The rights of nature: A preliminary analysis of the recent case law of the Ecuadorian Constitutional Court
Read more about the topic of the post in the Revista Derecho del Estado:
Hacer especie en el juzgado: el caso del oso “Chucho”
Gobernanza ambiental global y derechos de la naturaleza en América Latina
Implementing Nature’s Rights in Colombia: The Atrato and Amazon Experiences
By: Andrés Martínez-Moscoso[1] and Elspeth Burdette[2]
Introduction
In 2008, Ecuador emerged at the forefront of the movement to recognise Nature as a subject of law,[3] becoming the first, and to date the only, country to recognise and protect the rights of Nature at the Constitutional level.[4] At the time of writing, several recent judgements of the Ecuadorian Constitutional Court, the highest body of constitutional interpretation, have significantly developed the content of the rights of Nature provisions recognised within the Constitutional text.[5] However, these cases have not received extensive consideration by English-speaking academia. Pursuant to this, the primary purpose of this article is to offer a critical evaluation of the main judgements that have developed the content of the rights of nature in Ecuador, focusing in particular on the judgements concerning the violation of the rights of Nature of forests, mangroves, rivers, and wild animals. These identified cases mark the so-called ‘jurisprudential line’ of the Constitutional Court and thus have significant historic and legal importance in the Rights of Nature discussion.[6]
Nature as a subject of rights
American environmental legal scholar Christopher Stone is credited with first articulating the legal notion of the rights of nature movement in the 1970s, following the publication of his essay Should Trees Have Standing?.[7] Stone’s submission departed from the idea that nature is merely a commodity to be exploited and instead positioned nature and natural objects as a) capable of holding legal rights, and b) capable of having legal standing in court to defend these rights.
In Ecuador, the rights of Nature has become synonymous with the Kichwa notion of Sumak Kawsay or Buen Vivir in Spanish, translated into English as ‘good living’.[8] By adopting this terminology, the rights of Nature discussion in Ecuador is thus reflective of, although not identical to, the indigenous Andean cosmovision[9] whereby land, water, and all of nature is considered Pachamama (Mother Earth) and humans are obligated to respect, protect, and preserve nature, taking only what is necessary to live a ‘good life’ and ensuring future generations will be able to continue the balanced existence.[10] This worldview challenges the typically anthropocentric one that positions nature as a commodity to be exploited, and instead recognises an ecocentric paradigm built on mutual respect between humans and nature.[11] Although recognising the influence of the indigenous Andean cosmovision, it is relevant to acknowledge that granting rights to nature is not an indigenous concept and is instead one that has developed, for better or for worse, through Western academia.[12]
Since 2008, the Ecuadorian Constitution has held that: ‘Nature shall be the subject of those rights that the Constitution recognizes for it’.[13] Articles 71 to 74 recognise nature as a subject of rights, defines nature or Pachamama as the place ‘where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’.[14] A plethora of other provisions throughout the constitution explicitly and implicitly reference nature, water, sustainable development, and the right to a healthy environment and are relevant to the discussion pursuant to the fact that the rights of nature are intrinsically connected the defense of human life. However, for the purposes of this article, the focus will be specifically on the rights of Nature, and not environmental rights in general.
The following section addresses the recent case law of the Constitutional Court concerned with the violation of the rights of nature of mangroves (Caso Manglares), forests (Caso Bosques Protector Los Cedros), rivers (Caso Río Monjas), and wild animals (Caso ‘Estrellita’).[15]
Study of Cases: developing the content of the rights of Nature
- Caso Manglares [Mangroves], Sentencia 22-18-IN/21
The present judgement maintains: ‘Mangroves are marine-coastal wetlands, tree ecosystems that provide habitats for animals such as crabs, fish, shrimp, crustaceans, molluscs, insects, birds, reptiles and other wildlife, and together provide the food base for millions of people’.[16] Additionally, the mangrove ecosystem contributes to mitigation efforts against climate change: they absorb ten times more carbon than a ‘terrestrial ecosystem’ and thus are ‘of vital importance for the planet and communities’.[17] Furthermore, mangrove ecosystems are considered particularly fragile to human interference. The plaintiffs, in this case three environmental groups, alleged that several articles of the Organic Code of the Environment[18] and Organic Code of the Environment Regulations[19] should be declared unconstitutional in that they permit authorised development in the mangrove ecosystem.
