McGill Law Journal Revue de droit de McGill
CONSTITUENT POWER, THE RIGHTS OF NATURE, AND
UNIVERSAL JURISDICTION
Joel Coln-Ros*
This article provides a justification for the
exercise of universal jurisdiction in cases of se-
rious environmental damage. This justification
rests in important ways on the theory of con-
stituent power. The theory of constituent power
has an intergenerational component that re-
quires the protection of the environmental con-
ditions that allow future generations to engage
in constitution-making episodes. This article
maintains that, by virtue of the connections be-
tween constituent power, the right to self-
determination, and state sovereignty, the justi-
fication for the exercise of universal jurisdiction
for serious environmental damage is at least as
compelling as the justification for its exercise
with respect to egregious human rights in-
fringements. In those scenarios, courts exercis-
ing universal jurisdiction would be acting to
protect the ability of present and future peoples
to participate in the constitution and reconstitu-
tion of the states that make up the internation-
al community. Such a jurisdiction would rest on
the authority of humanity as a whole rather
than on that of any state or people.
aux
gnrations
Cet article tente de justifier lexercice de la
juridiction universelle dans les cas de grave
dommage lenvironnement. Cette justification
se base de faons importantes sur la thorie du
pouvoir constituant. Cette thorie comporte un
lment intergnrationnel qui exige la protec-
tion des conditions environnementales qui per-
mettraient
venir
dentreprendre leur tour des pisodes de cra-
tion de constitutions. Cet article soutient quen
vertu des connexions entre le pouvoir consti-
tuant, le droit lautodtermination, et la
souverainet de
justification de
lexercice de la juridiction universelle dans les
cas de grave dommage lenvironnement est au
moins aussi puissante que la justification de son
exercice dans le contexte des violations fla-
grantes des droits humains. En exerant la ju-
ridiction universelle dans ces scnarios, les tri-
bunaux agiraient pour protger la capacit des
peuples actuels et futurs participer la cons-
titution et la reconstitution des tats qui com-
posent la communaut internationale. Une telle
juridiction se
lautorit de
lhumanit dans lensemble plutt que sur
lautorit dun tat ou dun peuple en particu-
lier.
fonderait sur
ltat,
la
* Senior Lecturer, Faculty of Law, Victoria University of Wellington. Thanks to Mark
Bennett, Alberto Costi, Jhonny Pabn, and Guy Sinclair for their comments, critiques,
and intellectual support, and to two anonymous reviewers for their thoughtful critiques
and suggestions.
Citation: (2014) 60:1 McGill LJ 127 Rfrence : (2014) 60 : 1 RD McGill 127
Joel Coln-Ros 2014
128 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Introduction
I.
II.
The Rights of Nature Justified from a Democratic
Perspective
A. Constituent Power: A Brief Introduction
B. Democracy, Rights and Constituent Power
C. Constituent Power through Time
D. The Democratic Legitimacy of the Rights
of Nature
Justifying the Protection of the Rights of Nature through
Universal Jurisdiction in Cases of Serious Environmental
Damage
A. International Law and Constituent Power
B. Universal Jurisdiction: A Brief Introduction
C. Universal Jurisdiction and State Sovereignty
D. The Extraterritorial Protection of the Rights
of Nature
Conclusion
129
132
132
138
142
146
151
151
155
161
164
171
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 129
Introduction
On 26 November 2010, a number of citizens from Ecuador, India, Co-
lombia, 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 ef-
fects.
The action was unusual for two reasons. First, the acts in question did
not occur in Ecuadors 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 lim-
its they create on elected representatives are thus justified from a demo-
cratic 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 governmentdecisions
that, while having negative environmental impacts, would normally seek
to advance a number of legitimate human interests? From an interna-
tional law perspective, the case raises the no-less-interesting question of
whether a constitutional court operating under a constitution that recog-
nizes 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 countrys 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
1 Demanda Por lor Derechos del Mar Bajo el Principio de Jurisdiccin Universal, action
before the Constitutional Court of Ecuador (26 November 2010). At the time of writing,
a decision on this case is still pending [Demanda].
2 Constitution of the Republic of Ecuador, 2008, Registro Oficial 449 [Constitution of Ec-
uador]. English quotations to the Constitution of Ecuador are taken from the English
translation available on the Political Database of the Americas (31 January 2011),
online: PDBA
3 Demanda, supra note 1 at 1 [translated by author].
130 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 consti-
tutional theory, and it has been highly influential in the countries where
the idea of the rights of nature has gained legal approval: namely, Ecua-
dor 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 questionwhether the recognition of the rights of nature can
be justified from a democratic perspectiveis 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 environ-
ment 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 mak-
er, an entity not subject to any form of positive law. In a democratic socie-
ty, 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 cer-
tain rights is necessary for any democratic exerciseincluding the exer-
cise of constituent powerto 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 con-
stitution making, the theory of constituent power is mostly about the fu-
ture. 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 at-
tempt to ensure that those conditions are protected.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 131
The second question posed earlierwhether the exercise of universal
jurisdiction directed at the protection of the rights of nature in cases of se-
rious environmental damage4 is justifiedis 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 na-
ture is at least as compelling as the justification for its exercise with re-
spect to egregious human rights infringements. This argument rests on
the premise that the objectionswhich are normally based on the princi-
ple of state sovereigntyto 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-determinationthe external manifestation of the exercise of
constituent power. In other words, states are presumed to have been cre-
ated 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 naturethe exercise of
universal jurisdiction should be seen as a means of protecting the right to
self-determinationand, 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 ex-
ercising universal jurisdiction would be acting to protect the ability of pre-
sent and future peoples to participate in the constitution and reconstitu-
tion of the states that make up the international community. Such a ju-
risdiction, 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 ad-
vanced in this article does not fall within that category of international
norms. Universal jurisdiction, as understood here, seeks to enhance ra-
ther than constrain democratic political power. In Part II.B., I provide a
brief overview of the principle of universal jurisdiction, emphasizing its
4 As will be noted later, for the purposes of this paper, serious environmental damage
will be understood as damage that is irreversible and that has a potential negative im-
pact in the life and self-governing powers of human populations, harms which would al-
so amount to grave violations of the rights of nature in the context of constitutions that
recognize such rights.
132 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
historical development, and its adoptionand rejectionby 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 prin-
ciple 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 worlds peoples. This idea nevertheless requires us to recog-
nize 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 ar-
ticulated by Emmanuel Sieys 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 makersomeone 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
5 Emmanuel Joseph Sieys, What Is the Third Estate?, translated by M Blondel (London:
Pall Mall, 1963). On the theory of constituent power and its implications for contempo-
rary constitutional theory, see Joel I Coln-Ros, Weak Constitutionalism: Democratic
Legitimacy and the Question of Constituent Power (New York: Routledge, 2012) [Coln-
Ros, Weak Constitutionalism].
6 The term constituent power was used in other jurisdictions well before the French
Revolution. See Joel Coln-Ros, Five Conceptions of Constituent Power (2014) 130:2
Law Q Rev 306 [Coln-Ros, Five Conceptions].
7 Ibid at 306.
8 Thomas Paine, The Rights of Man in Philip Foner, ed, The Life and Major Writings of
Thomas Paine (New York: Citadel, 1961) at 251.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 133
institutional arrangements should lapse and constitutional conventions be
convened.9
Sieys 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 Sieyss 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. Sieys 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 con-
stricted 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, Sieys understood the nation, as the bearer of the constituent
power, to be in the same position as individuals living in the state of na-
ture, 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 Sieys, 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 individu-
9 Thomas Jefferson, Writings, Merrill Peterson, ed (New York: Library of America, 1984)
at 1402. In a similar vein, James Wilson maintained that [a]s our constitutions are su-
perior to our legislatures, so the people are superior to our constitutions. … The conse-
quence is, that the people may change the constitutions whenever and however they
please. This is a right of which no positive institution can ever deprive them (Speech
before the Pennsylvania Convention (26 November 1787) in Jonathan Elliot, ed, The
Debates in the Several States Conventions on the Adoption of the Federal Constitution,
2nd ed, vol 2 (Philadelphia: JB Lippincott, 1901) at 432).
10 Sieys, supra note 5 at 12224.
11 Ibid.
12 Sieys, supra note 5 at 12526.
13 Ibid at 128.
14 Ibid.
15 Ibid.
134 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
als. This is why Sieys maintained that [p]rior to and above the nation,
there is only natural law.16 That notion imposes limits on the kind of con-
stitution 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, particu-
larly (for Sieys) the right to property, and to protect the common securi-
ty, the common liberty and, finally, the common welfare.17
Sieyss theory was further developed by Carl Schmitt, the controver-
sial 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, compre-
hensive decision over the type and form of its own political existence.18
These fundamental political decisions generally refer to the basic struc-
ture 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
16 Ibid at 124 [emphasis in the original].
17 Ibid 15657. See also JL Talmon, The Origins of Totalitarian Democracy: Political The-
ory and Practice during the French Revolution and Beyond (Middlesex: Penguin Books,
1952) at 76.
