In Search of an Ecological Constitution: Reformulating the Relationship between Society and Nature

By Ezio Costa Cordella

One of the differentiating factors of our present is the increased environmental awareness. However, this has not yet been converted into social, economic and law systems that reveal the multiple challenges that are imposed on us. The destructive impulse of the dominant ideologies in the twentieth century maintains the hegemony of their spaces, barely trying to adapt itself into a new reality that surpasses them.

Meanwhile in 1972 we believed there was a marked environmental degradation, in 2022 we recognize that we are in the middle of the sixth mass extinction of the species, the earth temperature has already increased in more than one degree Celsius and a significant percent of the planet's sweet water is contaminated. If the Constitution that Chile is planning to write and set in force in the years to come, wants to capture the logic of our times, it is essential that it sets as something basic, the environmental conditions where the legal-political communities, constituted by the chileans communities, are going to develop.

This book explores the details of the "Ecological Constitution" concept, that refers to the provisions that have to be contained in a Constitution in a transversal way and that, setting the environmental protection as a central axis of the social organization, attempts to harmonize the social and nature activities.

The new Constitution of Chile won't change everything, but it can constitute a first fundamental base on that change. This book is an invitation to dream with that possibility and reflect on the different ways that the Constitution can take us in that direction. The systematic changes are urgent and we are in the position to begin with them.

Ezio Costa Cordella

• Language: English
• Publisher: Editorial Catalonia
• Release date: Apr 15, 2022
• ISBN: 9789563249484

Book preview

I. Introduction

As I write these pages, we are in the middle of a constitutional process that is crucial for the people of Chile, and that may also be a significant event on a global scale. This is one of the first constitutional processes where there is an open acknowledgement of the ecological and climate crisis that threatens our future and has already started to affect us.

The COVID-19 pandemic has only confirmed this. The rise of this new virus is linked to zoonoses; that is, the transmission of viruses between humans and animals. This kind of infection has become more common as we destroy the habitats of animals and other life forms.

Meanwhile, the drought that has existed for over 10 years in Chile’s central area is, probably, the new reality for this part of the country, and we can only expect it to worsen if the average global temperature continues to rise due to climate change and glacial melting accelerates. Addressing climate change, some of Chile’s vulnerability factors are, specifically, the way we provide water, which along another 6 similar factors, lead us to fill 7 of the 9 conditions of vulnerability that are acknowledged worldwide⁵.

To make matters worse, our economy is based on the extraction of primary materials, and we are therefore aiding the destruction of the ecosystems we need to endure climate change and to adapt. If we follow this path, we will not only be poorer, but the resources we will have to face will become more and more scarce. We need to implement radical changes in our relationship with nature and the structures that govern it.

Additionally, these changes are deeply linked with the social changes demanded by our people. Social inequality, in environmental terms, shows us unacceptable images, such as our dried-out valleys, scattered with dead animals under lush, green hilltops, or schools that cancel their classes to protect children from being affected by the toxic chimney smoke emitted by nearby factories.

Something similar occurs regarding the unequal distribution of risk, because while most people living in economically vulnerable situations are also exposed to higher socioeconomic and environmental risks caused by the climate crisis, a few privileged people have the tools to deal with these risks unscathed. Additionally, a few privileged people are the ones who have fueled this crisis the most.

Let us imagine a person who works in farming in the Region of Valparaíso and needs to provide for his family with a little more than the minimum wage. It may be that this person lives in a lightweight construction, in an area deemed a risk zone – such as in proximity to the coast or cliffs at risk of being affected by floods, landslides or forest fires, which happens every year in some hills in Valparaíso. As long as he lives there, his life and the lives of his family are at risk. Even if he does not live in the area, his job is at stake because the draught and loss of arable land due to the destruction and disappearance of ecosystems and biodiversity will inevitably reduce agricultural work in the region.

Changing jobs or the field you work in is complicated. This complexity increases when we are talking about unqualified workers, people who –in general– have lower incomes. If the person in our previous example cannot find a farming job in the region, he will probably have to find one elsewhere, with all the difficulties that this entails. He will extend the list of internal climate migrators –people who are forced to migrate from their homes due to the effects of climate changes in their region.

