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On 26 November 2010, a number of citizens from Ecuador, India, Colombia, and Nigeria initiated an action before the Constitutional Court of Ecuador, seeking a remedy for the harms caused by the British Petroleum oil spill in the Gulf of Mexico.[1] They asked the court to issue a number of orders requiring the company to make public information related to the disaster and its impact and to take measures destined at correcting its effects.

The action was unusual for two reasons. First, the acts in question did not occur in Ecuador’s territory and did not involve Ecuadorian citizens. In fact, the plaintiffs asked the court to issue the orders against a British corporation based on the principle of universal jurisdiction. Second, none of the plaintiffs claimed to have suffered individual harms as a result of the oil spill. Relying on Article 71 of the new Constitution of Ecuador,[2] they did not ask the court to protect their rights, but “the rights of the ocean”.[3]

If one looks at the issues raised by this case from the perspective of constitutional theory, an interesting question arises: Even if one accepts that certain rights are necessary for democracy to exist and that the limits they create on elected representatives are thus justified from a democratic perspective, does this justification extend to the rights of nature? Should the “rights of the ocean”, the “rights of a river”, or the “rights of trees” limit the decisions of elected institutions of government—decisions that, while having negative environmental impacts, would normally seek to advance a number of legitimate human interests? From an international law perspective, the case raises the no-less-interesting question of whether a constitutional court operating under a constitution that recognizes the rights of nature should exercise jurisdiction in cases of serious harms to the environment, even if those harms are caused by non-citizens outside the country’s territory.

Since they arise from an unprecedented scenario, these are questions that have not been fully considered before. They force us to explore deeper issues about the relationship between democracy, state sovereignty, and environmental protection. The answers that this article will provide to those questions are profoundly intertwined with and rest in important ways on the theory of constituent power.

The theory of constituent power is a central concern of modern constitutional theory, and it has been highly influential in the countries where the idea of the rights of nature has gained legal approval: namely, Ecuador and Bolivia. Because of its relationship with democracy and the right to self-determination, the theory of constituent power allows us to directly address the issues raised by the questions posed above.

The first question—whether the recognition of the rights of nature can be justified from a democratic perspective—is the subject of Part I. I argue that some rights (including the rights of nature) serve to protect basic conditions that are necessary for the future exercise of constituent power. These basic conditions provide a baseline without which citizens could not meaningfully participate in any type of democratic political action. They include, for instance, the ability of associating with others, the possibility of receiving an education, and the prospect of living in a natural environment in which human life can flourish. Under this view, the fact that the rights of nature would frequently limit the decision-making power of elected officials is not more democratically objectionable than that which occurs when human rights impose similar limits. Rather, respect for these rights (or for their underlying objective) makes democracy possible in the first place. I develop this argument in four steps.

In Part I.A., I introduce the theory of constituent power, according to which in all constitutional orders there is an unlimited constitution maker, an entity not subject to any form of positive law. In a democratic society, that entity cannot be an individual or elite, but the people on whose authority the constitution rests. In Part I.B., I argue that respect for certain rights is necessary for any democratic exercise—including the exercise of constituent power—to take place. This argument does not commit one to any particular institutionalization of judicial review of legislation. Rather, the idea is that a democratically legitimate constitutional regime must respect the rights (or the interests they protect) that are necessary for democracy to exist. In Part I.C., I show that the theory of constituent power has an important intergenerational component: All generations should be able to become authors of their own constitution. Even though most discussions about constituent power are about past episodes of constitution making, the theory of constituent power is mostly about the future. Finally, in Part I.D., I argue that the intergenerational component of the theory of constituent power requires protection of the environmental conditions that would allow future generations to engage in constitution-making episodes, and that the attribution of rights to nature is an attempt to ensure that those conditions are protected.

The second question posed earlier—whether the exercise of universal jurisdiction directed at the protection of the rights of nature in cases of serious environmental damage[4] is justified—is the subject of Part II. The answer that I provide is also informed by the theory of constituent power. I argue that, by virtue of the connections between constituent power, the right to self-determination, and state sovereignty, the justification of the exercise of universal jurisdiction for serious violations of the rights of nature is at least as compelling as the justification for its exercise with respect to egregious human rights infringements. This argument rests on the premise that the objections—which are normally based on the principle of state sovereignty—to the exercise of universal jurisdiction in the context of certain international crimes, do not apply with the same force in the context of serious environmental harms.

After all, the reason that the principle of state sovereignty remains so influential in the twenty-first century is that it is closely connected to the right of self-determination—the external manifestation of the exercise of constituent power. In other words, states are presumed to have been created by their peoples, and that is a very good reason for treating them as sovereign entities. Accordingly, in cases of serious environmental harms—and therefore of grave violations of the rights of nature—the exercise of universal jurisdiction should be seen as a means of protecting the right to self-determination—and, indirectly, state sovereignty. As suggested above, without the presence of certain ecological conditions, any form of democratic political action would be impossible. In other words, courts exercising universal jurisdiction would be acting to protect the ability of present and future peoples to participate in the constitution and reconstitution of the states that make up the international community. Such a jurisdiction, I will argue, would rest on the authority of humanity as a whole, rather than on that of any state or people.

I will advance this argument in four steps. In Part II.A., I examine the resistance of some countries to international norms that limit the ability of domestic governments to regulate the economy or to advance certain types of policies. I explain why the conception of universal jurisdiction advanced in this article does not fall within that category of international norms. Universal jurisdiction, as understood here, seeks to enhance rather than constrain democratic political power. In Part II.B., I provide a brief overview of the principle of universal jurisdiction, emphasizing its historical development, and its adoption—and rejection—by some states and international courts. In Part II.C., I discuss some of the objections to the exercise of universal jurisdiction, which are usually based on the principle of state sovereignty. Finally, in Part II.D., I bring together the ideas briefly mentioned above and advance a justification for the exercise of universal jurisdiction in cases of serious environmental damage. As noted above, in such cases, national courts should not be seen as acting in the name of the states or in the name of the international community, but on behalf of the world’s peoples. This idea nevertheless requires us to recognize “humanity” as a relevant political category and as the bearer of an ultimate, transnational, constituent power.

I. The Rights of Nature Justified from a Democratic Perspective

A. Constituent Power: A Brief Introduction

The theory of constituent power, as it is known today, was initially articulated by Emmanuel Sieyès during the French Revolution.[5] This does not mean that the idea of constituent power itself originated in France but that it was there that it received its first major theoretical formulation.[6] The theory of constituent power, simply put, holds that in every society there must be a legally unlimited constitution maker—someone who can create constitutions at will.[7] In a democracy, that power always remains with the people. This idea was, of course, influential during the American Revolution, even if not expressed in the language of constituent power. Thomas Paine, for example, maintained that “[e]very age and generation must be as free to act for itself, in all cases, as the ages and generations that preceded it.”[8] Thomas Jefferson, for his part, attempted to give that view a practical application, suggesting that, at set intervals, all laws and institutional arrangements should lapse and constitutional conventions be convened.[9]

Sieyès expressed these ideas through his famous distinction between the constituent power and the constituted powers. The former was to be understood as an unlimited power to create new constitutions, which saw the people, or in Sieyès’s terminology, “the nation”, as its bearer.[10] The latter referred to the ordinary governmental institutions, whose power was always limited by constitutional law.[11] Since ordinary representatives exercise constituted (rather than constituent) power, they lack the ability to replace the existing constitution with a new one. The constitution, after all, is the norm that allows the representative assembly to exist and to engage in different exercises of power, such as the production of ordinary laws. Sieyès believed that in the same way that it was correct to say that ordinary representatives are bound by the constitution and cannot replace it, “[i]t would be ridiculous to suppose that the nation itself could be constricted by the procedures or the constitution to which it had subjected its mandatories.”[12] The nation was therefore free to unbind itself from the constitutional regime at any moment. The mere fact of expressing its will “puts an end to positive law, because [the nation] is the source and the supreme master of positive law.”[13]

