Claudia Alcântara de Torre

The first case that was won and got widely attention was the river Vilcabamba. The river had its right to restoration and natural flow restored in 2011, against the municipal authorities who constructed a road and claimed a right to development (Provincial Court of Justice of Loja). Residents suffered from the altered course of the river and could claim their rights through a rights of Nature court case. The case got a lot of international attention, but Implementation of the verdict was haphazard and led to new court cases [20].

There were other small victories in the early period, between 2008-2018. The Mangrove trees got preference over the interests of a shrimp fisher (Cameronera Marmeza in Cayapas Reserve, 2015), who claimed a right to legal security (since his farm was already there), to work and to income. At the same time, a pig farmer had to adapt his activities [21] and was put under surveillance, to reduce water pollution and environmental damage which hindered the local citizens. The rights of Nature were also invoked in the judgment (Amparo Biodigester case 2009). A paramo ecosystem, however, lost its case against a pine tree plantation, because the provincial judges failed to understand the scope of the rights of Nature and argued that plaintiffs did not own the land (so had no interest in the case). Unfortunately, the constitutional court did not hear the case and dismissed it on procedural grounds. These were all civil law suits. Rights of Nature were also invoked in administrative measures. Small minders lost their property and tools, which were destroyed by the government because the artisanal mining caused water pollution. In the court case, the rights of Nature weighed more heavily than the right to property (Esmeraldas artisanal mining case 2011) [14, 22]. At the same time one can argue that the government’s main purpose was too free up space for large scale mining (see below) [19].

Animals were also protected in criminal lawsuits, such as the endangered condor, whereby a proud farmer had posed on social media with a dead condor and thus submitted his own criminal evidence (Condor Felipe 2012). The sharks of the Galapagos won their case against illegal fishers, whereby in earlier similar cases fishers would state that they had fished outside the territorial waters and thus could not be caught as proving the opposite was difficult. On the basis of rights of Nature this argument was cancelled (Galapagos shark finning case 2011-2015) [14,19,20].

Unfortunately, most some other important cases did not have a positive outcome in this earlier period. The lawsuit on behalf of the Gulf of Mexico, following the oil spill of the Deep Horizon oil platform, was dismissed as the Gulf of Mexico is not part of Ecuador (though there is some unclarity about the extra territorial application of the constitution, because it was accepted in the shark finning case in the Galapagos later on) (2010).

An important case against the Mirador open-pit mine by environmental activists was rejected by the court with the procedural argument that an environmental license had been given and that the nearby protected areas would not be affected. The question whether Nature does not have rights outside the protected areas was not addressed and neither the question whether the environmental license had sufficient merit (Condor Mirador mining case 2013) [20]. It was obvious that in both cases the court did not want to antagonize the political establishment and judges were under pressure. Therefore, environmental activists did not start new cases against large scale mining or oil extraction projects, in order not to create more negative jurisprudence [14,19].

After the change of power from President Correa’s ten-year reign (2017-2017) to President Moreno (2017-2021) (former vice-president under Correa), a restoration of independence of the courts took place [19]. This led to a remarkable change in jurisprudence under both President Moreno and President Lasso (2021-now). The cases go against the proclaimed policy of the conservative President Lasso (and also against that of left-wing Moreno) to intensify oil and mining extraction (decree 95 and 151) [21].

In the Sinangoe case the (constitutional) court decided that the consultation rights of the indigenous population A’I Cofán (in Sinangoe area) have to be respected (2019-2022). It also decided that the rights of Nature (in casu the rights of certain Amazone rivers) prevails over the alotted gold mining concessions. This was also the case in for example the hills of Pinas de la Chuva provincial court case (2020), and the Los Cedros protected forest constitutional case (2021). A very important ongoing case is that of Llurimagua (Intag valley). In first instance the rights of Nature (and thus the local residents) won against mining, but in second instance the case was lost without the provincial judge wanting to articulate its reasoning in writing. Since the area is not indigenous territory, but the mining does affect endangered species (certain type of frogs), the case could have consequences for mining in the whole of Ecuador [22].

In the Mirador mining project, however, a new defeat ensued (2019), this time on the dams protecting the polluted water basins. The constitutional judges did not find it credible that on short notice the dams might break at the time of an earthquake and pose a danger for the residents and Nature. That this may be a possibility on the long term, as was demonstrated in the Brazilian Minais Gerais area [23], was not considered by the judges [22]. Despite researchers concluding: “The possibility of such a small-magnitude earthquake contributing to the collapse of a tailings dam raises important concerns regarding safety and related legislation of dams in Brazil and the world” [23].

