Rights of Nature in Ecuador
by Andreas Gutmann
"Frogs win court battle": thus went a headline reporting on a court case in Ecuador in 2020. Biologist Andrea Terán Valdez had filed a lawsuit on behalf of two frog species against a mining project that threatened to destroy their habitat. Sounding funny at first, this is exemplary of a development that can hardly be underestimated in terms of significance: nature's rights have become part of everyday court life in Ecuador, meaning that nature can get justice in court.
A new constitution emerges
The Ecuadorian case shows not only that Rights of Nature do function, but also that they require staying power. Even the first step along this path was by no means easy. In 2007, an Asamblea Nacional Constituyente (National Constituent Assembly) was convened in Ecuador with the task of drafting a new constitution. Facing a deep political and economic crisis, this was intended to transform the state and help resolve the numerous unresolved conflicts around the issue of mining.
The Constituent Assembly was extremely diverse. Many of its members came from the indigenous movement or other social movements. The assembly also received a large number of visitors from civil society, who presented their concerns during the sessions.
In the course of the constitutional process, various actors rallied for the idea of giving rights to nature. Indigenous representatives, for example, perceived the concept as an expression of their own relationship with nature. Conservationists hoped this would faciliate taking legal action against environmental pollution. Of course, there were also dissenting voices, warning, for instance, of a restriction of human freedom or claiming that Rights of Nature were simply impossible. In the end, the idea prevailed. In 2008, the new constitution came into force, which in Article 71 granted "Nature or Pacha Mama" various rights, such as the right to respect its existence.
In the first few years, little happened, apart from a few isolated cases on Rights of Nature. This initially hesitant implementation and occasional setbacks led to Ecuador's Rights of Nature being described as largely ineffective.
Despite all the justified criticism of the teething troubles of the Rights of Nature in Ecuador, it should not be forgotten that these represent an enormous challenge for the legal system.
It was a completely new legal instrument that courts did not have any experience with at the time.
Judges, lawyers, administrative officials and even environmental protection associations first had to familiarise themselves with the concept. Such learning processes in jurisprudence take time.
How can we do right by nature?
The courts had to clarify numerous questions in relation to the new Rights of Nature. One important question concerns what exactly constitutes 'nature' as we find it in the Ecuadorian Constitution.
As the Ecuadorian constitution includes all of nature without more precise definition, the courts have to examine what is meant by nature in each individual case: they are therefore constantly faced with the task of investigating and determining exactly what a specific ecosystem whose rights are being asserted looks like.
Only when knowing its structure and functions can they determine how its rights are to be protected.
An example of this is the case of Los Cedros, a cloud forest in north-western Ecuador, where a mining project was to be implemented. In the proceedings, the Constitutional Court examined and described the cloud forest in question in detail, including animals and plants, water cycles and climatic conditions, thus coming to the conclusion of it being a fragile ecosystem and under threat due to the mining project.
The case of the Río Monjas involved a completely different ecosystem. This river flows through the capital Quito and is heavily polluted. However, according to the Constitutional Court, the fact that it is located in the man-made environment of the city does not mean that the Río Monjas loses its status as nature. Instead, the court emphasized that the Monjas River is connected to other ecosystems. If it is polluted in Quito, this pollution would therefore be passed on.
Nature or Pacha Mama
The fact that the Ecuadorian Rights of Nature incorporate various notions of the environment is already clear from the central provision of the constitution in Article 71:
"Nature or Pacha Mama has the right" can be read here.
Pacha Mama is a term from the indigenous language Kichwa, which is spoken by various indigenous communities in the Andes and parts of the Amazon. The world views of many of the indigenous peoples who use the term pacha mama do not know any separation between humans and nature. Pacha is translated as cosmos, whereby this cosmos includes humans and the entire more-than-human environment. The diverse components this cosmos entails - animals, humans, plants, stones, etc. - do not exist in isolation. Rather, everything is perceived as interconnected. Diverse relationships between humans and their more-than-human environment exist, thus emphasising people's responsibility towards their environment. However, this also implies that damage to nature means damage to humans.
As the entire cosmos is a closely connected network, any damage to individual components inevitably affects others.
The Ecuadorian Rights of Nature therefore combine various influences. In addition to the aforementioned indigenous notions of a pacha mama, they also draw on Western scientific perspectives. By opening up the law to indigenous thinking, they can be seen as a step towards decolonizing the law.
Who speaks for nature?
Another question pertains to who can speak for nature and represent it in court.
According to Article 71 (2) of the Ecuadorian Constitution, any person can invoke Rights of Nature.
Other countries take a different approach. In Colombia, there are numerous court rulings that grant rights to individual elements of nature. The case of the Atrato River, which was declared a legal entity by the Colombian Constitutional Court in 2018, is particularly well-known. Here, the court appointed a commission, the so-called 'Guardians of the Atrato', who speak jointly for the river. The advantage of such collective representation is that it might prevent individuals from selling their interests as those of nature.
Ecuadorian courts often make an effort to give voice to as many people as possible. This is particularly evident in the case of the Los Cedros cloud forest. During a long hearing, the Constitutional Court listened to the opinions of a wide range of stakeholders. Not only local residents or biologists had their say, but also representatives of the mining project. This is based on the idea that there is no objectively correct view of nature. Different people perceive an ecosystem in different ways and participate in its processes. By listening to as many voices as possible, the Constitutional Court democratises the representation of nature. It also shows that the constitutional recognition of nature's rights can only be a first step that must be continued by many more.
Even after these rights being recognised, people need to stand up for them, both inside and outside the courtroom.
This text is based on an excerpt from: Jenny García Ruales/Andreas Gutmann, Rechte der Natur in Lateinamerika, in: Matthias Kramm (Hrsg.), Rechte für Flüsse, Berge und Wälder: Eine neue Perspektive für den Naturschutz?, München, Oekom, 2023, S. 28-48.
Translated by Imke Horstmannshoff
Links & Literature (German)
- Eva Gertz, Rechte in Verhandlung: Die Rechte der Natur in der ecuadorianischen Verfassung und ihr postkoloniales Potenzial, malmoe, 31. August 2023, abrufbar unter: www.malmoe.org/2023/08/31/rechte-in-verhandlung/
- Alberto Acosta, Die Rechte der Natur - Für eine zivilisatorische Wende, in: Constantin von Barloewen, Manuel Rivera und Klaus Töpfer (Hrsg.), Nachhaltige Entwicklung: in einer pluralen Moderne. Lateinamerikanische Perspektiven, Berlin, Matthes & Seitz 2014, S. 286-317
- Andreas Gutmann, Hybride Rechtssubjektivität: Die Rechte der „Natur oder Pacha Mama“ in der ecuadorianischen Verfassung von 2008, Baden-Baden, Nomos, 2021
- Elisabeth Weydt, Die Natur hat Recht: Wenn Tiere, Wälder und Flüsse vor Gericht ziehen - für ein radikales Umdenken im Miteinander von Mensch und Natur, München, Knesebeck, 2023