In fact, Sieyès understood the nation, as the bearer of the constituent power, to be in the same position as individuals living in the state of nature, and consequently, the exercise of its will had to be superior to and independent of any constitutional form.[14] “The manner in which a nation exercises its will,” wrote Sieyès, “does not matter; the point is that it does exercise it; any procedure is adequate, and its will is always the supreme law.”[15] Being in the state of nature, however, presupposed being bound by certain moral obligations that arose out of the natural rights of individuals. This is why Sieyès maintained that “[p]rior to and above the nation, there is only natural law.”[16] That notion imposes limits on the kind of constitution that a constituent subject may legitimately adopt. In other words, in order to exercise constituent power in a way consistent with natural law, a nation is morally bound to respect certain rights, particularly (for Sieyès) the right to property, and to protect “the common security, the common liberty and, finally, the common welfare.”[17]

Sieyès’s theory was further developed by Carl Schmitt, the controversial German jurist, who unlike the French author did not rely on natural law considerations. Schmitt defined constituent power as “the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence.”[18] These fundamental political decisions generally refer to the basic structure of the state, whether it takes the form of a republic or a monarchy, of a unitary or a federal system, of a liberal democracy or a socialist order.[19] Crucially, Schmitt did not think that after those decisions are in place constituent power vanishes or is forever channelled through the ordinary constitutional amendment procedure. On the contrary, he maintained that even after being exercised, constituent power, as an unlimited power, continued to exist “alongside and above the constitution.”[20]

In Latin America, one of the most active regions of the world in terms of constitution making, the idea of the constituent power of the people has long been the subject of debate among constitutional theorists.[21] It played an important role in the recent constitution-making episodes that have taken place in some Andean countries,[22] and even if not clearly articulated at the level of constitutional theory, it was present in early nineteenth century political practice. The Haitian Revolution is the earliest example.[23] The revolution was both a slave insurrection, culminating in the abolition of slavery, and a constitution-making exercise that brought about in a number of constitutions and led to an external act of self-determination that resulted in a new state.[24] The Haitian Revolution exemplifies the many dimensions of constituent practice, some of which I will discuss later in this article.

From the perspective of constitution making, one of the key moments of the Haitian revolution occurred in 1801, when Toussaint L’Ouverture announced that the time had come to create “laws appropriate for our habits, our traditions, our climate, our industry,” and called for the convocation of a Constituent Assembly that would draft a constitution for Saint-Domingue.[25] The Constituent Assembly was composed of representatives of each of Saint-Domingue’s departments, as selected by local assemblies. The constitution, adopted in 1801, abolished slavery but fell short of declaring independence from France.[26] Independence was finally constitutionalized in Article I of the Imperial Constitution of 1805: “The people who live on the island formerly called Saint-Domingue agree to constitute themselves in a free and sovereign State that is independent from all other powers of the universe.”[27]

Later in the nineteenth century, the theory of the people’s constituent power was frequently put into practice in Latin America, as constituent assemblies were convened after successful independence struggles. These were followed by periodic constitution-making episodes. One of the first and most important examples is provided by the Constitution of the Gran Colombia, adopted in 1821 by a special assembly. Directly appealing to the theory of constituent power, some of the delegates were at pains to describe the assembly as a constituent, not a constituted, body.[28] More recently, in the twentieth and twenty-first centuries, constituent power has not only been associated with the view that the people possess a legally unlimited constitution-making power (a power that, as the highest courts of Colombia and Venezuela have determined, may be even exercised in violation of existing amendment rules).[29] It has also been associated with the idea that constitutions have to be adopted through highly participatory procedures.[30] In fact, as I have argued elsewhere, constituent power and democracy are connected in important ways.[31]

First, as noted above, both democracy and constituent power attribute to the people—understood as including all the human beings that live in a particular territory and are subject to state power—the right to participate in creating all laws, including fundamental laws. Put differently, in order to understand a constitution-making act as a true exercise of the constituent power of the people, it must take place through the most participatory procedures possible.

Second, both democracy and constituent power are uncomfortable with permanent constitutions. Permanent constitutions may be consistent with the idea of placing legal limits on the ordinary institutions of government (that is, the constituted powers) as a way of protecting the basic conditions of democracy, even if such limits thwart the will of present-day electoral majorities or of their representatives. However, both democracy and constituent power recommend against any legal limits being applicable to the “the people themselves”, that is, to the citizenry acting through participatory mechanisms of constitutional change.

Third, and as we will see in the next part of this article, the exercise of both constituent power and democracy requires respect for certain rights (including not only rights of political participation, but also for example, rights that protect individual autonomy).

This brief account should not be taken to suggest that the theory of the people’s constituent power is uncontroversial. On the one hand, it is in no way clear that there could be such a thing as a constituent people, a people that literally gives itself a set of fundamental laws. In that vein, it has been argued that the idea of the people as an ultimate constitution maker is based “on an unacceptable political mythology”,[32] and that any act of the people—a people that is only capable of action through representation—is determined by prior electoral and procedural rules that must be given to the people by someone else.[33] From a different perspective, but providing support for this critique, Enrique Dussel has argued that, although constituent power is always possessed by the political community, it must be delegated or institutionalized in order to be exercised. It must accordingly be transformed from an original power—potentia—into an organized or institutionalized power—potestas.[34]

On the other hand, it has been suggested that the category of the people should be abandoned, that the people should not be seen as the default bearer of the constituent power. Paolo Virno, for example, attributes to the concept of the people an inherently conservative character; its end is always to bring into existence a state, to create a sovereign with a single political will.[35] This, Virno maintains, is why Hobbes could say that in any form of government—even in an absolute monarchy—the people rules.[36] Moving away from the category of the people, Virno, like Antonio Negri,[37] attributes constituent power to a multitude that never seeks a unified centre of power. “The multitude” is anti-statist and anti-popular. Accordingly, it challenges both the sovereignty of the state and the sovereignty of the people.[38]

There are, of course, other approaches that attempt to redeem the people as a desirable political category. Ernesto Laclau, for example, sees the people not as the collection of human beings that inhabit a particular territory but as comprised of diverse groups, such as indigenous peoples, environmentalists, workers, and others, who are at different moments brought together by unfulfilled political demands.[39] Under such a conception, the category of the people is to be constructed—and reconstructed—in the context of particular political struggles that in the last instance challenge those institutions and officials who claim to act in the people’s name.[40]

My account of the theory of constituent power should not be understood as an attempt to settle any of the debates that I have summarily reviewed in the previous two paragraphs. On the contrary, and as will become clear in the next parts, my aim is to show that the theory of constituent power, as currently understood by mainstream constitutional theory has important implications for the relationship between peoples, states, and the protection of nature. When those implications are made explicit, or, put in a different way, when one brings to the surface the transformative potential of the modern notion of the constituent power of the people, the result is an expanded understanding of the rights required for democratic self-government, of the limits of state sovereignty, and of humanity as a relevant political category.