Interesting is also the case against genetically modified crops being used by large scale agricultural companies and affecting (crowding out) endemic crops. As mentioned above, this is forbidden by the constitution, which was confirmed by the court, though surveillance of implementation is difficult. The court also found the use of GMO to be a violation of food sovereignty in Ecuador, the national independence in agriculture and that of its autonomous communities, an important part of the constitution that is part of the concept of Buen Vivir. In yet another case a part of the environmental legislation was deemed to be in contradiction with the constitution and the Rights of Nature declaring unconstitutional article 104.7 of the Environmental Code that could allow logging and extractive use of mangroves (Case on the Environmental Code 2021) [20].

It can be concluded that rights of Nature do have significant influence in Ecuador, and sometimes run against the conventional ideas of necessary ‘development’. The proponents of Buen Vivir will counterargue that that they have another definition of development, which embraces sharing, reciprocity and a simpler (less overproduction oriented) life. It also demonstrates. It also demonstrates the dilemma of so called sustainable and renewable energy, since these often depend on the mining of natural resources, against high ecological and social costs, not to mention the biodiversity costs that hydrodams can cause, which the constitutional court in Ecuador will still give an opinion (review) about (selection case no. 502-19-JP, 6 May 2019).

Other countries in Latin America: Bolivia, Chili, Colombia, Argentina and Mexico

Chile may well be the second country with explicit rights of Nature in their constitution. The new draft constitution (2022) to be adopted in September 2022 by a referendum, contains provisions on rights of Nature [22]. Rights of Nature came in a secondary law in Bolivia, and were separately allocated for the Lake Titicaca area (2022). In Bolivia, however, rights of Nature in the law mainly remained largely a dead letter, only one lawsuit was filed [24] (conference in Korea). In Colombia, a number of rivers were given rights through court decisions (such as the Atrato River in 2016) [25]. The Argentinian indigenous community (Llaka Honhat) won a case in the Inter-American Court (enforcing the right to a clean environment, culture, collective property, whilst the Court also recognized rights of Nature) [26,27]. Mexico puts emphasis in its (biodiversity) policy on ‘armonia con la naturaleza’ [28]. Costa Rica has very progressive environmental policies, but still falls short of a rights of Nature approach [29].

Africa, asia and oceania and guardianship of nature

While the Nature rights movement was still in its infancy around 2005, it has exploded since then, with many thousands of scientists and activists becoming involved in it. Only Uganda recently (2019)- as the first African country-recognized the rights of Nature in a general sense-that is not just for an area-in a law [30]. In Africa, care for Nature is partly inspired by the Ubuntu philosophy of brotherhood [14,15]. In India, the Ganges and Yamuna rivers have been declared as having rights by a local judge, but this has been overturned by the Supreme Court (2019) due to implementation issues [30].

In frontrunner New Zealand, Te Urewere National Park (and River and Mountain) was recognized as a natural legal entity in 2012, with a special governing body to protect it [16]. In Bangladesh, the rivers were recognized by the court as a legal person (2019), and a living being, with the government being instructed to protect them [31]. In Bhutan they opted for ‘guardianship of nature’ in the constitution (2008), based on the Buddhist view of life of Gross National Happiness [14].

Rights of Nature is on the one hand an indigenous concept of respect, gratitude and mutual exchange with Nature, and on the other hand a legal concept to give Nature a voice in Westernoriented legal systems. The latter has already been argued by Christopher Stone in his article “Should Trees have Standing?” from 1972. In other words, should trees also have the right to represent themselves in court? Deep ecology and radical ecologists also elaborate on these kinds of thoughts [7,32]. “Indigenous” (such as Germanic) traditions of living in harmony with Nature have largely been lost in Europe (with the exception of the Sami), but modern thinkers have certainly reflected on this as well. An indigenous practice of living in harmony with Nature, supported by the population, does of course help prevent damage to Nature and support the legal concept of rights of Nature. A sine qua non for its implementation is of course also independent judiciary. Even if these rights are incorporated into laws, many other questions will arise such as how to weigh different interests, what exactly is natural, how to define animal rights, etc. Ecuadorian jurisprudence can serve as an example.