18 Carl Schmitt, Constitutional Theory, translated by Jeffrey Sitzer (Durham, NC: Duke
University Press, 2007) at 125.
19 Ibid at 7778.
20 Ibid at 12526.
21 The literature in Latin American constitutional theory about constituent power is much
more extensive than that in English speaking jurisdictions. See e.g. Carlos Snchez
Viamonte, El Poder Constituyente: Origen y Formacin del Constitucionalismo Univer-
sal y Especialmente Argentino (Buenos Aires: Bibliogrfica Argentina, 1957); Germn
Jos Bidart Campos, Derecho Poltico (Buenos Aires: Aguilar, 1962); Gabriel Melo Gue-
vara, Poder Constituyente (Bogot: Desarrollo, 1979); Luis Carlos Schica, Esquema pa-
ra una Teora del Poder Constituyente (Bogot: Temis, 1978); Rodrigo Borja, Derecho
Poltico y Constitucional (Mxico: Fondo de Cultura Econmica, 1991); Ricardo Combel-
las, Poder Constituyente (Caracas: Altalitho, 1999); Jorge Reinaldo A Vanossi, Teora
Constitucional (Buenos Aires: Ediciones Depalma, 2000); Gonzalo Ramrez Cleves,
Lmites a la Reforma Constitucional en Colombia: El Concepto de Constitucin como
Fundamento de la Restriccin (Bogot: Universidad Externado de Colombia, 2005);
Vladimir Daz Cuellar, Critica de la Teora del Poder Constituyente: Los Lmites del
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 135
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 exam-
ple.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 ex-
emplifies 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 LOuverture
announced that the time had come to create laws appropriate for our
habits, our traditions, our climate, our industry, and called for the convo-
cation of a Constituent Assembly that would draft a constitution for Saint-
Domingue.25 The Constituent Assembly was composed of representatives
of each of Saint-Domingues departments, as selected by local assemblies.
The constitution, adopted in 1801, abolished slavery but fell short of de-
claring independence from France.26 Independence was finally constitu-
tionalized 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 oth-
er powers of the universe.27
Proceso Constituyente Boliviano (La Paz: Instituto de Investigacion, Capacitacin y
Formacin Democrtica Carlos Montenegro, 2008).
22 For a discussion, see Coln-Ros, Weak Constitutionalism, supra note 5.
23 In a certain way, the Haitian revolution turned seventeenth century theories of re-
sistance, which are strongly connected with the theory of constituent power, on their
head. According to Lockes formulation of the right of resistance, which was highly in-
fluential in North America, the peoples right to constitute a new government is trig-
gered when those in power are unable or unwilling to protect individuals property, un-
derstood as including peoples lives, liberties, and estates (John Locke, Two Treatises of
Government (New York: Hafner, 1947) at 23233). As recently suggested by Illan rua
Wall, in Haiti, it was the property that rebelled against the individuals and eventually
became a constituent people (Illan rua Wall, Human Rights and Constituent Power:
Without Model or Warranty (New York: Routledge, 2012) at 18). The most famous ac-
count of the Haitian Revolution can be found in CLR James, The Black Jacobins: Tous-
saint LOuverture and the San Domingo Revolution (London: Allison & Busby, 1980).
24 See Sibylle Fischer, Modernity Disavowed: Haiti and the Cultures of Slavery in the Age
of Revolution (Durham, NC: Duke University Press, 2004) at 22744.
25 Laurent Dubois, Avengers of the New World: The Story of the Haitian Revolution (Cam-
bridge, Mass: Belknap, 2004) at 24243.
26 Fischer, supra note 24 at 227.
27 Ibid at 275.
136 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Later in the nineteenth century, the theory of the peoples 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 de-
scribe the assembly as a constituent, not a constituted, body.28 More re-
cently, 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 vi-
olation of existing amendment rules).29 It has also been associated with
the idea that constitutions have to be adopted through highly participa-
tory 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 peopleunderstood as including all the human beings that live in a
particular territory and are subject to state powerthe right to partici-
pate 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 par-
ticipatory 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 gov-
ernment (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 applica-
ble 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
28 Juanita Sanz de Santamara Samper, ed, Actas del Congreso de Cucuta, 1821 (Bogot:
Fundacin Francisco de Paula Santander, 1989).
29 See Joel I Coln-Ros, Carl Schmitt and Constituent Power in Latin American Courts:
The Cases of Venezuela and Colombia (2011) 18:3 Constellations 365.
30 Ibid at 368.
31 Coln-Ros, Five Conceptions, supra note 6.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 137
(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 peoples 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 peoplea people that is only capable of action through repre-
sentationis determined by prior electoral and procedural rules that
must be given to the people by someone else.33 From a different perspec-
tive, 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 exer-
cised. It must accordingly be transformed from an original power
potentiainto an organized or institutionalized powerpotestas.34
On the other hand, it has been suggested that the category of the peo-
ple 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 governmenteven in an absolute monarchythe 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. Accord-
32 Andrew Arato, Redeeming the Still Redeemable: Post Sovereign Constitution Making
(2009) 22:4 International Journal of Politics, Culture, and Society 427 at 437.
33 See ibid at 43738; Hans Lindahl, Sovereignty and Representation in the European
Union in Neil Walker, ed, Sovereignty in Transition (Oxford: Hart, 2003) 87 at 105
107.
34 Enrique Dussel, Twenty Theses on Politics, translated by George Ciccariello-Maher
(Durham, NC: Duke University Press, 2008) at 1823.
35 Paolo Virno, Virtuosismo y Revolucin: La Accin Poltica en la poca del Desencanto
(Madrid: Traficantes de Sueos, 2003) at 194.
36 Ibid.
37 See Antonio Negri, Insurgencies: Constituent Power and the Modern State, translated
by Maurizia Boscagli (Minneapolis: University of Minnesota Press, 1999) at 304.
138 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ingly, 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 concep-
tion, the category of the people is to be constructedand reconstructed
in the context of particular political struggles that in the last instance
challenge those institutions and officials who claim to act in the peoples
name.40
My account of the theory of constituent power should not be under-
stood as an attempt to settle any of the debates that I have summarily re-
viewed in the previous two paragraphs. On the contrary, and as will be-
come clear in the next parts, my aim is to show that the theory of constit-
uent 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 transforma-
tive potential of the modern notion of the constituent power of the people,
the result is an expanded understanding of the rights required for demo-
cratic 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 theo-
rists. 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 ap-
38 Virno, supra note 34 at at 104. For an illuminating discussion, see Illan rua Wall,
Notes on an Open Constituent Power (3 October 2013) Law, Culture and the Human-
ities, DOI: 10.1177/1743872113501840.
39 Ernesto Laclau, On Populist Reason (London: Verso, 2007) at 7982.
40 Ibid at 171.
41 Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999) at
28285. There are, however, critiques, both from the left and the right of the political
spectrum, of the usefulness or desirability of the idea of constitutional rights and of
rights discourse in general. See e.g. Duncan Kennedy, The Critique of Rights in Criti-
cal Legal Studies in Wendy Brown & Janet Halley, eds, Left Legalism/Left Critique
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 139
plies 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 ones 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
persons ability to participate in both the ordinary political process and in
any extraordinary process of constitutional changethat is, in the exer-
cise 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 citi-
zens 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 fundamen-
tal to the existence of democracy. Without a secure place in the world to
think and act free of state interference, for example, individuals can hard-
ly form political opinions and develop their capacities of deliberating with
others. This is why Frank Michelman has written that the right to priva-
cy can be understood as a precondition to meaningful political participa-
tion, 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 co-
(Durham, NC: Duke University Press, 2002); Mary Ann Glendon, Rights Talk: The Im-
poverishment of Political Discourse (New York: Free Press, 1991).
42 For a brief discussion of these rights and their relationship to democracy, see Walter F
Murphy, Constitutions, Constitutionalism, and Democracy in Douglas Greenberg et
al, eds, Constitutionalism and Democracy: Transitions in the Contemporary World (Ox-
ford: Oxford University Press, 1993) 3 at 35.
43 Frank Michelman, Laws Republic (1988) 97:8 Yale LJ 1493 at 1536.
44 Frank I Michelman, Possession vs. Distribution in the Constitutional Idea of Property
(1987) 72:5 Iowa L Rev 1319 at 1332. See also Philip Pettit, Republicanism: A Theory of
Freedom and Government (Oxford: Oxford University Press, 1999) at 16061.