B. Democracy, Rights and Constituent Power

That there cannot be a democracy without respect for certain rights has become a common view among democratic and constitutional theorists. Even academics who are strongly critical of the counter-majoritarian character of judicial review of legislation, like Jeremy Waldron, identify a strong connection between rights and democracy.[41] And this not only applies to rights relating to political participation, but to other types of rights as well. That is to say, there are some rights, like the right to vote, that can be described as constitutive of democracy, since they are part of the formal requirements for citizen participation in the political process. There are also rights, like the right to freely associate with others and the right to express one’s opinions without fear of punishment, without which it would very difficult, if not impossible, for citizens to engage in genuine acts of democratic participation and deliberation.[42] All these rights can be properly described as political rights, as they are closely connected to each person’s ability to participate in both the ordinary political process and in any extraordinary process of constitutional change—that is, in the exercise of constituent power.

But there are other rights, which may be called individual rights, that are less obviously connected to democracy. These rights create a private sphere in which the state cannot intervene, a dimension of the life of citizens that is not for others to intrude on. The right to privacy, freedom of conscience, and the right to private property fall within this category. Nevertheless, there are ways of understanding these rights as fundamental to the existence of democracy. Without a secure place in the world to think and act free of state interference, for example, individuals can hardly form political opinions and develop their capacities of deliberating with others. This is why Frank Michelman has written that the right to privacy can be understood as a precondition to meaningful political participation, as it protects “the intimate associations through which personal moral understandings and identities are formed and sustained.”[43]

Like other republicans, Michelman also maintains that the right to private property can be thought of as necessary “to imbue citizens with the independence” to engage in popular self-government.[44] More recently, Corey Brettschneider has argued that freedom of conscience is essential to democracy because it “ensures that self-rulers will be able to think for themselves about political problems without being subject to external coercion,”[45] But the most ambitious attempt to demonstrate that both political and individual rights are fundamentally connected to democracy is probably Jürgen Habermas’s cooriginality thesis. Habermas argues that citizens can only make proper use of their public autonomy, of their ability to make laws in the exercise of their political rights, “if they are sufficiently independent in virtue of an equally protected private autonomy in their life conduct.”[46]

At the same time, they can only enjoy a sphere of private autonomy if they “make an appropriate use of their political autonomy”[47] and determine the specific interests that need to be protected through individual rights.[48] Only when both types of rights are fully realized are citizens able to see themselves as authors and addressees of the law. Citizens become authors of the law by virtue of the exercise of political rights, and its addressees by possessing a private autonomy that serves as a boundary to law.[49] Habermas maintains that, in addition to the political and individual rights described earlier, the recognition of “[b]asic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded” might also be necessary to provide citizens an opportunity to exercise other rights.[50] Without adequate access to things such as health, education, and food, it would be difficult for any citizen to effectively participate in the political process.[51]

It is not that non-political rights, such as individual, social, or economic rights, have value only because of their relationship to rights of political participation. Rather, the point is that the fact that non-political rights act as limits to the decisions of democratically elected officials—limits which in most constitutional orders are legally, rather than merely politically, enforceable—is not necessarily problematic from a democratic perspective because these rights are necessary for democracy to exist. Nevertheless, this does not mean that the constitutionalization of rights does not create certain tensions with the democratic ideal. For example, even if the rights mentioned above are necessary for democracy to exist, their meaning and scope will frequently be a matter of controversy. When that occurs, who should have the power to make a final, legally binding, decision about what is required by rights? If courts are attributed that power, should the citizenry—as opposed to judges and legislators—be able to change the constitution in order to redefine the rights in question?

Part of the immense body of literature about the legitimacy of judicial review of legislation revolves precisely around the first of those questions. It is not my intention here to engage in that debate since, as will become clear shortly, my argument will move in a different direction. It suffices to accept as plausible what I think is Habermas’s answer to the second question (whether citizens should have the power to redefine the content of rights), without attempting to engage in a defence or attack of the institution of judicial review of legislation. What I want to stress here is that even if both political and individual rights are necessary components of a democratic legal system, the constitutionalization of those rights should not be imposed on the citizenry by either courts or legislatures, or be determined by a priori moral norms.[52] On the contrary, the citizenry should be able to create and redefine rights whenever they consider it necessary.[53]

As Habermas maintains, the act of founding a constitution should not be seen as a one-time event in which a set of rights is permanently fixed. “[L]ater generations,” he writes, “have the task of actualizing the still untapped normative substance of the system of rights,” in a dynamic and self-correcting process “which is not immune to contingent interruptions and historical regressions.”[54] This is why he has expressed reservations about John Rawls’s theory of justice.[55] Rawls’s theory, he has suggested, implies a society in which citizens “cannot reignite the radical democratic embers of the original position in the civil life of their society ... and they find the results of the theory already sedimented in the constitution.”[56] The idea is that rights not only allow citizens to live under a democracy but also to exercise their constituent power and to make decisions about the very basis of their constitutional order. Regardless of the specific institutionalization that rights enforcement takes, their content must never be out of the scope of the original power of the citizenry.

C. Constituent Power through Time

If citizens have the ability to rewrite their constitution, to exercise their constituent power at any moment, then there is always the possibility that they might abolish the rights that make democracy possible. Despite his reliance on natural law, this is certainly a possibility under Sieyès’s theory, since there are no means of enforcing any legal or moral limits on a misguided constituent subject.[57] However, as we will see, the theory of constituent power has an important intergenerational dimension. As noted in Part I.A., Sieyès (and Schmitt) insisted that constituent power continues to exist after the constitutional order is in place. In that sense, his theory implicitly suggests a limit to the exercise of constituent power that is independent of any notion of natural law. In order to be consistent with itself, an act of constituent power must not deprive future generations of the opportunity of becoming constitution makers. Interestingly, and despite his insistence on the sovereignty of the people of the present, Thomas Jefferson was one of the most powerful defenders of constituent power’s intergenerational dimension.

Jefferson famously wrote that “[t]he earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please.”[58] As mentioned earlier, Jefferson also suggested that every time a new generation came into existence, which occurred every nineteen years according to his interpretation of the European tables of mortality, all laws and institutional arrangements should lapse and constitutional conventions be convened. Those conventions would allow the present generation to exercise the “right to choose for itself the form of government it believes most promotive of its own happiness.”[59] Jefferson’s immediate concern was to prevent the past from ruling the present—he famously insisted that “the dead have no rights.”[60] His argument, however, has an obvious implication for the rights of future generations. That is to say, no generation has the right to impose a constitution on another, and that applies equally to past and present peoples.

Most modern constitution makers have ignored Jefferson’s advice and, consequently, have adopted constitutions that are in tension with the theory of constituent power and its intergenerational component. These constitutions are not only difficult to change but they lack mechanisms designed to allow citizens to become authors of their constitutional regime. The result is that the amending power is usually left in the hands of government and legislative supermajorities. This approach to constitutional change, to the extent that it attributes to government a power that it denies to the citizenry, provides an example of what Dussel described as political power becoming “self-referential”.[61] That is, a situation in which those exercising different forms of delegated or institutional power (potestas), lose sight of the fact that all political functions—including the amending power—must have “as their primary and ultimate reference point the power of the political community.”[62]

The intergenerational component of the theory of constituent power is radically inconsistent with such a state of affairs, since it requires state officials to recognize that it is in present and future peoples that the ultimate authority to change the constitution rests. The constitutions recently adopted in some Latin American countries seek to avoid the problem identified by Dussel by providing citizens with the faculty of transforming the constitutional order, acting outside the ordinary institutions of government.[63] These constitutions do this through provisions that allow citizens to trigger through popular initiative a referendum on whether an extraordinary assembly should be convened and a new constitution created. I have examined the constitutional theory behind those constitutions in my previous work,[64] but what I would like to stress here is the fact that these constitutions exemplify the intergenerational dimension of constituent power. They do so in the following way.

