Roman Șarov

1. Introduction

The prevalence of binding legal acts granting rights to nature have increased in recent years at local, state and international level. This tendency has been considerably encouraged by the introduction of Ecuador’s new constitution in 2008. The granting of rights to nature in Ecuador represents a fundamental rethink of the purpose of lawmaking, since almost all legal systems have been conceived throughout history solely for the benefit of humankind. Traditional laws are largely based on the protection of human rights, with the advantages of protecting and preserving a healthy environment and the resources associated with it being eclipsed by the constitution.[1] The relevance of the topic is particularly evident in the ever-increasing role of nature on a global scale. The granting of nature’s rights in Ecuador’s new constitution sets a precedent in this respect, as for the first time concrete legal and political mechanisms for combating climate change could be identified and promulgated. With regard to the case study of Ecuador, the rights of nature are also seen as a potential mechanism for promoting sustainable development and helping overcome its economic dependence on the oil industry. Furthermore, a central aspect of the introduced Ecuadorian law of nature represents a shift from the use of technical terminology in environmental law to the Pachamama (Mother Nature) rhetoric. The use of this rhetoric has changed the public perception of the relationship between humans and nature, while at the same time adding value to the global debate on how to better protect the law of nature in the 21st century.[2]

The objective of the following analysis is to explore how granting constitutional rights to nature in the 2008 Ecuadorian Constitution has advanced the country’s environmental agenda. The theoretical framework will primarily focus on the concepts of Kyle Pietari. In addition, will the study examine empirical analyses that explore the results of nature’s right to the environmental agenda. The theoretical basis will research the influence of Ecuador’s civil society and government on the progress of the environmental agenda since 2008. With this background, the following question crystallizes: to what extent has the constitutionalization of the rights of nature rights advanced the environmental agenda in Ecuador since 2008.

2. The law of nature in the new constitution of Ecuador. Insights and concepts

The granting of rights to nature is a new approach that presents the natural, non-human world as worthy of protection. With the new constitution of Ecuador in 2008, a platform was created that rethinks the relationship to nature by conceiving it for the first time as a legal entity. The anchoring of the constitutional right of nature, as well as all further progress on the environmental agenda, can be attributed to a continuous growth of the environmental movement in Ecuador. The new Ecuadorian constitution contains a number of articles that directly or indirectly refer to the rights of nature.[3] Among other things, these articles state that the population should live in a “healthy and ecologically balanced environment” and “that the protection and preservation of the environment is recognized as a public interest” (Art 14).[4]

In this context, should the Latin American concept of Pachamama be further elaborated. According to the Andean cosmology, all worlds are alive: humans, plants, animals, deities and the earth itself. They live together and complement each other’s energies through reciprocity, in harmony and mutual respect and not through the dominance of one over the other, Pachamama itself is thus attributed a legal status.[5] Furthermore, the new Constitution of Ecuador describes that “any person, community, people or nationality may call upon the competent public authority to implement the rights of nature” and that “the State may require natural and legal persons and collectives to protect nature and promote respect for all elements of ecosystems” (Art. 72).[6] The nation state is thus constitutionally compelled to respect the law of nature and to rehabilitate the corresponding damaged ecosystems. The Ecuadorian Constitution is a case in point on how the recognition of nature is practically manifested in the legal sphere. In view of the global constitutional developments, this remains a groundbreaking constitutional construction and a historical and trend-setting step towards the recognition of nature as a legal subject and legal entity.[7]

