Constituent power, the rights of nature, and universal jurisdiction.

AuthorColon-Rios, Joel

This article provides a justification for the exercise of universal jurisdiction in cases of serious environmental damage. This justification rests in important ways on the theory of constituent power. The theory of constituent power has an intergenerational component that requires the protection of the environmental conditions that allow future generations to engage in constitution-making episodes. This article maintains that, by virtue of the connections between constituent power, the right to self-determination, and state sovereignty, the justification for the exercise of universal jurisdiction for serious environmental damage is at least as compelling as the justification for its exercise with respect to egregious human rights infringements. In those scenarios, courts exercising universal jurisdiction would be acting to protect the ability of present and future peoples to participate in the constitution and reconstitution of the states that make up the international community. Such a jurisdiction would rest on the authority of humanity as a whole rather than on that of any state or people.

Cet article tente de justifier l'exercice de la juridiction universelle dans les cas de grave dommage a l'environnement. Cette justification se base de facons importantes sur la theorie du pouvoir constituant. Cette theorie comporte un element intergenerationnel qui exige la protection des conditions environnementales qui permettraient aux generations a venir d'entreprendre a leur tour des episodes de creation de constitutions. Cet article soutient qu'en vertu des connexions entre le pouvoir constituant, le droit a l'autodetermination, et a la souverainete de l'etat, la justification de l'exercice de la juridiction universelle dans les cas de grave dommage a l'environnement est au moins aussi puissante que la justification de son exercice dans le contexte des violations flagrantes des droits humains. En exercant la juridiction universelle dans ces scenarios, les tribunaux agiraient pour proteger la capacite des peuples actuels et futurs a participer a la constitution et a la reconstitution des etats qui composent la communaute internationale. Une telle juridiction se fonderait sur l'autorite de l'humanite dans l'ensemble plutot que sur l'autorite d'un etat ou d'un peuple en particulier.

Introduction I. The Rights of Nature Justified from a Democratic Perspective A. Constituent Power: A Brief Introduction B. Democracy; Rights and Constituent Power C. Constituent Power through Time D. The Democratic Legitimacy of the Rights of Nature II. Justifying the Protection of the Rights of Nature through Universal Jurisdiction in Cases of Serious Environmental Damage A. International Law and Constituent Power B. Universal Jurisdiction: A Brief Introduction C. Universal Jurisdiction and State Sovereignty D. The Extraterritorial Protection of die Rights of Nature Conclusion Introduction

On 26 November 2010, a number of citizens from Ecuador, India, Colombia, and Nigeria initiated an action before the Constitutional Court of Ecuador, seeking a remedy for the harms caused by the British Petroleum oil spill in the Gulf of Mexico. (1) They asked the court to issue a number of orders requiring the company to make public information related to the disaster and its impact and to take measures destined at correcting its effects.

The action was unusual for two reasons. First, the acts in question did not occur in Ecuador's territory and did not involve Ecuadorian citizens. In fact, the plaintiffs asked the court to issue the orders against a British corporation based on the principle of universal jurisdiction. Second, none of the plaintiffs claimed to have suffered individual harms as a result of the oil spill. Relying on Article 71 of the new Constitution of Ecuador, (2) they did not ask the court to protect their rights, but "the rights of the ocean". (3)

If one looks at the issues raised by this case from the perspective of constitutional theory, an interesting question arises: Even if one accepts that certain rights are necessary for democracy to exist and that the limits they create on elected representatives are thus justified from a democratic perspective, does this justification extend to the rights of nature? Should the "rights of the ocean", the "rights of a river", or the "rights of trees" limit the decisions of elected institutions of government--decisions that, while having negative environmental impacts, would normally seek to advance a number of legitimate human interests? From an international law perspective, the case raises the no-less-interesting question of whether a constitutional court operating under a constitution that recognizes the rights of nature should exercise jurisdiction in cases of serious harms to the environment, even if those harms are caused by non-citizens outside the country's territory.

Since they arise from an unprecedented scenario, these are questions that have not been fully considered before. They force us to explore deeper issues about the relationship between democracy, state sovereignty, and environmental protection. The answers that this article will provide to those questions are profoundly intertwined with and rest in important ways on the theory of constituent power.

The theory of constituent power is a central concern of modern constitutional theory, and it has been highly influential in the countries where the idea of the rights of nature has gained legal approval: namely, Ecuador and Bolivia. Because of its relationship with democracy and the right to self-determination, the theory of constituent power allows us to directly address the issues raised by the questions posed above.

The first question--whether the recognition of the rights of nature can be justified from a democratic perspective--is the subject of Part 1.1 argue that some rights (including the rights of nature) serve to protect basic conditions that are necessary for the future exercise of constituent power. These basic conditions provide a baseline without which citizens could not meaningfully participate in any type of democratic political action. They include, for instance, the ability of associating with others, the possibility of receiving an education, and the prospect of living in a natural environment in which human life can flourish. Under this view, the fact that the rights of nature would frequently limit the decision-making power of elected officials is not more democratically objectionable than that which occurs when human rights impose similar limits. Rather, respect for these rights (or for their underlying objective) makes democracy possible in the first place. I develop this argument in four steps.

In Part I.A., I introduce the theory of constituent power, according to which in all constitutional orders there is an unlimited constitution maker, an entity not subject to any form of positive law. In a democratic society, that entity cannot be an individual or elite, but the people on whose authority the constitution rests. In Part I.B., I argue that respect for certain rights is necessary for any democratic exercise--including the exercise of constituent power--to take place. This argument does not commit one to any particular institutionalization of judicial review of legislation. Rather, the idea is that a democratically legitimate constitutional regime must respect the rights (or the interests they protect) that are necessary for democracy to exist. In Part I.C., I show that the theory of constituent power has an important intergenerational component: All generations should be able to become authors of their own constitution. Even though most discussions about constituent power are about past episodes of constitution making, the theory of constituent power is mostly about the future. Finally, in Part I.D., I argue that the intergenerational component of the theory of constituent power requires protection of the environmental conditions that would allow future generations to engage in constitution-making episodes, and that the attribution of rights to nature is an attempt to ensure that those conditions are protected.

The second question posed earlier--whether the exercise of universal jurisdiction directed at the protection of the rights of nature in cases of serious environmental damage (4) is justified--is the subject of Part II. The answer that I provide is also informed by the theory of constituent power. I argue that, by virtue of the connections between constituent power, the right to self-determination, and state sovereignty, the justification of the exercise of universal jurisdiction for serious violations of the rights of nature is at least as compelling as the justification for its exercise with respect to egregious human rights infringements. This argument rests on the premise that the objections--which are normally based on the principle of state sovereignty--to the exercise of universal jurisdiction in the context of certain international crimes, do not apply with the same force in the context of serious environmental harms.

After all, the reason that the principle of state sovereignty remains so influential in the twenty-first century is that it is closely connected to the right of self-determination--the external manifestation of the exercise of constituent power. In other words, states are presumed to have been created by their peoples, and that is a very good reason for treating them as sovereign entities. Accordingly, in cases of serious environmental harms--and therefore of grave violations of the rights of nature--the exercise of universal jurisdiction should be seen as a means of protecting the right to self-determination--and, indirectly, state sovereignty. As suggested above, without the presence of certain ecological conditions, any form of democratic political action would be impossible. In other words, courts exercising universal jurisdiction would be acting to...

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