Environmental Law of Ecuador

Chapter 18A Environmental Law of Ecuador Maria Antonia Tigre

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I.

INTRODUCTION

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Introduction to Ecuador

Babylon may well be glori!ed for its walls, Nineveh for its grandeur, Athens for its letters, and Constantinople for its empire, but Quito trumps them all: as the key of Christianity, and for having conquered a world; for to this city belongs the discovery of the great River of the Amazon.1

Ecuador, or, o!cially, the Republic of Ecuador, is located in western South America, bordering the Paci"c Ocean at the Equator, between Colombia and Peru. A country that just recently found some economical and political stability, Ecuador currently has a left-center political regime.2 With 14.67 million people, it is the 67th most populated country in the world, and ranks seventh among the 12 independent South American states.3 In size, it ranks 74th in the world, comparable to the American state of Arkansas in its 98,985 square miles (256,369 km2).4 Within South America, Ecuador is one of the smallest countries, ranking ninth place. [Section 18A:1] 1

A Spanish version of those lines is inscribed on a plaque a!xed to the exterior of the Metropolitan Cathedral of Quito, the capital of Ecuador. Frank Jacobs, Amazonia or Bust!, NY Times, (June 19, 2012, 1:38pm), http://opinionator.blogs.nytimes.co m/2012/06/19/amazonia-or-bust/. 2 James Petras, Ecuador: Left-Center Political Regimes versus Radical Social Movements, Global Research—Centre for Research on Globalization (Feb. 12, 2013), http://www.globalresearch.ca/ecuador-left-center-political-regimes-versus-radical-socia l-movements/5322667. 3 Ecuador, The World Bank, http://data.worldbank.org/country/ecuador (last visited Feb. 24, 2013). 4 UNdata, Country Pro!le: Ecuador, United Nations, http://data.un.org/CountryP ro"le.aspx?crname=Ecuador (last visited Feb. 24, 2013). 1

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Ecuador is a distinguished country for other reasons. It is “un paìs amazo´nico,” or an Amazonian country. The Amazon River Basin was discovered in Quito and the Amazon rainforest itself once belonged entirely to it. Although a lot of its territory was lost, Ecuador still owns the most bio-diverse part of the Amazon, and is home to thousands of indigenous peoples.5 This piece of environmental treasure has experienced, however, one of the worst environmental disasters in history. Over the course of almost three decades, 18.5 billion gallons of toxic waste were dumped in the Amazon rainforest. After 20 years of litigation, the waste still lies within it. Nonetheless, due to the traditional culture of its population, and its special relationship with nature, Ecuador became intrinsically preoccupied with protecting its biodiversity. It became the "rst country to concede rights to nature. In this context, environmental law is a rising "eld with higher political and social importance for the country. § 18A:2

National history

Ecuador belonged to the northern Inca Empire until the Spanish conquest in 1533. Quito was founded by Spain in 1534 on the site of the capital of Atahualpa's Inca kingdom. It became an o!cial administrative district of Spain, Real Audiencia de Quito, and part of the Viceroyalty of Peru in 1563.1 The district is estimated to have had more than 500,000 square miles in size—over twice the size of presentday Ecuador—and held complete power over the Amazon Basin. Nonetheless, for nearly 300 years of Spanish colonization, Quito remained a small city, with only 10,000 inhabitants.2 In the "rst few decades of the 1800s several attempts were made to achieve independence from Spain. Some were even shortly favorable. For example, in 1809, Quito hosted an insurrection. Although it lasted only a few months, it was the "rst successful endeavor to develop an independent and local government in Latin America. In 1811, independence was again brie#y achieved, leading to the draft of the consti5

Univ. of Texas at Austin, Scientists identify Ecuador's Yasuni National Park as one of most biodiverse places on Earth, Sciencedaily (Jan. 19, 2010), http://www.scien cedaily.com/releases/2010/01/100119133510.htm (“[T]his study demonstrates that Yasunì is the most diverse area in South America, and possibly the world,” quoting Dr. Peter English of The University of Texas at Austin.). [Section 18A:2] 1

Helen Lord Clagett, A Guide to the Law and Legal Literature of Ecuador, 1 (1947), available at http://heinonline.org.rlib.pace.edu/HOL/Page?collection=cow&han dle=hein.cow/gulllecu0001&div=1&country$code=EC. 2 Helen L. Clagett, A Guide to the Law and Legal Literature of Ecuador, 2 (1947). 2

Environmental Law of Ecuador

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tution for the “Estado de Quito.” In spite of that, the revolutionary government was overcome and dispersed in 1811.3 The city of Quito, now Ecuador's capital, at last gained independence on May 24, 1822. Along with New Granada (Cundinamarca), part of present day Colombia, and Venezuela, Quito fought the Battle of Pichincha and defeated the Royalist forces loyal to the Spanish government, securing independence of the provinces of the Real Audiencia de Quito.4 However, Ecuador was still a part of a new federation called the Republic of Gran Colombia. In 1830, though, Quito withdrew.5 Shortly afterwards, the provinces of Guayas and Azuay also seceded, and joined Quito, forming an independent state. In order to avoid any preference among the divisions, the country adopted the name Republic of Ecuador. Territorial changes to the original boundaries were made afterwards, with several irredentist claims. Most of these con#icts derived from the poor de"nition and demarcation of Spanish colonial borders.6 Ecuador has claimed all Amazonian Basin lands since its independence, but lost most of them to Colombia, Peru and Brazil through a series of peaceful treaties.7 For example, due to the Treaty of Madrid signed with Portugal in 1750, Ecuador lost the largest part of its Amazon territory to Brazil.8 Among the con#icts between neighbors, there was a border war with Peru. Starting in 1828, the con#ict rose even before Ecuador was an independent state. Although Gran Colombia won the dispute, it disintegrated before actually signing a permanent agreement, leading to the longest territorial con#ict in the Western Hemisphere.9 The "nal border demarcation only came into e%ect on May 1999, ending the 170-year-old discord with Peru.10 Since its independence, Ecuador has been through several political 3

Helen L. Clagett, A Guide to the Law and Legal Literature of Ecuador, 2 (1947). 4 The Battle of Pichincha, Wikipedia (last visited Mar. 3, 2013), http://en.wikiped ia.org/wiki/Battle$of$Pichincha. 5 The independence was recognized on Feb. 16, 1830. 6 Frank Jacobs, Amazonia or Bust!, NY Times, (Jun. 19, 2012, 1:38pm), http://op inionator.blogs.nytimes.com/2012/06/19/amazonia-or-bust/. 7 For example, the Rio de Janeiro Protocol was signed with Peru on Jan. 29, 1942. 8 The Spanish-Portuguese treaty of 1750, or Treaty of Madrid, was signed by Ferdinand VI of Spain and John V of Portugal on January 13, 1750. 9 The Pedemonte-Mosquera Protocol, signed on Aug. 11, 1830 between ministers from Gran Colombia and Peru was supposed to have settled the new border “for eternity,” but the authenticity of the document was contested by Peru. Frank Jacobs, Amazonia or Bust!, NY Times (June 19, 2012, 1:38pm), http://opinionator.blogs.nytim es.com/2012/06/19/amazonia-or-bust/. 10 The Peace Accord was signed on Oct. 26, 1998. 3

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changes, leading to the adoption of 20 constitutions in nearly two centuries.11 The country was under seven years of military rule— between 1972 and 79—much like most of the countries in South America.12 Democracy was re-established in 1979, under a new constitution and democratic elections. The political structure is, since then, a constitutional republic.13 Although a representative democratic republic, the last two decades were marked by a lot of political instability, with protests that led to the ouster of three of the last four democratically elected presidents. The current Constitution was approved in 2008, leading to general elections under the new constitutional framework in 2009. The new constitution was part of President Correa's political campaign. President Rafael Correa14 was then reelected, and remains in o!ce after being recently elected for an additional term. § 18A:3

Organization of territory

Ecuador's territory constitutes a single geographical and historical whole, with natural, social, and cultural dimensions. 1 However, Ecuador is ruled by decentralized autonomous governments that have political, administrative, and "nancial autonomy.2 Decentralized autonomous government encompasses regional and provincial councils, metropolitan councils, municipal councils, and rural parish boards. The system of decentralized autonomous governments is governed by law, which set forth a national system of competencies, policies and mechanisms for compensating territorial disparities.3 Each region, metropolitan district, province or canton has law-making power within 11

See Dennis M. Hanratty, ed., Ecuador: A Country Study. (1989), available at ht tp://countrystudies.us/ecuador/57.htm. See also Constitutional history of Ecuador, Constitution Net http://www.constitutionnet.org/country/constitutional-history-ecu ador (last visited Apr. 19, 2013). 12 Some examples: Argentina (1966–1973; 1976–1983), Bolivia (1964–1966), Brazil (1964–1985), Chile (1973–1990), Paraguay (1954–1989), and Peru (1968–1980). 13 2008 Constitution of the Republic of Ecuador, Constitucio´n de la Repu´blica del Ecuador, R. O. No. 449, Oct. 20, 2008, as emended in May 7, 2011, R. O. No. 490 [2008 Const.], art. 1. The translated version of the 2008 Constitution is available at Republic of Ecuador, Political Database of the Americas, Georgetown, http://pdba.geo rgetown.edu/Constitutions/Ecuador/english08.html (last visited May 5, 2013). 14 CIA, Ecuador, The World Factbook (updated Apr. 29, 2013), https://www.cia.go v/library/publications/the-world-factbook/geos/ec.html. [Section 18A:3] 1

2008 Const., art. 4. 2008 Const., art. 238. 3 2008 Const., art. 239. Codigo Organico Organizacion Territorial, Autonomia, Descentralizacion, Ley 0, R. O. Suplemento No. 303, Oct. 19, 2010, available at http:// www.ambiente.gob.ec/wp-content/uploads/downloads/2012/09/COOTAD.pdf. 2

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Environmental Law of Ecuador

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the limits of their competencies; rural parish boards shall have regulation-making powers.4 In order to decentralize the administrative functions of Quito, the country is divided in seven regions or zones.5 The State is territorially organized into regions, cantons,6 and parishes (parroquias). Community unions may be formed in order to improve the management of their competencies.7 Communities, communes, precincts, neighborhoods and urban parishes are also recognized as basic units of participation in the decentralized autonomous government.8 The division aims at administering the natural and economic resources by an independent sectional regime. Each has speci"c jurisdiction over predetermined themes.9 Administratively, Ecuador has 24 provinces, each with its own capital. Parishes are further subdivisions and can be either urban or rural. Quito and Guayaquil are autonomous metropolitan districts.10 The province of Galápagos has a special system of government, organized according to the principle of conservation of the natural heritage and the good way of living.11 Equally, the territory of the Amazon provinces constitute a special territorial district, with an integrated land use planning including social, economic, environmental and cultural aspects, ensuring conservation and protection of the ecosystem and the principle of sumak kawsay.12 Finally, indigenous and multicultural territorial district constitute a special scheme due to its particular environmental and demographic features.13 Autonomous regions are created by law.14 4

2008 Const., art. 240. 2008 Const., art. 242. 6 Cantons are second-level subdivisions of Ecuador. There are currently 226 cantons, of which three are not in any provinces. 7 2008 Const., art. 243. 8 2008 Const., art. 247. 9 Jurisdiction of central State (2008 Const., art. 261); jurisdiction of autonomous regional governments (2008 Const., art. 262; 266); jurisdiction of provincial governments (2008 Const., art. 263); jurisdiction of municipal governments (2008 Const., art. 264; 265); jurisdiction of rural parish governments (2008 Const., art. 267). 10 2008 Const., art. 247. 11 2008 Const., art. 258. 12 2008 Const., art. 250. 13 2008 Const., art. 242. 14 2008 Const., art. 245. 5

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§ 18A:4 Economy Ecuador is the eighth largest economy in Latin America.1 Its wealth is highly dependent on petroleum resources, which have accounted for about half of the country's export earnings and approximately two"fths of public sector revenues in recent years.2 Oil was discovered in the 1960s, leading to an unprecedented period of economic expansion. Ecuador still has high poverty and income inequality. Nonetheless, the current administration has e!ciently reduced poverty levels and unemployment. Extreme poverty rate3 declined signi"cantly between 1999 and 2010, from an estimated 40% to 17.4%. There is a 7.6% rate of unemployment.4 After a banking crisis in 1999/2000, Ecuador adopted the US dollar as legal tender,5 which stabilized the economy and provided for positive growth. The Central Bank of Ecuador, a body which was formerly entitled to administrate and lead monetary policies, has since then the main function of ensuring the functioning of the “dollarized” economical regime, as well as fostering the economic growth and general well being of the country. 6 The Executive Branch rules on monetary policies, which are then executed by the Central Bank.7 The sovereign debt, representing 30% of Ecuador's public external indebtedness, a value of approximately US $3.2 billion, was defaulted in 2008, re#ecting the economy's growth. In 2009, 91% of its defaulted bonds were bought back through an international reverse auction. With the global economic crisis, uncertainties due to the termination of bilateral investment treaties, and decline in world oil prices and remittance #ows, the economy slowed in recent years. Even so it was able to maintain a positive, though small, growth. Ecuador has a current de"cit of US $1.135 billion.8 The country has a Gross Domestic Product (GDP) of US$65.95 bil[Section 18A:4] 1

From a total of 26 countries. UNdata, Country Pro!le: Ecuador, United Nations, http://data.un.org/CountryP ro"le.aspx?crname=Ecuador (last visited Feb. 24, 2013). 3 De"ned by the World Bank as US $1.25 a day as of 2005. 4 UNdata, Country Pro!le: Ecuador, United Nations, http://data.un.org/CountryP ro"le.aspx?crname=Ecuador (last visited Feb. 24, 2013). 5 Beginning Sep. 15, 2000, the Ecuadorian Sucre (ECS) was replaced by the US Dollar (1USD = 25000 ECS). UNdata, Country Pro!le: Ecuador, United Nations, http://data.un.org/CountryPro"le.aspx?crname=Ecuador (last visited Feb. 24, 2013). 6 See Banco Central del Ecuador, http://www.bce."n.ec (last visited Mar. 4, 2013). 7 2008 Const., art. 302. 8 Ministério de Relaciones Exteriores, Comércio e Integración, The Business Year: Ecuador 2012, http://thebusinessyear.com/publication/preview/ecuador-2012 (last visited Feb. 5, 2013). 2

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Environmental Law of Ecuador

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lion,9 representing 0.11% of the world economy, and ranking 63rd in the world. The GDP per capita is US $4,072.7. Ecuador's GDP has a 4.8% real growth rate, ranking 84th in the world. Historically, Ecuador's GDP averaged US $15.77 billion.10 Retail and wholesale trade, hotels and restaurants, transportation, communication and warehousing, "nancial intermediation, professional, technical, administrative and household services, education and health and government services and goods account for 57% of the GDP.11 Manufacturing, mining and quarrying create 23% of the wealth; while construction, water and electricity distribution generate 11%.12 Industrial production is still #ourishing. Recently, Ecuador's economic and business environment has been developing, with high national infrastructure investment. Two major projects can potentially change Ecuador's economy, inducing growth. The Re"nery of the Paci"c, a US $12.5 billion development expected to be concluded in 2013, shall eliminate Ecuador's dependency on imported oil derivates, allowing the country to become an exporter.13 The second project, a US $2 billion Coca Codo Sinclair hydroelectric power plant shall generate 1,500 MW, enough to provide for 75% of the country's demand of energy.14 Ecuador has an estimated US $185.4 billion in mineral reserves, although the mining industry is still facing some challenges and development. The recent Mirador copper-gold project, developed by EcuaCorriente,15 has an estimated investment of US$1.4 billion.16 The project is currently judicially challenged by the Fundacio´ n Pachamama.17 Agriculture, forestry and "shing constitute the remaining 9% of the 9

Ecuador, The World Bank, http://data.worldbank.org/country/ecuador (last visited Feb. 24, 2013). 10 Ecuador GDP, Trading Economics, http://www.tradingeconomics.com/ecuado r/gdp (last visited Apr. 2013). 11 Ecuador GDP, Trading Economics, http://www.tradingeconomics.com/ecuado r/gdp (last visited Apr. 2013). 12 Ecuador GDP, Trading Economics, http://www.tradingeconomics.com/ecuado r/gdp (last visited Apr. 2013). 13 A project owned by Petroecuador and PDVSA. See EP Petroecuador, http://ww w.eppetroecuador.ec (last visited Apr. 24, 2013). 14 See Proyecto Hidroeléctrico Coca Codo Sinclair, http://www.ccs.gob.ec (last visited Apr. 24, 2013). 15 EcuaCorriente (ECSA) is an Ecuadorin subsidiary of China's CRCC-Tongguan Invesment. See EcuaCorriente S.A., http://www.ecuacorriente.com (last visited Apr. 24, 2013). 16 See Corriente Resources Inc., Mirador Project, http://www.corriente.com/coppe r$assets/mirador.php (last visited Apr. 19, 2013). 17 Almeira Albuja Nely Alexandra et. al. v. Ecuacorriente S.A. et. al., Ación de Protección Constitucional, Case number 2013-0317, 25th Civil Court of Pichincha. 7

