June 11th 2024 | Sean Oliver
Edited by Helina Franklin
Introduction
In 2008, Ecuador became the first country to codify rights of nature (RoN) in its Constitution. Chapter 7 of the Constitution is devoted to this subject, holding that “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes” (Constitución Política de la República del Ecuador 2008). Chapter 7 confers a duty to the government, corporations, and the public to respect nature’s rights, creating a new ecocentric component in national law, which has traditionally been an unequivocally anthropocentric part of modern society. This revolutionary provision is mostly due to the knowledge and work of Ecuador’s indigenous communities, who have embraced the agency, power, and rights of nature within their worldview for hundreds of years. They played a large role in the Constitution’s extensive participatory drafting process, using over 3,000 proposals from members of civil society (Kauffman and Martin 2018). In many ways, Chapter 7 is a reinterpretation of indigenous beliefs in a national government framework. However, given that the Constitution itself does not define each particular right that nature is entitled to in real-world contexts, judges have facilitated a lawmaking process that changes the scope of the law with every ruling. The realization of RoN in Ecuadorian law is an ongoing process, but one that has introduced a set of avenues and challenges regarding sustainability, environmental stewardship, and environmental justice. They may suggest a budding transformative force of RoN that may be realized in both Ecuadorian and contemporary Western legal systems.
Building-Block Cases: 2011-2020
Before examining the law’s implications, it is important to understand how it presents itself in Ecuadorian law through various cases. The first legal case where RoN were directly involved occurred in 2011. Road construction near the Vilcabamba River was causing destruction to the riverbank, disrupting the river flow and increasing flood risk. Ecuador’s Provincial Court of Loja ruled that the river’s rights were violated and issued an injunction. Their reasoning lied in the river’s fundamental freedom to exist and each person’s obligation of protection (Greene 2011). An interesting development in this case concerned the two plaintiffs, who both owned land near the river and therefore had standing for their own property damages, but instead brought the suit only as representatives of the Vilcabamba itself. This suggests a change in how civil cases are handled, with litigants being able to sue for damages to nature rather than their own person or property. Another significant case in 2015 empowered the national government to act on behalf of nature. After a provincial court ruled that the Ministry of Environment illegally removed shrimping companies from a mangrove reserve, the Ministry appealed to the Constitutional Court, the highest court in Ecuador. The Ministry argued that previous rulings did not account for rights of nature, and the Constitutional Court decided that nature’s due process was violated and discarded the previous ruling (Eco Jurisprudence Monitor 2015). The court’s final decision showcased the growth of nature’s political agency by establishing the government as a proxy for nature’s interests. However, as influential as the government may be, indigenous groups have had the most influence and the highest stakes regarding the implementation of RoN. In 2018, members of the Cofán indigenous people took legal action against a mining project that was polluting the Aguarico River, contesting that their rights and nature’s rights were violated. The court ordered all mining activity to stop, signaling a win for the Cofán community and the Aguarico (Cardona 2019). This case is just one example of the crucial indigenous activism that Ecuador relies on to continue the pursuit of environmental justice, for both humans and nature.
