At the end of September, voters in Ecuador enthusiastically approved a referendum designed to consolidate power under leftist president Rafael Correa and to strategically shock the country's flagging economy. After enduring economic meltdown, runaway inflation, and other equally dramatic financial crises, the populace was more than ready to welcome Correa's plan, which passed with 65 percent popular approval. Under the new constitution, which openDemocracy writer Guy Hedgecoe has critiqued as a "labyrinth of idealistic generalisation, nebulous ambiguity and outright contradiction," Correa will be able to intervene easily in the private sector (the government can now take over farmland not considered "socially useful") as well as the judiciary and legislature. Additionally, Correa will be able to run for two consecutive re-elections, a move that can potentially extend his presidency until 2017, and has led critics to accuse him of harbouring more radical ambitions.
But social reforms and allegations of power grabbing aside, what has generated the most debate is a short section in the referendum entitled The Rights of Nature (RoN), a bill aimed to grant nature the kind of inalienable rights ordinarily reserved for citizens.
In recent years, the only thing in Ecuador more blighted than the economy is the environment. According to mongabay.com, Ecuador has the highest deforestation rate in South America - no small feat with competitors like Brazil - as well as the continent's worst environmental record. Currently, the country is embroiled in a massive lawsuit against Chevron/Texaco, which has dumped billions of gallons of crude oil in Ecuador's western Amazon over the past 25 years, and which spilled 17 million gallons of oil into the country's river systems in 1992. Since July, the case has escalated into the realm of international politics, with Chevron asking the Bush administration to cut off trade preferences to Ecuador, and anti-Chevron activists appealing to Barack Obama to push the issue through Congress and ensure the country a fair trial.
So with this in mind, over the past year, Pennsylvania NGO The Community Environmental Legal Defense Fund (CELDF) was invited to work with members of Ecuador's constitutional assembly and draft RoN, a legal document that environmentalists hope will mark a milestone in Ecuadorian and international law.
Here's the bill's first article: "Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution." By granting nature the right to its own "processes," CELDF hopes to create safeguards against corrupt governments and foreign businesses, which currently operate unchecked and with impunity. Jessica Loudis is a freelance writer living in Brooklyn who specialises in Latin America and US politics.
Obviously, as the first constitutional document to recognize nature as having rights, the RoN raises many difficult and nuanced legal questions. At what point exactly does human development infringe on nature's right to exist? Who is capable of invoking RoN, and where does their authority come from? Finally, can a piece of legislature this ambiguous deliver on its promise to stand up against the behemoth of neoliberalism?
One way of considering these questions, and more broadly, the problems underlying RoN, is through Hannah Arendt and her thinking about rights. As one of the founders of modern human rights theory - as well as one of its harshest critics - Arendt is crucial for understanding the legal arguments that underpin contemporary human rights law, and in cases such as this one, the difficulties that can arise in applying them to alternate agendas. For Arendt, the primary function of rights - the function that failed so dramatically in the years prior to 1941 - is to preserve the basic life and dignity of individuals, either from states or transnational forces.
But the great paradox in human rights is where exactly the authority to protect them should be found - at the level of the state, which can so easily violate them, or on a global level, which runs the risk of lacking sufficient bite to follow its bark. By rooting RoN in a national constitution, the framers have put themselves in the odd position of attempting to claim universality through invoking the language of rights, yet still finding themselves subject to the discretion and oversight of a state.
Another helpful Arendtian concept for thinking about how to use The Rights of Nature is through the notion of natality, or "the capacity for beginning," which Arendt believes to be innate to every human. For Arendt, natality signifies not just birth, but also the possibility of radical newness, of remaking the world over and over again through "the entry of a novel creature... as something entirely new." Natality, in other words, is the thing that both enables politics and also saves it from itself through offering the possibility of renewal, and as such, the possibility of difference. Writing in the aftermath of the Second World War - a moment of total political devastation - Arendt found solace in the potential to begin again.
Thinking back to Ecuador, in the wake of oil spills, massive deforestation and the near destruction of the country's ecosystem, the language of the RoN reflects a fairly Arendtian conclusion: rather than draw up legislation premised on specific policy proposals which can be circumvented or ignored, the referendum is designed towards loftier ideals, and thus left deliberately open-ended in order to preserve the very possibility of a future.
A quick caveat here: In The Origins of Totalitarianism, Arendt noted that one of the greatest perils to human rights was that it could lapse into the rhetoric of animal rights, and thus losing sight of the fundamental dignity of man. In light of this concern, while Arendt is a helpful tool for evaluating the RoN, I'm certain that she would have loathed the application of her thinking in this context. Nevertheless, RoN does take a cue from Arendt, and borrows from her the notion that rights are necessary to preserve life in all its diversity.
Weighing the possibilities
Given that the bill is designed to protect the continuity of nature, it would make sense that its proponents use natality as a criterion for deciding whether or not the RoN has been violated. That is to say, in making decisions about drilling for oil or deforesting the Amazon - in short, actions that would disturb existing patterns - these choices must be carefully weighed against whether or not they would foreclose the possibility of a future, and moreover, a future that could be radically different.
For example, if a chemical manufacturer proposes to build a plant whose production could alter the ecosystem around it, then one means of evaluation would be to determine if nature could successfully reestablish itself after the plant has disappeared. This doesn't mean that all incursions into Ecuador's environment or natural resources should be prohibited, but it does mean that the government must seriously consider whether or not an action could permanently scar its natural surrounds.
At this point, the referendum could be either a wild success or prove simply useless. With CELDF fielding calls from all around the world to help write environmental law into new constitutions (including Nepal's), Ecuador may very well establish a trend of global legal environmentalism. On the other hand, if the RoN is invoked too often and too easily, it'll probably be perceived as an obstacle to economic growth and pitted politically against the needs of citizens. For RoN to work, activists must frame the preservation of nature as a project with immediate and tangible benefits for Ecuadorians, underlining the urgency of both environmental and economic crises. Without making the implications of the RoN tangibly real to Ecuadorians, implementation will be impossible. It's one thing to grant rights to nature; it's quite another to make sure they're actually protected.