In the case of Mar Menor, the local population also stated “We are Mar Menor”, so we are Nature, although not living as “indigenous peoples”, indirectly representing a biocentric view. People expressed themselves in this manner, because they felt it so, and because they grew up there and feel connected to the lake (interview with Mar Menor lawyer and activist Teresa Vicente Giménez). The inability to swim in the lake due to huge masses of dead fish washed ashore brought about the change. The university and local people submitted the proposal for rights to Nature. Local polluters (often agricultural companies) also participated. Such was the shock about the damage to Nature. Local authorities supported the lake rights initiative; however, the conservative regional government did not. Subsequently, it was submitted to the (progressive) national government by means of a signature campaign, bypassing the regional government. Parliament is obliged to consider such an initiative when sufficient signatures have been collected (interview with Mar Menor lawyer and activist Teresa Vicente Giménez).

The bill creates a separate administrative body for this specific area with representatives from various interest groups. There will therefore be no lawsuits (like in Ecuador), but negotiations will take place within the administrative body between the various interest groups (interview with Mar Menor lawyer and activist Teresa Vicente Giménez). The advantage of this is that it applies to a specific area and potentially finds support more easily; the disadvantage is that other natural areas are not given any rights.

In many other countries - where there is no right of initiative of the population to propose laws - the parliament, as the only legislative body, will have to take the initiative for rights of Nature in the constitution, or for a specific area. Headwinds will come from, for example, established agricultural, housing or mining interests. The advantage, however, is that Nature interests are taken into account in policy decisions.

Europe still has a long way to go in this form of justice. Legal proceedings are still mainly conducted on the basis of conventional environmental law, administrative law and human rights. Climate issues are gaining ground [32]. In Europe, a study on rights of Nature was published in 2020: “Towards a European Union Charter of the fundamental Rights of Nature” [33]. In 2021 a study followed at the request of the European Parliament: “Can Nature get it right?” [34]. In six European countries, rights of Nature in the constitution are (or have been) the subject of debate: Finland, France, Germany, Italy, Portugal, and Sweden. Initiatives are also being developed in the UK, Ireland and Denmark [35].

In the Netherlands, activists plead for rights of the Wadden Sea [35], and of the river Maas (‘Maas in the law’ initiative, which is wordplay since it is also a Dutch expression (for a gap in the law). The Rotterdam design museum the new institute has become the first Zoop in the world where nature also has a voice in the board through the board observer ‘Speaker for the Living’ (zo-operation is contraction of cooperative and ‘zoe’, life in Greek) [30]. With this, careful first steps have been taken towards better protection of the Earth, Nature, biodiversity and combating climate change. The Mar Menor example shows that biocentric approaches and sentiments can be resuscitated in Europe as well, once the disaster to Nature is sufficiently large to cause a general wake-up call [35-41].

