Environmental Rights Between Constitutional Law and Local Context: Reflections on a Moving Target

Abstract

Environmental rights such as the right to a sound environment and rights of nature, while playing an increasingly important role in global environmental governance and protection, frequently do not correspond to articulations of fundamental experiences of injustice by communities particularly affected by serious environmental degradation caused by, for example, extractive activities or major infrastructure projects. We present three empirically grounded case studies that employ concepts and methods from anthropology to demonstrate this. The work is still in progress, but sufficiently well advanced to present some findings. Our ethnographic research in Ethiopia and Mongolia reveals that vulnerable local communities take recourse to constitutional environmental rights far less often than expected. The reasons for this range from rule-of-law issues to local perceptions of vulnerability and relevant norms. Conversely, where environmental rights are demanded or claimed at the local level, they are often not translated adequately into the law of the state. Our case study on Ecuador, where rights of nature as a specific type of environmental rights have been included in the constitution, shows that transfers from local practice, while potentially having a transformative effect, may lead to conceptual selectivity, ambiguity, lack of clarity, and overlaps with existing state norms and, hence, redundancies. Environmental rights are, therefore, a moving target whose concrete added value hinges on context—as methods of law and anthropology serve to illustrate.

A. Introduction

We aim to show the extent to which environmental rights in constitutions correspond to local articulations of environmental (in)justice within communities that are vulnerable to severe environmental degradation resulting from activities such as extractivism and large-scale infrastructure projects. Our inquiry serves to test the added value of such rights in their various contexts and to generate deeper insights into the environmental effect on different sectors of society, whether it makes sense to formulate environmental concerns as rights claims,¹ what alternative conceptions of environmental justice exist, and what consequences ensue from a choice among different alternatives in a practical sense. For the purposes of this article, we have selected case studies from Ethiopia, Mongolia, and Ecuador to investigate how people refer to environmental rights or to different norms expressing perceptions of injustice.²

In this vein, we have examined the extent to which constitutional law aptly captures Indigenous knowledges and ontologies when it explicitly incorporates environmental rights—such as the rights of nature—and how such congruency or divergence becomes manifest in, for instance, court cases. Our work is situated at the juncture of environmental and human rights law, on the one hand, and environmental anthropology, on the other hand.³ Investing in law and anthropology research has allowed us, as legal academics, to venture onto new terrain, operating on the premise that small places can represent large issues.⁴ We combine notions of fundamentality and vulnerability: Where environmental rights aim to address fundamental experiences of injustice, local situations of high vulnerability may help identify how fundamental these norms are in practice and what they add to existing guarantees such as rights to health, food, water, an adequate standard of living, and so forth.

B. Environmental Rights in Ethiopia: The Case of the GIBE III Dam on the Omo River⁵

The Ethiopian case study is aimed at understanding the absence of claims anchored in constitutional environmental rights as guaranteed in Article 44, Paragraph One of the Constitution—the right to a clean and healthy environment—in a context of increasing environmental challenges to local communities. The focus of the research is on how the construction of a dam that interrupts the natural flow of the Omo River affects two agro-pastoralist communities—Dasanech and Nyangatom—whose way of life depends on access to the waters of the river.

Considering the manifest and severe environmental consequences and the fact that the language of environmental rights, broadly conceived, does not inform public discourses regarding the suffering of the affected communities, three research questions arise: First, are environmental rights sensitive to the specific sociocultural, legal, and political contexts in which they must operate? Second, what is the utility of environmental rights in ensuring the resilience of vulnerable communities, especially in comparison to alternative legal and political strategies? And third, what factors inform the choice among different alternatives?

There are at least three ways in which the research questions are connected to an interdisciplinary approach based on the combination of law and anthropology when looking at our cases in Ethiopia. First, the use of anthropology has conceptual relevance. Theories developed by legal anthropologists enable us to frame the research questions and develop hypotheses. There is a vast literature showing the varied ways in which vulnerable communities develop mechanisms to subvert power through the use of the law.⁶ One way identified by legal anthropologists is the strategic deployment of law and the language of rights as a mechanism of resistance and protest in non-judicial settings.⁷ These theories in the field of legal anthropology allow us to frame questions to better understand the relevance and effectiveness of the ideals contained in laws providing for environmental rights as a tool of resilience for local communities in contexts where judicial remedy is not available. Therefore, the approach is guided by already existing theories for analysis to develop new hypothesis and build on those theories based on the ethnographic data.⁸

Second, the use of anthropology has methodological importance. Despite the ratification of numerous human rights conventions and the adoption of an extensive bill of rights including a range of environmental rights in its current constitution, judicial enforcement of human rights has been dismal in Ethiopia. This is attributed to the manifestly authoritarian governance prevalent not only since the adoption of the Federal Constitution in 1991, but throughout its modern history. Even where there are no effective judicial processes and remedies, human rights in general—and environmental rights in particular—are useful. As a hegemonic idea since at least the post-World War II era, people deploy it in different forms and arenas to resist and contest power and pursue their individual or collective interests.⁹ What is rather puzzling in the Ethiopian case is the virtual absence of claims anchored in the principles of constitutionally guaranteed environmental human rights in the conflicts with evident environmental dimensions such as construction and operation of large hydroelectric power plants, while other rights are routinely invoked.

