the signing of documents such as Agenda 21 and the Rio Declaration. The Rio Conference renewed international interest in environmental issues and coincided with a period of great renewal in all areas due to the end of the Cold War and the collapse of the USSR shortly before. The coincidence of two such major historical events allowed for further development of environmental constitutionalism within the path of constitutional reform that the former Soviet area was going through at that time. The most important example from this period is the reform of the German constitution, which saw the insertion of Article 20a, which affirmed the State's duty, as an obligation to future generations, to protect the "natürlichen Lebensgrundlagen," or the "natural foundations of life."
This concept, however, does not correspond to the protection of the environment, which is not explicitly mentioned in the article, a feature of the tendency to compromise that characterizes all revised constitutional texts.
The turning point of the Global South
The real turning point in this area occurred with the beginning of the new millennium, when in many new constitutions, predominantly of States in the Global South, environmental protection became one of the core values of the State. One plausible explanation is that States in the so-called "Global South" are on average newer and therefore have younger constitutional texts that embody more modern ideals, but is this explanation sufficient?
Perhaps the most interesting phenomenon of this period, and for this analysis, is the so-called "new environmental constitutionalism," which originated in Latin America but, according to Almirante, spread throughout the Global South. The constitutions of Bolivia and Ecuador can be considered the most important. The preamble of the Bolivian constitution, in fact, mentions the Inca deity Pachamama (Mother Earth), turning it, so to speak, into a founding moral principle of the Bolivian State. In Article 8 of the text, in fact, a series of ethical principles belonging to indigenous culture are included that focus on living in harmony with this entity, encouraging present generations to preserve Mother Earth for the sake of future generations (Art 9.6). The right to a healthy environment and to take legal action in its defense is made explicit in Articles 33 and 34, in a section specifically dedicated to it. In the case of the Ecuadorian constitution, there is a section called "Rights of Nature," implying that Pachamama, here interpreted as the place where life reproduces and exists, is an entity with rights (Articles 71-74); and the responsibility to preserve it is a task that extends to individual citizens as well (Art. 83.6). It also introduces an individual dimension. A similar responsibility can also be found in Bhutan's constitution. The Latin American constitutions are only the most prominent examples, but the constitutions of South Africa and Tanzania employ similar indigenous principles.
The application of panistic indigenous views to an issue such as the inclusion in a constitutional text of norms and principles to protect the environment could be a sign of an alternative vision. Some scholars agree that if major polluting countries want to evolve the protection that their constitutions, but also ordinary laws, give to the environment, they must necessarily engage in a dialogue with these new models and move beyond the anthropocentric relationship that still characterizes law today.
Translated by Denise Praticò.
Bibliography:
Domenico Amirante and Silvia Bagni Environmental Constitutionalism in the Anthropocene (1° edition, 2022, Routeledge)
https://www.un.org/en/conferences/environment/rio1992
https://www.gesetze-im-internet.de/gg/GG.pdf page 7
https://www.pul.it/cattedra/upload_files/310/Legge%20fond.Repubblica%20Federale%20di%20Germania.pdf page 10
https://www.environmentandsociety.org/arcadia/constitution-republic-ecuador-pachamama-has-rights
https://www.un.org/en/conferences/environment/stockholm1972
https://www.limesonline.com/rubrica/bolivia-evo-morales-e-il-modello-costituzionale-indigenista
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Filippo del Monte Alia
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environmental rights constitution