The ”’Conservation Property Right”’ also known as the ́Conservation Right ́ or ́Environmental 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 ́.
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.
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. It is this new ́faculty to conserve ́ that differentiates 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 restrictions.
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 ́.
It should be noticed that the mentioned definition of Law No 20930 that focuses on the ́faculty to conserve ́ was originally proposed in order to increase the social reflexivity of this new institution (See Ubilla Jaime, 2014, Ubilla Jaime, 2016a and Ubilla Jaime, 2016b).
From an economic perspective, the ́faculty to conserve ́ facilitates the delineation of new assets that constitute new wealth, sometimes also called ́natural capital ́, and this makes possible 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.
Moreover, this new approach -that focuses on the delineation and circulation of new wealth rather than on the restriction of traditional property- allowed the incorporation of the rule that this new property right can be established on an 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 this new understanding of the institution and taking distance from the idea of ́easements ́ allowed the indefinite duration of the conservation property right. This relates to the principle known in Common Law 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. Since the conservation property right promotes the delineation of new wealth, it also promotes its circulation and therefore there was not reason to restrict its duration.
The diverse elements of the new legal design 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-.
For a thorough review of the legislative history of Law No20930 please visit http://www.bcn.cl/historiadelaley/nc/historia-de-la-ley/5077/.
Some Theoretical Foundations of the Conservation Property Right
The theoretical basis of this new institution, are fundamentally found in:
(i) The normative justification of rights based on the modern interest theory of Joseph Raz with special reference to Jeremy Waldron ́s approach to property interests (Ubilla Jaime, 2016b);
(ii) The socio-legal justification of rights, particularly based on social systems theory (Ubilla Jaime, 2016a and Ubilla Jaime, 2016b). In this respect Dr, Ubilla also developed a new theory of the ́Reflexive Form of Law” which he applied to this new institution (Ubilla Jaime, 2016a).
General Reference to the Socio-Legal Justification
Society is integrated by diverse spheres of meaning -of science, morality, politics, aesthetic-art, economy, religion, law, media, education, etc.-. However, traditional property rights have been typified on the basis of the relationship (structural coupling) between law and the economy. In other words, traditional real property interests are predominantly reflexive to the economic system but not to other spheres of society (Luhmann Niklas, 2015).
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 this consideration of value and making possible that the observations and assessments of other social spheres -i.e. the ecological assessment, aesthetic assessment, etc.- 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 (Ubilla Jaime, 2016a).
Barzel, Yoram (1997), Economic Analysis of Property Rights. Cambridge University Press, 1997, p.4.
Luhmann, Niklas (2015). El Origen de La Propiedad y Su Legitimación: Un Recuento Histórico. Original Title: Der Ursprung Des Eigentums Und Seine Legitimation. In: W. Krawietz et Al (Hrsg.), Technischer Imperativ Und Legitimationskrise Des Rechts, Rechtstheorie Beiheft 11, Berlin, 1991,” Revista MAD – Universidad de Chile 33
North, Douglas C., Institutions, Institutional Change and Economic Performance, Cambridge University Press, 1990, p.51.
Ubilla, Jaime (2003). La Conservación Privada de Biodiversidad y el Derecho Real de Conservación, Revista de Derecho Ambiental de la Universidad de Chile, No1, 2003.
Ubilla, Jaime (2014). Propuesta de Indicaciones al Proyecto de Ley del Derecho Real de Conservación. Centro de Derecho de Conservación, Junio 9, 2014, en http://www.centroderechoconservacion.org/documentos/indicaciones-proyecto- derecho-real-de-conservacion-06092014.pdf. This document was submitted to Senators de Urresti and Horvath who in turn submitted the same proposal regarding the definition of the conservation property right.
Ubilla, Jaime (2016a). Reflexive Law and Reflexive Property Rights. PhD Thesis, Faculty of Law of the University of Edinburgh, 2016 Ch.9.
Ubilla, Jaime (2016b). Derecho Real de Conservación. Justificación Normativa y Socio-Legal, Revista de Derecho de la Universidad de Concepción, No240 Julio- Diciembre 2016.
- Top ↑ The name was proposed in Ubilla Jaime (2003);
- Top ↑ In this respect it should be noticed that in the civil law tradition the idea of ́faculty ́ defines the main 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. The main real rights have been traditionally the following two: the right of ownership and the right of usufruct. Conceptually speaking the main real rights -also known as active real rights- do not require of another right to exist, and traditionally are considered as an economic or accounting asset. On the other hand, the ancillary or ́accessory ́ or passive real rights are those that depend on the existence of another main right -as ownership in the case of the servitudes or the right of credit in the case of the mortgage and the pledge- and traditionally are not deemed as a separate economic or accounting assets.
- Top ↑ See Ubilla Jaime (2014), Ubilla Jaime (2016a) and Ubilla Jaime (2016b).
- Top ↑ For the economic analysis of this aspect of the conservation property right see Ubilla Jaime, 2003 and therein the references to Barzel Yoram (1997) and North Douglas (1990).
- Top ↑ Ubilla Jaime (2016a) and Ubilla Jaime (2016b)
- Top ↑ All this being said, it is important to note that the conservation property right, as observed from the perspective of the right of ownership will -certainly- be considered to be a limitation or restriction of the same. However, in this respect, the civil law system ́s distinction between ́limitation ́ ( ́limitación ́) and ́encumbrance ́ ( ́gravamen ́) becomes relevant, as the conservation property right may be considered to be a limitation -just like the right of usufruct- but not a gravamen –like the easement- (Ubilla Jaime, 2016b).