It is obvious that understanding the context in which the constitutional rules on environmental rights have been adopted becomes relevant in answering why they are not invoked. One relevant question relates to re-evaluating the assumptions regarding the social legitimacy of these rules. More often than not, we assume that if a certain right is constitutionally entrenched, it must at least enjoy strong normative legitimacy among the elite involved in the constitution making. This is because constitutions are believed to reflect strongly held values and goals of the actors involved in their making.¹⁰ However, for various reasons, certain rights—even some without any social legitimacy—can be inscribed into constitutions through unreflective borrowing from transnational sources.¹¹ This observation helps us explore the motivations behind the inclusion of environmental rights in the Ethiopian Constitution of 1995. In understanding the motivations of different actors, ethnographic methods such as in-depth interviews and participant observation provide a much wider perspective than text-based analyses, ultimately allowing one to paint a more complex picture.

Understanding the utility of environmental rights to ensure resilience of vulnerable communities and the factors that go into choosing from among diverse legal and/or political strategies in a specific sociocultural, legal, and political context requires empirical research efforts. The doctrinal approach is simply inadequate for addressing this endeavor. For this reason, the anthropological method of ethnography is essential to understand communities in their social context and with all their complexity, and how they use and contest rules regarding environmental rights.

Finally, the ethnographic works on the cultures of the communities Nyangatom and Dasanech in South Omo are full of what in anthropology is known as “thick” descriptions, which are critical for the general research framework.¹² Despite the fact that the presumed autonomy and objectivity of law has long been debunked, most traditional legal education continues to promote the view that law is a distinct and a self-contained logical system. For a traditionally trained legal scholar, most solutions one can think of for any social issue start and end with the law. If a certain law’s objectives are not achieved, the instinct is to seek explanations for the failure either in the rule making or in the interpretation and application of the rules. However, thick description in anthropology provides a wider context in which legal rules are made, applied, and contested. By engaging law through anthropology, one is able to appreciate what law can and cannot do, no matter how “perfectly” designed it is.

A particular context we focus on in this case study is the influence of authoritarian political culture as a possible explanation for why fundamental rights are routinely violated without redress. Preliminary data already indicates that the basic assumptions of classic rule-of-law concepts, such as the primacy of the law, do not hold. For example, officers in the environmental protection agency responsible for the enforcement of anti-pollution regulations are reluctant to enforce the law when the violation is caused by a government entity. A lawyer specializing in environmental public interest litigation in Addis Ababa stated:

As part of the requirement to exhaust administrative remedies, I usually engage with experts and officials from the Commission for Protection of the Environment and urge them to take administrative measures such as issuing fines where appropriate. However, they tell me that they are unable to issue fines against government institutions. The say, “We are a government institution; how can we sanction another government institution?”¹³

This is not an isolated opinion; it reflects the sentiment underlying an Amharic proverb that roughly translates as: “Just as one cannot plow the sky, one cannot sue the king.” This sentiment perhaps partially explains why there are very few attempts to pursue the implementation of constitutionally entrenched environmental rights through the judicial avenue.

Enforcement of environmental laws with reference to high-profile, government-sponsored infrastructure projects such as the construction and operation of the examined hydropower dam is even less likely. For example, the power to evaluate the process of conducting environmental impact assessments and, ultimately, approving them—a key tool in the enforcement of substantive as well as procedural aspects of environmental rights—was, until the end of 2020, legally delegated to the very agency overseeing the planning and operation of power generation, creating a clear conflict of interests. We can then tentatively conclude that environmental rights are not enforced, whether the claims are made by individual citizens or are the result of interventions by regulatory authorities.

However, there are instances where rules on environmental rights, such as prior consultation, are relatively better enforced. The source of funding for a particular dam seems to be a good indicator of how seriously environmental standards and procedures will be taken. Early data indicates that where the funding for a dam happens to come from local sources, the rules are routinely ignored. The Head of the Department for Environment and Safety at the Ethiopian Electric Power corporation admitted that the primary motivation for complying with impact assessment procedures and public participation is satisfying funding institutions such as the World Bank.¹⁴ The realization that procedural rules in funding agreements have a better chance of enforcement and real influence than constitutionally entrenched fundamental rights opens a way to developing new questions and hypotheses examining the values attached to the constitutional entrenchment of environmental rights.

