The constitutional protection of the rights of nature ? a goal of the 3rd millennium

Author:PhD Nasty Vladoiu
Position:Professor, PhD, Faculty of Law, 'Transilvania' University of Brasov
Pages:111-119
SUMMARY

The first country that adopted the constitutional rights of nature was the Republic of Ecuador in 2008. This Constitution contains in Title II, Chapter VII, named Rights of nature, 4 (four) articles (71-74), which contain all the hope and obvious progress achieved in this respect. The constitution of this country states, inter alia, that "nature has the right to exist, to persist, to maintain and to renew its life cycles, structures, functions, and evolutionary processes". At the same time, it mentions that the right to restoration is independent of the “obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.” The paper addresses the issue of the rights of nature and expresses the view that more and more countries should adopt internal legislation to protect them through the National Criminal Codes, and criminalize offenses like ecocide. Once the criminal protection of the rights of nature is assured, we can assume that the premises of the constitutional enshrinement of the rights of nature are met. Only upon criminal protection and/or legislation subsequent to the fundamental law we can talk about having a protectionist framework to a certain extent, but for a very effective protection it is a must for the rights of nature to be enshrined at constitutional level.

 
CONTENT
The Constitutional protection of the rights of nature 111
INTERNATIONAL ENVIRONMENTAL LAW
THE CONSTITUTIONAL PROTECTION OF THE RIGHTS
OF NATURE – A GOAL OF THE 3RD MILLENNIUM
PhD Nasty VLDOIU
Professor, PhD
Faculty of Law, “Transilvania” University of Braşov
vladoiu.nasty@unitbv.ro
Abstract
The first country that adopted the constitutional rights of nature was the Republic of
Ecuador in 2008. This Constitution contains in Title II, Chapter VII, named Rights of
nature, 4 (four) articles (71-74), which contain all the hope and obvious progress achieved
in this respect.
The constitution of this country states, inter alia, that "nature has the right to exist, to
persist, to maintain and to renew its life cycles, structures, functions, and evolutionary
processes". At the same time, it mentions that the right to restoration is independent of the
“obligation of the State and natural persons or legal entities to compensate individuals and
communities that depend on affected natural systems.”
The paper addresses the issue of the rights of nature and expresses the view that more
and more countries should adopt internal legislation to protect them through the National
Criminal Codes, and criminalize offenses like ecocide.
Once the criminal protection of the rights of nature is assured, we can assume that the
premises of the constitutional enshrinement of the rights of nature are met. Only upon
criminal protection and/or legislation subsequent to the fundamental law we can talk about
having a protectionist framework to a certain extent, but for a very effective protection it is
a must for the rights of nature to be enshrined at constitutional level.
Keywords: Mother Earth, Rights of Nature, Ecocide, Biocrime, Universal
Declaration of Rights of Mother Earth.
One of the greatest and most important concerns of today's humanity is to
preserve nature so that future generations can benefit from a healthy environment
as little touched by man's destructive actions. The extent to which man has
succeeded or has failed to protect nature is questionable, but one thing is certain:
Law Review vol. VII, issue 2, July-December 2017, pp. 111-119
112 NASTY VLĂDOIU
following man's interaction with nature, the latter had suffered, is and will suffer
in relation to the invasive development trend of mankind.
Man as an intelligent being has shown that his superiority to other beings
stems from the existence of his endowment with consciousness, an element that
makes the difference and which puts man first in the top of the importance of the
creatures on Earth. It is the man who knew how to identify and preserve his rights
in relation to some of his peers who at some point abandoned the idea of equality
and respect and tried to arrogate different advantages within his society. Thus, at
this time we can talk about an exhaustive international protection of human rights,
both through legal instruments of international vocation, through national
fundamental laws and their subsequent legislation, as well as through organi-
zations and bodies set up for the purpose of their application.
About the protection of human rights has been discussed throughout history
many times, but the point of reference in this field is marked by the adoption of the
Universal Declaration of Human Rights (1948), a declarative international
instrument of rights, without binding legal force, whose provisions are in one way
or another in all the fundamental laws subsequently adopted at national level. In
the human-nature report, however, it seems that man forgotten Mother Earth and
its imperiously needed protection, whose rights are discussed about fairly late,
being configured in a Universal Declaration in the year of 2010. If, with regard to
human rights, man succeeded in introducing them into national constitutions,
preserving them and raising them to the "religion of the end of the century,1" then
this is not the case in terms of the rights of nature. In the vast majority of the
modern constitutions of the countries around the world, the rights of nature are
not included nor are attempts to harmonize in this sense. The priority is the
economic development through the exploitation of nature by man and his interests
prevail to the detriment of nature.
