DEMOCRATIC CONSTITUTIONALISM AND HUMAN RIGHTS GREENING : CHALLENGES AND COMMON CONSTRUCTIONS

This article aims at analyzing the phenomenon of democratic constitutionalism and human rights greening, listing some of their common challenges and, especially, the possibilities and urgencies of a more integrated performance among them so as to favor full participation and citizenship, and, as a consequence, to strengthen one another. The contradictions of neoliberal globalization are the starting point for the assessment of the position of the constitutional theory from the perspective of democratic constitutionalism and of the field of human rights including the analysis of the different understandings surrounding this concept -, as well as the impacts of its progressive greening. The ambiguities of the international protection of human rights as an indivisible system, characterized by the deficits of effectiveness regarding economic, social and cultural rights, and enlarged by the inclusion of the environmental speech, can only be overcome by their links with the ideas and instruments of the democratic constitutionalism and, especially, through the mobilization of the claiming and fighting energies of the society.


INTRODUCTION
The correlation between democratic constitutionalism, environmental protection and human rights is made more and more often among political and constitutional theoreticians.The problem to be worked out in this text is that it seems possible to think of those three realities from different fields in the society: the legal, the social and the political ones.Although the construction bases for those social fields are distinct, they have common challenges in the context of the neoliberal globalization and they also have complementary points.Those often unexplored articulation points are going to be clarified from the analysis of the strategic aspect of the ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and the incorporation of the environmental speech at an international level.
The objective is to analyze the democratic constitutionalism, the human rights and environmentalism as different, although complementary, social fields, highlighting some of their common challenges, but, above all, the possibilities and urgencies of more integrated actions between them to favor full participation and citizenship and, consequently, to strengthen democracy, environmental protection and the democratic rule of law.
Globalization mobilizes the constitutional theory in the problematic construction of the democratic constitutionalism and in the field of human rights, understood from a broader perspective, which includes the legal dimension of human rights, although not limited to it, once it also involves the social-historical performance of social and political actors around that reality.Environmentalism projects itself on both domains as an updated and complementary vector.
An elementary point that links the three domains can be represented by the challenge to enable and implement human rights, rights, including the «green» ones, from all to all.That means to overcome or face the historical division that separates civil and political rights, on one side, from economic, social and cultural rights, on the other, connecting them to the ecologic wave that reinforces the formal, material and teleological unity of the fundamental rights system as the intergenerational ideas embedded into the idea of constitution itself and also the emancipatory project of human rights.
The defense of the need to view the human rights as indivisible, interdependent and interrelated takes place both in the constitutional field and internationally, even if the obstacles confronted themselves in each one of those spheres.The assessment of common points around certain challenges may enable awareness of the possibility or the need for more integrated actions between the legal, economic and social-political fields, which implies epistemological, cultural, economic, social and political openings.
The logical structure of the text is organized into four moments: the first one, in which the challenges around the contradictions of neoliberalism are pointed out; the second one that addresses the constitutional perspective from the standpoint of democratic constitutionalism, its challenges and its fundamental positions in face of democracy and its driving elements, that is, participation and citizenship; the third moment is a rescue of the perspective of human rights as a specific field, in its integration with democratic constitutionalism, from three references: the International Bill of Human Rights, the Vienna Declaration and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; and finally, in the final considerations, the proximities, the integrations and the possibilities between the democratic constitutionalism and the social and political field of human rights are going to be highlighted.

CHALLENGES IMPOSED BY THE NEOLIBERAL GLOBALIZATION
The Washington Consensus, at the end of the 80's, set forth a series of procedures and recommendations with a liberalizing mark, such as recipes for social and economic progress that became requirements for getting loans from the IMF (WILLIAMSON, 1990;GORE, 2000;ARESTIS, 2004).Those requirements changed into a kind of economic matrix for neoliberal reforms imposed especially to poor and indebted countries.Basically, the Consensus, within the line of neoliberalism opened since the rise of Thatcher and Reagan to the power of their respective countries, aimed at decreasing government "expenditure" by means of a strict fiscal control program that resulted in the reduction of social, economic and cultural enforcement policies, besides strengthening the operation of the large companies, privatizations included (PIEPER, 1998).
The discourse of economic and financial result optimization, although adopting a "friendship" with the environment proposal, especially in the form of the rational use of natural assets in the productive process, would see in the normative and institutional instruments for environmental protection a cost to be reduced.The worldwide adoption of the neoliberal model resulted in the reduction of the State structure and its dependence, at all levels, of large companies, mainly, transnational.(SANTOS, 2005) The contradictions of the neoliberal globalization are seen in different forms.However, some information can clarify the problem of those contradictions within the social reality, having an influence over constitutional theory reflections, with the democratic constitutionalism and the promotion of rights, and over the discussion and social and political activity around the possibilities of a full democracy, with social participation and strengthening citizenship (LIVERMAN;VILAS, 2006).
According to the Social Panorama of Latin America 2014, disclosed by the Economic Commission of the United Nations for Latin America and the Caribbean (CEPAL) in 2014, poverty reached 28% of the population in Latin America and indigence increased from 11.3% to 12%, that is, there were 167 million people living in situation of poverty, among which 71 million, in extreme poverty.(CEPAL, 2014) That information seems to confirm PIKETTY's statements from his study on the capital in the 21st century.Considering the current global context, he talks about an "unlimited progression of the world inequality" and "an endless inequalizer spiral" and he proposes "the annual progressive tax on capital" as a solution that he presents as a "useful utopia" (PIKETTY, 2014, p. 500, 556) 1 .
The great migration flow around the world, especially from countries that experience economic difficulties an internal conflicts such as what is seen mainly towards Europe (but also experienced by Brazil, especially with the recent crisis of the Haitians), is another aspect of a broader context of worldwide inequalities with reflexes on human rights, on the environment and on the understanding over the constitutional mechanisms as promoting both.
