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QUITO, Jun 3 2011 (IPS) - Recognition of the rights of nature in Ecuador’s 2008 constitution was widely applauded by environmentalists around the world. However, putting them into practice is still problematic due to the lack of legislation and an institutional framework.
It is true that in this country “enshrining the rights of nature has gone beyond philosophical discussion,” and they have passed from being diffuse and vague to being objective and regulated, at least at the level of the constitution, said environmental lawyer René Bedón, dean of the law faculty at the Universidad de los Hemisferios.
“Furthermore, nature is beginning to file lawsuits,” he told IPS, referring to the constitutional court sentence against the Provincial Council of Loja, a province on the border with Peru, 500 kilometres south of Quito.
On behalf of the rights of nature, and particularly of the Vilcabamba river, Richard Wheeler and Eleanor Geer Huddle, foreigners living in the area, asked for constitutional protection against damages caused by the widening of the Vilcabamba-Quinara highway, being carried out without an environmental permit.
The case, the first lawsuit in Ecuador’s history on the rights of nature, was analysed at a seminar on “El derecho y las políticas ambientales más allá del papel” (Beyond the letter of the law and environmental policies), held Tuesday and Wednesday by the Ecuadorian Centre for Environmental Law (CEDA) to commemorate its 15th anniversary.
The meeting was held ahead of World Environment Day, to be celebrated Sunday Jun. 5.
Environmental lawyer Mario Melo, one of the driving forces behind the recognition of the rights of nature, said the verdict put into effect the legal standards outlined in the constitution.
Among the standards applied by the court are the enforceability of the rights of nature, the precautionary principle – that is, the duty to protect and make provision against possible harm – and the concern that environmental damages will impact on future generations.
The main thing was the reversal of the burden of proof, said Melo: the plaintiffs did not have to prove harm, but the provincial government of Loja had to provide hard evidence that their work on the road did not, and would not, affect the environment.
In spite of this milestone, the contradictions between the 2008 constitution and national environmental legislation prior to that date continue to provide loopholes for citizens, companies and even the state to evade the regulations, environmental lawyer María Amparo Albán, the head of CEDA, told IPS.
For example, the constitution calls for the appointment of an environmental ombudsperson and the creation of an environmental monitoring and oversight office, but this has not yet been done, said lawyer Ricardo Crespo, an expert on environmental issues.
An environmental code, bringing together all the relevant laws, is also still lacking, although the Environment Ministry is working on it, said Yuri Iturralde, a ministry official.
Special environmental judges have not been appointed, either, “although there has been an interesting experience with the creation of an environmental prosecution service in the Galápagos Islands,” Crespo said. The islands in the Pacific Ocean have a special regime, as they are a national park and marine reserve.
Crespo also pointed to a lack of coordination between economic and environmental policies.
In his view, more political will is needed in order to enforce the laws and provide human, financial and equipment resources for environmental management.
Bedón emphasised the need to make a distinction between environmental damage and personal interest. Many lawsuits are brought by individuals who use the rights of nature as an excuse for “their own enrichment,” he said.
Environmental legislation and policies in Ecuador have expanded to a great extent since international initiatives like the 1992 Earth Summit in Rio de Janeiro or local landmark events like the creation of the Environment Ministry in 1996, said Gabriela Muñoz, the executive director of CEDA.
The country’s legal system has also made steady progress. The peak seemed to have been reached with the 2008 constitution, but secondary legislation still needs to be developed.
The constitution “embodied international trends in environmental policies,” said Muñoz. “It ratified the principles of environmental law and upheld the declaration of public interest in conserving biodiversity, the duty to protect the natural heritage and the recognition of civil and collective rights to a healthy, ecologically balanced environment and to citizen participation in environmental decisions.”
But the constitutional reform also had a profound effect on the country’s laws and regulations in general, including recognition of the rights of nature, a new form of guardianship of environmental rights and an institutional proposal that will reform the present structure.
“This advanced constitutional development poses a challenge for Ecuador: to make these constitutional rights operational, and to serve as a model for other countries, contributing to the development of international environmental law,” she said.
The seminar, attended by experts from several countries, is part of the preparations for the next sustainable development summit, to be held in Rio de Janeiro in 2012 (Rio+20).
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