C. Environmental Rights in Mongolia—The Case of Mining in South Gobi¹⁵

One would normally expect that constitutionalizing environmental rights would strengthen the overall legal framework on environmental protection and provide positive environmental outcomes.¹⁶ Mongolia’s Constitution contains all genres of environmental protection provisions. The substantive right to a healthy environment recognizes that “each citizen has the right to a healthy and safe environment and to be protected against environmental pollution and ecological imbalance.”¹⁷ In this regard, the Constitution also establishes the responsibility of the Mongolian government to “undertake measures for the protection of the environment, the sustainable use and restoration of natural resources.”¹⁸ In addition, every citizen has the sacred constitutional duty to protect the environment and nature.¹⁹ Furthermore, constitutional amendments enshrine procedural environmental rights, such as the right to access environmental information concerning large-scale extraction activities.²⁰ Following the recognition of the fundamental right to a safe and healthy environment, Mongolia adopted numerous environmental laws, administrative norms, and environmental standards.²¹ Yet all of these measures have failed to provide positive environmental outcomes on the ground.²²

The Mongolian case study focuses on three soums (districts), namely Gurvan Tes, Tsogttsetsii, and Khanbogd, all located near large-scale extraction activities in South Gobi aimag (province). South Gobi is where Mongolia’s most significant coal and copper mines are located, and it suffers from the associated environmental degradation. The Nariin Sukhait coal mining complex, the Tavan Tolgoi coal mines, and the Oyu Tolgoi copper mine, which combined generate close to eighty percent of the state’s mineral wealth, are located in this part of the country. The communities near these gigantic mines share similar environmental stressors, including displacement, lack of access to water resources and grazing lands, massive soil degradation, dusty soil (tüüren ²³) and related dust storms, and so forth. One would therefore expect South Gobi to be a place where constitutional environmental rights are claimed and contested. However, such claims and contestations have not been brought to courts or other judicial bodies.

We aim to understand why the local communities prefer not to claim constitutional environmental rights through the judiciary, but do invoke these rights as leverage to negotiate with the state and the corporate entities in South Gobi. The initial findings support the hypothesis that the constitutional environmental rights are not conceptually coherent with the fundamental injustices encountered by these communities in their space. Combining law and anthropology enables us to show the limitations of the law in practice. From a legal perspective, the absence of judicial practice might be related to how local courts implement procedural environmental legal rules in South Gobi. Legal scholars focus on the ways environmental cases reach the judicial system, including (i) individual claims related to concrete violations or potential violations of environmental rights; (ii) public interest litigation pursued by non-governmental organizations and even local governments aimed at protecting the environment in general terms; and (iii) review of the constitutionality of laws, decrees, and other decisions by the Ulsyn Ikh Khural (the Mongolian Parliament) and other bodies based on fundamental environmental rights.²⁴ However, tracing these procedural rules with regard to available remedies from a doctrinal perspective misses the specific empirical realities that can have a decisive influence on implementation practices, as the following examples show.

It is challenging for herders from communities affected by mining to demonstrate violations of subjective environmental rights in their setting. In many cases, they cannot recognize or know for certain that their rights have been infringed due to mining and mining-related developments. The power asymmetries between herding families and mining companies are immense. Eighty-nine herding families live near Oyu Tolgoi, the world’s third-largest copper mine; some 328 herding families operate near Tavan Tolgoi, the nation’s largest coal mine; and close to thirty herding families live in areas adjacent to the Nariin Sukhait mining complex—these are insignificant numbers in the face of the state’s major development interests. These herding families are generally composed of two or three members–most of them male–and there are significant distances between the places where they live, which tend to be anywhere from three to ten kilometers from one another.

In addition, beyond customary use rights, there are no clear and concrete legal rights attached to the pastures and natural resources. One herder from Gurvan Tes, near the Nariin Sukhait mining complex, said, “I could not find some of my livestock because a week ago, I went to the soum center to join a protest and left my livestock unguarded.”²⁵ In contrast to judicial proceedings, political demonstrations, in most instances, last for a couple of days. No herders can leave their livestock for the amount of time it would take to pursue a lengthy judicial process, especially because they have no concrete rights over the resources. These communities avoid claiming environmental rights through formal legal processes for several reasons: They have no knowledge of how the legal framework operates; they are generally not immediately aware of potential violations; they are outnumbered and not heard; and legal procedural rules are not convenient for or compatible with the nomadic way of life.

Furthermore, the state and its mining practices have divided these communities into opposing groups, which has prevented them from collaborating and initiating strategic and public interest litigation or pursuing other available legal remedies. There are the uuguul (Indigenous) and suuguul (newcomers); the mungu avsan (those who accept compensation from mining companies) and the mungu avaagui (those who reject compensation); the nuluulliin busiinkhen (those who reside within mining impact zones) and the nuluullin busiinkhen bish (those who do not); the malchyn (herders) and the mal bukhii irgen (town residents who own livestock but do not herd them themselves). As a result, cooperation and communication between community members is not just limited by geography, but is also hindered by political, social, and cultural arrangements. A herder from Khanbogd soum near the Oyu Tolgoi mine observed that “these opposing groups put me in a difficult position to pursue legal remedies.”²⁶ Local meetings end in many unnecessary quarrels because one belongs to an opposing group. As a result, local communities are resigned to the pressing environmental distress and fail to initiate time-sensitive legal proceedings to resolve the critical issues at hand.

