The Ecuadorian Constitutional Court Affirms the Rights of Nature
This may appear an arcane topic, but the question of the rule of law over the rule of profit with regard to nature rights appears to be gaining traction and a topic well worth following closely.
Gustavo Prieto is a postdoctoral researcher at the Department of European, Public and International Law, Ghent University; Human Rights Centre and Human Rights in Context.
Cross-posted from Verfassungsblog
Creative Commons Attribution-Share Alike 3.0 Unported
Last week, the Ecuadorian Constitutional Court published its judgment in the case of the Los Cedros forest, a protected cloud forest of great biodiversity in the Andean mountains of Ecuador (here, here). This judgment revokes environmental permits previously granted to two mining concessions in the Bosque Protector Los Cedros reserve. The Court ruled that the mining permits in question had not only violated several constitutional rights of communities in the area but also – most remarkably – the rights of mother nature (Pacha Mama). It specifically granted these rights to the Los Cedros Reserve. While the judgment has received international recognition, there is still some uncertainty regarding future applications of this unusual, non-anthropocentric legal standard set by the Court to protect the rights of mother nature.
In 2017, Ecuador granted the state-owned enterprise ENAMI EP two mining concessions along with the required environmental permits. This allowed mining within the Los Cedros cloud forest, a protected area known for its exceptional biodiversity. ENAMI EP then entered into a number of agreements with private corporations, which began to explore the area for minerals in preparation for mining activities.
In 2018, local authorities of the affected region filed a constitutional remedy to stop all mining activity within Los Cedros. They argued that there had been a possible violation of the rights of nature and the rights of communities in the area to be informed and consulted prior to granting such concessions. A lower court partially accepted this claim, declaring that Article 61.4 of the Ecuadorian Constitution (Right of prior consultation) had been violated and ordering that mining activities cease until an assessment of the rights of nature had been conducted. However, a group of local authorities filed an additional remedy against the lower court’s decision bringing the case to the Constitutional Court to seek express recognition of the rights of nature.
The Constitutional Court ruled on this claim in judgment 1149-19-JP/21 of 10 November. It declared that the mining concessions and environmental permits previously granted had violated three different sets of rights set out in the Ecuadorian Constitution: a) the Rights of Nature or Pacha Mama (Articled 10, Article 73) corresponding to the rights of the Los Cedros forest; b) the right to water (Article 12, Article 313), as previously defined by the Court in an earlier case, and the right to a healthy environment (Article 14); and c) the right of local communities to prior consultation (Article 61.4, Article 398). While this sentence includes important elements regarding all three types of rights, its most innovative component is providing a legal standard to assess violations of the rights of nature. In the following, I specifically focus on this aspect of the judgment.
The protection of Nature as constitutional value
In 2008, Ecuador adopted a new constitution, characterized by a broad bill of rights that includes the rights of mother nature, Pacha Mama (Article 10). This is a notably non-anthropocentric conception of environmental concerns rooted in indigenous beliefs. Indigenous communities do not see nature as an object of protection but as an integrated system to which human beings belong and with which they must harmoniously co-exist (Preamble Ecuadorian Constitution).
In judgment 1149-19-JP/21, the Court defined the legal contours of the rights of nature, defining them as a fundamental constitutional value and advancing a legal standard that ought to apply in specific cases, such as the case of Los Cedros. The Court concluded that the Constitution’s recognition of Nature as a subject with rights was not a rhetoric declaration, but rather a statement regarding a fundamental value. As the Court declared (par 31, 32):
“This is not rhetorical lyricism, but a transcendent statement and a historical commitment […] these values are part of the constitutional preamble which presents the fundamental values of the Ecuadorian people.”
The legal standard for nature rights
The Court had already declared in an earlier case, decided on 8 September 2021, that mangrove ecosystems in general hold nature rights, but it had not provided any formula detailing how such rights should be considered in specific cases. The recent Los Cedros Judgment went one step further by structuring a legal standard for the application of nature rights in a concrete case, recognizing Los Cedros as a specific subject deserving protection (par 70). With this step, the Court went well beyond the earlier case, which determined that mangroves in general were complex ecosystems protected by the rights of nature. In Los Cedros, the Court did not recognize the rights of cloud forest ecosystems in general but instead chose to consider a specific forest as the holder of such rights.
Then, it applied a two-step test to determine when an economic activity could be said to violate such rights: a) the existence of potential risk of severe and irreversible damage to nature; and b) lack of full scientific certainty about the negative impacts of an activity (par 62). The Court justified this two-step test with the precautionary approach of Principle 15 of the 1992 Rio Declaration on Environment and Development and other international environmental instruments. However, while Principle 15 establishes that the lack of full scientific certainty shall not be used as a reason for not taking ‘cost-effective measures to prevent environmental degradation’, it does not require scientific certainty that an activity will have zero impact before it is authorized to start. Thus, the Court set a higher threshold, one that could be hard to meet in the case of any type of economic activity.
The Court concluded during a process ‘based on the information received’ (par 70) that any mining activity would have an irreversible negative impact in Los Cedros (par 124) thereby affecting the rights of Nature. Complementarily, it stated that in any case the parties involved had not provided the Court (par 130) with scientific information regarding potential impacts on nature rights and it highlighted the lack of independent environmental studies prior to the concession of mining permits (par 140).
Nature rights upholding the standard
The application of this legal standard raises several questions that the Court must clarify in future jurisprudence:
- Holder of Nature Rights: It is still not clear who the Court has declared will hold nature rights in the future. In its earlier case, the Court declared that mangroves ecosystems in general held nature rights. In the Los Cedros case, the Court determined that only this specific forest and its preassigned borders held Nature rights. Would that imply that the decision in Los Cedros should be extended to all similar forests across Ecuador? Or, in the future, will the Court select specific systems or aspects of natural systems in order to make assessments on a case-by-case basis?
- Strict precautionary approach: The Court reached the unequivocal conclusion that it was impossible to determine what damages could have resulted from mining activities in Los Cedros regardless of any specific environmental impact assessment of the project. However, this approach implies that in the future any economic project that is related to a complex ecosystem will need to provide not only an environmental impact statement for that specific project, but also overwhelming scientific evidence that its industry as such would not produce environmental damage. In practical terms, this could be difficult to achieve.
- Standard of Proof: In addition, by setting such a high precautionary approach the Court unwittingly put itself in the position of the ultimate guardian of scientific environmental truths. If lack of full scientific certainty about the negative impacts of an entire economic industry becomes a cornerstone of its legal standard, it means that in future cases, the Court and no other branch of government, including state environmental bodies, is responsible for making final comprehensive environmental assessments. This further implies that the Judges need to develop their expertise and allocate considerable resources to verifying the highly technical information required to attain complete scientific certainty.
- Rights of third parties: Finally, the judgment is unclear regarding the legal situation of private economic actors, both nationals and foreigners, who have engaged in economic activities in Los Cedros or similar forests across Ecuador. In the end, all private actors are operating in bona fide inside the Ecuadorian legal system, complying with the requirements demanded by the environmental authorities until this judgment. Thus, the Court should consider that under international law, a state could always shift to a higher environmental standard of protection, but that specific actions such as the lack of predictability of a new legal standard, could eventually be framed as violations of due process in international law (See Clayton/Bilcon v. Canada, par 447-454).
The Los Cedros case will undoubtedly have a transformative impact in Ecuador and beyond. However, if the Court does not address the lack of clarity regarding the scope and implications of its own standard in the future, it risks contributing to a fragmented and unpredictable system for the rights of Nature across the country. This would make it difficult for local communities, economic actors, and policy makers to determine the exact application of Nature rights in concrete cases.
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