The theoretical framework of the analysis examines exclusively the concepts of Kyle Pietari, his views are particularly relevant associated with the research question. In his work, the author examines the implementation and effects of the rights of nature on Ecuador’s environmental agenda. In his study, Pietari assumes that the constitutional rights of nature are an essential factor for the advancement of the environmental agenda in Ecuador. The anchoring of nature’s rights and the progression of the environmental agenda since 2008 can be attributed to a continuous growth of the general environmental movement in Ecuador. The constitutional rights of nature are to be considered as a relevant factor in this increase in awareness, as they imposed a legal obligation on the Ecuadorian government to protect and promote environmental awareness.[8] However, does Pietari point to a selective implementation of nature’s rights within the legal framework in Ecuador. On the one hand, in view of the influential politicization of the issue, and on the other hand, in view of the lack of expertise of the judges in the legal implementation of the new constitution. In his study, Pietari further argues that political messaging has progressively had a significant impact on the shaping of public dialogue, which shaped the rhetoric in support of nature’s rights and the perception of the environmental agenda since 2008, and consequently continues to advance the environmental agenda in Ecuador. Illustrative for his thesis are the indigenous communities of Ecuador, which have made the promotion of a progressive environmental agenda a political priority, particularly for cultural and religious motives.[9]

In view of Pietari’s thesis and concepts, should be highlighted that the legalization of the law of nature in Ecuador has provided more social impulses than legal measures for the development of the environmental agenda. Pietari emphasizes that the establishment of the rights of nature has increased the development of the environmental agenda, the use of mother-nature rhetoric and public awareness of environmental protection in Ecuador. This represents a starting point for accelerating the environmental agenda and developing a collective consciousness, both in Ecuador and on a global level, and gives the international community the opportunity to reinterpret the union of society, law and the environment in a new way.

3. The right of nature as the driving force behind Ecuador’s environmental agenda

The environmental agenda in Ecuador has been more pronounced over the past decade than ever before, nonetheless are practical effects of the introduction of the rights of nature on the environmental agenda difficult to identify and research. One example is the environmental degradation caused by industrial activities, which is particularly evident in the jungle areas of Ecuador, where most of the indigenous communities are located. With regard to the research question, should be noted that the constitutional rights of nature would only prove valuable in accelerating the environmental agenda in Ecuador if they are enforceable in court hearings. The question hereby is whether the national courts are sufficiently committed to ensuring that the rights of nature are implemented fairly and impartially. For example, Ecuador could adapt an extended actio popularis[10] principle. In doing so, any individual can bring an action in defense of the rights of nature as long as: 1) he can sufficiently prove an actual or threatened violation of the natural object and 2) prove that the potential claimant also has a “sufficient interest” in the outcome.[11]

Furthermore, if plants and animals are granted rights, it will be necessary to develop new representation procedures related to the responsibility and protection of these rights. The idea of granting nature’s rights has the potential to bring about real change and expand our moral awareness. Ecological awareness is growing worldwide and people are urging governments to act on this as soon as possible. Nature’s rights are a key factor in raising awareness, as they commit the Ecuadorian government to systematically promote the environmental agenda. The emerging culture and constitutional statute thus have the potential to become a stronger force for protecting the global rights of nature and establish themselves as a protector against the destruction of modern society by recognizing and expressing human responsibility towards the environment. So far, only minor parts of the constitutional rights of nature have been applied into practice and the challenge remains in creating a larger framework for the implementation on a global scale.

4. The role of the civil society in promoting the environmental agenda in Ecuador

In view of the adoption of the constitutional law of nature in 2008, indigenous movements, environmental NGOs and civil society actors were optimistic that Ecuador would distance itself from the neo-extractivist based development that relies on the intensified extraction, production and export of unprocessed raw materials.[12] These hopes were dashed when the Ecuadorian government passed the mining law in 2009 and quickly sought to expand industrial mining. In an effort to protect their achievements, civil society activists invoked the constitutional provisions on the rights of nature to challenge the government’s extractivist development agenda by suing for protective measures.[13] The practical achievement of such measures and civil society pressure to advance the environmental agenda in Ecuador since 2008 can be interpreted in mixed ways. A limited influence of the civil society in the enforcement of the rights of nature can be traced back to two factors. Firstly, the controversial relationship between civil society actors and the government of Ecuador suggests that grievances are influentially politicized. Since 2008 have court rulings primarily been focused on the politicized environment rather than on the actual implementation of the constitutional law of nature. Second, most lawyers and judges lack the necessary expertise and knowledge in the area of a constitutional implementation of the law of nature. As a result, have judges in civil society lawsuits generally ruled that economic development activities are protected by individual rights (e.g. property rights, right to work) and thus take precedence over the rights of nature. Thus, it can be concluded that civil society cases reveal that activists promoting norms on nature rights are most successful when the cases are not politicized at the national level. Similarly, a lack of legal expertise continues to be an impediment, educating and training judges on unbiased lawmaking would lead to a gradual normative development and could tackle this issue.

