Biemann / Tavares Forest Law - Foresta giuridica

1. Auflage 2020
ISBN: 978-88-7452-812-7
Verlag: Nottetempo
Format: EPUB
Kopierschutz: 6 - ePub Watermark

E-Book, Italienisch, 144 Seiten

Reihe: saggi | terra

Foresta giuridica è un progetto di Ursula Biemann e Paulo Tavares sulla cosmopolitica dell'Amazzonia. Forest Law is a project by Ursula Biemann and Paulo Tavares on the cosmopolitics of Amazonia.

Autoren/Hrsg.

Biemann, Ursula

Tavares, Paulo

Leseproben

THE FOREST IN COURT

Llaktas — In his testimony before the Inter-American Court of Human Rights, Don Sabino Gualinga, political leader and spiritual guide of the Original Kichwa People of Sarayaku, tries to convey to the judges what his people call kawsak sacha, “the living forest.” At the western edges of Amazonia, in the Bobonaza River Basin, where the ancestors of the Sarayaku Kichwa made their home, forests are not what they usually appear to us: empty natural environments, whether in the form of biological reserves or pools of raw materials to be commoditized. Mountains, trees, marshes, and rivers, Don Sabino explains, are llaktas, “villages” or “towns,” forming a complex cosmological architecture that houses all sorts of beings, both human and nonhuman, who are deeply entangled, mutually constitutive, and interdependent. Kawsak sacha is the territory of the Amasanga and the Sacharuna, the refuge of jaguars, pumas, and wild boars, and also the source of water, food, and medicine for local communities—the very material substratum from which the Sarayaku people forge their daily lives, culture, and history.

Legal Animism — That forests, seas, rivers, jaguars, and other nonanthropogenic forms of life should have standing in court and be subjects of their own rights, on behalf of which one may speak and fight, is a philosophical debate that has a long genealogy in the history of law and ethics. Under the force of modern constitutionalism, which enclosed nature within the category of object/property, this jurisprudence was in large part relegated to the cabinet of historical curiosities, neglected because of its supposed belonging to a form of “primitive” social contract in which things were endowed with animistic, fetishist energy, at a past moment in the evolution of human reason when the ontological distinction between animals and persons, objects and subjects, nature and culture, was not yet clearly demarcated.

But as the ecological devastation unleashed by our modern industrial-military arsenals loomed and we gradually realized that the most fundamental human rights are bounded with the environs we inhabit and the life of other species with which we coexist, advocacy for the rights of ecosystems became less a relic of “archaic cultures” than a project inserted into the future, emerging from and conceived for a geopolitical/geophysical terrain slipping into a process of radical transitions.

The landmark manifesto in that trajectory was Christopher Stone’s Should Trees Have Standing? Toward Legal Rights for Natural Objects, published in late 1971 in the context of the legal case Sierra Club v. Morton. The Sierra Club, an environmental advocacy nongovernmental organization, filed a lawsuit against Walt Disney Enterprises to try to block a development project in the Mineral King Valley, an important wilderness area in the Sierra Nevada Mountains of California. The U.S. Supreme Court rejected the case based on the principle that, insofar as Sierra Club held no properties in the Mineral King Valley, the organization would not suffer direct injury by the project and, therefore, had no standing to bring the lawsuit to the court.

Although the Sierra Club lost, the case became paradigmatic due to the dissenting opinion of one of the judges. Drawing on Stone’s Should Trees Have Standing?, Justice William Douglas argued that the lawsuit would be more properly named Mineral King v. Morton, with the valley assuming a degree of personhood and asserting its own rights of standing before the court:

“Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. […] The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects [to] valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”

Modern law, Justice Douglas’s argument implies, is fundamentally “animist,” populated by rights-holding entities whose personhood is a product of legal fiction. In other words, there is nothing natural about law, but there is certainly something intrinsically legal in the way we organize the relations between society and nature. Throughout history, the power of the law in creating artificial boundaries between rights-holders and rights-less entities—that is, of delineating the divisions between those who do and those who do not count as subjects—has been used to enforce domination and control over people and land. Modernity/colonialism was built upon—and legitimized by—the juridical separation between human-as-subject/master and human-as-property/slave. Under this perspective, the act of attributing rights to “natural objects,” rather than being a regressive measure, appears as a step forward in a long, historical march toward universalism.

