Good Living, Nature and Nationalities in the new Constitution: a hopeful reading
by Mario Melo (Translated by Google Translate)
The pre referendum situation being experienced by the country, invites Ecuadorians to make a renewed positive reading of the constitutional text and proposed for approval. This reading, focusing on the draft before in the political context in which it was generated, it is a complex exercise but essential to support a vote to answer this question, it is only a yes or no to the draft Constitution and not confuse it with a yes or a no to the head of state management that drives it.
This exercise leads to the writer of these lines, to highlight some new elements in the Ecuadorian constitutionalism, which are among the most important contributions of the proposed Montecristi. The first is the notion of “good living” as a key in defining ideological guidance to the new constitutional framework of governance.
The “good life”, “sumak kawsay”, “Penker pujustim” or “waa Quiriri” as he expressed in some given the languages spoken in Ecuador, is a symbolic category denoting, in the worldview of many ancient peoples, a set of values that give meaning to life in the individual and collective. Living in harmony that combines the relationship with the natural environment, the “land without evil” and the culture or “wisdom of the ancestors.” It is a complex concept, alien to the ethical-religious traditions from which Western civilization is nurtured, not obsessed by “living well” but “better”.
It is not easy for most mestizo Ecuadorians fully interpret this concept, and although the draft constitution seeks to delineate the good life by linking it to the full enjoyment of rights, multiculturalism, diversity and harmony with nature, it will be necessary, go into effect the constitutional project, which the Ecuadorian nation boost a frank and genuinely intercultural content to fill the notion of “good living”.
Closely linked with this challenge is also complete Plurinationality content that defines the character of the Ecuadorian State to which that beyond being a proclamation limitation, becomes the effective recognition of the unity in diversity. The constitutional project takes a step forward in this direction by defining the ownership rights of the nationalities that make Ecuador, but has not yet been clearly clear its outline as a form of social organization and their own governments.
The progress made in this regard is redefining Aboriginal territorial, institution and embodied in the Constitution of 98 and that the draft Constitution is understood as the autonomous territorial governments “to be governed by principles of intercultural, plurinational and according to collective rights “.
The recognition of the collective rights of ethnic, was a major breakthrough in the 1998 Constitution, based on existing international instruments in that time, especially the ILO Convention 169. Its application in the early life of this Constitution has been in deficit but the impact of its validity has been invaluable to reaffirm the vision of indigenous people, in the eyes of the country and to their own, as rights holders.
The proposed new constitution, the rights remained achieved in 98 and incorporated other important as the recognition of the right to land and self-determination of peoples in voluntary isolation and the right to recover the ritual and sacred places. It also made explicit the prevalence of international human rights instruments, including covenants, conventions and declarations on their application.
This explanation is important in relation to a right to set the ceiling that ran the political will of the majority of the Assembly to incorporate the advances driven by the indigenous movement. The correlation of forces gave no Assembly to advance the right to prior consultation on the right to free, prior and informed consent of communities affected by state decisions that seriously affect culturally and environmentally, that right is recognized currently in The international legal system.
When he tried to scratch right whose recognition of the interests of large transnational powers beneficiaries of the exploitation of natural resources, the government said no. In the text adopted by the Assembly recognized as an indigenous and Afro-Ecuadorian collective right prior consultation and in the event of a negative response from the respondents, it has appropriate “under the Constitution and the Law.” This output merely postpone the discussion on the treatment of community not until the situation arises and eventually national and international judges resolved or not recognizing the right to consent.
On non-renewable natural resources remained the property and the right to exploit them in the State, who may delegate but without their share of profits is less than 50%. Water is a fundamental and inalienable and strategic national assets for public use.
It also strengthened the protection of protected areas and protected zones from exploitation of natural resources within, but not at an optimal level, since it allows, provided a statement of national priority given by the President of the Republic with the approval of the legislature.
In general, the new constitution went into effect bring important tools for protecting the environment and the rights attached to it. It incorporates a principle “In dubio pro natura” which requires that in case of doubt about the interpretation of rights, made it to the way that best serves the protection of nature. Likewise incorporates strict environmental liability means that the beneficiary of an environmental risk activity respond for damages even in unforeseeable circumstances or force majeure, the applicability of actions to pursue and punish environmental damage and the burden of proof, within processes for environmental damage, who happens to damage the defendant alleges.
You also create an Office of the Environment and Nature, it declares Ecuador free of GM seeds and prohibits the ownership of rights to products derived from the collective knowledge associated with biodiversity.
However, the most interesting advances in environmental project that brings the new Constitution is the recognition of nature as a subject of rights. This recognition, conceptually and philosophically linked to the vision of a plural that drive Plurinationality Good Living and implies a break with paradigms legal, ethical and even religious. Thinking Nature not as something appropriated but as a subject of rights is someone retake a latent value in all cultures and times, which has been postponed and forgotten by modernity.
The anguish global environmental crisis caused by climate change, requires finding innovative legal and policy proposals. The recognition of rights to nature is at the forefront of them worldwide.
The rights recognized in the nature of a substantive nature are three: (1) the right to respect fully their existence and the maintenance and regeneration of its vital cycles, structure, functions and evolutionary processes, (2) the right to restoration and (3) the right to the state to implement precautionary measures and restrictions on activities that may lead to the extinction of species, the destruction of ecosystems or the permanent alteration of the natural cycles, including the prohibition of introducing elements that may ultimately alter the genetic heritage and ownership of environmental services.
Further recognizes the right adjective whose ownership corresponds to diffuse any person, community, village, or national public authorities require compliance with the rights of nature, without prejudice to the powers of the Environmental Advocacy and Nature.
Will the adoption of the new Constitution with all these developments ensure the protection of native peoples and nature steering Ecuador on the path of sustainability? Not at all.
CONAIE, for example, to announce his position on the referendum itself, has explained deeply pragmatic criteria regarding the Constitutional text. Their struggle, he said, does not begin and end with the adoption of this Constitution. Simply choose the referendum by the Constitution that gives some additional legal tools that can be useful in a fight that is essentially political.
Ensure a more just, equitable, inclusive and respectful of nature, capable of living in harmony is the result of an effort to exercise power over political projects, beyond the speeches, respond in practice to transnational interests profiting from the destruction of the planet and people. A power based on the dignity and rights both. Resist the hegemonic vision of corporate control of the world and its wealth is a right, which, incidentally, is also recognized in the new constitution.
September, September 5, 2008