The “rights of nature” were recognized in the Universal Declaration on the Rights of Mother Earth in Cochabamba, Bolivia, in 2010, designed as an alternative to the COP meetings.
Notably, the provision on indigenous peoples remains in the text – for the first time in 21 years – without brackets, meaning that no parties have complained.
As one member of the Tribunal said, “Many are going to say, how are you going to enforce these decisions? But this comes from the belief you can only enforce judgments by force.”
Last weekend, while the official COP21 negotiations were going on north of Paris at a site called Le Bourget, leaders of indigenous nations in North and South America were in Paris calling for justice for what they say are ongoing violations of the rights of the earth itself.
The “rights of nature” were recognized in the Universal Declaration on the Rights of Mother Earth in Cochabamba, Bolivia, in 2010, designed as an alternative to the COP meetings. The declaration, which gave rise to the International Tribunal for the Rights of Nature, created “a manifesto for earth justice,” in the words of the president of the current tribunal, Cormac Cullinan, author of Wild Law. The book, published in 2003, lays out a case for granting legal rights to communities and ecosystems.
The first such tribunal was held last year in Quito, Ecuador, and its second session was almost a year later in Lima, Peru.
Among the cases heard by this tribunal, several dealt with oil exploitation in Ecuador — a country that, ironically, was the first to include the rights of nature into its 2008 constitution. One of these cases focused on Yasuní National Park.
Yasuní is a UNESCO World Heritage Preserve and a biodiversity hotspot. Nowhere else are there more documented species of mammals, birds, amphibians and vascular plants. As one presenter noted, in one tree in Yasuní, one can find 94 species of ants; one hectare holds more tree species than the US and Canada together.
But Yasuní also sits above the largest oil reserve in Ecuador – 846 million barrels – presenting a threat to the people and animals living in it.
Yasuní as a ‘common good for humankind’
Under the Yasuni-ITT Initiative in 2007, Ecuador committed to keep from exploiting the reserve, to avoid carbon dioxide emissions, and to protect biodiversity and the rights of indigenous people. The park is home to the Waoraní tribe, as well as two closely related uncontacted groups, the Tagaeri and the Taromenane.
The international community committed to a fund that would be dispensed under U.N. supervision as long as the government kept its promise. However, this initiative was dropped by President Rafael Correa in 2013 when not enough funds materialized. He ordered drilling in Yasuní soon after.
Speaking at the tribunal, Carlos Larrea, a professor at Quito’s Universidad Andina Simón Bolivar, noted that significant damage would be caused by the extraction of oil within Yasuní. “If we regard the Amazon rainforest as a common good for humankind as a whole, protecting it is a priority,” said Larrea. “The risk of ecocide in Yasuní is very high – the government already built a road inside the park, and roads have a very dangerous effect on biodiversity.” He added that there is a high risk of oil spills: between 2000 and 2011 spills in the area reached a frequency of almost one per week.
Keeping it in the ground
Citing the precautionary principle, Larrea asked the tribunal to consider the idea of keeping the oil in the ground as the only option for effective protection.
After Correa dropped the Yasuni-ITT initiative, a group of Ecuadorian activists called Yasunidos collected signatures to try to call a referendum in Ecuador. Carolina Vallejo, a representative of the group, testified that Correa’s government spied on the phones and emails of rights defenders.
“In the end the harassment wasn’t enough, so they had to throw out 60 percent of the signatures gathered – for reasons of form, not substance, like the paper was too small or the weight was inadequate,” said Vallejo. This breach of rights, not only Yasunidos’ but of Ecuadorians as a whole, was also denounced at the Inter-American Commission on Human Rights.
Despite the setbacks, the group says it has not been deterred. Vallejo presented the group’s proposal for keeping fossil fuels in the ground: an international fund to help societies trying to keep their resources from extraction, which would be regulated not by states but by global civil society.
“We are convinced that climate justice starts from the underground,” said Vallejo to massive applause, concluding that it must be built collectively between organizations from the global north and south.
Alberto Acosta, former president of Ecuador’s Constitutional Assembly and architect of the country’s 2008 Constitution, presented the so-called verdict, saying: “I do this with emotion, thinking of my grandchildren.” He cited the Law of Mother Earth and the Ecuadorian constitution in concluding that there are sufficient elements to proclaim a sentence to be against the law of nature. Acosta noted that prior consultation with indigenous or forest-dwelling peoples is directly recognized in his country’s constitution. Furthermore, he noted, Article 414 says that Ecuadorian government must reduce emissions and stop deforestation, while Article 318 prohibits the privatization of water.
