Making Rights Come Alive

• Author: Ricardo A. Gutiérrez,Lucas G. Christel
• Published date: 01 September 2017
• Date: 01 September 2017
• DOI: http://doi.org/10.1177/1070496517701248
• Subject Matter: Articles

Article

Making Rights Come

Alive: Environmental

Rights and Modes of

Participation in Argentina

Lucas G. Christel

1

and Ricardo A. Gutie

´rrez

2

Abstract

New environmental rights were introduced in Argentina with the 1994 amendments

to the 1853 national constitution. This constitutional recognition of environmental

rights is a fundamental step in the advancement of environmental justice and citizen-

ship, but it is not enough. When and how do environmental rights become effective?

Under what circumstances are environmental rights effectively applied and enforced?

We claim that participation is the key mechanism through which constitutionally

enacted environmental rights become effective. More specifically, we argue that

the embodiment of constitutional environmental rights in concrete policies and prac-

tices are propelled by the combination of contentious and institutionalized modes

of participation. Based on evidence from two contrasting and salient cases—river

sanitation in the Metropolitan Buenos Aires Region and open-pit mining in Andean

Argentina—this article discusses how the combination of different modes of partici-

pation has been an effective channel for the enforcement and effectiveness of envi-

ronmental rights.

Keywords

emergent environmental rights, environmental contention, constitutional rights,

modes of participation, Argentina

Journal of Environment &

Development

2017, Vol. 26(3) 322–347

!The Author(s) 2017

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DOI: 10.1177/1070496517701248

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1

Universidad Nacional de San Martin, Buenos Aires, Argentina

2

Universidad Nacional de San Martin and National Council for Scientific and Technological Research

(CONICET), Buenos Aires, Argentina

Corresponding Author:

Lucas G. Christel, Universidad Nacional de San Martin, 25 de Mayo 1021, Buenos Aires 1650,

Argentina.

Email: lucaschristel@hotmail.com

As in many other Latin American countries, in the mid-1990s Argentina under-

went a constitutional reform process that brought forth, among other things, the

constitutional right to a healthy environment and a number of connected pro-

cedural rights. Constitutional recognition of environmental rights is a funda-

mental step in the advancement of environmental justice and citizenship, but it is

not enough (Jef‌fords & Minkler, 2016; May, 2013). Constitutional principles

must be translated into enabling legislation; in turn, legislation must be ef‌fec-

tively applied and enforced. As Epp (2008) puts it, ‘rights are empty promises

unless they are given administrative policies and practices’ (p. 42).

But when and how do environmental rights become ef‌fective? Under

what circumstances are environmental rights ef‌fectively applied and enforced?

Based on evidence from the Argentine case, we claim that participation is

the key mechanism through which constitutionally enacted environmental

rights become ef‌fective, since the advance of environmental rights depends

on how people interpret and utilize existing legal provisions to redress their

grievances (Epp, 2008; Gellers, 2015). More specif‌ically, we argue that the

embodiment of constitutional environmental rights in concrete policies and

practices is propelled by the combination of contentious and institutionalized

modes of participation. Unlike other approaches, we do not see contentious and

institutionalized participation as separate or antagonistic modes of action but

rather as dif‌ferent tactics or tools that people use and combine to advance their

grievances.

Our analysis proceeds in f‌ive stages. First, we describe the environmental

rights introduced in the Argentine constitution through the 1994 reform and

provide a brief account of their origins. Second, we propose an expansion of

the emergent approach (Hannigan, 2006; Hiskes, 2009), which understands

that both the meaning and enforcement of environmental rights are in a con-

stant process of being (re)formulated. While some authors (e.g., Daly, 2012;

Hajer, 2000; Hiskes, 2009; May, 2013; Roesler, 2012) focus on administrative

procedures and institutionalized participation mechanisms (such as councils

and committees), the expanded emergent approach we put forward looks

more directly at the combination of contentious and institutionalized modes

of participation as a channel for the enforcement and ef‌fectiveness of environ-

mental rights. Third, we discuss and def‌ine the concepts of environmental

contention and institutionalized participation. We distinguish three modes of

environmental contention (social protest, judicial litigation, and expert contro-

versy), def‌ine institutionalized participation, and assess the relationship

between the former and the latter. Fourth, we examine how contentious and

institutionalized modes of participation manifest themselves and combine in

two contrasting Argentine settings: river sanitation in the Metropolitan Buenos

Aires Region and open-pit mining in the Andean province of Mendoza. These

are not the unique cases of environmental conf‌lict in Argentina, but they stand

out due to the achievement of important legislative and administrative

Christel and Gutie

´rrez 323