That information allows for thinking over the fragilities of the democratic process worldwide and also over its correlated dimensions, participation and citizenship, in addition to highlighting the challenge of enforcing human rights, especially economic, social and cultural rights (the so called ESCR), and the right to a healthy environment to all, in that context of structural inequalities.
In face of the contradictions of neoliberalism, the democratic constitutionalism has been looking for alternatives to refrain the "blade" against the constitutional institutionality and the democratic and socialenvironmental achievements.Luís Roberto Barroso, when describing the political action of liberalism before the advancement of democratic constitutionalism, talks about a reaction for the return of the "constitutional minimalism" (BARROSO, 2015, p. 110), more suitable to the liberal and neoliberal political perspective.
In that construction process, in face of realities that create obstacles to citizenship and participation -bases of democracy and the democratic rule of law -, common challenges are noticed for both the constitutional theory and for the social and political field working with human rights, green ones included, from an emancipatory perspective.
Those issues update the discussion around the role of the State and the Law in the society, which leads to questionings about what conception of State and what understanding of law and constitutional law would be more suitable for the contemporary reality.Evidently, the options before those alternatives already have to reflect different ways of understanding the world and the social, political and legal relationships in the society as internal microcosms and international plural community.Those are the issues to be assessed below.

THE DEMOCRATIC RULE OF LAW, DEMOCRACY AND THE DEMOCRATIC CONSTITUTIONALISM
In the face of that globalization and neoliberalism context in which inequalities and social contradictions increased, in contrast to the promise of development for all, the main constitutional doctrine advanced from the definitions of rule of law and social rule of law to the definition of democratic rule of law (SILVA, 2012, p.112).That change took place in the constitutional language, becoming positive in many texts that have been approved since the 70's.
The 1976 Constitution of the Portuguese Republic states in article 2: The Portuguese Republic is a democratic State that is based upon the rule of law, the sovereignty of the people, the pluralism of democratic expression.And democratic political organization, and respect and effective guarantees for fundamental rights and freedoms and the separation and inter-dependence of powers, and that has as its Veredas do Direito, Belo Horizonte, v.13 n.26 p.81-114 Maio/Agosto de 2016 aims the achievement of economic, social and cultural democracy and the deepening of participatory democracy (PORTUGAL, 1976).
The 1978 Constitution of Spain sets, in article 1: "España se constituye en un Estado social y democrático de Derecho, que propugna como valores superiores de su ordenamiento jurídico la libertad, la justicia, la igualdad y el pluralismo político".And in article 10, it declares that 1. La dignidad de la persona, los derechos inviolables que le son inherentes, el libre desarrollo de la personalidad, el respeto a la ley y a los derechos de los demás son fundamento del orden político y de la paz social.2. Las normas relativas a los derechos fundamentales y a las libertades que la Constitución reconoce se interpretarán de conformidad con la Declaración Universal de Derechos Humanos y los tratados y acuerdos internacionales sobre las mismas materias ratificados por España (ESPANHA, 1978).Finally, the 1988 Brazilian Federal Constitution (BFC) states in article 1 that The Federative Republic of Brazil, formed by the indissoluble union of the states and municipalities and of the Federal District, is a legal democratic state and is founded on: I -sovereignty; II -citizenship; III -the dignity of the human person; IV -the social values of labor and of the free enterprise; V -political pluralism (BRAZIL, 1988).
Thus, it is possible to deduce from the Portuguese, the Spanish and the Brazilian constitutional texts, in addition to the democratic characteristics of their States, the indissolubility between them, fundamental rights and democracy.But how to interpret that correlation or indissociability?The answers to that question are going to divide the constitutional theory between the traditional constitutionalism and the democratic constitutionalism both in regards to the perception of democracy and, consequently, of participation and citizenship, to human rights.
The 1988 BFC, as the result of a constituent process counting on the strong participation of the different sectors of the society, connected, in certain aspects, to a more liberal perspective and, in others, to a more social and democratic perspective.Considering that reality, and facing the challenge of creating a unity, is that Bonavides analyzed the plurality of the constituent work: The greatest contradiction in the work prepared results from: it is a Constitution that still looks for a unity criterion to be reached solely by means of the systemic route -the repairer route, as we can define it -through which it is possible to see the junction and the application of not less than five generations or dimensions of fundamental rights, all of them linked to a certain principiologic basis.Through it, in case of conflict, the system restores unit in diversity.(BONAVIDES, 2013, p. 58-9).
One can notice that Bonavides identifies, as a guiding element for the resolution of possible conflicts in the composition of the constitutional unit, the junction and application of all fundamental rights in a context of demonstration of diversity, that is, of democratic processing and under the perspective of an open constitution, in the sense of Häberle (1997;2002).
In that same sense, Canotilho, when assessing the democraticconstitutional rule of law and the contribution of the theory of the constitution in the communicative discourse, highlights: (1) the theory of the constitution keeps turning around the problem of the democratic-constitutional state of law, although with new systemic, international and supranational actors; (2) it assumes, due to that, the indispensability of the Law and of the State; (3) it lies on the indispensability of democracy, and, thus, the theory of the constitution tries to conceive itself as theory of democracy; (4) the articulation of the democratic process to the process of institutionalizing fundamental guarantees is leading to the analysis of the complexity of the democratic-constitutional rule of law (CANOTILHO, 2003(CANOTILHO, , p. 1334)).
The correlation between the constitutional theory and the democratic-constitutional rule of law is demonstrated, having as main references, from Canotilho's point of view, the law, the State, democracy and the institutionalization of the fundamental guarantees.The internal and external connections between human rights and democracy, private autonomy and public autonomy are carried out by means of the law.As Habermas (2003, p. 128) highlights: "The ideas of human rights and the sovereignty of the people still define the normative self-understanding of democratic rules of law." From the positioning of those authors, one can establish a constitutional interpretation that is not limited anymore by the proceduralist or formal perspective, but it is attentive to the effective and substantial reality, to the implementation of democracy and the fundamental rights, bases of the democratic constitutionalism.Those constructions were aligned to broader criticism of other areas of knowledge to liberalism, to neoliberalism and, consequently, to the Liberal State and to the Social State linked to the State.As Bonavides explains, analyzing the Social State in comparison to the Liberal State, one would now address a social State of the Society or a social State of the fundamental rights, which would be the key to the democracies of the future.(BONAVIDES, 2004, p. 70, 74).