Kichwa Indigenous People of Sarayaku v. Ecuador became a landmark case within this trajectory of nonhuman-rights jurisprudence. Facing another violent wave of colonization, the kawsak sacha and the Sarayaku people, who nurtured a long history of political struggles, responded with a peaceful strategy of resistance, combining actions both within the forest, though the mobilization of several encampments to protect the entrance of their territory, and in the city, through the courts of law.

José Gualinga: Sarayaku has always defended its territory, its environment, and its life. There is much interest in exploiting its resources—timber, minerals, and oil. So we have decided to say, “No!” to all extraction projects in Sarayaku. We want to remain free, we want to stay clear of contamination. These are protected territories because they sustain us.

In 1996, without consulting the people of Sarayaku, CGC, an Argentinian oil and gas company, obtained a license to drill in the territory. In 2002 CGC intruded unauthorized, violating all decisions issued by Texalupan authorities, the council of the elders and the assembly. This spawned resistance, and Sarayaku declared a state of emergency. We mobilized. Sarayaku established the peace-and-life camps along its boundaries and protected the boundaries, mobilizing the people within the forest.

Nevertheless, the company announced publicly that it would respect only two kilometers of Sarayaku’s territory—i.e., the central part only, nothing more—not understanding that Sarayaku has 140,000 hectares and constitutes property collectively owned by the Sarayaku people. The company advanced with its workers and militarized the mountains and the river with private security, the police, and armed forces in order to hinder the people of Sarayaku from mobilizing themselves.

In 2003 we managed to expel the oil company. But the Ecuadorian judiciary continued to threaten, defame, and persecute our leaders and people to the point that leaders received death threats. That’s why we appealed to the Inter-American Commission of Human Rights.

José Gualinga, leader of the Kichwa people of Sarayaku.

The Bobonaza river flowing through Sarayaku.

Sarayaku Center with airstrip.

Sovereign Natures — The territory of the Kichwa people of Sarayaku is situated in the central Ecuadorian Amazon province of Pastaza, at the margins of the Bobonaza River. It covers an area of 140,000 hectares and houses approximately 1,500 inhabitants, organized in five large communities: Sarayaku Center, the “capital city,” where most of the administrative institutions and communal facilities are located; and Kalikali, Sarayakillu, Shiwakucha, and Chontayaku, smaller villages distributed around this central nucleus.

Before European colonization, the organization of the Sarayaku territory was not defined according to this concentric arrangement, but was formed of various, constantly mobile communities dispersed over a much larger area. Consecutive incursions by explorers, exploiters, and evangelizers radically changed this spatial pattern, leading to a more fixed territoriality.

The center of Sarayaku was founded about two hundred years ago, and the state legally recognized the actual boundaries of the Sarayaku territory in 1992, following a landmark uprising organized by the Organization of the Indigenous Peoples of Pastaza (OPIP), an association formed by the Kichwa, Achuar, Shuar, and Zapara nationalities of the Ecuadorian Amazon in 1978.

There are no roads to access Sarayaku. The nearest town is Canelos, located thirty-five kilometers upstream on the Bobonaza. This apparent spatial isolation, rather than manifesting the lack of government investment or development, is in fact a deliberate, historically constructed strategy for mediated contact, territorial defence, and collective self-determination. “It is in our favour that there are no roads,” says Franco Viteri, one of the main activists from Sarayaku, “because if there were roads, we could not have resisted. The army would have sent all its military convoy. Nature was a defence to us, and defended itself.”

Oil Frontiers — There are regular flights to Sarayaku that depart from a military-controlled airbase located in Shell, an old frontier town situated at the intersection between the Andes Mountains and the Amazon Basin, a few kilometers west of the regional capital Puyo. Similar to many other frontier towns spread throughout Amazonia, Shell bears the name of its...