The first country that adopted the constitutional rights of nature was the
Republic of Ecuador in 2008. This Constitution contains in Title II, Chapter VII,
named Rights of nature, 4 (four) articles (71-74), which contain all the hope and
obvious progress achieved in this respect. We will not dwell much on the content
of these four articles because we will discuss the articles in the Universal
Declaration adopted on April 22, 2010 at the Conference of Nations on climate
change and Mother Earth's rights, held in Cochabamba, Bolivia, which has a
similar content. Some succinct explanations, however, are required. It is welcomed
the initiative of the Republic of Ecuador, which became the first country in the
world to declare constitutional rights to nature, thus establishing a new system of
environmental protection and reflecting the beliefs and traditions of the
Ecuadorian indigenous peoples.
1 Adrian Nstase – Human Rights Religion of the End of the Century, Publishing House The
Romanian Institute for Human Rights, 1992
The Constitutional protection of the rights of nature 113
The constitution of this country states that nature “has the right to integral
respect for its existence and for the maintenance and regeneration of its life cycles,
structure, functions and evolutionary processes.2” At the same time, it mentions
that the right to restoration is independent of the “obligation of the State and
natural persons or legal entities to compensate individuals and communities that
depend on affected natural systems.3” So the Constitution of the Republic of
Ecuador redefines man's relationship with nature, claiming that nature is not only
an object that can be owned and exploited by humans, but is rather an entity that
has rights that should be considered fairly and anchored under legislative
protection. Of course, it is worth considering that there have been difficulties in
applying the Ecuadorian constitutional provisions and there are contradictions
with existing laws and the objective reality. Also the interest of some entities,
transnational corporations attempting to cancel the rights of nature, is felt.
Very interesting is the idea of changing the paradigm consisting in the fact that
nature moves from the object model that can be taken and exploited by people to
the model of an entity having rights. The desideratum of a new developmental
model in which human beings must be regarded as interdependent in nature and
not as dominant exploiters is being created. It can be said, without fear of
mistaking, that recognition of the "Rights of Nature" is a global-scale progress that
has to be disseminated and discussed internationally, showing that the Republic of
Ecuador has the merit of seeking new ways of solving different environmental
crises. Equally welcome is the idea of creating the first International Rights of
Nature Tribunal in Quito, Ecuador4.
The Tribunal has jurisdiction to settle cases on the basis of the Universal
Declaration of The Rights Of Mother Earth, adopted in Cochabamba on 20 April
2010, by a number of 35,000 people present at a global summit on the subject. The
Tribunal has already dealt with nine cases submitted by the Prosecutor of the
Earth, Ramiro Avila (Ecuador), including: Chevron - Texaco (Ecuador) pollution;
oil spill of BP Deep Horizon (USA); the destruction of the Great Barrier Reef by
coal mines (Australia); hydraulic fracturing (USA). At the same time, two more
cases with a global impact have been submitted to the Tribunal, which represent a
systematic violation of Mother Nature's rights, namely the threat of Genetically
Modified Organisms (GMOs) and Climate Change. The Tribunal sessions were
attended by participants from: Australia, Switzerland, South Africa, USA, Spain,
Canada, India, Romania, Bolivia, Argentina, Great Britain etc. who have
understood that the earth's vital system and communities at international level are
facing environmental crises such as climate change, desertification, massive
2 The Constitution of Ecuador, Article 71, par. 1
3 Idem
4 See The International Rights of Nature Tribunal website at https://therightsofnature.org/
rights-of-nature-tribunal/
114 NASTY VLĂDOIU
deforestation, toxic contamination, extinction of species, etc. all generating tragic
repercussions on all forms of life.
It seems that 2010 was rich in lex ferenda proposals and the adoption of
effective legal instruments on the protection of the rights of nature at international
level. This year, lawyer Polly Higgins proposed to the Rome Statute to include in
Article 5 also the ecocide on the list of international crimes already existing. Mrs
Higgins's proposal was well received by the UN Commission on the International
Law, mandated to promote the progressive development of International Law and
its codification. Acceptance by the committee was published in Chapters 5 and 6 of
the first written book in the field by the distinguished lady lawyer, under the title
Eradicating Ecocide5.
