Regime constitucional da biodiversidade.: Patrimônio natural, ecossistemas frágeis e recursos naturais.
Sovereignty in the Ecuadorian Constitution is formulated in relative terms. This means that the power of the state is externally limited by international law, internally limited by the Constitution, and particularly by the rights it establishes. Additionally, it should be noted that the holder of so...
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Format: | Article |
Language: | Portuguese |
Published: |
Universidade FUMEC, Faculdade de Ciências Humanas, Sociais e da Saúde
2011
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Online Access: | http://dialnet.unirioja.es/servlet/oaiart?codigo=4057558 |
Source: | Meritum, ISSN 2238-6939, Vol. 6, Nº. 2, 2011, pags. 277-309 |
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Summary: |
Sovereignty in the Ecuadorian Constitution is
formulated in relative terms. This means that the power of
the state is externally limited by international law, internally
limited by the Constitution, and particularly by the rights it
establishes. Additionally, it should be noted that the holder of
sovereignty is not the government but rather the people, who
exercise sovereignty through a complex of public bodies with
specific constitutional powers and by means of direct citizen
participation. These assumptions have important consequences
on the environment since it implies that no government may
violate environmental constitutional and international rights
on the grounds that it is exercising sovereignty over natural
resources. The constitutional limitations on sovereignty are
exemplified clearly in the case of the ban on exploitation of
nonrenewable natural resources in protected and intangible areas.
Although the Constitution allows for exceptional development of
mining activities in these areas, it establishes rigorous standards
and procedures to ensure formal and material constitutional
validity of a decision by public authorities in this regard. In any
case, these acts of public authorities, like all regulations, are
subject to constitutional control before and after their adoption.
In the case of intangible areas where people live in voluntary
isolation, the Constitution directly weighs rights and outlaws any
economic activity in the area, further establishing the priority of
the physical and cultural survival of indigenous peoples. Another
consideration of rights directly made by the Constitution
is related to the right to water, while explicitly prioritizing
sustainability of ecosystems and human consumption. Also in
the case of private property and community biodiverse areas,
the Constitution imposes an environmental function on the
property, and in that regard, subject to an institutional system
under its stewardship. In other situations where environmental
constitutional rights may conflict with other constitutional rights,
it is necessary to analyze the matter through a careful process
whether based on law or constitutional jurisprudence. To this
end, one has to bear in mind that the Ecuadorian constitution
gives equal status to these rights and considers them as mutually
complementary, and thus any regulation to a right must be made
on the basis of the proper exercise of another right, and the
largest possible exercise of all rights. In any case, any limitation
must be reasonable, proportionate and necessary. In general, the
principle of constitutional rights effectiveness determines that
the institutional structure and the procedures established under
the Constitution in fact constitute the means of exercising rights
rather then mechanisms to justify their violation. The application
of this criterion on environmental matters is essential for the
consolidation of truly functional institutions with respect to
environmental protection. Development is certainly a goal that
the Constitution recognizes and encourages, but conceptualized
not only as economic growth but as a comprehensive and
sustainable economic activity, which requires either a means
of exercise of rights, which not only ensure the availability
of natural resources for future generations, but also the
preservation, reproduction and development of nature as being
valuable in itself, beyond the immediate and direct effects of
environmental damage on human beings. |
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