Mayra Angélica Rodríguez Avalos[1]
The dynamics of production in modernity established rules for the utilization of products and the value of Nature's elements through their market value based on purchasing power. Thus, products increase their value when they have characteristics that make them unique or accessible to few people. However, commoditization itself means that more and more products are produced because of the added value linked to social stratification, which makes it possible to move up the scale by obtaining them, which implies producing another series of products that are again acquired by a reduced group; thus, the cycle of consumerism is maintained. This has a direct impact on the integrity of Nature, because its cycles of reproduction and regeneration are affected, since before the cycle is completed, elements are taken from it to produce these products, and this is done on a larger and larger scale, creating an alteration or even a change in the natural life cycle itself.
If we take into consideration that the social transcends the political, and society sees in Nature resources that should be exploited for human benefit, this is transferred to the political agreement. Hence, the Constitutions repeatedly contain the term natural resources from an economic viewpoint, i.e. of commercial value[2]. However, the political transcends the legal, so that the sub-constitutional norms reflect this constitutional political agreement and the regulations only focus on Nature as a value for use and consumption. That is to say, it does not take into consideration a harmonic growth with its life cycles that explains its exploitation, besides not taking into consideration the suffering of other forms of life, when this is produced for human satisfaction, as an example the consumption of meat. By this I do not mean that it is not possible to generate a dynamic in which humanity can conform its food base with the consumption of meat, but that this is carried out taking into consideration the above mentioned.
The failure of the so-called modernity implied the need to address from other approaches the issues of human transcendence, among them the environmental issue, which precisely in the 70's - a period that according to sociology and anthropology marks the beginning of this social era - started the green era or constitutional greening. International political agreements began to focus directly on environmental issues and the word sustainable development appeared on the scene, setting the pace of economic agendas from the supranational level to the domestic level.
What is sustainability and sustainability?
Even when the term is used interchangeably as if they were synonyms; there is a difference that precisely has to do with the position adopted by the State in the design of public policy on the matter. Thus, when we speak of 'sustainable' we are referring to processes whose objective is to achieve a profound change that is not only focused on the environmental issue, but also on the change that must take place in the social, economic, political and cultural structures. On the other hand, sustainability is oriented to the defense and rational use of natural elements from a property perspective, as resources and sources of wealth, that is to say, natural elements are given a value for their benefit and human use.
Precisely, when we speak of sustainable, we refer to three actions that must be carried out to guarantee the integrity of the environment, that is:
- The rational use of resources, taking as a basis the processes of their generation.
- The polluting anthropic actions must be adjusted to the rate of recycling, neutralization or absorption of the environment. This would lead us to think that they can be contaminated, but not on a scale greater than the level at which they can be deactivated by human action itself, such as recycling, or when nature neutralizes or absorbs them through its own processes. It is as if we had permission to pollute, but only with a limit when what should be sought is the least possible impact.
- Similarly, it establishes that non-renewable resources should be used at a faster rate than necessary to replace it with a renewable resource used in a sustainable manner[3] .
Now, when we talk about sustainability, as I indicated previously, we are heading towards a vision based on social and economic progress, which allows intergenerational welfare, ensuring a healthy and productive quality of life for present generations, but also guaranteeing it for future generations, i.e. that the ability to meet the needs of the latter is not compromised. Thus, embracing the concept of sustainability implies a growth from a social point of view, to guarantee the quality of life, health, education and culture of all people, interrelated with economic, political and legal structures, but also guaranteeing protection for all forms of life.
The concept of sustainable development[4], first used in 1987 by the Norwegian minister Gro Harlem Brundtland in the Report on our Common Future, underlines the importance of sustainability as a tool for the design of public policy by the State, aimed at guaranteeing and preserving a healthy environment for future generations. However, since this is a report issued in 1987, it makes us wonder which generation? By virtue of the fact that, at that time, many of us represented childhood, and in which others of those who are present in this world today, who at that time were not even born, constituted that future generation. The above seems more like a discourse that is used to continue justifying that we have to do something, but without achieving a real obligation that goes beyond commitments, because the latter remain more in good intentions than the establishment of clear objectives. We could say that this obligation will have greater clarity with the goals established in the 2030 Agenda and the Paris Agreement, so we should already be seeing results from the extension of these agreements.