Additionally, as he attempts approaching another rural or urban area, he will probably lose his networks, loved ones, certainties, and belongings. Changing cities, as anyone who has experienced this knows, is an expensive and emotionally complex process. Moving an entire family is even more of a challenge. Given the lack of public policies that deal with this issue, it is highly probable that this person, and his family, will end up in poverty.

The lack of public policies is not the only thing against him, the existence of policies that uphold the promotion of the extraction industry as the key to the country’s development are also part of the problem, as they create wealth in a small part of the population to the detriment of both the majority of individuals as well as the collective.

Chihuailaf⁶ reminds of this when he faces the wind that no longer brings the life that he and the Mapuche people remember:

Sea wind blows in a strange country

But we do not forget

The smell of the cinnamon and myrtle trees

That filled the lungs

That strange country is Chile today, those woods are now lands used for the forestry or agriculture industry; they are no longer forests, they no longer bring the smell of the forests, even though they allow us to breathe, they no longer fill our lungs.

We can find proposals to solve these problems at the intersection between environmental and social problems; however, although they attempt taking charge of a particular issue, they usually end up making matters worse. For example, the regional farming industry can offer a solution to the issue of lower land yields by cutting down sclerophyllous forests at the bottom of hills and planting fruit trees instead. This allows keeping the people of the area employed. The cost of this practice is that the water crisis will rapidly increase in the area, as it interrupts the water cycle in a more serious way. Additionally, there is a heightened risk of floods or landslides, reductions in biodiversity, interruption of the soil’s nutrient cycles and, finally, the worsening of the environmental and social conditions of the area overall. The issue will no longer be that the farm worker will have to migrate due to lack of job opportunities in the region, but rather that there will be less than 100 liters of daily drinking water per person in his home, or that unexpected rainfall could cause a flood or landslide that destroys part of his house.

Seeing the impacts that an activity will cause and attending to their distribution is a complicated task. Seeing the impacts that the sum of all the activities cause in an area, in the scenario of climate and ecological crisis, is even harder. Those who can carry out these activities require more certainty for their businesses and property through authorizations that are increasingly risky and, in turn, erode the certainty of the other people who inhabit that territory.

The farming worker in our example, the owner of the hills with sclerophyllous forest and even the person who has to make a decision at a local level may have aligned short term incentives in favor of more environmental intervention. In order to change these incentives, we need a conscious effort to consider the long-term conditions. This cannot be achieved without sufficient knowledge, human and institutional relationships that advocate for long term solutions that benefit the collective group –that the farmer and his employee are part of. We have not created the adequate conditions for this in Chile, in fact –during the past decades– we have ruined them.

It is not a coincidence that Chile’s position, after presiding the 25th Conference of the Parties (COP25) of the United Nations Framework Convention on Climate Change (UNFCCC), has been known for attempting to get private individuals to commit to a more ambitious environmental agenda, giving them a core role and even choosing the first Champion⁷ from the private sector. The issue does not lie exclusively in the irreparable neoliberal faith in private action as the organizer of society, but also the impossibility of States like ours to provide effective solutions.

There are significant barriers to find medium- and long-term solutions that benefit the collective and change the route of our relationship with nature. There are economic, social, legal, political and cultural barriers, and it is undeniable that taking them all on is an endeavor that will take decades, perhaps even centuries. The constitutional process is giving us the option to begin, and what better place than here? What better time than now?

We must overcome the curse that observes us Chihuailaf⁸

In the city, canaries of final truths

Try to grasp our whispers

But, bitterly, in their cages, they only scream

Scream

A single scream in a cage will not change the situation, especially if the scream is a distorted trill that, in an attempt to create beauty, creates resentment. The direction of this song, the dismantling of the cage and the capture of the whisper that allows life, is part of the function of a social contract, it is part of what the Constitution can behold.

If the Constitution that Chile is hoping to draft and enforce in the next years hopes to have a logic based on reality, it is essential that it undertakes the environmental conditions that the legal and political community will develop on, that make up our peoples and our nation, as its foundation. These conditions are perhaps not fully known, but several of them are present or foreseeable. At the very least, the fact that these conditions are changing is a widely proven fact.

