In the recent session of Peru’s Congress, the Andean, Amazonian, Afro-Peruvian, Environmental, and Ecological Affairs Committee approved Legislative Reports advocating for nature’s legal recognition as a rights-bearing entity. These reports establish specific legal protections to ensure nature’s existence, natural development, regeneration, restoration, and evolution. In light of this development, this article explores the foundations of climate and social justice, and emphasizes the importance of enacting laws that recognize nature’s rights. Such laws help understand unequal human-nature relationships, worsened by the climate crisis, and disproportionately affecting vulnerable populations. As we explain, the new law aims to uphold the rights of indigenous peoples and rural communities in Peru, mitigate inequalities, and bolster their defense in climate-related litigation.
The path to the approval of the Legislative Reports
One of the initial procedural steps towards advancing the Legislative Reports involves legislative Bill N° 2226/2021-CR. Introduced on June 1, 2022 by Congresswoman Ruth Luque, the bill’s primary objective is to establish a cohesive and equitable relationship among nature, the environment, and all sentient beings inhabiting it, thereby facilitating their organic development. The bill is grounded in a comprehensive framework of principles: i) indubio pro natura, ii) prevention, iii) precaution, iv) social and climate justice, v) interdependence, vi) compatibility, and vii) complementarity of rights, obligations, and responsibilities, fostering harmonious symbiosis, equilibrium, and equity. These principles guide both governmental entities and private stakeholders towards safeguarding the inherent rights of nature and the entities dependent on her ecological balance.
In the same vein, Bill N° 2226/2021-CR adopts a rights-oriented approach, which delineates the entitlement of peasant communities and indigenous or native peoples to receive respect, protection, and participation through their representative organizations from the State, grounded in their intrinsic connection with nature. Moreover, it is pertinent to underscore the establishment of a competent body tasked with ensuring adherence to this legislation: the National Authority for the Protection of nature, under the auspices of the Presidency of the Council of Ministers. This entity’s mandate encompasses the development of intersectoral public policies, formulation of recommendations for sustainable utilization of natural resources, and alignment and oversight of prevailing policies, programs, projects, and plans in accordance with the precepts of the enacted law.
Another pivotal legislative initiative shaping the Legislative Reports is Bill N° 6638/2023-CR, introduced on December 12, 2023 by Congresswoman Silvana Robles Araujo. This bill significantly extends the ambit of Bill N° 2226/2021-CR by affirming the entitlement of all individuals, both natural and juridical persons, as well as communities or indigenous peoples, to demand adherence to this statute from the public administration. Beyond upholding principles akin to its predecessor, it introduces novel doctrines such as the burden of proof principle in environmental contexts and the restoration and regeneration of nature.
Bill N° 6638/2023-CR underscores the state’s obligation to preclude substantial impacts on nature and abstain from curtailing the exercise of fundamental rights, especially for groups designated under special protection. Furthermore, it proposes specific mandates for the Ministry of the Environment to safeguard the rights of nature, encompassing the formulation of interdisciplinary public policies, procedures, proposals, and directives geared towards advancing environmental sustainability and championing the rights of indigenous and native peoples within the legislative framework. In relation to the latter, the bill mandates the state to ensure their respect and participation in safeguarding their intrinsic nexus with nature.
The Legislative Reports resulting from the aforementioned two bills endeavor to acknowledge nature as a rights holder and subject to protection as mandated by the constitutional obligation of the State. This necessitates assigning distinct value and protection to ecosystems in order to preserve their equilibrium with living beings. The Legislative Reports are founded upon several fundamental principles: i) in dubio pro natura, ii) social and climate justice, iii) interdependence and complementarity, and iv) harmonious relationship and equilibrium. Specifically, the principle of social and climate justice recognizes that social and economic inequalities exacerbate the impacts of the climate crisis, disproportionately affecting indigenous peoples. Consequently, it is proposed that the Executive branch assume responsibility for promoting and safeguarding the rights of Nature, thereby ensuring the protection of indigenous peoples’ rights as well.
It is essential to note that addressing these forms of justice requires employing two approaches outlined in the Legislative Reports: i) the human rights approach and ii) the intersectionality approach. The human rights approach examines how adverse impacts on nature affect the human rights of populations in vulnerable circumstances. The intersectionality approach underscores that these impacts exacerbate existing inequalities among vulnerable populations. Thus, the adoption of these two approaches is crucial as they enable us to determine the most effective strategies for addressing vulnerabilities.
Under this premise, the Legislative Reports not only embody an environmental initiative but also safeguard the human rights of populations in vulnerable circumstances that have endured systematic violence and discrimination throughout history. They extend beyond environmental concerns to comprehensively advocate for rights restitution. Endowing nature with this special protection as a rights-bearing entity signifies a profound recognition of indigenous culture. The reports emphasizes the imperative of respecting nature to confront the climate crisis, given its universal significance to all. Therefore, enacting this legislation, as noted in the Legislative Reports, is crucial for protecting indigenous rights and emphasizing the need to safeguard the environment to prevent climate disasters.