Luís Roberto Barroso, when discussing that transformation of the constitutional theory, makes an initial correlation with the performance of the legal-academic movement known as Brazilian doctrine of effectiveness, states: "The essence of the doctrine of effectiveness is to make constitutional rules directly and immediately applicable, to the maximum extension of its normative density" (BARROSO, 2015, p. 518).Proceeding with his analysis, he states: "The democratic constitutionalism, that mixes popular sovereignty and the respect for the fundamental rights, became the dominant institutional arrangement in the developed world" (BARROSO, 2015, p. 525).He still notices that "constitutionalism and democracy are phenomena that complement each other and support one another mutually in the contemporary State" (BARROSO, 2015, p. 115).

THE GREEN DIMENSION OF CONSTITUTIONS OR THE RETURN TO THE ORIGIN OF THE INTERGENERATIONAL COVENANT
The meaning of constitution refers to a covenant between several generations, past ones, present ones and future ones.In the rationalist project of Modernity, it was the materialization of the social contract that, through a founding and constituent process, set forth previous commitments between the social-political community and a dynamic project for identitarian self-constitution ruled by both unchangeable or irreducible clauses according to the wish of the contingent majority and in provisions that are open to changes by means of a more or less complicated reform process (HABERMAS, 1995).Through one, a safety device was created against the will of governors to manipulate the original identitarian and material sense (the constituent pre-commitments), reducing the risk of despotism and discretion; while, through the other one, it allowed the constitutional text to be adapted to the real life contexts (HOLMES, 1988;SAMPAIO, 2013).
That combination helped obtain the necessary means to keep the initial contract (or link) and to renew it according to the normative requirements and existential needs of each generation that, for it, would carry forward the commitment of building a new political society of free and equal individuals.It is on that purpose that one can talk about the « constitution as a pact between generations » and that, still on that purpose, one can also say that, since its first idea, it transports the ecological notion of existing (HÄBERLE, 2009).
That etymology of existence became even more evident with the incorporation by the constitutional texts of the "green rights", meaning the set of rules focusing on environmental protection and on the recognition, both by its objective element as a government task and by its subjective aspect of granting individual or collective power, of the right to a healthy or ecologically balanced environment (BOYD, 2011;GELLERS, 2012;MAY;DALY, 2014).
The greening of the constitutional texts also reinforced the democratic instruments by means of information and participation guarantees to and in social-environmental deliberative processes, as well as the co-original idea of indivisibility of rights that are ideologically divided into classes and generations.If there is no freedom without equality nor equality without freedom, there will not even be both without the integrity of the environment.The greening of the constitution is also the constitution of the ecology that makes human life possible as well as its expression of freedom with equality (SAMPAIO, 2003).
The constitutional cycles were followed by an accidental or peripheral recognition from the declaration of an obligation to protect environmental aspects such as the historic and cultural heritage (1947 Italy, article 9.2) or natural resources and heritage (1983 El Salvador, article117;1991 Slovenia;articles 5 and 73), to the declaration, generally associated to such protection instruments, of the right to an environment that is not polluted, free from contamination, appropriate, healthy, balanced, according to the different constitutional texts, in an objective sense (1972 Panama, articles 114-117;1982 Honduras, article 145;1985 Guatemala, article 97;1992 Slovakia, article 44.2; Cuba with the 1992 amendment, article 27; Uruguay with the 1997 reform, article 47) or also in a subjective one (Portugal, article 66.1;1978 Spain, article 45.1;1979 Peru, article 123;and 1993, article 22.2;1979Ecuador, reformed in 1983, article 19;, article 19;1980 Chile, article 19.8;1987 Nicaragua, article 60;1988 Brazil, article 225;1991 Colombia, article 79;1992 Paraguay, article 38;Argentina with the 1994 reform, article 41;Costa Rica with the 1994 amendment, article 50;1971Mexico with the 1999 reform, article 4; reform, article 4;1999 Venezuela, article 26).Special attention has to be given to the 2008 Constitution of Ecuador that, textually, recognizes the «inalienable rights of nature (Pacha Mama)» in a dedicated chapter (BURRIEZA, 2009;SANTOS, 2010;BOYD, 2011). 2  Less pretentious although deserving the same reference, the Basic Law of Bonn assigns to the State the obligation to protect nature (articles 72.3.2, 74.1.29)and also, as a responsibility towards future generations, the "vital natural resources and the animals, within the constitutional order, through the legislation, and, according to the law, by means of the executive and the judiciary powers" (article 20a) (GERMANY, 2002 3 ) 4 .
That internal process adds to the international movements towards the recognition of environmental protection and the defense of sustainable development, and it is difficult to define who influences who more.In fact, both involve each other mutually.

THE UNDERSTANDINGS AROUND HUMAN RIGHTS, THEIR INSTITUTIONALIZATION AND THE POLITICAL-LEGAL CORRELATIONS
There are different ways to understand democracy and human rights as well as their connections with constitutionalism and the democratic rule of law.That diversity of understandings is a reflex of different visions of the world and different political positioning around democracy and 2 Some Constitutions recognize the rights of life in general, of animals and, sometimes, of plants.In Germany, one can lit: Mecklemburg-Western Pomerania, article 12: "natural bases of present and future life"; Brandenburg, article 39.3: animals and plants; Thuringia, article 32.1: animals : HABERLE, 2009 3 That provision was added by an amendment in 2002.4 The Maastricht (1992) and the Amsterdam (1997) Treaties directly addressed the protection to the environment (1992 preamble, article 2), « sustainable development » (article 2) and « environmental protection and quality improvement (article 130r.1).Titles XVI and XIX, respectively, were dedicated to the environment and forecasted several objectives.Similarly, the 2000 Charter of Fundamental Rights of the European Union (Treaty of Nice) talks of responsibilities and obligations before future generations (preamble, paragraph 2) and forecasts the promotion of sustainable development (article 37).Refer to HABERLE, 2009.its correlated elements (participation and citizenship), as well as human rights.
