Lambert: First, Lake Erie. Tomorrow, the world!
By Gavin Barker, who is based in Truro. He campaigns on constitutional issues and also locally for constitutional reform and stronger public services, and is a participant in Assemblies for Democracy. Originally published at Open Democracy.
Human rights are well established in constitutional and international law. But in the face of dangerous climate change and ecosystem collapse, do we need ‘rights of nature’?
Brexit has triggered a near complete breakdown in parliamentary government as discord and chaos reign within and between parties, as well as between executive (government) and legislature (House of Commons). It has brought the legislative work of Parliament to a halt and exposed the abject failure of our uncodified constitution to protect our rights, challenge an over powerful executive, and give clear guidance in the face of political deadlock. The celebrated flexibility of our ‘unwritten constitution’ where we “make up the rules as we go along” has led us up a blind alley, with seemingly no way back.
Brexit is a full blown constitutional crisis. But there is a convergence with another seemingly unrelated but greater crisis bearing down on us: dangerous climate breakdown. Climate change has moved from an abstraction presented in graphs and bar charts to the visible, anxious face of schoolchildren demanding why their parents’ generation and politicians have done nothing to protect their future and that of the planet. The School Strike for Climate and Extinction Rebellion movement have joined a well-established movement of climate change activism; and their message has been given added force by the most recent U.N. report which has warned us that we have only 12 years to avert climate catastrophe.
It is the intersection between these two crises which demands whole scale system change, not merely a change of government or incremental democratic reform. In short, a rapid transfer to a zero carbon economy must be accompanied by a constitutional revolution that entrenches ‘rights of nature’ at its heart. Is this possible?
Yes. Take Ecuador, for example. Its constitution states the following:
These are three of several clauses in Ecuador’s constitution which throws a robust, protective legal framework over the natural world. In theory, no legislation can be passed by any elected government that breaches these clauses. This does not mean to say that laws are not broken, or that corporations don’t seek to circumvent such legal statutes – the same is true for any country including the UK. But at least such laws and rights give campaigners and communities a clear legal framework and foothold by which to challenge corrupt public officials and predatory corporations.
For example last year, Ecuador’s Supreme Court awarded $9.5 Billion pollution judgement to indigenous communities by against oil company Chevron. This was a landmark judgement but it also exposed the limits of national sovereignty in the face of transnational corporate power. Chevron abandoned its assets in Ecuador and took its case to a secret trade court at the Hague. The trade court barred the complainants – Indigenous groups and farmers – from presenting evidence, overturned the Ecuador Supreme Court ruling and awarded hundreds of millions of dollars in compensation to Chevron.
While there has been no final outcome, the legal wrangle has – as one commentator put it -“done the world a favour by vividly illustrating …the need to rid these anti-democratic, pro-corporate trade courts once and for all”. It has also spurred the global movement for Rights of Nature – of which Ecuador is a founding member – to be entrenched in international law.
In the UK, we have no such protective legal framework over either human rights or rights of nature because we have no proper codified constitution. What we have instead is an uncodified constitution composed of piecemeal legislation along with unwritten rules and conventions that have questionable legal force. Britain’s lack of a codified constitution and its attachment to the doctrine of parliamentary sovereignty means that parliament can make or unmake any law by a simple majority of one – the same legislative means to amend VAT or the speed limit.
We don’t have to look far to find examples of just how damaging this almost casual exercise of arbitrary power has become. The Charter of Fundamental Rights was removed from transposed EU law in June last year with a majority of only 19 MPs. Legislation to remove the 1998 Human Rights Act (not yet implemented) the mainstay of our civil and political rights, was voted through by less than half of our MPs – as was the devastating impact of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act) which effectively removed access to justice for large numbers of people by cutting legal aid.
In countries with a codified constitution that set out clearly defined rights, such as the Nordic countries, Germany, France and others, these examples could not have happened so easily. In Germany and Ecuador amendment of its constitution (including the removal of rights) requires a 66 percent majority in their respective legislative assemblies; France requires a majority in both the National Assembly and Senate plus a referendum. In Australia, Denmark, Ireland and Japan, any amendment to the constitution must be by referendum. In Italy, Estonia, Greece and the Netherlands, there are ‘double decision’ rules which means that any constitutional amendment proposed by the legislature can only be finally passed following the election of a new legislature (where the party in power may not be the same). In Canada, India, South Africa, consent has to be given by each provincial legislature.
We need to follow their example and institute a modern, codified constitution whose amendment requires a higher order of deliberative approval – a two thirds majority of all sitting MPs, not less than half as at present.
However critically, it must be a ‘green constitution’ that breaks with the liberal model of constitutional design with its binary vision of the relationship between individual and state as set out in human rights law. This is a hangover from the historic struggle between despotic kingship and the conception of the individual as having inherent rights to life, liberty and the pursuit of happiness. Today's challenges are of a wholly different order and include non-state actors such as corporate power, Artificial Intelligence, dangerous climate breakdown and ecosystem collapse. A modern codified constitution must adjust its vision accordingly.
The neo-liberal world view is itself a poisonous outgrowth of a restricted vision of the inherent rights of the individual, including the right to property, as the centrepiece of the liberal institutional order. It has positioned ourselves and our economic models as free to exploit and develop earth’s resources, while blinding us to our vital role as guardians and protectors of the very life support systems on which we depend.
Constitutional considerations must therefore be fundamentally re-configured and enlarged to embrace these fundamental questions and come up with a new language and set of values based on ‘networks’, ‘connections’, ‘relationships’, ‘empathy’, ‘sharing, ‘interdependence’, ‘responsibility to nature’, 'balance', 'harmony' as a complement to the lexicon of individual rights.
Twenty years ago, such a proposal might have been dismissed as pie-in-the-sky thinking. Not any more. The exigency of climate change and ecosystem collapse demand a revolution in our thinking. The atomised vision of the individual 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. What was once a liberating ideal in the face of feudal oppression and aristocratic privilege has itself become a tyrannising ideology that we must break from once and for all.
It is Brexit that is both a window of opportunity and a moment of danger given opposing forces that see the same opportunity to advance their cause. We face a stark choice between endless austerity, the removal of rights, accelerating inequality, deepening environmental chaos and ever greater power to the few. Or ‘we the people’ seize the opportunity to re-write the rules by which we are governed and ensure that these place the ‘rights of nature’ at its very heart.