Author: Gavin Barker
In the face of the climate emergency and threatened ecosystem collapse, a future constitution must be a ‘green constitution’ which recognises and protects the life support systems on which we all depend. It must also recognise the ‘right to life’ as a right that belongs to all life, not just that of the human species.
Brexit is a constitutional crisis whose intersection with the climate emergency we face demands whole scale system change, not merely a change of government. We must seize the opportunity afforded by Brexit to re-write the rules by which we are governed.
Those rules must include new ‘Rights of Nature’ embedded in a future ‘green’ constitution that moves beyond the narrow binary relationship between state power and individual rights. The vision of atomised individuals with inalienable rights, standing alone and apart from the social and natural world, has proved to be a dangerous myth that we cling to at our peril. It has overlooked the network of interdependent relationships between the individual, the community in which he or she lives, and the natural world of which we are a part. The right to property in particular, permitted the careless exploitation of the natural world and driven us to the brink of environmental catastrophe.
The centrepiece of a future constitution must be our relationship to the natural world, on whose life support systems we depend for our survival.
The progressive realisation of Rights of Nature rests on three guiding principles:
1. Nature's right to existence
Firstly, that nature, in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles.1 An outstanding example of how this right is expressed in a nations constitution is provided by Ecuador. Article 71 of its constitution states:
"Nature, or Pacha Mama (Mother Earth), where life is reproduced and occurs, 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
2. The legal personality of nature
Secondly, we the people, have the legal authority and responsibility to enforce these rights on behalf of ecosystems. The ecosystem itself can and should be named as the injured party, with its own legal standing rights, in cases alleging rights violations.3
This is no longer an aspiration but a legal imperative being enacted in different parts of the world. An example is New Zealand’s Whanganui River which is a ‘person’ under domestic law, and India’s Ganges River was also recently granted similar rights to protection and treated as a living entity.4 Bolivia passed its Law of Mother Earth in 2010, and a growing Rights of Nature movement is pushing this agenda into the mainstream.5
3. The law of ecocide
Thirdly, a future constitution must include the Law of Ecocide, a new super-law that stands alongside the crime of genocide, crimes against humanity and war crimes. Ecocide is defined as the:
“loss or damage to, or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.”6
The British Barrister, the late Polly Higgins, has led the way in expanding and defining a model legal framework that could be incorporated into The Rome Statute of the International Criminal Court.7 The inclusion of the same Law of Ecocide in a British constitution could empower British courts to prosecute those conducting dangerous industrial activities, the destruction of ecosystems, and the wilful pollution of our atmosphere and rivers.
You can read the Centre's Manifesto for Constitutional Reform here.
- Global Alliance for Rights of Nature website https://therightsofnature.org/what-is-rights-of-nature/?cli_action=1563378179.984
- Constitution of Ecuador Article 71 https://www.constituteproject.org/constitution/Ecuador_2015#s589
- See https://therightsofnature.org/what-is-rights-of-nature/?cli_action=1563378179.984
- See https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being
- GARN website https://therightsofnature.org/
- One Law to Protect Earth https://eradicatingecocide.com/
- Ecocide Crime and the model law https://ecocidelaw.com/the-law/the-model-law/
The publisher is the Centre for Welfare Reform.
The Rights of Nature © Gavin Barker 2019.
All Rights Reserved. No part of this paper may be reproduced in any form without permission from the publisher except for the quotation of brief passages in reviews.
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