The actual proposal at that time was to create and define, in Article 5 of the
Rome Statute, the ecocide offense and to place it at the highest level in
International Law, in the framework of the crimes against peace (Crime Against
Peace). Of course, since this is a crime, the place of discussion could be the field of
International Criminal Law as a division of Public International Law. Thus, we
recall an earlier idea that we proposed, which insisted on the need to codify several
international crimes, and the initiative to create an International Criminal Code. On
that occasion, we have defined the text of the international crime of Biocrime,
which protects the essence of the human being, namely the Genome of the
Descendancy6.
It is very important that the international ecocide offense is codified at this
time in the Rome Statute, since at the beginning of 2016 this included 122 nations
as signatory parties. As a consequence, for the commission of a crime against
peace, the jurisdiction to resolve the case lies with the International Criminal
Court.
Currently, the Rome Statute includes in Article 5 (1) the following international
offenses: 1. The Crime of Genocide, 2. Crime Against Humanity, 3. War Crimes , 4.
The Crime of Aggression, and the last to be added, number 5, The Crime of
Ecocide7.
It is important to note that both the provisions of criminal law and civil law
apply to ecocides. Last but not least, it should be recalled that there have been
proposals for the establishment of an International Environment Court with the
main task of resolving legal conflicts in the so-called Ecocide Law, which contains
provisions on preventing, forbidding and taking political, financial and business
decisions to remove the human causes generating ecocide and natural disasters.
5 Polly Higgins, Eradicating Ecocide: Laws and Governance to prevent the destruction of our
planet, 2010, 2nd Ed. 2015, End Earth is our Business 2011
6 See Nasty.M.Vladoiu, Biocrime – A new concept, publicat în ”Criminal Law Review”, Volumul
I, Ediţia 1, Ian-Iun.2013, http://www.criminallawreview.eu
7 See Article 5.1. of The Rome Statute of the International Criminal Court
The Constitutional protection of the rights of nature 115
To what extent the new proposed International Environment Court will
compete with the Rights of Nature Tribunal set up in Quito (Ecuador), is an
interesting matter to be noticed for the future.
The concern regarding the elaboration of the so-called Ecocide Act began in
2011 when a group of lawyers led by Polly Higgins were preparing for an
important case in this field before the UK Supreme Court. In fact, the Ecocide Act
has been transposed into the European Parliament Directive on Ecocide, proposed
by the Social Movement, "End Ecocide On Earth."8 Section 6 (six) of the Ecocide Act
provides the explicit version of the ecocide offense having the following definition,
“The right to life is a universal right and where a person, company, organisation,
partnership, or any other legal entity causes extensive damage to, destruction of or
loss of human and or non-human life of the inhabitants of a territory … is guilty of
the crime of Ecocide.9
We can not conclude the brief discussion on ecocide presented herein without
showing that the ecocide law was an initiative of Mr. Olof Palme, Prime Minister
of Sweden, since 1972. He held a particularly interesting and explicit speech at the
Stockholm Conference, which focused on the environment for the Man
emphasizing the Vietnam war, which was considered by him an ecocide of the
moment. In fact, at the time, Indira Gandhi of India, as well as Tang Ke, the leader
of the Chinese delegation, called for the ecocide to be considered an international
offense. During the conference, a working group was set up to draw up a draft of
the Ecocide Convention adopted in 1973 by the United Nations. The ecocide
offense was included in the draft of the Rome Statute (1985-1986), after which it
was removed, following that in our times to be reconsidered, as explained in this
paper10. The ecocide offense is now criminalized in 10 countries that considered it
imperative to provide criminal protection against this crime11.
