Discussing State’s Responsibility towards Nature in the Ecuadorean Constitution, Chapter VII, Article 72

pachamama3di Alice Sieve

Beyond the historical importance in a narrow sense, the premises that had lead the Republic of Ecuador to adopt a new Constitution have marked a shift in perspective towards a more legally defined conception of nature. What turns out to be appealing is the attitude concerning responsibility and the behaviour proposed in order to improve the cohabitation between humans and the environment.

It is significant that this Chart had been approved in 2008, after several international attempts to draw attention to topics such as climate change and the environment. In fact, the first decade of 2000s was supposed to start showing the benefits of the Kyoto Protocol (1997), also signed by the Ecuadorean Republic. The inclusion of nature in an official document as a national Chart recognizes its legal presence that cannot be ignored, rather must be respected and protected by all the citizens. Focusing on Chapter 7, Article 72 in particular, it is evident the State’s committment to intervene on nature’s behalf, defining an ethical sensibility.

This article opens on a general concept of nature. This Consitution does not specify what is meant by “nature” in terms of material entities, nevertheless it asserts that “we are a part of it” (PREAMBLE). It does not speak about specific natural elements, rather nature seems to be considered as a place, “where life is reproduced and occurs” (ARTICLE 71). The fact that nature is regarded as a whole entity recognized as a general notion establishes its juridical presence: nature is given a sort of dignity and importance, at the point that it is supposed to possess rights. Considering this assumption in an overall view, it basically means that nature is equalized to a physical person in claiming rights.

The right discussed in this article concerns the fact of being “restored”. This claiming assumes that some kind of damage may occur, so it admits that the human impact can actually bring a negative effect upon the environment. If we reconsider this sentence at the light of responsibility, it turns out to be covered by further implications. Since this is a Consitution upheld by citizens, in case of damage they are all responsible for it, as well as they have the duty to put Nature in healthier conditions. This seems to be confirmed by the rest of the article, as a matter of fact it refers to “affected natural systems” and “compensation”.

One important observation pertains to responsibility and the fact that the reparation is to be lead separately, not involving the State. The statement is central, because on one hand it asserts nature to have rights, but on the other hand it displaces the State from the obligations towards it. Once the damage has been done, nature deserves a reparation, and this task is supposed to be carried independently, no matters who is charged with this responsibility. However, affected individuals and communities can rely on the juridical responsibility that the State owes them. Probably the reference to “communities” is bound to the specific Ecuadorean context, since there is still a great number of rural communities in the country that live thanks to the benefit they get from the direct contact with nature. 

Still concentrating on this sentence, attention must be paid especially on two key terms: those of “dependence” and natural “systems”. A system is presumed to be ruled by different elements in relation with one another, so these words acknowledge an interrelation between the components of the natural order, in mutual and dependent position. Therefore, nature represents a place governed by relations, among those humans represent a particular component that has the power of damaging and/or destroying the equilibrium. The lines which follow insist on the delicacy of this stability. “Environmental impact” suggests the idea of a surrounding and of the series of consequences that a disaster have. Nature and the environment seem to be meant the same way, as a living structure that may be modified by a severe damage. It is significant that “the exploitation of nonrenovable sources” is considered to be a cause of massive deprivation, since it is covered by an ethical hue defining the exploitation as something both harmful but admitted. This article does not deny the possibility of exploiting the sources, but condamns its effects. As a matter of fact, the State is said to be responsible for the “effective mechanism to achieve the restoration”: the State must provide a solution for the problems raised by destruction. The same concept appears a few lines after (ARTICLE 73). It is important to note that in that specific occasion the State has the power to decide and deliberate on the means to impose, so it has the responsability to quantify the damage as well as the modality for its restoration.

To conclude, this article highlights different patterns related to nature and the duties the citizens owe. The State has to respect the relationship between humans and the environment, being the guarantee in case of damage. Therefore, responsability is not only due to the physical people that the State represent, but also to the space they dwell. Since the State represents all the people, everyone is concerned by the environmental problem and so endowed with the duty of cooperate for a solution. From an ethical point of view, this means that nature is equally recognized as a tangible entity, and it is upright to respect his rights.

Appendix
ARTICLE 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.

In those cases of severe or permanent environmental impact, including those caused by the exploitation of nonrenewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.

Bibliography
Constitution of the Republic of Ecuador (2008), English trans., Title II, ch. 7

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