140 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ercion,45 But the most ambitious attempt to demonstrate that both politi-
cal and individual rights are fundamentally connected to democracy is
probably Jrgen Habermass cooriginality thesis. Habermas argues that
citizens can only make proper use of their public autonomy, of their abil-
ity to make laws in the exercise of their political rights, if they are suffi-
ciently 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 autonomy47 and deter-
mine 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 ad-
dressees 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 safe-
guarded might also be necessary to provide citizens an opportunity to ex-
ercise other rights.50 Without adequate access to things such as health,
education, and food, it would be difficult for any citizen to effectively par-
ticipate in the political process.51
It is not that non-political rights, such as individual, social, or econom-
ic rights, have value only because of their relationship to rights of political
participation. Rather, the point is that the fact that non-political rights
45 Corey Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton:
Princeton University Press, 2007) at 45.
46 Jrgen Habermas, Constitutional Democracy: A Paradoxical Union of Contradictory
Principles? (2001) 29:6 Political Theory 766 at 767 [Habermas, Constitutional Democ-
racy].
47 Ibid.
48 See Jrgen Habermas, On the Internal Relation between the Rule of Law and Democ-
racy (1995) 3:1 European Journal of Philosophy 12.
49 Ibid at 17.
50 Jrgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of
Law and Democracy, translated by William Rehg (Cambridge: MIT Press, 1996) at 123
[Habermas, Between Facts and Norms]. For a discussion, see David Ingram, Habermas:
Introduction and Analysis (Ithaca: Cornell University Press, 2010) at 169170, 18489.
As the reference to ecology suggests, Habermas considers that different forms of envi-
ronmental rights may be necessary for the exercise of other rights. See Michael Mason,
Environmental Democracy: A Contextual Approach (London: Routledge, 1999) at
59.This idea will be discussed in the next section of this article.
51 For a discussion, see Michael Saward, The Terms of Democracy (Cambridge: Polity
Press, 1998) at 94101.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 141
act as limits to the decisions of democratically elected officialslimits
which in most constitutional orders are legally, rather than merely politi-
cally, enforceableis not necessarily problematic from a democratic per-
spective because these rights are necessary for democracy to exist. Never-
theless, 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, deci-
sion about what is required by rights? If courts are attributed that power,
should the citizenryas opposed to judges and legislatorsbe 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 Habermass answer to the second ques-
tion (whether citizens should have the power to redefine the content of
rights), without attempting to engage in a defence or attack of the institu-
tion 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 de-
termined by a priori moral norms.52 On the contrary, the citizenry should
be able to create and redefine rights whenever they consider it neces-
sary.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 un-
tapped 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 Rawlss theory of justice.55 Rawlss 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
52 Habermas, Between Facts and Norms, supra note 50 at 104105.
53 Ibid at 12526.
54 Habermas, Constitutional Democracy, supra note 46 at 774.
55 Jrgen Habermas, Reconciliation through the Public Use of Reason: Remarks on John
Rawlss Political Liberalism (1995) 92:3 Journal of Philosophy 128. John Rawls, A The-
ory of Justice (Cambridge, Mass: Harvard University Press, 1999).
142 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 insti-
tutionalization 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 possibil-
ity that they might abolish the rights that make democracy possible. De-
spite his reliance on natural law, this is certainly a possibility under Sie-
yss theory, since there are no means of enforcing any legal or moral lim-
its on a misguided constituent subject.57 However, as we will see, the the-
ory of constituent power has an important intergenerational dimension.
As noted in Part I.A., Sieys (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 genera-
tions 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
powers 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 earli-
er, Jefferson also suggested that every time a new generation came into
existence, which occurred every nineteen years according to his interpre-
tation of the European tables of mortality, all laws and institutional ar-
rangements 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 promo-
tive of its own happiness.59 Jeffersons immediate concern was to prevent
56 Ibid.
57 Sieys, supra note 5 at 124.
58 Letter from Thomas Jefferson to James Madison (6 September 1789) in Merrill D Pe-
terson, ed, The Portable Thomas Jefferson (New York: Viking Press, 1975) at 449.
59 Letter from Thomas Jefferson to Samuel Kercheval (12 July 1816) in Merrill D Peter-
son, ed, The Portable Thomas Jefferson (New York: Viking Press, 1975) at 560.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 143
the past from ruling the presenthe 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 Jeffersons advice and,
consequently, have adopted constitutions that are in tension with the the-
ory of constituent power and its intergenerational component. These con-
stitutions are not only difficult to change but they lack mechanisms de-
signed to allow citizens to become authors of their constitutional regime.
The result is that the amending power is usually left in the hands of gov-
ernment and legislative supermajorities. This approach to constitutional
change, to the extent that it attributes to government a power that it de-
nies to the citizenry, provides an example of what Dussel described as po-
litical 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 functionsincluding the
amending powermust 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 ulti-
mate authority to change the constitution rests. The constitutions recent-
ly 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 gov-
ernment.63 These constitutions do this through provisions that allow citi-
zens to trigger through popular initiative a referendum on whether an ex-
traordinary 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 constitu-
ent power. They do so in the following way.
60 Ibid.
61 Dussel, supra note 34 at 4.
62 Ibid [emphasis in the original].
63 See e.g. Constitution of Ecuador, supra note 2, art 444; Political Constitution of the
State of Bolivia, 2009, Gaceta Oficial, NCPE 10 Bs, art 411 [Constitution of Bolivia,
translated by author]; Constitution of Bolivarian Republic of Venezuela, 1999, Gaceta
Oficial No 36.860, art 347 [Constitution of Venezuela, translated by author].
64 Coln-Ros, Weak Constitutionalism, supra note 5.
144 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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
powers intergenerational component because they assume that, regard-
less of how progressive or advanced a constitution might be, its con-
tent should never be put out of the scope of the decisions of present and
future generations, who always retain the faculty of triggering new con-
stitution-making episodes. These constitutions can thus be seen as result-
ing 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 occur-
rence of future constituent episodes. Or, as crisply put by Dennis Thomp-
son, 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 trig-
gered by referendum and composed of elected delegates. Moreover, before
the constitution came into force, it was ratified by the citizenry in an addi-
tional referendum. Even though this constitution-making process was not
by any means perfect, Latin American constitutions have not been tradi-
tionally drafted with these levels of popular involvement. Rather, in the
best of cases, and with only some exceptions, they were drafted by legisla-
tive 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 indi-
vidual rights, such as the rights to privacy and non-discrimination.68 It al-
so recognizes different social and economic rights, including the right to
education,69 and the right to food and water.70 Moreover, it establishes a
65 Dennis F Thompson, Democracy in Time: Popular Sovereignty and Temporal Repre-
sentation (2005) 12:2 Constellations 245 at 248. See also Dennis F Thompson, Repre-
senting Future Generations: Political Presentism and Democratic Trusteeship (2010)
13:1 Critical Review of International Social and Political Philosophy 17.
66 See generally Gabriel Negretto, Making Constitutions, Presidents, Parties, and Insti-
tional Choice in Latin America (Cambridge, UK: Cambridge University Press, 2014).
67 Constitution of Ecuador, supra note 2, arts 61, 62.
68 Ibid, art 66.
69 Ibid, art 26.
70 Ibid, art 12.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 145
number of mechanisms for the enforcement of those rights,71 and grants a
Constitutional Court the power to strike down unconstitutional legisla-
tion.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 extraor-
dinary assemblya Constituent Assemblythat can be convened by a
referendum triggered through a popular initiative in accordance with Ar-
ticle 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 Vene-
zuela,73 is built on a fundamental and dangerous contradiction. That is to
say, it gives the maximum protection possible to political, individual, so-
cial, and economic rights, but it also provides an avenue for their destruc-
tion.
But that would miss the point. These constitutions are better under-
stood as attempting to reconcile the idea that there are some rights with-
out 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 exercis-
es of democratic constitution-making impossible. Such a constitution,
however, would be inconsistent with the intergenerational component of
the theory of constituent powerthe 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.
71 See e.g. ibid, arts 86, 88 (allowing any person, community or nationality to ask a court
for their enforcement).
72 Ibid, art 436.
73 Constitution of Bolivia, supra note 63, art 411; Constitution of Venezuela, supra note 63,
art 347.