Democracy and the democratic rule of law cannot dissociate from the observation and realization of human rights.However, the way human rights are understood seems to be directly related to the way democracy and citizenship are politically understood.Between the way human rights are understood from the perspective of traditional constitutionalism and according to the democratic constitutionalism, there is not only a methodological difference, but also and fundamentally, a difference of substance in what regards human rights, democracy, citizenship, the form of participation and, finally, the democratic rule of law.It is not a circular or tautological argument, as seen below, but a process of self-reference and implication.
Would the political bases that support different constitutional understandings also be responsible for the different forms of understanding and acting in face of human rights?Persistence in differentiating and favoring civil and political rights before the economic, social and cultural rights would not have the same political division basis, with its economic, social-environmental and cultural correlates?And, finally, having the same basis, what are the possibilities of overcoming those divisions and how have human rights been contributing for that process?
To answer to those questions, it is important to evaluate the process of international constitution of human rights, considering some social, political and legal issues of three of their guiding documents: the International Bill of Human Rights (including the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights and its two protocols), the Vienna Declaration and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.Then, the correlation between the realization of human rights (especially the Economic, Social and Cultural Rights) and public policies is going to be assessed, to finally rescue the discussion presented in the topics above and verify the possibility of overcoming the divisions and the role of human rights in achieving that objective.

THE INTERNATIONAL BILL OF HUMAN RIGHTS
The International Bill of Human Rights includes the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and its Optional Protocols (UNITED NATIONS, 1995, p. 3).
The 1948 Universal Declaration of Human Rights is commonly presented as the result of consensus.On the purposes of this text, however, it is possible and important to highlight the divergences in the process of social-historical constitution of the human rights, which may be highlighted from a deepener analysis.
Regarding the 1948 Universal Declaration, one can already point out divergences in the writing committee, which was directed by Eleonor Roosevelt, widow of the former president Roosevelt, who had passed away in 1945.In a famous speech at the Congress of the United States in 1941, Roosevelt had defended the construction of a world based on four fundamental freedoms: "freedom of speech and expression, freedom of worship and religious beliefs, and the right to be released from the need and the fear".(QUINTANA, 1999, p. 35).Although his position would come close to the discussions proposed by John Keynes, one should consider that this construction around the State of Wellness was carried out in the context of the 1929 financial crisis, which kept on manifesting in 1941 with strong recession and unemployment.The defense of greater state intervention, in the United States and in England, was the formula for making those freedoms possible, or better said, the liberal project that had its main bases set forth from the construction, as of the 17 th century, of John Locke and, especially, Bentham and Hume around the defense of private property and freedom (DAY, 1966).
On the other hand, the integration of the economic, social and cultural rights into the Universal Declaration can be better understood when consideration is given to the fact that René Cassin, who was responsible for the latest version of the document, integrated the French Resistance and was also part of the commission that debated the post war French constitution that should include "the social and economic rights".In that condition, he certainly had access to Georges Gurvitch's work, La Déclaration des droits sociaux, dated 1946, prepared with the expectation of influencing the new French declaration being looked into at that time as Carlos Miguel Herrera mentions in the foreword for the reedition of that book.(GURVITCH, 2009, p. V).The understanding was that the moment was suitable for the implementation of social rights, which were already being claimed since the 18th century by the workers of the first industrial revolution in England, and that were better explained and organized as a political proposal from Marx's thoughts (STAMMERS, 1999).
Thus, there were two human right projects in dispute and the liberal project was the one that prevailed in the Universal Declaration, despite the inclusion of social rights.Bobbio remembered, in a text dated 1968 over the rights consecrated in the Universal Declaration, that: the distinction between two types of human rights, whose total and simultaneous realization is impossible, is consecrated, moreover, by the fact that also at the theoretical level they are face to face and two different conceptions of rights of man are opposed, the liberal and the socialist ones (BOBBIO, 1992, p. 44).
That prevalence of the liberal project at the UN was better evidenced through the discussions around one or two covenants and their differences.The initial intention to build one only covenant was made impossible by the demonstration of, more than a different implementation, the different political bases guiding the two fields of rights and, according to Bobbio, irreconcilable, which would imply in "choosing or, at least, setting forth an order of priority" (BOBBIO, 1992, p. 44).Well, at that moment, the priority was set forth.
After the 1948 Declaration was approved, they start the work to prepare the covenant, which should be unique had it not been the divergences around the nature of the human rights.Thus, in the 1950 Human Rights Commission session, the different nature between the groups or categories of human rights prevailed, the civil and political rights (for immediate application) and the economic and social rights (for progressive and gradual application) (QUINTANA, 1999).That divergence is going to make it impossible to approve one only covenant and it is taking to the need of creating two covenants, the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, only approved in 1966 by the UN (PINTO and COSTA, 2013, p. 20).
The differentiation between the regime and the protection mechanisms of the two Covenants is usually attributed to the polarity between socialist and capitalist countries.But that analysis suffers from simplification (DENNIS; STEWART, 2004).The socialist States were against the creation of a specialist committee for the two treaties.Many western States, on the other hand, supported the creation of one committee for both.The conflicts of interests resulted in the organization of the Human Rights Committee for the ICCPR, while the fiscalization of the ICESCR was assigned to the Economic and Social Council of the United Nations formed by representatives of the States and whose ineffectiveness caused the establishment of the Economic, Social and Cultural Rights Commission in 1987 (ALSTON, 1992, p. 473).