Perhaps one of the factors that differentiates the way of thinking in the XX century and that of the XXI century is a rise in environmental awareness. However, this has not yet materialized as a social, economic, and legal system that renders an account of the challenges that we face. The destructive momentum of the ideologies and ways that ruled during the XX century have upheld the hegemony in its various spaces, barely attempting to adjust to a new reality that transcends them.

In the case of the law, it is important to understand that –in this discipline– viewing the environment as an interconnected system of elements and processes is a completely novel idea. Some basic notions of what this could mean began to emerge in 1972, and although the expansion of these notions has been fast, it has certainly not been fast enough.

Whilst many Constitutions around the world have enshrined the human right to a healthy environment and others have included the rights of nature, to the law –in general terms– the environment is still unchartered territory, fractioned into natural resources that are dealt with differently with a special concern about their exploitation and appropriation. The dualist logic and the divided understanding of the world in terms of people and things has certainly not helped.

Until now, the law has not known how to incorporate the spatial dimension or systemic thought in its various forms, and even less regarding how to take over the protection of natural processes. It is equally true that the logic of protection of resources and sustainability has been creeping into sectoral regulations. This, however, is far from outweighing a regulatory and institutional force that has been at work for hundreds of years with a logic preened for exploitation, rules created for it, teachers dedicated to teaching it, judges that manage it from this viewpoint and textbooks that perhaps only recently include a chapter on protection of the resources, but were systematically geared to touch on an area of law devoted to exploitation.

It is simply a matter of looking at the forestry, water, or fishing laws in Chile or almost any other country in the world. There is a history of how these resources have been divided, who can exploit them, what the State’s role is, and how to resolve conflicts between private parties or between them and the authority. In the best scenario, the common good can be represented in the State’s larger regulatory capacity, but very rarely in a long-term collective vision. Basing the protection of a resource on the value of its durability may have only been embraced in the last few years (usually, under the sustainability formula), but it does not completely match the rest of the regulation, which makes its application problematic.

Let us look at the Código de Aguas de Chile (Chilean Water Code). This rule states that water is a national asset of public use but puts it in the hands of private individuals in a perpetual and unconditioned way. Its original formulation did not have an express rule on the protection of the environment, and –although we can interpret that ensuring the maintenance of the water cycle is the responsibility of the water holder– there is no rule that explicitly says so or makes it clearly controllable and sanctionable. Only in 2005 did rules considering the protection of the ecosystem (including the water cycle) come into force, with the so-called ecological flow. This minimum flow, however, has only been applied to new rights, which involves a negligible part of the water rights that have been granted, in a country that is drying up and where there are more water rights than available water in the basins.

Why do things like this happen? There are several reasons –political and legal– but, for those interested in this introduction, I will only say that it relates to the law’s inability to adapt to the new environmental reality. New small additions in laws or stating that we are entitled to live in an unpolluted environment are simply not enough; we need systemic changes on several fronts.

The struggle for changes in the production and consumption systems, in social and political systems, are just as important as those that advocate for changes in the legal system, to include values and visions of the new century, marked by reacknowledging our fragility and a different ethical assessment. We, ultimately, have no control over the environment, but we need to protect the ecosystems to protect ourselves, those who will come after us, and nature itself.

Of course, in 50 years of environmental law things have changed –both in Chile and the world. Whilst in 1972 we believed there was a huge environmental degradation, in 2020 we know that we are in the middle of the sixth massive extinction of species, that Earth has risen its temperature in more and one degree Celsius and that a significant percentage of the planet’s sweet water is polluted. All this, whilst we argued over the scope of the human right to live in a healthy environment, which was interpreted by the Inter-American Court of Human Rights only in 2017.

Systemic changes are urgent, and we can finally get started. In the streets people have said that neoliberalism was born and will die in Chile, and although the truth of that statement is debatable, they undeniably show us that there is hope, that we are faced with an opportunity to create a new beginning. Perhaps we can give the world a first glance of a new system that allows us to live in harmony with nature and, therefore, gives us hope for the future.

This book explores the details of the concept of an Ecological Constitution, which succinctly refers to the legal rules that would be transversally contained in a Constitution and that place environmental protection as one of the key pillars of social organization, in hopes of harmonizing the activities of nature and society.

I will start by exploring the reasons that lead us to require proposing an Ecological Constitution as something urgent, in light of the current