IS THE EXERCISE OF ENVIRONMENTAL RIGHTS GUARANTEED BY THE ECUADORIAN CONSTITUTIONAL COURT?
The struggle of civil society —mainly ecologists and indigenous people—, the scientific evidence about the impact of human pollution on global warming and the consequent disappearance of ecosystems pressured several governments to progressively include rights to protect citizens and the nature of environmental risks in their legal regimes.
Viviana Morales Naranjo
Viviana Morales is a lawyer specialized in environmental law and university teaching. She did her undergraduate degree at the Central University of Ecuador and has a Master's Degree in Environmental Law at the Université Paris 1 Panthéon-Sorbonne. She has had experience in the public and private sector at the national level.
In Ecuador, the right to live in a healthy environment – based on an anthropocentric approach – was consecrated from the 1998 Political Constitution. While the declaration of environmental rights —which is mostly bio centric— had to wait until the Constitution of the Ecuadorian Republic (CER) came into effect in 2008. Unfortunately, its inclusion in the Constitution of a state does not secure its practice. Therefore, the implementation of guarantees is required —defined as “any normative technique of protection of a subjective right” — to secure each of the constant rights in the legal system. The CER foresees three different kinds of guarantees to safeguard the constitutional laws: the normative ones, the jurisdictional ones and the public policies.
The following lines are focused on the analysis of the jurisdictional guarantees, which are defined as “the obligations of the jurisdictional body to sanction or declare nullity if it finds illegal or invalid acts that violate the primary guarantees (the norm)” .
The Ecuadorian institution in charge of protecting the constitutional rights through jurisdictional guarantees is the Constitutional Court (CC). In order to reveal the guarantees granted to the rights of living in a healthy environment and the environmental rights, one will analyze six environmental sentences issued as a result of three types of jurisdictional guarantees: A) Unconstitutionality actions, B) Extraordinary protection actions and, C) Non-compliance actions.
A) Unconstitutionality actions
1.- Mining law: This provision was subject of an unconstitutionality lawsuit since the CER recognizes that the indigenous communities have the right to pre-legislative consultation ―previous consultation for the adoption of a law that could affect any of the collective rights (CER, art 57#17) ―. According to the CC, by ratifying the constitutionality of this law, the result of the pre-legislative consultation is not binding and the imposition of the indigenous peoples’ will over the state’s will cannot be accepted. Additionally, it was verified that the approval of the law did not have to go through a pre-legislative process because, at that moment, there was no normative institution to regulate the parameters of the consultation. Meaning that the National Assembly would have carried out an information and participation process before the issuance of this law (Sentence No. 0 001-10-SIN-CC, March 18th, 2010).
2.- Organic Law on Agrobiodiversity, Seeds and Agricultural Promotion: This law was issued on June 8th, 2017. It was the subject of an unconstitutionality lawsuit since the article 56 of the CER authorizes the entry of seeds and transgenic crops for research purposes, although the CER declares Ecuador a transgenic free country unless it exists a declaration of national interest approved by the National Assembly. Six lawsuits of unconstitutionality, which are still waiting for a decision form the Constitutional Court , were presented against this controversial law by arguing that the planting of genetically modified organisms can cause negative effects on health and biodiversity and risk traditional agricultural products.
3.- Critique: On the one hand, the sentence on the Mining Law is questionable since the CC, far from guaranteeing pre-legislative consultation right, simply noted that the lack of a regulative institution justified that this right is not guaranteed. On the other hand, the second sentence demonstrates the slowness with which constitutional cases are processed since the Court has not pronounced itself – more than one year after the lawsuits were filed to overturn the Organic Law on Agrobiodiversity – about the legitimacy of a law in force, even against the criticisms raised by agroecology groups in the country.
B) Extraordinary Protection Actions (EPA)
1.- Pacayacu vs. Petroecuador case: Through the sentence No. 012-16-SEP-CC of January 13th, 2016, the CC solved the EPA against the sentence of May 8th, 2013 in which the National Court of Justice (NCJ) accepted the right of reparation for environmental and health damages caused by the companies Petroecuador and Petroproducción to the farmers of the Pacayacu Parish ―Lago Agrio― based on the objective environmental responsibility figure. In this resolution, the CC declared the violation of the constitutional right to an effective judicial protection by the NCJ and invalidated the sentence of May 8th, 2013 based on three aspects: 1) the NCJ had no competence to analyze a test whose assessment was exclusive to the trial judge, 2) the strict liability of the state was declared without previously establishing a verbal trial before the Provincial Court to determine it, and 3) the NCJ was not competent to order a summary procedure to quantify the damages, since it was not foreseen in the legislation.
2.- María Aguinda and others vs. Chevron case: On November 12th, 2013 by partially ratifying the sentence of the Provincial Court of Justice of Sucumbíos, The NCJ condemned the US Chevron Corporation to pay USD 8’646.160, plus 10% of that value, for reparation on behalf of the Amazon Defense Front. The sentence declared the right to restoration for damages in favor of Maria Aguinda Salazar and other inhabitants of the Amazon, due to the violation of the right to live in a healthy environment and ecosystem loss. Chevron’s unconformity in regard to the sentence issued by the NCJ trigged the presentation of an EPA on January 15th, 2014 (AEP No. 0105-14-EP). On May 22th of 2018, the CC summoned a public hearing to listen the pleas of the parties. Chevron requested its suspension and the excuse of the constitutional judges since the Court could not guarantee the impartiality of the process because it was currently in an assessment period by the Council of Citizen Participation and Transitory Social Control (CCPSC). However, the plenary session rejected the request and the hearing was held. Two months have passed without the Court pronouncing its final decision.
