Constitution of the Republic of Ecuador, Chapter 7, The Rights of Nature

Constitution of the Republic of Ecuador, Chapter 7, The Rights of Nature

At a Glance

Ecuador is the first country to grant inalienable, substantive rights to nature. The country’s constitution treats the environment as a right-bearing entity alongside and equal to humans. The new articles explicitly grant the environment the inalienable right to exist, persist, regenerate and be respected. They also guarantee Ecuadorean citizens the legal authority to sue on behalf of nature for the enforcement of aforementioned rights. Ecuador rewrote its Constitution in 2007-2008 and it was ratified by referendum by the people of Ecuador in September 2008.


Connected Policies

The Universal Declaration on the Rights of Mother Earth 2010 (World People’s Conference on Climate Change and the Rights of Mother Earth, Bolivia, 22 April 2010).

The Whanganui River Deed of Settlement of 5th August 2014, New Zealand, which names the River Whanganui as a living entity, with its own rights.

Article 120 of the Swiss Constitution which takes account of the dignity of living beings which includes animals, plants and other organisms by legislating on the use of reproductive and genetic material.


Selection as a Future-Just Policy

The Rights of Nature provisions in the Constitution represent a paradigm shift, moving away from considering nature as an object to rights, towards nature as the subject of rights. The Constitution has since its implementation generated a significant momentum in litigation on behalf of the natural environment, some examples are highlighted after the Future-Just Policy Scorecard.

Future-Just Policy Scorecard

Our “Best Policies” are those which meet the Future-Just Lawmaking Principles and recognise that interrelated challenges require interconnected solutions. The World Future Council’s unique research and analysis ensures that important universal standards of sustainability and equity, human rights and freedoms, and respect for the environment are coherently considered by policy-makers.

icon-yes-lightgreen  Sustainable use of natural resources

  • If enforced, the Rights of Nature amendments in the Constitution help to ensure that the Earth’s resources are used in a more sustainable way, as listed below.
  • 73 helps to address common concerns such as the extinction of species, providing “the State will apply precaution and restriction measures in all the activities that can lead to the extinction of species and the destruction of the ecosystems (..).” 
  • Natural areas are respected by providing that their use and the exploitation of natural resources within these areas will be regulated by the State. (Art. 74.)
  • Art. 72 grants the affected entities a right to restoration of any damage inflicted.

icon-yes-lightgreen  Equity and poverty eradication

  • According to Article 74. „Persons, communities, peoples, and nations shall have the right to benefit from the environment and the natural wealth enabling them to enjoy the good way of living“ The Rights of Nature thereby indirectly contribute to equity and to tackling poverty.

icon-yes-lightgreen  Precautionary approach

  • The Constitution promotes a precautionary approach against the threat of serious or irreversible harm to human health, natural resources and ecosystems. It does so by prohibiting not only the introduction of organisms of both inorganic & organic origin, that could potentially harm and alter the current ecological system in Ecuador, but also by stating that “the State will apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles“. (Art.73)

icon-yes-lightgreen   Public participation, access to information and justice

  • Citizens and communities are granted the legal authority to bring cases, on behalf of nature, in front of courts as ensured by Article 71, and to “demand the recognition of rights for nature before the public organisms.”. The people have made successful and effective use of this legal authority in the first legal case of the Rights of Nature in 2011, where they demanded an observance of the Rights of Nature in opposition to a new road development – in particular the rights of the River Vilcabamba – which the provincial court of Loja ruled in favour of. Art. 71 furthermore states that “The State will motivate natural and juridical persons as well as collectives to protect nature “, it is thereby strongly encouraging access to justice and public participation.

