Woolly monkey

Animal Law Update

Ecuador’s Constitutional Court Rules Wild Animals Are Subjects of Legal Rights Under the Rights of Nature

By Nicole Pallotta, Senior Policy Program Manager

Summary: In January 2022, the Constitutional Court of Ecuador issued a landmark ruling that individual wild animals are subjects of legal rights under Ecuador’s “rights of nature” constitutional provision. The case involved a woolly monkey who was taken from the wild as a baby and kept unlawfully in a private home for 18 years. After learning of the situation, authorities seized the monkey, who had been given the name Estrellita, and transferred her to a zoo, where she soon died. In each of these instances, the court found that Estrellita’s rights were violated and that therefore the rights of nature — which protect wild animals — were also violated. While the case was initiated by a habeas corpus action, the court’s expansive ruling addressed the scope of the rights of nature, wild animals as subjects of rights, and limitations on those rights. This case was selected for review by the constitutional court specifically to develop “binding jurisprudence” around the scope of the rights of nature,1 which Ecuador was the first nation to enshrine in its constitution in 2008. 2

This Court warns that animals should not be protected only from an ecosystemic perspective or with a view to the needs of human beings, but mainly from a perspective that focuses on their individuality and intrinsic value.”
– The Constitutional Court of Ecuador (Final Judgement, Case No. 253-20-JH/22, p. 27)

Background

The subject of the case was a woolly (or “chorongo”) monkey who had been taken from her natural habitat as a baby and for 18 years was confined in a private home, in violation of Ecuadorian law, which prohibits keeping wild animals as pets. Following a citizen complaint, authorities seized the monkey, who had been named Estrellita, and transported her to a zoo, where she died after a short time.

Several weeks later, the woman who had possession of Estrellita before she was seized (hereafter “the claimant”) filed a habeas corpus petition in an attempt to have the monkey returned to her custody.

Lower Courts Deny Habeas Corpus Action

The trial court denied the habeas corpus action, finding that authorities acted lawfully when they removed Estrellita from the claimant’s home. The fact that the habeas corpus petition was filed two months after the monkey died was also viewed with skepticism by the court.3 The trial court’s decision was upheld on appeal, in part, because “the alleged victim had died.”

The appellate court also addressed the case of a bear named Chucho in neighboring Colombia, which the claimant cited, along with other foreign resolutions. Specifically, she drew attention to the Supreme Court of Colombia’s decision to grant habeas corpus to Chucho. However, the appellate court noted that the Colombian court granted habeas corpus in Chucho’s case “not to live with people but in an environmental reserve” — thus differentiating that outcome from the claimant’s petition to have Estrellita returned to her private home.

The appellate court further noted the Constitutional Court of Colombia had denied that same action, finding that only humans can be subjects of habeas corpus.4 In support of its denial of the habeas corpus action for Estrellita — even if she were still alive — the appellate court cited the Constitutional Court of Colombia’s ruling regarding Chucho.

Constitutional Analysis

Estrellita’s case then advanced to the Constitutional Court of Ecuador, which selected it “to issue binding jurisprudence,” expanding its scope beyond the habeas corpus action to ask broader questions about whether Ecuador’s rights of nature provision applies to individual wild animals like Estrellita.5

What is the Scope of the Rights of Nature?

As a prelude to asking whether the rights of nature cover wild animals, the Constitutional Court of Ecuador made clear it was employing a hierarchical construct of legal rights, with humans’ rights at the top. The court noted there are hard limits to nature’s constitutionally protected rights “to exist and flourish,” and that the needs of humanity generally will be more heavily weighted.

While recognizing that nature has intrinsic value and “the human being should not be the only subject of rights, nor the center of environmental protection,” the court asserted throughout the judgment that the needs and desires of humans — who are part of nature, and must act as its stewards — take precedence:

Since Nature contains in its bosom and is the basis on which other subjects of rights develop, and among these, human beings, it is rational for the latter to collaborate for the good living of all of them, without this translating under any assumption into disregarding or affecting their own good way of living. (p. 19)

When balancing competing interests, the phrase “good way of living” leaves much room for interpretation. However, the court cautioned that while humanity’s needs will generally be weighted more heavily, human rights do not trump nature’s rights automatically or in all circumstances. The use of nature’s resources is legitimate and constitutional only if such use adheres to three principles: appropriateness,6 necessity,7 and proportionality.8 These guiding principles are open to interpretation as well, but impose some limitations on human claims to override nature’s rights.9

Importantly, the concept of “good living” — or “buen vivir” in Spanish — has a specific meaning in South America and is more expansive than just referring to humans. More than a colloquial phrase, it refers to a social philosophy. As explained in the Guardian:

Ecuador is building on its indigenous past by incorporating the concept of sumak kawsay into its approach to development. Rooted in the cosmovisión (or worldview) of the Quechua peoples of the Andes, sumak kawsay – or buen vivir, to give it its Spanish name – describes a way of doing things that is community-centric, ecologically-balanced and culturally-sensitive.

