Serie de Publicaciones del Minor de Derecho Ambiental del Colegio de Jurisprudencia de la USFQ
Criminal and Environmental law in Ecuador: A Compatible Mix?
Gabriella Utreras Sandoval
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| Gabriella Utreras Sandoval |
About a year
ago, I was writing my exchange application and outlining the many reasons why
my home institution, McGill University, should allow me to complete my final
semester of law at the Universidad San Francisco de Quito. My number one
academic argument was that there would be no better place to observe
environmental law in action than in Ecuador where in 2008 it became the first
country in the world to recognize Nature as a subject of rights. After four
months abroad, I can say that my time here has been every bit as worth it as I
expected. Derecho Penal Ambiental (“Criminal
Environmental Law”) has left a great impression on me not just because of the
exposure to the many legal problems that emerge from cross-sectoral studies
(the combination of environmental and criminal law specifically), but more so
because I’ve learned more deeply about the legal culture at work in Ecuador.
As a Canadian
student, I knew there were bound to be differences between the application of
criminal law in Canada and Ecuador. I was also aware that our visions of
environmental protections would not be quite the same. In truth, I had no idea
how large the gap would be.
The first
concept that I had to wrap my head around was of course the position of Nature
as a right’s holder, and not simply an object of legal protection. As I learned
in Derecho Penal Ambiental, this
constitutional redefinition of the human-nature relationship prioritizes Nature
as an autonomous being or entity that merits legal protection in and of itself.
In other words, harms to the environment are deemed harmful because of their
negative effects on wildlife and the ecosystem and not because of the indirect
harm to humans. Humans are no longer the only standard against which harm is
measured.
It was also
impressive to work with a constitution that integrates an indigenous worldview.
The Ecuadorian constitution’s explicit use of Pachamama incorporates
the naturalistic and transcendental elements of the Andean vision and provides
an alternative conception of the environment.[1] Although Canada strives to elevate the position of indigenous justice
within its bi-juridical system (common and civil law), it does not incorporate
indigenous concepts within its normative legal framework.
Moreover,
unlike Ecuador, Canada’s Constitution does not afford protections or rights to
the environment. In fact, there is no clear indication that the environment
falls strictly under the responsibility of the Federal government (although it
can). In Canada, environmental matters are typically classified as falling
under provincial powers due to their relation to property and civil rights.[2] In fact, Canadian provinces have the exclusive right to legislate in
relation to the exploration of non-renewable natural resources.[3] We are nowhere near to the centralized type of protection used in
Ecuador.
In addition
to the role of Nature, there was a whole chapter within the Ecuadorian Criminal
Code devoted to classifying the types of environmental offences that we had to
dissect. Again, coming from a country where environmental matters are handled
through a regulatory regime with very limited intervention by the criminal law,
this opened my world to a whole new manner of regulating environmental harms
that I had to absorb, understand, and question.
Although the
Canadian Criminal Code does provide for harsher sanctions for egregious
environmental violations, the environment is not itself the focus of these
provisions. For example, criminal sanctions are used in cases of possession and
deposit of nuclear or radioactive material “with the intent to cause death,
serious bodily harm or substantial damage to property or the environment.”[4] Evidently, the severity of the offence is measured in relation to the
gravity of harm caused to human
lives. Criminal charges in Canadian environmental law have a decidedly
anthropocentric framing. So, immersing myself in the Ecuadorian reality, where
criminal law is used amply to enforce Nature’s rights, required quite a mental
shift.
However, what
I found most exciting about this class was diving into the nitty gritty issues.
While the use of criminal law in environmental matters may produce stronger
deterrence effects, it also opens the door to a host of problems. These
perceived defects include the use of an amorphous concept of nature, the use of
harsh punishments (i.e. deprivation of liberty) in response to non-demonstrably
harmful actions or in cases of risk of harm, and most notably, the problem of
what Ecuadorian jurist Ernesto Albán Gómez refers to as “normas en blanco”.[5] Although there is no exact translation in English, this concept
refers to the codification of incomplete criminal offences and is closely
related to the criminal law principle nullum crimen sine lege scripta
(there shall be no felony without a written statute). By delegating the power
to complete the definition of prohibited conduct to administrative authorities,
such as the Ministry of the Environment, rather than maintaining the power to
define the criminal law in the hands of the legislator, this type of offence
heightens the uncertainty and lack of precision that is so fundamental to
criminal law. 
In essence,
these issues all question the role of criminal law within the environmental
sphere. Criminal law is harsh, but its application is correspondingly cautious.
Environmental law, on the other hand, calls for a more flexible and purposive
interpretation such that protections are applied in a broad fashion rather than
a narrow one. Environmental harms are, after all, very likely to produce
long-term and irreversible effects. The question remains, should criminal law
have a narrow application in this field or a broader one? As you can see, it’s
difficult to simply pick one side over the other. With competing values at
stake, a more nuanced and comprehensive examination is required.
What I can
say with certainty is that Ecuador is a unique setting for the study of
criminal environmental law. After all, Ecuador
is a megadiverse country. The Galapagos Islands alone harbour some of the
world’s most unique and endemic species.[6] The pressure for preserving these endemic species of
flora and fauna is very real. Classes like Derecho
Penal Ambiental train future jurists to tackle
hard questions that emerge from the intersection of criminal and environmental
law.
Thanks to Dr.
Hugo Echeverria, professor of Criminal Environmental Law at USFQ, environmental
lawyer specializing in Galapagos issues, and a McGill alumnus himself (talk
about a small world!), students can explore the intersection of environmental,
criminal, constitutional, and even administrative procedure all in one class.
Given that environmental problems are trans-jurisdictional by nature,
comparative study in an environment where one can observe first-hand the
challenges that criminal law can bring to this field represents an amazing
learning opportunity, and one that I was fortunate to experience.
[1] Constitución de la República del Ecuador,
Registro Oficial [Official Record] 449, 20 October 2008, Art. 71.
[2] Constitution Act, 1867 (UK), 30 & 31
Vict, c 3, s 92(13), reprinted in RSC 1985, Appendix 11, No 5.
[3] Constitution Act, 1867
(UK), 30 & 31 Vict, c 3, s 92A, reprinted in RSC 1985, Appendix 11, No 5.
[5] Ernesto Albán Gómez, “Los delitos contra el
medio ambiente en el Código Penal ecuatoriano” (2007) No. 8: Foro Revista de
Derecho 87 at 90.
[6]
“Ecuador – Country Profile” Convention on Biological Diversity, online:
<https://www.cbd.int/countries/profile/default.shtml?country=ec#facts>.
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