Centralized Constitutional "Rights of Nature" Comes Up Short Versus Localized Jurisdictions for People Protecting Nature in the Bioregional State
"Rights of Nature" without rights to local watershed development participation is a dead letter: one year after the Ecuadorian Constitutional change giving "Civil Rights to Nature" shows little has changed to remove developmental corruption and unsustainability
The Real Natural Rights of Humanity: Ecological Self-Interest of Localities, Still Demoted in Ecuador
After a year of being in place, the recent Constitutional change in Ecuador in 2008 that gave constitutional rights to "nature" shows the limitations of avoiding a formal institutional strategy to sustainability, argued for in the bioregional state.
The fine print of the Ecuadorian constitutional mandate is that it is a central state model of institutional jurisdiction being maintained. This, in the name of 'representing local nature,' takes rights out of the hands of localities, with the anticipated corruption already being seen one year later in the below article. "A fundamental flaw in the constitution also exists due to [the Ecuadorian President] Correa’s refusal to include a clause mandating free, prior, and informed consent by communities for development project that would affect their local ecosystems." With this additional clause "mandating free, prior, and informed consent by communities for development projects that would affect their local ecosystems" it would be closer to the pro-humanistic bioregional state model: a series of expanded human civil rights over developmental processes that would be greater checks and balances against corrupt unsustainability--in the name of sustainability and environmental security because of local human ecological self-interest being institutionalized.
Other countries are moving on this 'rights of nature' position as well, like Nepal--writing its first constitution after centralized monarchy demoted in the past few years. Therefore, the same centralized corruption difficulties may be seen there as well, without the bioregional state or the "free, prior, and informed consent by communities for development projects" that is required to move to sustainability.
The bioregional state argues that only formal institutional checks and balances like this can bring about sustainability. This is hardly an argument for complete decentralization, because it is a check and balance between both because localities and centralized states can be equally corrupt. The bioregional state argues for checks and balances between both as redress of grievances for both, thus a nested system of jurisdictions. The Ecuadorian model of trusting only to a centralized jurisdictional control over 'nature' shows flaws.
After one year in place, it seem that the Ecuadorian 'rights of nature' is an interesting motif, beautiful on the surface though allowed state level corruptions in charge of administrating the 'rights of nature' and gatekeeping against citizen feedback from different localities that complain.
In practice, Ecuador has shown such constitutional 'rights' fails to mean any systemic change without formal institutional changes to make sure that these rights are exercised out of daily politics by particular regions instead of extra-jurisdictional court cases.
As expected for such symbolic politics, it already seems a dead end strategy due to how the novel mining law in Ecuador is being used to get around this supposed 'right of nature.'
The bioregional state argues that only formal institutional changes to enhance processes of localization and democratization to avoid corrupt centralized elite gatekeeping will bring about sustainability--instead of only lists of presumed centralized rights by themselves. The bioregional state offers a list of novel rights in the Ecological Bill of Rights though always introduces these with the institutions that will practice these rights instead of leaving it half complete as the Ecuadorian constitution notes.
The only beneficial bioregionalist motif institutionalized is that people in localities can represent "nature" in court even if they were left unharmed and even if it is limited to centralized court systems. (This is actively denied in the U.S. system: no one can take another person to court typically for pollution or externalities unless they are personally harmed. A U.S. judge simply threw out a class action suit to protect a river a few years ago, for instance, since he claimed since the specific people in the court suit were unharmed, thus it was an unjustified court case. However, people were harmed, though they were outside the class action suit to stop the pollution and outside the required consent in a sustainable developmental process. This is why localized human jurisdictions are more important than annotated centralized environmental protection rights.
However, second, lawsuits by proxy are opened up with these 'rights of nature' that could slow or make unprofitable any degradative, unrepresentative development. However, another drawback to rely on court cases to establish environmental protection is that the framework is entirely after-the-fact environmental protection (when it may be a lost cause when pollution is already in the environment) instead of before-the-fact (when it can involve political input into future development beforehand: the preferred route of the bioregional state).
As the Ecuadorian constitution now says: "Every person, people, community or nationality, will be able to demand the recognitions of rights for nature..." They can demand all they want: they fail to actually have power on a durable basis that would be provided by the bioregional state's civic democratic institutions and commodity ecologies.
Since the rights of humans on the local level are embedded in real nature biophysically, rights of local humanity and rights of local nature require combining in institutional forms that allow for their local jurisdictional dominance in economic path decisions, which will yield a state that has different optimalities of human and economic uses of technology and material choices, without demoting common civil rights of the national state. As the working definition of the bioregional state notes:
Bioregional democracy (or the Bioregional State) is a set of electoral reforms and commodity reforms designed to force the political process in a democracy to better represent concerns about the economy, the body, and environmental concerns (e.g. water quality), toward developmental paths that are locally prioritized and tailored to different areas for their own specific interests of sustainability and durability. This movement is variously called bioregional democracy, watershed cooperation, or bioregional representation, or one of various other similar names--all of which denote democratic control of a natural commons and local jurisdictional dominance in any economic developmental path decisions—while not removing more generalized civil rights protections of a larger national state.
My commentary is in the relayed article below:
Upside Down World, September 25, 2008
Title: “Ecuador’s Constitution Gives Rights to Nature”
Author: Cyril Mychalejko
Student Researcher: Chelsea Davis
Faculty Evaluator: Elaine Wellin, PhD
Sonoma State University
In September 2008 Ecuador became the first country in the world to declare constitutional rights to nature, thus codifying a new system of environmental protection.
