Aruba is proposing to include in its Constitution a human right to a clean environment alongside a right of nature to “protection, conservation, and restoration of its ecosystems and biodiversity”, as first reported by Inside Climate News. Under the proposed amendment, the Aruban government would be required to take preventative measures to protect its inhabitants against the adverse impacts of climate change. Moreover, to directly protect nature, the government must take measures to prevent irreversible damage to ecosystems and biodiversity in the country.
The proposed Constitutional amendment is subject to a public consultation period before the proposal will be sent for parliamentary approval. If approved by the Aruban parliament, the proposal will also need sign-off from the Kingdom of the Netherlands. If successful, the amendment will form a strong basis for future legal action to protect Aruban citizens from climate change and to protect nature from human-caused degradation.
Proposed Amendment to the Aruban Constitution
According to the recitals of the proposed Constitutional amendment, Aruba recognises that there is a “structural lack of protection and conversation of nature” and that such protection and conservation will benefit current and future Aruban generations. The strong link between the well-being of nature and the well-being of humans underpins the proposed amendment. The proposed amendment also references United Nations Resolution A/RES/76/300, dated 28 July 2022, which promotes the human right to a clean, healthy, and sustainable environment.
Verbatim, the proposed Constitutional amendment is as follows. A first article is to be added to the Aruban Constitution stating:
“(1) Every person has a right to a clean, healthy, and sustainable environment. (2) The government shall take preventative measures to protect from adverse climate change impacts”.
On the topic of rights of nature, the following two articles are to be added:
Article Ia.1:
“(1) Nature, on land and in water, is entitled to protection, conservation, and restoration of its ecosystems and biodiversity, and to the regeneration of its life cycles, structure, and functions.
(2) Nature and the environment are topics of continuous concern of the government.
(3) By national ordinance, regulations shall be established for the protection and management of nature and the environment.
(4) By national ordinance, additional protective rights may be granted to defined ecosystems.
(5) The government shall take measures to prevent irreparable damage to ecosystems and the extinction of animal and plant species.
(6) Every five years, the government shall report on the state of nature to the legislature”.
With these specified amendments, Aruba hopes to refocus its Constitution from an ‘anthropocentric’ one to an ‘ecocentric’ one. As it stands, it is argued that the current legislative framework does not provide comprehensive protection to nature. Aruba currently has a State Ordinance Nature Conservancy (Natuurbeschermingsverordening), which promulgates that it is forbidden to cause (intentional) damage to defined groups of flora and fauna. The groups included under the State Ordinance are extremely limited.
The Constitutional amendment would not yet grant any specified rights to nature but would allow for these rights to be granted to delineated ecosystems. Note the interesting decision to delineate ecosystems rather than certain areas. Ecosystems are much more flexible and may span across several areas or different areas from time to time.
Climate Injustice in Netherlands’ Overseas Territories
Aruba is part of the Kingdom of the Netherlands, which consists of the European Netherlands and several Caribbean islands (Aruba, Curacao, St. Maarten, Bonaire, St. Eustatius, and Saba). Research found that these islands are much more vulnerable to climate change than the European Netherlands, yet the European Netherlands has a much larger contribution to climate change.
Yet, different levels of impact are not the only sign of inequality between the European and Caribbean parts of the Netherlands. Whereas the Netherlands has made certain emissions reduction commitments for its European territory, these do not apply to the Caribbean territories. This was highlighted very recently when inhabitants of Bonaire, another Dutch-Caribbean island, sued the Dutch government for human rights violations and a lack of climate action outside the European Netherlands. In this ongoing case, the Bonaire citizens argue that they are treated as second-class citizens of the Netherlands, as the islands are not even considered for impactful climate action by the Dutch government, despite larger suffering from climate change’s adverse impacts.
Moreover, being part of the Kingdom of the Netherlands, the Dutch-Caribbean islands do not qualify for international assistance. They are not treated equally to other vulnerable nations which require support and financing for mitigation and adaptation measures. In other words, the international community expects the Kingdom of the Netherlands to take responsible climate measures for its Dutch-Caribbean islands. Following the Bonaire lawsuit, it is obvious that these measures are barely existent.
As such, enshrining the human right to a safe and healthy environment and allowing for nature to be given rights is a sign of Aruba taking matters into its own hands. Aruba is single-handedly tackling climate injustice arising from its unequal status to the European Netherlands, where the government continues to fall short of protecting all its territories equally.
Importance of Constitutional Rights of Nature Beyond Aruba
The ‘rights of nature’ movement has been growing across the world in recent decades. The idea originates from the legal-philosophical 1972 academic article, “Should Trees Have Standing”. The author, Christopher Stone, had written the article with regard to a then-ongoing case, Sierra Club v Morton. The dissenting federal judge in the case wrote an opinion in which he used Stone’s work, stating that parts of the environment should be able to defend ‘themselves’ in court, for which they need to be granted legal personhood.
Fast forward to today, the idea of rights of nature has been developed extensively in academia and the courts globally. The advances in rights of nature in the world have been documented by the Global Alliance for the Rights of Nature. The first country to recognise the rights of nature in its constitution was Ecuador in 2008. The following year, the first lawsuits were brought in Ecuador to uphold the rights of certain ecosystems. If Aruba’s proposal succeeds, it would become the second country in the world to enshrine the rights of nature in its Constitution.
By including rights of nature in a country’s constitution, they become enduring and of superior legal value. It also adds a strong ethical weight to upholding the rights of nature. Every other legal obligation on any other person in the country would have to be interpreted in light of the constitutional right of nature.
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