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GDP.18 Timber accounts for some of the country's resources, with vast amounts of eucalyptus and mangroves, pines and cedars, walnuts and rosemary, and balsa wood. Ecuador is a major exporter of bananas, being the "rst country in production and export, as well as of #owers. The country is also the eighth largest producer of cocoa beans and has a signi"cant production of crustaceans, sugar cane, rice, cotton, corn, palm and co%ee. Agriculture is facilitated by the country's climate, which allows all year. Nonetheless, the most important commodity exported is still crude. Other petroleum oils are the third most exported commodities.19 Ecuador has several trading agreements with Latin America and the U.S., allowing the exchange of goods without barriers, and is negotiation a similar arrangement with the European Union, to allow for the improved access of Ecuadorean products. The U.S., however, has been a major partner, absorbing about one-third of Ecuador's exports.20 Currently, Ecuador has recorded an account21 de"cit of US $365.23 million (third quarter of 2012). § 18A:5

International relations

Ecuador is a founding member of the United Nations and many of its specialized agencies. The country was also a member in the OPEC in the 1970s and 1980s, and rejoined in 2007. Latin American integration is acknowledged in the Constitution as Ecuador's goal and commitment, as well as a strategic objective of the State.1 Ecuador has gained membership of numerous regional and international groups such as the Organization of American States,2 the Latin 18

Ecuador GDP, Trading Economics, http://www.tradingeconomics.com/ecuado r/gdp (last visited Apr. 2013). 19 UNdata, Country Pro!le: Ecuador, United Nations, http://data.un.org/CountryP ro"le.aspx?crname=Ecuador (last visited Feb. 24, 2013). 20 Ecuador: EU Bilateral Trade and Trade with the World, DG Trade Statistics (Nov. 29, 2012). http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc$113378. pdf. 21 Reported by the Banco Central del Ecuador, the Current Account is the sum of the balance of trade (exports minus imports of goods and services), net factor income (such as interests and dividends) and net transfer payments (such as foreign aid). Ecuador Current Account, Trading Economics http://www.tradingeconomics.com/ecua dor/current-account (last visited Apr. 24, 2013). [Section 18A:5] 1

2008 Const., Preamble; art. 423. See Organization of American States, http://www.oas.org/en/default.asp (last visited Mar. 4, 2013). 2

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Environmental Law of Ecuador

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American Economic System (SELA),3 the Latin American Energy Organization (OLADE),4 the Latin American Integration Association (ALADI),5 the Andean Community of Nations (CAN),6 the Bank of the South (Banco del Sur or BancoSur),7 and CELAC,8 among others. Ecuador aligns itself within the United Nations with regional groups such as Latin American and Caribbean Group (GRULAC), the Group of 77 and China,9 and the Megadiverse Countries.10 Ecuador is a member of the United Nations Sustainable Development Commission (CSD) since 2000, and works to establish synergies for implementing environmental protection mechanisms.11 The Union of South American Nations (UNASUR) was created in 2008 to yield a regional answer to the European Union and the African Union.12 It aims at providing integration in areas such as energy, education, health, environment, infrastructure, security and democracy. It currently has 12 member states, having Paraguay and Mexico as observers. The secretariat-general was established in Quito. Ecuador is not yet a member of MERCOSUR, but is negotiating to join.13 In 2009, Ecuador has joined the Bolivarian Alliance for the Americas (ALBA), pursuing new alliances regionally, and enabling the country See Sistema Econo´mico Latinoamericano y del Caribe, http://www.sela.org/vie w/index.asp?pageMs=26461 (last visited Mar. 4, 2013). 4 See Organizacio´n Latinoamericana de Energìa, http://www.olade.org.ec/ (last visited Mar. 4, 2013). 5 See Latin American Integration Association, http://www.aladi.org/nsfweb/sitio Ing/ (last visited Mar. 4, 2013). 6 See Comunidad Andina, http://www.comunidadandina.org/ingles/who.htm (last visited Mar. 4, 2013). 7 See Bank of the South, Wikipedia, http://en.wikipedia.org/wiki/Bank$of$th e$South (last visited Mar. 4, 2013). 8 See Community of Latin American and Caribbean States, http://en.wikipedia.o rg/wiki/Community$of$Latin$American$and$Caribbean$States (last visited Mar. 4, 2013). 9 See The Group of 77, http://www.g77.org (last visited Mar. 4, 2013). 10 See Megadiverse Countries, Wikipedia, http://en.wikipedia.org/wiki/Megadivers e$countries (last visited Mar. 4, 2013). 11 See United Nations Sustainable Development Knowledge Platform, Members, http://sustainabledevelopment.un.org/memberstates.html (last visited Mar. 4, 2013). 12 See Unio´n de Naciones Suramericanas, http://www.unasursg.org/ (last visited Mar. 4, 2013). Created through the Tratado Constitutivo de la Unión de Naciones Suramericanas, UNASUR, of May 23, 2008. 13 MercoPress, Ecuador to begin negotiations to join Mercosur, after reaching accord with the EU (May 6, 2013, 05:30 UTC), http://en.mercopress.com/2013/05/06/ec uador-to-begin-negotiations-to-join-mercosur-after-reaching-accord-with-the-eu. 3

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to develop close relations with its members. ALBA was created as an alternative to the U.S.-led Free Trade Area of the Americas.14 § 18A:6 Historical context of the legal system Due to its roots from the Spanish colonization, Ecuador inherited the civil law system. Spanish Roman Law is therefore the foundation of the Ecuadorian's legal system. Before its independence, Spain had compiled the legislation in the Recopilacio´n de las Leyes de las Indias and Ecuador's "rst constitution, when the country still belonged to the Republic of Gran Colombia, provisioned that all Spanish laws, unless con#icting with the constitutional provisions, would continue to be observed. 1 In this sense, the framework of the legal system inherited by Spain was maintained. Attempts to adopt a national civil code began in late 1830s, and several codi"cation committees were initiated in the following decades. The French Napoleonic Code inspired most of these drafts. After some unsuccessful ventures, the Supreme Court, requested to draft yet another civil code, concluded that no new draft could be superior to the one already approved in Chile in 1855.2 The Chilean Code was drafted by the Venezuelan jurist Andrés Bello.3 Ecuador thus integrally adopted the Chilean Civil Code in 1858, which was enforceable beginning 1861. With a Spanish legal tradition, the civil code also had elements from the Western laws, especially the French Code of Napoleon, the Roman Law and the Louisiana Code. It is said that all the civil codes promulgated until then were researched in the 30 years of drafting the Chilean Civil Code.4 Customary law, based on the roots of the Inca and other Indian tribes, also has in#uence on the development of the law. The current constitution acknowledges customary law, the authority of indigenous communities, system of law, and territories.5 The Constitution, in its preamble, acknowledges the age-old roots and wisdom of di%erent cultures of Ecuador, each enriching the society in its own way. The Constitution also makes constant reference to ancestors. 14

See ALBA-TCP, Bolivarian Allaince for the Peoples of Our America, Peoples' Trade Treaty, http://www.alba-tcp.org/en/contenido/alba-tcp-eng (last visited Feb. 16, 2013). [Section 18A:6] 1

Helen L. Clagett, A Guide to the (1947). 2 Helen L. Clagett, A Guide to the (1947). 3 Andrés Bello was one of the most Spanish American culture. 4 Helen L. Clagett, A Guide to the (1947). 5 2008 Const., art 171. 10

Law and Legal Literature of Ecuador, 16 Law and Legal Literature of Ecuador, 16 important legislator an philosopher of the Law and Legal Literature of Ecuador, 16

Environmental Law of Ecuador

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Case law is becoming increasingly important as a new source of law. A system of case law is thus being developed by the National Court of Justice. II.

THE ENVIRONMENT IN ECUADOR

§ 18A:7

Biodiversity

Although being a relatively small state, Ecuador is the eighth most bio-diverse country on Earth, holding 46 di%erent ecosystems. 1 Ecuador is one of 17 mega-diverse countries identi"ed by Conservation International, 2 having the biggest biodiversity per square kilometer in the world. It is home to a great variety of species, a lot of them endemic,3 like those native to the Galapagos Islands, and has two ecological hotspots, Tropical Andes 4 and Tumbes-Choco´ Magdalena.5 Roughly 40% of the area is covered by native forests, divided by different types of ecosystems, such as the human tropical forest, montane forest, high altitude Andean forest (Páramo), mangroves, Amazon tropical rainforest and dry forest.6 The country has 45 protected areas: 11 national parks, nine ecological reserves, four biological reserves, one national geo-botanical reserve, four reserves for the production of fauna, 10 national wildlife refuges, two marine reserves, and four [Section 18A:7] ´ reas Protegidas, Repu´blica del Ecuador, http://web.a Ministerio del Ambiente, A mbiente.gob.ec/?q=node/59 (last visited Mar. 14, 2013). 2 Conversation International identi"ed 17 megadiverse countries in 1998, a group that harbor the majority of the Earth's species. 3 Ecuador represents 0.2% of the world's surface, but contains 18% of the bird species, 18% of the orchids, 10% of the amphibians, and 8% of the mammals. 4 Tropical Andes is one of the richest and most diverse regions on Earth, with about 5% endemic vascular plant species and the largest variety of amphibians in the world, with 664 distinct species. The region is threatened by exploitation and only a quarter of its habitat remains. See Conservation International, Tropical Andes, http:// www.conservation.org/where/priority$areas/hotspots/south$america/Tropical-Andes/ Pages/default.aspx (last visited Apr. 29). 5 Tumbes-Choco´-Magdalena was formerly called Choco´-Darién-Western Ecuador Hotspot, but expanded to include several areas. In Ecuador, the hotspot encompasses the moist forests along the west coast and the dry forests of the East. The hotspot includes a wide variety of habitats, ranging from mangroves, beaches, rocky shorelines, and coastal wilderness to some of the world's wettest rain forests. South American's only remaining coastal dry forests occur in this hotspot. See Conservation International, Tumbes-Choco´-Magdalena http://www.conservation.org/where/priorit y$areas/hotspots/south$america/Tumbes-Choco-Magdalena/Pages/default.aspx (last visited Apr. 29, 2013). 6 UNdata, Country Pro!le: Ecuador, United Nations, http://data.un.org/CountryP ro"le.aspx?crname=Ecuador (last visited Feb. 24, 2013). 1

11

§ 18A:7

national recreation reserves.7 There are also two UNESCO Natural Heritage sites8 as well as additional private reserves. The total coverage of protected areas is 19.117.576 hectares, roughly 20% of the land.9 The system of national parks, public and private ecological reserves is managed by the Ministry of Environment.10 UNESCO declared its capital, Quito, a Cultural World Heritage Site in 1978 for having the best preserved and least altered historic center in Latin America.11 It was one of the two "rst historical city centers to be so declared.12 Quito is also the world's highest capital, at an elevation of 9,200 feet.13 The historic center of Cuenca, the third largest city in the country, was also declared a Cultural World Heritage Site in 1999, for being an example of a planned inland Spanish style colonial town (entroterra) in the Americas.14 Although each region faces di%erent challenges, the main environmental hazard faced by Ecuador is deforestation. The country has one of the highest rates and the worst environmental record in South America, with an annual deforestation rate of almost 2%. 15 Approximately 60,000 hectares are lost annually, accounting for 55 million tons of CO2 equivalent each year.16 As a result, Ecuador had a 7 ´ reas Protegidas, Repu´blica del Ecuador, http://web.a Ministerio del Ambiente, A mbiente.gob.ec/?q=node/59 (last visited Mar. 14, 2013). 8 Galapagos Islands was declared a Natural World Heritage Site in 1978 and the Sangay National Park in 1983. UNESCO, Ecuador, http://whc.unesco.org/en/statespa rties/ec (last visited Mar. 4, 2013). 9 Ministerio del Ambiente, Subsecretarìa de Plani"cacio´n Ambiental, Direccion ´ reas Naturales de Informacion, Investigacion Y Educacion Ambiental, Patrimonio de A del Estado (PANE), http://web.ambiente.gob.ec/sites/default/"les/users/jloarte#s/CUA DRO%20PANE.pdf (last visited Apr. 24, 2013). 10 The Ministry of Environment incorporated the functions of the Instituto Ecu´ reas Naturales Y de Vida Silvestre (INEFAN). Ministério del atoriano Forestal Y de A Medio Ambiente, http://www.ambiente.gob.ec (last visited Feb. 5, 2013). 11 UNESCO, World Heritage List, City of Quito, http://whc.unesco.org/en/list/2 (last visited Mar. 16, 2013). 12 Krakow (Poland) was the other one. 13 Plaza Grande, Sitio O"cial Turìstico de Quito, http://www.quito.com.ec/index.p hp?page=shop.product$details&#ypage=shop.#ypage&product$id=228&category$i d=&manufacturer$id=&option=com$virtuemart&Itemid=113 (last visited Mar. 4, 2013). 14 UNESCO, World Heritage List, Historic Centre of Santa Ana de los Rìos de Cuenca, http://whc.unesco.org/en/list/863 (last visited Apr. 3, 2013). 15 From 1990 to 2000, the deforestation rate was 1.53%; from 2000–2005, 1.73%; from 2005 to 2010, 1.89%. Ecuador Forest Information and Data, Mongabay.com, http://rainforests.mongabay.com/deforestation/2000/Ecuador.htm (last visited Apr. 6, 2013). 16 Ministry of Environment, Government of Ecuador, Forests and Climate Change: Ecuador's Socio Bosque Program, http://www.profor.info/sites/profor.info/"les/docs/Soc io%20bosque%20Durban.pdf (last visited Apr. 1, 2013).

12

Environmental Law of Ecuador

§ 18A:10

total forest loss of 28.6% from 1990 until 2010.17 Deforestation is caused primarily by oil exploration, logging and road building. § 18A:8

Di!erent regions, ecosystems and environmental concerns

Considering the geographical biodiversity, Ecuador is divided into four main regions, each of them very unique in biodiversity. There are three inland regions, separated by the Andes Mountains, the Coast (La Costa), the Highlands (La Sierra), the east (El Oriente or La Amazonìa), and one o%shore, the region comprising the Galápagos Islands (Regio´n Insular). § 18A:9

Di!erent regions, ecosystems and environmental concerns—La Sierra (highlands)

The Highlands or La Sierra, positioned as the center region, hosts the capital, Quito. It is a high-altitude belt running north-south along the centre of the country, and introduces a mountainous terrain dominated by the Andes mountain range. It is separated by the Andes on either side from the two other inland regions, and extends to the Colombian and Peruvian borders. The region has several peaks, volcanoes and mountains with yearround snow on the Equator. At a certain altitude zone cloud forests may be found. Most of the country's rivers form in the Highland region and #ow east toward the Amazon River or west toward the Paci"c Ocean. Protection of watersheds is therefore one of the primary environmental concern. Due to the increasing need for food, deforestation is one of the major regional problems. Almost 60% of the population of Ecuador lives in the Sierra, and population is still growing. Increasing land is devoted to agriculture, mainly rice, corn, potatoes and soybeans crops. In addition to that, Mount Chimborazo, an extinct volcano, is a main attraction. It is the highest point on the planet furthest from its center, 6,267m high. Most people mistakenly think the world's highest point is Mount Everest, which is considered the highest peak above sea-level.1 § 18A:10

Di!erent regions, ecosystems and environmental concerns—El Oriente The eastern part of Ecuador, from the Andes Mountains to Peru, 17

Ecuador Forest Information and Data, Mongabay.com, http://rainforests.monga bay.com/deforestation/2000/Ecuador.htm (last visited Apr. 6, 2013). [Section 18A:9] 1 Robert Krulwich, The “Highest” Spot on Earth?, NPR (Apr. 7, 2007, 3:54AM) ht tp://www.npr.org/templates/story/story.php?storyId=9428163.

