Читать книгу Derechos Ambientales, conflictividad y paz ambiental - Gregorio Mesa Cuadros - Страница 16

The global environmental problem expressed in specific environmental conflicts in the territories, calls for the construction of political-legal mechanisms to resolve them in ways that are not more burdensome for humans and other beings, who have been the most affected by that unrest.

As mentioned before, the negative consequences of the accelerated processes of appropriation, predation and pollution have generated environmental injustices that require attention for their solution from the different disciplines of knowledge and the requirement of concretion for the adequate protection of all the rights.

In this sense, we want to formulate a theory of the integrality of rights, based on the need to overcome the deficit of modern liberal theories that do not do much to make the protection of the rights of those affected by the generalization of conflict effective. This theory seeks to offer some alternatives for the definition of the current and future bases of human dignity, which will only be possible within the context of environmental dignity.

From an adequate conceptualization and foundation, the theory of environmental rights that we defend here considers that all beings can be subjects of law. These ideas of rights must be debated in various juridical legal scenarios, from new visions of concrete dignity, that surpass the sectoral visions from which they have been formulated up to now. In addition, rights must be considered outside of the partial vision based on the unlimited appropriation of nature, which has led to the generalization of conflict and environmental indignity.

This task, from the law, politics, economics and morality passes the ideas of limits to the authorizations that have historically been given to human actions and behaviors and that, therefore, require substantial changes in these times of inadequate economic globalization, whose most visible result is unsustainable global climate change and the growing impoverishment of a large part of the world’s population.

In order to understand this problem, it is useful to compare various international economic reports. For instance, the World Development Reports (World Bank Group, 1978-2019) shows that there is an ever increasing tendency in global poverty and inequality rates. In the same vein, the Oxfam Briefing Paper (Oxfam, 2017) indicates that only 8 human beings possess more wealth than half of the world population, that means more than 3 and half billion people. In comparison, the Forbes Journal periodically shows data on the world’s richest men, showing the abysmal differences between poverty and wealth, where poverty rather than decline, grows despite greater scientific and technological developments.

The materiality of injustices demands environmental justice based on moderation, careful use and renewed relations between humans and other species, since the environment is not only ours but of all the members of the present humanity and the future generations of humans and nonhumans, because, being the nature in dispute, it generates inadequate appropriation and distribution.

A reflection on environmental law and justice must overcome the restrictive theories of human rights that do not surpass the deficit of the concept and the foundation, as well as the material concreteness of its protection. These theories ignore the existence of the environmental indignity, the deterioration of collective and common goods through discrimination and the dispossession of communities that base their way of life in the Good Life using nature in small proportions. We mis daily face the lifestyle of some groups of over-consuming urban dwellers and polluters have imposed on us by their appropriation, exaggerated and unlimited use of the elements of the environment.

We cannot forget that the Law and the Rights have usually been thought out in the past and the interest of a few people. The Law and the rights need a theory for the present, the future and that covers all the subjects. The rights have been thought about, written and taught as separated parts. The liberal theory of human rights accepts only the liberal rights (rights of the first generation or rights of liberty: freedom of property, right of freedom religious and freedom of thought), other rights such as social rights, collective, cultural and environmental rights are not, because they are only aspirations to fill in the distant future, not in the present time.

As a result, we have just a few rights, for a few people but that are not for all. However, from our perspective in this part of our rationale, I would like to tell you about some concepts about rights against the liberal theory: Firstly, the rights are capacities, powers, freedoms, guarantees or attributions of the subject of rights, which cannot be reduced only to norms. Secondly, Rights are the history of the processes of denial and vindication of them in a constant struggle of the weak against the strong (Ferrajoli, 1999). Thirdly, Rights are all rights and not just a few. Finally, the rights are for all the subjects (a process of universalization) and not only for a few subjects; thus, some rights are predicted for specific subjects (a process of specification).

