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ABSTRACT
The states of the Andean Community of Nations (ACN) have made collective commitments to reform their institutional and regulatory systems for risk and disaster management, from the perspective of processes and the ‘risk continuum’, is proposed by experts as a more convenient alternative to mainstreaming. This vision is consistent with IOM’s recent approach to forced migration as a result of climate ‘processes’. However, ACN is not a homogeneous regional bloc and the national constitutions of the countries that compose it, some of them completely renewed a few years ago, can become so descriptive that they inhibit the structuring of a formulation with such characteristics. This article presents an analytical-descriptive exploration of the capacity of the national constitutions of the four ACN countries to host a disaster risk management model that embraces climate migration in terms of processes.The methodological-legal approach is exploratory-descriptive, using the deductive, systemic and exegetical method, to offer an empirical-normative approach.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. Gargarella, regarding the constitutional tradition in Latin America, refers to the existence of at least three different constitutional projects: ‘–uno conservador (políticamente elitista y moralmente perfeccionista), otro liberal (antiestatista, defensor de los “frenos y contrapesos” y la neutralidad moral) y otro radical (mayoritarista en política, populista en términos de moralidad)’. [one conservative (politically elitist and morally perfectionist), another liberal (anti-statist, defender of ‘checks and balances’ and neutrality moral) and another radical (majority in politics, populist in terms of morality)] (Gargarella & Courtis, Citation2009, p. 24).
2. Felipe & Iglesias (September 25th, 2019). Migraciones climáticas: visibilizando las causas subyacentes ysus múltiples realidades. Pueblos Revista de Información y Debate. http://www.revistapueblos.org/blog/2018/09/25/migraciones-climaticas-visibilizando-las-causas-subyacentes-y-sus-multiples-realidades/
3. Recently, the topic of ‘mainstreaming’ has been heavily emphasized, especially in the environmental and risk management area. The Constitution of Ecuador is a clear example of this because it introduces mainstreaming in environmental matters (environmental policies: Art. 395, 2); risk management (Art. 389, No. 3) and also in climate change, although only with respect to ‘mitigation’ (Art. 414). Mainstreaming in environmental matters is understood as ‘the informed inclusion of relevant environmental concerns into the decisions of institutions that drive national, local and sectoral development policy, rules, plans, investment and action’ (Dalal & Bass, Citation2009, p. 19).
4. The study was also presented byArmendáriz&Contreras, at the 6th Seminar of the ‘Network of National Systems of Public Investment in Latin America and the Caribbean’; retrieved on2 March 2019, fromhttps://www.cepal.org/ilpes/noticias/paginas/1/55281/BID_Edna_Armendariz.pdf
5. The Study was based on a refinement of the methodology used by Dabla-Norris based on a survey directed at managers of the national public investment systems of each country. This information was contrasted with case studies, to ensure its objectivity.
6. First published in Volume 162 of the journal ‘Science’, 13 December 1968; retrieved on16 February 2020, fromhttp://science.sciencemag.org/content/162/3859/1243
7. The first major climate treaty is the ‘United Nations Framework Convention on Climate Change’, which dates back to 1992 and was effective in 1994. It currently has 197 member states (http://www.un.org/es/).
8. The ‘Paris Agreement’ has established the decision to mobilize a $ 100 billion fund (Item 114) starting in 2020, with adjustable commitments every 5 years.
9. This article determines the main purpose of the Agreement, as ‘strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty’ and defines as implicit elements, promoting ‘climate resilience’.
10. In some of the Spanish versions of the document it’s listed as Decision 50, but the document downloaded from the official website of the UNFCCC lists it with number 49.
11. ‘Task force on displacement’: https://unfccc.int/wim-excom/sub-groups/TFD.
12. Summary of decisions of Excom 5: 21–24 March 2017, retrieved on 1 January 2020, from: https://unfccc.int/sites/default/files/excom_5_summary_decisions_24_mar.pdf
13. A general thematic search on the UNFCC website indexes a total of 72 decisions regarding climate change, from 21 conferences, only until COP 23, in 2017, held in Bonn-Germany. Retrieved on 16 February 2020, from https://unfccc.int/decisions
14. The ‘Hyogo Declaration’ was approved at the World Conference on Disaster Reduction (A/CONF.206/6) of March 16, (Citation2005).
15. It was adopted by Decision 2/CP.19 of the Conference of the Parties, UNFCCC.
16. The Project ‘Support for Disaster Prevention in the Andean Community’ (PREDECAN) emerged as an initiative of the member states of the ACN, with the purpose of ‘ … mejorar los servicios en el área de gestión del riesgo en la subregión andina, a través del fortalecimiento de políticas nacionales, de instituciones y de la coordinación de actividades en estas áreas’ [… improving services in the area of risk management in the Andean subregion, through strengthening national policies, institutions and coordination of activities in these areas] (retrieved on 6 January 2020, fromhttp://www.comunidadandina.org/predecan/predecan.html). Between 2005–2009 this project provided technical support to CAPRADE (Andean Committee for Prevention and Attention to Disasters CAPRADE) for the implementation of the Andean Strategy for Disaster Prevention and Attention (EAPAD). However, PREDECAN’s relationships, according to information on its website, go back a decade; with other initiatives such as: Desinventar, La Red, Corporación OSSO and UNISDR.
17. The current Bolivian Constitution was promulgated in 2009 and, due to its contents, it’s categorized as part of the so-called ‘New Latin American Constitutionalism’.
18. Art. 108.11 of the Political Constitution of the Plurinational State of Bolivia, see also arts. 137 and 407.4.
19. Note the adjectives of ‘natural’ attributed to disasters, oblivious to his most recent understanding of them as part of social phenomena.
20. Concerning this novel regime, it has been developed from the laws: 071, on the Rights of Mother Earth and 300, ‘Mother Earth Framework Law and Integral Development to Live Well’.
21. The ‘residual’ powers are based on the provision of Article 297, II of the Bolivian Constitution, which leaves open the possibility of attributing to the central level of the State, as new powers, all those that have not been distributed or established by the Constitution.
22. In conjunction with SISRADE. See also Art 101 hereinafter, Law No. 705.
23. The municipalities are responsible for developing their regulatory and institutional frameworks related to RM and climate change. See also the National Risk Management Program.
24. It’s necessary to mention, but there’s a fundamental divergence in terms of risk management, because the Constitution recognizes as a duty of the State, first of all, to protect people, communities and nature, against ‘natural’ and ‘anthropic’ disasters (Art. 389). However, the competence granted by Art. 261.8, as well as by Art. 164, is limited only to ‘natural disasters’, ignoring those of ‘anthropic character’. It’s clear that the characterization of disasters is indeed about the factor that motivates them – human or not -; but when it’s referred to ‘anthropic’ disasters this doesn’t mean a conceptual openness to their social nature.
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Notes on contributors
Walter Benjamín Rivera Coria
Walter Benjamín Rivera Coria is a Lawyer, MBA in Socio-Environmental Studies (FLACSO Ecuador) and Biodiversity Management (CEU S.P., Spain). PhD candidate of the “Society, Politics and Culture” program (UPV / EHU, Spain). Fifteen years as a consultant in Bolivia and Ecuador. Dedicated to university teaching, since 2015; He is currently a professor of Environmental Law at ULEAM, Ecuador.