1. Popular Legislation Initiative (ILP) (2022) “Rights for the sea.” ILP.
2. Ortuño, Eduardo S (2022) Ecocide in mar menor? Stopecocide International.
3. Kennedy PM (2022) European first as mar menor ecosystem recognised as legal entity with rights. Euro Weekly News.
4. Noryskiewicz A (2022) Mystery toxin suspected as 100 tons of dead fish removed from Oder River on German-Polish border. CBS News.
5. Bhaskar R (1998) The possibility of naturalism: a philosophical critique of the contemporary human sciences. (3^rd edn), Routledge, London, p.194.
6. Arsel M (2012) Between ‘marx and markets’? The state, the 'left turn' and nature in Ecuador. Magazine for Economical and Social Geography 103 (2): 150-163.
7. Cullinan C (2014) Wild law: a manifesto for earth justice. (2^nd edn).
8. Akchurin M (2015) Constructing the rights of nature: constitutional reform, mobilization and environmental protection in ecuador. Law and Social Inquiry 40 (4): 937-968.
9. Norren DEV (2020) The sustainable development goals viewed through groos national happiness, ubuntu and buen vivir. International Environmental Agreements: Politics, Law and Economics 20: 431-458.
10. World People's Conference on Climate Change and the Rights of Mother Earth (WPCCC) (2010) Universal declaration of rights of mother earth. Cochabamba, Bolivia.
11. UN General Assembly UNGA (2009) Resolution adopted by the general assembly on 22 April 2009 resolution 63/278. International Mother Earth Day. United Nations.
12. World People's Conference on Climate Change and the Rights of Mother Earth (WPCCC) (2011) Press release: Bolivia calls for urgent high-level talks on cutting climate pollution. WPCCC.
13. UN Economic and Social Council (ECOSOC) (2010) Study on the need to recognize and respect the rights of Mother Earth. ECOSOC.
14. Norren V, Dorine (2017) Development as service: A happiness, ubuntu, buen vivir interdisciplinary perspective on the sustainable development goals. PhD Dissertation, University of Tilburg, Tilburg, Netherland.
15. Roothaan A (2019) Indigenous, modern and postcolonial relations of nature. (1^st Edn), Negotiating the Environment. Abingdon, UK, p. 10.
16. Kramm M (2020) When a river becomes a person. Journal of Human Development and Capabilities 21(4): 307-319.
17. Alberto A (2018) Buen Vivir: Latin American philosophy of good living. Publisher Ten Have.
18. Norren DEV (2022) African ubuntu and sustainable development goals: Seeking human mutual relations and service in development. Third World Quarterly.
19. Kauffman, Craig M, Martin, Pamela L (2021) The politics of rights of nature: Strategies for building a more sustainable future. MA: MIT Press, Cambridge, USA.
20. Global alliance for the rights of nature (GARN) (2022a) Timeline rights of Nature.
21. Wilkins B (2021) Policy of death: amazon guardians sue ecuador's president over oil, mining decrees. Common Dreams.
22. Global Alliance for the Rights of Nature (GARN) (2022b) Chili recognizes rights of nature in constitutional assembly. Global Alliance for the Rights of Nature (GARN).
23. Detzel HA, Bianchi M, Assumpção M, Schimmel M, Collaço B, et al. (2016) The tailings dam failure of 5 November 2015 in se Brazil and its preceding seismic sequence. Geophysical Research Letters 43 (10): 4929-4936.
24. Villavicencio CP, Kotzé LJ (2018) Living in harmony with nature? a critical appraisal of the rights of mother earth in Bolivia. Transnational Environmental Law, 7(3): 397-424.
25. Wesche P (2021) Rights of nature in practice: a case study on the impacts of the colombian atrato river decision. Journal of Environmental Law 33(3): 531-555.
26. Interamerican court of human rights (IACHR) (2020) Indigenous communities members of the association lhaka honhat (our land) Argentina.
27. Tigre MA (2020) Inter-american court of human rights recognizes the right to a healthy environment. American Society for International Law 24(14).
28. Secretariat of Environment and Natural Resources (SMARN) (2019) Ecological experiences to save the planet, Mé
29. Bellan S (2019) Costa rica: paving the way for rights of nature? Earth Law Centre.
30. Burgers L, Jessica OT (2022) Compendium Rights for Nature. Case studies from six continents. Amsterdam: Embassy of the North Sea, Netherland.
31. Islam MS, and O’Donnell E (2020) Legal rights for the turag; Rivers as living entities in Bangladesh. Asia Pacific Journal of Environmental Law 23(2): 60-177.
32. Bosselmann K (1998) Basic ecological rights: on the relationship between individual freedom and nature. Nomos, Germany, p. 332.
33. Interview with Teresa Vicente Giménez (2022) Professor Philosophy of Law, Universidad de Murcia, one of the initiators of the Iniciativa de Legislación Popular (ILP) to grant legal personality to Mar Menor lagoon.
34. Cormac C (2014) Governing people as membes of the earth community. State of the World 2014, Governing for Sustainability edited by World watch Institute, Island Press, USA, pp. 72-81.
35. Burgers LE (2020) Justitia, the people’s power and mother earth. Democratic legitimacy of judicial law-making in Eeuropean private law cases on climate change. Amsterdam, Netherland, p. 350.
36. Putzer A, Burgers L (2022) European rights of nature initiatives. University of Amsterdam, Netherland.
37. Lambooy T, Venis JVD, Stokkermans C (2019) A case for granting legal personality to the dutch part of the wadden sea. Water International 44 (6-7): 786-803.
38. European Economic and Social Committee (2020) Towards an Eu charter of the fundamental rights of nature. European Economic and Social Committee, p. 189.
39. European Parliament (2021) Policy department for citizens’ rights and constitutional affairs directorate-general for internal policies. Can nature get it right? a study on rights of nature.
40. Ramose M (2017) Ubuntu. Stream of existence as a philosophy of life. Publisher Ten Have, Netherland.
41. Stone CD (1972) Should trees have standing? towards legal rights for natural objects. Southern California Law Review 45: 450-501.