Regarding the Universal Declaration of Rights of Mother Earth adopted on
April 20, 2010 at the the The World People's Conference on Climate Change and
the Rights of Mother Earth, in Cochabamba, Bolivia, we note the following: First,
we were saying that there is a major paradigm shift from nature as a good, object
susceptible of being the property of someone, to "Mother Earth is a Being" as
stipulated in Art. 1 par. 1 of the above-mentioned Universal Declaration. The same
states that "Mother Earth is a unique, indivisible and self-regulating community of
interconnected beings who sustain, contain and reproduce all beings." Moreover, it
is shown that "every being belongs to the Mother Earth" and that "the inherent
8 See more at http://endecocide.org/
9 See Ecocide Act at http://eradicatingecocide.com/wp-content/uploads/2015/11/EL-
factsheet_English11.15.pdf
10 Prof. D. Short et al, Ecocide is the Missing 5th Crime Against Peace, 2012, 2013
https://www.sas.ac.uk/node/1033
11 See the Penal Codes of Georgia, Armenia, Ukraine, Belarus, Kazakhstan, Kyrgyzstan,
Moldova, Russia, Tajikistan, Vietnam.
116 NASTY VLĂDOIU
rights of Mother Earth are inalienable, having as their source their own
existence.12" Very important to note that Article 1 mentions the rights of other
beings in relation to human rights. Thus, in order to maintain the framework of an
objective reality, the proportion is preserved, considering that "as men have their
rights, and other beings have their own specific rights species or their kind and
appropriate to their role and function in the communities in which they exist "13.
This idea is strengthened by para. 7 of art. 1 of the Universal Declaration, the
authors showing that "the rights of every being are limited by the rights of another
being, and any conflict between these rights must be concluded without affecting
the integrity, balance and health of Mother Earth.14" Taking into consideration
those hereby mentioned, we find out that it is distinguished and acknowledged
that there is a supremacy of beings and species. Although they take their right to
limit the rights of other beings from this supremacy the conflict generated by the
protection of these rights must be resolved in the light of the integrity, balance and
health of Mother Earth. This consideration creates the prerequisites for setting up
the provisions of Article 2, the inherent rights of Mother Earth.
Those referred to in Article 2 of the Declaration, come to distinguish the
paradigm difference between nature as an object susceptible to property and the
acceptance of Mother Earth as a being who has rights together with all the beings
that make up her. Thus are stated rights as: the right to live and to exist, the right to
respect, the right to resources as a source of life in general, the right to full health
without human intervention over the life cycle, and last but not least, the right to
healing if the violation of recognized rights has as cause the human activities
through contamination, pollution etc.
Article 3 of the Universal Declaration on the Rights of Mother Earth gives
implicitly, following a complete point-to-point interpretation, the supreme position
of the binomial Man-Mother Earth, but at the same time, stigmatizes man as the
generator and principal guilty of the destruction and damage to it.
We will not dwell on each of the obligations punctually, we will mention only
the basic ideas of this article, consisting of clear requirements, such as: the
promotion of economic systems in harmony with nature, the maintenance of peace
through the elimination of nuclear, chemical and biological weapons, the
assurance of human well-being in consensus with the contribution to the welfare of
Mother Earth, the observance, protection and preservation of the restoration of the
integrity of vital cycles, processes and balance of nature, and last but not least,
ensuring that the destruction caused by the violation of these rights by people is
restored and that the evildoers will be held accountable.
12 Article 1 of the Universal Declaration of Rights of Mother Earth http://therightsof
nature.org/universal-declaration/
13 Idem
14 Idem
The Constitutional protection of the rights of nature 117
One can easily discern the idea, after reading this article in detail, that man is
considered both the principal guilty of the destruction and damage to Mother
Earth and the main culprit for the destruction and damage to Mother Earth, and
the main savior and physician in the permanent service for the protection of its
health and all beings living in interdependence with man. To the extent that the
existence of alien beings, as has already been undoubtedly expressed by NASA
official representatives and not only, man has to become the first diplomat
empowered with concrete tasks to defend the health and safety of the planet, and
to promote the rights of Mother Earth together with all existing beings in
interdependence.
Article 4 (1) of the Universal Declaration reveals a succinct definition of the
term "being," considering that it includes ecosystems, natural communities,
species, and any other natural entities that are part of Mother Earth. Paragraph 2
states that "this Universal Declaration does not hinder the recognition of other
inherent rights of all beings or specific beings.15" Hence the fact that the authors
have been desirous and given an open and complementary character by adopting
a cooperative attitude through this document in relation to other existing or future
documents of the same kind.