The creation and approval of the Optional Protocols to the International Covenant on Civil and Political Rights, however, reinforced the differentiation and the choice between the two groups of rights.In fact, it reinforced the differentiation between the two political projects for a society and their respective economic models.The International Covenant on Civil and Political Rights set forth a supervision body -the Human Rights Committee -and it was provided with a communication procedure by means of the Optional Protocol to the International Covenant on Civil and Political Rights, which also became effective in 1976.
The corresponding guarantee regarding the ICESCR was only approved in 2008, becoming effective in 2013 for a minimum number of States.Finally, it is possible to say that the introduction of the human rights, following the same international perspective in different constitutions around the world, initially had the same aspects of a consensus marked by ambiguities, which could favor the continuity of the traditional and liberal interpretations that dominated both the liberal State and the social State from the standpoint of the State of Wellness.
Thus, just the inclusion into the constitutional texts of the reference to the democratic state of law, setting forth the bases for the International Bill of Human Rights, would not be, at first, a guarantee for the implementation of a full and participative democracy for all due to the privilege granted to the civil and political rights at the international level, until a certain moment.That trend may be redirected with the Vienna Declaration.

THE VIENNA DECLARATION AND THE NEW PRINCIPLES OF HUMAN RIGHTS
The 1993 Vienna Declaration was an important milestone in the field of human rights once it reaffirmed, with better support, the principles of universality, interdependence and inter-relation between the rights.Although it was approved right after the fall of the Berlin Wall, its preparation had to face the different world views and interests, new and old ones, that imposed themselves as obstacles to the result it reached.
José Augusto Lindgren Alves, who actively participated in the preparatory discussions for the document, on the part of the Brazilian diplomacy (BELLI, 2009, p. 98), says that the speakers were divided into several lines: "eastern versus western, developed versus under development, liberal versus authoritarian, individualists versus collectivists, capitalist versus socialist" and all of them more intensified by the globalization phenomenon (ALVES, 2002, p. 40).
Why was an "unlikely consensus" reached around that document?For several reasons.The end of the political-ideological bipolarity (or Manichaeism) certainly contributed a lot for the spirits to cool down.As Alves says: Only after the end of the hegemonic confrontation between the United States and the Soviet Union and the overcoming of the ideological dispute it reflected, the countries that formed the United Nations could admit, without necessarily falling into mutual accusations, the interconnected and universal characteristics of the economic and social-political challenges that threatened humanity as a whole.(ALVES, 2002, p.

29).
The political reality was a decisive factor to overcome the divisions that prevailed for decades in the international debates around human rights; and there is no doubt the end of the Cold War was a really important factor (LANGFORD, 2009).However, at least three other aspects that are not always well correlated have to be considered in that context: in the international institutional field, the minority, theoretical and political position around the broad understanding of human rights; in the legal field, the discussions around the democratic constitutionalism; and, in the social and political field, the broad work of several groups and NGOs around the world that already claimed and highlighted the link between the rights (FINGER, 2013).
In the international institutional field, the United Nations, prior to 1993 and also during the first International Conference on Human Rights, the 1968 Teheran Conference, already affirmed "the inter-relation, interdependence and indivisibility of all human rights" (ALVES, 2002, p. 41).However, the different groups of countries, with various ideologies and organizations, involved in the political division of the world, have always given priority to one or another category of human rights, making it difficult to reach a common or convergent solution (LECKIE, 1998).
In the legal field, the resumption itself of the three above mentioned constitutions, the 1976 Constitution of Portugal, the 1978 Constitution of Spain and the 1988 Constitution of Brazil, all of them prior to the Conference, which was established at the level of the democratic rule of law, already stated that correlation between the State, democracy and human rights.It is possible to say that, in the beginning of the 90's, the new constitutional formulation and the democratic constitutionalism, especially in the political and legal discourses, were already part of the agenda of a large number of member countries in the UN, which would be a facilitating element.
In the social and political field, especially after the 80's, the civil society in the different locations, including the transfrontier mode, had taken over a relevant role in the fight for human rights.And, in that process, many NGOs and groups of the society already highlighted the connection and articulation between the civil and political rights, and the social rights.In addition to that, the strong participation of the NGOs in the UN conferences from the 90's strengthened the idea that this factor contributed for overcoming the express divergences during the preparation of the Conference (JELIN, 1994;FINGER, 2013).
Despite the relevance of the other factors in the institutional, legal, social and political fields, that last factor, the geopolitical one, appeared to be essential for the consensus that, due to the range of the divergences, seemed unlikely.Some advancements of the 1993 World Conference on Human Rights, still according to José Augusto Lindgren Alves, were: historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
Similarly, another aspect evidences the proximity and integration between the concepts expressed in the Vienna Declaration and the theoretical bases of the democratic constitutionalism.It is the correlation between democracy, development and human rights expressed in paragraph 8 of the Declaration: § 8. Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.[...] Thus, it is possible to notice a confluence between the concepts and values expressed in the Vienna Declaration and the constructions at the level of democratic constitutionalism, which, somehow, are going to be reinforced by the Vienna Declaration, as are social and political actions taken by the civil society around the world in the field of human rights.
Indeed, that correlation between the Vienna Declaration and the constructions of the democratic constitutionalism clearly appears in Pérez Luño when he says: "Se trata, a lapostre, de asumir que el constitucionalismo y los derechos humanos son eslabones que postulan un universo interconectado cuyo atributo más notorio es la interdependencia" (LUÑO, 2010, p. 651).The same author highlights the unit of sense that detaches from fundamental rights in the context of pluralism presented, among other, by P. Häberle (2002) 5 ; another aspect of proximity with the principles stated in the Vienna Declaration.
