Nature, Peoples & the Law: Political and Legal Innovations in Ecological Democracy

The western legal concept of property is chiefly responsible for planetary destruction, obscene wealth inequality, and the blockading of basic human needs such as food, water, shelter, healthcare, and a livable climate. This paper will showcase how the United States system of property-centric law has equipped the corporate class to be able to undermine and oppress the health and welfare of ecosystems and human communities. Interwoven into the narrative will be examples of how property friendly doctrines such as the US Constitution's Commerce and Contracts clauses along with corporate constitutional rights routinely tip the balance in favor of property over rights. Lastly, the paper will highlight the community rights movement and its aim to dismantle the property doctrine by driving in a new legal and governmental framework that secures greater decision-making power at the local level and legal rights for ecosystems along with neutralizing property friendly legal doctrines.

This paper offers a proposal for how to save democracy by rethinking it from the point of view of popular power and the need to avert ecological disaster. I first provide a diagnosis of the current state of representative democracy as a regime type that has corrupted into oligarchic democracy. Focusing on the overlap of oligarchic power and environmental destruction, I highlight the new juridical tools and institutions that have given power to indigenous people to protect the planet in Canada, the United States and Ecuador. By reviewing constitutional law on the rights of nature, indigenous rights, and popular participatory rights, environmental statutes, popular direct actions, and national and international court cases, I conclude that the only effective way to stop climate collapse is to deepen democracy by giving people at the local level stronger political and juridical mechanisms to defend the ecosystems they inhabit against extractivist corporations and oligarchic states.

We face overlapping problems of a planetary nature—climate crises, migration, security threats—which are, in a broad sense, questions about territory‘s relationship to politics. I suggest fruitful points of connection between international legal scholarship and political theory. I highlight recent developments in international environmental law (e.g., differential equality principles and the use of domestic litigation in the US context to bring international claims) as well as the increasingly salient limitations and instabilities of the law of the sea (e.g. cartographic uncertainties, “sinking“ and artificial islands) to show the mounting inadequacies of reliance on the principle of equal territorial sovereignty. Political theories which ground the relationship to territory in terms of political peoplehood can be adapted to conceive of this relationship in non-exclusive terms, allowing the aforementioned problems to be tackled in a more global and democratic fashion.

This paper analyzes the incorporation of the concept of ecocide in the constituent initiatives being discussed in Chile‘s Constitutional Assembly. I will start with some thoughts on the (non-existent) treatment of the environment in the 1980 Constitution, and the concerns of the eco-constituents in the Convention. Specifically, I will review efforts to incorporate the definition of ecocide developed by the “Independent Expert Panel for the Legal Definition of Ecocide“ as a proposal that could contribute to an amendment to the Rome Statute of the International Criminal Court. I will review these proposals, their strengths, and weaknesses considering the Chilean constituent process and the treatment of other international crimes in the constitutional draft. The paper ends by warning that even if ecocide as a juridical concept is accepted, the justice system is not the only, nor even the best, domestic or international way to deal with the climate crisis.