146 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
D. The Democratic Legitimacy of the Rights of Nature
The rights that we normally have in mind as imposing limits on gov-
ernment are human rights, the rights of the people alive now and perhaps
the rights of the descendants of todays people. The Constitution of Ecua-
dor, however, also attributes rights to nature. Article 71 defines nature
or Pachamama74as 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 co-
herence 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 democrati-
cally 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 envi-
74 Article 71 of the Constitution of Ecuador makes the terms nature and Pachamama
equivalent, but the latter term can be understood as being much broader. The official
Spanish text of the relevant part of Article 71 reads as follows: La naturaleza o Pacha
Mama, donde se reproduce y realiza la vida, tiene derecho a que se respete integral-
mente su existencia y el mantenimiento y regeneracin de sus ciclos vitales, estructura,
funciones y procesos evolutivos. For a linguistic analysis of the term Pachamama, see
Rosaleen Howard-Malverde, Pachamama Is a Spanish Word: Linguistic Tension be-
tween Aymara, Quechua, and Spanish in Northern Potos (Bolivia) (1995) 37:2 An-
thropological Linguistics 141.
75 Constitution of Ecuador, supra note 2, art 71.
76 See e.g. Joel Feinberg, Rights, Justice, and the Bounds of Liberty (Princeton: Princeton
University Press, 1980); Alberto Acosta & Esperanza Martinez, eds, La Naturaleza con
Derechos: De la Filosofa a la Poltica (Quito: Abyayala, 2011); Christopher D Stone,
Should Trees Have Standing?: Law, Morality and the Environment, 3rd ed (Oxford: Ox-
ford University Press, 2010).
77 It is worth noting that, at the time of writing, the legislature of Ecuador passed a re-
vised Criminal Code (Cdigo Orgnico Integral Penal) that includes a chapter on
Crimes against the Environment and Nature or Pacha Mama. See Cdigo Orgnico
Integral Penal (2014), Registro Oficial Suplemento 180 (Ecuador).
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 147
ronment, 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 sustain-
ing 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 rela-
tionship 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 vi-
tal 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 elabo-
rate on that point because it was clear that damage to the environment
can impair and undermine all the human rights spoken of in the Univer-
sal Declaration and other human rights instruments.81 Under this seem-
ingly 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 free-
dom of speech or freedom of conscience.
A similar result is reached if one considers the most likely purpose be-
hind the constitutionalization of natures 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 en-
vironment 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 cul-
78 Economic development through the destruction of a forest is one example. Moreover,
there is always the possibility that the rights of nature will collide with human rights,
as in, for example, a case in which upholding the rights of a forest would result in a
negation of a communitys right to housing.
79 Alberto Acosta, Los Derechos de la Naturaleza: Una Lectura sobre el Derecho a la
Existencia in Alberto Acosta & Esperanza Martnez, eds, La Naturaleza con Derechos:
De la Filosofa a la Poltica (Quito: Abya-Yala, 2011) at 355 [translated by author].
80 Case concerning the Gabkovo-Nagymaros (Hungary v Slovakia), Separate Opinion of
Vice-President Weeramantry, [1997] ICJ Rep 88 at 91.
81 Ibid at 9192.
148 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tural 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 constitu-
tionalization of the rights of nature is a means to ensure that those sub-
ject 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 delibera-
tion 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 fu-
ture.
This view is clearly reflected in UNESCOs 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 Eck-
ersley, for example, has maintained that there are certain basic ecologi-
cal conditions essential to human survival, which provide the very pre-
conditions … 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
82 For a discussion of these criticisms in the context of profound ecology, see Eugenio Ral
Zaffaroni, La Pachamama y el Humano in Alberto Acosta & Esperanza Martnez, eds,
La Naturaleza con Derechos: De la Filosofa a la Poltica (Quito: Abya-Yala, 2011) at 85.
83 UNESCOR, 29th Sess, UN Doc C/RES/31/44, online: UNESCO
84 Ibid, art 4.
85 Ibid, art 2.
86 Robyn Eckersley, Greening Liberal Democracy: The Rights Discourse Revisited in
Brian Doherty and Marius de Geus, eds, Democracy and Green Political: Sustainability,
Rights and Citizenship Thought (London: Routledge, 1996) 212 at 224.
87 Ibid.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 149
by a well-intentioned, but undemocratic, constitution maker, their alleg-
edly 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 representa-
tives.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 su-
permajorities. 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 mis-
placed. In those systems, the constitution itself can be altered by demo-
cratic means, even if those means are not accessible to the ordinary insti-
tutions of government.
Of course, attributing rights to nature might not be necessary to pro-
tect the ecological conditions that make democratic decision making pos-
sible. A constitutional order may achieve the protection of nature by rec-
ognizing the human right to a healthy environment.90 For example, Arti-
cle 33 of the Bolivian Constitution states that: People have a right to a
healthy, protected, balanced environment. The exercise of this right al-
lows individuals and communities of present and future generations, as
well as other living things, to develop in a normal and permanent man-
ner.91
88 It is of course possible to defend the constitutionalization of different forms of environ-
mental rights from the perspective of intergenerational justice, and without any refer-
ence to democracy. See Edith Brown Weiss, In Fairness to Future Generations: Interna-
tional Law, Common Patrimony, and Intergenerational Equity (Tokyo: The United Na-
tions University, 1989). For general discussions about moral obligations to future gen-
erations, see RI Sikora & Brian Barry, eds, Obligations to Future Generations (Phila-
delphia: Temple University Press, 1978); Tim Mulgan, Future People: A Moderate Con-
sequentialist Account of our Obligations to Future Generations (Oxford: Clarendon,
2006). Cf Richard P Hiskes, The Human Right to a Green Future (Cambridge, UK:
Cambridge University Press, 2009).
89 Tim Hayward, Constitutional Environmental Rights (Oxford: Oxford University Press,
2005) at 14748.
90 For a discussion, see David R Boyd, The Environmental Rights Revolution: A Global
Study of Constitutions, Human Rights, and the Environment (Vancouver: UBC Press,
2012).
91 Constitution of Bolivia, supra note 63, art 33. Moreover, Article 34 states that: Any
person, as an individual or as part of a collective group, is empowered to take legal ac-
tion in defence of the right to the environment, without prejudice to the obligation of
public institutions to act against environmental attack. In 2010, Bolivia adopted the
150 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
In fact, nature as we know it may be protected in a particular terri-
tory without the formal recognition of any type of environmental right.
For example, this would be the case in a society in which respect for na-
ture 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 di-
rected 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 con-
stitutionalization of the rights of nature can be justified as a constitution-
al form thatjust as the right to vote or the freedom of assemblywill
tend to promote a state of things in which different forms of democratic
decision making, including the exercise of constituent power, will be pos-
sible. 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 peo-
ples, 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 Pa-
chamama, 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 re-
main open to future episodes of popular constitutional change, an as-
sumption 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 con-
tain provisions designed to facilitate future constituent episodes.
Law of the Rights of Mother Earth (Ley de Derechos de la Madre Tierra (2010), Ley No
071 (Bolivia)), which also attributed rights to nature.
92 Ibid, Preamble [emphasis added]. The official Spanish text reads as follows:
Cumpliendo el mandato de nuestros pueblos, con la fortaleza de nuestra Pachamama y
gracias a Dios, refundamos Bolivia.
II. Justifying the Protection of the Rights of Nature through Universal
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 151
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 states territory? By considering the principle of universal jurisdiction,
this part of the article directly engages with international law and indi-
rectly attributes to it the potential of protecting a transnational constitu-
ent power. Some comments are accordingly necessary before moving fur-
ther. 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 bi-
lateral investment treaties (BITs) that typically allow investors to enforce
their provisions against states before international investment tribu-
nals.93
The effect, according to David Schneiderman, is a system that sets le-
gal 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 influ-
ence of politicians or the mass of citizens by imposing, internally and ex-
ternally, 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, particu-
larly states which have adopted constitutions that rest in important ways
on the theory of constituent power and that provide means for its exercise,
93 David Schneiderman, Constitutionalizing Economic Globalization: Investments Rules
and Democracys Promise (Cambridge, UK: Cambridge University Press, 2008) at 2
[Schneiderman, Constitutionalizing Economic Globalization]. See also Robert Howse,
How to Begin to Think About the Democratic Deficit at the WTO in Stefan Griller, ed,
International Economic Governance and Non-economic Concerns ((New York: Springer,
2003); Gus Van Harten, Investment Rules and the Denial of Change (2010) 60:3 UTJL
893; Stephen Clarkson, Uncle Sam and Us: Globalization, Neoconservatism, and the Ca-
nadian State (Toronto: University of Toronto Press, 2002).
94 Schneiderman, Constitutionalizing Economic Globalization, supra note 93 at 206, 4.
95 Stephen Gill, Power and Resistance in the New World Order (Basingstoke: Palgrave
Macmillan, 2003) at 132.