13

§ 18A:10

where the Amazon rainforest lies, is called the Oriente. Encompassing over 13 million hectares of tropical rainforest, this area is home to eight indigenous groups.1 Although being populated by less than 5% of the country's nationals, it comprises under half of the country's total surface area.2 Due to its richness, hunting, deforestation, habitat destruction, mining and oil exploration are among the main environmental issues faced in the region. The majority of Ecuador's oil reserves are located in the Amazon basin, at Lago Agrio. However the challenges faced, the Ecuadorian Amazon still has some well preserved areas and untouched Indian tribes. The natives, along with the Cayapas of Coastal Ecuador, were the only groups to resist Inca and Spanish domination, maintaining their language and culture until present day. § 18A:11

Di!erent regions, ecosystems and environmental concerns—The coast The western part of Ecuador, the Coast, comprises the low-lying land, including the Paci"c coastline and the western cordillera of the Andes Mountains. It borders Colombia in the north and Peru in the south. The Coast, also with large agricultural lands, has a tropical ecosystem and biodiversity, due to the low altitude. Over"shing is one of the country's main issues and mangrove forests have been destroyed due to aquaculture. There are two ports in the region, mainly used for oil exports. It is estimated that 98% of the native forest of La Costa has been eliminated for cattle ranching and agricultural production. The remaining forest is collectively known as the Paci"c Equatorial Forest.1 Including tropical dry forest, tropical wet forest, tropical moist evergreen forest, premontane cloud forest, and mangrove forest, these remnants are considered the most endangered tropical forest in the world. The Tumbes-Choco-Magdalena biodiversity hotspot is located in this region. § 18A:12

Di!erent regions, ecosystems and environmental concerns—Galapagos Islands

Finally, the Galapagos Islands, 600 miles o%shore into the Paci"c [Section 18A:10] 1

Most notably, the Quechua, Siona, Secoya, Huaorani, and Cofán. Kimerling, Rights, Responsibilities, and Realities: Environmental Protection Law in Ecuador's Amazon Oil Fields, 2 Sw. J. L. & Trade Am. 293 (1995). 2

[Section 18A:11] 1 Paci"c Equatorial Forest, Wikipedia, http://en.wikipedia.org/wiki/Paci"c$Equa torial$Forest (last visited Apr. 3, 2013).

14

Environmental Law of Ecuador

§ 18A:15

Ocean, are famous for its unique species, and as the place of birth of Darwin's Theory of Evolution. It is considered an UNESCO World Heritage Site. The islands received its name from the tortoises, now extinct. Poorly populated until recently, the advance of infrastructure has brought environmental distress to its 3,000 square miles. Due to its special biodiversity it is regulated by a special scheme, which will be further explained below. III.

STATE STRUCTURE AND ORGANIZATION

§ 18A:13 In general The public sector is comprised by the Executive, Legislative, Judicial and Electoral branches of government, as well as by the Transparency and Social Control organ.1 The institutions exist within the decentralized autonomous system of government.2 § 18A:14 The executive branch The O!ce of the President, the Vice-President, Ministers of State comprise the Executive Branch.1 § 18A:15 The executive branch—The O"ce of the President The President, by exercising the executive function, is both the chief of state and head of government.1 He is elected for a four-year mandate and can be reelected once,2 exercising his power from the presidential Palacio de Corondelet in Quito. Since 2007 the President has been Rafael Correa Delgado, and the Vice President Lenin Moreno Garces. National elections were held on February 17, 2013, and President Correa was reelected by 56% of the votes cast.3 Yet President Correa cannot run again when his new term ends in 2017.4 Elections are held by a universal, equal, mandatory, direct, and secret way. President and Vice-President are elected through the same voting ballot and the absolute majority wins. If there is no absolute [Section 18A:13] 1

2008 Const., art. 225 (1). 2008 Const., art. 225 (2; 4).

2

[Section 18A:14] 1

2008 Const., art. 141.

[Section 18A:15] 1

2008 Const., art. 141. 2008 Const., art. 144. 3 William Neuman, President Correa Handily Wins Re-election in Ecuador, NY Times (Feb. 17, 2013), http://www.nytimes.com/2013/02/18/world/americas/rafael-corr ea-wins-re-election-in-ecuador.html?$r=1&. 4 2008 Const., art. 114. 2

15

§ 18A:15

majority, a second electoral round shall be held with the two electoral pairs that obtained higher ranking.5 Every citizen between 18–65 years old is obliged to vote, and su%rage is optional for 16 year olds. The executive branch de"nes public policy, directs public administration, draws upon foreign a%airs, and is the ultimate authority over the Armed Forces and the National Police, among other attributions.6 § 18A:16

The executive branch—Ministries of State

The Executive Branch is also composed by the Ministers of State,1 who are appointed by the President to represent a speci"c area assigned. 2 The number of Ministers of State, their name and competencies shall be established by presidential decree.3 They are in charge of exercising leadership over public policies within that area.4 There are currently 20 ministries divided for coordination ministries by theme.5 The Ministry of Environment 6 is entitled to regulate environmental management. Within the Ministry of Strategic Services,7 there is a Ministry of Energy and Renewable8 as well as a Ministry for Nonrenewable Natural Resources.9 § 18A:17

The executive branch—Ministries of State—Ministry of the Environment

The Ministry of the Environment was created in 1996. As head of the environmental regulatory system, the ministry has three primary responsibilities: assume the role of national authority in environmen5

2008 Const., art. 143. 2008 Const., art. 147.

6

[Section 18A:16] 1

2008 Const., art. 141. 2008 Const., art. 151. 3 2008 Const., art. 151. 4 2008 Const., art. 154. 5 Social development, patrimonial, strategic services, political economy, security, production, labor and competition, knowledge and talent, politics and decentralized autonomous governments. 6 Ministério del Medio Ambiente, http://www.ambiente.gob.ec (last visited Feb. 5, 2013). 7 Ministério Coordinador de Sectores Estratégicos, http://www.sectoresestrategic os.gob.ec (last visited Feb. 5, 2013). 8 Ministério de Electricidade y Energìa Renovable, http://www.energia.gob.ec (last visited Feb. 5, 2013). 9 Ministério de Recursos Naturales No Renovables, http://www.recursosnaturale s.gob.ec (last visited Feb. 5, 2013). 2

16

Environmental Law of Ecuador

§ 18A:19

tal policy; coordinate, unify, execute and supervise policies, programs and projects; and unify the current laws.1 § 18A:18

The executive branch—Public force

The public force includes the Armed Forces and the National Police, being the President its Commander in Chief. The National Equality Councils are bodies responsible for the protection of fundamental rights enshrined by the Constitution and international treaties.1 § 18A:19

The executive branch—Decentralized system of environmental management

Due to the transversal character of the environment, the coordination, integration and cooperation were recognized as fundamental pillars of environmental management. In this sense, the Environmental Management Law of 19991 established the Decentralized System of Environmental Management according to the system of decentralized autonomous governments. Provincial governments are responsible for the provincial environmental management.2 The Organic Code of Territorial Organization, Autonomy and Decentralization establishes the environmental attributions of decentralized autonomous governments.3 There is a representative of the Executive Branch in each province to monitor policies and coordinate public activities.4 At the local level, each province has a provincial council, headed by a prefect. The municipal council is presided over by the mayor. Provincial governors and councilors (mayors, aldermen, and parish boards) are directly elected for a four-year period. Councils at both levels have functional, "nancial, and administrative autonomy. These public entities have administrative power to control environmental activities within their competence; as well as authority to impose "nes and to "le accusations before civil or criminal courts in cases of infringements of the environmental law. [Section 18A:17] 1

Executive Decree no. 195-A, published in the R. O. Suplemento no. 40, Oct. 4, 1996, art. 2. [Section 18A:18] 1

2008 Const., art. 156; 157.

[Section 18A:19] 1

Ley de Gestión Ambiental, Ley No. 37, R. O. No. 245, Jul. 30, 1999. 2008 Const., art. 263 (4). 3 Codigo Organico Organizacion Territorial, Autonomia, Descentralizacion, Ley 0, R. O. Suplemento No. 303, Oct. 19, 2010. 4 2008 Const., art. 155. 2

17

§ 18A:20

§ 18A:20 The legislative branch The legislative branch is composed by the unicameral National Assembly,1 established in the Palacio Legislativo in Quito.2 The National Assembly was created by the 2008 Constitution after National Congress of Ecuador was dissolved in 2007. Currently, the main authority holds 124 seats. The National Assembly members are elected through a party-list proportional representation system to serve four-year terms.3 The representatives are elected as follows: 15 national representatives, elected as a whole in the national district, two representatives for each of the 24 provinces, and one for every extra 200,000 inhabitant or fraction thereof exceeding 150,000, according to the latest national census of population.4 Additional people representing regions, metropolitan districts, as well as the district representing people living abroad can be elected as determined by law. In order to ful"ll its attributions, the National Assembly shall set up specialized committees.5 There are 10 permanent committees, and others can be created as necessary. The Committee for Biodiversity and Natural Resources is responsible for environmental matters, whilst the Committee for Collective Rights and Inter-Culture with indigenous rights. The National Assembly meets throughout the year, with two recesses in July and December and sessions are public, except when otherwise stated by law.6 The National Assembly participates in the constitutional reform process,7 expedites, codi"es, reforms and repeals laws, as well as interprets them,8 creates, amends, or eliminates taxes, adopts or turns down international treaties,9 adopts the General Budget of the State,10 among other attributions and duties. The body also holds monitoring duties, being responsible for the impeachment11 or the removal12 of the President or Vice-President, in speci"c cases. The National Assembly is governed by its corresponding law and [Section 18A:20] 1

2008 2008 3 2008 4 2008 5 2008 6 2008 7 2008 8 2008 9 2008 10 2008 11 2008 12 2008 2

18

Const., Const., Const., Const., Const., Const., Const., Const., Const., Const., Const., Const.,

art. art. art. art. art. art. art. art. art. art. art. art.

118. 123. 118. 118. 125. 123. 120 (5). 120 (6). 120(8). 120(12). 129. 130.

Environmental Law of Ecuador

§ 18A:21

internal regulations, which can only be modi"ed by an absolute majority.13 § 18A:21

The legislative branch—Sources of law and how laws are made

The Constitution ranks "rst in the hierarchical order in which the sources of Environmental Law are applied. The Constitution is the most important source of law in Ecuador, and its supremacy is highlighted in its provisions.1 Treaties and international norms rati"ed by Ecuador rank second, though subject to the constitutional provisions. The President is responsible for signing and ratifying the treaties and other international instruments.2 After signing, the National Assembly shall be noti"ed, providing its approval for rati"cation. Laws as general norms for the public welfare are required in speci"c cases set forth in the Constitution. In this sense, a law must be adopted by the National Assembly when regarding the following topics: constitutional rights, criminal infringements, taxes, duties, responsibilities, competencies to decentralized autonomous governments, political and administrative division of the country, and public monitoring.3 Organic laws, issued by an absolute majority of the National Assembly, are mandatory for speci"c subjects, such as government institutions established by the Constitution, constitutional rights and guarantees, decentralized autonomous governments, political parties and electoral systems.4 The Ley Orgánica de Salud (Health Law) and Ley Orgánica de Régimen Especial para la Conservacio´n y Desarrollo Sustentable de Galápagos (Galapagos special regime) are examples of organic laws in Environmental Law. Other matters shall be regulated by ordinary laws, which are approved by a simple majority, and cannot prevail over organic laws. The majority of the environmental statutes are ordinary laws, for example, the Ley de Gestio´n Ambiental (Environmental Management Law), Ley Forestal (Forest Law), Ley de Prevencio´n y Control de la Contaminacio´n (Law of Contamination Prevention and Control), Ley que protégé la Biodiversidad en el Ecuador (Law of Biodiversity 2008 Const., art. 126. Ley Orgánica de la Funcio´ n Legislativa, available in http://pdba.georgetown.edu/legislative/ecuador/ecu$leyorg.pdf (last visited May, 14, 2013). 13

[Section 18A:21] 1

2008 2008 3 2008 4 2008 2

Const., Const., Const., Const.,

art. art. art. art.

424. 418. 132. 133. 19

§ 18A:21

Protection), Ley para la Preservacio´n de Zonas de Reserva y Parques Nacionales (Law of Preservation of Reserves and National Parks), Co´digo Penal (Criminal Statute), Ley de Aguas (Water Statute). Bills can be submitted by Assembly members, the President, other branches of the State within the framework of their jurisdiction, the Constitutional Court, the O!ce of the State Prosecutor, the Attorney General, the Human Rights Ombudsman, the Attorney for the Defense of the People, as well as citizens and social organizations.5 Bills must refer to one single subject and shall be submitted to the President of the National Assembly with su!cient explanation of their grounds, the list of articles that are being proposed and a clear indication of the articles that would be repealed or amended by the new law. If the bill does not meet these requirements, it shall not be processed.6 After the bill has been proposed, it is distributed to Assembly members by the President of the National Assembly, and sent to corresponding committee.7 The Environmental Law Committee shall analyze environmental law matters. The bill shall be subjected to two debates.8 Once it has been adopted, it is sent to the President of the Republic for further approval. In case there is an objection by the President, the National Assembly can only reconsider the bill one year after by ratifying it in one single debate with a favorable vote of two thirds of its members, immediately sending it to publication.9 If there is a partial objection, the President shall submit an alternative text.10 After 30 days and no objection, the law shall be enacted and published in the Registro O!cial (o!cial publication).11 Next on the hierarchical order come the regional and district norms, decrees and regulations, for example Texto Uni!cado de Legislacio´n Ambiental Secundaria del Ministerio del Ambiente (Uni"ed Secondary Law of the Ministry of Environment), Reglamento Ambiental para las Actividades Mineras (Mining Environmental Regulation), Reglamento Ambiental para las Operaciones Hidrocarburìferas (Hydrocarbon Environmental Regulation), Reglamento Ambiental para Actividades del Régimen del Sector Eléctrico (Energy Environmental Regulation), Las Polìticas Básicas Ambientales (Basic Environmental Policies) and the Polìtica y Estrategia Nacional de Biodiversidade (National Policy on Biodiversity). 5

2008 Const., art. 134. 2008 Const., art. 136. 7 2008 Const., art. 137. 8 2008 Const., art. 137. 9 2008 Const., art. 138. 10 2008 Const., art. 138. 11 See Registro O"cial del Ecuador, http://www.registro"cial.gob.ec (last visited May 24, 2013). 6

20

Environmental Law of Ecuador

§ 18A:22

For provincial and municipal governments, ordinances of decentralized autonomous governments regulate local issues such environmental management, protection of water sources, environmental impact assessment, waste disposal, and creation of protected areas. Through arrangements, resolutions, and ministerial accords the Ministry of Environment regulates environmental matters, for ´ reas example Polìticas y Plan Estratégico del Sistema Nacional de A Protegidas, declaring protected areas and approving environmental impact assessment and management plans. Other acts or decisions made by the public power rank last.12 Case law, as well as standards and public policies shall induce the improvement of the legislation, especially with regards to constitutional rights, and have been increasingly important in regulating and interpreting the new constitutional provisions.13 § 18A:22

The judicial branch

The Judicial Branch is comprised by jurisdictional bodies, administrative bodies, support bodies and autonomous bodies.1 It is regulated by the Organic Code on Judiciary Function.2 The Judicial Branch is based on the principle of jurisdictional unity, and the 2008 Constitution abolished the Military and Police Tribunals. In this sense, members of the Armed Forces and the National Police Force shall be tried by regular justice.3 However, the right of the indigenous and peasants communities to exercise their own judicial system is recognized, as well as other mechanisms of con#ict resolution, such as peace judges, arbitration, and mediation. The administration of justice is guided by general principles established in the Constitution.4 The Judicial Branch shall have independent bodies,5 and bene"t from administrative, economic, and "nancial autonomy.6 Trials and decision are public, unless otherwise state by law.7 12

2008 Const., art. 425. 2008 Const., art. 11 (8).

13

[Section 18A:22] 1

2008 Const., art. 177. Codigo Orgánico de la Función Judicial, Ley s/n, R. O. Suplemento No. 544, Mar. 9, 2009. 3 2008 Const., art. 188. 4 2008 Const., arts. 167–170; 172–176. 5 2008 Const., art. 168(1). 6 2008 Const., art. 168(2). 7 2008 Const., art. 168(5). 2