In order to have more profound knowledge of these phenomena and how environmental distress leads to marginalizing herding families and making them vulnerable, the research methods had to be expanded to include ethnographic tools focused on the actors on the ground and the analysis of how power is exercised. Combining law and anthropology has provided us with an analytical framework to deconstruct certain legal concepts, such as constitutional environmental rights. Theory in the context of legal anthropology allows us to understand that fundamental substantive and procedural rights are vernacularized, hybridized, and legalized in various social contexts.²⁷

The concept of hybridity is very useful in the Mongolian case study to characterize how attitudes have changed in relation to overarching ideologies.²⁸ Anthropologists take recourse to the framework of hybridity in ways that show how new neoliberal projects intrude on traditional ideologies and vice versa, and how the holders of the traditional ideology indigenize (mongolchloch, “Mongolize”) neoliberal conceptions.²⁹ It is fair to conclude that the environmental rights enshrined in the Mongolian Constitution of 1992 did not escape this fate. The language of environmental rights was a legal transplant, and the members of the constitutional convention adopted it without much comment or serious discussion. It is through subsequent practice in specific contexts only that the meaning of constitutional environmental rights has gradually started taking shape.

The South Gobi case study shows that, although legal cases invoking environmental rights are non-existent, the language of environmental rights is relied upon for other means and in different spaces. It seems that the communities, while not using the formal language of the right to a safe and healthy environment in their daily communication, make use of these rights in various specific contexts vis-à-vis mining companies, subcontractors, truck drivers, and local and national authorities, including local police officers, local environmental protection officers, the Mongolian Ministry of Transportation, and members of Parliament elected from the local community.

The case study also suggests that communities do not intuitively recognize the need for environmental rights. Rather, they invoke these rights, if at all, simply because they exist in the Constitution. For example, a female herder in Gurvan Tes soum in the vicinity of the Nariin Sukhait mining complex, who formerly worked as a pre-school teacher, is known in her community for writing convincing claims related to the rights narrative. She said, ‘‘I don’t know much about law and the concept of environmental rights, but the language is extravagant, and it makes my letters sound intelligent.”³⁰

Besides, unless a lawyer raises the language of environmental rights in every interview, it is most likely that the herders themselves will never refer to the rights narrative in their discussions. Instead, herders from these communities use the term ezen—rather vague a concept related to “property,” stewardship, and knowledge of a given territory—to justify their claims. The concept of ezen comes up in diverse contexts. For example, a herder from Khanbogd soum stated, “We have lived in this place many generations. We ezen (stewards; masters) can hunt (avakh) a small spotted deer from here.”³¹ A herder from Tsogttsetsii soum said that “this grazing land is crucial for breeding racehorses; therefore, I, the ezen, am responsible for looking after the land.”³² Another herder explained, “Last month, I lost my way coming home. I could not recognize my ezen (my own land) because of massive land destruction.”³³ The concept is even used in religious contexts. Some say that Khanbogd khairkhan, a mountain, has its own ezen (spirit master; higher being), depicted as a beautiful woman riding a white camel. There are many other narratives where the concept of ezen is used. The herders try to reconcile ezen with the concept of environmental rights.

Even when communities seek to implement constitutional environmental rights in popular mobilization efforts, they invoke the rights in a way that is contrary to the normative understanding. For instance, herding families mobilize environmental rights against incompetent authorities who are not legally obliged to restore their infringed rights. Despite this, herders continue to call for their “environmental rights” in their protests. Thus, environmental rights become leverage to assert their interests to the mining companies, subcontractors, financial institutions, etc. They invoke “environmental rights” to claim loss of livestock, pastureland, uvuljoo-khavarjaa (homestead), and access to water sources and to seek compensation and employment, instead of implementing environmental rights to safeguard and improve their environment and nature. For example, in one instance, herding families hung whips on the gates leading to the Oyu Tolgoi copper mine and demanded compensation. On another occasion, herders protested by assembling a traditional yurt in front of the Oyu Tolgoi gates and demanded employment at the mine. In both protests, their justification was that Oyu Tolgoi was responsible for the degradation of the environment, and especially of their pasture lands. One herder who protested these same activities said, “I have two unemployed daughters. The Oyu Tolgoi company must employ them because they have destroyed our land and resources.”³⁴

Positivist legal analysis cannot explain the perspectives of herding families who employ the language of environmental rights to get a job in a mining company, for instance. Thus, mere examination of formal rules does not tell us much about the actual effect on communities. Ethnographic fieldwork and observations within these families have proven to be valuable tools to seriously address the matter.