Principles to Save Humanity in the Legislative Reports: The Relationship Between Recognizing Nature as a Rights Holder and Climate Justice Through Climate Litigation
The Legislative Reports encompass several principles, as previously delineated, notably including that of climate and social justice. However, what precisely do these forms of justice entail, and how are they interrelated? The United Nations Development Programme asserts that climate justice entails that climate actions and decisions must be grounded in principles of equity and full respect for human rights. Scholars (for example, García and Castillo, and García-Romeral) have further argued that this type of justice encompasses three fundamental dimensions: i) intergenerational justice, ii) interspecies justice, and iii) restorative justice. Climate justice is, thus, focused on preserving both natural resources and the future well-being of people.
Simultaneously, social justice is characterized by the United Nations International Children’s Emergency Fund as “in equal opportunities and human rights, beyond the traditional concept of legal justice. It is based on fairness and is essential for each person to be able to develop their full potential and for a peaceful society”. In other words, its objective is to eliminate existing inequalities and ensure that all individuals can fully exercise their rights. A society where inequality limits access to human rights cannot be conceived, as this impedes the comprehensive development of individuals.
In this context, the interrelation between climate justice and social justice becomes evident as mentioned by the United Nations Educational, Scientific, and Cultural Organization: “we cannot speak of saving the human species if we show tolerance towards the social and economic injustices affecting people”. The acknowledgment and mitigation of disparities exacerbated by climate inaction underscore the pivotal role of social justice in achieving climate justice. Social justice encompasses all forms of inequality, necessitating concrete actions to rectify and alleviate the disparities exacerbated by the climate crisis.
Therefore, given the interrelationship of both theories, it is logical for both types of justice to serve as principles of the Legislative Reports. What precisely does the Legislative Reports articulate on this matter? “The State prioritizes the protection of populations in situations of social and climate vulnerability such as indigenous or native peoples, communities or populations inhabiting intangible, contaminated or over-exploited areas, or other human groups affected by inequality and environmental injustice”. The significance of this perspective lies in its acknowledgment of the disparities in the effects of climate and ecological crises on populations in vulnerable circumstances.
Prioritizing and supporting these groups, who bear disproportionate impacts from extreme weather events and other climate change consequences, particularly in highly vulnerable countries such as Peru, is paramount. However, it is crucial to highlight that this Legislative Reports is not immune to scrutiny, particularly regarding the principle of social and climate justice. This principle does not mandate action against climate change, which is concerning as climate inaction can jeopardize human rights. A law of this nature should prioritize the integration of the climatic dimension into environmental measures.
The advancement of climate litigation hinges critically on acknowledging nature as a rights holder, thereby establishing a fundamental nexus between climate justice and legal frameworks aimed at safeguarding the environment. This innovative legal paradigm introduces a reinvigorated instrument within the domain of climate litigation. Moreover, the recognition of nature’s rights substantiates claims related to climate change, assigning accountability to states for failing to uphold constitutional and international environmental and human rights commitments, and to corporations for neglecting due diligence in their operations. The degradation of natural ecosystems due to the absence of environmental considerations in corporate practices not only significantly damages the environment but also exacerbates climate change and human rights violations, highlighting the imperative of acknowledging nature’s rights.
Within this framework, bolstering the defense of nature as a rights holder against activities that exacerbate the climate crisis involves amplifying advocacy for populations in vulnerable circumstances, particularly indigenous peoples. As highlighted in the Legislative Reports, ensuring the rights of nature requires the State to respect indigenous rights by providing opportunities for both individual and collective participation, while fully honoring indigenous peoples’ traditions and adhering to the principles outlined in the International Labour Organization’s Convention N° 169. Central to this approach is the integration of cultural arguments that protect cultural perspectives and territories, alongside climate justice arguments emphasizing the paramount importance of environmental preservation in mitigating the climate crisis. This strategic approach significantly enhances defense strategies in climate litigation efforts.
Reflection
Human existence is intricately tied to the environment, and consequently, the impacts of the climate crisis severely affect humans, albeit unequally across different communities. Given this, it is crucial to adopt an approach of social and climate justice, and advance measures that ensure not only environmental protection but also the well-being of each affected group, considering their particular circumstances. Climate justice cannot be achieved without social justice simultaneously; similarly, effective legal measures in climate litigation must incorporate this integrated approach of social and climate justice.
The recently issued Legislative Reports exemplify a conscientious legal initiative aimed at addressing the climate crisis. This legislation ensures state intervention in safeguarding nature and the rights of indigenous or native communities closely interconnected with it. By enabling legal recourse against climate inaction, indigenous peoples can contend that their rights, along with those of nature, are impacted. Nature, integral to the exercise of collective rights such as human survival, underscores the importance of these legal measures.
Luis Alejandro Pebe Muñoz
Luis is a member of the Interdisciplinary Research Group on Human Rights and International Humanitarian Law at the Pontifical Catholic University of Peru, and an extraordinary member and former General Coordinator of the Environmental Law Team at the same university.
Camila Yamilé Roque Macha
Camila is the Deputy Coordinator of the Environmental Law Team at the Pontifical Catholic University of Peru.