So, what is the correct term and what are the legal implications of the use of this concept? Let's see, if sustainable refers to that which is sustained, this means that it is maintained by itself, it is equivalent to establish that natural resources must be treated properly, i.e. rationally, what I argued in my doctoral thesis translates into an anthropocentric paradigm of environmental rationality, i.e. limiting human action in the use of resources, for the benefit that its use produces for the welfare of people. Therefore, when we speak of sustainable, then we refer to the changes that must be made jointly in human structures, i.e. social, political and legal, to establish not a development, but a growth[5] harmonious with Nature, which involves creating a human progress from its structures, but in a respectful way among humanity itself, to ensure that healthy life is justifiable for all people, but at the same time respectful of all forms of present and future life and natural spaces.
Regarding the second question, I take my position on the Mexican experience. Thus, if we argue that society is recognized by its cultural productions, and language is a human product, it must include words that give meaning to the concepts that affect human thought itself, and these may be from a holistic form when we speak of Nature and humanity, that is, naming them appropriately in all their diversity, allows us to understand what actions we must take to ensure the justiciability of dignified life for all forms of life. Hence, the denomination that we legally have of sustainability or sustainability becomes relevant, from my particular point of view.
In Mexico, as it has happened in other domestic jurisdictions, environmental concern became a relevant issue as from the political agreements of the 70's and 80's, which motivated the modification of the juridical structure through the first green reforms to the national Constitution. The environmental issue is incorporated for the first time as a thematic axis for the steering role of the State with the reform to art. 25 of the national Constitution in 1983, with an economic basis, by virtue of the programmatic activity for the production of wealth taking into account the conservation of the environment. In 2013, it is established that sustainability as a criterion for productive resources that promote environmental conservation, especially because in 1999, the human right to the environment[6] is recognized and it is established that national development must guarantee that it is sustainable.
Taking into consideration the national historical context, since 1857 there has been a marked emphasis on the issue of national sovereignty over the territory, which is recognized in that Constitution and the current one since 1917 in art. 27 with the express declaration of the nation's ownership over the territory, from a perspective of dominion over the natural land and marine spaces, that is to say, it reifies Nature as a source of economic wealth for national development, which gives rise to the exploitation of its elements. The term natural resources was incorporated in 1960, under the slogan "the nation has direct dominion over all natural resources, always underlining the ownership of waters and lands within the national territory"[7]. In 2013, the term natural resources was changed to natural elements, but maintaining the scheme of benefit and exploitation of these for humanity[8]. There is no holistic vision of growth with all forms of life. Currently, it is established that the domain continues to belong to the Nation and as the governing body of public policy, it has the right to impose on private property, which also occurs for the spaces of public operation of the State, that the necessary actions are carried out to guarantee its function based on preserving and restoring the ecological balance[9].
But one of the most important issues for environmental protection is the constitutional reform in 1987, to art. 73, to incorporate the concurrent power with the inclusion of section XXIX-G, so that the Congress of the Union may legislate concurrently with the local entities in matters of environmental protection and preservation and restoration of the ecological balance. In this scenario, the General Law of Ecological Balance and Environmental Protection (hereinafter LGEEPA) was issued in 1988 by the Congress of the Union. With this law, the State's obligation to regulate actions that had a direct impact on the environment was decreed. It included the vision of harmonious development with the environment through the rational use of natural elements, the preservation, restoration and improvement of the environment, the protection of natural areas, wild and aquatic flora and fauna, for which coordinated public policies would have to be designed at the federal, state and municipal levels of government, in order to carry out concurrent work on the matter and actions in accordance with their respective competencies, establishing the co-responsible participation of society and with the coordinated work between the different agencies and entities of the federal public administration.