5. Ecuadorian government. Implementation of the Law of Nature

The jurisprudence regarding the law of nature in Ecuador is largely developed and controlled by governmental measures. Six of the thirteen initiatives relating to the law of nature were initiated by the government itself, all of which were promulgated. These are largely motivated by instrumental political intentions, which were led by former President Correa. Independently of this, these measures strengthen the law of nature in Ecuador by setting precedents and raising the awareness of judges. Another example is the Ministry of the Environment, which routinely requests the law of nature to justify administrative measures that are part of the institutional mandate for environmental protection.[14] Above that, are the rights of nature not superior to any other laws, since the Ecuadorian constitution does not introduce a hierarchy of rights. Therefore, can the rights of nature as the source where “life reproduces and takes place” not be considered superior to other rights, since it functions as the basic constitutional norm around which the entire constitution and all other rights revolve. Moreover, because the rights of nature are part of the supreme constitution, they trump “international treaties and conventions; organic laws; regular laws and the other acts and decisions of public authorities”.[15] To examine the practicability of the constitutional rights of nature should be repeatedly considered that Ecuador is the first country to legalize these rights at this extent. Thus, the establishment of constitutional rights of nature, as well as any further progress on the environmental agenda since 2008 can be linked to a growth of the environmental movement in Ecuador. Furthermore, should be emphasized that in this particular case are various obstacles persistent that prevent the successful implementation of nature rights on a political level:[16]

– Economic factors: the extraction-based economy

– Historical factors: frequent constitutional reforms and presidential changes

– Various socio-political factors

These obstacles indicate, among other things, that the judiciary must successfully master the politicized tension between civil society actors and the government of Ecuador and apply the specific provisions of the constitution. Future challenges for the courts will be to harmonize the environmental provisions in the constitution.

Lastly, it is essential to take greater account of the rights of nature by means of a jurisprudential paradigm shift that conveys the meaning and autonomous basis of the rights of nature, and to recognize the inseparable links between humans and nature and to bring them together in a constitutional text.[17] Ecuador’s constitution describes in a comprehensive manner and in a predominantly anthropocentric presentation several “main tasks” of the government, including the promotion of sustainable development and the equitable redistribution of resources and wealth. The safeguarding of the buen vivir is characterized by both the exploitation of resources and the protection of the country’s natural and cultural assets. These “main tasks” are inevitably linked to the attainment of several “strategic goals” of the state.[18] Ecuador’s new constitution reaffirms the power of the president at the expense of the legislative and opposition, and gives the executive branch the ability to control urgent laws in economic matters in addition to other budgetary functions. The challenge for the new Ecuadorian constitutional system and the promotion of the environmental agenda is to enforce the complex constitution with reference to the rights of nature. Nature in itself becomes the owner of rights and the responsible subjects in this moral and legal relationship are the citizens who have the duty to preserve nature in such a way that it survives, conserves and regenerates itself.

6. Summary and outlook

In the context of the present analysis, can be summarized that the practical implementation of the rights of nature in Ecuador are far from optimal. The theoretical approach of the thesis focused on Pietari’s analysis, the realization of a progressive environmental agenda in Ecuador has thus far fallen short of expectations, as the country has had to give in to the massive foreign debts and to the dependence on the extraction of natural resources. In addition, factors such as institutionalized corruption and the lack of individual independence of the judiciary are vital factors hindering a further development, as they are significantly impeding the progress of the environmental agenda. Contrary to its shortcomings and susceptibility to persistent neoliberal counterforces does the Ecuadorian constitution remain a revolutionary step towards a rethinking of the central dominance of human beings over nature.[19] The present study had as its core objective to examine the extent to which the granting of rights to nature has advanced the environmental agenda in Ecuador, placing civil society and the government of Ecuador at the forefront of the analysis. Critically should be highlighted that other factors also play a crucial role in answering the research question (e.g. the rights of nature in Ecuador’s legal practice or the role of Mother Nature rhetoric). One question that could not be clarified in the frame of this study and still needs further empirical investigation is the implementation of the rights of nature on a global level.