These are constitutions that recognize generous catalogues of political, individual, social, and economic rights. These rights, as we have seen, are connected in fundamental ways to democracy and constituent power. At the same time, they allow citizens to create a new constitutional order without being bound by any form of positive law. They reflect constituent power’s intergenerational component because they assume that, regardless of how “progressive” or “advanced” a constitution might be, its content should never be put out of the scope of the decisions of present and future generations, who always retain the faculty of triggering new constitution-making episodes. These constitutions can thus be seen as resulting from the implicit self-imposition on the part of the constituent subject of two intergenerational obligations.

First, one must not exercise constituent power in a way that prevents future generations from becoming authors of a new constitution. Second, one must exercise constituent power in a way that facilitates the occurrence of future constituent episodes. Or, as crisply put by Dennis Thompson, “present sovereigns should act to protect popular sovereignty itself over time.”[65] The constitutional implications of this approach are easily grasped if one examines the Constitution of Ecuador, adopted in 2008. The Constitution of Ecuador was drafted by a Constituent Assembly triggered by referendum and composed of elected delegates. Moreover, before the constitution came into force, it was ratified by the citizenry in an additional referendum. Even though this constitution-making process was not by any means perfect, Latin American constitutions have not been traditionally drafted with these levels of popular involvement. Rather, in the best of cases, and with only some exceptions, they were drafted by legislative assemblies that assumed constituent functions.[66]

The Constitution of Ecuador recognizes traditional political rights, such as the right to vote and to be a candidate for office,[67] as well as individual rights, such as the rights to privacy and non-discrimination.[68] It also recognizes different social and economic rights, including the right to education,[69] and the right to food and water.[70] Moreover, it establishes a number of mechanisms for the enforcement of those rights,[71] and grants a Constitutional Court the power to strike down unconstitutional legislation.[72] Nevertheless, this constitution also includes a mechanism that could be used to abolish all of these rights and to create a constitutional order based on a totally different set of values.

Such a result could be achieved not through the ordinary legislative process or through a constitutional amendment, but through an extraordinary assembly—a Constituent Assembly—that can be convened by a referendum triggered through a popular initiative in accordance with Article 444. The assembly would be composed of elected delegates, which are given the mandate to draft a new constitution that only becomes valid if ratified by a majority of the electorate. Article 444 thus attempts to make available, for present and future generations, a constitution-making mechanism as participatory as the one used when the constitution was originally adopted.

Despite its apparent democratic features, it might be argued that this approach, which is also present in the constitutions of Bolivia and Venezuela,[73] is built on a fundamental and dangerous contradiction. That is to say, it gives the maximum protection possible to political, individual, social, and economic rights, but it also provides an avenue for their destruction.

But that would miss the point. These constitutions are better understood as attempting to reconcile the idea that there are some rights without which democracy would not be possible, with the view that in a truly democratic society, a society in which citizens govern themselves, present and future peoples should be able to adopt any constitution they want. Rights may, therefore, serve as limits to ordinary political power, but those limits do not apply to the people. Even if unlikely, the mechanisms that facilitate the exercise of constituent power could be used to produce an undemocratic constitution. For example, a constitution could deny the very rights that make democracy possible, thereby making future exercises of democratic constitution-making impossible. Such a constitution, however, would be inconsistent with the intergenerational component of the theory of constituent power—the idea that all peoples have the right to become authors of the constitutional order under which they live. And in that respect, it would be a democratically illegitimate constitution.

D. The Democratic Legitimacy of the Rights of Nature

The rights that we normally have in mind as imposing limits on government are human rights, the rights of the people alive now and perhaps the rights of the descendants of today’s people. The Constitution of Ecuador, however, also attributes rights to nature. Article 71 defines nature—or Pachamama[74]—as the place “where life is reproduced and occurs” and attributes to it the “right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” It also states that “all persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.”[75]

There is an interesting body of literature that examines the very coherence of the idea that nature may have rights of its own and whether nature has an intrinsic value separate from any benefits it may provide to human beings.[76] What interests me here is not to engage in that debate but rather to consider whether the attribution of rights to nature can be justified from a democratic perspective.[77]

One possibility is to say that the decision-making power of democratically elected officials should be limited by the rights of humans, and quite another to say that it should also be limited by the rights of nature. In the first scenario, political power is limited in order to satisfy what is taken to be a higher human interest, namely, the protection of human rights. In the second scenario political power is limited in order to protect the environment, even if that limit runs contrary to activities that may at least result in short-term benefits to society.[78]

It is worth noting an obvious fact at this stage: No human rights could be exercised in the absence of a natural environment capable of sustaining human life. As stated by Alberto Acosta, one of the drafters of the 2008 Constitution of Ecuador: “[T]he destruction of nature eliminates the conditions required for the existence of the human species and therefore violates all human rights.”[79]

The International Court of Justice has also emphasized the close relationship between human rights and the protection of nature. For example, in Hungary v. Slovakia, then Vice-President Weeramantry stated, in a separate opinion, that “the protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself.”[80] Justice Weeramantry added that it was not necessary to elaborate on that point because it was clear that “damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”[81] Under this seemingly uncontroversial line of reasoning, the attribution of rights to nature can be understood as a means of indirectly protecting the possibility of the enjoyment of human rights. As noted earlier, some of these rights are necessary for democracy to exist. Thus, when the rights of nature act as limits to the decisions of the ordinary institutions of government, such limits are no more democratically objectionable than those posed by freedom of speech or freedom of conscience.

A similar result is reached if one considers the most likely purpose behind the constitutionalization of nature’s rights. The attribution of rights to nature would normally be, in the last instance, an attempt to protect what may be called “nature as we know it”. By this, I mean a natural environment which provides for the basic conditions for human life, such as clean water, relative abundance of food, and land. It is also, therefore, an environment in which persons are able to engage in practices such as cultural or artistic activities, that go beyond mere physical survival and are considered valuable by human populations.

In other words, when seen from a human perspective, the constitutionalization of the rights of nature is a means to ensure that those subject to a constitutional order will live, in the present and in the future, in an adequate context for the realization and enjoyment of life. It seems trite to say that if those conditions did not exist, any meaningful deliberation in a democratic process would be impossible. In this sense, the movement toward the constitutionalization of the rights of nature, instead of being seen “as a serious threat to democratic freedom,”[82] should in fact be understood as seeking to promote the existence of democracy in the future.

This view is clearly reflected in UNESCO’s 1997 Declaration on the Responsibilities of the Present Generations towards Future Generations.[83] “Each generation inheriting Earth temporarily”, the document states, “should take care to use natural resources reasonably and ensure that life is not prejudiced by harmful modifications of the ecosystems,”[84] so that “future as well as present generations enjoy full freedom of choice as to their political, economic and social systems and are able to preserve their cultural and religious diversity.”[85]

This idea has also been advanced by various academics. Robyn Eckersley, for example, has maintained that “there are certain basic ecological conditions essential to human survival,” which “provide the very preconditions ... for present and future generations of humans to practice democracy.”[86] Accordingly, adds Eckersley, environmental rights “might be seen as even more fundamental than the human political rights that form the ground rules of democracy.”[87]

Some authors have challenged this approach. It has been argued, for instance, that if these environmental provisions are imposed on the people by a well-intentioned, but undemocratic, constitution maker, their allegedly democracy-promoting character would be put into question.[88] In fact, even if they are adopted by a democratic constitution maker, seeking to protect nature through constitutional means deprives present and future majorities of the opportunity of deciding whether environmental concerns should act as limits to the policy choices made by their elected representatives.[89]

These, however, are problems that apply to the constitutionalization of different forms of environmental rights in a typical liberal constitution—for example, a constitution that can only be amended by legislative supermajorities. In the context of constitutions that facilitate the exercise of constituent power through participatory mechanisms of constitutional change, such as the ones discussed above, those concerns would be misplaced. In those systems, the constitution itself can be altered by democratic means, even if those means are not accessible to the ordinary institutions of government.

