In legal terms, when one listens to the notion of "subject of law", it is probably that the first idea to come into mind refers to a human being or maybe '... a subject of legal rights and duties'[1], '...such as a company which has property'[2]; or perhaps an "...individual or incorporated group having certain legal rights and responsibilities"[3]. Essentially it is about a person or 'persona' (ancient term used by Peter Colin[4]).
Broadly speaking, according to several countries' Civil Law[5], it is very common the usage of this traditional classification of subjects of law, which concerns to human beings, widely well-defined as either individuals or physical and natural people; in contrast to moral, artificial, juridical or legal ones, in whose contents one is readily able to find examples corresponding to entities, just as business corporations, commercial enterprises, banks, nongovernmental organizations, charities, and even state organs or public institutions, and so forth.
In spite that one could identify much more than a few dissimilarities between both juridical conditions, including commencement and ending of their own existences, they share at least one remarkable peculiarity, which is emphasized by Courbe as follows: 'Only individuals and legal entities have the ability to be subjects of law'.[6]
In this framework, scope of the expression "only" turns out to be extremely restrictive, for it steps aside whoever is well beyond the contents of the very concept; i.e. if someone cannot be considered as either individual or entity, one is not speaking about a subject of law. Nonetheless, it would be meaningfully valuable to outline the borders of such both ideas.
At a first glance, it seems really simple the grasp of the word 'individuals', as long as it had been equated with 'human beings', although it is not the same if the comparison is made with the generic term: 'person', according to the explanation formulated very long time ago, by John Chipman Gray, who claimed that there was an apparent confusion in understanding if 'person' and 'human beings' have to be treated as though they are strict synonyms, not only in common parlance, but also in books and specially in technical lawful books, given that the expression 'person' embraces not only natural people, but also juridical ones[7].
Nowadays, that misperception would give the impression to be present, but including a new terminology, 'subject'. In fact, the confusion lies no longer in the Professor Gray's statement, regarding in focusing the essence of personality in will, whose notion for example implies to step away new-born babies, animals or inanimate objects, from the concept of persons[8]; but rather in the merging of person and subject, where one is able to identify the capability to carry out legal acts or actions, and to have will and interest to acquire obligations and execute rights, according to Philippe Malaurie. In all case, the paradigm ends always being the same: 'Person is the unique subject of Law'[9].
Consequently, taking as a starting point the reminiscence of the aforesaid professor Gray, made by the Harvard Law Review Association, it seems to be truth that the definition of the terminology 'person' is not enough to describe the whole peculiarities derived from the acknowledgement and structure of a legal personhood, above all considering the lack of a real awareness "...of what -and who - is governed by the law", and which are the implications in praxis of the exercise of legal personality. Even more, every single intend to incorporate other categories into the concept, currently reserved exclusively for human beings or corporative entities by traditional theorists, will "...promise to muddy further the waters of personhood, calling into question the once-stable notion of who counts as a living human"[10].
Under this perspective, the argumentation of Christopher Stone, who has '...proposed that trees and other natural objects should have at least the same standing in law as corporations', has been described as 'problematic for management' , due to use of natural objects as resources would entail a severe impairment in lawful terms[11].
Similar academic approaches have been promoted by people like Peter Singer and Tom Regan, whose arguments have been directed to consider rights of animals through a previous recognition of their moral standing. A really astonishing systematization of these theories can be found in "Environmental Ethics" by Joseph Desjardins[12].
Obviously, those kind of theories are rejected by traditional thinkers of law. For example, Malaurie claims emphatically that the argument of animals having rights is a nonsense. For him, wildlife is well-protected by law without the compulsion of being considered as any sort of person. Animals remain being goods according to legal framework,
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and they will neither be subjects of law or holders of individual rights[13].
In any case, probably the most important consequence of endowing with legal personhood to individuals, either human or no human (e.g. fictitious entities as juridical persons), consists of determining distinct rights to each category of person, besides of their capacity to execute valid acts with legal effects.
