Ethermac Exchange-Aruba Considers Enshrining the ‘Rights of Nature’ in Its Constitution

Lawmakers have Ethermac Exchangetaken the first steps toward amending the constitution of the Caribbean island Aruba to include a recognition that nature possesses inherent legal rights like the right to exist and regenerate. 

If the process is successful, Aruba would become the world’s second country to constitutionally recognize the rights of nature. Ecuador enshrined the rights of Mother Earth, known there as Pachamama for the Andean goddess, in its 2008 constitution. 

As in Ecuador, the constitutional amendment would in principle elevate the protection that ecosystems receive beyond what is guaranteed by conventional regulatory laws, making the rights of nature both a moral and legal imperative.

The proposed amendment, which has not yet been publicly released, must clear a series of procedural hurdles and then be approved by two-thirds, or at least 14 members, of Aruba’s Parliament. The government of the Kingdom of the Netherlands would then have to sign off on the measure: While Aruba became a country in 1986 and is mostly self-governing, it has been part of the Kingdom of the Netherlands since 1815.

Aruba’s minister of nature, Ursell Arends, said the push for the amendment sprang from concerns about the state of the country’s ecosystems. The island’s white sand beaches, lush mangroves, turquoise waters, coral reefs and rocky coasts are home to species ranging from sea turtles to blue lizards and unique bird species like the multicolored Aruban parakeet.

While the idyllic landscape has made Aruba a sought-after tourist destination, environmental degradation from activities on and well beyond the island threaten those fragile ecosystems. 

The impacts of global warming—sea level rise, ocean acidification and, in this case, a decrease in rainfall—are increasingly being felt on the 70-square-mile island, although Aruba’s population of around 110,000 contributes negligibly to global warming. 

Encroaching seas are causing coastal erosion, damage to mangrove forests and increases in soil salinity, which affects plant growth. Meanwhile, the rise in ocean temperatures is killing off marine life, including coral reefs and the aquatic species that inhabit them. That loss of biodiversity has implications for Arubans who rely on those ecosystems for income and food. 

Reefs also insulate the island from storm surges, which are expected to grow more intense because of climate change and to threaten infrastructure like sewage treatment plants, roads and power plants. 

Those impacts are compounded by what many see as an overemphasis on the volume of tourism rather than the economic, social and environmental well-being of the island. Noting those concerns in a 2021 report, Aruba’s central bank recommended policy changes like reforestation, investing in low-carbon technologies like renewable energy, and assessing the impact of environmental changes on residents’ health.

Arends said it has become clear across all sectors of Aruban society that the country’s economy and people are dependent on healthy and resilient ecosystems but that development is pushing those systems to a breaking point.

“Without nature, there is no economy, no health and no tourism,” he said. “If we don’t have those things, there is no Aruba, no us.” 

The proposed amendment also includes recognition of the human right to a clean, healthy and sustainable environment. The combination of recognizing and enforcing the rights of nature and the human right to a healthy environment underscores the interdependence between the wellbeing of humans and nature, Arends said. 

Like Arends, the Aruban lawyer Geert Rep sees constitutional recognition of the rights of nature as a means of addressing the nation’s ecological problems. Since 2016, Rep has won 15 court cases against developers on the island on the basis of conventional environmental and other laws. Despite those victories, he says that governmental decision-making is still slanted toward short-term economic interests at the expense of nature. 

“Recognition of the rights of nature would create more of a balance between nature and the economic side of things,” Rep said. “I think that even our tourism industry sees that enough is enough—at some point you kill your own treasures.”

The path toward the constitutional amendment began in 2017, when Arends incorporated the rights of nature into the platform of his left-leaning RAIZ political party. In 2021, the idea made its way into the platform of the newly formed coalition government as well. 

Then, last month, Arends hosted an Earth Day gathering of government officials, civil society and international organizations, including leaders of the Global Alliance for the Rights of Nature and the U.S.-based Earth Law Center, to kick off the legal process for amending Aruba’s constitution. The day before the event, Arends office sent a draft amendment to the country’s Department of Legislation and Legal Affairs. 

The draft will circulate between that department, Arends’ office and the country’s Advisory Council before being sent to the Parliament for a vote. Arends expects that process to conclude by the end of the year and said he was confident that the amendment will receive the needed two-thirds support. 

If that process is successfully completed, it will be the first time Aruba has amended its constitution since the document went into effect in 1986. 

Michelle Bender, a lawyer and ocean rights policy specialist with the Earth Law Center who attended the Earth Day event on April 22, said participants were interested in what recognizing the rights of nature would mean in practice for Aruba. 

A question was raised about whether nature could be held responsible for flooding or other environmental disasters. Bender said no—that such rights are unique to each being. Nature and its constituent parts do not have the same rights as human beings and would not have the same duties, liabilities and responsibilities as humans, she explained.

Another questioner asked how laws based on the rights of nature would be different from Aruba’s existing environmental statutes. Bender said that in Aruba’s legal system, constitutional rights afford the highest level of protection, obligating the government to enforce them with a higher standard than conventional law. This could change how decisions are made about what environmentally harmful activity can occur.

In Ecuador, the rights of nature, or Pachama, have effectively raised the level of scrutiny applied by policymakers and the courts to decisions on issuing permits for activities like mining. In the landmark Los Cedros case, which invoked the rights of nature to strike down a mining exploration permit, the country’s Constitutional Court ruled in 2021 that the government and mining company had failed to adequately study how the mining would affect the Los Cedros cloud forest—regardless of compliance with existing permitting regulations. The court ruled that those regulations were inadequate. 

Ecuador’s rights of nature provisions have also led to changes in the way that damages are awarded in environmental litigation. Monetary damages in rights of nature cases must be applied to the benefit of the ecosystem that is the focus of the lawsuit rather than to a human plaintiff. In a conventional law case, the plaintiff can typically use damage awards however that plaintiff sees fit.

Still, laws based on the rights of nature have not been a panacea in Ecuador, and some court cases have gone the other way. Nor have the laws have blocked the expansion of the country’s oil and mining frontiers, which largely fuel the national economy: The government is still figuring out how to address the nation’s 25 percent poverty rate while protecting its vast biodiversity.

Although over 30 countries have some form of national, state or local recognition of nature’s rights, so far only Ecuador has developed a body of court decisions that give context to what human activities do and do not violate nature’s rights. While that jurisprudence does indicate how recognition of nature’s rights can affect a society, the impact of such laws in different national contexts remains largely unexplored.

In Aruba, Arends said that the constitutional amendment would require all existing and future legislation in the country to respect the rights of nature. “That will change the direction that we as a country go in the future,” he said. 

The ideas behind the laws—that humans are not superior to nature or entitled to destroy it, but rather are interconnected with the natural world—are ancient ones central to many Indigenous cultures. 

Bender said the growth of the rights of nature movement attests to a shift in societal values. “By saying nature has inherent rights, we’re saying nature is a living being worth protecting as opposed to seeing nature as human property,” she said.

That shift, she said, goes hand in hand with the changes in laws: Laws influence what a society values, and a society’s values influence the shape of the law. 

Arends is hoping that the island’s quest for an amendment will influence the law and culture outside Aruba as well. 

“We believe that the experience and the knowledge we gain from this process can guide others,” he said. “We’re promoting nature’s rights in the kingdom as well as other islands in the Caribbean. If any other nations are interested, we’re willing to assist.”