Of course, attributing rights to nature might not be necessary to protect the ecological conditions that make democratic decision making possible. A constitutional order may achieve the protection of nature by recognizing the human right to a healthy environment.[90] For example, Article 33 of the Bolivian Constitution states that: “People have a right to a healthy, protected, balanced environment. The exercise of this right allows individuals and communities of present and future generations, as well as other living things, to develop in a normal and permanent manner.”[91]

In fact, “nature as we know it” may be protected in a particular territory without the formal recognition of any type of environmental right. For example, this would be the case in a society in which respect for nature is a deeply embedded value or in a society that has not developed the technological capabilities to cause significant ecological damage. It is the continuing existence of nature as we know it that is a precondition for democracy, not the existence of any particular constitutional forms directed at protecting the environment.

In certain contexts, however, the attribution of rights to nature may be seen as an effective means of achieving that goal (that is, protecting what above I called “nature as we know it”). In such a situation, the constitutionalization of the rights of nature can be justified as a constitutional form that—just as the right to vote or the freedom of assembly—will tend to promote a state of things in which different forms of democratic decision making, including the exercise of constituent power, will be possible. The relationship between nature and the exercise of constituent power is in fact recognized in the preamble of the Bolivian Constitution, which states: “We found Bolivia anew, fulfilling the mandate of our peoples, with the strength of our Pachamama and with gratefulness to God.”[92] Without the strength given by nature, which always forms an integral part of the many meanings that can be attributed to the concept of Pachamama, this preamble suggests, it would not have been possible for the Bolivian people to adopt a new constitution.

The continuing existence of nature as we know it, I have argued, is a necessary precondition for the future exercise of constituent power as well as for any form of political action. If that is correct, then the fact that the rights of nature may limit the decision-making power of elected officials—which would be more clearly exemplified when judges are authorized to invalidate exercises of ordinary political power that violate those rights—does not create a problem, at least not from a democratic perspective. This approach assumes, of course, that the constitution itself will always remain open to future episodes of popular constitutional change, an assumption that can only be made in a handful of constitutional systems around the world. Interestingly, the idea of the rights of nature has only achieved legal recognition in the context of those very systems, such as those of Bolivia and Ecuador, which operate under constitutions that contain provisions designed to facilitate future constituent episodes.

II. Justifying the Protection of the Rights of Nature through Universal Jurisdiction in Cases of Serious Environmental Damage

A. International Law and Constituent Power

There is, however, another question I promised to address: Would a constitutional court be justified in exercising jurisdiction and enforcing the rights of nature in cases involving acts by foreigners occurring outside the state’s territory? By considering the principle of universal jurisdiction, this part of the article directly engages with international law and indirectly attributes to it the potential of protecting a transnational constituent power. Some comments are accordingly necessary before moving further. Despite numerous attempts at promoting democracy and human rights through international law, international norms are not always on the side of basic democratic principles. One of the most salient examples is the international investment rules regime, protected by hundreds of bilateral investment treaties (BITs) that typically allow investors to enforce their provisions against states before international investment tribunals.[93]

The effect, according to David Schneiderman, is a system that sets legal limits on democratic decision making, and that “bind[s] states to a version of economic liberalism” by “assigning to investment interests the highest possible protection.”[94] In a similar way, Stephen Gill has argued that this framework amounts to a new form of constitutionalism which has at its objective not the protection of human rights or the separation of powers, but the insulation of “key aspects of the economy from the influence of politicians or the mass of citizens by imposing, internally and externally, ‘binding constraints’ on the conduct of fiscal, monetary and trade and investment policies.”[95]

It should, therefore, not come as a surprise that some states, particularly states which have adopted constitutions that rest in important ways on the theory of constituent power and that provide means for its exercise, such as Bolivia, Ecuador, and Venezuela, have resisted these international arrangements in different ways. In fact, David Schneiderman has noted that “[b]y any number of indicators, Latin America has become the principal site of resistance to the rules and institutions of international investment law.”[96]

This resistance is reflected, for instance, by Bolivia, Ecuador, and Venezuela’s recent decisions to withdraw their consent to the International Centre for the Settlement of Investment Disputes, as well as to terminate a number of BITs.[97] Moreover, some of the new Latin American constitutions contain provisions that seek to limit the power of the state to enter into agreements that recognize a foreign arbitration tribunal’s jurisdiction over its acts—at least in certain contexts. For example, Article 422 of the Constitution of Ecuador prohibits the adoption of international treaties in which the government cedes “sovereign jurisdiction” to international arbitration tribunals in commercial or contractual disputes.[98] The Constitutional Court of Ecuador recently declared that article inconsistent with thirteen BITs made with states such as Germany, the United States, France, and the United Kingdom.[99] Stressing the tensions between constituent power and international norms, Article 73 of the Constitution of Venezuela, allows the electorate, by popular initiative, to trigger a referendum on any treaty that may “compromise national sovereignty or that transfers competences to supranational organs.”[100]

Even outside the context of international investment law, the countries mentioned above have voiced opposition to other international arrangements. A good example is Bolivia’s denunciation of the UN Single Convention on Narcotic Drugs in 2011, which states that “coca leaf chewing must be abolished.”[101] This is a particularly telling example. It shows the extent to which international agreements, which are voluntarily ratified by governments of different ideological persuasions, can sometimes clash with local practices. Such agreements can therefore significantly limit the ability of some communities to govern themselves in a culturally appropriate manner. Similarly, but more controversially, Venezuela recently denounced the Inter-American Convention on Human Rights, and, in addition to Venezuela, the governments of Bolivia, Ecuador, and Nicaragua have engaged in strong criticisms of the Inter-American human rights system.[102] In both cases, the claims were not against international human rights law but were based on the allegation that institutions created for the protection of human rights were being used to advance an imperialist project.[103]

This resistance, however, does not extend to international law as a whole. Even countries that place their people’s constituent power above international norms are often prepared to engage with international law in profound ways. For example, the Constitution of Ecuador, while clearly establishing its supremacy over international treaties,[104] states in Article 424 that “international human right treaties ratified by the state that recognize rights more favourable to those contained in the Constitution will prevail over any other juridical norm or act of public power.”[105] Similarly, Article 13 of the Constitution of Bolivia states that “[t]he rights and duties protected by this constitution will be interpreted in conformity with international human rights treaties ratified by Bolivia.”[106] Perhaps most tellingly, Article 74 of the Constitution of Venezuela explicitly disallows referenda for the abrogation of laws that “protect, guarantee, or develop human rights or ratify international treaties.”[107]

These provisions suggest that these countries’ resistance to international norms is directly connected to instances in which international law establishes limits that constrain the government’s ability to pursue certain policies favoured by their populations independently of the wishes of other states. These are the types of limits presented by international investment law, or by international human rights organizations when they are perceived—perhaps wrongly—as agents of foreign domination. As exemplified by the constitutional provisions quoted above, the limits established by the human rights recognized in different international treaties, when properly applied, are different. They may limit the political power of government but at the same time promote the people’s ability to govern themselves and to engage in diverse forms of democratic political action.