In this sense, the proposal of recognition of Nature, understood as a set of living elements, which are part of the ecosystem, so-called also Environment or even Mother Earth, as a subject of law goes far beyond. It represents a way of endowing with a sui generis legal personality to a global entity, whose characteristic is to be inseparable of the scenery where the process of life develops. Consequently, it also entails the implicit acceptance of Nature as a holder of rights.
In the next section it will be presented a brief outline about the Ecuadorian Constitution where was incorporated the principle of enshrining rights for Nature, as a subject of law.
On October 20, 2008 was promulgated the Constitution of the Republic of Ecuador, whose second paragraph of the article # 10 recognizes Nature as a holder of rights, and consequently as a subject of law, under the following terms: "Nature shall be the subject of those rights that the Constitution recognizes for it"[14].
Furthermore, legislators included a complete section referred to those rights. Indeed, in the Chapter Seven one is able to read the article # 71: "Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes".
In spite that the sense of the term in the Constitution is seen as synonym of Nature, in accordance with various authors, the expression 'Pachamama' is a kichwa word, which is etymologically composed of two significances. 'Pacha' means universe or world and 'Mama' means deity or mother. She is considered the Goddess of Andean peoples. However, the authors stress the insufficiency of this definition to encompass the complete cultural and historic connotation of Pacha[15].
As it has mentioned by some researchers[16], this normative incorporation implies an actual change of the paradigm related with the exercise of rights. Argentinian professor Eugenio Zaffaroni states that the perspective of Gaia Theory[17] implies the recognition of rights for all entities that share the Earth with us and the acceptance of, at least, rights to existence and pacific development of their lives[18].
It is necessary to clear up the author considers that both conceptions, Gaia and Pachamama converge into a similar content. Firstly, Gaia is the result of a scientific culture which is alarmed facing the contemporary environmental crisis, while Pachamama is a traditional and ancient culture where were already known those problems and their cures[19].
This new way of view rights issues will be extended from the traditional context of the three conventional types of rights towards a new outlook of recognition of themselves, based on the idea that Nature is not anymore an object, but a subject of law. Under this circumstance, rights of nature cannot be considered as part of civil and political rights, neither of economic, social and cultural ones. And, of course, they are not even defined as collective rights.
The question is 'why?' Under the postulates of the aforementioned line of thought, the answer is because environment is not anymore a recognized right for human beings; it is not even only the habitat. It is a distinct subject, different from humans or institutions, with its own and particular rights, which reaches a new dimension of acknowledgment that is invoked in the Constitutional Law, as a guaranty of their compliance and enforcement.
In contrast to other experiences, either in Ecuador as in different countries of Latin America, recognition of rights of Nature expressly into the Constitution has not followed the "usual" process that other ones. Just in case, one could remember the previous disputes, much of them seriously violent, to get the inclusion and acceptance of labor rights for instance. It is well known the armed conflict occurred on November 15, 1922, in Guayaquil, after a prolonged strike. As result, approximately one thousand workers passed away[20].
Accordingly, it is about an inverse process whose reconnaissance was not spawned from a long struggle on the streets or even gradually constructed since an academic hypothesis widely studied. It has been dissimilar because when these rights were integrated into the Ecuadorian Constitution of 2008, they had not been sufficiently studied and they were not even known enough to ensure a rigorous scholar debate that allows construct a new highly supported theory.
In fact, it has become a crucial aim for the researchers regarding to understand more deeply the approach of the implications from the juridical nature of that sudden reconnaissance. However, it seems to be clear for everybody that the scholar project of designing a theory of rights for Nature
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must be debated since the principles of Ethics, as the beginning of the new paradigm.
As Professor Zaffaroni explains, it is impossible to address in detail the ideological complexity, mainly Philosophical and Ethical, derived from the relationship between humans and its environment, especially with not human ways of living, if it does not carry out a profound examination of Philosophical Anthropology[21].
Therefore, if truth be told, the postulates of that hypothesis are not going to be analyzed in deep; not only because it is not the more relevant aim of the essay, but also because is more emergent the necessity to tackle the practical implications derived from their application.
In context, the actual challenge consists of reflecting about an adequate form to carry out in praxis what it is written in Law, and perhaps one of the most functional ways to achieve it could be reviewing the possibility of access to justice in order to secure genuine respect of those rights.