21

§ 18A:23

§ 18A:23

The judicial branch—National Court of Justice

The National Court of Justice (“Corte Nacional de Justicia”) is a constitutional court with national jurisdiction and headquarters in Quito.1 Its proceedings are guided by the public interest ensured by the Constitution in safeguarding justice, judicial security and equality before the law. The National Court is composed by 21 judges elected for a nine-year term by the Judiciary Council.2 It exercises judicial power in the country through organized specialized courts. It judges appeals and revisions, rule on cases against public servants who bene"t from immunity, and presents bills related to the administration of justice.3 The court also shall develop a system of case law precedents based on triple reiteration rulings.4 When a ruling by the specialized court is repeated on three occasions, it shall be referred to the plenary for deliberation. If the decision is rati"ed, the opinion shall constitute a mandatory part of case law, and be observed as precedents.5 In order to revise or modify case law, the judge responsible for drafting the opinion shall justify it according to legal grounds, subject to unanimous approval by the court.6 § 18A:24

The judicial branch—Judiciary Council

The Judiciary Council manages the governance, administration, surveillance and discipline of the Judicial Branch.1 The body is comprised by nine members, each with respective alternates, equally divided between men and women. The members serve a six-year term and cannot be reelected.2 The Council is entitled to draw up and implement policies for improving the judiciary system, draft the budget, select judges and other servants of the Judiciary Branch, administer the judiciary career [Section 18A:23] 1

Codigo Orgánico de la Función Judicial, Ley s/n, R. O. Suplemento No. 544, Mar. 9, 2009, art. 172. 2 2008 Const., art. 181(3); 182; 183. 3 See Corte Nacional de Justicia, http://www.cortenacional.gob.ec (last visited Mar. 4, 2013). 4 2008 Const., art. 184(2). Codigo Orgánico de la Función Judicial, art. 180(2), 182. 5 2008 Const., art. 185. 6 2008 Const., art. 185. [Section 18A:24] 1

2008 Const., art. 178. 2008 Const., art. 179.

2

22

Environmental Law of Ecuador

§ 18A:25

and ensure transparency and e!ciency.3 The annual report is submitted to the National Assembly. The Judiciary Council can create special courts on the primary level to deal with claim regarding the rights of nature, right to water, food sovereignty, and other matters.4 § 18A:25

The judicial branch—Constitutional Court

The Constitutional Court, denominated the “Corte Constitucional”1 or “Corte Suprema” is the supreme body for controlling and interpreting the Constitution and international human rights treaties,2 and has national jurisdiction.3 Located in Quito, the court is formed by nine members, each serving a nine-year period4 and functions as an autonomous and independent administration body of constitutional justice.5 Its mission is to safeguard the enforcement and supremacy of the Constitution, the ful"llment of constitutional rights and guarantees by the interpretation, control and administration of the constitutional justice.6 In order to guard the Constitution, the Court shall interpret its provisions and monitor compliance, declare unconstitutional norms and invalidate acts, and arbitrate con#icts of jurisdictions or attributions.7 The judgments issued by the Constitutional Court shall constitute binding case law with respect to actions of protection, enforcement, habeas corpus, habeas data, access to public information and other constitutional processes, as well as those cases selected by the Court for review.8 The rulings and decisions are "nal and there is no recourse to appeals.9 The Constitutional Court shall issue a prior and binding ruling of 3

2008 Const., art. 181. Codigo Orgánico de la Función Judicial, Ley s/n, R. O. Suplemento No. 544, Mar. 9, 2009, art. 246. 4

[Section 18A:25] 1

2013).

Corte Nacional de Justicia, http://www.cortenacional.gob.ec (last visited Mar. 4,

2

2008 Const., art. 436. 2008 Const., art. 429. 4 2008 Const., art. 432. 5 Corte Nacional de Justicia, http://www.cortenacional.gob.ec (last visited Mar. 4, 2013). 6 Corte Nacional de Justicia, http://www.cortenacional.gob.ec (last visited Mar. 4, 2013). 7 2008 Const., art. 436. 8 2008 Const., art. 436(6). 9 2008 Const., art. 440. 3

23

§ 18A:25

constitutionality regarding international treaties, prior to rati"cation by the National Assembly; calls to referendums; and objections of unconstitutionality by the President of the Republic regarding the drafting of laws.10 Every citizen is entitled to individually or collectively "le a special petition for protection against "nal and fully enforceable judgments, "nal writs or resolutions, due to a breach of due process of law or other rights enshrined in the Constitution.11 A Center of Constitutional Studies was created within the framework of the Constitutional Court in order to promote and develop the study of Constitutional Law as well as capacity building for the judges and operators of the judicial system.12 § 18A:26

The judicial branch—Provincial courts of justice

Each province has provincial courts of justice comprised of the numbers of judges deemed necessary to attend to the cases.1 The Judiciary Council is entitled to name the judges and create provincial courts as needed, according to population needs. The judges shall be organized in specialized courts corresponding to those of the National Court of Justice.2 § 18A:27

The judicial branch—Independent bodies: Attorney for the Defense of the People, Attorney General, O"ce of the State Prosecutor

The O!ce of the Attorney for the Defense of the People, the O!ce of the Attorney General, and the O!ce of the State Prosecutor are bodies of the Judicial Branch with administrative, budgetary, and "nancial autonomy.1 The O!ce of the Attorney for the Defense of the People is responsible for providing legal assistance for those that cannot a%ord a private 10

2008 Const., art. 438. 2008 Const., art. 437, 439. 12 Corte Nacional de Justicia, http://www.cortenacional.gob.ec (last visited Mar. 4, 2013). 11

[Section 18A:26] 1

2008 Const., art. 178 (2), 186. Codigo Orgánico de la Función Judicial, Ley s/n, R. O. Suplemento No. 544, Mar. 9, 2009, art. 206. 2

[Section 18A:27] 1

2008 Const., art. 178; 191; 195.

24

Environmental Law of Ecuador

§ 18A:29

lawyer, ensuring the right to a fair trial and equal access to justice.2 The body is represented by the Attorney for the Defense of the People.3 The O!ce of the Attorney General conducts pretrial inquiries and criminal proceedings, and charges alleged o%enders and indictments in criminal trials.4 In order to perform his duties, the Attorney General shall organize a specialized system for inquiry, forensic medicine and medical examination, conduct civil and police investigation, direct the system for the protection and assistance of victims, witnesses, and participants in criminal proceedings.5 The O!ce of the State Prosecutor is an autonomous body with public, technical, and legal attributions.6 The State Prosecutor directs and represents the O!ce of the State Prosecutor. He is appointed by the Council for Public Participation and Social Control for a four-year term.7 The State Prosecutor shall represent the State in the Judiciary, defend the State and its institutions, provide legal counsel and binding responses to legal inquiries from the public bodies and institutions regarding the interpretation and application of the law, and monitor documents and contracts signed by the public sector.8 § 18A:28 The judicial branch—Indigenous justice The indigenous communities, peoples, and nations shall have the authority to perform jurisdictional duties according to their own traditions and system of law, within their own territory. It is required, however, that the Constitutional and human rights are respected while applying their own standards and procedures for settlement of internal disputes. The State shall therefore assure that the decisions of the indigenous jurisdiction are respected, subject to monitoring of its constitutionality. In this sense, the law shall establish mechanisms for coordination and cooperation between indigenous and regular jurisdiction.1 § 18A:29 The judicial branch—Justices of peace Justices of peace can settle matters of equity, having the exclusive jurisdiction over those individuals, communities, or districts that bring them con#icts and infringements. In order to do so, they shall 2

2008 2008 4 2008 5 2008 6 2008 7 2008 8 2008 3

Const., Const., Const., Const., Const., Const., Const.,

art. art. art. art. art. art. art.

191. 191. 195. 195. 235. 236. 237.

[Section 18A:28] 1

2008 Const., art. 171. 25

§ 18A:29

use mechanisms of conciliation, dialogue, friendly settlement, observing the rights enshrined by the Constitution. While bringing cases to the justices of peace it is not necessary to have attorneys. The justice of peace is not obliged to be a professional in law and is elected by their community.1 § 18A:30

The judicial branch—Alternative means of dispute settlement

Arbitration, mediation, and other alternative procedures are recognized as dispute settlement mechanisms in areas where compromises can be reached.1 § 18A:31

Transparency and social control branch

The Transparency and Social Control consists of the Council of Public Participation and Social Control,1 the O!ce of the Human Rights Ombudsman,2 the O!ce of the General Comptroller of State, and the Superintendencies,3 being responsible for promoting transparency and control plans, and developing mechanisms to combat corruption. It is the regulatory mechanisms of accountability in the country and shall promote and foster monitoring of public entities and bodies, as well as natural persons and private legal entities that provide services for the general welfare.4 The representatives of the Transparency and Social Control Branch shall draw up public policies for transparency and accountability, coordinate action plans, draft national plan for "ghting corruption, submit proposals for the National Assembly for legal reforms, and annually report to the National Assembly on ful"llment of duties.5 § 18A:32

Electoral branch

Composed by authorities entering every four years or when elections or referendums occur, the electoral system shall guarantee the [Section 18A:29] 1

2008 Const., art. 189.

[Section 18A:30] 1

2008 Const., art. 190.

[Section 18A:31] 1

2008 2008 3 2008 4 2008 5 2008 2

26

Const., Const., Const., Const., Const.,

art. 207; 208; 210. arts. 214–216. art. 213. art. 204. art. 206.

Environmental Law of Ecuador

§ 18A:34

exercise of political rights.1 The Electoral Branch is comprised by the National Electoral Council and the Electoral Dispute Settlement Court.2 Both are based in Quito and have national jurisdiction. The National Electoral Council consists of "ve members, each with an alternate council person.3 The body shall organize and oversee the electoral process, call for elections, count voting, and announce electoral results, as well as swear the winners into o!ce.4 The Electoral Dispute Settlement Court has "ve standing members, each with an alternative member.5 The body shall resolve electoral appeals taken by the National Electoral Council and decentralized bodies, as well as litigation of political organizations.6 IV.

THE CONSTITUTION

§ 18A:33 Historical context and approval The 2008 Constitution of the Republic of Ecuador is the country's 20th constitution. It was written by the request of President Rafael Correa, who called for a referendum on establishing a Constituent Assembly for a new constitution just after elected. The constitutional reform was motivated by a necessity to stop corruption and create a fresh national identity. The Constitution was approved in September 2008 and adopted in October 2008 through a democratic and participative consultation process, replacing the 1998 Magna Carta. The Constituent Assembly was formed by 130 delegates; 24 members from national lists, 100 representing the provinces, and six for emigrants living outside Ecuador. 1 The country has received help from the Community Environmental Legal Defense Fund2 to draft the environmental law framework.3 A public referendum approved the Constitution. § 18A:34

Historical development of environmental constitutional provisions The constitutional provisions on environmental matters are not

[Section 18A:32] 1

2008 2008 3 2008 4 2008 5 2008 6 2008 2

Const., Const., Const., Const., Const., Const.,

art. art. art. art. art. art.

217. 217. 218. 219 (1). 220. 221 (1).

[Section 18A:33] 1

Ecuadorian Constituent Assembly, Wikipedia, http://en.wikipedia.org/wiki/Ecu adorian$Constituent$Assembly (last visited May 15, 2013). 2 See Community Environmental Legal Defense Fund, http://www.celdf.org. 3 CELDF Assists Ecuador Constitutional Assembly, http://www.celdf.org/-1-4. 27

§ 18A:34

recent. In this sense, the development of Environmental Law in Ecuador is best exempli"ed through the evolution of the constitutional protection of nature. As a result of the application of international principles,1 the provisions of the constitutions illustrate di%erent attempts to regulate the same overall goal. Through 30 years of constitutional development of Environmental Law, Ecuador has been through several protection phases after raised awareness of a concern for the ecosystem in the 1970s.2 While the constitutional provisions set standards and principles, statutes have developed speci"c mechanisms to turn them into e%ective tools. The advances in Environmental Law are thus a result of constitutional provisions and other legal obligations, in order to achieve more than a mere expectation of good behavior.3 § 18A:35

Historical development of environmental constitutional provisions—1983 constitutional reform to the 1978 Constitution of the Republic of Ecuador

A 1983 constitutional reform1 to the 1979 Constitution2 led to the "rst occurrence of environmental rights in the Magna Carta. Based on the Constitution of Chile,3 and in#uenced by the Stockholm Declaration, the legal and political international and domestic policy went through a signi"cant change that demanded the rise of Environmental Law to a constitutional level. In this sense, the Constitution established the right of people to an environment free of contamina[Section 18A:34] 1

Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 21 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 2 Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues and Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 2 (2003–2004). 3 Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues and Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 2 (2003–2004). [Section 18A:35] 1

1983.

1983 Constitutional Reform to the 1979 Constitution, R. O. No. 569, Sep. 1,

2

1979 Constitution, R. O. No. 800, May 27, 1979. Pinochet Const. of Chile, art. 19.

3

28

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§ 18A:36

tion for the development of moral and material ful"llment.4 In order to enforce this right, the State's is obliged to provide for the preservation of nature, thus assuring that this right would not be a%ected.5 In addition to that, law would establish further restrictions to the exercise of speci"c rights. It is important to note that the Constitutional Environmental Law was born in Ecuador as an individual guarantee. From the perspective of human protection, rights began to be restricted when opposed the environment. In addition to recognizing the rights of the people, the constitutional reform established a state duty to ensure its protection. § 18A:36

Historical development of environmental constitutional provisions—1996 constitutional reform to the 1979 Constitution of the Republic of Ecuador

The constitutional reform of 19961 took an extra step in environmental protection and expanded the concept of a human right to a clean environment to further add the rights of people.2 It was the "rst attempt to constitutionally recognize collective rights, and, in this context, indigenous rights. In addition to the assimilation of the rights to land, language, and culture, as well as the judicial system for internal dispute settlement, the constitutional reform led to the rise of the indigenous people in the electoral system.3 Also, the constitutional provision acknowledged the ecologically balanced environment. The duty of the State to protect the environment was thus ampli"ed, recognizing speci"c values of nature.4 With the in#uence of International Law, the environmental values were 4 1983 Reformas a la Constitucio´n Polìtica de la Repu´blica del Ecuador, 1979 Const., art. 19. 5 Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 20 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.).

[Section 18A:36] 1 1996 Reformas a la Constitución Polìtica de la República del Ecuador, R. O., No. 969, Jun. 18, 1996. 2 1996 Reformas a la Constitución Polìtica de la República del Ecuador, 1979 Const., art. 44(2). 3 Comisión Interamericana de Derechos Humanos, Informe sobre la Situación de los Derechos Humanos en Ecuador, OEA/Ser.L/V/II.96, Doc. 10, Rev. 1, (Apr. 24, 1997). 4 Hugo Echeverrìa, Infracciones Penales Ambientales in Manual de Capacitación en Derecho Penal Ambiental, 51, 53 (Hugo Echeverrìa y Sofìa Suárez, ed., 2011),

29

§ 18A:36

declared as a matter of public interest and a national system of protected areas was established.5 Expanding the access to justice regarding environmental matters, the legitimacy encompassed any person, regardless of the right of the people harmed.6 Finally, the Constitution provided the legal basis for a criminal perspective of environmental rights, establishing the duty to regulate infractions and administrative, civil, and criminal liability for actions or omissions against environmental protection norms.7 § 18A:37

Historical development of environmental constitutional provisions—1998 Constitution of the Republic of Ecuador1

The Constitution of 1998 altered the legal framework by embracing internationally acknowledged environmental principles2 with the in#uence of the Convention on Biological Diversity and the 1992 Declaration of Rio. Sustainable development was set as a primary economic goal. The environment received constitutional protection as an object of justice as opposed to the previous protection as a human right.3 Through a sustainable management of natural resources, the government was required to take proactive measures for pollution prevention and recovery of damages.4 In order to achieve a sustainavailable in http://www.ceda.org.ec/descargas/publicaciones/Manual$Derecho$Pena l$Ambiental.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 5 1996 Reformas a la Constitución Polìtica de la República del Ecuador, 1979 Const., art. 44. 6 1996 Reformas a la Constitución Polìtica de la República del Ecuador, 1979 Const., art. 48. 7 1996 Reformas a la Constitución Polìtica de la República del Ecuador, 1979 Const., art 46. [Section 18A:37] 1 1998 Constitution of the Republic of Ecuador, Constitución Polìtica de la República del Ecuador, R. O. No. 1, Aug. 11, 1998 [1998 Const.], art. 86. The translated version of the 1998 Constitution is available at Republic of Ecuador, Political Database of the Americas, Georgetown University, http://pdba.georgetown.edu/co nstitutions/Ecuador/ecuador98.html (last visited Apr. 7, 2013). 2 Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 21 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 3 1998 Const., art. 23 (6). 4 1998 Const., arts. 91, 20.