The judgement affirms that nature is a subject of rights although it highlights that these rights are not absolute in relation to human development; development is allowed insofar as the rights of nature are considered on balance and the ecosystem is not negatively affected. The Court recognised that mangrove ecosystems are valuable and particularly vulnerable to the presence of human activities, and thus the environmental law principle of prevention should be applied in order to avoid further environmental degradation. Since human interference thus altered the natural functioning and processes of the ecosystem, the Court recognised that a violation of the rights of nature exists and declared articles 104 and 121 of the Organic Code and articles 462, and 463 of the Organic Code Regulations unconstitutional.
- Caso Río Monjas, Sentencia 2167-21-EP/22
This case was the first recognition of the rights of an ‘urban river’: the Monjas River, which flows through Quito, the capital city of Ecuador. The river itself is considered highly polluted; large quantities of untreated wastewater flow directly from industrial sites as well as the homes of thousands of the capital’s residents. A rapid and disorderly increase in population and size of the city, as well as the cumulative collection of rainwater and wastewater by the Quito Municipality, resulted in a significant increase in wastewater which in turn increased the natural flow of the river, widening the riverbed, and causing erosion of the banks, exacerbated by the volcanic composition of the soil.[20]
Although human rights[21] and the rights of the city were considered in the judgement, the discussion here will focus on the rights of Nature[22] identified by the court through the question: ‘does the pollution of the Monjas River and the alteration of its flow violate the rights of nature?’[23] The initial action was raised by the owners of a historic property located on the banks of the Monjas River, which was at risk of collapse due to the erosion of the riverbank.
In the judgement, the court held that they considered the river to be an ecosystem and thus a subject and holder of rights, protected by the Constitution. Following the precedent set by Caso Río Aquepí[24] the Court held that the increase in flow and decrease in water quality prevented the river from fulfilling its ecological function and was in a sense ‘diseased’,[25] further contending that it was within the duties of the Municipality of Quito to manage wastewater and its treatment. Article 397 of the Constitution places the burden of proof in such an instance on the defendants to prove that there was no environmental damage to the Monjas River.
Thus, the Court recognised the Monjas River as a subject and holder of rights, including the right to ‘have its existence and the maintenance and regeneration of its vital cycles, structure, functions, and evolutionary processes fully respected’.[26] Pursuant to this, the Court held that the discharge of untreated wastewater into the Monjas River violated the constitutional rights of the river, concluding that the Municipality of Quito is responsible for the violation, and must comply with comprehensive reparation measures.
- Caso Bosque Protector “Los Cedros”, Sentencia 1149-19-JP/20
The ‘Los Cedros’ forest is located in the Imbabura Province of Ecuador and was declared a Protected Area in 1994.[27] In 2017, the National Mining Company (ENAMI EP) was granted permission to begin mining metals in the forest as part of the Río Magdalena Mining Project. In response, the mayor of the city of Cotocachi, located in the Imbabura Province, filed a protection action against the Minister of the Environment and the Manager of ENAMI EP, alleging that allowing mining within the forest constituted a violation of the rights of Nature.[28]
The judgement of the Constitutional Court focused on 3 main points,[29] the first being the rights of Nature. The Court emphasised Article 10 of the Constitution, which maintains that Nature is subject to the rights within the Constitution, highlighting in particular the rights set out in Article 71 of the Constitution: the forest’s right to have its existence fully respected, and the right to maintain and regenerate its evolutionary cycles, structure, functions and processes.[30]
The Court emphasised that Los Cedros’ classification as a cloud forest necessitates special protection, confirming once again that the forest, its species, and ecosystems are valued in and of themselves.[31]
The judgement observes that although it can be assumed that mining would likely cause serious and irreversible damage to the cloud forest ecosystem, there was insufficient scientific evidence to completely stop the exploitation of the non-renewable resources if using the prevention principle.[32] Therefore, the Court relied on the precautionary principle which recognises that if it is scientifically impossible to know the exact impact a certain action will have on the environment, it is best not to take risks that have the potential to cause irreversible environmental damage.[33] The reporting judge ultimately held that it was necessary to resort to the constitutional protection of the rights of Nature, invoking Articles 73 and 396 of the Constitution to determine that there were threatened species in the ‘Los Cedros’ ecosystem and that, by applying the precautionary principle, it was necessary for the state to adopt measures to avoid mining non-renewable resources within the cloud forest in order to conserve its ecosystem and biodiversity.[34]
- Caso “Estrellita”, Sentencia 253-20-JH/22
The ‘Estrellita’ case has received the most international attention and is considered the most controversial and of the Ecuadorian rights of Nature cases. It concerns the recognition of wild animals as subjects of rights – specifically wild animals, and not all animals.
