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The Environment and Rights

More than 35 years after the publishing of Christopher Stone’s epic essay (at least for environmental lawyers) Should Trees Have Standing? Toward Legal Rights for Natural Objects (45 S. Cal. L. Rev. 1972) it looks as if Stone’s pleadings have been heard. At least in Ecuador, which yesterday approved the country’s 20th constitution. The approved constitution, which is widely criticised for transferring too much power to the incumbent leftwing president Rafael Correa, contains a significant novelty in terms of constitutional protection of the environment. The new constitution simply creates a right for the natural environment to exist much like what Stone proposed in 1972. Now, it is not uncommon for constitutions to hold environmental provisions. Some hold simple statements of intention declaring that the government should strive to protect the environment as do, for instance, the constitution of the Netherlands. Many constitutions lay down a human right to the environment in one form or the other. This is, for example, seen in Argentina, Belgium, France, Spain and Chile. Other constitutions provide for procedural environmental rights (alongside the more traditional civil and political rights) to environmental information and public participation. This is, for example, witnessed in the constitutions of Norway and Russia.

The right enshrined in the newly approved Ecuadorian constitution, however, is a first of its kind in that in it guarantees a right for the natural environment. Previously, some constitutions have talked about ecological sustainability and integrity but no constitution has gone as far as to afford the environment a right. I have only been able to find one reference to the exact wording of the proposed right from the Guardian, which reads: 

“Natural communities and ecosystems possess the unalienable right to exist, flourish and evolve within Ecuador. Those rights shall be self-executing, and it shall be the duty and right of all Ecuadorian governments, communities, and individuals to enforce those rights.”

It is evident that the right at least has potential to secure the natural environment of Ecuador – a country where large areas or pristine environments are suffering from exploitation of natural resources. At the same time, it is perhaps doubtful whether the amendment will leave to radical improvements of Ecuador’s environment. It is often asserted that the constitutionally enshrined environmental rights, in whatever form, are mere political slogans that remain unimplemented. Given that Ecuador relies heavily on foreign investment and high oil prices in order to keep economically afloat, it may just be that the government favour further development at the expense of the environment. Either way, Ecuador has just become the first country to facilitate a substantive right for the environment. Exciting days ahead.

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