Recent Developments: 2021-Present
The scope of Ecuador’s RoN has expanded greatly within the past two years, with more agents and actors becoming involved, integral parts of the legal system. One example of this growth is seen in the Los Cedros mining decision in 2021. The case dates to 2017, when the Ministry of Environment granted a mining permit to Ecuadorian company Enami and its Canadian partner Cornerstone Capital Resources in the protected forest of Los Cedros. A nearby municipality filed a suit against the companies, citing that the rights of the forest were violated. The Constitutional Court heavily ruled in favor of the plaintiff, ordering the Environmental Ministry to revoke the mining permits (Surma 2021). This case is significant for two reasons. First, it demonstrates the ability of civil society and coalitions to contest the government’s environmental policy. The ruling affirms that RoN empower the citizenry to litigate on behalf of nature if government decisions break constitutional norms. Second, the case marks a notable application of the “precautionary principle”, which holds that a lack of scientific evidence for environmental impact must lead to a cessation of the action in question, in order to prevent unforeseen damage (Surma 2021). The precautionary principle is another facet of law that supplements RoN by juridically guaranteeing its protection if scientific data is scarce. Another recent case took Ecuadorian RoN a step further in 2022 when the Constitutional Court extended legal protection to nonhuman animals. The case began when authorities forcibly removed Estrellita, a pet wooly monkey, from her home of 18 years, as ‘wild animals’ are prohibited from households. Estrellita was relocated to a zoo, but she died shortly afterwards. Her owner filed a lawsuit, and the Court ruled that Estrellita’s right to habeas corpus was infringed upon (Harvard Animal Law and Policy Program 2022). Estrellita’s case represents yet another breakthrough in Ecuadorian law, identifying wild animals as protected agents similar to rivers, forests, or in some respects, humans. It reflects the ever-growing musculature of persons that RoN include. And yet, this widening scope expands to not only include more protected actors, but more political actors as well. In an August 2023 referendum, Ecuadorians voted to stop mining activity in the protected Yasuni National Park (Collyns 2023). This marks a development in the law-making ability of civil society; citizens can act on RoN in an electoral setting as well as a legal-juridical one.
However, as the scope of who participates in the law increases, the question of what RoN exactly are becomes more significant. Kauffman and Martin provide an answer in what they call “norm entrepreneurship”, or the role of judges in creating legal principles (Kauffman and Martin 2023). With each presented case, judges can articulate what exactly the Constitution means for RoN, as well as formulate new principles that become precedent. The exact definition of RoN is built upon over time through litigation and rulings. As political participation grows and referendums become more common, it seems inevitable that civil society will involve norm entrepreneurship as well.
How Does Ecuador’s Rights of Nature Influence Environmental Law?
The traditional legal system, as understood in the Western sense, is built upon liberal principles of individualism, human determination, and property, among other values. A constitutional integration of religious indigenous thought and codification of RoN do not seem to fit within a legal landscape of Western-based modernity. However, if RoN can teach a dominant legal framework, there are several lessons to be learned. First, it reflects a more nuanced view on human relationship with the environment. RoN highlight the importance of granting protections to something whose fate is inextricably tied to that of humans. Human beings are dependent on nature, whether it be for resources, spirituality, cultural practices, or aesthetics. If nature declines, human wellbeing will as well. Thus, although RoN focus on the environment, it implicitly protects the beneficiaries such as human beings. Some cases brought before Ecuadorian courts began with plaintiffs arguing for their own rights but resulted in decisions by judges who cited RoN as primary reasons for their rulings (Pietari 2016). These rulings implicate the tied fates of humans and nature, and they could signal a profound awareness of the importance of the human/nature relationship. Additionally, RoN may shift a legal interpretation of nature from a collection of resources with utilitarian value to a body with intrinsic value. This can be seen in the legal function of standing during civil suits. Traditionally, a plaintiff must have standing by incurring damages to their person or property. However, Ecuadorian law allows plaintiffs to file suits on behalf of nature without any damages done directly to them (Ogden 2018). Nature is not treated as property either, but as a protected agent that requires a legal representative. In this case, the principle of standing does not depend on material cost but harm to nature’s intrinsic worth. Finally, Ecuadorian RoN explore a ‘peopling’ of nature; it transforms nature into a legal actor that disrupts a traditionally anthropocentric form of law. While this function is important to allow for litigation on behalf of nature, it does run the risk of anthropomorphization. Characterizing nature like humans, even in a purely legal context, may fundamentally limit the capacity to understand it. Defining nature through a human framework like law means that nature’s value is tied to the value of the institution itself. Just as people receive unjust treatment from the law, nature may experience this inequality as well. Subjects like environmental justice must explore whether nature is still regarded with high value both within the legal system and outside of it.