Fieldwork in the South Gobi has revealed that herders question whether the state legal order achieves the objectives and purposes it is meant to serve. Direct interactions with herding families near the Oyu Tolgoi mine, the Nariin Sukhait mining complex, and the Tavan Tolgoi mines have shown that the laws of Mongolia cannot adequately address the nature of their struggles in relation to mining developments. As one female herder living in the vicinity of the Oyu Tolgoi mine said, “You should have come in spring the, when we have dust storms. Then you would really feel how herders’ lives and these ‘rights things’³⁵ are in danger.”³⁶ Another male herder near the Tavan Tolgoi mines angrily demanded, “Stop asking questions around these herders’ families; go to the west side of the mine and just sit there for two hours. Then you will understand the herders’ problems and how your laws have failed us.”³⁷ And in fact we did so, and as we sat there, the dust filled our mouths and noses and burned our eyes. After spending a couple of days with a herder’s family at their homestead near the unpaved, dusty roads used to transport coal, a male herder challenged: “What can you do to stop this coal transportation now? Right now? Our lives and livelihoods are in danger! Otherwise, you are just a wanderer for us, a khereggui amitan (useless creature)!”³⁸

One question that emerged from the fieldwork is why herders often think of themselves as responsible for protecting nature and the environment. Their responses are related to various competing concepts regarding environmental protection, but never explicitly invoke environmental rights. Testimonies rely heavily on concepts such as ezen, which, as stated previously, is closely related to the notion of stewardship and property in the Mongolian context, and üüreg (duty), whereby herding families express their sense of their customary responsibility to protect the land and its resources. This sense of duty is even prescribed in the Constitution, which states that “protecting nature is every citizen’s sacred duty (juramt üüreg).” However, there is also a rather new and growing sentiment among herding families, that is, that they have exclusive rights and benefit entitlements to natural resources. This sense has been engendered by imported notions such as corporate social responsibility, self-governance, sustainability, etc.

However, the law cannot recognize these herding families’ exclusive access and benefit entitlements over the rest of the public. Therefore, they question whether the legal rules that have been transplanted from other legal systems serve the proper purposes. To them, these legal rules are like a khereggui amitan (useless creatures), something that fails to connect with real lives and issues in these places. They demand to know: Where are the environmental rights that are meant to protect their environment? Interdisciplinary research has hence shown the limitations of national law and has obliged us to re-evaluate our approach toward the efficacy of the legal order.

D. Rights of Nature in the Ecuadorian Constitution³⁹

Whereas the Ethiopian and Mongolian cases illustrate a certain detachment of local communities from constitutional environmental rights, our Ecuadorian example is based on a strong pledge by Indigenous peoples for the incorporation of such constitutional rights in the specific format of rights of nature, hence adding to the “right to live in a healthy and ecologically balanced environment.”⁴⁰ A closer look reveals that the result within the state law—Chapter VII of the Constitution—is potentially transformative, but is, in practice, fuzzy, ambiguous, and selective.

In a context of political and social changes in Ecuador, a National Constituent Assembly was convened in 2007, and a new Constitution was adopted in 2008. This process was based on wide public participation and opened the possibility of setting up an intercultural dialogue on development paradigms and discussing historically and structurally asymmetric power relations among people, and between humans and the environment, thereby highlighting the vulnerability of certain sectors of society and nature.⁴¹ As a result, the constitutional designers adopted buen vivir or sumak kawsay—“the good way of living” in Spanish and Quechua, respectively—as a national state development objective.⁴² Considered a necessary condition for sumak kawsay, the 2008 Ecuadorian Constitution also includes legal recognition of “Nature” or Pacha Mama (“Mother Earth”) as a rights-bearing subject.⁴³

Within the context of giving legal advice in the Commission of Biodiversity and Natural Resources in the first Ecuadorian Parliament after the approval of the 2008 Constitution, this case study deals with the intrinsic limitations of a doctrinal approach to developing constitutional contents that include Indigenous language, and thus are based on Indigenous knowledge. The study is based on observations and participation in several legislative debates regarding nature protection, including witnessing the Assembly members’ reluctance to discuss or debate the rights of nature, hailing from their lack of understanding of the ontologically different conceptions and practices regarding the relationship between humans and nature.

