Sumac Kawsay

Sumac Kawsay Buen Vivir (“good living”) rooted in the cosmovisión (or worldview) of the Quechua peoples of the Andes, sumak kawsay – or buen vivir, to give it its Spanish name – a way of doing things that is community- centric, ecologically-balanced and culturally-sensitive. [1] The concept is related to the tradition of legal and political scholarship advocating legal standing for the natural environment. [2] The rights approach is a break away from traditional environmental regulatory systems, which look at nature as property and legalize and manage degradation of the environment rather than prevent it. [3]Since 2000, the constitution of the United States (Article 120), but the implications of this provision are still not very clear. With the enactment of its 2008 Constitution , Ecuador became the first country in the world to codify the Rights of Nature. Articles 10 and 71-74 of the Ecuadorian Constitution recognize the inalienable rights of ecosystems to exist and flourish, gives people the authority to petition on the terms of ecosystems, and requires the government to remedy violations of these rights.

History

Further information: Plant Rights and Environmental Movement

Rights of nature in legal history

In his famous work, “Should Trees Have Standing?”, Christopher Stone presented the case for conferring legal personality and rights on the environment. As Stone Explained, As a Rights-holder the natural object would “have a legally recognizable worth and dignity in its own right, and not only to a means to benefit us”. To achieve rights-holder status, the natural object must satisfy three criteria: [First] second, that in determining the granting of legal relief; and third, that relief must run to the benefit of it. [2]

In his dissenting opinion in the environmental landmark casemark, Sierra Club c. Morton , 405 US 727 (1972), Justice William O. Douglas argued that “inanimate objects” should be standing to sue in short:

The critical question of “standing” would be simplified, but it would be more important if we were to focus on the issue of environmental protection. invaded by roads and bulldozers and where is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing on the environment for their own preservation. This suit would therefore be more properly labeled as Mineral King v. Morton. [4]

Douglas continued:

Inanimate objects are sometimes parts in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole-a creature of ecclesiastical law-is an acceptable adversary and large fortunes rides on its cases …. So it should be respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, gold Even more, it feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes-fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river is plaintiff speaks for the ecological unit of life that is part of it. [4]

In 2012 New Zealand ‘s Whanganui River has been legally declared to protect its interests. [5] [6] [7]

Ecuador Development

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Outcome from neoliberal development in Ecuador

The Rights of Nature articles in Ecuador’s constitution are part of a reaction to a combination of political, economic, and social phenomena. Ecuador’s abusive past with the oil industry , most famously the class-action litigation against Chevron , and the failure of an extraction-based economy and neoliberal reforms to bring economic prosperity to the region. Rafael Correa , and sparked a demand for new approaches to development. In conjunction with this need, the principle of ” Buen Viviror good living, which focuses on social, environmental and spiritual wealth versus material wealth, acquired popularity among citizens and was incorporated into the new constitution. [8]

The influence of indigenous groups, from which the concept of Buen Vivir originates, in the formation of the constitutional ideals also facilitated the incorporation of the Rights of Nature as a basic tenet of their culture and conceptualization of Buen Vivir . [9]

The ” Washington Consensus ” did not create prosperity for much of Ecuador’s population, especially its indigenous peoples , who made up about 40% of the country’s population. [10] [11] The economy, based on the export of the country’s raw materials, has been wrought on the environment, in the area of ​​biological diversity. [12] The global economic crisis of 2008 revealed the vulnerabilities of an extractive economy, and a new era of political economy in post-neoliberal development paradigm. [9][10] In late 2006, the election of leftist Rafael Correa, who ran on an anti-neoliberal platform, showed the emergence of a new political era for Ecuador. [12]