152 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
such as Bolivia, Ecuador, and Venezuela, have resisted these internation-
al arrangements in different ways. In fact, David Schneiderman has noted
that [b]y any number of indicators, Latin America has become the princi-
pal site of resistance to the rules and institutions of international invest-
ment law.96
This resistance is reflected, for instance, by Bolivia, Ecuador, and
Venezuelas recent decisions to withdraw their consent to the Interna-
tional 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 tribunals ju-
risdiction over its actsat 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 inter-
national arbitration tribunals in commercial or contractual disputes.98
The Constitutional Court of Ecuador recently declared that article incon-
sistent 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 ref-
erendum 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 coun-
tries mentioned above have voiced opposition to other international ar-
96 David Schneiderman, Resisting Economic Globalization: Critical Theory and Interna-
tional Investment Law (Toronto: Palgrave Macmillan, 2013) at 150 [Schneiderman, Re-
sisting Economic Globalization].
97 See Federico M Lavopa, Lucas E Barreiros & M Victoria Bruno, How to Kill a BIT and
not Die Trying: Legal and Political Challenges of Denouncing or Renegotiating Bilateral
Investment Treaties (2013) 16:4 JIEL 869; Katia Fach Gmez, Latin America and
ICSID: David versus Goliath (2011) 17 Law & Bus Rev Americas 197.
98 Constitution of Ecuador, supra note 2, art 422. The text in Spanish reads: No se podr
celebrar tratados o instrumentos internacionales en los que el Estado ecuatoriano ceda
jurisdiccin soberana a instancias de arbitraje internacional, en controversias contrac-
tuales o de ndole comercial, entre el Estado y personas naturales o jurdicas privadas.
See also Constitution of Bolivia, supra note 63, art 466.
99 See Schneiderman, Resisting Economic Globalization, supra note 96, at 15152.
100 Constitution of Venezuela, supra note 63. The official text of the relevant part of Article
73 reads as follows: Los tratados, convenios o acuerdos internacionales que pudieren
comprometer la soberana nacional o transferir competencias a rganos supranacion-
ales, podrn ser sometidos a referendo por iniciativa del Presidente o Presidenta de la
Repblica en Consejo de Ministros; por el voto de las dos terceras partes de los o las in-
tegrantes de la Asamblea; o por el quince por ciento de los electores o electoras inscritos
e inscritas en el Registro Civil y Electoral.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 153
rangements. A good example is Bolivias denunciation of the UN Single
Convention on Narcotic Drugs in 2011, which states that coca leaf chew-
ing must be abolished.101 This is a particularly telling example. It shows
the extent to which international agreements, which are voluntarily rati-
fied 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 re-
cently denounced the Inter-American Convention on Human Rights, and,
in addition to Venezuela, the governments of Bolivia, Ecuador, and Nica-
ragua 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 cre-
ated 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 peoples 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 Simi-
101 Single Convention on Narcotic Drugs, 30 March 1961, 520 UNTS 151, 30 TIAS 6298 art
49 (entered into force 13 December 1964). Bolivia returned to the Convention in 2012,
with a reservation allowing for traditional uses of the coca leaf. See Sven Pfeiffer,
Rights of Indigenous Peoples and the International Drug Control Regime: The Case of
Traditional Coca Leaf Chewing (2013) 5:1 Goettingen Journal of International Law
287 at 303305.
102 Mnica Pinto, The Crisis of the Inter-American System in Proceedings of the 101st
Annual Meeting of the American Society of International Law, vol 107 (Washington, DC:
American Society of International Law, 2013) 127 at 128; Johan Karlsson Schaffer, An-
dreas Fllesdal & Geir Ulfstein, International Human Rights and the Challenge of Le-
gitimacy in Andreas Fllesdal, Johan Karlsson Schaffer & Geir Ulfstein, eds, The Le-
gitimacy of International Human Rights Regimes: Legal, Political and Philosophical
Perspectives (Cambridge, UK: Cambridge University Press, 2007) 1 at 7.
103 Pinto, supra note 102 at 12728. See also Schaffer, Fllesdal & Ulfstein, supra note 102
at 7.
104 Constitution of Ecuador, supra note 2, art 425.
105 Ibid, art 424. The full text of Article 424 reads as follows: La Constitucin es la norma
suprema y prevalece sobre cualquier otra del ordenamiento jurdico. Las normas y los
actos del poder pblico debern mantener conformidad con las disposiciones constituci-
onales; en caso contrario carecern de eficacia jurdica. La Constitucin y los tratados
internacionales de derechos humanos ratificados por el Estado que reconozcan derechos
154 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
larly, 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 interna-
tional norms is directly connected to instances in which international law
establishes limits that constrain the governments ability to pursue cer-
tain policies favoured by their populations independently of the wishes of
other states. These are the types of limits presented by international in-
vestment law, or by international human rights organizations when they
are perceivedperhaps wronglyas agents of foreign domination. As ex-
emplified by the constitutional provisions quoted above, the limits estab-
lished 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 peoples 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 in-
itiatives, 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 Dec-
ms favorables a los contenidos en la Constitucin, prevalecern sobre cualquier otra
norma jurdica o acto del poder pblico.
106 Constitution of Bolivia, supra note 63, art 13. The relevant text in Spanish reads: Los
derechos y deberes consagrados en esta Constitucin se interpretarn de conformidad
con los Tratados internacionales de derechos humanos ratificados por Bolivia.
107 Constitution of Venezuela, supra note 63. This does not mean, of course, that those laws
can never be repealed through other participatory mechanisms, but that the referen-
dum for the abrogation of laws cannot be used for those purposes. The official text of
the relevant part of Article 74 of the Constitution of Venezuela reads as follows: No po-
drn ser sometidas a referendo abrogatorio las leyes … que protejan, garanticen o de-
sarrollen los derechos humanos y las que aprueben tratados internacionales.
108 Thomas Muhr, Conceptualising the ALBA-TCP: Third Generation Regionalism and
Political Economy (2011) 3:2 International Journal of Cuban Studies 98 at 105. It is
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 155
laration of the Rights of Man and the Citizen because it supported their
demands for freedom, despite knowing that the declaration was not in-
tended to apply to them,109 these countries are willing to engage with in-
ternational 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, constitu-
ent power. It does so, however, by recognizing humanity as the bearer of a
transnational constituent power that serves as the basis for the extrater-
ritorial 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 exer-
cises of constituent power within their constitutional orders. On the con-
trary, 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 demo-
cratic credentials of the exercise of universal jurisdiction in cases of seri-
ous environmental damage. In those cases, the exercise of universal juris-
diction on behalf of humanity can have radical democracy-enhancing ef-
fects.
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 un-
controversial. This is why the President of the International Court of Jus-
tice, Justice Gilbert Guillaume, in a separate opinion in Democratic Re-
public of the Congo v. Belgium, insisted that international law knows on-
ly one true case of universal jurisdiction: piracy.110
worth noting that Article 423 of the Constitution of Ecuador requires the state to pro-
mote the integration of the countries of Latin America and the Caribbean through the
consolidation of supranational organizations and the adoption of international treaties.
109 For a discussion, see Wall, supra note 23 at 17.
110 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Sepa-
rate Opinion of President Guillaume, [2002] ICJ Rep 3 at 42 [Democratic Republic of the
Congo v Belgium]. It has been argued that most judges in this case understated the
prevalence of universal jurisdiction. See Paul R Dubinsky, Human Rights Meets Pri-
vate Law Harmonization: The Coming Conflict (2006) 30 Yale J Int L 211 at 278; Rog-
156 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
It is not my purpose to provide a legal argument for the validity of uni-
versal jurisdiction under international law or to produce anything resem-
bling 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 theo-
ry 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, geno-
cide, 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 rela-
tionship 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 cosmopoli-
tanism, have suggested that the classical notion of state sovereignty should
be abandoned in favour of a conception that puts human rights at its cen-
tre.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 ter-
ritory 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
er OKeefe, Universal Jurisdiction: Clarifying the Basic Concept (2004) 2 Journal of
International Criminal Law 735.
111 There are many academic works discussing this issue. See e.g. Stephen Macedo, ed,
Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under
International Law (Philadelphia: University of Pennsylvania Press, 2006).
112 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, art 2(1).
113 See e.g. Anne Peters, Humanity as the Alpha and Omega of Sovereignty (2009) 20:3
Eur J Int L 51344.
114 Most of this literature deals with developments in Europe. See e.g. Neil MacCormick,
Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Ox-
ford: Oxford University Press, 1999).