The relevant facts of the case are as follows: a chorongo monkey, named Estrellita, was taken from the wild at one month old and subsequently lived as a pet in a human home for the next 18 years of her life. Owning wild animals is illegal in Ecuador so in 2019, Estrellita was seized by authorities and placed in a zoo. Estrellita’s owner of 18 years, Mrs. Ana Beatriz Burbano Proaño, filed a writ of habeus corpus against the Ministry of the Environment and the San Martín de Baños Ecozoo requesting the return of the primate to the environment she was accustomed to alongside a wildlife tenure license that would allow for the legal habitation of Estrellita with Ms. Burbano. Prior to the hearing, Estrellita died from cardiac-respiratory arrest. Since the habeus corpus action was filed on behalf of an animal, the questions arose as to whether or not an animal is a subject of rights, and if so, whether these rights are capable of being protected by the rights of Nature.
The Constitutional Court once again highlighted how the Constitution goes outwith the anthropocentric view of the law, emphasising that not all subjects of rights are human persons[35] and that Nature (both biotic and abiotic,[36] and individually as well as ecosystemically) is intrinsically valuable.[37] Thus, the Court maintained that the rights of a wild animal, including their life, liberty, and integrity, are inherently valuable in and deserving of protection as is, regardless of the claims of third parties.[38]
Conclusions
The aim of this article was to briefly introduce the concept of the Rights of Nature and provide a preliminary introduction of some of the recent findings of the Constitutional Court of Ecuador. Since 2008, the rights of Nature have been Constitutionally protected in Ecuador. However, it is only in the past few years that the content and potential of these rights has been developed through the jurisprudence of the Constitutional Court, encompassing a diversity of rights holders from mangroves to rivers as living ecosystems, from forests to wild animals.
Word Count: 1987
BIBLIOGRAPHY
Constitution of the Republic of Ecuador
English translation accessed: https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html
Cases:
Caso Bosque Protector “Los Cedros”, Sentencia 1149-19-JP/20
Caso “Estrellita”, Sentencia 253-20-JH/22
Caso Manglares, Sentencia 22-18-IN/21
Caso Mar-Meza, Sentencia 0507-12-EP
Caso Río Aquepí, Sentencia 1185-20-JP/21
Caso Río Monjas, Sentencia 2167-21-EP/22
Sierra Club v. Morton, 405 U.S. 727 (1972)
Secondary Sources:
S. Adelman. Human Rights and Climate Change, in G. DiGiacomo (ed), Human Rights, Current Issues and Controversies (University of Toronto Press, 2016), pp. 411–35, at 425.
P.C. Benalcázar. El Buen Vivir, Más Allá del Desarrollo: La Nueva Perspectiva Constitucional en Ecuador, in A. Acosta & E. Martínez (eds), El Buen Vivir: Una Vía para el Desarrollo (Abya-Yala, 2009)
David R. Boyd. The rights of nature. A legal revolution that could save the world (Toronto: ECW Press, 2017)
David R. Boyd. Constitutions, Human Rights, and the Environment: National Approaches, in A. Grear & L. Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar, 2015), pp. 170–99.
