Environment
Ecuador Grants Rights to Nature: A Breakthrough?
Environmental groups and intellectuals around the world applauded when Ecuador passed a new constitution this September, that included an entire section on nature’s rights. The Uruguayan writer Eduardo Galeano, for example, described it as an important contribution towards the recovery of the most ancient traditions of Ecuador and Latin America.
But leaving aside its cultural or anthropological implications, this reform is complete nonsense from a legal point of view and another example of how little substance the new Constitution of Ecuador has. As the Ecuadorian jurist Xavier Flores mentions:
It is completely inappropriate to confer rights without correlate obligations (what kind of duties can we demand from lakes or rivers?). But even worse is to confer rights to an entity that cannot exercise them.
The new constitutional article tries to solve this problem by stating that human beings can act as proxies, and grants these proxies the right to sue on behalf of an ecosystem. To justify this the Ecuadorian legislators used as an analogy the case of legal persons (companies, foundations, NGOs, etc.), which are represented by physical persons.
First, this analogy is incorrect from a legal perspective because legal persons constitute an extension of the rights of the physical persons that create or administer them – and not the other way around. This is obviously not the case of nature.
Second, this legal inconsistency also translates itself into a practical problem: how is it going to be decided who has the right to represent nature? Since there is no ownership tie here, this might become an impossible task, particularly considering that there will be competing interests over any given case. Take, for example, the case of an environmental activist who wants to present a lawsuit on nature’s behalf against the construction of a dam. Should this person be granted this right, even when local communities close to the future dam site express their agreement with the construction, due to the benefits it would bring?
The expression of principles is a part of any constitution. But that is not going to protect the environment. Instead of creating simple declarations of principles without any legal validity or practical application the members of Ecuador’s Constituent Assembly should have come up with effective mechanisms to protect the environment.
Tags:
You make an excellent point, but I think that one could consider the services provided by ecosystems to correspond to the obligations expected of right-bearing entities. And as to the question of representation, most nations wrestle with the same conundrums regarding animal rights. Would you deny that a non-human organism has at least some rights (for the moment without considering what they might be)? The question of representation is simply a problem to be solved, not a reason to sack the whole idea.
Consider that an ecosystem is made up of a multitude of organisms, not the least of which are human beings. I think the analogy to a legal person such as a corporation is indeed valid, as the right of an ecosystem, for example, to exist and function properly is merely an extension of the rights of all those who enjoy the benefits and services provided by said ecosystem. That being said, even if there ARE legal issues involved, at least the Ecuadoreans are trying something different. I commend Raphael Correa and the citizens of Ecuador for their commitment to the protection of their unique and irreplaceable natural heritage.
I take a great deal of exception to the entire comment by Flores. I am an estate planning and elder law attorney, and a big part of my practice is guardianships of incapacitated persons. What duties can we expect from a severely mentally retarded 18-year-old, or an elderly person with advanced Alzheimer’s? None. Yet there is entire field of law dedicated to protecting their rights. The notion of correlate duties is completely misplaced in this discussion.
Moving on, corporations’ rights are not an extension of the rights of shareholders or officers. They are completely distinct rights; that is the whole point of a corporation: distinct rights for distinct liability.
That being said, the practical problems raised later in this piece are also non-starters. It’s probably the case that there should be some special legal standing needed to sue on behalf of the ecosystem, just like not just anyone can sue on behalf of the People of the United States to enforce the our Constitution. A government body, perhaps.
The granting of rights to nature presents no novel legal problems.
Elias, is it really worth it to try something different, when this implies new problems instead of practical solutions? Please don’t misunderstand me: I am fully aware of the environmental challenges that Ecuador faces. However, I think that the member of the Constitutional Assembly should have focused their efforts designing an applicable framework to protect the environment, instead of only satisfying their ideological appetite with simple declaration of principles.
Austin, do you think that creating another bureaucratic entity will really help solve Ecuador’s environmental problems? Moreover, if the idea of this constitutional provision is to allow citizens to sue on behalf of nature, why then let the government decide who is entitled to sue and who is not? The government is already responsible for protecting the environment, so in the end nothing new will happen, except that more bureaucracy will be created. Again, this constitutional reform does not really bring anything new to the table.