On November 26, 2010, the evolution of consciousness took a surprising, but altogether natural turn. On that date, a ground breaking lawsuit was filed in the Constitutional Court of Ecuador against BP, alleging that its knowing and reckless actions in the Deep Horizon Well disaster in the Gulf of Mexico violated the rights of Nature guaranteed in Article 277 of the Ecuadorian Constitution. The Complaint tells a story of widespread death and destruction of Nature that has repercussions for all of Humanity.
The Rights Of Nature And Humanity Have No Borders
The basis for a court in Ecuador to hear these claims of harm to Nature – a doctrine called Universal Jurisdiction -- has thus far been reserved for prosecution of torture, genocide, and other crimes against Humanity. If Nature, through its Guardians, is successful in prosecuting these claims, it could mark a profound shift in deep-seated beliefs about Humanity’s relationship to Nature, national sovereignty, and the rule of law.
“[I]t’s about universal jurisdiction, beyond the boundaries of Ecuador, because Nature has rights everywhere."
This is what one of Nature’s representatives, environmental activist (and former quantum physicist) Dr. Vandana Shiva, had to say about the importance of this lawsuit:
"This morning we filed in the constitutional court of Ecuador this lawsuit defending the rights of Nature, in particular the right of the Gulf of Mexico and the sea, which has been violated by the BP oil spill. We see this as a test case of the rights of Nature enshrined in the constitution of Ecuador, which is why it’s about universal jurisdiction, beyond the boundaries of Ecuador, because Nature has rights everywhere."
Yes, The Gulf Of Mexico Has Rights
For readers who may be a bit surprised by the notion that Nature, and in particular the Gulf of Mexico and the sea, have legal rights, a brief history lesson from one of "Nature's lawyers" will bring you up to speed. The “Rights for Nature” movement has come from the classroom to the courtroom, and from Father Thomas Berry's prescient philosophy to a Global Alliance For The Rights Of Nature, in the blink of an evolutionary eye. In October 2008, when the citizens of Ecuador enacted the first Constitution on the planet recognizing legal rights for Nature, this movement was poised to take on global legal significance.
A suit on behalf of the Gulf of Mexico, the sea, and the fish and fowl that inhabit or migrate through the Gulf region, is certainly novel and controversial in most legal circles. However, the legal, moral, and philosophical issues of whether Nature should have rights are settled for the purposes of this lawsuit. Nature has legal rights because the people of Ecuador have said so in their Constitution, and BP will not be able to challenge that fundamental question of law.
Instead, the most contentious issue in this lawsuit may be whether harm allegedly caused by BP to Nature that occurred outside the borders of Ecuador is subject to the “Universal Jurisdiction” of the Constitutional Court of Ecuador – because “Nature has rights everywhere” as the plaintiffs put it.
The principle of Universal Jurisdiction has developed under international law to enable the courts and authorities of any nation to investigate and prosecute individuals for committing genocide, war crimes, torture, or other acts that are considered crimes against Humanity, even if the crimes were committed in another country. From the International Military Tribunal at Nuremburg in 1945, to prosecutions in the new century of Augusto Pinochet, Slobodan Milosevic, and other alleged human rights abusers, Humanity has created new avenues for Universal Jurisdiction to play out on the world stage.
"No longer can heads of state, and other actors, be sure they can commit atrocious violations and get away with it." U.N. High Commissioner for Human Rights, Navi Pillay, on the merits of Universal Jurisdiction
Even the United States has been challenged by the moral authority of Universal Jurisdiction to eliminate safe havens for alleged war criminals. In 2004-2009, Germany, France, and Spain attempted to investigate and prosecute Donald Rumsfeld and other high-level U.S. officials for alleged torture and systematic abuse of detainees in the so-called war on terror. The world learned recently through Wikileaks that the Obama administration, like its predecessor, used diplomatic pressure to stifle any prosecution in Europe of U.S. officials for torture and other war crimes. While the political pressure was effective for the moment, the message from even our allies is clear – Universal Jurisdiction is the vanguard for assertion of the world’s core values.
Universal Jurisdiction is based on a principle that duties to preserve certain human values are considered Erga omnes, or owed to the entire world community. It is recognition that “Humanity has rights everywhere.” Through the assertion of Universal Jurisdiction against BP, the parallel threads of crimes against Humanity and Nature have now become intertwined. This is where the play gets really interesting. Or, as Shakespeare put it: “Ay, there’s the rub.”
Morality Is Nature’s Compass Where The Law Fears To Tread
The invocation of Universal Jurisdiction in this case can be seen in several ways. First, there is a novel legal connection being made between injury to Nature and jurisdiction. The allegation is that "Nature is everywhere" and therefore Ecuador can enforce Nature's rights wherever the harm to Nature takes place in the world. The flip side to that coin is the assumption that Nature suffers injury everywhere, if it suffers injury anywhere. This form of Gaia theory, which sees the Earth as a living system, is fast becoming a viable scientific explanation for climate change and other aspects of injury to Nature. But, there simply is no legal precedent for it – yet.
