03/12/2021

Constitutional Court of Ecuador issues landmark judgment on “The Rights of Nature” – Monica Feria-Tinta acted as Amicus

A decisive battle on the protection of endemic species and natural habitats, such as primary forests, was won in Ecuador, thereby setting a world precedent.

The Constitutional Court of Ecuador issued (dated 10 November 2021 and notified on 1 December 2021) a first decision on its kind on The Rights of Nature, in a landmark judgment.

The case arose from a dispute on whether a cloud forest called “Los Cedros” located in Ecuador, one of Earth’s most biodiverse habitats, inhabited by endemic species (including the spectacled Andean bear) was entitled to protection under Article 71 of the Constitution of Ecuador (faced with concessions that had been issued in favour of a mining project and exploration activities carried out by a state-owned entity and Cornerstone, a Canadian company) and on the legal consequences that arise from that protection.

In its decision, the Constitutional Court of Ecuador held that:

“The Rights of Nature, like all the rights established in the Ecuadorian Constitution have full normative force. They are not only ideals or rhetorical statements but entail binding legal obligations” and observed that “the rights of nature, to which the Constitution of Ecuador grants express recognition and guarantees, are not timely and adequately considered by some judges, other public and private authorities”.

The Court developed jurisprudential principles (both substantive and procedural) in relation to what is understood as “Rights of Nature” under Article 71 of the Constitution of Ecuador (“intrinsic value of Nature”). It held inter alia:

“It is a systemic perspective that protects natural processes for their own value. In this way, a river, a forest or other ecosystems are seen as life systems whose existence and biological processes merit the highest possible legal protection that a Constitution can grant: the recognition of rights inherent to a subject.” “The intrinsic value of nature through the recognition of rights is difficult to understand from a rigidly anthropocentric perspective, which conceives the human being as the most valuable species, while reducing the other species and the nature itself, to a set of objects or resources to satisfy human needs, especially those of an economic nature.”

The Court held in that sense that:

“A violation of the Right of Nature to have its existence fully respected occurs through activities that lead to the extinction of species.”

“In addition, these violations of the Rights of Nature can have unsuspected negative effects on human beings, which would also violate other rights, such as the right to water and a healthy environment”.

The Court concluded that the mining project and concession violated the Rights of Nature in Los Cedros forest, as well as the right to water and right to a healthy environment of communities around the forest. It ordered the mining enterprises to “abstain from any activity in Los Cedros” and to fund the restoration of what has been damaged so far, as a consequence of said activities.

This is one of the most significant decisions to arise on the Rights of Nature worldwide, to date, at a time that biodiversity loss and climate change are a growing concern. This dictum (of nearly 100 pages) is an important contribution to the growing jurisprudence on the protection of the natural world. The jurisprudential reasoning on the right to water and the right to a healthy environment adds up to developing jurisprudence in those areas of law. Doubtless, this dictum will also inspire other jurisdictions who are considering adding similar precepts in their own Constitutions.

Monica Feria-Tinta appeared as Amicus Curiae in the case contributing with oral and written submissions to this landmark decision.