In Ecuador, nature has rights, as do companies or individuals. What does this mean? Looking back at ten years of a Constitution written according to the principles of Good Living.
We start with article 71 of the Ecuadorian Constitution:
Nature or Pacha Mama, where life is reproduced and carried out, has the right to have its existence fully respected and the maintenance and regeneration of its vital cycles, structure, functions and evolutionary processes.
When this formulation was discussed ten years ago in the Andean state, the lawyers saw it with amazement. "They are crazy," mocked many. “A legal entity has rights and obligations. So what are nature's obligations? " On the other hand, a representative of the Confederation of Indigenous Nationalities of Ecuador (CONAIE) hardly heard about the debates on the new Constitution, and asked in surprise: "For you, nature still has no rights?"
No. At that time nature had no rights. Although environmental law existed, as in other countries, nature did not exist as an independent legal entity. That changed in September 2008, when 64 percent of voters approved the Constituent Assembly proposal and affirmed that Yes, nature has to have rights. The State must consider it as a subject, not as an object, that is to say with the same rights that until then were reserved for citizens, companies and other institutions. Ecuador, with this decision, caused a strong earthquake, not only in the region. It was the first State on the planet to enshrine the rights of nature in its Constitution.
It was planned to be just a discussion
The idea of subjecting Western jurisprudence to a broadening of horizons and of granting rights to nature did not come directly from the indigenous peoples of Ecuador, as is generally assumed (see “Good Living, mistrust, failed States”), but from a country by which several Latin American states have been guided for a long time: the United States. Tamaqua County, in the Province of Pennsylvania, in 2006, had already recognized nature as a legal entity (in English). Which was a response to the pollution caused by the accumulation of sewage residues deposited in old abandoned coal mines. And this in a region dominated by Republicans.
"So", highlights Natalia Greene, "the initiative didn't even come from the left." Greene works for the organization CEDENMA (Ecuadorian Coordinator of Organizations for the Defense of Nature and the Environment) and is co-owner of an organic food restaurant on the outskirts of Quito. The political scientist, specialized in Climate Change, advised parliamentarians in the drafting of the new Constitution ten years ago. "We really just wanted to put the issue on the political agenda," recalls Greene, who was working for an NGO at the time. "Nobody expected the Constitution to include rights of nature." But the moment was opportune and there was also the possibility "of democratizing society and taking into account the voice of indigenous peoples."
That convinced the assembly members.
"It would be as if we had maintained slavery, but allowing the slaveholders only three lashes a day instead of ten."
Natalia Greene, Political Scientist, Ecuador
Since then, there have been more than 25 court cases across the country. Proceedings have been carried out for the killing of jaguars and condors - both animals threatened with extinction - for the death of sharks in Galapagos and for illegal mining.
The case for the extraction of gold inWhite River, Azuay, this year. There the Chinese minerEcuagoldmining it began with exploitation, without the population having been consulted before. The inhabitants turned to the judiciary and it agreed with them. The judge ruled that a referendum was absolutely necessary for such projects;Ecuagoldmining it was not authorized to continue digging. This judgment is notable because, for the central government in Quito,White River It is one of the five “strategically important” mining projects.
Less controversial was the first lawsuit on the rights of nature in 2011, when during the widening of a highway in the south of the country, the rubble and excavated material were dumped directly into the Vilcabamba River. Two local residents - originally from the United States - filed a lawsuit against the responsible regional government. Successfully. In its ruling, the competent court wrote that “The damages caused (to nature) are generational damages, which consist of those that, due to their magnitude, affect not only the current generation, but their effects will impact future generations. ”.
Natalia Greene explains that with nature it is like with children. "Both do not have their own voice and therefore depend on the support of adults."
The contradictions of the Constitution
Meanwhile, most of the country's jurists have accepted the new legal situation. "With the new generation of lawyers," Greene says, "nature is already part of the legal understanding." The greatest difficulties, he emphasizes, is the coordination between lawyers, biologists and other experts. Judges, Greene says, lack training and there are still few court cases they can refer to.
In addition, there are lawyers who continue to insist that nature can also be defended through environmental law. Greene objects to this argument and makes a bold comparison: The Environmental Law, says the mother of two, does not prohibit the use of arsenic, but only sets maximum values. "It would be as if we had maintained slavery, but allowing the slaveholders only three lashes a day instead of ten."
Which brings us tocrux of the Ecuadorian Constitution: to be a tool of Western civilization, which has adopted the principles ofGood living of indigenous communities. At the same time, it is obvious and terrifying that indigenous peoples have to ask themselves, even today, if nature has rights in Western civilizations. But precisely because in industrialized places contact with nature has been lost and, therefore, the understanding of its cycles, a corresponding constitutional article could lead to a rethinking. "If you enshrine the rights of nature in the Law", says Natalia Greene convinced "the chip of perception will change."
At the international level, Ecuador has received applause and has found imitators for its constitution. In New Zealand and India there are now rivers classified as legal entities; In Nepal, an initiative has been launched to recognize the rights of nature through a constitutional amendment. And in the United States, after Tamaqua, nearly 40 more communities have included natural rights in their municipal ordinances.
At the world level, Bolivia (2009) is the only State that has followed Ecuador's example so far. But if we go to the facts, Ecuador, as a pioneer country, is still seeking coherence with its own Constitution. That proves the case ofWhite River, where the Ministry of Mines and the Ministry of the Environment presented an appeal to the ruling that stopped mining exploitation (which was rejected). "The state has not given much thought to the question of what the rights of nature really mean," says Natalia Greene. Nor has any effort been made to take nature into account in the country's large construction projects. "Nature should be on the table during all negotiations."
When a few months ago, representatives of the rights of nature from around the world, met at a Symposium in Quito to commemorate the tenth anniversary of the Ecuadorian Constitution, the attending jurists highlighted that Ecuador had achieved a lot since 2008. To appease - After all, the Amazon is still highly sought after for the exploitation of raw materials - international human rights were mentioned, which existed since 1948 but are still not respected in many places. "And really, we should not perceive jurisprudence separately," said one of the exponents, "after all, man and nature go hand in hand."
By Romano Paganini