30

Environmental Law of Ecuador

§ 18A:37

able economy, incentives for clean energy and safe measures were due to be further developed.5 In addition to that, the precautionary principle was incorporated as a constitutional value. For the "rst time, the state was obliged to take preventive measures in case of doubt about the environmental impacts of a project or activity. In this context, genetically modi"ed organisms6 and toxic substances 7 were regulated. The State also became responsible for environmental damage, and the compensation thereof.8 The Constitution required further legislation to typify the criminal infractions against the environment, either by action or omission. Through this change, the role of criminal law for the protection of the environment started to be debated in Ecuador.9 With rising concern for the enforcement of rights procedural mechanisms were also established. Any individual, group of individuals, or organization, could therefore invoke the rights to the environment. 10 Injured parties could demand the imposition of measures to prevent, remedy or repair environmental damage before administrative or judicial bodies, regardless of the scienti"c certainty of the damage.11 In case of negative environmental impacts from an act or omission, criminal, civil or administrative accountability shall be sought12 through constitutional action (amparo)13 or habeas data (for obtaining information).14 In addition to that, public participation is recognized as a fundamental right.15 Citizens shall be consulted about projects and participate in the decision-making, whenever the environment might be at risk.16 Continuing the development initiated in the 1996 constitutional 5

1998 Const., art. 89. 1998 Const., art. 89 (3). 7 1998 Const., art. 90. 8 1998 Const., art. 86. 9 Hugo Hugo Echeverrìa, Infracciones Penales Ambientales in Manual de Capacitación en Derecho Penal Ambiental, 7 (Hugo Echeverrìa y Sofìa Suárez, ed., 2011), available in http://www.ceda.org.ec/descargas/publicaciones/Manual$Derecho$Pena l$Ambiental.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 10 1998 Const., art. 91. 11 1998 Const., art. 91. 12 1998 Const., art. 87. 13 1998 Const., art. 95. This constitutional action can be requested for urgent matters to immediately stop, avoid, or remediate an act or omission taken by the public power, that violates, or has the potential to violate a right established by the constitution. Amparo can also be requested against an act or omission of a private party, whenever communitarian, collective or di%use right is severely and directly impacted. 14 1998 Const., art. 94. The habeas data action may be used to access documents, data and information either from a public or private party. 15 1998 Const., art. 84 (5). 16 1998 Const., art. 88. 6

31

§ 18A:37

reform, indigenous rights were recognized as an ancestral Ecuadorian root.17 These developments were in#uenced by the International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries.18 The indigenous rights encompass the traditional indigenous claims to territory, 19 cultural preservation, 20 and improvement of socioeconomical conditions,21 among others. They have the right to conserve and develop their traditional forms of coexistence, social organization, and self-governance.22 As important stakeholders in the decisionmaking process, indigenous groups were required to actively participate in issues related to their communities.23 Property rights were at "rst recognized. The land belonging to communities were declared inalienable, indivisible, and incapable of being seized. Except for the state regulatory taking for public utility their land shall be free from possession claims.24 In case of negative impact to their environment or culture, the indigenous communities are entitled to compensation.25 § 18A:38

Historical development of environmental constitutional provisions—2008 Constitution of the Republic of Ecuador

The development of Constitutional Environmental Law led to the admission of nature as the subject of rights in the 2008 Constitution.1 After adopting the internationally recognized principles of Environmental Law, Ecuador went further and innovated by provisioning the ecosystem rights. In this sense, nature has a right to have its existence fully respected, thus maintaining regeneration of its vital cycles, structure, functions, and evolutionary processes.2 The recognition came as a re#ection of the re"nement of the State's 17

1998 Const., art. 83. Convention Concerning Indigenous and Tribal Peoples in Independent Countries, I.L.O., 76th Sess., reprinted in 28 I.L.M. 1382 (1989). See Kimerling, International Standards in Ecuador's Amazon Oil Fields: The Privatization of Environmental Law, 26 Colum J. Envt'l. L. 289, 308–9 (2001). 19 1998 Const., art. 84 (3), 84 (8). 20 1998 Const., art. 84 (1), 84 (10). 21 1998 Const., art. 84 (13). 22 1998 Const., art. 84 (7). 23 1998 Const., art. 84 (5), 84 (14). 24 1998 Const., art. 84 (2). 25 1998 Const., art. 84 (5). 18

[Section 18A:38] 1

2008 Const., art. 10. 2008 Const., art. 71.

2

32

Environmental Law of Ecuador

§ 18A:38

perspective and policy, and was a result of 15 years of social demands that became a political priority.3 Adjoining the in#uence of Comparative Environmental Law and International Law, the indigenous culture was recognized as part of the biological and cultural biodiversity. The political philosophy of the constitutional provision is hence largely based on the Buen Vivir4 or Sumak Kawsay,5 representing a consolidation of the national identity.6 The Buen Vivir was established in the Constitution not only as a new limit to development, but also as a social call for reestablishing the value of ancestor roots in order to redirect the focus of traditional western values. Instead of guided by consumption, the development shall be measured by the prevalence of social and environmental equity, thus fully recognizing the doctrine of sustainable development.7 Through this new perspective, a development state became a sustainable development state.8 Advancing from the previous provision of sustainable development as an economic goal, the economic regime shall be social and harmonious, asserting the material and immaterial conditions that facilitate the Buen Vivir.9 Recognizing the human being as subject and end, the State shall function in harmony with nature and equilibrated with society. The environmental management policies are thus transversally applied and are mandatory in all level 3

Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 22, 23 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.o rg.ec/descargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 4 2008 Const., art. 74. 5 2008 Const., art. 14. 6 Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 23 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 7 Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 21 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 8 Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 23 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.); 2008 Const., art. 395 (1). 9 Gabriela Muñoz, Aplicar el paradigma de desarrollo ecológico es la tarea pendiente in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 45, 47. 33

§ 18A:38

of state management, as well as for natural people and entities within the state's territory.10 Therefore, the inclusion of the concept of buen vivir brings both rights and a new regime. The rights to the buen vivir include the rights to water and food, to an ecologically balanced environment, to communication and information, to culture and science, to education, housing, health, work, and social security.11 The regime includes the concept of equity and inclusion within those rights, with a highlight in ancestral knowledge.12 In this sense, although the 2008 Constitution had other several developments in Environmental Law, the rights of nature led to a new legal framework, represented the tipping point of a system of rights and guarantees for environmental protection. State and citizen obligations and rights adapted accordingly. Individual people and communities have the rights to a healthy and ecologically balanced environment, which ensures the sustainability and the well-being. The preservation of the environment, conservation of ecosystems, the prevention of environmental damage, recovery of degraded natural places, and integrity of the genetic patrimony, are considered of public interest of the State.13 For the "rst time, national sovereignty over natural resources was limited by nature. Through the creation of inalienable exclusive conservation zones (National System of Protected Areas), the State put limits on the access to natural resources. Except for reasons of national interests as declared by the National Assembly those areas are considered inalienable. The concept of property was thus limited, since protected areas can be either in public or private areas.14 In this sense, water, formerly a strategic state's resource, became a constitutionally guaranteed human right. Applying the prevention principle from the Rio Declaration of 1992, the State is obliged to evaluate environmental impacts prior to a project development through environmental impact assessment and the obligation to prevent impacts in light of certainty of harm.15 If there is a risk of extinction of species, destruction of ecosystem or permanent alteration of natural cycles, the precautionary principle shall be 10

2008 Const., art. 395 (2). 2008 Const., Title II, Chapter II (Rights to Buen Vivir), arts. 12–34. 12 2008 Const., Title VII, Chapter I (Inclusion and Equity), arts. 340–394. 13 2008 Const., art. 14; 66; 27. 14 Maria Amparo Albán, Introdución in Desafìos del Derecho Ambiental Ecuatoriano Frente a la Constitución Vigente (Agustìn Grijalva et. al., ed.), 13; 14 (2010), available in http://www.ceda.org.ec/descargas/publicaciones/Desa"os$Derecho$Ambi ental$Ecuatoriano$frente$Constitucion.pdf. 15 2008 Const., art. 396. 11

34

Environmental Law of Ecuador

§ 18A:38

applied.16 The precautionary principle represents a constitutional guarantee to the environmental rights, with an argument to take judicial measures not only for the damages, but also for the risks that activities might pose to nature.17 In this context, whenever there is doubt about the application of the environmental law, the interpretation shall be in favor of nature, according to the principle in dubio pro natura.18 Also, public participation and prior consultation was again acknowledged as a right and duty, mandatory whenever nature might be impacted.19 Nature rights are enforced through the principles generally applied to the rights established in the Constitution, as well as through the speci"c provisions regarding ecosystem rights. First, rights can be exercised and demanded individually or collectively before the competent authorities, which shall ensure its enforcement.20 Secondly, constitutional guarantees and rights are immediately and directly applied, regardless of subsequent laws for its enforcement.21 Third, every person or community can demand that the rights of nature are respected.22 These three provisions constitute the basis for demanding the rights of nature, and shall be satisfactory for ensuring its application, regardless of other regulatory laws.23 However, since the approval of the new constitution, there have been few cases in which those rights were claimed. Several procedural mechanisms were established along with jurisdictional guarantees as to put into e%ect the rights of nature. First, the accio´n de proteccio´ n, the protection action, can be "led whenever constitutional rights are violated, whether by act or omission of a public authority, against a public policy with impact on the full employment of rights. Also, it can be used when the violation comes from private parties, if it causes a severe damage, improper public service, or if the a%ected person is either discriminated or 16

2008 Const., art. 73; 396. Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 22 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 18 2008 Const., art. 395(4). 19 2008 Const., art. 395(3); 398. 20 2008 Const., art. 11(1). 21 2008 Const., art. 11(3). 22 2008 Const., art. 71(2). 23 Sofìa Suárez, Efectivización de los derechos de la naturaleza: evolución jurisprudencial, CEDA: Temas de Análisis, No. 27, 2 (2012), available in http://www.ceda. org.ec/descargas/Analisis/CEDA$analisis$N°27$noviembre$2012$evolucion$juri sprudencial$DDNN.pdf. 17

35

§ 18A:38

harmless.24 Second, the accio´n de incumplimiento ensures the application of the legal framework, judicial decisions or human rights reports, whenever there is a clear obligation of action or omission.25 Finally, preventive measures, medidas cautelares, aim at avoiding the violation of a constitutional right, or an internationally recognized human right, regardless of other constitutional actions.26 The measure is granted when there is an imminent and severe violation of right, or when the right has already been violated. Also, preventive measures can only be applied in the absence of other administrative measures. Every person, group or entity has legal standing to take measures to enforce environmental protection, regardless of a direct interest, being able to ask for preventive measures to bring an end to the damage.27 They have standing in constitutional or criminal actions, including preventive measures.28 Besides the operator of the activity, the monitoring agency shall be liable for the damage.29 In this sense, the State has a subsidiary liability for the damage caused. Nature, as a subject of rights, impacts the theory of environmental liability. Once damage is caused, the polluter pays principle is applied. The polluter pays principle 30 is referred to as the basis for the framework of environmental damages, through the o%set of the costs of contamination.31 Not only a%ected individuals and groups shall be compensated,32 but also nature itself, which is entitled to full restoration, independent from other compensations.33 The Constitution acknowledged the strict liability of environmental damages.34 In other words, the responsibility for environmental damages is established once the relationship between the action or omission and the damage are proven. The inclusion of the principle in the constitution is an important aspect of the development of Environment Law. In order to increase access to justice, the burden of proof in 24

2008 Const., art. 88. 2008 Const., art. 93. 26 2008 Const., art. 87. Ley Orgánica de Garantìas Jurisdiccionales y Control Constitutional, Ley 0, R.O. Suplemento 52, Oct. 22, 2009, art. 26. 27 2008 Const., art. 397. 28 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 15, 17. 29 2008 Const., art. 397. 30 Declaration of Rio, Principle 16. 31 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 15, 16. 32 2008 Const., art. 396. 33 2008 Const., art. 72. 34 2008 Const., art. 396 (2; 4). 25

36

Environmental Law of Ecuador

§ 18A:39

environmental cases was shifted. 35 Rather than falling over the plainti%, proving its case, the burden of proof falls over the manager of the activity. The measure thus equalizes the parties, since it is usually harder for plainti%s to prove its case, due to smaller resources and restricted access to information.36 In addition to that, there is no statute of limitation for environmental actions against polluters.37 Nonetheless, it is not clear whether the environmental damage itself, or also the damage to individuals and communities has no statute of limitation. § 18A:39

Environmental values, or, what it means to have a right of nature

The rights of nature were based on the indigenous concept of Pacha Mama. All of these measures were thus established with the goal of fully achieving the e%ectiveness of nature as a rights bearing entity. Pacha Mama is a goddess revered by the indigenous people of the Andes. It means Mother Earth and is a fertility goddess who presides over planting and harvesting in Inca mythology. The idea is to respect nature as one would respect one's own mother. Within this perspective, the Pacha Mama rights are granted in the Constitution as follows: Art. 71—Nature, where life is reproduced and exists, and performs, has the right to exist, persist, maintain itself, and regenerate its vital cycles, structure, functions and evolutionary processes. Any person, community, town or nationality may require the public authority to comply with the rights of nature. The application and interpretation of these rights will follow the principles enshrined in the Constitution, as appropriate. The State will encourage the natural and legal persons and groups, to protect nature and promote respect for all the elements that form an ecosystem.

Given the context of environmental exploitation faced by Ecuador in the past, judicial enforcement is a fragile aspect of Environmental Law. Also, judicial institutions are only beginning to gain proper credibility dye to the history of corruption and fragile institutions. In this sense, it is discussed whether conceding rights to nature is a proper answer to ensure environmental protection. Since ecosystem rights are only meaningful if they can be enforced, it is discussed whether the goal of greater protection could be achieved through other means, such as a more strict environmental impact assessment process. In this sense, the ecosystem rights have been highly debated, and it is important to observe how laws and cases are developing as a response thereof. 35

2008 Const., art. 397 (1). Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 15, 57. 37 2008 Const., art. 396. 36

37

§ 18A:39

From the procedural point of view, granting rights to nature is a good tool for environmental protection. Along with recognizing nature's rights, the Constitution granted standing to any person, community, town or nationality to ensure that those rights are being properly enforced. The additional step of standing was thus removed, facilitating the process. The application and interpretation of those rights remain, nonetheless, unclear, given the broad provision of the article. It is important to ask is “what is nature,” given that the Constitution does not provide a de"nition of the legal concept. According to the di%erent interpretations of the term, standing can be either expanded or diminished as to "t the purpose of the litigator by an eco-centric or anthropogenic approach. Some defenders of the new rights have a broader interpretation, arguing that the constitutional provision means that the entire ecosystem—trees, animals, rivers—have a constitutional right to exist and #ourish.1 The trap, however, is that the argument of constitutional protection might be used for other goals rather than environmental protection. Critics, however, argue that the idea of providing nature with rights is based on “primitive anthropomorphism,” meaning that nature is a person. The premise would be thus wrong, since nature has, in fact, no value as the one given to it by humans.2 The contradiction is, in any case, that the richer humans get, the more value they tend to give it. The provision would then only re#ect an economical value, rather than an environmental one. In any case, the provision serves as a catalyst for change, inducing the improvement of stronger enforcement and enhanced public participation in environmental governance.3 [Section 18A:39] 1

David Suzuki, What if Mother Nature had rights? She does in Ecuador, The Globe and Mail (Jan. 09, 2013), http://www.theglobeandmail.com/commentary/what-i f-mother-nature-had-rights-she-does-in-ecuador/article7039202/. 2 Peter Foster, David Suzuki's Andean fantasy, Financial Post (Jan, 15, 2013), http://opinion."nancialpost.com/2013/01/15/peter-foster-david-suzukis-andean-fantas y/. 3 David R. Boyd, The nature debate, part 1: Make it the law, Financial Post (Jan, 15, 2013), http://opinion."nancialpost.com/2013/01/25/the-nature-debate-part-1make-it-the-law/.