Can Animals be Subjects of Rights?

Before turning to Estrellita’s case, the court asked “whether animals, in general, can be considered as subjects of rights.” The court answered this question affirmatively and provided a multi-pronged rationale for the conclusion that animals — as individuals with intrinsic value — are subjects of rights.

First, the court observed that while speciesism and anthropocentrism — “whereby the human being has been considered the center of all legal expression” — have historically framed the development and understanding of legal rights, the law continues to evolve. Characteristic of that evolution has been increasing recognition that animals need legal protection:

Human beings or homos sapiens were the first to perceive themselves as subjects of rights and as beings with intrinsic value; however, their affirmations, denials, judgments and conclusions about animals as to whether or not they are subjects of rights have developed throughout history. Law in modern times has been characterized by a marked anthropocentrism, whereby the human being has been considered the center of all legal expression. This approach has been accompanied by an evident speciesism . . . . However, neither anthropocentrism nor speciesism are conclusive, finished and immovable approaches in law, and human beings have progressively admitted the need to legally protect animals. (p. 25)

The court then identified four key moments in the development of legal protections for animals: 1) their protection as “things” by civil law; 2) animal welfare; 3) their identification as “protected objects of the environment;” and 4) the recognition of animals as subjects of rights.

The most recent phase — animals as rights-holders — is based on the acknowledgement that animals are living beings with an intrinsic value. Again citing the Constitutional Court of Colombia, the Ecuadorian court advised that recognizing animals as legal subjects means considering them as individuals, separate from their ecosystems:

This Court warns that animals should not be protected only from an ecosystemic perspective or with a view to the needs of human beings, but mainly from a perspective that focuses on their individuality and intrinsic value. Regarding this consideration, the Constitutional Court of Colombia has expressed: ‘animals are protected not only in terms of their ecosystemic contribution, but also as sentient beings, individually considered.’ (p. 27)

Importantly, the court observed that this current phase is neither finished nor perfect, but is still under construction, tacitly leaving the door open to further reforms and expanded rights in the future.

chimp

Different Rights for Different Species

After establishing that animals are subjects of rights, the court noted these rights are different from those belonging to humans:

The recognition of animals as subjects of law does not mean their equality with humans, since each species has its own protection needs that are differentiated by its own characteristics and qualities. . . . As a result, their demands for legal protection are different. (p. 27)

This seems an obvious point, but it still causes confusion among detractors of animals’ rights. On the fact that a variety of legal entities exist, the court noted, “there are many ways in which legal subjects can be classified.” One such way is to distinguish human from non-human subjects of law, e.g. corporations and the state. Summing up another seemingly obvious point but one that bears repeating, the court wrote: “while all humans are subjects of law, not all subjects of law are humans” (p. 27).

Importantly, the court differentiated the rights of nature as an interrelated system of species from the rights of animals as individuals.10 The focus on the rights of animals as individuals — versus species as a whole — is animal-forward.

However, the court qualified these rights by applying an “interspecies principle,” which refers to humans’ supposed position atop a trophic, or food, chain. Embedded in this principle is the constitutional right to food, which applies to animals as well as humans (though it applies differently for different species).11

On the “right to food,” the court wrote that a principle of “ecological interpretation” must also be taken into account that “respects the biological interactions that exist between species and between populations and individuals of each species” (p 30). This principle also refers to the trophic chain and the fact that some species must prey on others for survival. In the court’s analysis, human beings are also “predators:”

Therefore, when a predator kills its prey in compliance with the trophic chain, the right to life of an animal is not illegitimately violated. The latter is of great concern, particularly with regard to the relationship of human beings with other animals, insofar as human beings are predators, and being omnivorous by nature, their right to feed on other animals cannot be forbidden. In addition to being a biological condition of human beings, driven by the intrinsic principle of survival, food is a right established in the Constitution and in international human rights instruments. (p. 32)

Competing Rights: Humans and Nonhuman Animal Species

So, although this case is not about farmed animals, humans’ right to eat other animals is sanctioned through this analysis and equated with the ecological relationships between wild animal species. Humans are not seen as separate from nature but as embedded in it just as wild animal species are — despite modern methods of agriculture that are qualitatively and quantitatively different from relationships between predator and prey animals that exist in the wild.