Buen Vivir 

Buen vivir (“good living”) emerged as a response to the traditional strategies for development and their negative environmental, social, or economic effects. Buen Vivir is an alternative concept of development that focuses on the attainment of “good life” in a broad sense, only achievable within a community; a community that includes Nature. A popular approach to Buen Vivir is the Ecuadorian concept of sumak kawsay , meaning a full life in kichwa . Part of this concept also emphasizes living in harmony with other people and nature. Buen vivir has gained new popularity, spreading throughout parts of South Americaand evolving a multicultural concept. Social consensus led to the inclusion of Buen Vivir in Ecuador’s new constitution, supported by an alternative to neoliberal development. The constitution outlines Buen Vivir as a set of rights, one of which is the rights of nature. [8] In line with the assertion of these rights, Buen Vivir changes the relationship between nature and humans to a more bio-pluralistic view, eliminating the separation between nature and society. [8] [13]

Indigenous movement

The inclusion of “Buen Vivir” and “Rights of Nature” in the constitution has been used extensively to increase the influence of indigenous activists in the political realm. After several years of economic and environmental conditions, they have come into contact with each other, which has become more important to them. [12] After being white Historically excluded from the political process, indigenous groups, Especially Worsening Concerned about the environmental devastation of the mining business and global climate change, started social movements aimed at creating a new approach to development that would protect the environment and harmonize its relationship with people. CONAIE (National Confederation of Indigenous Nationalities of Ecuador), the largest federation of indigenous movements, encompassing 14 of the nation’s indigenous groups, and other groups focused on social justice , culture, history, and land rights, and their concepts of sumak kawsay and Pachamama (English: “Mother Nature”). [9]

Drafting

President Rafael Correa included calling for a constitutional assembly in his 2006 campaign. On April 15, 2007, over 80% of Ecuadorians voted in favor of calling a new assembly, thanks in large part to the support of indigenous communities. Indigenous groups have been pressuring for a new, more inclusive constitution for years, and have been involved in the drafting process. Alberto Acosta, the elected Assembly President, in the constitution. In the end, a few indigenous representatives have been elected to the assembly. [9] To create a constitution based on the principles of Buen Vivir , the Constitutional Assembly, with the advice of the PachamamaAlliance, enlisted the help of the Community Environmental Legal Defense Fund (CELDF) to draft language for the new provisions of the Constitution detailing the Rights of Nature. [3] Indigenous groups also played a role in the drafting process. Fundación Pachamama, in conjunction with leaders in CONAIE, brings them together for their constitution and gain support. A national media campaign detailing the tenets of the new constitution and the Rights of Nature was also launched to gain support from the public. [14]

Adoption

On April 10, 2008, with 91 votes out of 130, the Constitutional Assembly approved Article 10 for inclusion in the new constitution. On June 7, the language of Articles 71 through 74, compiling the Rights of Nature, were presented and debated on, before receiving approval for inclusion in the constitution. [14]

On September 28, 2008, a mandatory referendum was held to vote on the new constitution, where the adoption of the constitution was approved by 65% ​​of voters. [15]

Text of the Rights of Nature

Title II

Rights

Chapter one

Principles for the enforcement of rights

Article 10. Persons, communities, peoples, nations and communities are protected by the Constitution and international instruments. Nature shall be the subject of those rights that the Constitution recognizes for it.

Chapter seven

Rights of nature

Article 71. Nature, or Pasha Mama, where life is reproduced and occurs, has the right to full respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate. The State shall give incentives to natural persons and legal entities and to protect the environment.

Article 72. Nature has the right to be restored. This restoration shall be subject to the obligation of the State and natural persons to compensate individuals and communities. In those cases of severe or permanent environmental impact, including those caused by the exploitation of nonrenewable natural resources, the State shall establish the most effective mechanisms to achieve and restore the effects of environmental protection.

Article 73. The State shall apply preventive and restrictive measures on activities that may lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles. The introduction of organic and inorganic materials that is potentially unstable.