As it was described in the former section, due to the fact that rights of Nature were included in the Ecuadorian Constitution, probably like one of the most important lawful innovation of Constitutional Law, there is not still a specific legal regulation, which allows to realize them in judicial practice.
The subsequent question is: How is it possible for Nature, as a subject of law, to exercise those rights throughout the access to justice, if there is not a specific act, law, or norm in order to regulate this aspect and, of course, any kind of representation for Environment before the Courts? The answer can be identified in the third paragraph of the article # 11, in which one can read: The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by and before any civil, administrative or judicial servant, either by virtue of their office or at the request of the party.
Therefore, one can see the reason why it is not really necessary to count on a regulation law, in order to allow the enforcement of rights of Nature, is because every authority has the obligation to resolve a judicial procedure ex-officio or ex-parte.
Besides, it is not even necessary to count on the legal representative of Nature before Courts, like occurs with institutions, due to the existence of the so-called "actio popularis", included in the first paragraph of the article # 86, under the following terms: "Any person, group of persons, community, people or nation will be able to propose actions envisaged in the Constitution", just as Ramiro Ávila states: when rights are violated, they can be materialized through enforceability, or "Active Legitimating for Enforceability"[22]. One is not thinking about nature only as a plaintiff of a tort.
In consequence, it is perfectly possible to bring a judicial action in order to claim for rights of Nature. For instance, one of the most common constitutional actions is the so-called 'Protection Proceeding", which according to article # 88 of the Ecuadorian Constitution: ...shall be aimed at ensuring the direct and efficient safeguard of the rights enshrined in the Constitution and can be filed whenever there is a breach of constitutional rights as a result of deeds or omissions by any non-judiciary public authority against public policies when they involve removing the enjoyment or exercise of constitutional rights; and when the violation proceeds from a particular person, if the violation of the right causes severe damage, if it provides improper public services, if it acts by delegation or concession, or if the affected person is in a status of subordination, defenselessness or discrimination".
For a better description of the applicability of this procedure, let's see a real case in Ecuador, following the information systematized in the Essay: 'Defending the Nature'[23].
In 2007, Richard Frederick Wheeler and Eleanor Geer Huddle (plaintiffs) bought a piece of land, which is located along the Vilcabamba River, near to the road to Quinara, a small town from the southern part of Ecuador. They called it: 'The Garden of Paradise'[24].
In 2008, the Government of the Province of Loja (public institution) began the engineering works for expanding the road between Vilcabamba and Quinara, in spite of the lack of the Environmental Impact Assessment. Neither the Ecuadorian Ministry of Environment had issued the Environmental License, in compliance with the Environmental Management Act[25], currently in force.
During the process of construction, trunks, rocks, sand, gravel, and other material from excavation were continuously deposited in the riverside, which caused serious damages to the ecosystem, but mainly over the water sources. In addition, the channel river was halved, causing a dangerous acceleration of the flow and the inundation of a lot of lands, including Mr. Wheeler and Ms. Huddle's property. Nevertheless, it must be said that flooding was also caused by the increase of winter rains of 2009[26].
In September of 2009, Mr. Wheeler and Ms. Huddle required a judicial inspection to the First
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Civil Judge of Loja, in order to demonstrate how the dumping of debris provoked destruction in their land. However, according to the Official Report, the expert concluded that damages were not result of the Government's construction works.
In December of 2009, plaintiffs filed an administrative complaint before the Ministry of Environment. As a result, the National Director of Prevention of Environmental Pollution carried out a technical inspection, in whose report of May of 2010 it was determined the existence of environmental damages derived from the process of construction of the road, mainly due to the fact that the constructor did not use debris dumps. Besides, it was concluded that five thousand square meter of the plaintiffs' land were inundated. Therefore, the Ministry demanded to the Government the immediate fulfillment of legal requirements, as the obtaining of the Environmental License, and the execution of a Plan of Remediation and Rehabilitation of Affected Areas, among others.