38

Environmental Law of Ecuador

§ 18A:40

§ 18A:40

Environmental values, or, what it means to have a right of nature—Case law

In 2010, the "rst case was brought to the Ecuadorian court on behalf of nature.1 The case, an accio´n de proteccio´n, was brought in favor of nature, speci"cally the Vilcabamba River. The litigation in this case resulted from the construction and expansion of a road in the mountains of southern Ecuador. The provincial government began work on the road without an environmental impact statements or environmental permits. They also did not have a plan as to how to dispose of the debris that would be produced. As a result, the waste from the excavation and construction was dumped by the side of the road, along the river, narrowing the river channel to about half its previous width. Signi"cant erosion and #ooding to the lands downriver followed as a consequence.2 It is important to note that the complaint could have been made on more traditional grounds, because the government's action caused erosion and #ooding, resulting in repair costs and a reduction in the value of the plainti%s' property. And yet, the plainti%s challenged the court to consider the case through the lens of the rights of Nature.3 The court recognized that the accio´n de proteccio´n was indeed the only measure that could be applied to protect the rights of nature.4 Recognizing that the constitutional provision was unprecedented, the Court acknowledged the importance of the right in light of the generational damages.5 Interestingly, the court held that the environmental damage is based on possibilities and probabilities rather than on certitude, applying the shift burden of proof and the strict liability. The court [Section 18A:40] 1

Richard F. Wheeler et. al. v. Director de la Procuradoria General del Estado en Loja et. al. Case No. 11121-2011-0010, Sentencia Corte Provincial de Loja, Mar. 30, 2011. 2 Richard F. Wheeler et. al. v. Director de la Procuradoria General del Estado en Loja et. al. Case No. 11121-2011-0010, Sentencia Corte Provincial de Loja, Mar. 30, 2011, Vistos, 1. 3 Erin Daly, Ecuadorian Court Recognizes Constitutional Right to Nature, Widener Environmental Law Center, The Blog (July 12, 2011, 3:32PM), http://blogs.l aw.widener.edu/envirolawblog/2011/07/12/ecuadorian-court-recognizes-constitutionalright-to-nature/. 4 Richard F. Wheeler et. al. v. Director de la Procuradoria General del Estado en Loja et. al. Case No. 11121-2011-0010, Sentencia Corte Provincial de Loja, Mar. 30, 2011, Considerando Quinto, 2. 5 Richard F. Wheeler et. al. v. Director de la Procuradoria General del Estado en Loja et. al. Case No. 11121-2011-0010, Sentencia Corte Provincial de Loja, Mar. 30, 2011, Considerando Octavo, 3. 39

§ 18A:40

invoked the precautionary principle, highlighting its own duty to give e%ect to the constitutional right of nature.6 Although there was no con#ict between constitutional rights, the court acknowledged that, if there were, the rights of Nature would prevail given that a healthy environment is more important and affects more people.7 V.

INTERNATIONAL OBLIGATIONS: ENVIRONMENTAL AGREEMENTS

§ 18A:41 In general Environmental treaties and conventions are important sources of Environmental Law, ranking only after the Constitution in the legal hierarchy.1 International agreements prevail, in this sense, over national laws and statutes, but are subject to the constitutional provisions.2 Accordingly, multilateral environmental agreements have highly in#uenced the development of environmental law in Ecuador. The President of the Republic signs international covenants. Rati"cation of treaties and international instruments can also be requested by referendum or citizen initiative. After the signature, the National Assembly shall be noti"ed.3 In speci"c cases, the National Assembly has to preciously approve the rati"cation of the treaty, for example, when it refers to constitutional rights and guarantees, or when it compromises the country's national heritage, especially water, biodiversity, and genetic heritage.4 § 18A:42 General MEAs within the United Nations framework Environmental Law in Ecuador was highly in#uenced by the 1987 Brundtland Report, Stockholm and 1992 Rio Declaration, Agenda 21, which principles were fully incorporated in the Constitution and subsequent statutes. After those international movements, environmental matters began to have a rising role in the development of strategies and policies. The following is a list of the most important multilateral environmental agreements/treaties rati"ed by Ecuador: 6

Richard F. Wheeler et. al. v. Director de la Procuradoria General del Estado en Loja et. al. Case No. 11121-2011-0010, Sentencia Corte Provincial de Loja, Mar. 30, 2011, Considerando Décimo, 4. 7 Richard F. Wheeler et. al. v. Director de la Procuradoria General del Estado en Loja et. al. Case No. 11121-2011-0010, Sentencia Corte Provincial de Loja, Mar. 30, 2011, Considerando Décimo Segundo, 5. [Section 18A:41] 1

2008 2008 3 2008 4 2008 2

40

Const., Const., Const., Const.,

art. art. art. art.

245. 417. 418. 419.

Environmental Law of Ecuador

§ 18A:43

E International Convention for the Regulation of Whaling (1946) E Antarctic Treaty (1959) E Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water (1963) E International Convention Relating to Third Party Liability for Damages caused by Pollution of Sea Water by Hydrocarbons and Intervention on the High Seas in Cases of Oil Pollution Casualties (Brussels 1969). E Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar) (1971) E Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) E Convention on the International Trade in Endangered Species of Wild Flora and Fauna (CITES) (1973) E Convention on the Law of the Sea (1982) E International Tropical Timber Agreement (1983) E Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) (1983) E Vienna Convention for the Protection of the Ozone Layer (1988) E Montreal Protocol on Substances that deplete the Ozone Layer (1989) E Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basilea) (1989) E Framework Convention on Climate Change (1992) E Convention on Biological Diversity (1992) E Convention to Combat Deserti"cation (1994) E International Tropical Timber Agreement (1994) E Kyoto Protocol to the Framework Convention on Climate Change (1997) E Protocol on Environmental Protection to the Antarctic Treaty (1998) E Cartagena Protocol on Biosafety (2000) E Stockholm Convention on Persistent Organic Pollutants (2001) E Convention on the Conservation of Migratory Species of Wild Animals (2003) E Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1998) VI.

NATIONAL ENVIRONMENTAL LAWS

§ 18A:43

Development of environmental legislation

The approval a new constitution required the modi"cation of the entire legal framework, since secondary laws provides the practical 41

§ 18A:43

application and enforcement of the constitutional values and principles. 1 Nonetheless, Environmental Law preceded the "rst constitutional provisions, and started to develop in the 1970s. At "rst, environmental legislation aimed the defense and protection of speci"c aspects of the quality of human life. Environmental risks were also regulated, with a focus on establishing or delimiting responsibilities between public agencies charged with enforcing administrative requirements related to the environment, like permits to operate, harvest, hunt, "sh, or environmental impact assessments.2 Published in 1971, the Health Code is considered the "rst environmental statute in Ecuador, although it does not directly address environmental protection as a goal. Incorporating the concept of environmental sanitation, the protection of the environment is presented as a means to protect human health.3 Since then, environmental matters started to have an important role in developing government strategies and development policies. In 1976, the Law of Prevention and Control of Environmental Pollution (LPCEP)4 was enacted. It was the "rst attempt to impose speci"c obligations to protect the ecosystem as a whole, addressing water, air, and soil pollution. The statute proposes environmental protection through a humanistic approach, with a balance between technological development and the use of resources. LPCEP establishes criminal sanctions and governmental obligations, encompassing di%erent governmental bodies due to the lack of a central body for environmental management. Establishing criminal sanctions, it allows individuals to "le a formal accusation with the authorities regarding any activity detrimental to the environment. The application of LPCEP has been, however, limited, with no judicial case demonstrating [Section 18A:43] 1

Maria Amparo Albán, De Estocolmo a Montecristi: Un viaje por la consolidación del Dereche Ambiental en el Ecuador Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 21 (Gabriela Muñoz y Maria Eugenia Hidalgo, ed., 2011), available in http://www.ceda.org.ec/d escargas/publicaciones/Ecuador$Ambiental$1996$2011.pdf (CEDA—Centro Ecuatoriano de Derecho Ambiental.). 2 Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues and Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 3 (2003–2004). 3 Código de la Salud, Supreme Decree No. 188, R. O. 158, Feb. 8, 1971, reprinted in World Health Organization, International Digest of Health Legislation (1973). 4 Ley de Prevención y Control de la Contaminación Ambiental, Supreme Decree No. 374, R. O. No. 97, May 31, 1976; reformed and partially derogated by 1999Ley de Gestio´n Ambiental, current text according to 2004 codi"cation.

42

Environmental Law of Ecuador

§ 18A:43

enforcement. 5 In fact due to poor administrative coordination, Environmental Law was poorly enforced during that initial period. Effective guardianship of environmental concerns remained an appearance due to poor administrative coordination and the lack of new concepts. In 1981 the Law on Forest and Conservation of Natural Areas and Wildlife6 was enforced, systematizing norms that were previously dispersed. The statute regulated the exploitation, industrialization and trade of forest resources, as well as limited the protected forests and natural areas. It was the "rst law to establish the property of the State of natural areas, in seven di%erent management categories. Incentives for the conservation of natural areas were established, such as the exoneration of the tax on rural property for forest areas covered in natural or cultivated forest. In 1983, the General Regulation for the Application of the Forest Law was enacted, determining the proper procedures for management, conservation and bene"t from forest resources. Although this regulation is not currently valid, the Uni"ed Text of Environmental Law has a speci"c chapter for the protection of forest resources, regulating the provisions set forth in the Forest Law.7 In 1994, with the direct in#uence of the Rio Summit, Ecuador enacted the Fundamental Environmental Policies of Ecuador (FEPE),8 creating the legal framework for governmental plans and programs. Sustainable development was recognized as a fundamental principle, with the goal of maintaining a balance between social and economic opportunities, and environmental protection.9 In 1996, the Ministry of Environment was created. The enactment of the 1998 Constitution in#uenced further regulation, in#uencing the approval of the Law of Environmental Management (LEM)10 as a foundation of environmental law. Based on the 5

Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues And Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 4 (2003–2004). 6 Ley Forestal y de Conservación de Áreas Naturales y Vida Silvestre, R. O. No. 74, Ago. 24, 1981. 7 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 57, 58. 8 Polìticas Básicas Ambientales del Ecuador, Decree No. 1802, R.O. 456, Jun. 7, 1994. Later published in the Texto Uni"cado de la Legislación Ambiental Secundaria, TULAS, Decreto Ejecutivo No. 3516, R. O. 2, Mar. 31, 2003. 9 Ricardo Crespo Plaza, La polìtica ambiental ecuatoriana: Enfoque crìtico de los principales hitos de los últimos quince años Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 37, 38. 10 Ley de Gestión Ambiental, Ley No. 37, R. O. No. 245, Jul. 30, 1999. 43

§ 18A:43

constitutionally recognized principle of sustainable development,11 the statute de"nes the authority of public agencies through a decentralized environmental management system. It also demands public institutions to promote indigenous people's participation in building policies for environmental protection and management of natural resources. Legal remedies for enforcement of regulations were created, with the mechanism for citizens to demand governmental action. In addition to that, the law creates the National System of Environmental Management (SNDGA), regulating the application of environmental impact assessment and environmental permits by the Ministry of Environment. It was the "rst law to expressly adapt the principle of prevention and precaution, sustainable development and citizen participation.12 Critics argue, however, that the law failed to establish environmental standards for damage recovery, as well as to assign responsibility in cases of damage to the environment, private property, or public health. 13 To address these de"ciencies, a chapter dedicated to environmental crimes was incorporated into the Criminal Code in the 2000 reform, recognizing environmental protection as a value worthy of criminal protection.14 In 2003, several environmental laws were gathered in the Uni"ed Text of Environmental Law (TULAS),15 composed by nine books. The text regulates the functions of environmental authorities, environmental management, forest regime, biodiversity, coastal resources, environmental quality, special regime for Galápagos, ECORAE, and the system of rights and taxes for the services by the Ministry of Environment. It was a type of codi"cation of several executive decrees, ministerial accords and resolutions in environmental matters. The codi"cation represented an evolution in environmental law, and facilitated enforcement since several norms were dispersed and therefore harder to enforce.16 11

Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 58. 12 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 57. 13 Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues and Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 4 (2003–2004). 14 Ley 99-49 with the reform of the Penal Code, published in R. O. No. 2, Jan. 25, 2000. Código Penal, Tìtulo 5, Capìtulo X A, arts. 437A–437K (crimes against the environment). 15 Texto Uni"cado de la Legislacio´n Ambiental Secundaria (TULAS). 16 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 57. 44

Environmental Law of Ecuador

§ 18A:44

The Law on Environmental Management17 establishes the principles and directives for environmental policy. The law rules on obligations and responsibilities from the public and private sectors regarding environmental management, with limits, controls and sanctions on the matter. After the proclamation of the new constitution provisioning the rights of nature, Ecuador began a process of formulating new norms and reforms in order to adequate the legal frameworks to the new constitutional scheme. The legal process of building a new secondary legal structure is still ongoing. The National Plan for the Buen Vivir was developed in 2008, regulating the spirit of the Constitution.18 As a re#ection of the constitutional provisions regarding food safety and the precautionary principle, the Organic Law on Food Sovereignty was established in 2009.19 It regulates biotechnology and declares Ecuador as a country free from transgenic agriculture, except in cases of national interest. § 18A:44

Sectoral statutes—Environmental impact assessment The development of environmental impact assessment has been slow. Although environmental permits are required before the beginning of any construction or facility,1 Ecuador has no special regime for environmental permitting procedure. The environmental impact evaluation is regulated by the Environmental Management Law2 and the TULAS. 3 Electric, mineral, and hydrocarbon activities have speci"c provisions regarding the evaluation of environmental impact, basically copying the general rules set forth by TULAS. The permitting process basically consists of the environmental impact assessment analysis. The environmental impact assessment is the administrative process to previously determine the environmental viability of a project. It consists of two phases, the environmental impact study and the decla17

2004.

Ley de Gestion Ambiental, Codi"cación 19, R. O. Suplemento 418, Sep. 10,

18

Plan Nacional para el Buen Vivir: 2009 – 2013, República del Ecuador, Consejo Nacional de Plani"cación, Secretarìa Nacional de Plani"cación y Desarrollo—SENPLADES (2009), available at http://www.patrimonio.gob.ec/wp-content/uploads/downlo ads/2012/07/Plan$Nacional$del$Buen$Vivir$-$Resumen.pdf. 19 Ley Orgánica del Régimen de la Soberanìa Alimentaria, Ley s/n, R. O., May 5, 2009. [Section 18A:44] 1

Ley de Gestión Ambiental, Ley No. 37, R. O. No. 245, Jul. 30, 1999, art. 20. Ley de Gestión Ambiental, art. 20. 3 Texto Uni"cado de la Legislacio´n Ambiental Secundaria (TULAS). 2

45

§ 18A:44

ration of environmental impact. The assessment begins prior to the project and continues until it is "nished, accompanying every phase.4 Environmental impact studies present an estimate of the potential damages, in order to establish mitigation and other rehabilitating measures. Environmental studies consist of baseline studies, environmental impact assessment (EIA), environmental diagnosis, environmental audit, special examine, risk evaluation, management plan, risk management plan, monitoring system, contingency and mitigation plan, and abandonment plan.5 Depending on the project and the authority granting the permit, the environmental licenses may take several months. First, it is necessary to determine whether an environmental evaluation is necessary, through the presentation of the environmental aspects of the project by the project manager.6 If it is, a term of reference is issued by the Ministry of Environment, and the EIA is elaborated accordingly.7 After the studies have been written a public consultation process for the impacted communities must be conducted.8 NGOs are also entitled to participate. The competent authority revises and approves the EIA, and, if favorable, issues the permit.9 The environmental permit contains speci"c conditions for conducting the activity, as well as coverage for environmental risks or an insurance for environmental liability.10 There are no separate permits required for air, water and waste, although there are independent parameters for each element. § 18A:45 Sectoral statutes—Water The Law on Water1 regulates the concessions and uses of water, having some provisions regarding water contamination. Water is considered a strategic source by the Constitution,2 therefore it belongs to the state. As per the Constitution, it is also a right. A new law on water is currently on debate at the National Assembly, in order to adapt accordingly.3 The National Water Secretariat (SENAGUA), the Ministry of Ley de Gestio´n Ambiental, Glosario de De"niciones. Ley de Gestio´n Ambiental, art. 21. 6 TULAS, Libro VI, art. 22. 7 TULAS, Libro VI, art. 16. 8 TULAS, Libro VI, art. 25. 9 TULAS, Libro VI, art. 25. 10 TULAS, Libro VI, art. 25. 4 5

[Section 18A:45] 1

Ley de Águas, Codi"cación No. 16, R.O. No. 339, May 20, 2004. 2008 Const., art. 12. 3 ´ guas. Proyecto de Ley de Recursos Hìdricos, Ley de A 2

46

Environmental Law of Ecuador

§ 18A:46

Environment, and the Health Ministry manage the resource. Access to water is granted by concession of the right to access, except for domestic use. The General Rule on the Application of the Law on Water4 regulates the dispositions of the Law on Water. It de"nes contaminated water as presenting special physical, chemical or biological characteristic due to the presence of solid, liquid, gas, or radioactive elements, resulting in the partial or total limitation on the use for domestic, industrial, agricultural, "shing, recreational, or other uses.5 § 18A:46 Sectoral statutes—Biodiversity and protected areas The Constitution acknowledges the State's sovereignty over the biodiversity, as well as its duty regarding administration and management. The conservation of biodiversity, especially for agriculture, wildlife, and genetic heritage, is thus declared of public interest.1 The National Policy and Strategy for Biodiversity considers biodiversity a strategic resource for the sustainable development of Ecuador, due to its characteristic of a mega-diverse country.2 Protected areas are divided into four subsystems: state areas, areas protected by decentralized governments, community areas, private protected areas.3 The National System of Protected Areas (SNAP— ´ reas Protegidas) is the body entitled to ensure Sistema Nacional de A conservation of biodiversity and ecological functions. In this sense, protected areas and intangible zones can only be exploited by extractive industries in exceptional cases, through a petition to the President, previously declared as a national interest by the National Assembly. This limitation does not include electric generation activities since electricity is not considered an extractive industry. SNAP is regulated through the SNAP's Strategic Policy and Plan 2007–2016.4 Within this system, the State's Ownership of Natural Areas ´ reas Naturales del Estado) is a fundamental (PANE—Patrimonio de A part of biodiversity protection. PANE is regulated through the Forest Texto Uni"cado de la Legislacio´n Ambiental Secundaria (TULAS), Libro I. TULAS, Libro I, art. 90.