In other words, since respect for human rights is a necessary condition for the future exercise of constituent power, these countries’ embrace of ratified international human rights treaties as an essential part of their constitutional order should not come as a surprise. The same applies to other forms of engagement with international law that are perceived to be consistent with popular self-government. For instance, outside the context of human rights, these countries are engaged in different international initiatives, like the Bolivarian Alliance for the Peoples of Our America (ALBA) and the Peoples’ Trade Treaty. These initiatives involve the use of international law to reach new levels of regional integration and have the “declared objective of constructing a more democratic multi-polar world order.”[108] Put differently, just as Haitian slaves embraced the French Declaration of the Rights of Man and the Citizen because it supported their demands for freedom, despite knowing that the declaration was not intended to apply to them,[109] these countries are willing to engage with international law as long as it does not place constraints on their self-government capacities.

As we will see shortly, the exercise of universal jurisdiction in cases of serious environmental damage strengthens, rather than limits, constituent power. It does so, however, by recognizing humanity as the bearer of a transnational constituent power that serves as the basis for the extraterritorial exercise of jurisdiction. Extraterritorial jurisdiction may appear inconsistent with the localized model of constituent power under which states such as Ecuador and Bolivia operate, since this model rejects any form of foreign interference with national self-government. Nevertheless, the existence of a transnational constituent power does not diminish in any way the ability of peoples to govern themselves and engage in exercises of constituent power within their constitutional orders. On the contrary, it enlarges their capacity to do so, in the present and in the future, by protecting some of the conditions necessary for popular political action to take place. As we will see, this goes a long way in justifying the democratic credentials of the exercise of universal jurisdiction in cases of serious environmental damage. In those cases, the exercise of universal jurisdiction on behalf of humanity can have radical democracy-enhancing effects.

B. Universal Jurisdiction: A Brief Introduction

In this Part, I use the term “pure” universal jurisdiction to refer to non-subsidiary jurisdiction that is exercised in the absence of a treaty and by a state with no connections whatsoever to the acts in question. Pure universal jurisdiction, even in the case of genocide, is far from being uncontroversial. This is why the President of the International Court of Justice, Justice Gilbert Guillaume, in a separate opinion in Democratic Republic of the Congo v. Belgium, insisted that “international law knows only one true case of universal jurisdiction: piracy.”[110]

It is not my purpose to provide a legal argument for the validity of universal jurisdiction under international law or to produce anything resembling a full treatment of the topic.[111] What I intend to do in these last three Parts is to show that if the external or international implications of the theory of constituent power are taken seriously, the justification of the exercise of universal jurisdiction in cases of serious environmental damage is at least as compelling as the justification for its exercise with respect to piracy, genocide, and crimes against humanity. But, as will be seen, in order to reach that conclusion, it is necessary to adopt a different understanding of the relationship between universal jurisdiction and state sovereignty.

The Charter of the United Nations provides that that organization “is based on the principle of the sovereign equality of all its members.”[112] In the last few years, a number of academics, generally associated with cosmopolitanism, have suggested that the classical notion of state sovereignty should be abandoned in favour of a conception that puts human rights at its centre.[113] At the same time, the emergence of supranational decision-making bodies and the increasing inability of states to act as autonomous agents, have led some scholars to suggest that the age of sovereign states is over.[114] Despite those challenges, however, state sovereignty remains one of the basic principles of international law. It is normally understood as resting on the following rules. First, each state possesses exclusive jurisdiction over its territory and over the human beings found there, as well as over actions that have an impact in the national territory. [115] Second, each state has a duty of non-intervention in matters that fall under the jurisdiction of other states.[116]

These two rules were economically formulated by the Permanent Court of International Justice in Lotus, in which it was held that a state “may not exercise its power in any form in the territory of another State.”[117] However, the court in Lotus also stated that the exercise of jurisdiction by a state outside its territory could be allowed “by virtue of a permissive rule derived from international custom or from a convention.”[118] In fact, a set of exceptions has developed which justifies the exercise of extraterritorial jurisdiction in a number of scenarios. For example, under the principle of nationality, a state may exercise jurisdiction over its nationals for criminal conduct that occurred in the territory of another state.[119] The principle of protection permits a state to punish acts committed in foreign territory, regardless of the nationality of the suspect, “provided that they adversely affect its interests, security, or the exercise of the prerogatives of public power.”[120] Under the passive personality principle, the state has the power to prosecute and punish acts committed by non-nationals in foreign territory when the victims are its nationals.[121]

These three principles assume that there is some link between the state that is authorized to exercise jurisdiction and the victim or the perpetrator. In the case of the principle of protection, the acts in question put the interests of the state at risk—for example, planning a coup d’état from a foreign territory. In contrast, universal jurisdiction is based solely in the nature of the relevant act, regardless of the place in which it occurred, of the nationality of the victim or perpetrator, or of the existence of any special connections with the state exercising it.[122] The doctrine is a reflection of the idea that there are interests that are common to all states and to the international community as a whole and that these interests are sometimes not sufficiently protected by territorial jurisdiction and its traditional exceptions. As noted by Bassiouni, universal jurisdiction relies on the view that by exercising it, a state “acts on behalf of the international community because it has an interest in the preservation of the world order as a member of that community.”[123]

Or, in the words of the Spanish Constitutional Tribunal:

International, cross-border prosecution that attempts to impose the principle of universal jurisdiction is based exclusively on the particular characteristics of the crimes subject to it, whose harmfulness (paradigmatically in the case of genocide) transcends the specific victims and affects the international community as a whole.[124]

Put differently, by exercising universal jurisdiction, a state conducts an actio popularis—an action in the name of the people—against an individual for committing an act (for example, piracy, slavery, war crimes, genocide, and torture) that renders him an hostis humani generis—an enemy of the human race.[125]

The oldest case of universal jurisdiction is piracy, and there are two main reasons for this:[126] first, the gravity of the crime; and, second, the absence of a state with territorial jurisdiction over the relevant act, because it occurs at the high seas.[127] For most of the twentieth century, in cases of crimes other than piracy, universal jurisdiction, if recognized, was viewed as strictly subsidiary. That is to say, it would exist only when states that would normally have jurisdiction were not in a position to exercise it or in cases in which extradition to the state with territorial jurisdiction was not possible.[128]

The most important developments of the principle of universal jurisdiction, however, took place after the Second World War. These developments were the result of the consensus that the most egregious violations of human rights concerned the entire international community, as they involved the denial of fundamental values and threatened international peace and security.[129] Naturally, a large part of these discussions have revolved around the crime of genocide.[130] Other important developments are related to the adoption in 1998 of the Rome Statute of the International Criminal Court.[131] Although the Rome Statute did not explicitly recognize universal jurisdiction, it indirectly resulted in its exercise by some states. Spain’s extradition request against Augusto Pinochet is one of the most important examples.[132] Moreover, various states expanded their criminal jurisdiction in preparation for the ratification of the Rome Statute.[133] Belgium, for example, amended its national legislation to recognize universal jurisdiction over genocide and crimes against humanity.[134] The Belgian legislation is particularly interesting because it authorized courts to exercise universal jurisdiction in absentia—even if the suspect has not, is not, and will not be present in the state’s territory—for some international crimes.[135]