Overall and as a synthesis, Rights are historical processes of demand and effective protection of the dignity of subjects in time and space, which are always in vindication before their ignorance or violation. In this age and in the near future, events such as climate change may be more difficult by the possibilities of rights.

Some of the initial elements that a new comprehensive theory of rights and justice must contain should begin with the understanding of rights as environmental rights, in the sense of presenting a political and ethical legal scenario from the extension of protection to new and more subjects. It should also stand up for the recognition of environmental principles as real limits to the unlimited appropriation of nature, and for responsibility plans in the short and long term from now on. These ideas would materialize in the protection of all rights, as well as in the creation of an “environmental justice” and a new form of State, the “Environmental State of Law”.

From our legal perspective, a new theory of environmental rights must start from a new broad concept of rights, recognizing the existence of collective and environmental rights, which considers that the rights, in general, are environmental rights that occur in the Environment and could be grouped into two broad sets of rights, human rights and the rights of nature.

This theory of environmental rights implies, therefore, their integrity plus a renewed political and juridical synthesis that recognizes the emergence of new subjectivities, which correspond to the existence and deepening of new and serious problems and conflicts and its environment; rights that are translated in exigencies in the face of the continuous aggressions to those subjects of right.

The idea of Environmental Rights can be summarized in the figure 1.

FIGURE 1. Environmental Rights Theory. Rights from Nature,

Mother Earth, Environment, Ecosphere.

This new vision also includes the integrality of human rights. That means that all human beings without distinction are subjects of rights and they include both civil and political human rights, together with economic, social, cultural, collective and environmental human rights. Secondly, it also includes the integrity with the rights of nature, Mother Earth, wildlife, forests, rivers or ecosystems. And we mean it not only from a rhetoric speech as when we have come to speak of “fundamental rights” of juridical persons, but with the real intent to concretize such ideas of the dignity of non-human subjects and, therefore, the duties, obligations, and responsibilities of humans with nature.

Therefore, rights are both individual and collective, protect and defended both humans and nature; to present and future generations, in an idea of expansion of protection that overcomes the narrowness of the theory that restricts them by their ownership or by their exercise.

In this sense, a new theory of rights in environmental perspective must answer at least three big questions: who are subjects of law? In what time is the subject of law? And in what space or territory are these rights established?

It is here that modern liberal theories suffer from a deficit of formulation in its concept and its basis of rights for their material protection, since most who defend these theories consider that not all beings are subjects of law. If we speak of the rights of future generations it is only in a figurative way, because very little is done to incorporate mechanisms for their effective protection, just as people are only subject of rights within the narrow limits of the Nation-State, space par excellence of the liberal state form.

Finally, a new theory of rights from the environmental rights and environmental justice point of view incorporates as three key elements: first and foremost, an inter-generational justice among humans, based on the duty to ensure the dignity of future generations as a demand for the current generation; second, the intra-generational justice as indicated above, because misery and impoverishment are the rules of capitalism advocated by the liberal theory of law; third, the inter-species justice element is required since not only human beings are subject to rights, but also other beings of nature, and not only as a simple utilitarianism, for the exclusive benefit of human beings.

For centuries, in most of the traditional ethnic and peasant communities in Colombia and Latin America, there has been a similar idea to what we could call today rights of Nature. In defending the idea of the environment as the Mother Earth from its cosmovision, who is at the same time nutritious, master’s and sacred, they represent their idea of recognition, respect and defense of natural limits and the containment of human behaviors on ecosystems and other cultures (Mesa Cuadros, 2013). Most of these practices are recognized as the “buen vivir” concept, far removed from the modern vision of appropriation that began with the conquest of the late fifteenth century. Appropriation went through servitude and slavery of the haciendas of the sixteenth and seventeenth century, settled with extractives of quinoa, tobacco and guano of the eighteenth and nineteenth centuries, and consolidated with rubber, hydrocarbons and new minerals in the twentieth and the present century.