Negotiating Nature’s Rights

Start of project: April 2020

In 2008, Ecuador introduced a new constitution which formally recognises nature as a legal subject and grants it rights. According to the Ecuadorian constitution it is thus not just humans who have the right to a clean environment, but nature itself has “the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes” (Article 71, Ecuadorian constitution). In addition, similar to the Bolivian constitution, a major principle of Ecuador’s new constitution is buen vivir or sumak kawsay. Buen vivir is a codified legal concept based on indigenous tradition and ontologies, which stands for ‘well-being’ that is not grounded in the individual, but relies on, or derives from, harmony between humans and non-humans, or nature.


My research project puts the negotiations around the normative meaning of these new constitutional rights centre stage by asking the following questions:
-    How are the rights of nature and buen vivir operationalised in practice? What hurdles or obstacles must be overcome when doing so?
-    Who advocates for these rights, how, and for what purposes?
-    Who pushes back and on what grounds?
-    What are the agendas of the different actors involved in these struggles? How do they differ and how and where do they intersect?
-    What ontologies of nature and emic understanding of “state”, “law” and “development” underlie these different positions?
-    Who partakes in these negotiations and who cannot? Whose voices are heard and whose are not? Or, in other words, whose views come to dominate and why?
-    What role do different actors – for example, judges, lawyers, national and international civil society actors, private actors, academics – play in these negotiations?

The Ecuadorian context is interesting for studying these questions because, on the one hand, Ecuador is the first, and so far only, country to recognise nature as a legal subject and holder of rights in its constitution, although through jurisprudence, courts elsewhere have also granted nature – in the form of rivers or forests, for example – rights. On the other hand, although these constitutional rights have existed since 2008, many scholars, activists and environmental lawyers criticise that these constitutional principles have not yet been sufficiently developed in jurisprudence, have not yet been turned into legislation and do not sufficiently inform public policies. Especially in the past two years there have been increased attempts to get the courts and ministries to do so, making this an important moment for studying such negotiations.

My ethnographic research focuses on three main sites of negotiation and contestation: (1) constitutional lawsuits against industrial mining, (2) the negotiations surrounding the Código Orgánico del Ambiente (Ecuador’s environmental law) and its accompanying reglamientos (regulations) that have only recently come into effect and against which environmental organisations have filed a complaint with the constitutional court, and (3) I plan to analyse the transcripts of the constituent assembly in order to identify central issues of conflict, but also key actors involved in these negotiations in order to explore in what ways they are still involved (or not) in these negotiations today.
With this research project, in a broader and more comparative way, I strive to examine how legal perspectives on and conceptualisations of nature in the Anthropocene are (or may be) changing, to explore how law is mobilised in struggles for climate justice and how law grapples with the global challenges of climate change, and to analyse processes of normative change that thereby occur.