With the aim of developing the scope and meaning of these rights to address the degradation of the environment and its implications for Indigenous and local communities, whose livelihoods depend on the land and its natural resources, we embarked on an interdisciplinary process for this project. Doctrinal analysis complemented by an anthropological perspective made it possible to revisit the way in which those rights emerged by analyzing the Constituent Assembly’s transcripts and engaging in interviews and conversations with constitution makers, ultimately revealing the values and goals of the actors involved in the constitution-making process.⁴⁴

It is possible to identify two main strands to the emergence of the rights of nature in the 2008 Ecuadorian Constitution. First, is the recognition of these rights as a tool aimed at changing the liberal, market-oriented norms of environmental governance, thereby protecting the rights to existence and to development of human beings. Second, is the recognition of the rights of nature as a product of an intercultural legal translation process that represents the dialogue between the state legal system—including the language of rights—and Indigenous biocultural normative ontologies, which highlight the key role of Indigenous peoples in attaining the national state objective of “the good way of living,” particularly for understanding and implementing the rights of nature.⁴⁵ This background enables us to understand the moral environmental ambivalence found in the Ecuadorian Constitution by simultaneously considering nature a rights-bearing subject and a “resource” instrumental to the country’s developmentalist agenda.⁴⁶

This framework also allows us to reflect on how successfully the Ecuadorian legal system has developed and implemented the rights of nature, what the underlying interests and consequences of such an endeavor are, and whether it has genuinely incorporated Indigenous notions.⁴⁷

In its recent ground-breaking case of Los Cedros Protected Forest, the Ecuadorian Constitutional Court reiterates that, almost thirteen years after the drafting of the Constitution, the content of the rights of nature still seems to be poorly defined, taking only mainstream aspects of the modern environmental law framework into consideration.⁴⁸ In the Court’s view, neither public nor private actors in Ecuador consider the rights of nature to be justiciable. They also fail to adequately apply constitutional environmental principles, such as in dubio pro natura, prevention, and precaution.⁴⁹ As a result, the Court felt it necessary to declare explicitly that recognition of Pacha Mama as a rights-bearing subject and its rights cannot be considered mere rhetorical lyricism, ideal, or declaration, but a fundamental constitutional value entailing rights with full normative force.⁵⁰ In addition, the Court recalled that the constitutional notion of Pacha Mama, which was built upon an intercultural convergence of the knowledge of Indigenous peoples and modern Western science, draws on the universal archetype of the mother and thus recalls the essential relationship between human beings and nature.⁵¹

The Court clarified that the rights of nature protect nature as a legal interest in itself, independent of the benefits it might provide to humanity.⁵² According to the Court, the new juridical model, which moves away from considering nature as a production input, implies that “to harmonize its relationship with nature, it is the human being who adapts appropriately to natural processes and systems, hence the importance of having scientific knowledge and community knowledge on such processes and systems, especially Indigenous knowledge, due to Indigenous peoples’ relationship with nature.”⁵³

Despite acknowledging the epistemic authority of Indigenous knowledge, the Court refrained from examining the role that community knowledge holders might have in cases related to the rights of nature. It also failed to consider a right to intercultural dialogue in the context of environmental public participation processes when examining this procedural safeguard within the specific local space.⁵⁴ To declare that the rights of Los Cedros Reserve had been violated by the issuing of mining permits, the Court relied exclusively on “modern scientific evidence,” thereby trapping itself in the dominant Western legal understanding of the environment and the narratives on its intrinsic value.⁵⁵ Finally, in the Court’s view, human rights and the rights of nature converge in the right to a healthy environment.⁵⁶ As a result, a right to a healthy environment “not only focuses on ensuring adequate environmental conditions for human life, but also protect the components of nature from a biocentric approach.”⁵⁷

These conclusions imply that where there are violations of the right to a healthy environment, there will always be violations of the rights of nature, and considering the collective dimension of the right to a healthy environment, they would also imply that where there are violations of the rights of nature, there will also be violations of the former right. As a result, the Court unwittingly drew up an overlapping conceptual similarity between the two categories, which leads to two fundamental questions: What is the added value of the rights of nature when a right to a healthy environment already includes a bio-legal orientation? And what rights should be implemented in a public interest litigation case and why?

The practical consequences of attempting to enshrine Indigenous conceptions of law in a national constitution should not be underestimated. This not only highlights the ethno-cultural diversity of Ecuador and gives concrete expression to legal pluralism—as has also been recognized in the Constitution⁵⁸—but also confirms the state’s obligations to address Indigenous peoples’ and other local communities’ specific concerns based on their cultural identity and to guarantee consideration of local knowledge and intercultural dialogue. In that regard, it implies a rejection of a uniform legality in Ecuador, the homogenization of its society, and the instrumentalization of culture and custom, which are considered the results of colonialism and capitalist globalization.⁵⁹

In this context, anthropological theories are at hand to challenge the Constitutional Court’s case law and the national legal framework it applies. Without ignoring the important advances made by the Court to protect the environment by implementing an ecosystem approach,⁶⁰ such theories shed light on the fact that, instead of transforming the state law, the Indigenous concepts constitutionally “appropriated” are themselves transformed in order to be more palatable to the state.⁶¹