icon-no-lightgreen  Good governance

  • The amendments do not establish adequate institutions to ensure transparent, prompt, effective and fair implementation of its provisions and a lack of judicial independence The courts are vulnerable and unstable,” eroding judicial independence so that environmental rights provisions stand little chance of meaningful enforcement. There is a likelihood that claims of environmental plaintiffs’ might be less influenced by merit than by political loyalties.
  • Although most of the amendments include provisions which aim to enshrine good governance, unfortunately, the enforcement does not yet exist to ensure that the good intentions aren’t thwarted by corruption, bribery or unethical conduct. In addition appropriate penalties for the abuse of rights, or a failure of their implementation, are not clarified.

icon-no-lightgreen  Integration and interrelationship

  • The amendments do not integrate social justice or environmental protection into economic development plans and projects, primarily, because the Constitution does not offer any hierarchy of rights when nature’s constitutional rights conflict with humans’ constitutional rights.
  • Article 73 would seem to require the development of decision-making processes to take environmental and social impacts into account, providing for mitigation, modification or cancellation if necessary, which is in accordance with integration and interrelationship. However, an open-pit mining project in El Condor Mirador was given permission by the Department of Resources despite an environmental impact assessment cited by Yale University which stated that the open pit mining’s contamination of the environment would lead to extinction of several species, including one reptile and at least three endemic amphibian.
  • Although the Rights of Nature provisions have enhanced legal redress for environmental issues, a flexible interpretation of the amendments, including in the judiciary, creates loopholes and stands in the way of enforcement.

icon-no-lightgreen  Common but differentiated responsibilities

  • In practice, the amendments do not take into account who has benefited from past activities nor do they provide avenues to redress current inequalities since private oil exploration, road building and open pit mining has continued in Ecuador, with detrimental impacts upon the environment.
  • The lack of a clear standing doctrine creates fundamental uncertainty about the justiciability of claims under the It thus fails to avoid placing inappropriate burdens on vulnerable groups, and imposing costs on those least equipped to bear them who might wish to litigate on behalf of nature in the Constitutional Court. It thereby could limit the number of cases being brought forward.
  • Although the Rights of Nature amendments are well adapted to several Ecuadorian cultural values and traditions – the coexistence with Pacha Mama being one of them – the amendments, nevertheless, are too broad to take human and financial resources truly into account.


Context

Ecuador, with its varied flora and fauna spread across over thirteen million hectares of tropical rain forest and the Galápagos Islands, is one of the most biodiverse countries in the world. Furthermore, it is home to a minimum of eight groups of Indigenous Peoples. This diversity is severely threatened by the expansion of human development in natural areas; particularly by the oil industry and extensive road construction work which gives access to oil and mineral reserves in the Amazon.

Historical ties with the oil industry began in the mid twentieth century when Ecuador was in major debt to US creditors. It was forced to open up its rainforest to foreign oil companies, and in 1964, Chevron Texaco discovered oil in the northern part of the rain forest.

The petroleum industry proved to be the biggest contributor to Ecuador’s economy, with current revenues of oil exports at around forty percent of the annual value of exports. However, 30 years of drilling operations, despite environmental laws, have led to an extraction-based economy which has caused significant damage to the rainforest, its biodiversity and the communities living there. This eventually led to an uprising of Indigenous communities against worsening economic and environmental conditions, which in turn caused a referendum by the people in 2008 implementing the new Constitution.


Objectives

President Correa proposed the new Constitution as part of his presidential campaign for ‘change’. The objectives of the Rights of Nature provisions in the Constitution are very broad. The preamble of it celebrates “nature, the Pacha Mama (Mother Earth), of which we are a part and which is vital to our existence” and “a new form of public coexistence, in diversity and in harmony with nature”.

His proposal of Rights of Nature, opposing the previous conception of nature as a property, indicated a significant new approach in favour of the environment. Similarly, in the Swiss Constitution, implemented 8 years earlier, Art.120 discussing the dignity of animals as recognized in the law (including plants and other organisms) by legislating on the use of reproductive and genetic material. However, Ecuador became the first country in the world to codify the Rights of Nature comprehensively. This includes the right of the ecosystem to exist and flourish, the requirement of the government to provide remedies should these rights be violated and the granting of authority to the people to petition on behalf of nature.