Openly denouncing Correa, he said, “When the government opened up oil exploration in 2003, it caused great damage to the constitution of Ecuador and the Law of Mother Earth. The government is trying to erase indigenous people from the map to justify the exploitation of oil.”
In Acosta’s words, Ecuador’s oil exploitation constitutes “ecocide without end.” Last year, Ecuador announced it had approved permits for oil drilling to a subsidiary of the national oil company, Petroamazonas. Drilling will begin in the Yasuní ITT blocks by next year.
Meanwhile, President Correa has also proposed the creation of a different environmental tribunal, widely derided by Ecuadorian environmental activists like Yasunidos, given his environmental record.
Coming from a citizen’s tribunal, the sentence of course doesn’t have the power of government. However, Cullinan noted, its judgments are “intended to show the way forward. They are about holding people and organizations accountable – but they are also intended to point a path to the future.”
Other cases in Latin America
Another case presented concerned Texaco (now Chevron), which first discovered oil in the Amazon 50 years ago. The toxic legacy of that discovery continues to the present day. Indigenous leader Humberto Piaguaje spoke on behalf of five tribes and also the campesino community – more than 30,000 affected people in Ecuador. He described how his grandfather had contact with a tribe called the Tetete. “Now, no [Tetete] village has a semblance of life,” said Piaguaje. This is linked to the company because during those same years the petroleum flowed through our rivers.”
Pablo Fajardo, the lawyer who has represented the victims of Chevron’s contamination in Lago Agrio, Ecuador, testified at the tribunal. Describing the epic legal battle that has been going on for more than two decades, he said, “The international justice system does not allow corporations to be judged. We need a structural change of the system.”
Esperanza Martínez of the OilWatch network described a proposal presented to the United Nations Framework Convention on Climate Change (UNFCC) – that it formally create a group of territories called “Annex Zero,” including the peoples and communities that have undertaken to keep oil and gas reserves in the soil to prevent destructive climate charge. She called on speakers from a succession of countries, from Peru to Costa Rica, asking them how much oil is in their reserves and how much they could keep in the ground.
Other indigenous representatives who spoke at the tribunal were José Gualinga of Ecuador’s Sarayaku tribe, which is also dealing with problems of oil exploration under their territory. From Brazil, Chief Raoni Metuktire of the Kayapó people and Maria Leusa Munduruku of the Munduruku testified about the environmental and cultural damage resulting from the Belo Monte mega-dam on the Xingú River and other proposed dams on the Tapajós River, also in the Brazilian Amazon.
The need for an environmental rights tribunal
Meanwhile, at the official COP21 negotiations, tensions remained regarding the rights of nature and indigenous peoples.
Linda Sheehan, a prosecutor for the tribunal and executive director of the Earth Law Center called the current draft of the COP21 agreement released by the U.N. “illegal.”
“I put to you that the current convention violates both the rule of law and the laws of nature. It mentions economics and economic systems 49 times, to once for the earth – and then only in the preamble [Version 1 of 9 December]),” she said.
“The nations negotiating on our behalf pretend that the natural world is a dead resource, merely an element of commerce and trade,” added Sheehan, concluding forcefully: “We must reject this impoverished future.”
Notably, for the first time in 21 years, the provision on indigenous peoples was briefly unbracketed — meaning that no parties had complained. However, this changed in a matter of days. The text, which is now bracketed again and continues to be up for negotiation (at the time of publishing, at least), reads:
“Emphasizing the importance of promoting, protecting and respecting all human rights, the right to development, the right to health, and the rights of Indigenous Peoples, migrants, children, persons with disabilities and people in vulnerable climate situations as well as promoting gender equality and the empowerment of women, while taking into account the needs of local communities, intergenerational equity concerns, and the integrity of ecosystems and of Mother Earth, when taking action to address climate change.”
Tribunal president Cormac Cullinan noted criticism of the court, especially on the question of enforcement: “Many are going to say, how are you going to enforce these decisions? But this comes from the belief you can only enforce judgments by force.”
Tribunal prosecutor Ramiro Avila, a professor at Ecuador’s Universidad Andina Simon Bolivar, emphasized that the tribunal was “not just a theoretical exercise,” noting that its purpose was also to raise consciousness. As the Paris talks come to an end, it is hoped that the official COP21 negotiators heed the words of the tribunal and keep as much oil in the ground as possible.