Rights of Nature

Rights of Nature is a tradition of legal and political scholarship advocating legal standing for the natural environment.[1] The rights approach is a break away from traditional environmental regulatory systems, which regard nature as property and legalize and manage degradation of the environment rather than prevent it.[2] Since 2000 animals, plants and other organisms have their rights to dignity recognised by the Constitution in Switzerland (art. 120), but the implications of this disposition are still not very clear. With the enactment of its 2008 Constitution, Ecuador became the first country in the world to codify the Rights of Nature and to inform a more clarified content to those rights. Articles 10 and 71–74 of the Ecuadorian Constitution recognize the inalienable rights of ecosystems to exist and flourish, gives people the authority to petition on the behalf of ecosystems, and requires the government to remedy violations of these rights.

History

Further information: Plant rights and Environmental movement

Rights of nature in legal history

In his famous work, "Should Trees Have Standing?", Christopher Stone presented the case for conferring legal personality and rights on the environment. As Stone explained, as a rights-holder the natural object would “have a legally recognised worth and dignity in its own right, and not merely to serve as a means to benefit ‘us’”. To achieve rights-holder status, the natural object must satisfy three criteria: [First], that the thing can institute legal actions at its behest; second, that in determining the granting of legal relief, the court must take injury to it into account; and third, that relief must run to the benefit of it.[1]

In his dissenting opinion in the landmark environmental law case, Sierra Club v. Morton, 405 U.S. 727 (1972), Justice William O. Douglas argued that "inanimate objects" should have standing to sue in court:

The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. This suit would therefore be more properly labeled as Mineral King v. Morton.[3]

Douglas continued:

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases.... So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.[3]

In 2012 New Zealand's Whanganui River was legally declared a person with standing (via guardians) to bring legal actions to protect its interests.[4][5][6]

Ecuador Development

Outcome from neoliberal development in Ecuador

The Rights of Nature articles in Ecuador's constitution are part of a reaction to a combination of political, economic, and social phenomena. Ecuador's abusive past with the oil industry, most famously the class-action litigation against Chevron, and the failure of an extraction-based economy and neoliberal reforms to bring economic prosperity to the region has resulted in the election of a New Leftist regime led by President Rafael Correa, and sparked a demand for new approaches to development. In conjunction with this need, the principle of "Buen Vivir" or good living, which focuses on social, environmental and spiritual wealth versus material wealth, gained popularity among citizens and was incorporated into the new constitution.[7]

The influence of indigenous groups, from whom the concept of Buen Vivir originates, in the forming of the constitutional ideals also facilitated the incorporation of the Rights of Nature as a basic tenet of their culture and conceptualization of Buen Vivir.[8]

The neoliberal development schemes in line with the "Washington Consensus" did not create prosperity for much of Ecuador's population, especially its indigenous populations, who make up about 40% of the country's population.[9][10] 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.[11] 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 obviously the need for a new more inclusive government that embodied a post-oil, post-neoliberal development paradigm.[8][9] 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.[11]

Buen Vivir

Buen Vivir ("good living") emerged as a response to the traditional strategies for development and their negative environmental, social, or economic effects. Buen Vivir is an alternative concept of development that focuses on the attainment of the "good life" in a broad sense, only attainable within a community; a community that includes Nature. A popular approach to Buen Vivir is the Ecuadorian concept of sumak kawsay, meaning a full life in kichwa. Part of this concept also emphasizes 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. Social consensus led to the inclusion of Buen Vivir in Ecuador's new constitution, supported as an alternative to neoliberal development. The constitution outlines Buen Vivir as a set of rights, one of which is the rights of nature.[7] 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.[7][12]

Indigenous movement

The inclusion of "Buen Vivir" and Rights of Nature in the constitution was ushered in largely due to the increased influence of indigenous activist groups in the political realm. 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.[11] 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, encompassing 14 of the nation's indigenous groups, and other groups 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").[8]

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.[8] 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.[2] 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.[13]

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.[13]

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.[14]

Text of the Rights of Nature

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.

Rights of nature

Article 71. 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. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate. The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.

Article 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems. In those cases of severe or permanent environmental impact, including those caused by the exploitation of nonrenewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.

Article 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles. The introduction of organisms and organic and inorganic material that might definitively alter the nation’s genetic assets is forbidden.