115 The term jurisdiction may be used to describe the ability of a state to adopt legislation
applicable to certain events or entities, to conduct legal proceedings, and to use its coer-
cive power to enforce its laws and judicial determinations. Kenneth C Randall, Univer-
sal Jurisdiction under International Law (1988) 66 Tex L Rev 785 at 786.
116 Ian Brownlie, Principles of International Law (Oxford: Oxford University Press, 1990)
at 285. Further, state sovereignty implies that state obligations arising under custom-
ary law and international treaties must be based on consent.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 157
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 ju-
risdiction by a state outside its territory could be allowed by virtue of a
permissive rule derived from international custom or from a conven-
tion.118 In fact, a set of exceptions has developed which justifies the exer-
cise 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 commit-
ted in foreign territory, regardless of the nationality of the suspect, pro-
vided that they adversely affect its interests, security, or the exercise of
the prerogatives of public power.120 Under the passive personality princi-
ple, 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 per-
petrator. In the case of the principle of protection, the acts in question put
the interests of the state at riskfor example, planning a coup dtat from
117 SS Lotus (France v Turkey) (1927), PCIJ (Ser A) No 10 at 18 [Lotus].
118 Ibid at 19. Those statements referred specifically to enforcement jurisdiction. With re-
spect to prescriptive jurisdiction, the court expressed:
Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to per-
sons, property and acts outside their territory, [international law] leaves
them in this respect a wide measure of discretion, which is only limited in
certain cases by prohibitive rules; as regards other cases, every State re-
mains free to adopt the principles which it regards as best and most suitable.
This discretion left to States by international law explains the great variety
of rules which they have been able to adopt without objections or complaints
on the part of other States; it is in order to remedy the difficulties resulting
from such variety that efforts have been made for many years past, both in
Europe and America, to prepare conventions the effect of which would be
precisely to limit the discretion at present left to States in this respect by in-
ternational law, thus making good the existing lacun in respect of jurisdic-
tion or removing the conflicting jurisdictions arising from the diversity of the
principles adopted by the various States. In these circumstances all that can
be required of a State is that it should not overstep the limits which interna-
tional law places upon its jurisdiction; within these limits, its title to exercise
jurisdiction rests in its sovereignty (ibid at 19).
119 Jan-Michael Simon, Jurisdiccin Universal: La Perspectiva del Derecho Internacional
Pblico (2002) 4 Revista Electrnica de Estudios Internacionales at 21.
120 Ibid at 22.
121 Ibid.
158 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 spe-
cial 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 tra-
ditional 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 or-
der 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 particu-
lar characteristics of the crimes subject to it, whose harmfulness
(paradigmatically in the case of genocide) transcends the specific vic-
tims and affects the international community as a whole.124
Put differently, by exercising universal jurisdiction, a state conducts an
actio popularisan action in the name of the peopleagainst an individ-
ual for committing an act (for example, piracy, slavery, war crimes, geno-
cide, and torture) that renders him an hostis humani generisan 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, be-
cause 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 ex-
122 See Principle I Fundamentals of Universal Jurisdiction of The Princeton Principles
on Universal Jurisdiction in Stephen Macedo, ed, Universal Jurisdiction: National
Courts and the Prosecution of Serious Crimes under International Law (Philadelphia:
University of Pennsylvania Press, 2006) 18 at 21.
123 M Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Per-
spectives and Contemporary Practice (2001) 42 Va J Int L 81 at 88.
124 Constitutional Tribunal (Second Chamber), Judgment No 237/2005, 258 BOE 45 at 57
(Spain).
125 Bassiouni, supra note 123 at 88.
126 International law clearly recognizes universal jurisdiction over piracy. See e.g. the Con-
vention on the High Seas, 29 April 1958, 450 UNTS 11, art 19 (entered into force 30
September 1962).
127 Bassiouni, supra note 123 at 88.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 159
ercise it or in cases in which extradition to the state with territorial juris-
diction was not possible.128
The most important developments of the principle of universal juris-
diction, however, took place after the Second World War. These develop-
ments 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 re-
volved 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.
Spains 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 Bel-
128 One example of this is the inclusion in some treaties of dispositions that give effect to
the principle of aut dedere aut judicare (extradite or prosecute). See e.g. the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10
December 1984, 1465 UNTS 85, art 5(2) (entered into force 26 June 1987) [Convention
against Torture]: Each State Party shall likewise take such measures as maybe neces-
sary to establish its jurisdiction over such offences in cases where the alleged offender is
present in any territory under its jurisdiction and it does not extradite him pursuant to
article 8 to any of the States mentioned in paragraph 1 of this article.
129 This consensus is exemplified in The Crime of Genocide, GA Res 96, UNGAOR, 1st
Sess, UN Doc A/RES/1/96 (1946) 187, in which the parties undertook to prevent and
punish those who commit the crime of genocide. See Mitsue Inazumi, Universal Juris-
diction in Modern International Law: Expansion of National Jurisdiction for Prosecut-
ing Serious Crimes under International Law (Antwerp: Intersentia, 2005) at 21.
130 This does not necessarily mean that international law recognizes the existence of (pure)
universal jurisdiction over the crime of genocide. In fact, the Convention on the Preven-
tion and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, 288
ILM 761, art VI (entered into force 21 January 1951) [Convention on Genocide] states:
Persons charged with genocide or any of the other acts enumerated in article III shall
be tried by a competent tribunal of the State in the territory of which the act was com-
mitted, or by such international penal tribunal as may have jurisdiction with respect to
those Contracting Parties which shall have accepted its jurisdiction.
131 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, 37 ILM
999 (entered into force 1 July 2002) [Rome Statute].
132 Inazumi, supra note 129 at 83. In the context of the Pinochet case, Judge Baltasar
Garzns extradition request was based on the principle of universal jurisdiction, but
the decision of the House of Lords revolved mainly around the obligations of the United
Kingdom and Spain under the Convention against Torture (see R v Bow Street Stipen-
diary Magistrate ex parte Pinochet Ugarte (No 3) (1999), [2000] 1 AC 47, [1999] 2 WLR
827).
133 Canada amended its legislation in order to implement the Rome Statute. See Crimes
Against Humanity and War Crimes Act, SC 2000, c 24.
160 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
gium, 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 exer-
cise universal jurisdiction in absentiaeven if the suspect has not, is not,
and will not be present in the states territoryfor 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, Jus-
tice Gilbert Guillaume, noted that with the exception of piracy and subsid-
iary universal jurisdiction as recognized in certain treaties, international
law does not accept universal jurisdiction; still less does it accept univer-
sal jurisdiction in absentia.136 Not all judges agreed with that approach.
Some, for example, argued that there is no rule of customary internation-
al 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 re-
place universal jurisdiction with other forms of extraterritorial jurisdic-
tion, such as extraterritorial jurisdiction based on the passive personality
134 In 1993, Belgium adopted the Act concerning the Punishment of Grave Breaches of the
Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18
June 1977, JO, 5 August 1993, 17751 as part of efforts to implement Protocols I and II
of the Geneva Conventions. This law was amended in 1999 to include genocide and
crimes against humanity in order to incorporate the Convention on Genocide and the
Rome Statute, respectively. In February 2003, the Belgian Supreme Court overturned a
determination by the Court of Appeal which held that universal jurisdiction could be
exercised only in cases where the defendant was present in Belgium Cass 2e ch, 12 Feb-
ruary 2003, [2003] No 98 Pasicrisie Belge 307 at 31718. For further discussion, see
Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-
2008 (2009) 30 Mich J Int L 927 at 934.
135 Roger OKeefe has challenged the idea that universal jurisdiction in absentia is a dis-
tinct type of universal jurisdiction to which certain special considerations apply
(OKeefe, supra note 110 at 750).
136 Democratic Republic of the Congo v Belgium, supra note 110 at 44.
137 Naomi Roht-Arraiza, Universal Jurisdiction: Steps Forward, Steps Back (2004) 17
Leiden J Int L 375 at 387.
principle.138 Spain introduced similar amendments to its national legisla-
tion in 2009.139
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 161
C. Universal Jurisdiction and State Sovereignty
One of the main reasons for international laws resistance to recogniz-
ing 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 Assem-
bly. There, the delegate from Argentina expressed that although univer-
sal jurisdiction is an important element of the international justice sys-
tem, 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 Similar-
ly, 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 re-
spect 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 accuseds right to be present at trial and to defend herself
would be directly infringed.143 It is important to note, however, that leav-
138 Act concerning the Punishment of Grave Breaches of International Humanitarian Law,
JO, 23 March 1999, 9286.
139 See Organic Law 1/2009, 266 BOE 92089 at 92091.
140 UNGAOR, 66th Sess, 12th & 13th Mtgs, UN Doc A/C.6/66SR.12 (2011).
141 In cases in which the suspects are officials of foreign governments, the tension between
universal jurisdiction and state sovereignty is accentuated even more.