deer in the woodsNevertheless, humans’ right to food — or right to kill other animals for food — is cloaked in a familiar “necessity” justification. The court merely stated that humans have a right to food, but remained silent on the question of what kinds of food humans have a right to and whether there should be limits. Regarding human society’s treatment of other animals, and skirting the question of limits, the court relied on a tautological rationale that equates history with legitimacy: “These types of activities are legitimate, and reflect historical and maintained forms of interaction of the human species with the rest of the animal species” (p 34).12

The court then listed several benefits to humans that have come from the domestication and subjugation of animals, seemingly offered as reassurance that its conclusion that animals are subjects of rights need not jeopardize these activities or the many ways humans currently use and exploit animals. In addition to status quo bias, the court justified these activities based on the right of people to benefit from the environment and natural resources so that they may “live well.”13

Again, the phrase “live well” leaves ample room for interpretation. However, the human right to engage in activities that exploit animals is not absolute. The court noted that these activities “could be framed” as constitutional rights, “depending on the particularities of each case.”

The key to future progress may lie in the equivocal phrase “could be framed,” as these rights are interrelated and can potentially shift, particularly within the concept of good living or “buen vivir,” which does not apply only to humans but takes all species into account. Indeed the court affirmed later in the ruling that wild animals also have a right to “good living,” and that Estrellita’s was violated.

Along these lines, the court warned: “The interspecies principle ‘means that animals cannot be seen as subordinate or as tools, and their needs and desires must be seriously considered’” (p 30).

Asserting that animals’ needs and desires must be given serious consideration is progressive from a global perspective — this language is rare in the U.S. legal system. But what does “serious consideration” entail?14 This is a question for future courts. However, with increasing recognition that animals have legal interests (a logical outcome of courts and legislatures granting them more legal protections), their needs and desires are more likely to receive meaningful consideration under the law.

What Rights do Wild Animals Have?

The previous discussion was about interactions between humans and animals more generally, framed within the constitutional right to food. The court next turned its attention to the specific rights of wild animals, which are robust and numerous. Once again, however, these rights are weakened by the “legitimate interactions” loophole:

In general, wild species and their individuals have the right not to be hunted, fished, captured, collected, extracted, kept, retained, trafficked, traded or exchanged, notwithstanding the legitimate interactions mentioned in paragraphs 107 et seq. above; likewise, they have the right to the free development of their animal behavior, which includes the guarantee not to be domesticated and not to be forced to assimilate human characteristics or appearances. The right to free animal behavior protects the general freedom of action of wild animals; i.e. the right to behave according to their instinct, the innate behaviors of their species, and those learned and transmitted among the members of their population. (p. 35)

The court again emphasized the harms to animals as individuals. Activities such as “turning wild animals into pets” or otherwise “humanizing” them has negative consequences not only at the species or population level but also violates the rights of individual wild animals. Here the court listed several more rights held by wild animals:

Wild animals subjected to these procedures suffer direct violations of their rights to freedom and good living; it is common for these animals to have their rights to food in accordance with the nutritional requirements of their species, to live in harmony, to health, to habitat, to the free development of their animal behavior, among others, violated. (p. 36)

After a detailed discussion of the legal rights possessed by wild animals, the court concluded unequivocally that they are protected under the scope of the rights of nature.

Were Nature’s Rights Violated in Estrellita’s Case?

Finally, the court turned to Estrellita, the monkey at the center of this case, asking whether nature’s rights were violated when she was removed from her natural habitat, kept in an urban home, and, most recently, seized by authorities and transferred to the zoo. The court found Estrellita’s rights — specifically to life15 and to integrity — had been violated in each of these instances, and that the rights of nature were therefore also violated.16

The court went into the greatest detail discussing whether transferring Estrellita to the zoo was an appropriate measure, with the court criticizing authorities for not considering alternatives or a transition stage given the fact that Estrellita had grown up exclusively in a human environment.17 The court wrote, “in short, no consideration was given to the specialized care and assistance required by Estrellita in accordance with her particular circumstances” (p. 45).

While noting the removal of the monkey from the claimant’s home was legitimate, the court criticized authorities first for not acting sooner (given Estrellita could be seen from outside claimant’s house) and later for failing to adequately consider Estrellita’s rights when removing her from the home. The state has the authority to protect wild animals in accordance with applicable laws, however:

When the exercise of such powers has the potential to affect or they actually affect the rights of animals in a way that is not compatible with the principles of interspecies or ecological interpretation, the protection of the wild animal and the specific context in which it is found must be the first priority. (p. 43)

Enforcement and Procedural Rights

After finding Estrellita’s rights to life and to integrity were violated, the court addressed “jurisdictional guarantees” for the protection of such rights, emphasizing the importance of enforcement mechanisms and noting that legal rights must include both a substantive and procedural dimension — for without the latter, rights will be “unenforceable, useless or non-justiciable.”

