Saturday, October 03, 2009

Centralized Constitutional "Rights of Nature" Comes Up Short Versus Localized Jurisdictions for People Protecting Nature in the Bioregional State

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"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:


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Source:
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

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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.

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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.

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http://www.projectcensored.org/top-stories/articles/18-ecuadors-constitutional-rights-of-nature/

3 Comments:

Blogger Mark said...

Chevron Is Trying to Slither Away from a Massive 8$ Billion Judgement for Cancer Deaths, Illnesses and Destruction

By Greg Palast, TruthOut.org

Posted on February 15, 2011

http://www.alternet.org/story/149933/


I've been there, in Ecuador.

I met the victims. They didn't lose their shrimp boats; they lost their kids. Emergildo Criollo, Chief of the Cofan Natives of the Amazon, told me about his three-year-old. "He went swimming, then began vomiting blood." Then he died.

See Palast's report from the Amazon for BBC , War Paint and Lawyers: Rainforest Indians versus Big Oil


PART ONE
6:46 min
http://www.youtube.com/gregpalastoffice#p/c/11/YUc24oOGPyo

PART TWO
6:06 min
http://www.youtube.com/gregpalastoffice#p/c/10/ITFFD4JqlxI

And then I met Chevron-Texaco's lawyers.

When I showed Texaco lawyer Rodrigo Perez the epidemiological studies tracing childhood cancers to their oil, he sneered and said, "And it's the only case of cancer in the world? How many cases of children with cancer do you have in the States, in Europe, in Quito? If there is somebody with cancer there, [the Cofan parents] must prove [the deaths were] caused by crude or by the petroleum industry. And, second, they have to prove that it is OUR crude — which is absolutely impossible."

The Texaco man stated, "Scientifically, nobody has proved that crude causes cancer."

President Barack Obama has said that the British-based BP must pay for all the damage it caused in the Gulf.

I've just returned from the Gulf and I can tell you, it's grim, it's terrible. But compared to the damage caused by Chevron-Texaco, the Gulf blow-out is a picnic.

So now, Mr. President, will you stand by your words and tell this renegade, deadly US corporation to pay for the damage they have done?

At the end of my meeting with the oil company lawyers, I showed them a document in which Chevron-Texaco directed its underlings to destroy evidence.

The oil company men said they would get back to me with an "explanation." It's been three years, and I'm still waiting.

There is another insidious game being played by Chevron. The oil company's ethically-challenged law firm, Gibson Dunn & Crutcher, has attempted to block the Cofan and other victims of Chevron from having legal counsel. They have even convinced some pinhead judge to block collection of Ecuador's judgment because harming Chevron would be a blow to "global business."

It would - and it should.

Greg Palast is the author of the New York Times bestseller The Best Democracy Money Can Buy." View Palast's reports for BBC TV and Democracy Now! at gregpalast.com.

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http://www.alternet.org/story/149933/

2/17/2011 2:30 PM  
Blogger Mark said...

[Bolivia perhaps is doing the same. This has been 'news' since 2011. Still unpassed as of the date below.]

Law of Mother Earth sees Bolivia pilot new social and economic model based on protection of and respect for nature.
May 29 2012

Bolivia is to become the first country in the world to give nature comprehensive legal rights in an effort...to improve quality of life for the Bolivian people.

Developed by grassroots social groups and agreed by politicians, the Law of Mother Earth recognises the rights of all living things, giving the natural world equal status to human beings.

Once fully approved, the legislation will provide the Earth with rights to: life and regeneration; biodiversity and freedom from genetic modification; pure water; clean air; naturally balanced systems; restoration from the effects of human activity; and freedom from contamination.

The legislation is based on broader principles of living in harmony with the Earth and prioritising the “collective good.” At its heart is an understanding that the Earth is sacred, which arises from the indigenous Andean worldview of ‘Pachamama’ (meaning Mother Earth) as a living being. An initial act outlining the rights – which was passed by Bolivia’s national congress in December 2010 and paves the way for the full legislation – defines Mother Earth as a dynamic and “indivisible community of all living systems and living organisms, interrelated, interdependent and complementary, which share a common destiny.”

Bolivia’s government will be legally bound to prioritise the wellbeing of its citizens and the natural world by developing policies that promote sustainability and control industry. The economy must operate within the limits of nature and the country is to work towards energy and food sovereignty while adopting renewable energy technologies and increasing energy efficiency.Preventing climate change is a key objective of the law, which includes protecting the lives of future generations. The government is requesting that rich countries help Bolivia adapt to the effects of climate change in recognition of the environmental debt they owe for their high carbon emissions. Bolivia is “particularly vulnerable to the impacts of climate change,” according to an Oxfam report in 2009, with increasing drought, melting glaciers and flooding.

On the international stage, the government will have a legal duty to promote the uptake of rights for Mother Earth, while also advocating peace and the elimination of all nuclear, chemical and biological weapons. Following a change in Bolivia’s constitution in 2009, the law is part of a complete overhaul of the legal system. It represents a shift away from the western development model to a more holistic vision, based on the indigenous concept of Vivir Bien (to live well).

The proposal for the law states: “Living Well means adopting forms of consumption, behaviour and and conduct that are not degrading to nature. It requires an ethical and spiritual relationship with life. Living Well proposes the complete fulfilment of life and collective happiness.”

Unity Pact, an umbrella group for five Bolivian social movements, prepared the draft law. They represent over 3m people and all of the country’s 36 indigenous groups, the majority of whom are smallscale farmers with many still living on their ancestral lands. The bill protects their livelihoods and diverse cultures from the impacts of industry.

Undarico Pinto, a leader of the social movement Confederación Sindical Única de Trabajadores Campesinos de Bolivia, said: “It will make industry more transparent. It will allow people to regulate industry at national, regional and local levels.”Signifying a fundamental shift away from exploitation of nature, the draft law referrers to mineral resources as “blessings” and states that Mother Earth, “is sacred, fertile and the source of life that feeds and cares for all living beings in her womb. She is in permanent balance, harmony and communication with the cosmos.”

[continued]

6/04/2012 7:46 AM  
Blogger Mark said...

A Ministry of Mother Earth is to be established to promote the new rights and ensure they are complied with. But with its economy currently dependent on exports of natural resources, earning nearly a third of its foreign currency – around £300m a year – from mining companies, Bolivia will need to balance its new obligations against the demands of industry.

Bolivia Rain forest

The full law is expected to pass within the next few months and is unlikely to face any significant opposition because the ruling party, the Movement Towards Socialism, has a considerable majority in parliament. Its leader, President Evo Morales, voiced a commitment to the initiative at the World People’s Conference on Climate change, held in Bolivia in April 2010.



The Law of Mother Earth includes the following:

The right to maintain the integrity of life and natural processes.

The right to not have cellular structure modified or genetically altered.

The right to continue vital cycles and processes free from human alteration.

The right to pure water.

The right to clean air.

The right to balance, to be at equilibrium.

The right to be free of toxic and radioactive pollution.

The right to not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities

The law also promotes “harmony” and “peace” and “the elimination of all nuclear, chemical, biological” weapons.

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http://worldtruth.tv/bolivia-gives-legal-rights-to-the-earth-2/

6/04/2012 7:47 AM  

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