viernes, 13 de enero de 2017

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

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.
[4] Criminal Code, RSC 1985, c C-46, s 82.3.
[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: <>.

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