Article 74. Persons, communities, peoples, and nations shall have the right to benefit from the environment and the natural world. Environmental services shall not be subject to appropriation; their production, delivery, use and development will be regulated by the State. [16]

Significance

The Rights of Nature is the first case where this concept has been evoked at the national level. The articles set out a rights-based system that recognizes Nature, or Pachamama, as a right-bearing entity that holds value in itself, apart from human use. This differs from traditional landowners, giving landowners the right to damage or destroying ecosystems that depend on their land. The rights-based approach in the United States of America and the United States of America. The system also assigns liability for damage to the environment and holds the government responsible for the repair of any damage. Furthermore, if an ecosystem is protected, it shall be subject to the jurisdiction of the government to ensure that its interests are not subverted to the interests of individuals or corporations. [3] [10]

The inclusion of the Rights of Nature also makes the constitution more democratic and inclusive, as it reflects the indigenes’ idea of ​​nature. This is the first constitution that has incorporated indigenous concepts of sumak kawsay and Pachamama , as well as recognized the plurinationality of Ecuador. This has broad significance for the recognition of indigenous groups and their right to preserve their land and culture. The combination of human rights and the protection of indigenous communities. [14]

The Rights of Nature also makes the relationship between nature and humans by asserting that nature is not just an object. [17] By putting ecosystems on an equal footing with humans, the design of humans as a whole [8] Instead, this system celebrates nature and recognizes that humans are a part of it. [12]

The Rights of Nature are further developed by the National Plan for Good Living, which states guaranteeing the Rights of Nature and promoting healthy living. Policies under the objective of protecting the environment and diversity of the environment and the effects of climate change , and the prevention of climate change . [13]

Legal effects

The Rights of Nature has been applied to several legal disputes and considered in government development initiatives.

Wheeler c. Director of the Procuraduria General Del Estado de Loja

Wheeler c. Director of the Procuraduria General Del Estado de Loja was the first case in history to vindicate the Rights of Nature. The lawsuit was filed against the local government near Rio Vilcabamba in March 2011, who were responsible for a road expansion project that dumped debris into the river, narrowing its width and thus doubling its speed. The project was also completed with an environmental impact assessmentor consent of the local residents. The case was filed by two such residents, citing the violation of the Rights of Nature, rather than property rights, for the damage done to the river. The case was important because the courts of the United States would have been in conflict with each other, setting an important precedent. The proceedings also confirm that the burden of proof is not impaired. The plaintiffs were granted a victory in court, the enforcement of the ruling has been lacking, the local government has slow to comply with the mandated reparations. [18]

República del Ecuador Asamblea Nacional, Comisión de la Biodiversidad and Recursos Naturales

In March 2011, right after the ruling on the Wheeler case, the government of Ecuador filed a box against illegal gold mining operations in northern Ecuador, in the remote districts of San Lorenzo and Eloy Alfaro. The rights of nature were violated by the mining operations, which were submitted to polluting the nearby rivers. This case is different from the previous one in that it was the government addressing the violation of the rights of nature. It was also swiftly enforced, as it was used and implemented. [18]

Yasuni ITT initiative

The Yasuni-Ishpingo, Tambococha, and Tiputini (ITT) Initiative, referring to the corridor of oil reserves dans le Yasuni National Park , is the first post-oil development initiative That Recognizes que la Gained benefits from the Amazonare greater than the economic benefits of oil extraction. The aim of the initiative is to protect the biodiversity of the area, which has been declared to be in place by the international community. receive from the oil extraction (approximately $ 3.5 billion). These funds would be used to fund other economic initiatives to alleviate poverty and develop the renewable energy sector. The importance of keeping the oil in the ITT area in the ground has-been argued as of international importance to Mitigate the effects of global climate change by Preventing CO 2emissions and the local environmental devastation the extraction would cause. The Rights of Nature and other articles of the constitution also make the protection of the park a legal imperative, as the extraction would be a violation of nature’s rights. [10] But there was some difficulty in the development of the initiative, with the national constitution already in place, eventually in August 2010 Ecuador of Yasuní Guarantee Certificates, denoting the amount of CO 2 emissions avoided and their monetary value, which may be used in the European Union Emission Trading Scheme .[12]

Reactions

Praise

The adoption of the Rights of Nature by Ecuador has been praised internationally by many countries. [11] Initiatives to adopt the concept of ecosystems taken from various parts of the world, including Bolivia, Turkey, Nepal, and various municipalities in the United States. [3]