Andrew T. Brei. Rights & Nature: Approaching Environmental Issues by Way of Human Rights (2012) Journal of Agricultural and Environmental Ethics 26, 393–408
Jordy Coronel and Andrés Martínez-Moscoso, “La incorporación de los derechos de la Naturaleza en la jurisprudencia de la Corte Constitucional del Ecuador. Análisis del caso: Mar-Meza, N.0507-12-EP”, in Martínez-Moscoso (ed.), Tutela de los derechos de la Naturaleza y el ambiente sano (Quito, Rethos, 2021)
Antonio Elizalde Hevia, ‘Aportes sobre los Derechos de la Naturaleza’, en Alberto Acosta y Esperanza Martínez (eds), Derechos de la Naturaleza. El futuro es ahora, (Abya–Yala, Quito, 2009)
Diego Jara and Mariana Yumbay Yallico, ‘An Interview with Dr. Mariana Yumbay Yallico, Human Rights Activist in Ecuador’ in Jenniver Sehring, Rozemarijn ter Horst, Margreet Zwarteveen (eds), Gender dynamics in transboundary water governance [Routledge 2022]
Louis Johns. Rights of Nature in an International Context, (2023) Carbon and Climate Law Review 1
Louis J. Kotzé and Paola Villavicencio Calzadilla. Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador, (2017) Transnational Environmental Law 6(3)
H. Leimbacher, ‘Gender and Nature in Comparative Legal Cultures’ in D. Nelken (ed), Comparing Legal Cultures (Routledge 2016)
Andrés Martínez-Moscoso. La protección de los ríos urbanos en América Latina. Caso río Monjas -Ecuador, 2023
Andrés Martínez-Moscoso, Pablo Alarcón-Peña, Martina Sánchez Espinosa. Los derechos de la Naturaleza en la jurisprudencia de la Corte Constitucional Ecuatoriana (2023) Díkaion 37(32) DOI: 10.5294/dika.2023.32.1.17
A.B. Ortiz. Derechos de la Naturaleza, in L.Á. Saavedra, Nuevas Instituciones del Derecho Constitucional Ecuatoriano (INREDH, 2009)
Lidia Cano Pecharroman. Rights of nature: Rivers that can stand in Court, Resources 7, 1 (2018)
Christopher D. Stone. Should Trees Have Standing? Towards Legal Rights for Natural Objects (1972) South. Calif. Law Rev. 45
Farith Simon, ‘La naturaleza como sujeto de derechos en la Constitución ecuatoriana: la construcción de una categoría de interculturalidad’ in L. Estupiñan, C. Storini, R. Martínez, & A. Carvalho (eds), La Naturaleza como sujeto de derechos en el constitucionalismo democrático (Universidad Libre 2019)
Farith Simon. Los Derechos de la Naturaleza en la Constitución Ecuatoriana del 2008: Alcance, Fundamentos y Relación con los Derechos Humanos, (2019) Revista Esmat 11(17)
Mihnea Tanasescu. The rights of nature in Ecuador: the making of an idea, International Journal of Environmental Studies, 2013
Eugenio Zaffaroni, La Pachamama y el Humano (Ediciones Colihue 2011)
[1] Doctor (PhD) in Political and Constitutional Studies from the University of Alicante. Lawyer by profession. He is a Professor in the College of Jurisprudence of the Universidad San Francisco de Quito and Director of its Institute of Legal Research. Member of the World Commission on Environmental Law (CMDA), the International Union for Conservation of Nature, and the Ibero-American Institute of Constitutional Law.
[2] Recent graduate with the degree of Bachelor of Laws (LLB) with Honours of the First Class from the University of Glasgow. She will be attending Uppsala University in Sweden to pursue the Joint Nordic Master’s Programme in Environmental Law commencing in August 2023. Research assistant for Dr. Andrés Martínez-Moscoso at the Universidad San Francisco de Quito, summer 2023.
