58 Article 71. Nature or Pasha Mama, where life is reproduced and occurs, has the right to full respect for its existence and the maintenance and regeneration of its life cycles, structures, functions and evolutionary processes. All individuals, communities, peoples and nations can appeal to the authorities to uphold the rights of nature. In order to ensure respect for and interpretation of these rights, the principles set forth in the Constitution are respected, where appropriate. The State encourages natural and legal persons and communities to protect nature and promote respect for all elements of an ecosystem. “Any object other than a human being to whom the law attributes personality. This extension of the concept of personality beyond the class of men for good and sufficient reasons is one of the most remarkable feats of the legal imagination. The idea of an environmental entity that exists as a legal entity owes its origin to the scientific work of Christopher D. Stone “Should Trees Have Standing? Towards Legal Rights for Natural Objects” and the subsequent reference of the work by Justice William Douglas in Sierra Club v. Morton by the U.S.
Supreme Court in 1972. The case is best remembered for the dissenting opinion of Justice William Douglas, who held that various environmental elements should have standing to sue for their own protection and preservation. By letting regulators speak for various environmental elements, we curbed the interests of these inanimate objects while regulators became increasingly “industry-oriented” and consequently gave in to the idea of development at the expense of natural aesthetic wonders. He believed that everyone who shares a specific relationship with a particular environmental agency should have standing to sue in defense of the environmental organization and its values. He said the idea of an environmental entity having standing to sue was not too far-fetched, as inanimate objects such as ships and corporations were already recognized as acceptable opponents for a range of decision-making processes. By giving the environment the right to be heard, ecological balance and conservation will be better maintained. The concept of protecting the environment in the name of the environment is not new, and widespread environmental damage has a name: ecocide. The Independent Expert Group on the Legal Definition of Ecocide defines ecocide as “illegal or frivolous acts committed knowing that there is a substantial likelihood that such acts will cause serious and widespread or long-term environmental damage.” [54] There are proponents of making ecocide an international crime, as addressed by the Rome Statute of the International Criminal Court (ICC). [54] This would place ecocide alongside currently recognized international crimes such as genocide, war crimes, and crimes against humanity. [54] If one adds, ecocide would be the only crime “where human harm is not a prerequisite for prosecution.” [54] This protection of nature for nature is at the heart of the defence of the environmental personality.
Do people have to be harmed to justify legal action? The concept of ecocide is not new, nor is advocacy for its inclusion in the Rome Statute of the ICC. [54] 12 See Commonwealth v. Newport News, 158 Va. 521, 164 p.E. 689 (1932): The ius publicum and all the rights of the people, which by their nature are events inherent or inseparable from them, are incidents of the sovereignty of the State. Consequently, by reason of the purpose and purposes for which it was designated, the Constitution implicitly denies the legislature the power to surrender, abandon, destroy or seriously impair ius publicum […] Id. at 546, 164 S.E. at 697. Jacques Derrida has described attempts to transfer human rights to animals and ecosystems as “sympathetic but unsustainable naivety” (Derrida & Roudinesco, 2006). Derrida`s critique was aimed at moral and philosophical arguments, “which were so closely tied to the outdated paradigm of subjective reason that they could not adequately grasp the autonomous rights of nature or even animals.
Instead of moral and philosophical extensions of the system of subjective human rights, the concept of the legal subject itself, as well as the idea of consciousness associated with the ability to articulate, should be reconsidered and transformed. This transformation should change the meaning and distribution of rights, fundamental rights and human rights so that the environment and animals, i.e. non-human persons, are no longer “lawless” (Fischer-Lescano, 2020). In response, some have decided to assign legal status directly to nature. In 1972, law professor Christopher Stone wrote an essay entitled “Should Trees Have Standing? – Towards Legal Rights for Natural Objects” (Stone, 1972). It may seem beyond our collective imagination to give rights to nature, but, as Stone writes, “Throughout legal history, any successive extension of rights to a new entity has been somewhat unthinkable. Until the lawless thing has obtained its rights, we cannot see it as anything other than something for the use of `us` – those who have rights at that time” (Stone, 1972). These are not isolated examples. More than 30 indigenous and non-indigenous communities in the United States have passed natural rights laws, court rulings and constitutional amendments in 24 countries around the world, including Canada, Mexico, New Zealand, Colombia and Ecuador. Thirty years of “greening” human rights and constitutions may even suggest an answer to the question of nature`s legal status.
In other words, does the violation of the rights of non-human legal persons de lege lata justify action before administrative courts and transnational courts of fundamental rights and human rights? Or should we consider de lege ferenda the creation of a new institution, such as an International Environment Court, which would have the power to investigate and, when warranted, bring to justice those accused of the most serious environmental crimes of concern to the international community? Traditionally, nature has been subject to a legal regime of property designed by the West, says Monti Aguirre of the environmental group International Rivers.