How Does Ecuador’s Rights of Nature Influence Environmental Justice?
Chapter 7 of Ecuador’s constitution would not have been possible without indigenous knowledge and advocacy. Although the Constitution was the first of its kind to acknowledge intrinsic rights of nature, the ideas are nothing new. Pacha Mama has been an important part of Andean culture for centuries, and thus native people have developed unique ways of thinking about and interacting with nature, acknowledging a reciprocity that Western thought does not entertain. This combination of environmental wisdom and practice is what Berkes refers to as “traditional ecological knowledge” (Berkes 1999). Traditional ecological knowledge, in the Ecuadorian legal context, refers to the wisdom of nature as fundamental agents that merit protection and the practice of respecting nature by granting those protections. However, much of the environmental destruction that has been litigated has disproportionately affected indigenous communities and exacerbated environmental injustice (Broner and Ragozzino 2022). Thus, indigenous people are too often caught in the unfortunate situation of having to supply their firsthand experience to educate policy such as constitutional law and subsequently fight for their own rights. Ecuador’s RoN can be a powerful tool in aiding this fight for justice, since it grants legal protection to the natural resources that native communities rely on (Guzmán 2019). As seen in the 2018 Aguarico River case, laws that protect RoN can help marginalized communities achieve environmental justice as well. To this claim, Sternäng introduces a counterpoint, arguing that indigenous communities could potentially be “protected out” of vital natural resources if RoN hold that they are not consumed or disturbed at all (Sternäng 2018). For example, if a native population relies on a river for fish, it would be catastrophic if, in the name of nature’s rights, all fishing is banned in that river. This argument posits that RoN and human rights may be at odds with each other in certain circumstances. While this concern must be closely monitored in policy, a provision in Chapter 7 of the Constitution states that “[p]ersons, 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” (Constitución Política de la República del Ecuador 2008). Thus, although nature still holds rights, all humans have the right to live from what the environment provides.
Conclusion
There is still much work to be done to make Ecuador’s RoN truly transformative. They must exist in all parts of law, including executive and legislative policy, rather than just judicial and civil society measures. Also, given that traditional ecological knowledge was the exigency to the RoN, indigenous communities should be called to the forefront of judicial decisions regarding its application. While judges currently have the most power in creating new legal principles, it would make sense to involve those whose knowledge fostered the existence of the laws in the first place. RoN in Ecuador continues to evolve, incorporating more protected agents and more participants in the legal process, so there is reason to hope that the role of indigenous people will continue to grow as well. The RoN have the potential to transform even the rigid paradigms of Western civil law, which are centered around humans and property, by redefining the value of nature. They can also allow people dependent on natural resources, such as indigenous Ecuadorians, to advocate for their own human rights. Yet, their most aspirational quality may be their endeavor to redefine what environmental justice is: the equal protection of human well-being and nature’s well-being, with an understanding that both are fundamentally inseparable.
Sources:
Berkes, Fikret. 1999. Sacred Ecology, 2nd ed. Taylor and Francis.
Broner, Tamara Taraciuk, and Martina Rapido Ragozzino. 2022. Ecuador’s Recurrent Cycle of Violence over Indigenous Rights. August 13. https://www.hrw.org/news/2022/08/13/ecuadors-recurrent-cycle-violence-over-indigenous-rights.
Cardona, Antonio José Paz. 2019. Ecuador’s indigenous Cofán hail court-ordered end to mining on their land. February 11. https://news.mongabay.com/2019/02/ecuadors-indigenous-cofan-hail-court-ordered-end-to-mining-on-their-land/.
Collyns, Dan. 2023. Ecuadorians vote to halt oil drilling in biodiverse Amazonian national park. August 21. https://www.theguardian.com/world/2023/aug/21/ecuador-votes-to-halt-oil-drilling-in-amazonian-biodiversity-hotspot.
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JHULR 
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