However, while the discussions and interpretations around the constitutionalization of the law and the correlation between constitution and the effectiveness of human rights advanced with the democratic constitutionalism, the issue related to the indivisibility of human rights still faced and faces resistance in the different spaces of power in the world society and in the national States, arising in the positions of the great majority of the States, in spite of the Conference and the Vienna Declaration.It is maybe in this respect that José Augusto Lindgren Alves, 5 Refer to the debate in the North American context: POST, 2000.when concluding his presentation on the Conference and on the Vienna Declaration in a text dated 2002, has pointed out that the effects of the Declaration were still "disappointingly limited, though human rights have become since then an essential and sometimes even dominant face of the contemporary discourse" (ALVES, 2002, p. 49).
Nonetheless, it is necessary to remember that the democratic constitutionalism also tackles its internal obstacles due to the different perceptions on the connection and effectiveness of the rights, especially in what regards the possibility of the Judiciary promote them (SAMPAIO, 2013).Here, there is also a certain consensus on the importance of the rights, but a divorce on how to carry them out.And, again, the "judiciality" of the civil and political rights gathers supporters easier than the social, economic and cultural rights (TUSHNET, 2009;LANDAU, 2012;JUNG;HIRSCHL;ROSEVEAR, 2014).There are, though, proximities and a kind of communication between the two levels of protection.

THE NECESSARY ARTICULATION BETWEEN HUMAN RIGHTS AND THE ENVIRONMENT
The ESCR, alive for over a century, have trouble to be seen as human rights, and the environment issue faces even more resistance.The first international documents that address the subject date back to the end of the 19th century.The approach of those documents was much more devoted to the need for the rational exploration of a scarce economic asset or the solution of conflicts between some States 6 .The environment seen as a vital space that requires protection is only expressed in the Stockholm Declaration, approved by the United Nations in 1972 and containing 26 principles that guided the international 7 debate and projected themselves inside the States, inspiring the greening of the constitutionalism.In Principle 1 of the Declaration, the interconnection between the healthy 6 Examples in the 19th century are the arbitral decision on fishing disputes between Great Britain and States, in which a series of restrictions to fishing was set forth regarding pelagic seals in 1893;the Trail Smelter Case, 1941, between  environment and the other human rights, and freedom and equality is already emphasized: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.
The equality of the relevance status between those principles and the other human rights, as a corollary of their indivisibility, was recognized by the United Nations by means of Resolution 217 adopted by the General Assembly.Nevertheless, the fragmentary treatment of the subject, a result of the issues and possible affirmations of that assumption, dominated the two following decades, reinforcing the voices of those who kept differentiating, due to ideology, pragmatism or dogmatism, the two domains, human rights and environmental rights (or assets) (WEISS, 2006) 8 .
A series of efforts to keep Stockholm concerns and perspectives alive allowed an important step to be taken in the 90's towards looking at environmental rights as human rights.The 1982 World Charter for Nature was one of those efforts.Paragraph 2 of the Charter states that "humanity is part of nature".And more: "life depends on the continuous functioning of the natural systems".
The creation of the World Commission for Environment and Development the following year and the preparation of its report in 1987, called "Brundtland Report" and titled "Our Common Future", set the bases for the United Nations Conference on Environment and Development, known as Eco-92, Rio-92, Earth Summit, Summer Summit, Rio de Janeiro Conference and Rio 92, from where important international documents on the environment came, that is, the Framework Convention on Climate Changes, the United Nations Convention to Combat Desertification and the Convention on Diversity.Two Declarations were also approved, the statement of Principles on Forests and the Declaration on Environment and Development, besides the "Agenda 21" (HENS, 1996).
The focus of the event was recognition of the right to a healthy environment, integrated by the three main vectors (environmental protection, social justice and economic efficiency) of sustainable development, key expression already anticipated in the Brundtland Report.Agenda 21 intended to be a program of actions aimed at promoting that new development model; as well as the creation of the Sustainable Development Commission (SDC), linked to the United Nations Economic and Social Council, aimed at promoting the cooperation between the countries in the creation and execution of the national agendas.
The clashes between central and peripheral states, associated to the increasing neoliberal wave, ended up by generating retreats or, at least, reducing the speed at which promises made at 1992 were carried out. 9Resistance to the 1997 Kyoto Protocol approved in the United Nations Conference that year and that forecasted a 5% reduction of warehouse effect gases by 2012, only predicted the paralysis and even setback regarding the achievements in the following Conference, 2002 Johannesburg, and in the 2009 Copenhagen Conference.It was not different at the 2012 Rio + 20.The frustration with the lack of political will to make progress regarding the subjects proposed twenty years before at Eco-92, recognized by many countries, was a picture of the so called "green economy" and of the greening of human rights (GALIZZI, 2006;ELY et al, 2013).The partial advancement obtained at COP 21, held in Paris in the end of 2015, mainly fighting global warming, brought some hope to the scenario of deception, but not enough to detect significant changes (MAYER, 2016).At the regional level, the fragmentation of environmental protection is also a problem.A more direct recognition of the right to a healthy environment was stated by the 1981 African Charter on Human and Peoples' Rights (article 24) and by the Additional Protocol to the 1988 9 Nevertheless, some documents were approved such as, in 1994, the International Convention to Combat Desertification and the Convention on Nuclear Safety; the Convention on the access to information public participation in decision processes and access to justice in environmental matters (Aarhus Convention) dated 1998.
Veredas do Direito, Belo Horizonte, v.13 n.26 p.81-114 Maio/Agosto de 2016 American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (SHELTON, 2010).According to article 11 of that last Convention: "1.Everyone shall have the right to live in a healthy environment and to have access to basic public services.2. The States Parties shall promote the protection, preservation, and improvement of the environment" (OAS, 1988).As to be seen below, the problems arise from its application.
Theoretically, resistance to the recognition of a human right is seen under the form of: a) normative problems and b) conceptual problems.On the first line of arguments, it is said that international documents on the environment, when adopting the soft law models, fail to have legal capacity to raise the environmental issue to the status of human rights.The conceptual problems refer to the difficulties of that framing due to the deficiencies or inaccuracy to assign active subjectivity to the human gender and not to an individual or group; and passive, to states and individuals, at the same time.It is not possible to define, with the necessary clarity, the rights of some and the obligations of others, and there may even be confusion regarding the formula of a right-obligation.One last point related to the conceptual problems connects them to the normative difficulty: the lack of instruments to guarantee the realization of the content of that right (ALSTON, 1984;GIORGETTA, 2002).