Therefore, the actual content of the rights of nature in the Ecuadorian case is still contested. While being deployed by the Constitutional Court as an effective mechanism for protecting the environment in recent cases, the rights of nature start to lose relevance when a bio-dimension of the right to a healthy environment is recognized. On the one hand, from a doctrinal perspective, the conceptual overlap between the rights of nature and the right to a healthy environment impedes their implementation in a predictable and uniform way. On the other hand, when considering the second strand of the emergence of the rights of nature, namely recognition of the influence of Indigenous knowledge, it is critical to be open to a multi-layered ethnographic landscape with contrasting and diverging ontologies that are not only related to the protection of the environment, but also to the defense of Indigenous peoples’ legitimate interests, such as the concept of free, prior, and informed consent (FPIC) as a mechanism to guarantee their autonomy or even their sovereignty.⁶²

As long as there is not a deeper understanding and evaluation of the notion of Pacha Mama and an openness to the possibility that it is not the only embodiment of Indigenous environmental justice notions, the state law remains under-complex. It is here that anthropology can be of great value. In addition to an enormous body of existing literature with “thick” descriptions of the lives, normative systems, and societies of Indigenous peoples the world over, anthropologists have developed sophisticated theoretical and methodological frameworks for investigating Indigenous peoples’ understandings of the human–nature interface and for recognizing the possibility of alternative ontologies among Indigenous peoples. Critical dialogue and translation require acknowledging two important lessons: (i) while the new Ecuadorian constitutionalism must evolve on the basis of some Indigenous legal ontologies, Indigenous normative conceptions are themselves evolving due to their dynamic nature;⁶³ and (ii) that, from a legal pluralism perspective, there might be non-state normative orderings that can never be fully addressed by state law. All these observations might imply that the legal developments that have followed the 2008 Constitution encapsulate an authority which does not fully come to grips with the full variety of circumstances related to time and space, where many different notions of the relationship between human beings and nature exist.

As a result, further critical empirical field research is required to disentangle the currently prevailing conceptions of the Ecuadorian law aimed at guaranteeing human–nature relationships and other fundamental collective interests and the diverse legal ontologies that, on the ground, mingle in pursuit of these objectives.⁶⁴ Alongside the data collected previously, future outcomes derived from the application of participatory action research (PAR) methodologies in the field⁶⁵ should enable us to focus on interlegal translatability—namely, reformulating the interrelated existing legal concepts based on a process of cross-cultural translation—and on identifying new categories that should be inscribed into the Ecuadorian national legal cartography. This process should be based on a principle of radical interdependence with a view to guaranteeing the shift toward bio-intercultural understandings of the Constitution’s foundational legal concepts.⁶⁶ To what extent these can actually be encapsulated in the law and the national jurisprudence depends on what the Ecuadorian society considers to be fundamental values worth recognizing in state law, which is an ongoing debate.

E. Conclusions: Zooming in on a Moving Target

The three case studies show, each in its own way, that environmental rights are an oscillating concept and a moving target that is difficult to capture with a purely doctrinal approach to law. We witnessed fuzzy and variegated manifestations of rights in some places, and lacunae in other places where we would have expected to find them the most. Translation between local concepts of environmental (in)justice and constitutional law is challenging, and important aspects get lost in the process.

Within local communities that are being exposed to large-scale hydroelectric dams in the South Omo region of Ethiopia and to mining in Mongolia’s Gobi Desert, many different issues are raised. As our research shows, local understandings of fairness and justice depend on the particular situation and on the specific constellations of values, traditions, customs, norms, and forms of political organization. Often the divergence between available environmental rights and the concerns expressed appears to be primarily due to serious institutional or rule-of-law deficiencies that frustrate or even deter efforts to engage with such rights against states. Sometimes this is due to lack of effectiveness, sometimes it is out of fear of retaliation and personal consequences, such as persecution. As in the case of Ethiopia, there may not be adequate democratic space to allow the operation of environmental NGOs, which typically initiate litigations. Occasionally, there is simply a lack of knowledge of available constitutional guarantees.

In other cases, the perceived economic benefits seem to outweigh the environmental burden of industrial activities—as with, for example, mining activities in South Gobi—and there is a fear of losing an economically powerful company as an employer that can generate benefits for the community. Material living conditions matter substantially and may in the concrete case override environmental concerns that are projected onto communities by outside environmentalists. Concerns may then be related rather to other fundamental needs, such as access to work, food, water, electricity, health care, education, etc., many of which are—allegedly or in fact—being provided through the company. In some instances, as we observed around mines in Mongolia’s South Gobi province, people operationalize the right to a sound environment in a way that is contrary to the spirit of the idea, that is, they instrumentalize the right to claim compensation for damage from the company.

