Could ‘Nature’s Rights’ Save Yasuni and Keep His Oil in the Ground? (Commentary)

With the past decade being the warmest on record, and four days in July the warmest on record, the climate emergency is coming into sharper focus. Directly linked to accelerating species extinctions and ecosystem collapse, the need for bold steps to curb climate change, including cutting fossil fuel emissions, is clear.

Ecuador took such a step last year when nearly 60 percent of the people voted to halt oil drilling in the Ishpingo-Tambococha-Tiputini (ITT) oil field, a decision that would keep a billion barrels of oil in the ground. Located in the Yasuní National Park in the Amazon, an ecosystem in severe crisis, the people of Ecuador fought for a decade to bring it to a popular vote.

The Yasuní has ​​one of the highest levels of biodiversity on Earth. In 1979, Ecuador designated it a national park and in 1989, UNESCO designated it a biosphere reserve. Indigenous groups live in the Yasuní, whose territorial rights are recognized by the Ecuadorian Constitution. In addition, Yasuní is home to the Tagaeri and Taromenane, indigenous peoples who live in voluntary isolation, whose rights are also recognized.

Citizens had to file a petition with the Constitutional Court of Ecuador to consider Yasuní’s citizen initiative (consult popular) to a vote. After the vote, the court ordered that oil drilling be suspended for one year.

Despite this, drilling continues as government officials and oil companies attempt to delay the vote, citing cost and technical challenges. This comes amid the rampant corruption and drug gang violence that plague Ecuador. The government has raised taxes and cut subsidies to fund its war on the cartels.

While oil company leaders argue to ignore the will of the people, citizens have returned to the Constitutional Court for help. Meanwhile, the government has announced that it will ask the court to suspend the decision, and there are proposals to hold a new vote, asking the people to reverse their decision and allow the continued exploitation of the Yasuní.

However, the Ecuadorian Constitution explicitly states that popular consultations are binding and require immediate enforcement. Failure to comply would be unconstitutional and raise deep democratic questions.

See also: What’s next for Ecuador’s Yasuní National Park, a year after the oil referendum?

The rights of people and nature

In 2008, the people of Ecuador ratified a new constitution that enshrines the rights of nature (Pacha-Mama)Nature now has rights, including the right to exist, regenerate, evolve and be restored.

Much environmental damage has been stopped and prevented thanks to the effective application of these new rights. The Constitutional Court has confirmed and upheld the rights of nature, emphasizing that – like all constitutional rights – the rights of nature apply to all of Ecuador, including the Amazon.

Ecuador’s neighbors within the Amazon bioregion have followed suit. Colombia’s Supreme Court recognized the rights of the Colombian Amazon in 2018, and this year a Peruvian court recognized the rights of the Marañón River, a tributary of the Amazon.

The Constitution of Ecuador recognizes, in addition to the rights of nature, the right of the people to enforce these rights. Most cases brought before the courts of Ecuador to enforce the rights of nature are brought by people and communities.

The vote to protect the Yasuní was not based on the rights of nature, but on the right of people to participate in decisions on matters of public interest. However, the rights of nature offer a path forward to protect the Yasuní.

In 2021, the Constitutional Court of Ecuador ruled that, according to Article 73 of the Constitution, part of the chapter on the rights of nature, the state must take a precautionary measure to prevent the extinction of species and the destruction of ecosystems, something that the Court even compared to genocide. It ordered an end to mining in the protected forest of Los Cedros, a fragile ecosystem and habitat of endangered species, as a violation of the rights of nature. Likewise, in 2021 Mangroves In this case, the Court held that vulnerable ecosystems, such as coastal mangroves, require special protection by the state. Failure to protect them was a violation of Article 73.

Based on its own precedent in these cases, the court should apply the rights of nature in deciding the fate of the Yasuní, which is also home to endangered species and fragile ecosystems.

The court should also consider that drilling in the Yasuní is the result of an exception to the constitutional ban on extraction in national parks. In 2013, Ecuador’s National Assembly authorized the exception, declaring drilling to be in the national interest. This ensured that citizens could consult popular to ignore the actions of the assembly and protect the Yasuní.

Citizens are beginning to invoke the rights of nature as a central argument for protecting the Yasuní. As climate change accelerates, these constitutional rights have proven essential to protecting nature and combating threats not only to the Yasuní, but also to democracy and the rule of law.

Mari Margil is director of the Center for Democratic and Environmental Rights and Hugo Echeverría is a leading lawyer in the field of nature and environmental rights.

For more information about the referendum, see this related item:

What is the future of Ecuador’s Yasuní National Park, one year after the oil referendum?

Related Mongabay podcast episode: How Ecuador’s indigenous Shuar reclaimed their ancestral forest. Listen here: