Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador

Abstract

Today, numerous constitutions provide for a rights-based approach to environmental protection. Based as they are on an instrumentalist rationality that seeks to promote human entitlements to nature, the majority of these rights remain anthropocentric. Although there are growing calls within academic and activist circles to reorient rights alongside an ecocentric ontology, only one country to date has taken the bold step to bestow rights on nature in its constitution. The Ecuadorian Constitution of 2008 announces the transition from a juridical anthropocentric orientation to an ecocentric position by recognizing enforceable rights of nature. This article critically reflects on the legal significance of granting rights to nature, with specific reference to Ecuador’s constitutional experiment. It first provides a contextual description of rights in an attempt to illustrate their anthropogenic genesis, and then explores the notion of environmental rights. The following part traces the discourse that has developed over the years in relation to the rights of nature by revealing aspects of an ecocentric counter-narrative. The final part focuses specifically on the Ecuadorian constitutional regime and provides (i) a historical-contextual discussion of the events that led to the adoption of the rights of nature; (ii) an analysis of the constitutional provisions directly and indirectly related to the rights of nature; and (iii) a critical appraisal of whether those provisions, so far, measure up to the rhetoric of constitutional ecocentric rights of nature in that country.

Ejemplar completo. Vol.30, N°1

“…Constitutionalism approach puts rights of nature legislation against the background of constitutionalism, usually focusing on the environmental clause of a Constitution (see, e.g. Kotzé & Calzadilla, 2017;Kotzé, 2016). Ecocentrism approach contrasts eco-centric with anthropocentric legal systems, arguing in favour of the former over the latter (see, e.g.…”

Paving the Way for Rights of Nature in Germany: Lessons Learnt from Legal Reform in New Zealand and Ecuador

“…69 As a result of losses in biodiversity and conflicts with Indigenous groups who inhabit lands that were exploited for natural resource extraction, the Ecuadorian government aimed to improve the situation by creating a new constitution. 70 The new document attempts to strengthen Indigenous as well as environmental protection interests. 71 It does so by establishing rights of nature in accordance with Indigenous values.…”

Earth System Law for the Anthropocene

“…An all-embracive conception of humans as part of the Earth system (and not masters of it), thus offers an opportunity to think how law could be reformed from serving as a powerful tool of exploitation, domination and mastery, to instead serving as an accommodative means of facilitating mutual respect, care and the pursuit of an all-inclusive form of Earth system integrity. The recent emergence of "rights of nature" in some domestic legal orders is a useful example of what the law could achieve in its attempts to dissolve hierarchies by deliberately embracing ecocentrism and care for the non-human world, and by shunning human mastery while affording humans and non-humans the same status in law [62,63].…”