In the jargon of constitutional law among its selective experts sitting in the echelons of Ivy League law schools, the proclivity towards the eco constitutionalism has become a novel phenomenon. To put it simply, if constitutionalism stands as a phrase indicating the idea of ruling a state according to its constitution as the supreme rule book, eco-constitutionalism is akin to a process in which environmental concerns and obligations are incorporated into the national constitutions. More than a text mentioning the methods of governance and the inherent rights owned by the people, the constitution deserves a special place as the very embodiment of the soul of the nation.
On the face of it, eco-constitutionalism has not emerged out of the blue. Its gradual rise from the global south is connected to the severe environmental challenges that encompassed the countries due to the robust growth of neoliberalism. Countries in the Latin American region were gutted by the impacts of the multinational companies on their natural resources, which finally turned into a menace by impoverishing the indigenous communities in the area.
Contrary to the celebrated idea of an anthropocentric approach to the constitution, the Ecuadorian constitution in 2008 made a paradigm shift from a juridical anthropocentric orientation to an eco-centric position by recognising enforceable rights of nature. From Articles 8 to 10 in the Ecuadorian Constitution, the state of Ecuador admitted nature as a legal subject, which paved the path to grant specific rights. The provisions of Article 71 programmatically proclaim: “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.” And it adds, “All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.
Capitalist threat to eco-system
Ecuadorian moment was a spectacular one with its novel innovation of upholding ecological sustainability as a constitutional principle in an age when constitutional scholars still linger in the American ideal of seeing “man” as the central fighter of constitutional making.
Although Sri Lanka’s most complex Gaullist constitution lacks centrality over environmental rights or nature, the judicial activism experimented by the judiciary on the Island has left some landmark judgments as precedents for eco-constitutionalism. The famous judgement delivered by ARB Amarasinghe for the case of Bulankulama Vs Ministry of Industrial Development still echoes in the environmental law scholarship as a profound narrative to bolster the State’s responsibility over safeguarding natural resources.
The theoretical discussions surrounding eco-constitutionalism can be traced back to the constitutional law discourse that emerged within German academia in the 1980s. Legal scholars owe much to German jurist Claus Bosselmann, whose detailed research in the late 20th century inspired constitutional scholars to move beyond an anthropocentric approach to constitutional law.
However, the practical application of eco-constitutionalism remains largely an idealistic ambition in the Global North, as many Western countries show little genuine interest in harmonising ecosystems with constitutional rights. This reluctance is primarily due to the close relationship between property rights and wealth accumulation within the capitalist framework prevalent in these nations.
As well-known Greek economist and reformer Yanis Varoufakis pointed out, the West tends to commodify nature for its exchange value. While it is indeed possible to limit economic freedoms and property rights to protect nature and the environment, issues such as species extinction, the climate crisis, and global pollution highlight that existing measures are insufficiently effective.
Against this backdrop of constitutional centrality which gives ultimate importance to the rights of the man, the practical adoption of ecological principles into the constitutions is a timely concern.
Thus far, the implementation of environmental ethos in the constitution has only been successfully achieved within the Global South. Besides the constitutional upheaval that occurred in Ecuador, several other Latin American countries have adopted a nuanced approach signifying eco-constitutionalism. Notably, the bold steps taken by the Columbian Constitutional Court in internalising the international legal principles through Article 226 is a major step. According to Article 79 of the Colombian Constitution, “Everyone has the right to enjoy a healthy environment. The law will ensure community participation in decisions that may affect it.
It is the duty of the State to protect the diversity and integrity of the environment, conserve areas of special ecological importance, and promote education to achieve these goals. In South Asia, Bhutan serves as a prime example of eco-constitutionalism, with its strong environmental obligations embedded in its fundamental law. The constitution, which was promulgated in Bhutan in 2008, explicitly states that every Bhutanese citizen is a trustee of the country’s natural resources and environment, tasked with ensuring their benefit for both present and future generations. It also declares that it is the fundamental duty of every citizen to contribute to the protection, conservation, and prevention of all forms of ecological degradation.
A perspective of Global South
The examples from the Global South affirm that eco-constitutionalism is becoming a reality more than a philosophical speculation confined to the academic literature. Yet the constitutional making in the Global North is not entirely ready to alter their anthropocentric outlook to constitutional principles as the very foundation of constitutional developments in the West was rooted in the individual values they revered in the Age of Enlightenment in the 18th century.
They guaranteed individual freedoms, the protection of property, and the freedom of economic activity. The very notion of constitutional liberty empowered them to expand colonialism which ended up in catastrophic environmental failures in the Asian and African continents. In response to the environmental challenges in the age of the Fourth Industrial Revolution, the constitutions in the Global North clings to welfare-oriented policies without much emphasis on ecological needs. In a much detrimental stage in which the natural resources of the planet are at stake, the need to vitalise eco – constitutionalism should be a global concern by prioritising the change of four parts that make the classic constitutional order of the state: the preamble, the declaration of fundamental rights, the constitutional principles, and the structure and organisation of the State.
The writer is a lecturer at the Department of International Law, Faculty of Law, General Sir John Kotelawala Defence University.