Reflecting the beliefs and traditions of the indigenous peoples of Ecuador, the constitution declares that nature “has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.” This right, the constitution states, “is independent of the obligation on natural and juridical persons or the State to indemnify the people that depend on the natural systems.”
The new constitution redefines people’s relationship with nature by asserting that nature is not just an object to be appropriated and exploited by people, but is rather a rights-bearing entity that should be treated with parity under the law.
Mari Margil, Associate Director of the Environmental Legal Defense Fund, worked closely over the past year with members of Ecuador’s constitutional assembly on drafting legally enforceable Rights of Nature, which mark a watershed in the trajectory of environmental law.
Ecuador’s leadership on this issue may have a global domino effect. Margil says that her organization is busy fielding calls from interested countries, such as Nepal, which is currently writing its first constitution.
For all of the hope and tangible progress the Rights of Nature articles in Ecuador’s constitution represent, however, there are shortcomings and contradictions with the laws and the political reality on the ground. A fundamental flaw in the constitution also exists due to Correa’s refusal to include a clause mandating free, prior, and informed consent by communities for development project that would affect their local ecosystems.
“I expect them [the multinational extractive industries] to fight it,” says Margil. “Their bread and butter is based on being able to treat countries and ecosystems like cheap hotels. Multinational corporations are dependent on ravaging the planet in order to increase their bottom line.”
The new Mining Law, introduced by Ecuador’s own President Rafael Correa and backed by Canadian companies, which hold the majority of mining concessions in Ecuador, is a testament to Margil’s forecast. The Mining Law would allow for large-scale, open pit metal mining in pristine Andean highlands and Amazon rainforest. Major nationwide demonstrations are being held in protest, with groups accusing Correa of inviting social and environmental disaster by selling out to mining interests.
Carlos Zorrilla, executive director of Defensa y Conservación Ecológica de Intag, who has been a tireless defender of the environment against transnational mining companies, says that while the new constitution looks good on paper, “in practice governments like Correa’s will argue that funding his political project, which will bring ‘well being and relieve poverty,’ overrules the rights of nature.”
Yet even as Ecuadoran President Correa embraces the extractive economic model of development, the inclusion of the rights of nature in a national constitution sets inspiring and revolutionary precedent. If history is any indicator, Ecuadorians will successfully fight for the Rights of Nature, with or without their president.
Update by Cyril Mychalejko
When Ecuadorians drafted and passed a new constitution, which gave nature inalienable rights, the US media largely ignored this historic development. In the case of the Los Angeles Times, one of the few mainstream outlets to cover the story, the newspaper’s editorial board trivialized the development (“Putting Nature in Ecuador’s Constitution,” September 2, 2008) by suggesting it sounded “like a stunt by the San Francisco City Council” and that it seemed “crazy.”
“As ecological systems around the world collapse, we need to fundamentally change our relationship with nature. This requires changes in both law and culture, and ultimately our behavior as part of nature,” said Mari Margil, Associate Director of the Defense Fund, who is disappointed in how the US media largely ignored the story.
In Ecuador, at the time of the constitutional vote, the optimism over how the “Rights of Nature” clauses would translate into policy was guarded.
“As exciting as these developments are, it was also inevitable [without the bioregional state] that the people in power would, and will, find ways to circumvent, undermine, and ignore those rights,” said Carlos Zorrilla, executive director of Defensa y Conservación Ecológica de Intag.
According to Zorrilla, a major disappointment has been President Rafael Correa’s new mining law.
“The law takes rights-to-nature loopholes and widens them so that giant dirt movers could easily drive through them,” said Zorrilla, who has been working with communities of Ecuador’s Intag region to resist mining and promote sustainable development. “To mention a couple of examples, the law does not prohibit large-scale mining in habitats harboring endangered species, nor the dumping of heavy metals in rivers and streams.”
Indigenous leaders responded by filing a lawsuit before Ecuador’s Constitutional Court in March 2009, seeking to overturn the mining law, which they believe is unconstitutional. Article 1 of the “Rights of Nature” clauses states: “Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles established in the Constitution.”
Regardless of the ongoing struggles to ensure that the true meaning and scope of the constitution is upheld, Dr. Mario Melo, a lawyer specializing in Environmental Law and Human Rights and an advisor to Fundación Pachamama-Ecuador, believes that the nature clauses which reflect the traditions of indigenous peoples could offer a path to an ecologically sustainable future. [Development fails to be built from ideological standards, it comes out of the interplay of formal institutional regimes of people who have to be consulted before development proceeds. The 'rights of nature' by itself fails to change the dynamic where the local people--the best people to adjudicate rights to nature because it is in their ecological self-interest--are consulted beforehand. It puts the onus of pressure on them to defend themselves from unrepresentative development instead of putting their energies into constructive, representative development, so this 'rights of nature' is a poor model by itself without other jurisdictional changes on whom is consulted in the developmental process.]
“I consider that the recognition of the ‘Rights to Nature’ as a progress on a global scale and one that deserves to be globally broadcast and commented on as a contribution from Ecuador towards the search of new ways of facing the environmental crisis due to climate change.”
The struggles of Ecuadorian social movements and the Ecuadorian government to uphold the “Rights of Nature” and to create a new development model that places human beings as interdependent parts of nature, rather than dominant exploiters of nature, is something we should continue to monitor and learn from.