Ecuador Constitutional Court Case: Shiva et al. v British Petroleum

Summary

A protective action was presented before the Constitutional Court of Ecuador for the protection of the rights of nature in the Mississippi Canyon well, located in the Gulf of Mexico off the coast of the United States, where there was an oil spill by BP. The lawsuit was filed by a group of citizens citing Ecuador’s Constitutional provisions recognizing the rights of nature, and requesting reparation measures.

Block 252 of the Macondo field, where the Mississippi Canyon well is located, was granted to the British oil company British Petroleum (BP). The lawsuit states the high risk of exploitation was known to BP, given that two oil spills had occurred in scenarios similar to that of the Macondo field.

The lawsuit argues that “The exploration plans in the Gulf of Mexico, the license granted, and BP’s responses to the North American environmental authorities present various irregularities and breaches of the environmental regulations of the United States, the country that granted the licenses, and are under judicial review by the Center for Biological Diversity. However, the impacts of these activities are not limited to the country, but extend beyond its borders.”

Legal Argument & Jurisdiction Debate
The lawsuit claims that according to Article 86 (2) of the Ecuadorian Constitution, and Article 7 of the Organic Law of Jurisdictional Guarantees, there are two prerequisites for the territorial jurisdiction of the judge: (1) the act that causes the violation of rights occurs in the place where the judge has territorial jurisdiction; (2) The violation of rights occurs within the territory where the judge has jurisdiction.

Thus, the question is whether the effects of the spill affect the area where the cantonal judge has jurisdiction.

The plaintiffs argue that to answer this question “they must first address the entirely new paradigm introduced by the current Ecuadorian Constitution”:

“When it establishes that Nature is a subject of rights, we must understand this concept not according to traditional notions of rights, but rather according to the logic of a constitutionalism specific to a Plurinational and Intercultural State. From the Andean philosophy that inspires the recognition of Pachamama (Mother Earth), Nature is an integral entity, interconnected with the universe. In this sense, if one part of the Earth is affected, the entire Earth is also affected. Although the spill occurred in the Gulf of Mexico, the Earth was violated. Therefore, the local judge has jurisdiction. If the Earth is Nature and a subject of rights, it cannot be compartmentalized.”

Legal Ruling
The Court ruled against the plaintiffs, deciding that, “in order for an action to succeed against an act or omission caused by a person in a certain territory, and that supposedly causes extraterritorial effects such as damage to nature, there are international Courts and Tribunals with international extraterritorial competence that may well substantiate and sanction with extraterritorial effects.”