142 Hernn Salinas Burgos, El Principio de Jurisdiccin Internacional: Lex Lata o Lex
Desiderata? (2007) 34 Revista Chilena de Derecho 10734.
143 In AG v Yeung Sun-chun, [1987] HKLR 997, for example, Lord Diplock expressed that
the territoriality principle is rooted in jury trials where the accused is tried by his peers,
that is, by the citizens of the locality where the crime occurred. See M Sornarajah, Ex-
162 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ing aside the enforcement of judgmentswhich would not normally occur
without the consent of the state where the relevant persons or things are
locateduniversal jurisdiction does not involve a literal exercise of a
states 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 states territory and in-
volving 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 suspects arrest but some reparative actions on the
part of the defendant, as in the Ecuadorian case mentioned in the Intro-
duction.147 In such situations, one might expect more tolerance from the
traterritorial Criminal Jurisdiction: British, American and Commonwealth Perspec-
tives (1998) 2 Sing JICL 1 at 15.
144 I am referring here to what is sometimes termed adjudicatory universal jurisdiction
(as opposed to enforcement universal jurisdiction). The same argument would apply,
however, to prescriptive jurisdiction (i.e. the adoption of a domestic law that seeks to
regulate activities occurring in foreign territory). For a discussion, see Huang Yao,
Universal Jurisdiction over Piracy and East Asian Practice (2012) 11:4 Chinese Jour-
nal of International Law 623 at 626.
145 Inazumi, supra note 129 at 135. Garca Arn has stated:
[D]eclarations of the extra-territoriality of criminal law made by a State
[from a formal point of view] present an unproblematic interference with the
sovereignty of others. States may not perform acts of sovereignty in the terri-
tory of another, but their sovereignty enables them to declare the ambit of
their own punitive power. The degree of effectiveness of such statements de-
pends, in turn, on the degree of international legitimisation that they receive,
especially if the prosecuted subject is in the territory of another state and ex-
tradition must be requested (Garca Arn & Lpez Garrido, ed, Crimen In-
ternacional y Jurisdiccin Universal: El Caso Pinochet (Valencia: Tirant lo
Blanch, 2000).
146 Lotus, supra note 117 at 18.
147 This does not mean that the exercise of universal civil jurisdiction is not controversial.
In fact, it is much less established than its criminal counterpart. See e.g. Donald Fran-
cis Donovan & Anthea Roberts, The Emerging Recognition of Universal Civil Jurisdic-
tion (2006) 100 American Journal of International Law 142. For a judicial statement in
favour of the existence of universal civil jurisdiction (in cases in which the victim has al-
so been subject to a crime against humanity and she wishes to bring a civil suit), see
Prosecutor v Furundzija, IT-95-17/1-T, Judgment (10 December 1998) (International
Criminal Tribunal for the Former Yugoslavia), 38 ILM 317. The most famous example
of national legislation conferring (civil) universal jurisdiction is the US Alien Tort
Claims Act, 28 USC 1350 (2012). In the famous case of Filartiga v Pena-Irala, 630 F
(2d) 876 (2d Cir 1980), the U.S. Court of Appeals for the Second Circuit stated that:
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 163
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 jurisdic-
tion.
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 execu-
tion 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 extra-
territorial exercise of power within one of the recognized exceptions to the
principle of territorial jurisdictionthat 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 be-
half 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 na-
ture, but also around whether acts which endanger the environment
should be subject to jurisdictional rules similar to those that may apply to
Among the rights universally proclaimed by all nations, as we have noted, is the right
to be free of physical torture. Indeed, for purposes of civil liability, the torturer has be-
come like the pirate and slave trader before him hostis humani generis, an enemy of all
mankind (at XXX). See Ruti Teitel, The Alien Tort and the Global Rule of Law (2005)
57:185 International Social Science Journal 55160.
148 See Daniel Bodansky, Whats So Bad about Unilateral Action to Protect the Environ-
ment? (2000) 11:2 Eur J Int L 339 at 341.
164 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 exer-
cise of universal jurisdiction legal. It is nevertheless necessary to pro-
vide 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 extraterrito-
rial exercise of power. But to the extent that it refers to serious environ-
mental harmsas opposed to, for instance, piracy or genocideit 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 con-
stituent power of the people, this justification does not require us to aban-
don the principle of state sovereignty. On the contrary, it makes it neces-
sary 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 sover-
eignty 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 pil-
lars of international law, and respect for this right indirectly requires re-
spect for the sovereignty of states. In other words, even though interna-
tional law identifies the state as the entity that has sovereignty at an in-
ternational level, it is the fact that states are presumed to have been cre-
ated by self-determining peoples which provides the basis for state sover-
eignty.150 As Jean Cohen has stated, [i]n the aftermath of decolonization,
149 For the development of an international consensus around the protection of the envi-
ronment, see Walter F Baber & Robert V Bartlett, Global Democracy and Sustainable
Jurisprudence: Deliberative Environmental Law (Cambridge, Mass: MIT Press, 2009)
at 4.
150 But see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America), [1986] ICJ Rep 14. This case seems to indicate the opposite,
stating that a fundamental part of the principle of state sovereignty is each states right
to determine freely its political, economic, social, and cultural systems (ibid at 124).
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 165
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 peo-
ples, which empowers them to freely determine their political status, is
nothing more than the external manifestation of popular sovereignty, of
the peoples 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 in-
tegrate into another state,153 it is also engaging in an exercise of constitu-
ent 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 domesti-
cally. Or, put differently, the exercise of the right of external self-
determination has internal implications. Looking at state sovereignty
from this perspectivefrom the perspective of the peoples in which state
sovereignty restsis 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 justifi-
cation for the exercise of universal jurisdiction in cases of serious envi-
ronmental 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,
However, the point is that, from a democratic perspective, it is presumed that at the in-
ternal state level, it is the people or their representatives who make those determina-
tions.
151 Jean Cohen, Sovereign Equality vs. Imperial Right: The Battle over the New World
Order (2006) 13:4 Constellations 485 at 492.
152 Gillian D Triggs, International Law: Contemporary Principles and Practices (Canberra:
Lexis Nexis Butterworths, 2006) at 160.
153 See Principles which should guide Members in determining whether or not an obligation
exists to transmit the information called for under Article 73 e of the Charter, GA Res
1541, UNGAOR, 15th Sess (1960) 29 [Resolution 1541].
154 Serious environmental damage is understood here, as noted earlier, as damage that is
irreversible and that has a potential negative impact in the life and self-governing pow-
ers of human populations, harms which would also amount to grave violations of the
rights of nature in the context of constitutions that recognize them.
166 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 Frdric
Mgret, 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 jurisdic-
tion, an act much more serious than using those goods for the intentional
contamination of the oceans, which has global effects.156 Serious environ-
mental 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, environ-
mental damage at times can result in apparent social and economic bene-
fits.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 environmen-
tal 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
155 Interestingly, some of the crimes that are usually thought to be subject to universal ju-
risdiction, such as genocide, have been associated with violations of the right to (inter-
nal) self-determination, since [t]he goal of such rights violations is always also the po-
litical death of a segment of the political community as well as the redefinition of the
identity of that community through violence (Cohen, supra note 151 at 501).
156 Frdric Mgret, The Problem of an International Criminal Law of the Environment
(2011) 36 Colum J Envtl L 195 at 205206. It should be noted that the Protocol Addi-
tional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, 16
ILM 1391 (entered into force 7 December 1978) provides in Article 35(3) that: It is pro-
hibited to employ methods or means of warfare which are intended, or may be expected,
to cause widespread, long-term and severe damage to the environment.
157 In fact, Ecuador and Bolivia, as well as other Latin American countries with left-
leaning governments, have recently authorized activities (such as mining projects) that,
while contributing to the states ability to advance different social objectives, have im-
portant negative environmental effects. For a discussion, see Eduardo Gudynas, Es-
tado Compensador y Nuevos Extractivismos: Las Ambivalencias del Progresismo Su-
damericano (2012) 237 Nueva Sociedad 128.
158 Mgret, supra note 156 at 228.
159 There are various initiatives directed at the establishment of crimes against future
generations in international law. Such crimes relate to acts or conduct undertaken in
the present which seriously harm the natural environment, human populations, species
or ecosystems in the present and which have consequences for the long-term (World
Future Council, Crimes against Future Generations, online: WFC
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 167
course, important, it is more a question of the political will of the mem-
bers of the international community. Accordingly, I will focus on the sec-
ond and third of these reasons: the extraterritorial aspects and intergen-
erational character of environmental damage. These two features are re-
lated to the fact that the effects of environmental harms can be global.
