Such theories range from the most restrictive androcentrism to the generalization or universalization of liberal rhetoric that all humans are subjects of law, going through the various anthropocentric theories that emphasize, more or less, who are or are not subjects of law, from when and how many rights can be had and by what political-legal mechanisms can be obtained.
Within the main theories of rights in the last two centuries against the abstract Universalist theories promoted by modern liberal thought, we have, among others, the Iusrealist, Marxist, republicanism, feminism, communitarian, multiculturalist, interculturalist and decolonial theories. They try to respond to the deficit of material protection of what we have called rights, but they suffer, in one way or another, from broad and compressive contents of the globality of the dynamics of the human relationship with each other, with other cultures and with ecosystems and the environment in general.
In the last two decades in South America, particularly in Ecuador and Bolivia, the debate on rights beyond human beings has become more dynamic. As Indigenous Peoples and societies are considered the majority in those countries, they have introduced in their beliefs a strong connection to the environment. For example, the idea of buen vivir or “good living”, Pacha Mama or “Mother Earth”, are approaches that recognize the environmental dignity. It is expressed in that is the representation of Mother, Master and Holy and allowed in their respective Political Constitutions. Therefore, we have with it a duty of special care, because human life and other beings depend on how well we preserve the environment in the present and the future.
From our perspective, and taking into account our academic and research processes (Mesa Cuadros, 2015d), both the University and various ethnic and traditional peoples, as well as peasant and marginalized urban communities, which have usually been subjected to environmental displacement, have expressed a persistent desire of recognition of the rights of Nature, ecosystems, animals and other beings that are in them.
Such a legal basis is expressed in specifying who is precisely responsible for generating environmental problems and conflicts by unjustified appropriation of the environment and impacts on ecosystems and cultures, as this defines the degree of responsibility for actions or omissions of States, corporations or human beings as individuals.
For that reason, this legal basis has in the principles of responsibility, solidarity, sustainability and environmental prevention, the four pillars for the search and concretion of environmental justice. It passes through a discipline of Environmental Law that emphasizes in new principles and new political and legal procedures different from those that currently exist. However, these privileges only a few human beings with power and forgets the rights and interests of those who do not have power, because they are not yet subject, or because they are not materially part of the existing moral community.
This is because a debate about responsibility must show its multiple facets and dimensions without neglecting both the generational responsibility for present and future generations (human generational responsibility), as well as other non-human beings, both present and future generation (responsibility inter-species), where the environment or nature is the existential foundation of human beings and other present and future species.
Elements for a theory of environmental rights and environmental justice
The global environmental problem expressed in specific environmental conflicts in the territories, calls for the construction of political-legal mechanisms to resolve them in ways that are not more burdensome for humans and other beings, who have been the most affected by that unrest.
As mentioned before, the negative consequences of the accelerated processes of appropriation, predation and pollution have generated environmental injustices that require attention for their solution from the different disciplines of knowledge and the requirement of concretion for the adequate protection of all the rights.
In this sense, we want to formulate a theory of the integrality of rights, based on the need to overcome the deficit of modern liberal theories that do not do much to make the protection of the rights of those affected by the generalization of conflict effective. This theory seeks to offer some alternatives for the definition of the current and future bases of human dignity, which will only be possible within the context of environmental dignity.
From an adequate conceptualization and foundation, the theory of environmental rights that we defend here considers that all beings can be subjects of law. These ideas of rights must be debated in various juridical legal scenarios, from new visions of concrete dignity, that surpass the sectoral visions from which they have been formulated up to now. In addition, rights must be considered outside of the partial vision based on the unlimited appropriation of nature, which has led to the generalization of conflict and environmental indignity.
This task, from the law, politics, economics and morality passes the ideas of limits to the authorizations that have historically been given to human actions and behaviors and that, therefore, require substantial changes in these times of inadequate economic globalization, whose most visible result is unsustainable global climate change and the growing impoverishment of a large part of the world’s population.
In order to understand this problem, it is useful to compare various international economic reports. For instance, the World Development Reports (World Bank Group, 1978-2019) shows that there is an ever increasing tendency in global poverty and inequality rates. In the same vein, the Oxfam Briefing Paper (Oxfam, 2017) indicates that only 8 human beings possess more wealth than half of the world population, that means more than 3 and half billion people. In comparison, the Forbes Journal periodically shows data on the world’s richest men, showing the abysmal differences between poverty and wealth, where poverty rather than decline, grows despite greater scientific and technological developments.
The materiality of injustices demands environmental justice based on moderation, careful use and renewed relations between humans and other species, since the environment is not only ours but of all the members of the present humanity and the future generations of humans and nonhumans, because, being the nature in dispute, it generates inadequate appropriation and distribution.
A reflection on environmental law and justice must overcome the restrictive theories of human rights that do not surpass the deficit of the concept and the foundation, as well as the material concreteness of its protection. These theories ignore the existence of the environmental indignity, the deterioration of collective and common goods through discrimination and the dispossession of communities that base their way of life in the Good Life using nature in small proportions. We mis daily face the lifestyle of some groups of over-consuming urban dwellers and polluters have imposed on us by their appropriation, exaggerated and unlimited use of the elements of the environment.
We cannot forget that the Law and the Rights have usually been thought out in the past and the interest of a few people. The Law and the rights need a theory for the present, the future and that covers all the subjects. The rights have been thought about, written and taught as separated parts. The liberal theory of human rights accepts only the liberal rights (rights of the first generation or rights of liberty: freedom of property, right of freedom religious and freedom of thought), other rights such as social rights, collective, cultural and environmental rights are not, because they are only aspirations to fill in the distant future, not in the present time.
As a result, we have just a few rights, for a few people but that are not for all. However, from our perspective in this part of our rationale, I would like to tell you about some concepts about rights against the liberal theory: Firstly, the rights are capacities, powers, freedoms, guarantees or attributions of the subject of rights, which cannot be reduced only to norms. Secondly, Rights are the history of the processes of denial and vindication of them in a constant struggle of the weak against the strong (Ferrajoli, 1999). Thirdly, Rights are all rights and not just a few. Finally, the rights are for all the subjects (a process of universalization) and not only for a few subjects; thus, some rights are predicted for specific subjects