Criticisms

Criticisms of the Rights of Nature on the mechanisms of supply. One criticism is that the constitution establishes better regulations for the environment, it also gives the state the power to relax these regulations in the national interest. [12] Therefore, much of the enforcement of the ecosystem rights depends on the government, or an active citizenry. [9] Indigenous groups have also expressed dissatisfaction that the constitution does not give local communities veto power over projects. [14]Others also have a major weakness of the constitution, which is undermined by their ability to uphold the rights of nature. [17] There are also concerns that the Rights of Nature could negatively affect foreigncompanies. [11] On the other hand, people are skeptical of the Correa administration for still approving projects by foreign extraction companies violating the Rights of Nature. [17]

References

  1. Jump up^ Balch, Oliver (2013-02-04). “Buen vivir: the social philosophy inspiring movements in South America” . The Guardian . ISSN  0261-3077 . Retrieved 2017-03-19 .
  2. ^ Jump up to:b Stone CD, Should Trees Have Standing? Toward Legal Rights for Natural Objects. Southern California Law Review 1972; 45: 450; W Kaufmann, Los Altos, 1974 p 8
  3. ^ Jump up to:d Community Environmental Legal Defense Fund (CELDF). 2008. http://www.celdf.org/ , accessed April, 2012.
  4. ^ Jump up to:b Sierra Club v. Morton , 405 US 727 , 741-43 (USSC 1972).
  5. Jump up^ Shuttleworth, Kate (30 August 2012). “Whanganui River Authority to legal identity” . New Zealand Herald .
  6. Jump up^ Fairbrother, Alison (18 September 2012). “New Zealand’s Whanganui River Gains A Legal Voice” . Huffington Post .
  7. Jump up^ Vines, T., Bruce, A., Faunce, TA,”Planetary Medicine and the Waitangi Whanganui River Tribunal Report”,Journal of Law and Medicine2013; 20: 528
  8. ^ Jump up to:d Gudynas Eduardo. 2011. Buen Vivir: Today’s Tomorrow Development 54 (4): 441-447.
  9. ^ Jump up to:e Becker, Mark. 2011 Correa, Indigenous Movements, and the Writing of a New Constitution in Ecuador. Latin American Perspectives 38 (1): 47-62.
  10. ^ Jump up to:d Acosta, Alberto, Eduardo Gudynas, Esperanza Martínez, and Joseph H. Vogel 2009. Leaving the Oil in the Ground: A Political, Economic, and Ecological Initiative in the Ecuadorian Amazon. Americas Program Policy Report.
  11. ^ Jump up to:c Madden, Christina L. 2008 Wild Gone Laws in Ecuador: Indigenous Peoples and Ecosystems Gain Rights. Policy Innovations. http://www.policyinnovations.org/ideas/briefings/data/000077
  12. ^ Jump up to:f Arsel Murat 2012. Between ‘Marx and Markets? The State, The ‘Left Turn’ And Nature In Ecuador. Tijdschrift Voor Economische En Sociale Geografie (Journal of Economic and Social Geography) 103 (2): 150-163.
  13. ^ Jump up to:b SENPLADES. 2009 National Plan for Good Living. Electronic document, http://plan2009.senplades.gob.ec/web/en/presentation , accessed May, 2012.
  14. ^ Jump up to:d Fundación Pachamama (FP). 2011 “Recognizing Rights for Nature in the Ecuadorian Constitution”
  15. Jump up^ Smith, Gar. 2009, “In Ecuador, Trees Now Have Rights,”Earth Island Journal23 (4): 15-15.
  16. Jump up^ “2008 Constitution of the Republic of Ecuador, Political Database of the Americas (PDBA)”.
  17. ^ Jump up to:c Mychalejko Cyril. 2008 Ecuador’s Constitution Gives Rights to Nature. Philadelphia Independent Media Center.
  18. ^ Jump up to:b Daly, Erin. 2012 “Ecuadorian Exemplar: The First Ever vengeances of Constitutional Rights” , Review of European Community & International Environmental Law 21 (1): 63-66.

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