Victory in Ecuador: Constitutional Court Upholds Rights of Nature

Press Release (Dec. 1, 2021) from the Center for Democratic and Environmental Rights (CDER)

Contacts:

Hugo Echeverría, Attorney, echejur@yahoo.ca

Mari Margil, Executive Director, mmargil@centerforenvironmentalrights.org

Quito, Ecuador: On December 1, the Constitutional Court of Ecuador issued a landmark ruling in the Los Cedros case. Key outcomes of the Court’s ruling:

  • The Court ruled that mining in the Los Cedros Protected Forest is a violation of the constitutional rights of nature, and is therefore prohibited in the forest.
  • The Court ruled that the constitutional rights of nature were violated by the issuance of mining permits that would harm the biodiversity of the forest, including species at high risk of extinction and fragile ecosystems (par. 131).   
  • To enforce the ruling, the Court ruled that the governmental authorizations granted to mining corporations to operate in Los Cedros are revoked.   
  • The Court ruled that the government of Ecuador is obligated to apply Article 73 of the Ecuador Constitution, which requires precautionary and restrictive measures be taken to prevent the extinction of species. Based upon the intrinsic value of nature as the foundation of these new rights the Court said:  “Article 73 also establishes a duty of the State by indicating imperatively that precautionary and restrictive measures apply. It is not an option, but a constitutional obligation derived from the intrinsic value of nature…Indeed, the risk in this case is not necessarily related to human beings…but to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles…” (para. 65).
  • The Court also declared that the application of the constitutional rights of nature is not limited to protected areas, such as Los Cedros, rather – as with any constitutional right – it applies in the entire territory of the country. The Court explained: “It would not be logical to state that the rights of nature, the right to water, and the human right to a healthy and balanced environment are valid only in the areas protected and intangible areas. On the contrary, the obligations of protection of these rights apply to public authorities throughout the national territory and must be analyzed in accordance with the Constitution and infra-constitutional regulations to authorize, restrict or regulate such extractive activities” (para 142).

Court Ruling Reflects Arguments in CDER Amicus Brief

The Court’s ruling reflects a number of arguments that the Center for Democratic and Environmental Rights (CDER) made in its amicus curiae brief and in testimony that it submitted to the Court in the Los Cedros case.  CDER explained how the constitutional rights of nature protects ecosystems and species. Focusing on Article 73 of the Constitution, CDER provided two key arguments:

  • That Article 73 mandates the prohibition of mining in fragile and threatened ecosystems and in the habitat of wild species threatened with extinction.
  • That while the Los Cedros case is concerned with mining in a protected forest, that the rights of nature apply to ecosystems and species across the country.  This means, therefore, that the application of the rights of nature is not limited only to protected areas or protected forests, but applies throughout Ecuador, especially in ecosystems and habitats with specific constitutional protection as provided for with the rights of nature.

Hugo Echeverría, CDER external attorney in Ecuador, said: “The verdict indicates that the Constitutional Court of Ecuador is taking the new constitutional rights of nature very seriously.  This verdict upholds the constitutional character of these new rights.  The Court ruled that the government has a duty to apply Article 73 of the Ecuador Constitution to prevent wildlife extinction and ecosystem degradation.  The law must be applied rigorously. This is a good day for the species and fragile ecosystems of Ecuador.”

Mari Margil, CDER’s Executive Director, stated, “We congratulate the community and everyone who worked so hard, for so long, to protect nature within Los Cedros. This is a very important ruling by the Court that will mean greater protection of at-risk species and fragile ecosystems across Ecuador.”

Los Cedros Case: Background

In 2017, Ecuador’s national environmental agency authorized two corporations to conduct exploratory mining in Los Cedros, a zone designated as Protected Forest in 1995.  Los Cedros is a place of significant biodiversity and fragile ecosystems, including the humid forests of Chocó, the tropical Andes Mountain range, and a cloud forest.  It is also habitat for 178 species of flora and fauna threatened with extinction, including the spider monkey (Ateles fusciceps) and the spectacled bear (Tremarctos ornatus).

Concerned about the impacts of mining in Los Cedros, the nearby municipality of Santa Ana de Cotacachi went to court to dispute the government’s authorizations to the mining corporations. The municipality argued such authorization was in violation of the constitutional rights of nature and other rights.

In 2019, the case was selected by the Constitutional Court of Ecuador. This is the highest court of Ecuador, and it has the power to select cases to review the application of constitutional rights and to define their legal content.  To date, the Court has selected at least six cases on rights of nature.  Verdicts issued in selected cases set standards of general application (erga omnes effect).

The Los Cedros case dealt with activity authorized by the government of Ecuador.  Since the mining was in an early phase of exploration, the environmental requirements were not strict.  In fact, the authorization was issued on-line, without a specific procedure to assess the impact of the mining on the rights of nature.

This is an important statement of the Court as the mining industry has argued that the rights of nature is limited only to protected areas, which covers only one-fifth of the country.

The Court addresses many other important aspects of rights to nature, including its autonomy and their impact on legislation regarding environmental impact assessment.  Other constitutional rights, such as environmental rights are also addressed by the Court. CDER will issue further information on this in the coming days.

CDER works on the rights of nature in countries around the world, and its founders were involved in the development of Ecuador’s constitutional provisions on the rights of nature.

In the links listed at the end of this CDER article, you can read the following:

  • CDER testimony before the Constitutional Court
  • verdict of the case
  • CDER’s prior press release on the case and read CDER’s amicus brief

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