Article 74. Persons, 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. Environmental services shall not be subject to appropriation; their production, delivery, use and development shall be regulated by the State.[15]

Significance

The Rights of Nature is significant as it is the first case where this concept has been evoked at the national level. The articles set out a rights-based system that recognizes Nature, or Pachamama, as a right-bearing entity that holds value in itself, apart from human use. This differs from traditional systems that see nature as property, giving landowners the right to damage or destroy ecosystems that depend on their land. The rights-based approach spelled out in the Rights of Nature expands on previous laws for regulation and conservation by recognizing that nature has fundamental and inalienable rights as a valuable entity in and of itself. The system also assigns liability for damage to the environment and holds the government responsible for the reparation of any damage. Additionally, if an ecosystem's rights are violated, it gives people the authority to petition on behalf of the ecosystem to ensure that its interests are not subverted to the interests of individuals or corporations.[2][9]

The inclusion of the Rights of Nature also makes the constitution more democratic and inclusive, as it reflects the indigenes' idea of Nature as a mother that must be respected and celebrated. This is the first constitution that has incorporated indigenous concepts of sumak kawsay and Pachamama, as well as recognized the plurinationality of Ecuador. This has broad significance for the recognition of indigenous groups and their right to preserve their land and culture. The combination of human rights with the rights of nature will allow for more effective protection of indigenous communities.[13]

The Rights of Nature also transforms the relationship between nature and humans by asserting that nature is not just an object.[16] By putting ecosystems on an equal footing with humans, the conception of humans as masters or as separate from nature is dismissed.[7] Instead, this system celebrates nature and recognizes that humans are a part of it.[11]

The Rights of Nature are further incorporated in the updated National Plan for Good Living, which states guaranteeing the Rights of Nature and promoting a healthy and sustainable environment as one of its twelve objectives. Policies under the objective include aims to preserve and manage biodiversity, diversify the national energy matrix with renewable sources, prevent, control and mitigate environmental damage, promote adaptation to and mitigation of climate change, and incorporate environmental approach in all public policies.[12]

Legal effects

The Rights of Nature has been applied to several legal disputes and considered in government development initiatives.

Wheeler c. Director de la Procuraduria General Del Estado de Loja

Wheeler c. Director de la Procuraduria General Del Estado de Loja was the first case in history to vindicate the Rights of Nature. The lawsuit was filed against the local government near Rio Vilcabamba in March 2011, who were responsible for a road expansion project that dumped debris into the river, narrowing its width and thereby doubling its speed. The project was also done without the completion of an environmental impact assessment or consent of the local residents. The case was filed by two such residents, citing the violation of the Rights of Nature, rather than property rights, for the damage done to the river. The case was important because the court stated that the rights of nature would prevail over other constitutional rights if they were in conflict with each other, setting an important precedent. The proceedings also confirmed that the burden of proof to show there is no damage lies with the defendant. Though the plaintiffs were granted a victory in court, the enforcement of the ruling has been lacking, as the local government has been slow to comply with the mandated reparations.[17]

República del Ecuador Asamblea Nacional, Comisión de la Biodiversidad y Recursos Naturales

In March 2011, right after the ruling on the Wheeler case, the government of Ecuador filed a case against illegal gold mining operations in northern Ecuador, in the remote districts San Lorenzo and Eloy Alfaro. The rights of nature were violated by the mining operations, which were argued to be polluting the nearby rivers. This case is different from the previous in that it was the government addressing the violation of the rights of nature. It was also swiftly enforced, as military operation to destroy the machinery used for illegal mining was ordered and implemented.[17]