The diagnosis would also match the regional systems for human rights.It would be the case, for example, of the Protocol of San Salvador.Article 19.6 of the Protocol restricts it for submission to the Inter-American Court of Human Rights to "union organization" and to "access to education", excluding several economic, social and cultural rights, and the environmental rights (OAS, 1988).
The arguments can be overcome by considering that there are enough legal elements in international law to allow, by means of systematic interpretation, for the combination of ownership of a right that is, at the same time, individual, collective and of the entire humanity, to a healthy environment, that can be required from the private and public power, without decreasing its essentiality characteristics, may they be internal or external.The deficiencies of the "judiciality" mechanisms also fail to reduce that jusessential nature.By the way, two important aspects are to be mentioned.The first one regards the effort to create, against the opposition of the economic power and the liberalizing ideological matrix, guarantee instruments as is the case of the creation by the UN of the Special Rapporteur on Human Rights and the Environment.The second one refers to the so called reflex protection or ricochet (or the greening of civil and political, economic, social and cultural rights), which has mainly been granted by regional Courts for the protection of the environment (DENNIS; STEWART, 2004).
In Europe, the affirmation of a right to the environment has taken place from the right to life and the safeguard of intimacy and private life insured by the European Convention of Human Rights (MARTIN; MALJEAN-DUBOIS, 2011); and in the inter-American system, equally, with the protection to life but also to the existential space of vulnerable groups, especially indigenous communities (SHELTON, 2010).Last but not least, at the UN level, both the General Assembly, by means of Resolution n. 37/189A, dated 1982, and the Commission of Human Rights, with Resolutions n. 1982/7, dated 1982, and 1983/43, dated 1983, it has been reiterated that the right to life encompasses the effective exercise of the civil political, economic, social and cultural rights by individuals, people, ethnicities, collectivities and human groups, holders of a healthy environment in which they can live with dignity (DENNIS; STEWART, 2004).

THE PERSISTENT OPPOSITION TO THE PERSPECTIVE OF HUMAN RIGHTS AS AN INDIVISIBLE SYSTEM
Even if the debate around international protection of economic, social and cultural rights was already present since the preparation of one only covenant was foreseen, back in 1948, and that later, in other occasions, the debate was kept alive, as reported by the Inter-American Institute of Human Rights (IIHR, 2008), a long time elapsed between the two Protocols.Notice that the Vienna Declaration had already recommended the adoption of the individual petition system regarding the ESCR and, thus, the preparation and approval of an optional protocol to the ICESCR (BARBOSA, 2010, p. 267).The appearance of the « green rights » printed an even more holistic and integral meaning to the system of human rights, but resistance to the vision is considerable.
The low level of adherence of the countries to the OP-ICESCR is an example of those difficulties.The Protocol came into force in 2013 and it currently counts on 21 state parties, that is, Argentina, Belgium, Bolivia, Bosnia and Herzegovina, Cape Verde, Costa Rica, El Salvador, Ecuador, Slovakia, Spain, Finland, France, Gabon, Italy, Luxemburg, Mongolia, Montenegro, Nigeria, Portugal, San Marino and Uruguay (UN 2008(UN -2015)).
It is possible that the restricted number of adherence is partly due to the latest global crisis that started in the United States in 2008, aggravating the neoliberal vision that the ESCRs and the green rights are costs to be eliminated or reduced.However, considering that this division or difficulty to recognize the indivisibility of the human rights is not new, there has to be other elements for that resistance to OP-ICESCR.
If the advance of the democratic constitutionalism and the defense of having a correlation between democracy and the realization of all human rights are considered, would the non-ratification to the OP-ICESCR make sense?If the constitutionalization of the law takes to the implementation of the constitutionally guaranteed values of the democratic rule of law, and if the human rights are already seen as indissociable, trying to overcome every formalist conception of the rights, what would the other obstacles for non-ratification of the Protocol be?
This interpretation and the constitutional correlation between democratic rule of law and effective compliance with human rights, including the ESCR and the green rights, may not be that consolidated and really prevail in the legal field, even in countries that keep the constitutional connection to a democratic rule of law.
Another possible obstacle may be linked to the continuity of separatist views of human rights in the different fields of the society, from the legal one, to the social and political ones, passing by the government space.That obstacle would be connected to a broader one: to the liberal or neoliberal view in the global reality.That barrier, as already seen above, would be present since the first constructions of the UN around human rights, and it is possible that it remains the main guide of the resistances to the increase guarantees regarding rights.
However, it is predictable that some countries that may even have public policies that are compatible with the implementation of the ESCR, or that even have something close to them, may not have signed and ratified the Protocol because they are not sure about the procedures and how the Committee on Economic, Social and Cultural Rights is going to analyze the possible communications or procedures against a State Party.
It is correct to say that one of the references already present in the ICESCR and also in the OP-ICESCR is the principle of non-regression Veredas do Direito, Belo Horizonte, v.13 n.26 p.81-114 Maio/Agosto de 2016 measures, as says the International Commission of Jurists -CIJ: Si bien la prohibición de regresividad no es absoluta, bajo la jurisprudência del CDESC, corresponde al Estado la carga de probar que las medidas regresivas fueron tomadas por razones apremiantes, que fueron estrictamente necesarias, y que no existían cursos de acción alternativos o menos restrictivos.En otras palabras, las medidas regresivas son consideradas como violaciones de la obligación de realización progresiva, a menos que el Estado pueda probar, bajo estricto escrutínio, que son justificadas.(CIJ, 2010, p. 34) It seems important to mention that several European countries ratified the OP-ICESCR, even during the economic world crisis that had strong reflexes in that continent, including internal regression regarding certain social rights.Notice that Spain and Portugal are among the first State-Parties, while Italy, France and San Marino recently ratified (UN, 2008(UN, -2015) ) .