In such circumstances, it makes sense to rely on a more traditional basis for Universal Jurisdiction, by demonstrating a deep moral connection between injury to Nature and injury to Humanity. The linchpin for the exercise of Universal Jurisdiction is the principle that "some crimes. . .are of such exceptional gravity that they affect the fundamental interests of the international community as a whole." For this moral link between Humanity and Nature to take hold, it does not require a showing that death and destruction of Nature is as important as mass murder of humans or ethnic cleansing. In the current scale of human values, that equivalency will be difficult to accept.
For such a moral link to be made, the presentation of injury to Nature must be visceral and compelling on its own terms. It took shocking photos and stories of ethnic cleansing in the Balkans to finally galvanize the world community to intervene against Serbia and Milosevic using Universal Jurisdiction. So can stunning photos and personal stories of the death and destruction in the Gulf help to make the connection to shared human values that would support Universal Jurisdiction in Ecuador.
The Complaint does provide a glimpse into the horrors that have been inflicted on wildlife in the Gulf:
“Some studies have reported long-term reproductive problems in animals exposed to oil. If oil is toxic, oil mixed with dispersants is even more toxic. Animals that are not killed outright suffer lesions in their organs, including the brain. They absorb oil through all of their orifices. Death by oil is horrible, and can result from hypothermia, malnutrition, anaemia and poisoning. . . .
There are impacts expected for cetaceous species (dolphins, whales and sperm whales) that use complicated communication systems for orientation and finding food. Whales, feeling asphyxiated, move up to the surface, which is covered by a layer of oil. They come into contact with the oil slick in the attempt to breathe. . . .
Five of the world’s seven species of sea turtles are threatened or endangered by the Gulf oil spill, including the most abundant sea turtle species and the only vegetarian sea turtle species. . . .
The bluefin tuna is another marine species devastated by the oil spill. The Gulf of Mexico is one of the world’s two spawning grounds for the bluefin tuna. . . .
At least 16 bird species are threatened by the Gulf oil spill. From the humble plover to the majestic snowy egret, the Gulf Coast provides the habitat for countless birds and is significant for the preservation of many species, including a number of rare and endangered birds. Birds are among the creatures most vulnerable to the effects of the BP oil spill. Oil on their feathers destroys their natural waterproofing, and since they can no longer regulate their body temperature, they can die of hypothermia. . . .”
(Complaint pages 6-8). At least 16 bird species are threatened by the Gulf oil spill. From the humble plover to the majestic snowy egret, the Gulf Coast provides the habitat for countless birds and is significant for the preservation of many species, including a number of rare and endangered birds. Birds are among the creatures most vulnerable to the effects of the BP oil spill. Oil on their feathers destroys their natural waterproofing, and since they can no longer regulate their body temperature, they can die of hypothermia. . . .”
Deep within each of us lies a cellular memory of our connection to Nature that is a source of empathy when wildlife suffers in this way. Yet, for some, empathy for Nature is but a faint murmur, and more is required to compel action.
If Nature Is In Peril, Humanity Is In Peril
It is important to remember that most of Humanity still views the world through the lens of Dominion over Nature, where only harm to humans truly matters. For this case to help bring about a form of “push evolution” toward unity consciousness, the injury to Nature must not only wound the human conscience, it must also threaten our own existence.
Nature’s guardians in this case begin to make that connection in telling the world why the Complaint was filed:
“[B]ecause it is an ethical imperative in these times when even the most optimistic voices warn that humankind is losing its future. . . . Because we recognize ourselves as men and women who depend on the air to breathe; on the water to revitalize us, refresh us, and give us life; on the species that surround us to maintain the balance of life and the planet, to astonish us with their beauty and amaze us with the immense capacity for collaboration and solidarity among the species found in nature; on the sea, which holds the secrets of existence in its vastness, and is the birthplace of life as we know it.”
For this shift to unity consciousness to spread deeper roots, every opportunity to light the way across these moral and existential bridges to Nature must be seized.
"Todos Somos Seres Universales"
John F. Kennedy went to Berlin in June of 1963, to proclaim America’s solidarity with victims of the Cold War, by declaring: "Ich bin ein Berliner." In 2008, candidate Barack Obama came back to Berlin to express a desire for global solidarity, saying: "I come here. . .as a citizen of the World." The day will arrive when a gathering of global leaders comes to Ecuador to proclaim Humanity’s solidarity with Nature: “Todos somos seres universales”: "We are all Universal Beings." With this suit, that day is brought nearer to reality.
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