Evolution of rights of nature: A Comparative Analysis of Ecuador and Spain
The concepts of nature's rights have gained significant momentum in recent legal developments across Latin America, such as in Ecuador. In contrast, Western jurisdictions, such as those within the European Union, have fallen short in replicating these trends given differentiated cultural,constitutional, and historical backgrounds, which have left global south countries at a higher predisposition for ecocentrist approaches. A comparative analysis of the acknowledgment of nature's rights will be explored with the Constitutional Court of Ecuador's decision on marine life's legal rights (2024) and the Mar Menor case in Spain (2022-2024). Likewise, the different philosophies of collectivism, individualism, and anthropocentrism will indicate the reasoning for this gap of protection in the Global West compared to the Global South. The main thesis of this paper shall demonstrate how Western countries (Spain), despite rights of nature-improving efforts, remain constitutionally and culturally disadvantaged compared to Latin American jurisdictions and their indigenous philosophies.
Ecuador's 2008 constitution established the rights of nature, making it one of the first nations to integrate these ideas into its legal system. Building on this constitutional foundation, the Constitutional Court of Ecuador delivered a landmark judgment regarding coastal marine ecosystems on November 28th, 2024. This case was initiated in 2020 by industrial fisheries that argued that the eight-nautical-mile artisanal fishing zone, which prohibited industrial fishing, violated the rights of nature and their right to conduct economic activity. Hence, the court applied a proportionality test to determine if the zone restriction was justified under their constitution.
Firstly, the court pointed out that in chapter 7, art. 71 of its constitution states that nature has the right to integral respect for its existence, and this extends to the ocean’s ecosystems. Likewise, the court highlighted the importance of the ocean in aiding with adapting to climate change and mitigating its effects. A key point is that the court confirms that RoN has its limits, like other constitutional rights. Therefore, the court considered humans rights and economic development against nature’s rights. The court found that economic development is not absolute and can be limited for environmental reasons. Thus, the court emphasized that the zone restriction increased the biomass of small pelagic fish, which is essential for its ecosystem. The zone was also designed using the best available scientific data on the ecosystem.
Thereafter, throughout the court’s reasoning, they analyzed the suitability, necessity, and proportionality of this zone restriction. It was found that Coastal marine ecosystems ‘have the right to have their existence and the maintenance and regeneration of their vital cycles, structure, functions, and evolutionary process fully respected.’ Hence, a particularly significant observation made by the court was that:
‘[...] constitutes a new form of coexistence of citizens, diversity, and harmony with nature.’
Consequently, this case indicates the transformation in the relationship between the natural world and humanity in Ecuador. However, these principles are rooted in Ecuador’s indigenous heritage. Pachamama is an ancient goddess who is similar to Mother Earth. Pachamama derives from Quichua, an Indigenous language spoken in the Ecuadorian Andean region. This philosophy emphasizes the intrinsic interconnectedness between humanity and nature. This idea is deeply integrated into Ecuadorian society, and it was given legal recognition in the 2008 constitution.
Furthermore, Ecuador can be categorized as a collectivist and ecocentric community. Collectivism is ‘a cluster of attitudes, beliefs, and behaviors towards a wide variety of people.’ Thus, in these societies, the well-being of the collective is not solely in human relationships, but in the interconnectedness of human relationships with nature. The court portrays this in the case presented by indicating this new form of coexistence, which is unique and not seen in individualistic legal systems. Scholars Bond and Forgas indicated that the primary difference between these approaches is noted in ‘processes such as learning, reinforcement, and social perception.’ Hence, this is portrayed greatly throughout the coastal marine case in Ecuador. Social perception of nature goes beyond the economic value and development in this society due to their education on Pachamama. As a result, these notions are accepted and widely supported by the public.
Contrastingly, only by 2022, the case of Mar Menor inaugurated the long-overdue implementation of Europe’s first legally subjective ecosystem. Taking the global south as a model, the Spanish constitutional court delivered a landmark ruling on the suffering saline lagoon, establishing the constitutionalism of the Rights of Nature and granting it rights to conservation, protection and restoration. A few key contextual differences, however, depict this legal milestone in a conflictingly less commendatory tone.
The case of Mar Menor was initiated in 2020 as a regional legislative initiative, racking 639,824 signatures by the time it was officially delivered as a termed ‘Popular Legislative Initiative’. It concerned the deterioration of the saline lagoon, which has over an extended period of time fallen victim to intensive agriculture, artificially-inflicted Mediterranean sea water exchanges, and chemical or waste-water contamination, amongst other anthropogenic developments. Listing various erosion and wildlife damages the case notably also points out economic damages in the fishing, tourism, and housing sectors, substantiating the demand for protection.
Comparatively with its global south antecedents, however, the recognition of legal subjectivity in this case is built on an arguably uncertain and fragile foundation. Unlike in the context of the Ecuadorian constitution, supporting rights of nature through consolidated comprehensions of ‘pachamama’ rights and organized representational frameworks, the rights of Mar Menor are legally anchored on a constitution that offers a mainly individualistic and anthropocentric philosophy. Despite the constitutional court's calls for the implementation of a more legally ecocentric interpretation, Section 45 of the Spanish constitution states, “everyone has the right to enjoy an environment suitable for personal development, as well as the duty to preserve it”. Contestably, the very wording of this article impedes a non-anthropocentric interpretation as it envisions a hierarchical relationship between humans and nature, establishing the rights to’ nature rather than the rights of’ nature.
On the other hand, while the Ecuadorian Coastal protection ruling arose from a clash between citizens’ economic rights and environmental protection, the Mar Menor Act represents a considerably more democratically legitimate ruling, as demanded by citizens and advanced by parliament, facing only minimal resistance from extreme right-wing ‘Vox’ parliamentarians. Plausibly, however, both the citizen and parliament support hinged to some degree on the cessation of the aforementioned large economic damages, thus providing highly differentiated stakes between the Spanish case and the Ecuadorian case. The fact that economic benefits as well as citizen’s well-being represented evaluated stakes in the Mar Menor Act reveal the prevalence of anthropocentrism and, to some extent, an individualistic approach to the attribution of rights of nature.
In conclusion, these two cases highlight the differing approaches when enforcing nature’s rights. The Ecuadorian case represented a more ecocentric approach which was widely accepted due to the legal standing of the notion of Pachamama, where the principle itself counterbalanced the forces of economic benefit. Likewise, this case portrayed a court interpreting the law in such a way that humans and nature are equal. Meanwhile, although in the Mar Menor case the Spanish court attempted to follow similar trends, it fell short due to the prevalent anthropocentric elements in the Western constitutions and resulted in the formal recognition of nature’s rights, through arguably motivated by the anticipated economic benefits for both citizens and the state. Hence, the Spanish case exemplifies the hierarchical dynamic between humans and nature hindering the constitutional evolution of nature's rights in the European sphere and which motivates critiques on the effectiveness of such a legal movement.
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