Ecuador court case: constitutionality of the Environmental Code and mangroves

Summary

In 2018, the Ecuadorian Coordinator of Organizations for the Defense of Nature and Environment, the Asociación Animalista Libera Ecuador and Acción Ecológica presented a public action of unconstitutionality against several norms in the Organic Environmental Code related to mangroves, monocultures, the rights of nature, the right to prior consultation, and environmental consultation. The State advocated for the ratification of the mangroves provision. One of the norms allowed productive activities on mangrove areas, such as shrimp farming.

In 2021, The Constitutional Court of Ecuador ruled in favor of the mangroves, declaring the provision unconstitutional and not in accordance with the rights of nature. The Court declared the partial unconstitutionality on the grounds that they could endanger the vital cycles of mangroves, as well as their existence and maintenance, regeneration, structure, functions, and evolutionary processes. Mangroves are recognized as holders of the rights of nature.

It also establishes constitutional jurisprudence on the matter by establishing that public infrastructure may only be carried out if it is demonstrated that it does not interrupt the vital cycles, structure, functions and evolutionary processes of the ecosystems, as well as the importance of the right to prior consultation and environmental consultation. The Court declared “that article 184 of the Organic Code of the Environment does not apply or replace the right to prior, free and informed consultation of indigenous communes, communities, peoples, and nationalities.” The Court also declared that monocultures that are reasonably justified are not the common practice in degraded areas or in the process of desertification determined in the land use plan, thus making article 121 constitutional. Finally, the court declared that the phrase “other productive activities” affects legal security. The language will be changed to “Public infrastructure that has express authorization from the National Environmental Authority and that offers reforestation programs.”