4 5

[Section 18A:46] 1

2008 Const., art. 400. Ministry of Environment, Polìtica y Estrategia Nacional de Biodiversidad del Ecuador, 2001–2010 (2001), available in http://www.ceda.org.ec/descargas/biblioteca/P olitica%20y%20Estrategia%20Nacional%20de%20Biodiversidad%20Ecuador.pdf. 3 2008 Const., art. 405. 4 Ministerio del Ambiente, Polìticas y Plan Estratégico del Sistema Nacional de Áreas Protegidas 2007–2016 (2006), available in http://web.ambiente.gob.ec/sites/defa ult/"les/users/jloarte#s/Pol%C3%ADticas%20y%20Plan%20Estratégico%20del%20SN APl.pdf (Project by GEF). 2

47

§ 18A:46

Law of Conservation of Natural Areas and Wildlife,5 which establishes that it constitutes a compilation of wildlife areas that have a scienti"c, scenic, educational, touristic and recreational value, special fauna and #ora.6 The Ministry of Environment is responsible to determine and delimit those areas, through ministerial accords. § 18A:47

Sectoral statutes—Pollution prevention

Within the constitutional framework of the right to live in a healthy environment, the Law for Prevention and Control of Environmental Pollution,1 and the Law on Environmental Management2 regulate pollution prevention. The Ministry of Environment, Ministry of Health, Ministry of Agriculture, and municipalities have speci"c roles in regulating the sector, each within its competencies. For example, the Ministry of Health is responsible for conducting studies of arti"cial sources of air pollution, and establishing programs to regulate e%ects, reach, and prevention methods for atmospheric contamination, collection, transport, and disposal of waste, among others.3 The Ministry of Agriculture also has a role in regulating the uses of fertilizers, detergents, and radioactive material, among other substances used in the soil. The Ministry of Environment is the primary body, generally regulating pollution prevention and contamination. Besides the generic norms, there are laws regulating pollution of speci"c sectors compiled in TULAS, such as infrastructure,4 and sources, like e&uents,5 contaminated soil,6 air pollution,7 noise,8 solid waste,9 and restricted chemicals.10 5 Ley Forestal y de Conservación de Áreas Naturales y Vida Silvestre, R. O. No. 74, Ago. 24, 1981. 6 Ley Forestal y de Conservación de Áreas Naturales y Vida Silvestre, art. 66.

[Section 18A:47] 1

TULAS, LibroVI. Ley de Gestión Ambiental, Ley No. 37, R. O. No. 245, Jul. 30, 1999. 3 Ley de Prevención y Control de la Contaminación Ambiental, Codi"cación 20, R. O. Suplemento No. 418, Sep. 10, 2004, art. 1. 4 Normas Técnicas Ambientales para la Prevención y Control de la Contaminación Ambiental para los Sectores de Infraestructura: Eléctrico, Telecomunicaciones y Transporte (Puertos y Aeroportos), published in R. O. Suplemento No. 41, May 14, 2007. 5 Texto Uni"cado de la Legislacio´n Ambiental Secundaria (TULAS), Libro VI, Anexo 1. 6 TULAS, Libro VI, Anexo 2. 7 TULAS, Libro VI, Anexo 3; 4. 8 TULAS, Libro VI, Anexo 5. 9 TULAS, Libro VI, Anexo 6. 2

48

Environmental Law of Ecuador

§ 18A:48

§ 18A:49

Special industry regulations: strategic sectors

Strategic sectors are de"ned by the Constitution as those with speci"c economic, social, political or environmental in#uence, such as the energy and mineral, and should be conducted in light of the development of rights and public interests.1 It is important to note that non-renewable resources such as oil and minerals are considered property of the State, including those within the territorial sea and maritime zones.2 However, due to the proclamation of nature as subject of rights, the concept of sustainable development, and biodiversity also listed as a strategic sector, Ecuador is still trying to articulate the public and national interests.3 § 18A:49

Special industry regulations: strategic sectors— Energy

The Environmental Rule for Electric Activities regulates the sector.1 Projects that generate more than 1MW, or are located within protected areas, require a previous environmental impact study.2 Projects within protected areas also require a special authorization by the Ministry of Environment and a declaration of high priority from the National Council of Electricity (CONELEC).3 An energy project requires two environmental impact studies, a preliminary, with technology alternatives, and a de"nitive one, more detailed.4 10

TULAS, Libro VI, Anexo 7.

[Section 18A:48] 1

2008 Const., art. 313. 2008 Const., art. 408. 3 For an analysis of the opposition between megaprojects and biodiversity, see Sofìa Suárez, Escenarios, riesgos y oportunidades que plantea la constitución ecuatoriana en relación a biodiversidade, actividades extractivas, servicios ambientales y areas protegidas (2010), available in http://www.ceda.org.ec/descargas/publicaciones/E scenarios$Riesgos$Oportunidades$que$plantea$la%20Constitucion.pdf. 2

[Section 18A:49] 1

Reglamento Ambiental para las Actividades Eléctricas, Decreto Ejecutivo No. 1761, R.O. No. 396, Aug. 23, 2011. 2 Reglamento Ambiental para Actividades Eléctricas, art. 19. 3 Reglamento Ambiental para Actividades Eléctricas, art. 41. 4 Reglamento Ambiental para Actividades Eléctricas, art. 9 (c).

49

§ 18A:50

§ 18A:50

Special industry regulations: strategic sectors— Mining The Mining Law regulates the mining sector.1 The exploitation of mineral resources shall follow the principle of sustainable development, protection of the environment, participation and social responsibility, respect for the natural and cultural heritage of the exploited zones. A public strategy for sustainability shall prioritize the monitoring, control, regulation and prevention of pollution and environmental remediation, through public participation.2 The Environmental Rule on Mineral Activities regulates the environmental management of mining in all its phases.3 Prevention, mitigation, compensation, control, rehabilitation, reparation and partial closure, as well as mine closure, shall be applied during mining operations.4 Environmental impact studies for mining activities shall include an environmental management plan to handle potential negative damage and maximize positive impacts.5 The project owner shall request the Ministry of Environment to initiate the public process of choosing a consulter for conducting the permitting procedure.6 After a public contest, the committee chooses three options so that the project owner can hire one.7 The next step is to obtain a Certi"cate from the Environmental Authority regarding the intersection of the project with protected areas.8 With the concession of mineral exploitation rights come several obligations and responsibilities. All water used in the mineral process shall be returned to the environment free of contamination and within the permissible limits of environmental regulation.9 Reforestation of zones shall be conducted whenever vegetation is cut. 1 0 Avoid contamination of soil, water, air, and biodiversity, especially from residues and dejects, through an adequate management of waste and by-products.11 Also, the owner of the mineral concession shall present a Plan for Mine Closure, including the recovery of the area and a plan [Section 18A:50] 1

Ley de Minerìa, R.O. No. 517, Jan 29, 2009. Ley de Minerìa, art. 15. 3 Reglamento Ambiental para Actividades Mineras, No. 121, R. O. No. 67, Nov. 16, 2009. 4 Reglamento Ambiental para Actividades Mineras, art. 5. 5 Ley de Minerìa, art. 11. 6 Ley de Minerìa, art. 7. 7 Reglamento Ambiental de Actividades Mineras, art. 8. 8 Reglamento Ambiental de Actividades Mineras, art. 9. 9 Ley de Minerìa, art. 79. 10 Ley de Minerìa, art. 80. 11 Ley de Minerìa, art. 81. 2

50

Environmental Law of Ecuador

§ 18A:51

to verify its compliance, social impacts and a plan to incorporate new forms of economical development.12 § 18A:51 Special industry regulations: strategic sectors—Oil The Law on Hydrocarbons is the framework for oil activities. The industry is declared of public utility in all phases, including expropriation of property and other necessary measures.1 The sector shall follow the principle of sustainable development and the protection and conservation of the environment.2 The Substitutive Environmental Rule on the Hydrocarbon Operations regulates speci"c provisions and environmental impacts.3 The Ministry of Environment regulates, oversees, and audits the environmental management of those activities, evaluating environmental impact studies and the observance of environmental norms.4 Environmental impact studies shall establish preventive and mitigating measures for potential environmental damage, including an Environmental Management Plan.5 Although Ecuador had a long history of environmental degradation due to oil exploitation, Environmental Law transformed behavior in oil development. The industry has improved technologies and methods of production, with more e%ective and environmentally safe techniques. The relationship with stakeholders has also improved, with an inclusion of indigenous people and traditional communities in the development of projects.6 The Environmental Regulations for Hydrocarbon Operations, approved in 2002, de"nes parameters and methods to be followed through each phase of oil development, providing a framework for compliance with environmental law.7 The regulation further provides certain obligations to perform, such as preparing and distributing environmental studies of the region in which the project is to occur. 12

Ley de Minerìa, art. 85.

[Section 18A:51] 1

Codi"cación Ley de Hidrocarburos, Decreto Supremo No. 2967, R.O. 244, Jul. 20, 2010, art. 4. 2 Codi"cacio´n Ley de Hidrocarburos, art. 1. 3 Reglamento Sustitutivo del Reglamento Ambiental para las Operaciones Hidrocarburìferas, Decreto 1215, R.O. No. 265, Feb. 13, 2001. 4 Reglamento Sustitutivo del Reglamento Ambiental para las Operaciones Hidrocarburìferas, art. 3. 5 Reglamento Sustitutivo del Reglamento Ambiental para las Operaciones Hidrocarburìferas, art. 41(7). 6 Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues And Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 5 (2003–2004). 7 Reglamento de Operaciones Hidrocarburìferas, Acuerdo Ministerial No. 389, Ministério de Minas y Energìa, R.O. No. 671, Sept. 26, 2002. 51

§ 18A:51

The consultation process is further demanded through the Regulations of Consultation and Participation of Indigenous People in Hydrocarbon Activities.8 The primary goal of the statute is to ensure that all parties involved understand the potential impacts of the project. The statute requires consultation prior to the granting of oil "elds and to the execution of projects in areas already licensed. In addition, it recognizes the right of communities and individuals (directly or indirectly a%ected) to participate in the evaluation of environmental studies before their approval. It is important to note that participation should be ensured with respect to local culture and customs, with indigenous facilitators or technicians. A%ected communities and individuals may also control and supervise compliance through community leaders or delegates. The comments of the a%ected parties must be taken into consideration before the government grants any authorization or license to operate. Although public participation is strictly required, the consultation process has been little e%ective in practice, being reduced to a mere presentation about planned projects.9 The information provided fails to de"ne those responsible for reducing the adverse impact, nor does it de"ne the procedural channels to handle the observations that might be presented to the controlling administrative authority. § 18A:52

Special industry regulations: strategic sectors— Oil—The Chevron case

Oil was found in Ecuador in the 1960s, when foreign companies started to develop resources in the Ecuadorian Amazon. From 1964 to 1992 a joint venture between Texaco and Petroecuador, the national oil company, extracted oil in the rainforest. In 1972, the Andean pipeline was constructed, ringing oil from the east side of the Andes to the coast. With the development, Ecuador quickly became South America's second largest oil exporter. During the period, 300 wells were opened, 18,000 miles of trail were cut, 300 miles of roads and 312 miles of pipeline were built.1 Due to its political history of instability, the rule of law was poorly enforced during many years, with oil exploitation that showed little regard for the environment or indigenous communities. Legislation 8 Reglamento de Consulta de Actividades Hidrocarburìferas, Decreto Ejecutivo No. 3401, R.O. 728, Dec. 19, 2002. 9 Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues and Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 6 (2003–2004).

[Section 18A:52] 1 Rutherford, Note: Redressing U.S. Corporate Environmental Harms Abroad Through Transnational Public Law Litigation: Generating a Global Discourse on the International De"nition of Environmental Justice, 14 Geo. Int'l Envtl. L. Rev. 807 (2002).

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historically promoted oil development of the Amazon region supported by the opening of highways in primary forest and indigenous regions.2 Consequently, the oil industry, based mainly within the borders of the Ecuadorian Amazon, was essentially self-policing regarding environmental matters during a broad period of time.3 As a result, Ecuador experienced the largest environmental accident in history, caused by consistent oil spills by Texaco. With a total exploitation of 1.4 billion barrels of oil from 1972 to 1990, the pipeline ruptured 27 times, spilling over 16 million gallons of raw crude into the rainforest. On top of that, the waste and by-products of the exploitation ware poured into 600 pits, instead of being re-injected into safe wells underground, and land and water was heavily contaminated by a discharge of over 30 billion gallons of toxic, untreated waste and drilling by-products. In comparison, Exxon Valdez spilled 10.8 million gallons of oil in 1989. The exploitation gave rise to the biggest environmental lawsuit in history. The Texaco, now Chevron case and the ongoing litigation has yet to provide justice for the people a%ected. The matter was "rst pursued in the United States, but the class action was dismissed on grounds of the principle of comity of nations and forum non conveniens.4 In Sequiho v. Texaco, the Federal District Court from the Southern District of Texas found that an adequate and available forum exists in Ecuador, favoring the dismissal of suit brought by the citizens of Ecuador in a U.S. Court due to the private and public interest factors. In 2003, the Ecuadorian citizens "led a suit in Ecuador against Chevron claiming damages for environmental pollution under the Ecuador's Environmental Management Act.5 Texaco argued that the company had been released from future obligations or liabilities in due to an environmental remediation conducted between 1995 and 1998.6 After several years and countless turn backs,7 the court in Lago Agrio imposed a US $18 billion "ne in damages for polluting the air, 2

Cepeda, Legal Perspectives on the Debate Concerning Social-Environmental Issues and Petroleum Development in Ecuador, 10 Sw. J. L. & Trade Am. 41, 6 (2003–2004). 3 Kimerling, Rights, Responsibilities, and Realities: Environmental Protection Law in Ecuador's Amazon Oil Fields, 2 Sw. J. L. & Trade Am. 293 (1995). 4 Sequiho v Texaco, 847 F. Supp. 61 (1994). 5 Ley de Gestión Ambiental, Ley No. 37, R. O. No. 245, Jul. 30, 1999. 6 History of Texaco and Chevron on Ecuador, Remediation, Texaco, http://www.t exaco.com/sitelets/ecuador/en/remediation/default.aspx (last visited May 17, 2013). 7 See Patrick Radden Keefe, Reversal of Fortune, The New Yorker (Jan. 9, 2012), http://www.newyorker.com/reporting/2012/01/09/120109fa$fact$keefe 53

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ground, and water during oil extraction activities.8 However, since Ecuador has no assets in Ecuador, the plainti%s were not yet able to enforce the decision. The plainti%s are trying to enforce the decision in Brazil, Canada, and Argentina. VII.