Sometimes, the causes run even deeper, having to do with the way communities understand their relationship to nature. For instance, they may, as in the Mongolian context, employ custodian ideas, meaning that people leading nomadic lives do not claim environmental protection from the government, but rather feel a personal sense of responsibility vis-à-vis nature that can no longer be fulfilled where big companies step in and heavily affect the environment and the living conditions. International NGOs may invoke environmental rights to make model claims that they use to push the agenda toward global environmental governance. They can rely on guarantees in the constitution that are the result of the translation and importation of norms from a completely different context. Such transplants are intended to express a high degree of domestic observance of international standards, but may well not resonate with the constitutional structure and other norms entailed in it, let alone with local perceptions of environmental justice and injustice. Adopting environmental norms in the constitution might sometimes be more geared toward accommodating actual or presumed expectations of the international community—for example, investors and potentially donors—than toward actually alleviating the environmental stress experienced by the most vulnerable parts of the population. By contrast, countries with a strong rule of law are often the most cautious when adopting environmental rights, even where there is high acceptance of environmental protection in the society, because they know that the rights could be effectively used against the state in courts of law.

But there are also narratives about strong reliance on environmental rights, even rights of nature, both in the drafting of a constitution and its subsequent application by the courts. Indigenous communities in Ecuador have actively influenced the process whereby the rights of nature have been recognized in the constitution. They exist in parallel to the “right of the population to live in a healthy and ecologically balanced environment.”⁶⁷ However, the government has not been able to fully come to grips with differing legalities related to these rights. State law finds it difficult to capture them and to make them commensurate with its own system. This is partially due to the fact that there are so many notions related to the protection of rights of nature within Indigenous communities, and the concept of Pacha Mama is merely one of them. Moreover, the government and the Constitutional Court have had difficulties in their efforts to operationalize the rights of nature and to distinguish them from the right to a sound environment. Taking Indigenous knowledge seriously implies embarking on an interlegal translation process grounded in a bottom-up co-theorization of the ontological legalities revolving around human relations to nature.⁶⁸

A proper dialogue and interaction of different views and knowledges would mean identifying normative arguments not only for differentiating the rights of nature from a right to a healthy environment and other environmental human rights, but also for potentially shifting from an anthropocentric approach toward an anthropologically informed biocultural conception of the law—with all the difficulties that this would entail. In this regard, the Ecuadorian case might serve to illustrate that the comparative understanding of diverse legal ontologies leads to fundamental changes in the way society is regulated, and hence how the law is seen.⁶⁹ Forcing a confrontation between such competing ontologies may even expose some inconvenient truths about the rights discourse, such as that it is ill-suited to encapsulating holistic notions of human unity with nature or that it creates political rather than legal challenges.⁷⁰

The ethnographic research thus emerges not only as a possibility for investigation, but as the apposite provider of methodological tools to answer whether Indigenous legal ontologies converge or conflict with rights of nature and whether accommodating them in the law presents any added value to the other fundamental environmental rights that already exist—including the right to a healthy environment.⁷¹ At the same time, one should not forget that, sometimes, the agenda—hidden or not—behind claiming rights of nature might be to assert Indigenous claims to autonomy, or even sovereignty, over a specific territory. This may be completely legitimate, but it would be a politically strategic use of a concept that has gained a lot of traction internationally.

Pointing out the variety of environmental justice conceptions found in the field and the fact that they frequently do not correspond to constitutional environmental rights is not at all tantamount to saying that environmental rights as promoted within the United Nations—through the General Assembly, the Human Rights Council or the Special Rapporteur on Human Rights and the Environment⁷²—and within the international NGO community are ineffective or a bad idea per se. They enjoy increasingly strong international support and may very well become an important part of a more coherent and comprehensive global answer to environmental degradation, particularly in times of increasing challenges to the atmosphere, air, soil, water, forests, biodiversity, and so forth. However, we need to distinguish between global environmental governance and local specifics, particularly when we express global governance issues as individual or collective rights claims. Unless we consider human rights as a mere political battle cry, we cannot simply assume that environmental stress is aptly articulated through a new human right—or even the rights of nature—or that environmental rights aptly encapsulate fundamental experiences of injustice in the best possible way.

Obviously, there are other reasons why a human right may be very useful, the protective dimension of what the state must do in order to actively avoid and combat environmental degradation resulting from private sources being just one of them. In addition to obliging states to protect nature, human rights empower individuals and groups to hold public actors accountable for this obligation and to participate in environmental decision-making. Furthermore, there may well be a learning effect in the sense that new rights need some time to gain the necessary traction on the ground. Finally, the case studies that we have undertaken are by no means comprehensive, and there may be many scenarios where environmental rights will prove to be of the utmost importance. Catering to rule-of-law deficiencies is certainly one important step to make reliance on environmental rights more likely.

Nevertheless, the onus of generating new human rights or even rights of nature, with the added difficulty of determining what precisely in nature is protected and who can make claims on behalf of nature, is very heavy indeed. Therefore, in order to avoid a fundamental rights inflation, we have to show what concrete value they add to well-established, yet often poorly implemented rights, such as the rights to life, food, water, work, health care, etc. There may well be a case for it, but that needs to be shown further in practice. Combining the methods of law and anthropology to examine local contexts and the multiple direct or indirect manifestations of environmental justice traveling between local views and state law is one valuable, perhaps even indispensable, way to contribute to that endeavor.