The Problem of Enforcing Nature's Rights under Ecuador's Constitution: Why the 2008 Environmental Amendments Have No Bite

By Whittemore, Mary Elizabeth | Washington International Law Journal, June 2011 | Go to article overview

The Problem of Enforcing Nature's Rights under Ecuador's Constitution: Why the 2008 Environmental Amendments Have No Bite


Whittemore, Mary Elizabeth, Washington International Law Journal


I. Introduction

"We're making history! Onward!" Ecuador's President Rafael Correa rejoiced in late September 2008.1 President Correa was celebrating the news that voters had approved Ecuador's new Constitution.2 He called the vote a "historic victory" and promised that it would incite "rapid, profound change" in Ecuador,3 an economically and politically fragile4 equatorial country on the Pacific coast of South America. This new Constitution promises many new rights, but it has primarily caught international attention because Ecuador is now the first nation in the world to grant inalienable, substantive rights to nature.

Other constitutions express commitment to environmental value,6 but an anthropocentric7 format is more typical. Ecuador, by contrast, now treats the environment as a right-bearing entity alongside and equal to humans. These provisions represent a shift in Ecuador (and perhaps Latin America generally) from an exclusively anthropocentric view of environmental rights to a more eco-centric view8 and have led some commentators to dub Ecuador's Constitution the "most progressive in the world."9

Specifically, the new articles grant the environment the inalienable right to exist, persist, regenerate, and be respected.10 They also guarantee Ecuadorean citizens the right to sue for enforcement of these rights.11 Much of the attention the provisions have received has been cautiously positive; observers want to see how constitutional rights for nature may be enforceable and in what types of legal proceedings.12 Will they have what the legal community calls "teeth" in court? Will other countries follow?

It is significant that Ecuador is the first country in the world to codify such novel constitutional mandates. Ecuador is home to at least eight groups of indigenous peoples, over thirteen million hectares of tropical rain forest in the Amazon basin,13 and the treasured Galápagos Islands. Unfortunately, Ecuador is also home to an environmentally devastating oil industry that has caused vast deforestation in the Amazon,14 contaminated water, and rampant illness.15 In sum, it is not difficult to say that no country needs this amendment more than Ecuador.

However, it remains unclear whether President Correa intends to implement these changes, or even has the resources necessary to do so. As illustrated by the fact that President Correa is Ecuador's eighth president in ten years,16 the last few decades of Ecuador's government is best characterized by turmoil.17 The question of the amendments' likelihood of success therefore provides an opportunity to examine the chances of fair environmental adjudication in Ecuador and its government's practical ability to implement change.

This comment examines the principal factors affecting Ecuador's ability to execute these unique amendments and argues that, all things considered, successful execution of the environment provisions is unlikely in Ecuador's legal and political environment. Part II discusses the political barriers that hinder execution of the environmental provisions of the new Constitution-namely, a lack of government accountability and doubts about President Correa's intention and ability to implement his promises. Part III addresses the legal barriers to implementation: procedural confusion over standing and concerns with the structure and past corruption in Ecuador's constitutional court. Finally, Part IV suggests some ways that Ecuador could counteract these political and legal barriers and improve the likelihood of successful implementation. Specifically, Ecuador needs to award lifetime tenure to its constitutional court judges, codify its standing doctrine, and create of an independent body for enforcement of environmental court rulings.

II. The Amendments Will Remain Mere Lip Service Until President Correa Shows a Sincere Ability and Intention to Implement Them

A major problem with Ecuador's new environmental provisions is the uncertainty over the executive's ability and intention to implement them. …

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