Argentine Environmental Law
Our aim in observing Argentine Environmental Law, is to observe how another legal system and culture imagines the environment. This is especially relevant, considering the civil legal system of Argentina, which is markedly different from the common legal system followed in India. Through this observation, we hope to find where the differences lie, and what lessons can laws meant to protect the Andes and its communities give for the Himalayan region.
Chapter II, Section 41, Constitution of Argentina, 1853 (Amended, 1994)
Whereas the Courts of India have interpreted a bundle of fundamental rights under Article 21, which together are meant to protect the environment, Section 41 of the amended constitution of Argentina is more specific in its wording. Importantly, it introduces an obligation to 'repair' environmental damage as it arises, and treats this as a priority.
The Constitution in Section 41 grants all inhabitants of the nation a right to a healthy and balanced environment and the duty to preserve the environment for future generations (inter-generational equity). It also imposes the duties on the authorities to provide environmental information, preserve cultural and biological diversity, and entrusts Congress with the responsibility to regulate the minimum protection standards for the environment.
These standards become mandatory and applicable to all provinces to ensure that all citizens enjoy minimum environmental standards in accordance with Section 124, which gives the provinces the original dominion over the natural resources existing in their territory. The Standards of environmental protection that are provided in practice are therefore affected by the manner in which individual provincial governments implement national law and policy.
General Law of the Environment (Federal) (Law No. 25,675, 2002)
This law introduced the institutional structure through which regulatory norms related to environmental problems can be enacted and applied. Article 6 defines the term ‘minimum standards’ mentioned in section 41 of the Constitution as every regulation or norm that grants a uniform environmental protection to across Argentina. It establishes that the regulation of basic standards shall describe ‘the necessary conditions to guarantee the dynamic of the ecological systems, maintain their capacity to recharge and, in general, guarantee environmental preservation and sustainable development’. The Act also defines the environment by taking into consideration the principles of sustainable management, preservation and protection of biological diversity in article 4. The same article also establishes the definition of principles like intergenerational equity, sustainability, precautionary principle etc.
The Act consolidates a federal environmental system to coordinate environmental policy and to make decisions at different levels of government. With regard to citizen participation, the act provides for the right of every person to be heard in a decision-making process, as also on the right of access to justice.
Water Management Law (Law No. 25,688, 2002)
This law provides for an expansive definition of what water is - natural or artificial, surface, underground, or atmospheric, as a body and a course, and then sets minimum standards for its preservation and rational use. It recognizes the water basin as an indivisible unit holding water, and to be governed as such, through an elaborate system of water basin committees. The wide definition of water is combined with a wide array of ways in which this law defines use of water - ranging from stagnation, diversion, modification, to intake, conduction, and elevation. Certain basins may also be declared to be critical for purposes of greater protection.
Access to Environmental Information (Law No. 25,831, 2004)
This law establishes minimum standards relating to the right of access to environmental information. It focuses on the development of systematized, simple, quick and easily comprehensible mechanisms to allow access to information at no cost. The law places an obligation upon the appropriate agency to ensure that rapid access to environmental information is facilitated.
Law on Native Forests (Law No. 26,331, 2007)
This law establishes the minimum standards for the protection of native forests. It requires that all provinces establish land use plans for native forests with categories of forest protection according to their relative importance for conservation. The act aims at improving ecological and cultural processes of native forests, promotion of conservation through territorial ordering of forests and encouraging enrichment, conservation and restoration of native forests. Importantly, forests have been viewed not only as natural resources to be preserved, but also as providers of environmental services.
Glacier Preservation Law (Law No. 26,639, 2010)
This law sets the minimum standards for protection of glaciers and peri-glacial environment. According to article 2 of the act, a glacier is any stable flowing perennial ice mass, with or without water presence of water. In other words, the rocky detrital material, the internal and superficial water courses are referred to as the constituent part of every glacier and a part of the definition. The peri-glacial environment is understood to be the area with frozen soils that acts as a regulation of water resources in the high mountains. In the middle and lower mountains, the area that regulates water resources with soils saturated in ice, is referred to as peri-glacial environment.
Drafting and research by Ritika Singh, Member-Intern, edited by Utkarsh Jain, Member.