At last, it is evident that those countries or governments that have a clear favorable proposal for the implementation of all human rights, including the indivisibility of the ESCR and the green rights, inclusively, have favorable normative elements in the ICESCR, reaffirmed in its Optional Protocol, that guarantee to them, in general, adjustment to those requirements, especially considering that the Committee is going to examine communications considering "[...] hasta qué punto son razonables las medidas adoptadas por el Estado Parte [...]" (Art.8 of the OP-ICESCR).
Those last issues may be elements of doubt for some governments.Though, for those that are committed to human rights, such as, for example, the latest governments in Brazil, there is no reason not to ratify the OP-ICESCR and neither to green those rights or even more correctly to consider the right to a healthy environment, even during an economic crisis.
Nonetheless, the more significant resistances are probably in the field of neoliberal interests and powers that resist to commitments to social rights and to all substantial and full understanding of democracy and citizenship (LIVERMAN;VILAS, 2006).The most efficient way to overcome those difficulties and retreats is popular participation and the organization of the society.Neither democratic constitutionalism nor the international system of human rights or the greening of both can fulfill its emancipatory project without local and global voices and attitudes to claim and face agreements and covenants entered into in air-conditioned offices of exclusion and asymmetry, between the political power and the economic power.

FINAL CONSIDERATIONS
From the explanation of some contradictions of the liberal globalization, it was possible to see that the democratic constitutional theory and the human rights, greened by the ecologic dimension of the environmental rights, go through serious difficulties in their project to reduce social inequality, promote freedom and achieve sustainable development.
The theoretical constructions of the democratic constitutionalism have the overcoming of formal and abstract references of the law when they favor the maintenance of social and economic structures that hinder the effective realization of democracy as a base for their legal constructions and positioning.The lack of access to economic, social and cultural rights makes it impossible or reduces the possibility to experience civil and political rights, making them formal rights, resulting in the need for coexistence and effectiveness.The greening movement related to that constitutionalism reinforces the indivisibility of the rights and supports them as intergenerational elements that remind the interdependence between life, freedom and equality that need the integrity of the vital space, which is nothing but the environment itself, to flourish.
It is based on that finding and theoretical conception that defenders of the ecologic democratic constitutionalism postulate the articulation between constitutionalism, democracy and human rights as an interconnected universe.On the other hand, it is known that this constitutional understanding, reflecting a certain view of the world and the relations that form it, also indicates a political position that criticizes liberalism and neoliberalism, which allows to correlate it to a politicallegal view that articulates itself with the whole or indivisible perspective of the human rights.
From the social-historical analysis, it is possible to conclude that the divisions, within human rights (in international seat), have the same political bases that found the fundamental divisions at the constitutional level between the traditional position and the constitutional critical position.
The complementarity between the constitutional field and that of the human rights, all of them under the environmental or ecological sign, green, from all form and metaphor, in regional and international seat, is marked by conflicts and has common challenges, and it seats on the same bases of theoretical and practical construction that strengthens the work of the emancipatory positions in each one of those groups.
The majority opposition of the countries to the ratification of the Optional Protocol of the ICESCR, and of a segment of the international doctrine and of actors to the consideration of the healthy environment as one of the human rights, opposes the position of the democratic constitutionalism and of the groups and entities of the civil society that operate in favor of the promotion of constitutionalism, democracy and human rights, including environmental ones.Both constitutionalism and resistance society align in favor of the ratification of the Protocol and deepening social-environmental accomplishments in the fight for the access to all human rights to everyone.
The neoliberal belief in the market and the fiscal control of the States is, to a great extent, behind the movements opposing the democratic constitutionalism and ecologic human rights, both externally and internally.Such belief hampers the internal processes to implement social, economic, cultural and environmental rights, desubstantializing democracy and the proposals of the democratic rule of law, and promoting disagreement around the construction, at the international level, of an indivisible human right system.
In order to overcome those obstacles, it is important to deepen even more the articulation of knowledge and practices among the actors of the democratic constitutionalism and those who work in the field of emancipatory human rights to implement the human rights and strengthen participation, citizenship and democracy, for all and with all.
[...] 1. the universality of the fundamental rights of the human person; 2. the legitimacy of the international system for protection of those rights; 3. the recognition of a right to development; 4. the existence of a reportedly indissoluble connection between democracy, development and human rights.(ALVES, 2002, p. 42) Among those advancements, paragraph 5 of the Declaration deserves special attention: § 5.All human rights are universal, indivisible and interdependent and interrelated.(...) While the significance of national and regional particularities and various Veredas do Direito, Belo Horizonte, v.13 n.26 p.81-114 Maio/Agosto de 2016 the United States and Canada, decided by the Mixed International Commission based on the 1909 Boundary Waters Treaty on the contamination in the United States by gases produced by a mining company installed in Canada.The 1918 Migratory Bird Treaty Act; In 1949, there is the I International Conference on the conservation and use of natural resources; in 1954, the Conference on Marine Living Resources and, in 1958, the Convention of Geneva on the same subject.Refer to WEISS, 2006.7 The creation of the UN Program for the Environment (PNUMA) in 1972, would assign a certain level of institutionality to the new perspective of environmental rights.

8
The following are among other documents approved at that time: the 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention); the 1972 Convention on Biological Weapons; the 1973 UN Convention for the Protection of the Marine Environment; 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); articles 35.3 and 55 of Protocol I additional to the 1949 Geneva Conventions, regarding the interdiction of military methods or means that cause serious environmental damages; 1977 United Nations Convention on the prohibition of military or any other hostile use of environmental modification techniques; the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR); 1982 Montego Bay Convention on the Law of the Sea; the 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Assistance Convention), the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal, or Basel Convention; the Convention in Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD), and the 1989 Montreal Protocol on Substances that Deplete the Ozone Layer; the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context.Refer to WEISS, 2006.