Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian lawsuits Succeed and Others Fail

Abstract

Summary In 2008, Ecuador became the world’s first country to include rights of Nature (RoN) in its constitution. The constitution presents RoN as a tool for building a new form of sustainable development based on the Andean Indigenous concept sumak kawsay ( buen vivir in Spanish), which is rooted in the idea of living in harmony with Nature. While much is written on the ethical arguments regarding RoN (and buen vivir), few studies analyze how RoN might be implemented. We fill this gap by explaining why some efforts to apply Ecuador’s RoN laws succeeded while others failed. We compare 13 RoN lawsuits using an original framework for analyzing the pathways and strategies RoN advocates (and their opponents) use to build (and counter) momentum behind judicial processes meant to buttress the enforcement of contested RoN norms. The case descriptions and analysis draw on primary documents and in-depth interviews conducted during 2014–15. Through process tracing, we identified key structural conditions and strategic decisions shaping the outcomes in each case. Our findings as of 2016 reveal unexpected pathways of influence involving a symbiotic process among civil society, state agencies, and the courts. Surprisingly, civil society pressure was the least successful pathway, as activists lost high-profile lawsuits. Nevertheless, they facilitated judicial momentum by working on less-politicized local cases and training lower-level judges. Instrumental use of RoN laws by the state produced unintended consequences, including establishing precedent and educating judges. Knowledgable judges are unilaterally applying RoN in their sentencing, even when neither claimants nor defendants allege RoN violations. Ecuador’s cases demonstrate how “weak” RoN laws can strengthen, providing important insight into the global contestation over sustainable development and the strategies and legal tools being used to advance a post-neoliberal development agenda rooted in harmony with nature.