They can have an impact that goes beyond individuals, states, and partic-
ular 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 surprising-
ly, 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 se-
vere economic and social consequences, the United Nations General As-
sembly 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 de-
pend.162 Similarly, in the case of Hungary v. Slovakia, mentioned above,
the International Court of Justice stated that the protection of the envi-
ronment is important not only for States but also for the whole of man-
kind.163
Because acts that result in serious environmental harms put at risk
the very possibility of human life, the justification for the exercise of uni-
versal jurisdiction in those cases should be based on the idea that jurisdic-
tion is being exercised primarily and principally on behalf of humanity
rather than on behalf of states, on behalf of a particular people, or on be-
half of the international community.164 That is, the focus should not be
on the existence of an international consensus about punishing the perpe-
trators of acts against nature, which is generally the emphasis when uni-
versal jurisdiction is discussed in the context of acts such as genocide or
160 Mgret, supra note 156 at 241, 245.
161 Protection of Global Climate for Present and Future Generations, GA Res 53, UNGAOR,
43rd Sess, UN Doc A/RES/43/53 (6 December 1988).
162 Declaration of the United Nations Conference on the Human Environment, UNCHEOR,
1972, UN Doc A/CONF.48/14, 3 at 3 [Stockholm Declaration].
163 Case concerning the Gabkovo-Nagymaros (Hungary v Slovakia), [1997] ICJ Rep 7 at
38.
164 For a discussion of the concept of humanity in the context of international law, see An-
tnio Augusto Canado Trindade, International Law for Humankind: Towards a New
Jus Gentium (Leiden: Martinus Nijhoff, 2010).
168 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 pre-
serving 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 in-
ternational 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 in-
ternational law, it can arguably be exercised to create a new state by se-
ceding from an already existing one only in cases in which a group is sub-
ject 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 pre-
condition for the exercise of constituent power. Only if those rights are re-
spected, 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
165 Richard B Bilder, The Role of Unilateral State Action in Preventing International En-
vironmental Injury (1981) 14 Vand J Transnatl L 51 at 73. See also, David Takas,
The Public Trust Doctrine, Environmental Human Rights, and the Future of Private
Property (2008) 16 NYU Envtl LJ 711.
166 Ibid.
167 Accordance with International Law of the Unilateral Declaration of Independence in Re-
spect of Kosovo, Advisory Opinion, [2010] ICJ Rep 2010 at 436. See also Reference re Se-
cession of Quebec, [1998] 2 SCR 217, 61 DLR (4th) 385; James Crawford, The Creation
of New States in International Law (Oxford: Oxford University Press, 2006).
168 This idea is reflected in Resolution 1541, supra note 153.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 169
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 Mgret, the effects of environmental harms often
do not respect territorial borders and are increasingly capable of provok-
ing global consequences.170 Second, universal jurisdiction would be exer-
cised not only to prevent acts contrary to the interests of statesthat is,
the interests of the international communitybut 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 ju-
risdiction in the context of environmental damage should not be consid-
ered determinative.171 Third, this concept of universal jurisdiction, by em-
phasizing the rights of all peoples to self-determination, points toward
humanitythat is, toward the set of all peoplesas the place where the
ultimate political authority over our planet rests. In that sense, in exercis-
ing universal jurisdiction over acts that result in serious harms to the en-
vironment, national courts would be acting principally in the name of
169 In this sense, it could be argued that there will always be a nexus between the state
that exercises jurisdiction and the effect of the acts in question. Richard Bilder (writing
in the 1970s) suggested that it is possible that, at some future time, the international
community would recognize a right to self-defence which states could rely upon in cases
where it was necessary to act unilaterally to prevent serious environmental damage,
even if the acts in question occurred in foreign territory or in territory not subject to the
jurisdiction of any state. Moreover, he has argued that the principle of protection (brief-
ly discussed in Part II.A. of this paper) could be expanded in order to include certain
types of threats to the environment (Bilder, supra note 165 at 53). In turn, he noted
that territorial jurisdiction, which it is sometimes argued can be invoked by states in
respect of acts that, despite occurring in foreign territory produce effects in national ter-
ritory, could be used in cases of environmental damage, which often has impacts which
are extraterritorial and of a global scale (ibid at 69, 78). See also Laurence Boisson de
Chazournes, Unilateralism and Environmental Protection: Issues of Perception and
Reality of Issues (2000) 11:2 Eur J Int L 315 at 33334.
170 Mgret, supra note 156 at 196.
171 As noted by Mgret, the effects of serious harms to the environment make the idea of
waiting for the development of an international consensus problematic. Mgret, supra
note 156 at 256. That said, there are a number of international documents that in some
ways point toward an awareness within the international community about the need
for the protection of nature, some of the most famous examples being the Stockholm
Declaration, supra note 162; the Rio Declaration on Environment and Development,
UNCHEOR, 1992, UN Doc A/CONF.151/26; and OAS, General Assembly, Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights, OR OEA/Ser.L.V/II.82/Doc.6, rev.1 (1992).
170 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 Assem-
bly composed of delegates called to represent the worlds peoples rather
than their states,173 and the Council of Social Movements of the ALBA174
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, mul-
tilateral agreements, and the delegation of political power to supranation-
al institutions, it is necessary to speak of the constituent power of human-
ity, of humanity as the bearer of a transnational constituent power. Seri-
ous environmental damage not only threatens the constituent power and
the right to self-determination of particular peoples, but the ultimate sov-
ereignty of humanity as a whole. Simply put, the exercise of universal ju-
risdiction in these cases would be directed at protecting that originary
tendency of all human beings to remain alive, which Dussel has called
172 In the context of the debate on universal (criminal) jurisdiction during the first half of
the twentieth century, Maurice Travers argued that the only mission of the states was
to protect their own interests (e.g. not having a criminal walking free in its territory),
and that in the exercise of state sovereignty, a state could never act on behalf of human-
ity. For a discussion, see Luc Reydams, Universal Jurisdiction: International and Mu-
nicipal Legal Perspectives (Oxford: Oxford University Press, 2003) at 3235.
173 See Daniele Archibugi, The Reform of the UN and Cosmopolitan Democracy: A Critical
Review (1993) 30:3 Journal of Peace Research 301 at 303309.
174 The Social Movements Council (CMS) is officially described as
the principal mechanism that facilitates integration and direct social partici-
pation in the Bolivarian Alliance for the Peoples of Our America / Peoples
Trade Treaty (ALBA-TCP). It is an anti-imperialist space, anti-neoliberal
and committed to working in order to achieve, the greatest extent of social
security and happiness possible, in harmony with nature, social justice and
the real sovereignty of our peoples. Its mission is to articulate the Social
Movements of the member countries of the ALBA-TCP and the non-member
countries, which identify with this effort, and has the responsibility to con-
tribute to the development and extension of the ALBA-TCP process (Bolivar-
ian Alliance for the Peoples of Our AmericaPeoples Trade Treaty, Social
Movements Council of ALBA-TCP, online: ALBA-TCP
175 For a discussion, see Daniele Archibugi, From the United Nations to Cosmopolitan
Democracy in Daniele Archibugi & David Held, eds, Cosmopolitan Democracy: An
Agenda for a New World Order (New York: Polity Press, 1995) 121 at 13738. See also
Muhr, supra note 108 at 109.
CONSTITUENT POWER AND UNIVERSAL JURISDICTION 171
the will-to-live and that forms the very basis of collective political ac-
tion.176 Under this approach, the exercise of universal jurisdiction would
be justified in cases that threaten the ability of present and future gener-
ations 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.
Conclusion
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 ap-
proach, reflected in the new constitutions of some Latin American coun-
tries, stresses constituent powers intergenerational component. By doing
so, it agrees with Jeffersons 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 na-
ture.
The second objective of this article was to provide a justification for
the exercise of universal jurisdiction in cases of serious harms to the envi-
ronment. I argued that while universal jurisdiction is normally seen as
posing a direct threat to state sovereignty, when state sovereignty is un-
derstood in light of its relationship with the right to self-determination,
those threats become less pressing, at least in the context of universal ju-
risdiction in cases of serious environmental harms. When exercising uni-
versal 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 claim-
ants 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 adapt-
176 Dussel, supra note 34 at 13.
172 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ing the principle of universal [jurisdiction], to address such crimes against
nature.177
177 Esperanza Martnez, Prlogo in Alberto Acosta & Esperanza Martnez, eds, La Natu-
raleza con Derechos: De la Filosofa a la Poltica (Quito: Abya-Yala, 2011) 7 at 19 [trans-
lated by author].