In 2000, as a result of an arrest warrant issued in Belgium against the Minister of Foreign Affairs of the Democratic Republic of the Congo at the time, the International Court of Justice examined the consistency of the Belgian approach with international legality. Although the case was not decided on the principle of universal jurisdiction but on the doctrine of the absolute jurisdictional immunity of a sitting foreign minister, some judges spoke strongly against it. For example, then President of the court, Justice Gilbert Guillaume, noted that with the exception of piracy and subsidiary universal jurisdiction as recognized in certain treaties, “international law does not accept universal jurisdiction; still less does it accept universal jurisdiction in absentia.”[136] Not all judges agreed with that approach. Some, for example, argued that there is no rule of customary international law or any treaty prohibiting the exercise of universal jurisdiction in the absence of the suspect. In 2003, and under heavy pressure from the United States,[137] Belgium amended its national legislation in order to replace universal jurisdiction with other forms of extraterritorial jurisdiction, such as extraterritorial jurisdiction based on the passive personality principle.[138] Spain introduced similar amendments to its national legislation in 2009.[139]

C. Universal Jurisdiction and State Sovereignty

One of the main reasons for international law’s resistance to recognizing universal jurisdiction is that its exercise might directly negate state sovereignty. An important aspect of the problem was reflected in a recent discussion in the Sixth Committee of the United Nations General Assembly. There, the delegate from Argentina expressed that although universal jurisdiction is an important element of the international justice system, its unlimited use could “be perceived as a tool for interference in the internal affairs of other States or as a hegemonic jurisdiction exercised by developed countries against nationals of developing countries.”[140] Similarly, the delegate from Venezuela maintained that the principle of universal jurisdiction “must be exercised in accordance with the general principles of international law, especially non-interference in internal affairs and respect for the sovereignty of states.”[141] When one considers the principle of universal jurisdiction from the perspective of the states, it is not difficult to see why it has been met with high degrees of resistance.

It is no coincidence that universal jurisdiction achieved its greatest advances in the context of piracy. In addition to occurring in the high seas, piracy is a direct affront to the commercial interests of states and the economic security of the international community. Moreover, from the point of view of the due process of law, it seems preferable that the court of the territory where an act occurs exercise jurisdiction over it. That court will be better positioned to understand the social context of the crime, and there will be a greater chance that evidence and witnesses will be available.[142] In cases where universal jurisdiction is to be exercised in absentia, the accused’s right to be present at trial and to defend herself would be directly infringed.[143] It is important to note, however, that leaving aside the enforcement of judgments—which would not normally occur without the consent of the state where the relevant persons or things are located—universal jurisdiction does not involve a literal exercise of a state’s power in the physical territory of another.

That is to say, the exercise of universal jurisdiction takes place in the state that is adjudicating the issue,[144] not in the territory of the state where the acts to be judged occurred.[145] In this sense, hearing a case and issuing a judgment over acts occurring outside a state’s territory and involving nationals of other states does not necessarily violate the principle of non-intervention or the rule in Lotus that a state “may not exercise its power in any form in the territory of another State.”[146] This is particularly relevant in the context of universal jurisdiction in civil cases, where the remedy sought is not a suspect’s arrest but some reparative actions on the part of the defendant, as in the Ecuadorian case mentioned in the Introduction.[147] In such situations, one might expect more tolerance from the states in whose territory the relevant acts took place or from the states from which the perpetrators are nationals. If the defendant is not a state official, as would occur in many environmental cases where the damage would be caused by a private individual or corporation, state sovereignty would arguably be less threatened by the exercise of universal jurisdiction.

The case of enforcing a judgment issued in the exercise of universal jurisdiction is different, because in the absence of an express agreement, the arrest of a person in the territory of another state or the freezing of assets located abroad, would clearly be inconsistent with the sovereignty of one of the states involved. Nevertheless, even leaving aside the execution of judgments, it is undeniable that the unilateral and extraterritorial exercise of sovereignty may have an impact on the interests of other states and therefore may create friction between them.[148] Precisely for that reason, any exercise of extraterritorial jurisdiction must be justified by the state in question. States would usually attempt to frame any extraterritorial exercise of power within one of the recognized exceptions to the principle of territorial jurisdiction—that is, without having to resort to a claim of universal jurisdiction. But when there is no other option than the exercise of universal jurisdiction in the context of international crimes like genocide, torture, and slavery, the justification would typically take the following form:

Consensus exists within the international community that certain acts involve such egregious violations of human rights that they should be punished irrespective of where they occur. In those cases, any state should be allowed to exercise universal jurisdiction on behalf of all states for the purpose of protecting an international order committed to the prevention and punishment of those acts.

In some cases, this justification could be enough. However, in the case of the exercise of universal jurisdiction to protect the rights of nature, this justification is insufficient. There is obviously a lack of consensus among the international community not only around recognizing the rights of nature, but also around whether acts which endanger the environment should be subject to jurisdictional rules similar to those that may apply to international crimes such as piracy and genocide.[149] Accordingly, if a state is determined to exercise universal jurisdiction over acts that resulted in serious environmental damage in the absence of a treaty or customary rule of international law authorizing it to do so, it must provide a special justification.

Such a justification, by itself, would not automatically make the exercise of universal jurisdiction “legal”. It is nevertheless necessary to provide it because it is the only way that a state can attempt to show to the international community that it has engaged in a legitimate extraterritorial exercise of power. But to the extent that it refers to serious environmental harms—as opposed to, for instance, piracy or genocide—it must be a justification that does not rely on the premise that universal jurisdiction can only be exercised in respect of acts that states have determined that threaten international order. Rather than focusing on the states or on the international community, the justification must point toward the need to protect the ability of present and future generations, anywhere in the world, to govern themselves, to carry out acts of constituent power. As there is a fundamental connection between state sovereignty and the constituent power of the people, this justification does not require us to abandon the principle of state sovereignty. On the contrary, it makes it necessary to approach it from a different perspective.

D. The Extraterritorial Protection of the Rights of Nature

We must begin by asking why it is that the principle of state sovereignty still occupies such a privileged place in international law. The most powerful reason for respecting state sovereignty lies in its connection to the right of peoples to self-determination. Enshrined in Article 1 of the United Nations Charter, the right to self-determination is one of the pillars of international law, and respect for this right indirectly requires respect for the sovereignty of states. In other words, even though international law identifies the state as the entity that has sovereignty at an international level, it is the fact that states are presumed to have been created by self-determining peoples which provides the basis for state sovereignty.[150] As Jean Cohen has stated, “[i]n the aftermath of decolonization”, sovereign equality “became interpreted in light of the concept of self-determination.”[151] Gillian Triggs has even suggested that, to the extent that the right to self-determination has acquired the status of a jus cogens norm, “states may have a duty not to recognize a state created in violation of the principle of self-determination.”[152] The self-determination of peoples, which empowers them to freely determine their political status, is nothing more than the external manifestation of popular sovereignty, of the people’s unlimited constitution-making power.

That is to say, when a people exercises its right to self-determination and decides to become an independent or freely associated state, or to integrate into another state,[153] it is also engaging in an exercise of constituent power, just as it would if it was creating a new constitution under an already existing state. In the act of determining its international political status, a people inevitably produces a new constitutional order domestically. Or, put differently, the exercise of the right of external self-determination has internal implications. Looking at state sovereignty from this perspective—from the perspective of the peoples in which state sovereignty rests—is especially important for my purposes here. Given the unlikelihood of an interstate consensus about the idea that some acts against nature should be considered at least as serious as some violations of international law, one must look beyond the states to ground a justification for the exercise of universal jurisdiction in cases of serious environmental damage.[154]

After all, states have not demonstrated the same level of concern for protecting nature as they have for preventing actions of a different type, often incomparable in terms of gravity with some of the wrongs inflicted on the environment.[155]

The clearest case, again, is that of piracy. As suggested by Frédéric Mégret, it is telling that the international crime of piracy does not include harms to aquatic ecosystems. Boarding a boat and appropriating some of the goods stored there is, under the prevailing notion of universal jurisdiction, an act much more serious than using those goods for the intentional contamination of the oceans, which has global effects.[156] Serious environmental harms have not been treated in the same way as acts that have been ordinarily associated with claims to universal jurisdiction for several reasons.