Methods of Implementation

Articles in the Constitution can be litigated in the Constitutional Court, and are inalienable rights.

Chapter 7 the Rights of Nature
Art. 71 states that “Nature … has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms. (…) The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem.”

Art. 72 provides that “Nature has the right to restoration. This integral restoration is independent of the obligation on natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural systems. In the cases of severe or permanent environmental impact, including the ones caused by the exploitation of non-renewable natural resources, the State will establish the most efficient mechanisms for the restoration, and will adopt the adequate measures to eliminate or mitigate the harmful environmental consequences.”

Art. 73 provides that “The State will apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles. The introduction of organisms and organic and inorganic material that can alter in a definitive way the national genetic patrimony is prohibited.”

Art. 74 provides that “The persons, people, communities and nationalities will have the right to benefit from the environment and form natural wealth that will allow wellbeing. The environmental services cannot be appropriated; its production, provision, use and exploitation, will be regulated by the State.”


Impact

The first Rights of Nature legal case concerned the River Vilcabamba, in the Loja Province: materials from a road construction were dumped into the river, changing its course and thereby damaging its biodiversity. Pursuant to Art. 71 in the Constitution, the judge in the case found that the river had the right to exist and therefore the construction of the road had to be carried out differently. Similar arguments have been raised by local communities who successfully opposed fracking projects.

However, despite these successes, an open pit mine in El Condor Mirador was given permission to operate by the Department of Resources in Quito in March 2012. The open pit mine was granted its location in one of the most biodiverse parts of the country, despite an environmental impact assessment predicting that at least four species would become extinct if it went ahead. This strongly contravened Art. 73 of the Constitution which states that “the State will apply precaution and restriction measures in all the activities that can lead to the extinction of species”. Deforestation of mangrove beaches for shrimp farms and oil exploration and drilling in the biodiverse Yasuní National Park have also continued, despite Art. 73. All these cases have been unsuccessfully opposed in Civil Court. This indicates a weakness in enforcement of the Constitution, largely due to a flexible interpretation of the Constitution by the country’s judiciary.


Potential as a Transferable Model

Enforcement and the justiciability of the amendments have been problematic in the Ecuadorian system. The amendments would be more transferable if there was an independent enforcement body with criminal contempt power associated to it.

Furthermore, articles within the amendments conflict in terms of hierarchy, for example Art.71 and Art. 57, which does not fall under the Chapter for Nature in the Constitution but under Chapter 4 ‘Rights of Communities Peoples and Nations’. The former outlines the right of nature to exist while the latter outlines the right of Indigenous People to manage their community. Systems without a hierarchy of rights covering the Rights of Nature granted by the Constitution would require a delicate balancing exercise when considering and evaluating competing rights within their legal frameworks.

The model is textually vague: there is no clear definition of “nature” in the Constitution – bacteria and pests which form part of nature could fall under the same protection as other flora and fauna. The allowance of such a broad interpretation, due to the use of general language within the Constitution, could possibly lead to organisations justifying the destruction of a specific part of nature by quoting the defence of Rights of Nature – of a different part of nature – of superior order.


Critiques

Mary Elizabeth Whittemore (University of Washington School of Law) points out that Rights of Nature amendments are “textually vague”, which means that they do not clearly define the entities which they aim to protect or the scope of said protection. The amendments use the term “la naturaleza” (nature) and “la Pacha Mama” (Mother Earth). However, both terms also include, in their scope, viruses, pests and bacteria, thereby creating an impractical area for the protection of rights that could result in hierarchically unresolvable conflicts. A hypothetical example of this is a case where a farmer’s right to local nutritional food (Chapter 2 of the Constitution) could be squarely opposed to the Rights of Nature, without a clear resolution to demonstrate whose rights have priority. This lack of clarity and the wide breadth of scope within the amendments are currently in the way of an effective litigation of The Rights of Nature.


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