With the adoption of a new constitution in 2008 under president Rafael Correa, Ecuador became the first country in the world to enshrine a set of codified Rights of Nature and to inform a more clarified content to those rights. Articles 10 and Chapter 7, Articles 71–74 of the Ecuadorian Constitution recognize the inalienable rights of ecosystems to exist and flourish, give people the authority to petition on the behalf of nature, and requires the government to remedy violations of these rights.
Sumac kawsay, in Quechua, meaning "good living", rooted in the cosmovisión (or worldview) of the Quechua peoples of the Andes, describes a way of life that is community-centric, ecologically-balanced and culturally-sensitive. The concept is related to tradition of legal and political scholarship advocating legal standing for the natural environment.Stone CD, Should Trees Have Standing? Toward Legal Rights for Natural Objects. Southern California Law Review 1972;45:450; W Kaufmann, Los Altos, 1974 p 8 The rights approach is a break away from traditional environmental regulatory systems, which regard nature as property.
Ecuador's Rights of Nature embodies the indigenous sumak kawsay principles, giving Pachamama constitutional rights to protect and restore its environment.
History and context
President Rafael Correa entered into office in January 2007 with the help of La Revolución Ciudadana (The Citizens' Revolution) promising a new anti-neoliberalist Ecuador. A country that would unify and harmonize the broken relationships between the state, the economy, society, and its vital resources. Being the eighth president in 10 years, Correa called for a Constitutional Assembly to create a new constitution for Ecuador.
Ecuador relies heavily on the income gained from exploiting its natural resources. The country's largest export, crude petroleum, represents 29% of Ecuador's GDP, coming in with a total value of $5.63 billion. This has caused the country to suffer from vast deforestation in the Amazon, contaminated water and widespread illness.
Ecuador is also home to at least eight tribes of indigenous peoples, most of which reside in the Amazon, that have suffered from the negative environmental consequences of the extraction of oil. After several years of worsening economic and environmental conditions, uprisings from various indigenous communities, who found themselves receiving less support from the state, while simultaneously their land was being increasingly encroached upon by oil companies, brought attention to their concerns. After historically being excluded from the political process, indigenous groups, especially concerned about the worsening environmental devastation of the extraction business and global climate change, started social movements aimed at creating a new approach to development that would protect the environment and harmonize its relationship with people. CONAIE (National Confederation of Indigenous Nationalities of Ecuador), the largest federation of indigenous movements focused on social justice began lobbying for a new constitution that incorporated recognition of the nation's indigenous groups, their language, culture, history, and land rights, and inherently their concepts of sumak kawsay and Pachamama (English: "Mother Nature").Becker, Marc. 2011 Correa, Indigenous Movements, and the Writing of a New Constitution in Ecuador. Latin American Perspectives 38(1):47-62.
The economy, based on the exportation of the country's raw materials, mainly oil, was also wreaking havoc on the nation's environment, an area with valuable biological and cultural diversity.Arsel, Murat 2012. Between 'Marx and Markets'? The State, The 'Left Turn' And Nature In Ecuador. Tijdschrift Voor Economische En Sociale Geografie (Journal of Economic & Social Geography) 103(2):150-163. The global economic crisis of 2008 revealed the vulnerabilities of an extractive economy, and led to a period of political turmoil in the country that made obvious the need for a new more inclusive government that embodied a post-oil, post-neoliberal development paradigm.Acosta, Alberto, Eduardo Gudynas, Esperanza Martínez, and Joseph H. Vogel 2009. Leaving the Oil in the Ground: A Political, Economic, and Ecological Initiative in the Ecuadorian Amazon. Americas Program Policy Report. In late 2006, the election of leftist Rafael Correa, who ran on an anti-neoliberal platform, showed the emergence of a new political era for Ecuador.
Development Sumak kawsay / Buen vivir
Buen vivir ("good living") emerged as a response to the traditional strategies for development and their negative environmental, social, or economic effects. Sumak kawsay, meaning a full life and signifies living in harmony with other people and nature. Buen Vivir has gained new popularity, spreading throughout parts of South America and evolving as a multicultural concept. The constitution outlines Buen Vivir as a set of rights, one of which is the rights of nature.Gudynas, Eduardo. 2011. Buen Vivir: Today's Tomorrow Development 54(4):441-447. In line with the assertion of these rights, Buen Vivir changes the relationship between nature and humans to a more bio-pluralistic view, eliminating the separation between nature and society.2009 National Plan for Good Living. SENPLADES. Electronic document, accessed May, 2012.
In Andean communities in Latin America development is expressed through the notion of sumak kawsay, the Quechua word for "buen vivir", has been proposed as an alternative conception of development and has been incorporated into the constitutions of Ecuador. It connotes a harmonious collective development that conceives of the individual within the context of the social and cultural communities and his or her natural environment. Rooted in the indigenous belief system of the Quechua, the concept incorporates western critiques of dominant development models to offer an alternative paradigm based on harmony between human beings including the natural environment.