First, unlike actions such as piracy, genocide, and torture, environmental damage at times can result in apparent social and economic benefits.[157] Second, harms to the environment frequently have extraterritorial and even worldwide effects, but again unlike acts such as genocide and torture, they usually do not have a particularized impact on specific groups or individuals.[158] Third, environmental damage in many cases will only affect future generations. The human victims of serious environmental harms will frequently be people who do not yet exist and who will not live within a determinable jurisdiction.[159] While the first reason is, of course, important, it is more a question of the political will of the members of the international community. Accordingly, I will focus on the second and third of these reasons: the extraterritorial aspects and intergenerational character of environmental damage. These two features are related to the fact that the effects of environmental harms can be global. They can have an impact that goes beyond individuals, states, and particular territories— an impact that reaches future generations.

It is difficult to deny that some harms to nature threaten the basic conditions that make human life on the planet possible.[160] Not surprisingly, one can find many international declarations that support this view, even if they have not been clearly translated into law. For example, after expressing concern that some human activities affect global climate in a way that threatens “present and future generations with potentially severe economic and social consequences,” the United Nations General Assembly recognized climate change as a “common concern of mankind, since climate is an essential condition which sustains life on earth.”[161] Some years earlier, in the Stockholm Declaration, it was proclaimed that “[t]hrough ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend.”[162] Similarly, in the case of Hungary v. Slovakia, mentioned above, the International Court of Justice stated that the protection of the environment is important “not only for States but also for the whole of mankind.”[163]

Because acts that result in serious environmental harms put at risk the very possibility of human life, the justification for the exercise of universal jurisdiction in those cases should be based on the idea that jurisdiction is being exercised primarily and principally on behalf of humanity—rather than on behalf of states, on behalf of a particular people, or on behalf of the “international community”.[164] That is, the focus should not be on the existence of an international consensus about punishing the perpetrators of acts against nature, which is generally the emphasis when universal jurisdiction is discussed in the context of acts such as genocide or slavery. Rather, the objective of the exercise of universal jurisdiction in those cases should be seen as that of protecting the life, and quality of life, of present and future peoples.

Such a perspective is probably less controversial in the twenty-first century than what it might appear at first sight. And it is not novel. For example, in the 1970s, Richard Bilder identified “a growing awareness that all peoples and nations inevitably share the planet earth and that they have responsibilities to each other and to future generations for preserving its environment.”[165] The legitimacy of unilateral actions to protect the environment, he suggested, was thus strengthened by the fact that such actions are directed at protecting something which is shared and needed by everyone.[166]

Now, what does this have to do with state sovereignty? States, as I suggested in Part II.C., are treated as sovereign because it is presumed that they arose as a result of an exercise of self-determination. Under international law, the right to self-determination is not exhausted by being exercised once, just as under modern constitutional theory constituent power is not exhausted in the adoption of a constitution. On the contrary, it is a right retained at all times by all peoples, even if, as a matter of international law, it can arguably be exercised to create a new state by seceding from an already existing one only in cases in which a group is subject to serious human rights violations, or to a condition that amounts to “subjugation, domination and exploitation.”[167]

In order for the right to self-determination to be exercised, respect for certain rights is necessary. These are the same rights that serve as a precondition for the exercise of constituent power. Only if those rights are respected, even if they are not recognized in a constitutional document, will a people be in a position to determine its political status and to create or transform a state that will enjoy sovereignty at an international level.[168] As any type of democratic political action, an act of self-determination is only possible within a natural environment compatible with the existence and enjoyment of human life. That type on environment is precisely what the constitutional recognition of the rights of nature seeks to promote. With this line of reasoning as a point of departure, the justification for the exercise of universal jurisdiction in cases that involve serious harms to the environment would be based upon three fundamental principles.

First, these are harms that can potentially impact all parts of the planet.[169] As noted by Mégret, the effects of environmental harms “often do not respect territorial borders” and are “increasingly capable of provoking global consequences.”[170] Second, universal jurisdiction would be exercised not only to prevent acts contrary to the interests of states—that is, the interests of the “international community”—but to protect the political power of the peoples on which state sovereignty rests, which is why the absence of a consensus between states about the existence of universal jurisdiction in the context of environmental damage should not be considered determinative.[171] Third, this concept of universal jurisdiction, by emphasizing the rights of all peoples to self-determination, points toward humanity—that is, toward the set of all peoples—as the place where the ultimate political authority over our planet rests. In that sense, in exercising universal jurisdiction over acts that result in serious harms to the environment, national courts would be acting principally in the name of humanity, not simply in the name of a constituent people, in the name of the international community, or in the name of international law.[172]

The idea of humanity as a political subject is, of course, not new. There are, for example, proposals for the creation of a UN Second Assembly composed of delegates called to represent the world’s peoples rather than their states,[173] and the Council of Social Movements of the ALBA[174] has been described as representing the constituent power of the member states’ peoples.[175] In the specific context of the rights of nature, it is worth remembering the proposal of the President of Bolivia, Evo Morales, for conducting a global referendum about climate change and the protection of “Mother Earth”.

This type of proposal suggests that, during times of globalization, multilateral agreements, and the delegation of political power to supranational institutions, it is necessary to speak of the constituent power of humanity, of humanity as the bearer of a transnational constituent power. Serious environmental damage not only threatens the constituent power and the right to self-determination of particular peoples, but the ultimate sovereignty of humanity as a whole. Simply put, the exercise of universal jurisdiction in these cases would be directed at protecting that “originary tendency of all human beings” to remain alive, which Dussel has called the “will-to-live” and that forms the very basis of collective political action.[176] Under this approach, the exercise of universal jurisdiction would be justified in cases that threaten the ability of present and future generations to participate in the constitution and reconstitution of the states that make up the international community. Grave violations of the rights of nature, such as those that affect the integrity of large ecosystems, would normally satisfy this criterion.


This article had two main objectives. The first one was to provide an answer to the question of whether recognizing the rights of nature could be justified from a democratic perspective. I argued that, just as political, individual, social, and economic rights, the rights of nature can serve to protect the conditions that make democracy possible. Without a natural environment that is capable of sustaining acceptable forms of human life, no collective and deliberative decision-making process could take place. We saw that this view is consistent with and supported by the traditional theory of constituent power, which insists that future generations must have the ability of becoming authors of their own constitution. This approach, reflected in the new constitutions of some Latin American countries, stresses constituent power’s intergenerational component. By doing so, it agrees with Jefferson’s suggestion that the people always retains the right to govern themselves “as they please”, but with the caveat that the exercise of that right depends in important ways on the protection of nature.

The second objective of this article was to provide a justification for the exercise of universal jurisdiction in cases of serious harms to the environment. I argued that while universal jurisdiction is normally seen as posing a direct threat to state sovereignty, when state sovereignty is understood in light of its relationship with the right to self-determination, those threats become less pressing, at least in the context of universal jurisdiction in cases of serious environmental harms. When exercising universal jurisdiction in those cases, courts would be seen as acting not on behalf of states or on behalf of the international community, but on behalf of the peoples that constitute those states. In that sense, one might agree with Esperanza Martinez, an Ecuadorian activist and one of the claimants in the action mentioned in the Introduction, that since some acts against the environment have severe effects on the planet and affect the quality of life of present and future generations, they should be seen “as offence[s] against humanity as a whole, and highlight the need of adapting the principle of universal [jurisdiction], to address such crimes against nature.”[177]