Rights of Nature in Ecuador

A new constitution emerges

The Ecuadorian case shows not only that Rights of Nature do function, but also that they require staying power. Even the first step along this path has been by no means easy. In 2007, an Ecuadorian Asamblea Nacional Constituyente (National Constituent Assembly) was convened, tasked with drafting a new constitution. In the face of a deep political and economic crisis, this assembly was meant to help transforming the state and resolving numerous unresolved mining conflicts.

The Constituent Assembly’s members were extremely diverse. Many formed part of the indigenous or other social movements. Moreover, the assembly received a large number of civil society actors to present their concerns.

In the course of the constitutional process, various actors rallied for the idea of giving rights to nature. Indigenous representatives, for example, perceived the concept as an expression of their own relation with nature. Conservationists hoped this would faciliate taking legal action against environmental damage. Of course, there were also dissenting voices, warning, for instance, of a restriction of human freedom or claiming Rights of Nature to be simply impossible. Finally, the idea prevailed. In 2008, a new Ecuadorian constitution came into force, granting "Nature or Pacha Mama" various rights, such as the right to respect its existence in Article 71.

In the first few years, apart from a few isolated cases, little happened. This initially hesitant implementation and occasional setbacks led to Ecuador's Rights of Nature being described as largely ineffective.

Despite all the justified criticism of the teething troubles of the Rights of Nature in  Ecuador, it should not be forgotten that these represent an enormous challenge for the legal system. They were a completely new legal instrument that courts did not have any experience with at the time.

Judges, lawyers, administrative officials and even environmental protection associations first had to familiarise themselves with the concept. Such learning processes in jurisprudence take time.

The Rights of Nature

Our relationship with nature is severely disrupted. To sustainably protect people and the environment, we need new approaches – such as granting rights to nature. 

This article is part of the Rights of Nature dossier, which explores how this approach can be practically implemented and what opportunities it offers. ▶ Explore the Rights of Nature dossier.

How can we do right by nature?

The courts had to clarify numerous questions in relation to the new Rights of Nature. One important question: What exactly constitutes 'nature' as according to the Ecuadorian Constitution? The constitution mentions all of nature without more precise definition. The courts thus have to examine what is meant by nature in each individual case: they are constantly faced with the task of exactly investigating and determining the specific ecosystem whose rights are being asserted.

Only when knowing its structure and functions can they determine how its rights are to be protected.

An example of this is the case of Los Cedros, a cloud forest in north-western Ecuador, where a mining project was meant to be implemented. In the court proceedings, the Constitutional Court examined and described the cloud forest in question in detail, including animals and plants, water cycles and climatic conditions, thus concluding that it was a fragile ecosystem and under threat by the repercussions of the mining project.

The case of the Río Monjas involved a completely different ecosystem. Río Monjas is a  heavily polluted river flowing through the country’s capital Quito. However, according to the Constitutional Court, the fact that it is located in the man-made environment of the city does not make Río Monjas lose its status as a natural element. Instead, the court emphasised the river’s connection to other ecosystems; if polluted in Quito, the pollution of the river would be passed on.

Nature or Pacha Mama

The fact that the Ecuadorian Rights of Nature incorporate various notions of the environment is already clear from the central provision of the constitution in Article 71:

"Nature or Pacha Mama has the right" can be read here.

Pacha Mama is a term from the indigenous language Kichwa, which is spoken by various indigenous communities in the Andes and parts of the Amazon. The world views of many of the indigenous peoples who use the term pacha mama do not know any separation between humans and nature. Pacha is translated as cosmos, whereby this cosmos includes humans and the entire more-than-human environment. The diverse components this cosmos entails – animals, humans, plants, stones, etc. – do not exist in isolation. Rather, everything is perceived as interconnected. Diverse relationships between humans and their more-than-human environment exist, thus emphasising people's responsibility towards their environment. However, this also implies that damage to nature means damage to humans. 

As the entire cosmos is a closely connected network, any damage to individual components inevitably affects others. The Ecuadorian Rights of Nature therefore combine various influences. In addition to the aforementioned indigenous notions of a pacha mama, they also draw on Western scientific perspectives. By opening up the law to indigenous thinking, they can be seen as a step towards its decolonisation.

Who speaks for nature?

Another question: Who can speak for nature and who represents it in court?

According to Article 71 (2) of the Ecuadorian Constitution, any person can invoke Rights of Nature.

Other countries take a different approach. In Colombia, there are numerous court rulings that grant rights to individual elements of nature. The case of the Atrato River, which was declared a legal entity by the Colombian Constitutional Court in 2018, is particularly well-known. Here, the court appointed a commission, the so-called 'Guardians of the Atrato', who speak jointly for the river. The advantage of such collective representation is that it might prevent individuals from selling their interests as those of nature.

Ecuadorian courts often make an effort to give voice to as many people as possible. This is particularly evident in the case of the Los Cedros cloud forest. During a long hearing, the Constitutional Court listened to the opinions of a wide range of stakeholders. Not only local residents or biologists had their say, but also representatives of the mining project. This is based on the idea that there is no objectively correct view of nature. Different people perceive an ecosystem in different ways and participate in its processes. By listening to as many voices as possible, the Constitutional Court democratises the representation of nature. 

It shows that constitutional recognition of nature's rights can only be a first step that has to be continued by many more. Even after these rights have been recognised, people need to stand up for them, both inside and outside the courtroom.