SPECIAL REGULATION OF PROTECTED AREAS

§ 18A:53

The Galapagos Islands

The protection of the Galapagos Islands started in 1936, when it was named the "rst National Park in Ecuador. In 1978, Galapagos became the world's "rst UNESCO Natural Heritage Site, and, in 1998, the "rst Marine Reserve.1 The 1998 Constitution established the Galapagos special regime, since 97% of the surface is protected.2 Accordingly, the 1998 Special Law for Galapagos3 established the National Institute for Galapagos (INGALA) as the central planning organization and a council for leadership, policy settling, and coordinating body for Galapagos.4 The law regulates the administrative legal framework, human settlements and housing, education and health, environmental control, sanitation and basic services, productive activities, incentives, infractions and sanctions, activities or conservation and sustainable development.5 A new category for protected areas was created, in addition to those established by the Forest Law, the marine reserve. The category was created due to the special characteristics of the Galápagos Marine Resources Reserve, which could not be adapted to any of the management categories established by the Forest Law. Limits to housing, property and trade were established in order to protect the nature. In addition to that, limits to "shing, agriculture and tourism were also established, as to avoid an excessive burden on the ecosystem. Zoning, sustainable management of resources and conservation were the core 8

The decision by Judge Nicolás Zambrano, of Lago Agrio's court, was published in February 2010. [Section 18A:53] 1

Galápagos Islands, UNESCO, http://whc.unesco.org/en/list/1 (last visited May 15, 2013). 2 52, http://www.ceda.org.ec/descargas/publicaciones/Manual$Derecho$Penal$ Ambiental.pdf 3 Ley de Régimen Especial para la Conservación y Desarrollo Sustentable de la Provincia de Galápagos, Registro O"cial No. 278, Mar. 18, 1998. 4 Graham Watkins & Alejandro Martinez, The changing organizational framework in Galapagos in M. Verónica Toral Granda (coord.), Galapagos Report 2007–2008, (2008), 59 (Charles Darwin Foundation, Parque Nacional Galápagos Ecuador, Instituto Nacional Galápagos) http://www.darwinfoundation.org/english/$u pload/GalapagosReportEnglish2007-08.pdf. 5 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 59. 54

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of the limits imposed. Sanctions were established in order to induce enforcement. The law provided for a legal framework for the region, delimitating the attribution of provincial authorities and distribution of economic resources.6 The participation of the civil society was also acknowledged, through a mechanism of participative management. Since population in Galapagos has been traditionally small, there is an identity among native residents, called Galapagueños.7 These natives have a very special relationship with the island and its environment, but must also accept environmental restrictions that are necessary to protect the insular ecosystem. Since environmental restrictions have changed their original way of living, a lot of them oppose regulations, making it harder to comply and achieve greater environmental protection.8 The Director of the National Park of Galápagos was established as the authority for administration and management. From an open regime of access to marine resources, the law provided a switch to a controlled and regulated access.9 As a result, the threat to the conservation of systems and ecosystems was reduced. A 2001 Resolution gave the statute a character of organic law, thus naming Organic Law of the Galápagos Province Special Regime.10 The islands were designated the "rst Maritime Sensitive Zone by the International Maritime Organization in 2005.11 In 2007, after UNESCO declared Galapagos a threatened area, Ecuador recognized the risk and declared the conservation of Galapagos a national priority. The Management Plan of the Galapagos National Park (GNP) 6 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 60. 7 Hugo Barber & Pablo Ospina, A Galapagos identity in M. Verónica Toral Granda (coord.), Galapagos Report 2007–2008, (2008), 23, 24 (Charles Darwin Foundation, Parque Nacional Galápagos Ecuador, Instituto Nacional Galápagos) htt p://www.darwinfoundation.org/english/$upload/GalapagosReportEnglish2007-08.pdf. 8 Hugo Barber & Pablo Ospina, Public acceptance of environmental restrictions in M. Verónica Toral Granda (coord.), Galapagos Report 2007–2008, 40, (2008), available at http://www.darwinfoundation.org/english/$upload/GalapagosReportEnglish 2007-08.pdf. 9 Sofìa Suárez, Apuentes sobre el marco legal ambiental del Ecuador in El Ecuador Ambiental 1996–2011: Un Recorrido Propositivo, 60. 10 Reglamento a la Ley Especial para la Provincia de Galapagos, Executive Decree No. 1657, R.O. No. 358, Jan. 11, 2000. 11 Particularly Sensitive Sea Areas, International Maritime Organization, http:// www.imo.org/OurWork/Environment/pollutionprevention/pssas/Pages/Default.aspx (last visited May 18, 2013).

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provided a new territorial model for sustainable development of the system.12 The 2008 Constitution established a special regime for Galápagos. INGALA shall therefore approve the entities and institutions, controlling its execution.13 A reform of the laws of Galápagos thus began specially in order to alter the institutional regime.14 § 18A:54 The Amazon rainforest The Constitution established the special territorial district of the Amazon provinces, with integrated planning embodied in the law.1 Due to its special ecosystem and environmental qualities for the biodiversity equilibrium, a special law and territorial order shall regulate the Amazonian territory.2 Based on conservation and protection of the ecosystem, and the sumak kawsay principle, the environmental management of the region focuses on public participation and the respect for indigenous and collective rights. The special law of the Amazonian territory is currently being elaborated by the six Amazonian provinces.3 § 18A:55 The Amazon rainforest—The Yasunì ITT initiative The Western Amazon, bordering Colombia and Peru, is claimed to be one of the most biodiverse areas of the planet, a bank of humanity and nature, according to some scientists.1 Within this region, there is the Yasunì National Park, an 8,820 km area shaped like a horseshow. A block of the Yasunì National Park holds the Ishpingo-TambocochaTiputini (ITT) area, one of the most important reservoirs of biodiversity. It is home to two indigenous groups in voluntary isolation, the Tagaeri and Taromenane, and another with external contact, Quichua. It is estimated that there are more trees and shrubs in one acre of the park than in the United States and Canada together. In 12

Instituto Nacional Galápagos et. al., Plan de Manejo del Parque Nacional Galápagos, (2005) available at http://www.galapagospark.org/documentos/DPNG$pla n$de$manejo.pdf. 13 2008 Const., art. 239. 14 Proyecto de Ley Orgánica del Régimen Especial de Galápagos. [Section 18A:54] 1

2008 Const., art. 250. Código Orgánico Organización Territorial, Autonomia, Descentralización, art

2

22.

3 Se cumple primera etapa para Ley Especial Amazónica, El Telégrafo (Apr. 24, 2013), http://www.telegrafo.com.ec/regionales/regional-centro/item/se-cumple-primeraetapa-para-ley-especial-amazonica.html.

[Section 18A:55] 1 Pamela L. Martin, Oil in the Soil: The Politics of Paying to Preserve the Amazon, 1 (2011).

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addition, there are 150 species of amphibians, 121 reptiles, 596 birds, 200 mammals, 500 "sh and 4,000 plants.2 Above all that, it hosts one of the largest oil reserves in Ecuador, accounting for 20% of the country's current estimates.3 Consistent with the sumak kawsay way of life established in the Constitution, as well as with the rights of nature, Ecuador made a political decision not to exploit those oil reserves. The Yasunì ITT Initiative, an unprecedented project, pledges to maintain 846 million oil barrels in the soil of the Ecuadorian Amazon rainforest in exchange for "nancial contributions from countries, international institutions, companies and the civil society.4 While gathering half the amount estimated for oil exploitation one of the world's richest biodiversity shall be preserved. Consequently, the project has three set goals: reduce CO2 emissions, protect biodiversity and indigenous rights, and reduce poverty. The Yasunì-ITT Initiative is also the world's "rst concerted e%ort to reduce greenhouse gases by pledging to keep hydrocarbon resources in the ground. By keeping the oil underground, the initiative will prevent emission of 407 million tones of CO2 equivalent. Through the avoided emissions model, the proposal also calls for the inclusion of new standards of non-emitted carbon dioxide, as well as the inclusion of developing countries in the framework of the international climate change regulations.5 The "nancial contribution totals US $3.6 billion (US $360 million annually, for a period of 10 years) placed into the Yasunì Fund, which is administered by the United Nations Development Program (UNDP), along with the Ecuadorian State, Ecuadorian civil society and contributors' representatives. The funds are invested in "ve area: conservation and prevention of deforestation in protected areas, and administration of natural areas; reforestation, forestation, and natural regeneration of privately owned areas; improved energy e!ciency and increased renewable energy sources; social development in education, health and training; and research, science, technology, and innovation in bio-knowledge, river-basin management, and energy matrix.6 In exchange, Ecuador is inde"nitely committed not to exploit oil 2 Institutional message, Yasunì-ITT, http://yasuni-itt.gob.ec/mensajeinstituciona l.aspx (last visited Feb. 5, 2013). 3 Pamela L. Martin, Oil in the Soil: The Politics of Paying to Preserve the Amazon, 3 (2011). 4 What is Yasunì-ITT initiative?, Yasunì-ITT, http://yasuni-itt.gob.ec/quees.aspx (last visited Feb. 4, 2013). 5 Pamela L. Martin, Oil in the Soil: The Politics of Paying to Preserve the Amazon, 3 (2011). 6 How does the initiative work?, Yasunì-ITT, http://yasuni-itt.gob.ec/comofuncion a.aspx (last visited Feb. 6, 2013).

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reserves in the ITT Yasunì National Park. The Ecuadorian government issues Yasunì Guarantee Certi"cates in US dollars, equivalent to the amount contributed, whenever it is above US $50,000. If the amount is lower than that threshold, it is considered a donation.7 The certi"cates also include the metric tons of CO2 avoided according to the price of the European Union Allowances (EUAs) in the Leipzig Carbon Market. If oil is exploited, there is a penalty to pay back monetary values of CGYs. The Yusanì ITT Initiative is either perceived as an innovative way to sort out environmental and economic contradictions, by "nding a new path towards a di%erent kind of growth, one that is attuned with nature,8 or, conversely, as an “eco-extortion” and “ransom demand.”9 Due to the lack of a long and stable political history, the initiative is sometimes perceived skeptically. Since it highly depends on domestic policy, it remains unsure whether the commitment to avoid exploitation will be kept. The penalty for oil drilling is still very light, and a new government has a big incentive to simply pay the penalty and receive the revenues from the oil. However, the initiative has already turned the region and its biosphere into an eco-tourism hotspot, raising international awareness for its richness. It also induced the international discussion of new ways to expand current mechanisms to address climate change. VIII.

CLIMATE CHANGE

§ 18A:56

In general Ecuador has CO2 emission estimates of 26.802 metric tons, 2.0 per capita.1 It is estimated that land-use change, through forest loss and degradation, contribute six to 17% of all anthropogenic greenhouse gas (GHGs) emissions.2 However, approximately 60.000 hectares of forests are lost annually, accounting for 55 million tons of CO2 equivalent each year. 7

Ecuador Yasunì ITT Trust Fund, UNDP, http://mptf.undp.org/yasuni (last visited May 20, 2013). 8 David Suzuki, What if Mother Nature had rights? She does in Ecuador, The Globe and Mail (Jan. 09, 2013), http://www.theglobeandmail.com/commentary/what-i f-mother-nature-had-rights-she-does-in-ecuador/article7039202/. 9 Peter Foster, David Suzuki's Andean fantasy. Financial Post, (Jan. 15, 2013). http://opinion."nancialpost.com/2013/01/15/peter-foster-david-suzukis-andean-fantas y/. [Section 18A:56] 1

UNdata, Country Pro!le: Ecuador, United Nations, http://data.un.org/Country Pro"le.aspx?crname=Ecuador (last visited Feb. 24, 2013). 2 Bertzky, M., Ravilious, C., Araujo Navas, A.L., Kapos, V., Carrión, D., Chíu, M., Dickson, B. (2010) Carbon, biodiversity and ecosystem services: Exploring cobene"ts. Ecuador. UNEP-WCMC, Cambridge, UK, 1, http://www.unep.org/pdf/pressre leases/Ecuador$brochure.pdf. 58

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Reducing deforestation is a national priority, and the National Development Plan (2009–2013) set a goal of reducing deforestation by 30%.3 In order to address the problem, the government created the Sociobosque program. Sociobosque program to preserve another 2.3% of total land area by paying private or community landowners incentives to maintain their land as native ecosystems in the region, the number of hectares that will be protected, and the type of ecosystem of the land to be protected.4 According to the Constitution it is mandatory to the state to seek the reduction green house emissions. In this sense, a division of climate change was created within the Ministry of Environment. The division provides for mitigation and adaptation, and promotes conservation in order to ensure environmental services.5 Ecuador has rati"ed the UN Framework Convention on Climate Change and the Kyoto Protocol to the United Nations Framework Convention on Climate Change. However, as a developing country, Ecuador has no binding targets of emissions reductions. Although greenhouse gas emissions are not regulated speci"cally, there are State's initiatives to reduce greenhouse gas emissions. For example, a project between the Government and Deutsche Bank "nanced the distribution of 6 million energy-e!cient light bulbs to poor households. As a result of 440,000 tonnes of emissions reduction, the venture was set up under the Clean Development Mechanism, with Certi"ed Emissions Reductions issued.6 IX.

CONCLUSION

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In general

Ecuador has been a forefront country in developing environmental law. With an innovative constitution and a developing legislation, it has been internationally recognized as an environmental state. However, there is still much to be done in the "eld. Environmental legislation still has to develop to catch up with the constitutional proclamations. With sparse laws, regulations, ministe3

Ministry of Environment, Government of Ecuador, Forests and Climate Change: Ecuador's Socio Bosque Program, http://www.profor.info/sites/profor.info/"les/docs/Soc io%20bosque%20Durban.pdf (last visited Apr. 1, 2013). 4 Ministry of Environment, Government of Ecuador, Forests and Climate Change: Ecuador's Socio Bosque Program, http://www.profor.info/sites/profor.info/"les/docs/Soc io%20bosque%20Durban.pdf (last visited Apr. 1, 2013). 5 Texto Uni"cado de la Legislación Ambiental Secundaria (TULAS), Estatuto Orgánico de Gestión Organizacional por Procesos del Ministério del Ambiente, Acuerdo Ministerial No. 175, R.O. Suplemento 509, Jan. 19, 2009, art. 7, 7.3. 6 Alex Davis, Deutsche Bank and Ecuador pioneering carbon transaction, Risk.net (Mar. 01, 2011), http://www.risk.net/energy-risk/feature/2027337/deutsche-ba nk-ecuador-pioneering-carbon-transaction. 59

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rial accords, and resolutions, enforcement is still one of the biggest challenges faced. In this sense, the codi"cation of Environmental Law is a topic currently on the spotlight, indicated by several scholars as an obvious step forward.1 An environmental code would also prove helpful to regulate the provisions set forth in the 2008 Constitution, something that has not yet been completely done. The rights of nature still need to be further developed. In addition to regulating laws, it is important to develop scholarly articles and judicial decisions on the subject. As an increasing important source of law, case law on the rights of nature will provide a better framework of its meaning. There have been limited cases in which the rights of nature were discussed. A proper development of the subject is thus important to have an actual implementation of the proclaimed rights. One possible solution is to create an environmental court. The Organic Code on the Judicial Branch2 has predicted the creation of such courts, but nothing has been done since. Also, an environmental procedural law is necessary to "ll in the blanks by current regulation, as well as to clarify some of the constitutional provisions. Although there is a lot of political will to increase the importance of nature in state policy, there is still no clear answer as to the clash between environment and economy, especially in light of economic crisis and the need to reduce poverty. Private industries still have a high environmental impact. New projects need to be developed in order to boost the economy, but the limits to growth and to environmental exploitation are still unclear. Another interesting possible development is the creation of an environmental branch in the O!ce of the Public Defense, thus creating a responsible body for defending the rights of nature. Regarding environmental law, there are a few statutes that are outdated and need to be rewritten. The law regarding forests, and the law on water are examples of statutes that do not follow current principles and policies. Also, in order to properly enforce laws and establish responsibility for damages, a law on environmental liability is needed. Institutions need to be further strengthened as to avoid environmental impunity. Governmental employees are still not quali"ed, leading to poor investigation of damages and crimes. In addition, environmental education needs to be expanded as to broaden the reach and increase protection. [Section 18A:57] 1

Sofìa Suárez, Efectivización de los derechos de la naturaleza: evolución jurisprudencial, CEDA: Temas de Análisis, No. 27, 8 (2012), available in http://www.ceda. org.ec/descargas/Analisis/CEDA$analisis$N°27$noviembre$2012$evolucion$juri sprudencial$DDNN.pdf. 2 Codigo Orgánico de la Función Judicial, Ley s/n, R. O. Suplemento No. 544, Mar. 9, 2009. 60

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Lastly, industries have to be obliged to internalize the cost of nature in order to enforce the ecosystem rights. Introducing the sustainability standards would be an easier step to do so, since there are already international standards set forth. A law on biodiversity would also facilitate putting a price on nature, thus increasing protection through ecosystem services. In this sense, the value of nature could also be incorporated in the national accounts.

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