In December of 2010, it was filed the complaint based on the aforementioned article # 71 regarding to the rights of nature, and also on the article # 88 relative to the protection proceeding. As part of the suit, landowners required three immediate measures: a) to stop dumping of material to the river, b) to restore the natural riverbed, and c) to retire the whole debris and other construction material from the river.
As it can be seen, landlords did not sued for damages, because this legal action is not related with compensation in economic terms.
The total running of the first instance was eight days, since the suit until the resolution. After the plaintiffs filed the complaint on December 7, 2010, the Public Audience was carried out on December 13, 2010 and the Resolution was issued on December 15, 2010. It is important to stress the expeditiously way how the whole course of the action was executed, above all if one takes into account the larger duration of other legal proceedings whose aim is also the protection or reparation of environment. Let's say administrative, civil or criminal ones, for instance, considering that its running average in Ecuador could be two years at least for a resolution. Probably, the main reason to explain the difference is that protection proceedings are less bureaucratic than others.
In any case, the procedure was not exactly what the landlords expected because the action was rejected due to the lack of a proper citation, aspect that was considered by the judge as a circumstance of defenselessness for the other party.
Despite of the running of the second instance was not as quick as the first one, given that the appellation was brought on December 20, 2010 and its resolution was issued on March 30, 2011, Mr. Wheeler and Ms. Huddle obtained a successful decision. The Tribunal, integrated by the Second Criminal Division of the Provincial Court of Loja, admitted the action based on the following reasoning[27]:
- The competency of the Tribunal.
- The summons was properly commanded. In fact, the defendant appeared right through its attorney.
- Judge of First Instance had to command the citation to the lawyer of the Government when he figured out this formality did not happen.
- Protection proceeding is totally valid and it is the only accurate action to protect rights of nature.
- The importance of Nature for current and future generations.
- The existence of evidence of damages.
- The reversal of the burden of proof. Plaintiffs did not have to prove damages, but Government had to prove it applied the whole measures of protection for environment.
- The lack of Environmental License.
Just in case, Government could continue constructing the road, but under the accomplishment of legal requirements.
a) There is a doctrinal emergency for an ethical debate about the juridical postulates that support the theory of Nature as holder of rights.
b) Protection proceedings brought since the perspective of Nature as a Subject of Law are quicker than other legal actions in defense of Environment, due to the exigence of less procedure formalities (bureaucracy).
c) It is necessary to rethink about the role of States, above all when they are promoting infrastructure with high levels of environmental impacts.
d) Given that it is a theory under construction, there are a lot of topics for research. For instance: Nature and International Community, Juridical Personality and Representation of Nature, National and Local Legislation, among others.
- Act of October 1st, 2013 German Civil Code -Bürgerlichen Gesetzbuches. Federal Ministry of Justice and Consumer Protection. October 1st, 2013.
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https://www.gesetze-im-internet.de/englisch_bgb/german_civil_code.pdf (accessed March 17, 2016)
- Act V of 2013 on the Hungarian Civil Code Polgári Törvénykönyv." International Labour Organization (ILO). February 26, 2013.
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/96512/114273/F720272867/Civil_Code.pdf (accessed March 17, 2016).
- Ávila, R, Los derechos y sus garantías, ensayos críticos (Corte Constitucional para el Período de Transición, 2012)
- Annex of the Official Gazette # 418. Environmental Management Act -Codificación de la Ley de Gestión Ambiental. September 10, 2004.
- Annex of the Official Gazette # 46. Ecuadorian Civil Code - Código Civil. June 10, 2005.
- Colin, P. Dictionary of Law. (Bloomsbury Publishing Plc., 2004)
- Constitution of the Republic of Ecuador (Translation) - Constitución de la República del Ecuador. Center for Latin American Studies, Georgetown University. 20 October 2008. http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html (accessed December 9, 2015).
- Courbe, P. Droit Civil Les personnes, la famille, les incapacités. (Dalloz, 2007).
- Desjardins, J. Environmental Ethics. (Thomson Wadsworth, 2006).