[3] Lidia Cano Pecharroman. Rights of nature: Rivers that can stand in Court, 7(1) New York: Resources, 2018
[4] Andrés Martínez-Moscoso, Pablo Alarcón-Peña, Martina Sánchez Espinosa. Los derechos de la Naturaleza en la jurisprudencia de la Corte Constitucional Ecuatoriana, 37(32), Colombia: Díkaion, 2023
[5] Andrés Martínez-Moscoso. La protección de los ríos urbanos en América Latina. Caso río Monjas-Ecuador, 2023
[6] Martínez-Moscoso et. al. Los derechos de la Naturaleza, 2023
[7] Christopher D. Stone. Should Trees Have Standing? Towards Legal Rights for Natural Objects, California: South. Calif. Law Rev. 45, 1972; written in response to the case Sierra Club v. Morton, 405 U.S. 727 (1972)
[8] Farith Simon. Los Derechos de la Naturaleza en la Constitución Ecuatoriana del 2008: Alcance, Fundamentos y Relación con los Derechos Humanos, Tocantins Brazil: Revista Esmat 11(17), 2019
[9] Eugenio Zaffaroni. La Pachamama y el Humano, Argentina: Ediciones Colihue, 2011
[10] Diego Jara and Mariana Yumbay Yallico, ‘An Interview with Dr. Mariana Yumbay Yallico, Human Rights Activist in Ecuador’ in Jenniver Sehring, Rozemarijn ter Horst, Margreet Zwarteveen (eds), Gender dynamics in transboundary water governance, Routledge 2022
[11] Lidia Cano Pecharroman, 2018
[12] Simon, 2019
[13] Constitution of the Republic of Ecuador, Article 10; English translation available at: https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html
[14] Ibid. Article 71
[15] Martínez-Moscoso et. al. Los derechos de la Naturaleza. 2023
[16] No. 22-18-IN/21, para. 11
[17] No. 22-18-IN/21, para. 13; citing UNEP. Manglares, una súper solución contra el cambio climático. https://www.unep.org/es/noticias-y-reportajes/reportajes/manglares-una-super-solucion-contra-el-cambio-climatico
[18] Código Orgánico del Ambiente (CODA), R.O. 983, 12 de abril de 2017. Refor- mado en R.O. Suplemento 602 de 21 de diciembre de 2021.
[19] Reglamento al Codigo Organico del Ambiente, R.O. 507, 12 de junio de 2019
[20] No. 2167-21-EP/22, para. 29-31
[21] Including the right to live in a healthy, ecologically balanced environment, in connection with the right to a safe habitat, water, sustainable development, and cultural heritage.
[22] For a comprehensive analysis of the Monjas River judgement, see Andrés Martínez-Moscoso, La protección de los ríos urbanos en América Latina. Caso río Monjas-Ecuador, 2023
[23] No. 2167-21-EP/22, para. 50.4
[24] Sentencia 1185-20-JP/21
[25] No. 2167-21-EP/22, para. 127
[26] Constitution, Article 71; No. 2167-21-EP/22, para. 126
[27] Ecuadorian Institute of Forestry and Natural Areas and Wildlife (Ministerial Agreement No. 57); No. 1149-19-JP/20, para. 9
[28] No. 1149-19-JP/20, paras. 14-17
[29] No. 1149-19-JP/20, para. 22: 1) the rights of nature and the precautionary principles; 2) the right to water and the right to a healthy environment; and 3) environmental consultation and the right to participate in environmental matters
[30] No. 1149-19-JP/20, para. 25
[31] The right to water and to a healthy environment were also considered in the judgement; No. 1149-19-JP/20, paras. 48, 50.
[32] For a thorough analysis of the decision to use the precautionary principle as opposed to the preventative principle see Martínez-Moscoso et. al. Los derechos de la Naturaleza, 2023
[33] Martínez-Moscoso et. al. Los derechos de la Naturaleza, 2023, 11
[34] No. 1149-19-JP/20, para. 165
[35] No. 253-20-JH/22, para. 83
[36] No. 253-20-JH/22, para. 59
[37] No. 253-20-JH/22, para. 56
[38] No. 253-20-JH/22, para. 120
To cite: Andrés Martínez-Moscoso and Elspeth Burdette, “The rights of nature: A preliminary analysis of the recent case law of the Ecuadorian Constitutional Court” in Blog Revista Derecho del Estado, august 16, 2023. Available in: https://blogrevistaderechoestado.uexternado.edu.co/2023/08/16/the-rights-of-nature-a-preliminary-analysis-of-the-recent-case-law-of-the-ecuadorian-constitutional-court/