Changing Politics Through Law: The Case of Nature’s Rights in Ecuador
Dr. Laura Affolter
In 2008, Ecuador introduced a new constitution which formally recognises nature as a legal subject and grants it its own subjective rights. Over the past years, these rights have become an important resistance tool in legal struggles against industrial mining across the country. In several cases, courts (including the national Constitutional Court) have, at least temporarily, halted mining projects due to a breach of these rights. In other very similar cases, the rights have been mobilised unsuccessfully by concerned citizens. This research projects examines the political, social and epistemological effects of these rights. Empirical questions guiding this research are thus: (1) How, when, why and by whom are these rights mobilised in political struggles, and how are such mobilisations countered? (2) What (political) agendas, harms and forms of injustice can thereby be addressed and what cannot? (3) What are the effects of court decisions: How are such decisions put into practice, ignored, or even actively resisted? What are the possibilities, challenges and limits of implementation?
In dealing with these questions, the project, on the one hand, engages with debates around the potential, limits and dangers of the judicialization of politics and how the involvement of courts in political decision-making relates to democratic politics. On the other hand, by focusing on practices of rights mobilisation – on the actual concerns of people mobilising these rights – the project sheds light on the disconnection between the activist and academic discussion of nature’s rights and what these rights do in practice. In doing so, it critically engages with an often-found assumption that the emancipatory potential of nature’s rights inheres in the shift from so-called anthropocentric to ecocentric law.
The wave of new, often referred to as “progressive”, constitutions in Latin America since the 1980s was accompanied by a “moment of cautious optimism” (Sieder 2020) in socio-legal literature. Since then, this sense of hope has, at least in some places, turned into disillusion and scepticisms towards law (or rights) as a means for social change (see Goodale & Zenker forthcoming). Critics of “juristocracy” denounce the turn to the courts as being ineffective (Rosenberg 2008) or even anti-democratic (Moyn 2020), warn against backlashes and criticise the transformative potential of these new constitutions as limited, since “organization of powers” remains untouched (Gargarella 2016). This research project hopes to contribute to these debates by focusing on the implementation phase of court rulings, an issue that has not received much attention from socio-legal scholars so far (see Rodríguez-Garavito 2016).
Methodologically, the research project follows a multi-sited ethnographic approach. It draws on fieldwork in two local communities resisting industrial mining and in the division of the Constitutional Court responsible for monitoring the implementation of court decisions; participation of court proceedings; analysis of court documents; interviews with lawyers, Human Rights, environmental and indigenous activists and organisations, as well as representatives of the Defensoría del Pueblo.
Gargarella, Roberto 2016: „Latin American constitutionalism: social rights and the ‘engine room’ of the constitution”, in: César Rodríguez-Garavito (Hg.): Law and Society in Latin America: A New Map. London; New York: Routledge, pp. 83–92.
Goodale, Mark, and Olaf Zenker (eds.). forthcoming. Reckoning with Law in Excess: Mobilization, Confrontation, Refusal. Cambridge: Cambridge University Press.
Moyn, Samuel 2020: „The Court Is Not Your Friend”. Dissent. https://www.dissentmagazine.org/article/the- court-is-not-your-friend
Rodríguez-Garavito, César 2016: “Constitutions in action: the impact of judicial activism on socioeconomic rights in Latin America”. In: César Rodríguez-Garavito (ed.): Law and Society in Latin America: A New Map. London; New York: Routledge, pp. 112–140.
Rosenberg, Gerald N. 2008: The Hollow Hope: Can Courts Bring About Social Change? Second Edition. Chicago: Chicago University Press.
Sieder, Rachel. 2020. „Revisiting the Judicialization of Politics in Latin America“. Latin American Research Review 55 (1): 159–167.
Laufzeit
2020-2026
Finanzierung
Hamburger Institut für Sozialforschung
Betreuung
Prof. Dr. Olaf Zenker