- Espinosa, C, and Pérez, C (eds) Los Derechos de la Naturaleza y la Naturaleza de sus Derechos (Ministerio de Justicia, Derechos Humanos y Cultos, 2011)
- Garden of Paradise. n.d. http://www.gardenofparadise.net/Garden_of_Paradise/Home.html (accessed December 17, 2015).
- Gifis, S, Law Dictionary (5[th] edn, BARRON'S 2003)
- Global Alliance for the Rights of Nature (http://therightsofnature.org/celebran-el-primer-caso-exitoso-de-exigibilidad-de-los-derechos-de-la-naturaleza-en-ecuador/).
Accessed: December, 2015.
- Gray, J The Nature and Sources of the Law (Columbia University Press 1909)
- Jhean, C, Niel D, and Morales, A, 'El mito de la Pachamama y su papel en las sociedades comunitarias' [2009] 8 Salud Urbana
- Juicio # 11121-2011-0010 Richard Fredrick Wheeler y Eleanor Geer Huddle v. Director de la Procuraduría General del Estado en Loja, Prefecto Provincial, Director Regional de Loja, El Oro y Zamora Chinchipe del Ministerio del Ambiente. 30 de marzo de 2011.
- Klikauer, T. Seven Management Moralities. (Palgrave Macmillan UK, 2012).
- Malaurie, P. Les Personnes Les Incapacités. (Editions juridiques associées, 2007).
- Milk, R, Movimiento Obrero Ecuatoriano: el Desafío de la Integración (Pontificia Universidad Católica del Ecuador -Ediciones Abya-Yala, 1997)
- Suárez, S, Defending nature: Challenges and obstacles in defending the rights of nature Case Study of the Vilcabamba River (Friedrich-Ebert-Stiftung - Instituto Latinoamericano de Investigaciones Sociales, 2013)
- The Harvard Law Review Association, 'What we talk about when we talk about Persons: The Language of a Legal Fiction' (2001) 114 (6) Harvard Law Review 1745
- Zaffarroni, E, 'La Pachamama y el Humano' (Ediciones Colihue, 2011) ■
NOTES
[1] Gray (1909, 27)
[2] Colin (2004, 221)
[3] Gifis (2003, 374)
[4] Colin (n2)
[5] It is possible to find legal references related to the aforementioned classification in various national codes and laws, currently in force, just as follows: (a) the entire Books I and III about individual and legal people (Act V of 2013 on the Hungarian Civil Code - Polgári Törvénykönyv); (b) the titles 1 and 2 about natural and legal person of the Division 1, Book 1 (Act of October 1st, 2013 German Civil Code - Bürgerlichen Gesetzbuches 2013); (c) the article 9-1 about the presumption of innocence (French Civil Code of July 1st, 2013 2013); and (d) the article 40 of the (Ecuadorian Civil Code - Código Civil 2005)
[6] Courbe (2007, 1)
[7] Gray (n1)
[8] Gray (28-29)
[9] Malurie (2007, 1-2)
[10] Harvard Law Review (2001, 1745, 1768)
[11] Klikauer (2012, 189)
[12] Desjardins (2006, 109-114)
[13] Malauri (n9)
[14] Constitution of the Republic of Ecuador, translation (2008)
[15] Jhean-Hurtado, Niel-Sánchez and Morales (2009, 43, 45)
[16] See: Espinosa and Pérez (2011) and Zaffaroni (2011)
[17] Gaia theory is referenced since James Lovelock's works, quoted by Zaffaroni (2011, 15)
[18] ibid 16
[19] ibid 39
[20] Milk (1997, 96)
[21] Zaffaroni (n16) 3
[22] See Ávila (2012, 70)
[23] Suárez (2013)
[24] (Garden of Paradise n.d.)
[25] (Environmental Management Act - Codificación de la Ley de Gestión Ambiental 2004)
[26] (Global Alliance for the Rights of Nature 2016)
[27] Juicio # 11121-2011-0010 Richard Fredrick Wheeler y Eleanor Geer Huddle v. Director de la Procuraduría General del Estado en Loja, Prefecto Provincial, Director Regional de Loja, El Oro y Zamora Chinchipe del Ministerio del Ambiente. 30 de marzo de 2011.
Visszaugrás