The quality of Nature . . . as a subject of rights must necessarily manifest itself in a substantive dimension and in a procedural dimension. In other words, being a subject of rights allows Nature to be a holder of rights (substantive dimension) and to pursue the protection and reparation of these rights before the administrative and jurisdictional organs of the State (procedural dimension). In relation to this procedural dimension, Article 71 of the Constitution recognizes the right of any individual or legal entity, collectivity or human group to exercise legal actions and resort to public authorities, in the name of Nature, to demand the protection and reparation of its integrity or that of its elements, which includes animals. This Court recalls that when interpreting the scope of the content of the values, principles, rights and guarantees of the Constitution, the interpretation that gives them meaning, practical effects and usefulness must be adopted, and those interpretations that render the constitutional provisions unenforceable, useless or non-justiciable . . . must be discarded. (p. 50)

The court addressed the procedural issue in Estrellita’s specific case, quoting the Ecuadorian constitution , noting that broad standing exists to enforce the rights of nature:

‘Any person, community, people or nationality may demand from the public authority the fulfillment of the rights of nature’ and that it was possible to adopt timely measures for the protection of the wildlife specimen during all those years that [she] lived in an urban house. (p. 39)

monkey

Resolution

Finally, the court addressed the action that initiated the case, finding “the habeas corpus is inadmissible because it revolves around the recovery of the corpse of a wild animal” (p. 54). However, in overturning the lower courts and admitting the habeas corpus petition for constitutional review, the court implies that such actions can legitimately be filed on behalf of animals.18

Although it took no specific action regarding Estrellita since she was deceased, the court looked to the future by mandating legislative and policy changes to reflect the principles of the ruling, which it summarized in a concluding section.

The Constitutional Court recognizes that:

  1. Animals are subjects of rights protected by the rights of Nature.
  2. Animals are subjects of rights protected under the rights of Nature guaranteed by Article 71 of the Constitution under the unrestricted application of the principles of interspecies and ecological interpretation.
  3. The rights of animals must also respond to a procedural dimension by which they can – independently of the actions and appeals in the ordinary justice system – achieve the protection of their rights by means of jurisdictional guarantees according to the purpose and concrete claim.
  4. For the custody or care of wild animals, priority should be given to their insertion or permanence in the natural habitat and this alternative should be evaluated first; unless it is not possible due to particular conditions or other exogenous conditions, suitable measures for ex situ conservation should be adopted . . .
  5. In the event that no other alternative is possible and the freedom of locomotion of the wild species has to be restricted . . . the guidelines established in paragraph 147 above must be observed. (p. 55)

Among the court’s directives were that the appropriate government agency create regulations within 60 days regarding the care of wild animals, particularly those who are subject to seizures or restraints, and set minimum standards to be met by animal caretakers. It also mandated the preparation of a “bill on animal rights” within six months, and approval by the legislature within two years of a law on animal rights, “in which the rights and principles developed in this final judgement are included, including the minimum criteria or parameters established.”

Conclusion

The Constitutional Court of Ecuador’s ruling is significant because it affirmatively answered the question of whether individual wild animals are subjects of rights under the rights of nature, which are constitutionally protected in Ecuador.

In addition, unlike many laws protecting wild animals that only cover species defined as “threatened” or “endangered”— as in the U.S. federal Endangered Species Act — this ruling makes clear that all wild animals are protected under Ecuador’s rights of nature provision.19 Thus it lays important groundwork for future cases involving wild animals.

While it is a landmark ruling in that it recognizes wild animals have certain legal rights that are constitutionally protected, it has equally significant limitations. For example, hunting and fishing are still permitted, with the court essentially stating that wild animals’ right to life is less important than humans’ “right to benefit from the environment and natural resources.” This human right is vague enough to allow many current uses of animals to continue.

However, the court leaves room for this calculus to shift in the future when it notes these activities and other forms of animal exploitation “could be framed” as constitutional, “depending on the particularities of each case” — opening the door for judicial interpretations that weigh the interests of animals more heavily. In addition, the concept of “good living,” or “buen vivir,” repeatedly referenced in the ruling as a sliding scale for human rights, also includes other species and the environment. This inclusive social philosophy leaves room for expansion and greater inter-species equilibrium as well.