This law proposed the establishment of Natural Protected Areas, recognizing the importance of the preservation, conservation and maintenance of natural spaces that are directly related to environmental stability, and which constitute the precedent for the emergence of the Natural Protected Areas System, which is made up of different categories that operate under the principle of in situ conservation, in addition to determining that the federation has the power to create mechanisms for their protection. With these first reforms, programmatic aspects of the State are addressed, whose purpose is to preserve the environment for human purposes.
It is important to point out that these regulatory changes at the constitutional and sub-constitutional levels, gave the guideline for the implementation of an alternative to the indiscriminate use of natural elements, seeking to prevent the production of goods from being carried out at any cost, compromising air quality and damaging ecosystems, but, even though it maintains an advance, the programmatic action of the State in the steering role of integral national development, is oriented towards sustainability from an anthropocentric perspective.
Therefore, it highlights the importance of the relationship between humanity and Nature, based on their understanding and self-perception of themselves with respect to it, which leads human activity based on the natural and ecological environment, therefore, their culture grows in harmony with Nature, taking into account the impact it causes in these environments in various ways, e.g., the construction of their cities, generating their own cities, generating the impact on the environment. Hence the importance of considering that sustainability is embraced from a holistic perspective, so that all forms of life are guaranteed their right to exist in healthy spaces, respecting the cycles of regeneration of Nature.
[1] Doctora en Investigación en Derecho Comparado y Procesos de Integración, por la Universidad de la Campania Luigi Vanvitelli, en Caserta, Italia.
[2] La Constitución de Ecuador, aun cuando reconoce en el art. 71 los derechos de la Naturaleza, utiliza el término recursos naturales. Ver arts. 1, párrafo tercero; 3, punto 5; 57 punto 6; 83 punto 3. De igual forma, aun cuando en Bolivia, se reconoce a través de la Ley número 71 los derechos de la Madre Tierra, en el art. 348 de su constitución se usa la expresión recursos naturales y en el art. 349 se precisa el carácter de dominio del pueblo boliviano sobre ellos; para profundizar ver arts. 9, punto 6; 108 punto 15, 342, 346, 351, 352, 353, 354, 355 fracciones I y II, 356, 357, 358 y 369 fracción II.
[3] Cfr. en general en Herman E. DALY, Criterios operativos para el desarrollo sostenible, revista Debats 35-36, 1991.
[4] Sobre el particular en Carlos David LÓPEZ RICALDE, Eduardo Salvador LÓPEZ-HERNÁNDEZ, Ignacio ANCONA PENICHE, Desarrollo sustentable o sostenible: una definición conceptual, en Horizonte Sanitario, volumen 4, número 2, Universidad Juárez Autónoma de Tabasco, Villermosa, 2005.
[5] Sobre el tema, existe una discusión sobre cuál termino resulta más adecuado, al respecto Daly señala que: “En una palabra, el crecimiento es incremento cuantitativo de la escala física; desarrollo, la mejora cualitativa o el despliegue de potencialidades. Una economía puede crecer sin desarrollarse, o desarrollarse sin crecer, o hacer ambas cosas, o ninguna. Puesto que la economía humana es un subsistema de un ecosistema global finito que no crece, aunque se desarrolle, está claro que el crecimiento de la economía no puede ser sostenible en un período largo de tiempo. El término crecimiento sostenible debe rechazarse como un mal apaño. El término desarrollo sostenible es mucho más adecuado. El desarrollo cualitativo de sistemas que no crecen ha sido observado durante largos períodos de tiempo”. (op. cit. 35). No se comparte esta afirmación, ya que el autor en cuanto economista lo ve desde este punto, pero si analizamos el concepto desde una perspectiva holística, el termino crecimiento, resulta más adecuado para referirse a todas las formas de vida y no solo la humana.
[6] Constitución Política de los Estados Unidos Mexicanos, art. 4, párrafo quinto.
[7] Constitución Política de los Estados Unidos Mexicanos, art. 27, reforma de 1960.
[8] Cfr. Constitución Política de los Estados Unidos Mexicanos, art. 27, reforma de 2013.
[9] Cfr. Constitución Política de los Estados Unidos Mexicanos, art. 27, párrafo primero.