3.- Critique: In the sentence against Petroecuador, the CC demonstrates that the jurisdictional power can evade the obligation to determine the violation of constitutional rights to a healthy environment and health based on procedural aspects such as the competent judicial channel to know the case. On the contrary, in the sentence against Chevron, it can be noticed that a lawsuit that had not been solved in four years, was suddenly a matter of interest to the CC, precisely when this constitutional body is evaluated by the CCPSC. This Council, according to several jurists, would be competent to review the work made by the members of the CC during its tenure and decide their dismissal or continuation in office. Does the Chevron case show that the CC can issue sentences in a certain way to legitimize its reputation before the civil society and guarantee its permanence in office?
C) Non-compliance actions:
1.- Vilcabamba river case: On March 30th, 2011, the Provincial Court of Justice of Loja – based on the violation of the rights of nature – established measures of reparation and non-repetition in favor of the complainant, the Wheeler family, since the construction of a road in charge of the Provincial Government of Loja caused the pollution of the Vilcabamba river due to the accumulation of debris from the construction on the banks of the river. The river swept away about one and a half hectares due to this fact, which represents a high economic value for the plaintiffs. The Wheelers presented, one year later, a non-compliance action to the aforementioned sentence by adducing that the Provincial Government had not complied with the dispositions issued by the Court. It took six years, for the CC to finally request reports to several institutions regarding the follow-up and compliance with the sentence. The CC denied the non-compliance action, on March 28th, 2018, because the river has already been decontaminated.
2.- Mining Law case: In sentence No. 001-10-SIN-CC of March 18th, 2010, the CC disposed a set of rules and provisional procedures that must be complied with for cases that require a pre-legislative consultation, which will exist until the National Assembly issues new norms. Arguing that the Assembly did not issued that law, the Confederation of Indigenous Nationalities of Ecuador presented a non-compliance action to the July 9th, 2013 sentence, which has not been solved so far (No. 0038-13-IS). It must be noted that, on June 19th of 2012, the National Assembly approved the Pre-legislative Consultation Application Instructions, valid to date.
3.- Critique: The sentence on the Vilcabamba river reflects the lack of speed with which acts the most important constitutional control body. This case also shows the absence of effective mechanisms for obtaining evidence. Instead of disposing a visit in situ to determine the compliance or non-compliance with the order given by the Provincial Court of Justice of Loja, the CC was satisfied with the reports issued by the Ministry of Environment, avoiding the opportunity to personally verify the magnitude of the damage and the rehabilitation measures executed in the scene.
On the second sentence, the CC – following its habitual behavior – moved away from the principle of celerity. More than five years have passed since the lawsuit, against the omission committed by the National Assembly, was presented. So far, the CC has not pronounced itself on this case. Though the CC could initially affirm that an instructive replaces the creation of a law, as provided in sentence No. 001-10-SIN-CC, is its obligation to issue a sentence accepting or filing the plaintiffs’ claim.
The Constitutional Court proceedings are still insufficient to ensure the full exercise of the environmental rights ―to live in a healthy environment and the rights of nature―. In addition to the jurisdictional guarantees analyzed, the CC is competent to resolve lawsuits of habeas corpus, habeas data and access to public information. Precisely, the Colombian and Argentine judges, resorting to the habeas corpus, have declared the illegal detention of a chimpanzee and a bear, respectively, that were in unsuitable conditions for their normal development . These sentences reflect the judicial ideological change aimed at a new approach to the understanding and application of rights. Indeed, the Ecuadorian constitutional judge still has a long way to achieve environmental guarantees. The intervention of civil society is essential to accomplish it, since decisions declaring the violation of animal’s right to freedom, to the life of a river as a subject of rights, etc., will not be fulfilled until civil society is empowered with the rights of representation of nature and presents lawsuits to the Constitutional Court.
Ferrajoli Luigi, "“Sobre los derechos fundamentales y sus garantías”, translated by Miguel Carbonell and others, Mexico, CNDH, 2006"
Carbonell Miguel, “¿Qué es el garantismo? Una nota muy breve”, Mexico, UNAM, 12th September, 2009
Constitution of the Republic of Ecuador, RO 449, 20th October, 2008
Organic Law on agrobiodiversity, seeds and promotion of agriculture, Official Register Supplement 10, 8th June, 2017, art. 56
Mining Law, Law 45 RO Suplement 517, 29th January, 2009
Prelegislative Consultation Application Instructions, RO 733, 27th June of 2012
CC, Unconstitutionality Actions: 0022-17-IN (12th Junio of 2017), 0033-17-IN (4th July 2017), 0037-17-IN (13th July of 2017), 0044-17-IN (14th August of 2017), 0053-17-IN (27th September of 2017), and 0055-17-IN (19th October of 2017)
CC, Unconstitutionality Actions, Sentence No. 0 001-10-SIN-CC, 18th March of 2010
Criminal Chamber of the Provincial Court of Justice of Loja, Protection Action No. 010-2011, 30th March of 2011
CC, Extraordinary Protection Action, No. 012-16-SEP-CC 13th January of 2016
CC, Extraordinary Protection Action, case No. 0105-14-EP, 15th January of 2014
CC, Non-compliance action, case No. 0038-13-IS, 9th July of 2013
CC, Non-compliance action, judgment No. 012-18-SIS-CC, 28th March of 2018