Taming capitalism through constitutional action?

Development Policy07 Jul 2011Evert-jan Quak

Nancy Peluso’s exciting and much discussed keynote speech drew on the metaphor of the ‘Beauty and the Beast’. Using the humorous but thought-provoking imagery of the story, Peluso highlighted the variety of ways in which the relationship between nature and society can be viewed. The strength of this metaphor lies in its ability to destabilize not only the seemingly fixed identities of the actors involved in the struggles over and with nature (is nature the beast or the beauty?) but also their relationships with one another.

Specifically, Peluso’s speech made us question who is civilizing whom and for what purpose? Will capitalism in its neverending quest for new sources of profit tame and transform unruly natural processes into disciplined and predictable sources of value, for example, by paying nature (or more specifically, those who claim legal ownership of it) for the ecosystem services it provides? Or will nature, as the charming beauty, teach capitalism some manners by demonstrating the importance of respecting its inherent value and the necessity to curb the excesses of market-driven processes of accumulation?

It would be possible to use this metaphor in numerous permutations, but as is often the case in real life, many relationships have a third party involvement! Once again, it is possible to think of various actors that can be seen as the most important third party – for example, civil society, corporations or the state. Recent developments in Latin America, however, demonstrate the central importance of the state as fundamental to the relationship, not only between nature and capitalism, but also between all the other actors.

This has been particularly pronounced in the case of Ecuador, whose new constitution not only sets the indigenous concept of sumak kawsay (buen vivir in Spanish, or ‘living well’) as central to socio-economic development, but also gives nature constitutional rights. The latter are set forth in Article 71 of the constitution, which is worth replicating here:

‘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.

All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate.

The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.’

In addition to this ground-breaking right to existence, the new Ecuadorian constitution strengthens nature’s hand in socio-economic processes in various other ways, including by recognizing its right to restoration:

‘Article 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.

In those cases of severe or permanent environmental impact, including those caused by the exploitation of nonrenewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.’

What will be the impact of this ground breaking development? Will nature’s right to restoration have a major impact on the ongoing Chevron-Texaco case? Will Vandana Shiva’s vision to use Ecuador’s constitution to take legal action across the planet, for instance by suing British Petroleum for violating the rights of nature in the Gulf of Mexico oil spill, gain widespread acceptance?

It is perhaps too soon to fully judge how far-reaching the implications of Ecuador’s new constitution are. What has become clear very recently, however, is that giving rights to nature is more than a symbolic, discursive shift. In the first ever case to be brought to court in Ecuador, the Provincial Court of Loja decided in favour of nature in a case that involved the construction of a highway that impacted the flow of the Vilcabamba River. It now remains to be seen where else – and how else – the possibilities presented by Ecuador’s new constitution can be brought to bear on the relationship between capitalism and nature.