The idea The rights of nature are not a new concept. Christopher Stone is widely credited with creating its first written work. In his famous book, "Should Trees Have Standing?", Stone presented the case for conferring legal personality and rights on the environment. As Stone explained, the natural object would “have a legally recognized worth and dignity in its own right, and not merely to serve as a means to benefit ‘us’”. He also pointed out that just like "streams and forests" do not have the power to speak for themselves, neither do corporations, or states, infants, municipalities and universities. "Lawyers speak for them, as they customarily do for the ordinary citizen with legal problems."
Environmental activist and President of the Constitutional Assembly, Alberto Acosta published Nature as a Subject of Rights that first brought attention to the idea to the public and the government. Acosta proclaimed the rights of nature as a concept of historical progressivism. He compares it to when women were not thought of as subjects until they in fact became subjects of rights - so nature does not seem palpable in having rights-status until the concept is brought up and realized. The subject of rights are altogether inconstruable unless the concept is put into perspective and does in fact become a subject that is arguable, agreeable, or simply just talk-able.
Drafting President Rafael Correa included calling for a Constitutional Assembly in his 2006 campaign. On April 15, 2007, over 80% of Ecuadorians voted in favor of calling a new assembly, thanks in large part to the support of indigenous communities. Indigenous groups had been pressuring for a new, more inclusive constitution for years, and were therefore actively involved in the drafting process. Alberto Acosta, the elected Assembly President, pledged to make the assembly more inclusive and incorporate the concerns of the indigenous into the constitution. In the end, a few indigenous representatives were elected to the assembly. To create a constitution based on the principles of Buen Vivir, the Constitutional Assembly, with the advice of the Pachamama Alliance, enlisted the help of the Community Environmental Legal Defense Fund (CELDF) to draft language for the new provisions of the constitution detailing the Rights of Nature. Specifically the US lawyers Mari Margil (associate director) and Thomas Linzey (executive director) were asked to use their experience to help the Ecuadorean environmental groups draft the amendments. Indigenous groups also played a role in the drafting process. Fundación Pachamama, in conjunction with leaders in CONAIE, met with members of the assembly to present their ideas for the constitution and gain support. A national media campaign detailing the tenets of the new constitution and the Rights of Nature was also launched to inform and gain support from the public.Fundación Pachamama (FP). 2011 "Recognizing Rights for Nature in the Ecuadorian Constitution"
Multiple roundtables were held in order to discuss the feasibility of adding the Rights of Nature to the constitution. An important argument would be that of consent vs consultation. The indigenous communities and some members of the Constitutional Assembly advocated for a right to consent, meaning they wanted a clear right to oppose or approve development projects, whereas the government opposed with promoting only consultation. In conclusion, the government stance prevailed and Article 408 confirms that all natural resources are the state's property. The state can decide to exploit any natural resources that it recognizes to be of national importance, solely as long as it consults the affected communities, without having any obligation to an agreement.
Assembly members Guillem Humberto and Ortiz Alfredo contended for the creation of an Ombudsman for Pachamama. This would replace the Minister of Environment, who was seen as inadequate, and would act as a legal guardian of nature's rights. In the end, Nature's Ombudsman was not added into the new constitution.
In the end there were many reasons for wanting the Rights of Nature. As previously mentioned, indigenous groups, specifically the four members of the Pachakutik within the Constitutional Assembly, advocated for judiciary rights of their communities' way of living. A less sincere take would be that illustrated by Rafael Esteves, a member of the populist right. He said that it was greatly known that they would be the first to give nature its legal rights within their constitution, the mere fact of this is what drove some members into agreement with its passing.
Adoption On April 10, 2008, with 91 votes out of 130, the Constitutional Assembly approved Article 10 for inclusion in the new constitution. On June 7, the language of Articles 71 through 74, compiling the Rights of Nature, were presented and debated on, before receiving approval for inclusion in the constitution.
On September 28, 2008, a mandatory referendum was held to vote on the new constitution, where the adoption of the constitution was approved by 65% of voters.Smith, Gar. 2009, "In Ecuador, Trees Now Have Rights", Earth Island Journal 23(4):15-15.
Articles of the Rights of Nature The following articles are found under Title II: Rights in the Constitution of the Republic of Ecuador published in the Official Register on October 20, 2008.
Chapter One: Principles for the Enforcement of Rights
Article 10. Persons, communities, peoples, nations and communities are bearers of rights and shall enjoy the rights guaranteed to them in the Constitution and in international instruments. Nature shall be the subject of those rights that the Constitution recognizes for it.
Chapter Seven: Rights of Nature