Environmental Conservation Right

The Environmental Conservation Right also known as Conservation Property Right or Conservation Right is a new institution of private law established in Chile by Law 20.930 enacted on June 10, 2016
In its article 2, this law establishes: ´The conservation property right is a property interest that consists in the faculty to conserve the environment of a specified land or certain attributes or functions of such environment´. See also the original spanish version of this legal definition in derecho real de conservación which is the original spanish language name of this new institution.
The conservation property right can be applied in rural or urban areas, either to ecosystems or habitats in strict sense or to different environmental, social or cultural elements.. Moreover, the conservation property right can be established with respect to ´attributes´ and ´functions´ of the corresponding environment, which means that this new property right can be directly established with respect to specific ecosystem services. For some practical uses of this new institution visit www.derechorealdeconservacion.cl.
The denomination of the ´conservation property right´ was originally proposed in 2003 in Chile in order to differentiate this institution from conservation easements or servitudes. .
The ´conservation property right´ is defined by reference to a normative power: the ´faculty to conserve´ that constitutes its central normative element. In this respect it should be noticed that in the civil law tradition the idea of ´faculty´ defines the different powers granted to a property right´s holder. In this sense the idea of ´faculty´ is essential to the overall design of property rights in the mentioned legal tradition. It is this new ´faculty to conserve´ that distinguishes this new property right from the conservation easements or servitudes that are defined and characterized as ´restrictions´ -and that in the civil law system are typified as encumbrances or gravamen-.For a thorough review of the legislative history of Law No20930 please visit http://www.bcn.cl/historiadelaley/nc/historia-de-la-ley/5077/ . Therefore, significantly, the conservation property right comes to add a new ´main faculty´ to the ´property rights system´: the faculty to conserve or ´ius conservandi´.
This ´faculty to conserve´ facilitates the delineation of new assets that constitute new wealth, sometimes also called natural capital, and by the same token it facilitates the circulation of this new wealth -which also means or implies a reduction of the relevant transaction costs-
In other words, the fact that the new conservation property right is being defined and structured by reference to a main and active faculty (the ´faculty to conserve´) entails that this new right focuses on the delineation of new wealth rather than on the restriction of traditional property (see below the section on Theoretical Foundations),
The diverse elements of the new law that established the conservation property right were fundamentally discussed in the Constitutional Commission of the Senate of the Republic of Chile, in which the Conservation Law Center of Chile had a substantial and permanent participation through its researcher Dr. Jaime Ubilla Fuenzalida and with the support of Mr. Francisco Solis - www.centroderechoconservacion.org-. Furthermore, Dr. Jaime Ubilla was the original proposer of this new institution, and through the years attempted to provide justification for the same from the legal, sociological and economic perspective. As director of the Conservation Law Centre, Dr. Ubilla suggested a definition on the basis of the ´faculty to conserve´ and, in this way, it suggested a modification of the original drafting of the Lower House -of Representatives- that was oriented towards the idea of easement or servitude .
Moreover, it was because of this new approach that focuses on the delineation and circulation of new wealth rather than on the restriction of traditional property that was possible to say that this new property right should be allowed to be established on indefinite time basis. In the case of Chile, the original bill of the lower house -of representatives- had established a maximum duration of 40 years-, but the senate under the new understanding of the institution -as proposed by the Conservation Law Center- takes distance from the idea of ´easements´ allowing therefore the indefinite duration of the conservation property right. This relates to the principle known as the ´restrictions of restrictions´ which involves that any restrictions to the ownership right must be restricted because such restrictions would encumber the circulation of wealth -circulation that is promoted not only in the civil law tradition but also in the common law tradition-. Since the conservation property right promotes the delineation of new wealth, it also promotes its circulation and therefore there is not reason to restrict its duration.
Therefore, the conservation property right represents a new paradigm of real property interest, which by being structured around an active faculty -and not around the idea of restriction or encumbrance- focuses on the delineation of new wealth rather than on the restriction of traditional property. From a sociological perspective, as it is explained herein below (Theoretical Foundations) this also means that this new property right makes possible a broader interaction between law and different non-economic spheres of society.
Theoretical foundations
The theoretical basis of this new institution, are fundamentally found in legal and social theory, and particularly in social systems theory. (additional foundations on the economic analysis of law are also relevant but secondary ).
If we understand that society is integrated by diverse spheres of meaning -of science, morality, politics, aesthetic-art, economy, religion, law, media, education, etc.- and we realize, however, that the legal relationship with ´things´ (the real rights) has been predominantly typified on the basis of the relationship (structural coupling) between law and the economy (specially considering that the main faculties of use, enjoyment and disposal that constitute the right of ownership -and to which refer the other limited property rights- relate fundamentally to the economic sphere -or to the operations of the economic system-), then we can conclude that the traditional real property interests are predominantly reflexive to the economic system but not to other spheres of society. It is in this context that we can understand that any real property interest that is defined as a restriction or ´gravamen´ is, therefore, being typified from the perspective of a purported reduction of the economic value of the encumbered asset.
The approach of the conservation property right involves shifting the consideration of value and making possible that the observations and assessments of other social spheres -i.e. the ecological assessment, aesthetic assessment, etc.- (and the corresponding knowledge originating from different spheres) are internalized or translated by the legal system as ´active values´. In simple terms, and by way of example, the scenic beauty no longer will be deemed as a restriction but as something valuable that it is the object of the ´faculty to conserve´. This has transcendental consequences, among others, for: (i) the understanding of the ´reflexive form of law´ that involves understanding that some forms of law may have greater capacity for internalizing new social complexity.; (ii) a new understanding of how broad societal interests are to be considered as elements of the ´public sphere´ within private law; (iii) an understanding that this new property right does not entail a process of ´propertisation´which has been a traditional critical approach to the use of property rights in the area of broad social interests, an others.

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