It is well known that effective protection of certain rights, without claiming to
be exhaustive, is achieved through the adoption of well-structured legal instru-
ments and, at the same time, through the creation of bodies and organizations,
having as main activity the implementation of these legal instruments. With regard
to the basic legal instrument on this matter, we believe that the Universal
Declaration of Rights of Mother Earth can be considered a cornerstone of the
international system for the protection of the rights in question. In terms of bodies
and organizations which have as their object the implementation of instruments
adopted in the field, they should be sustained and supported internationally. We
must mention here the Global Alliance for the Rights of Nature, which is known to
be a global movement created to organize and strengthen communities that respect
and defend the rights of nature16. The "Alliance", which played an extremely
important role in the adoption and implementation of the Universal Declaration of
Rights of Mother Earth, seeks to ensure that the rights of the Earth and all living
beings are recognized and at the same time to ensure the integrity and health of the
Earth and its communities. We will not analyze the existence and effectiveness of
other bodies or organizations with international or national vocation in the field,
but we make it clear that there is interest in setting up effective legal entities such
as the Bolivian Environment Ombudsman.
Of course, we cannot forget the European countries that have presented
interest in this issue. Thus, Switzerland recognizes the dignity of all beings in its
15 Article 4, para. 2 of the Universal Declration of Rights of Mother Earth
http://therightsofnature.org/universal-declaration/
16 See www.therrightsofnature.org
118 NASTY VLĂDOIU
constitution, Spain recognizes the rights of monkeys, the United Kingdom
Government has publicly stated that animals are sensitive beings and not just
goods, even Romania has proposed a law that recognizes the dolphin as a rights
holder.
Analyzing all the above, without claiming that the present study has
exhaustively addressed the issue in question, and recalling that Ecuador is the first
country to adopt in 2008 a Constitution that also embraced the rights of nature, the
legitimate question is whether other countries should adopt the same position to
create a harmonious legal protection at global level. We believe that the first step
could be the adoption by several states of national legislation that protects the
rights of nature through national criminal codes, incriminating crimes such as the
ecocide. Once the criminal protection of the rights of nature is assured, we can
assume that the premises of the constitutional enshrinement of the rights of nature
are met. Only upon criminal protection and/or legislation subsequent to the
fundamental law we can talk about having a protectionist framework to a certain
extent, but for a very effective protection it is a must for the rights of nature to be
enshrined at constitutional level. Only the constitutional protection of this type of
rights will surely ensure their true observance and will create that continuous and
permanent framework of control over the constitutionality of the legislation
following the fundamental law, which in most cases regulates rather abusively in
this area. The situation of Romania in terms of the possibility of introducing such
rights into the Constitution of the country is both in terms of the profile of the
Romanian citizen and of the entire Romanian society, prolific for the adoption of
such regulations.
The more distant and recent history shows an extraordinary appetite for the
protection of the man-nature relationship by the Romanians. We avail of this
opportunity to launch an invitation to a profound analysis of the actual
possibilities to achieve this desideratum, which would surely bring Romania
among the most advanced countries also from this perspective. At the same time,
we challenge the decision-makers to analyze the opportunity and necessity of
adopting such constitutional provisions, which at this moment we estimate to be a
lex ferenda proposal.
Finally, we express firmly the belief that the Romanian citizen has at this
moment, both individually and at the level of the entire society, the vibrational,
intellectual and, last but not least, the emotional qualities to start and implement
this project of real importance, both for our country and globally.
REFERENCES:
1. Adrian Nstase – Human Rights Religion of the End of the Century,
Publishing House The Romanian Institute for Human Rights, 1992
2. The Constitution of Ecuador, Article 71, par. 1
The Constitutional protection of the rights of nature 119
3. Polly Higgins, Eradicating Ecocide: Laws and Governance to prevent the
destruction of our planet, 2010, 2nd Ed. 2015, End Earth is our Business 2011
4. Nasty.M.Vladoiu, Biocrime – A new concept, publicat în ”Criminal Law
Review”, Volumul I, Ediţia 1, Ian-Iun.2013, http://www.criminallawreview.eu
5. The Rome Statute of the International Criminal Court
6. The Ecocide Act
7. Prof. D. Short et al, Ecocide is the Missing 5th Crime Against Peace, 2012,
2013
8. Penal Codes of Georgia, Armenia, Ukraine, Belarus, Kazakhstan,
Kyrgyzstan, Moldova, Russia, Tajikistan, Vietnam.
9. The Universal Declaration of Rights of Mother Earth