The constitutional rights of nature protect the Ecuadorian environmental agenda, but its practicality is no better off than in other states. Whether they are therefore useful in leading the rest of the world to more efficient systems for implementing nature’s rights remains a question that remains unanswered. A combination of political, social and economic challenges stand in the way of the implementation of rights of nature. In order to realize a long-term successful environmental agenda, it is essential that the paradigm shift take place equally in all areas of the society. In the course of the study, I have noticed the many components that prevent the environmental agenda from progressing in Ecuador. It is therefore crucial that both civil society actors and the government of Ecuador work closely together to advance the environmental agenda if we really want to tackle the fundamental challenges of climate change, both in Ecuador and on a global level.

Bibliography

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[1] Pietari, Kyle. “Ecuador’s Constitutional Rights of Nature: Implementation, Impacts, and Lessons Learned.” (2016), pp.38
[2] Ibid. pp.50
[3] Bratspies, Rebecca. “Do We Need a Human Right to a Healthy Environment?.” Santa Clara Journal of International Law 13, no. 1, (2015), pp. 31-69.
[4] REPUBLICA DEL ECUADOR, CONSTITUCIONES DE 2008 [REPUBLIC OF ECUADOR CONSTITUTION OF 2008], Oct. 20, 2008 Political Database of the Americas. Online available at: http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html [hereinafter CONST. OF ECUADOR].
[5] Vialova, Silvana. “Pachamama und Buen Vivir. Unterschiede des verfassungsmäßig bestimmten Umweltschutzes in Ecuador und Deutschland” Grin Verlag (2016), pp. 8.
[6] Whittemore, Mary. “The problem of enforcing nature’s rights under Ecuador’s constitution: why the 2008 environmental amendments have no bite.” Pacific Rim Law & Policy Journal 20, no. 3, (2011), pp. 659-91.
[7]  Kotze, Louis J.; Calzadilla, Paola Villavicencio. “Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador.” Transnational Environmental Law 6, no. 3, (2017), pp. 401- 433.
[8] Pietari, Kyle. “Ecuador’s Constitutional Rights of Nature: Implementation, Impacts, and Lessons Learned.” (2016), pp.87.
[9] Ibid., pp. 85-95.
[10] an actio popularis (popular action) is an action that can be brought by someone who is not violated in his own rights by the offending act, but acts, as it were, for others or the general public, but without their mandate.
[11] Laitos, Jan. “Rules of law for use and nonuse of nature. In A Rule of Law for Nature: New Dimensions and Ideas in Environmental Law.” Voigt, C., Ed.; Cambridge University Press: Cambridge, UK, (2013), pp. 209-221.
[12] Kauffmann, Craig; Martin Pamela. “Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian lawsuits Succeed and Others Fail.” World Development Vol. 92, (2017), pp.130–142.
[13] Ibid.., pp.135
[14] Online Appendix for Craig Kauffman and Pam Martin. “Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian Lawsuits Succeed and Others Fail.” World Development, Forthcoming.
[15]  Kotze, Louis J.; Calzadilla, Paola Villavicencio. “Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador.” Transnational Environmental Law 6, no. 3, (2017), pp.418.
[16]  Rühs, Nathalie; Aled, Jones. “The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature.” Sustainability 8, no. 2, (2016), pp.174.
[17]  Kotze, Louis J.; Calzadilla, Paola Villavicencio. “Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador.” Transnational Environmental Law 6, no. 3, (2017), pp.429.
[18] Ibid., pp.418.
[19] Pietari, Kyle. “Ecuador’s Constitutional Rights of Nature: Implementation, Impacts, and Lessons Learned.” (2016), pp.93