Yasuni ITT initiative

The Yasuni-Ishpingo, Tambococha, and Tiputini (ITT) Initiative, referring to the corridor of oil reserves within the Yasuni National Park, is the first post-oil development initiative that recognizes that the benefits gained from the Amazon are greater than the economic benefits from oil extraction. The aim of the initiative is therefore to protect the biodiversity of the area, which UNESCO has declared a biodiversity reserve, by keeping the oil reserves in the ground, in return for compensation from the international community for at least half of the projected benefit Ecuador would receive from the oil extraction (approximately $3.5 billion). These funds would be used to fund other economic initiatives to alleviate poverty and develop the renewable energy sector. The importance of keeping the oil in the ITT area in the ground has been argued as of international importance to mitigate the effects of global climate change by preventing CO2 emissions and the local environmental devastation the extraction would cause. The Rights of Nature and other articles of the new constitution also make the protection of the park a legal imperative, as the extraction would be a violation of nature's rights.[9] Though there originally was some difficulty evoking a sense of international responsibility to fund the initiative, especially with the national constitution requiring this law already, eventually in August 2010 Ecuador came to an arrangement with the UNDP for funding of the initiative through the issue of Yasuní Guarantee Certificates, denoting the amount of CO2 emissions avoided and their monetary value, which can potentially be used in the European Union Emission Trading Scheme.[11]

Reactions

Praise

The adoption of the Rights of Nature by Ecuador has received praise internationally by many countries who see this as a revolutionary way to conceptualize the environment and a way for Ecuador to move beyond the extractive economy of its past.[10] Initiatives to adopt the concept of ecosystem rights have been taken or are being taken in various parts of the world, including Bolivia, Turkey, Nepal, and various municipalities in the United States.[2]

Criticisms

Criticisms of the Rights of Nature have generally centered on the mechanisms of enforcement of the provision. One criticism is that though the constitution establishes stronger regulations for the environment, it also gives the state the power to relax these regulations if found to be in the national interest.[11] Therefore, much of the enforcement of the ecosystem rights depends on the will of the government, or an active citizenry.[8] Indigenous groups have also expressed dissatisfaction that the constitution does not give local communities veto power over projects affecting their land.[13] Others also feel a major weakness of the constitution is that it does not require prior or informed consent by communities before the start of development projects, which can undermine their ability to uphold the rights of nature.[16] There are also concerns that the Rights of Nature could negatively affect foreign direct investment since companies will not want to comply with the more stringent regulations.[10] On the other hand, people are skeptical of the Correa administration for still approving projects by foreign extraction companies violating the Rights of Nature.[16]

References

  1. 1 2 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
  2. 1 2 3 4 Community Environmental Legal Defense Fund (CELDF). 2008. http://www.celdf.org/, accessed April, 2012.
  3. 1 2 Sierra Club v. Morton, 405 U.S. 727, 741–43 (USSC 1972).
  4. ↑ Shuttleworth, Kate (30 August 2012). "Agreement entitles Whanganui River to legal identity". New Zealand Herald.
  5. ↑ Fairbrother, Alison (18 September 2012). "New Zealand's Whanganui River Gains A Legal Voice". Huffington Post.
  6. ↑ Vines, T., Bruce, A., Faunce, T. A., "Planetary Medicine and the Waitangi Tribunal Whanganui River Report", Journal of Law and Medicine 2013; 20: 528
  7. 1 2 3 4 Gudynas, Eduardo. 2011. Buen Vivir: Today's Tomorrow Development 54(4):441-447.
  8. 1 2 3 4 5 Becker, Marc. 2011 Correa, Indigenous Movements, and the Writing of a New Constitution in Ecuador. Latin American Perspectives 38(1):47-62.
  9. 1 2 3 4 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.
  10. 1 2 3 Madden, Christina L. 2008 Laws Gone Wild in Ecuador: Indigenous People and Ecosystems Gain Rights. Policy Innovations. http://www.policyinnovations.org/ideas/briefings/data/000077
  11. 1 2 3 4 5 6 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.
  12. 1 2 SENPLADES. 2009 National Plan for Good Living. Electronic document, http://plan2009.senplades.gob.ec/web/en/presentation, accessed May, 2012.
  13. 1 2 3 4 Fundación Pachamama (FP). 2011 "Recognizing Rights for Nature in the Ecuadorian Constitution"
  14. ↑ Smith, Gar. 2009, "In Ecuador, Trees Now Have Rights", Earth Island Journal 23(4):15-15.
  15. ↑ "2008 Constitution of the Republic of Ecuador. Political Database of the Americas (PDBA)".
  16. 1 2 3 Mychalejko, Cyril. 2008 Ecuador's Constitution Gives Rights to Nature. Philadelphia Independent Media Center.
  17. 1 2 Daly, Erin. 2012, "Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights", Review of European Community & International Environmental Law 21(1): 63-66.

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