In sum, while it is indeed a positive advancement that Ecuador’s highest court interpreted the constitutional rights of nature as including wild animals, the ruling is limited — as is typical of even the most animal-forward decisions under the anthropocentric legal frameworks that are still normative throughout the world. Yet, the court’s unequivocal recognition that wild animals are subjects of legal rights is an important milestone on the path to future reforms, which can more robustly challenge human exceptionalism by strengthening these rights.

Further Reading


References

  1. The court elaborated:
    As noted by the Selection Chamber court . . . this case was selected inasmuch as: “[it] allows to discuss whether or not an animal could be considered as a subject of rights. In this regard, the Constitutional Court has not issued a pronouncement, so the matter complies with the parameter of novelty and non-existence of a previous ruling or judicial precedent. Therefore, this Court can develop a judicial criterion that determines the scope of the habeas corpus action when faced with a case of protection of other living beings, and whether they can be considered as subjects of rights protected by the rights of nature.” (p. 51) [emphasis in original]
  2. These rights were affirmed by the constitutional court in a December 2021 ruling (Caso Nro. 1149-19-JP/21 Revisión de Sentencia de Acción de Protección Mosque Los Cedars) that mining activities in the Los Cedros cloud forest violated the forest’s right to exist and flourish.
  3. The claimant alleged she did not know Estrellita was deceased. However, the court found this claim dubious, writing, “it is inconceivable that the claimant could have been unaware of the death of ‘Estrellita,’ considering that the San Martin Zoo is of popular access, or in other words, she could have visited the monkey constantly.” (p. 17)
  4. The supreme court and the constitutional court are Colombia’s highest courts, but have different purviews — the former presides over civil and criminal matters and the latter over matters of constitutional interpretation.
  5. Stated on the first page of the ruling, the Constitutional Court of Ecuador’s aim in hearing Estrellita’s case was threefold:
    1) to recognize the scope of the rights of Nature and determine whether it covers the protection of a particular wild animal such as the “Estrellita” monkey;
    2) to review whether in the specific case of the “Estrellita” monkey the rights of Nature have been violated; and
    3) to develop general guidelines for the applicability of constitutional guarantees in favor of wild animals such as the “Estrellita” monkey. (p. 1)
  6. Appropriate use of nature’s resources means “it aims to ‘guarantee the production and reproduction of the material and immaterial conditions that make a good way of living possible,’ without jeopardizing the good way of living of future generations.” (p. 20)
  7. Necessity is satisfied if “the methods, actions and tools employed are the least harmful and cause the minimum possible environmental impact.” (p. 20)
  8. Proportionality requires that “the greater the degree of non-satisfaction or affectation of Nature, the greater must be the importance of satisfying the good way of living regime.” (p. 20)
  9. Among these limitations is that nature’s intrinsic value must always be considered:
    Article 83.6 of the Constitution establishes the duty of Ecuadorians to “respect the rights of nature, preserve a healthy environment and use natural resources in a rational, sustainable and ecological manner”…. This means that the principles in reference must not only be understood and interpreted from a human dimension but also from an ecological key…. In short, the combination of both principles mandates that nature not only be seen as an object of economic exploitation, i.e. as an external source for the satisfaction of human material needs, but also as a participant in the economy with its own rights (conservation and existence). (p. 20) [emphasis in original]
  10. “Animal rights protect specific members of the animal kingdom who are therefore part of Nature. . . .The rights of animals are held by specific members of the animal kingdom, while the rights of Nature are more generally applicable to the existence of all natural species, not only animals, and to the maintenance and reproduction of their relationships and processes within their respective ecosystems, including abiotic elements.” (p. 29)
  11. “For example, the right to food of an Andean condor is not protected or guaranteed in the same way as that of a pink Amazonian dolphin, since both species have different feeding demands and behaviors; while the former is a scavenger bird, the latter is a mainly fish-eating mammal.” (p. 30)
  12. Activities noted by the court to be legitimate because they are historical forms of interaction include “agriculture, animal husbandry, fishing, hunting, gathering and forestry.”
  13. The court wrote:
    Similarly, the domestication of animals has served to enable humans to respond to threats to their physical integrity and the security of their possessions; to control pests that can endanger livestock, crops and human health; to provide transportation, help in work, for clothing and footwear; and even for recreation and leisure. Thus, the Constitutional Court recognizes that all the aforementioned activities could be framed, depending on the particularities of each case, within the right guaranteed by Article 74 of the Constitution, and thus constitute forms through which individuals, communities, peoples and nationalities exercise their right to benefit from the environment and natural resources that allow them to live well. (p. 34)
  14. As many animal law scholars have observed, when animals are legal property, their needs and desires tend to be given less moral weight — at least when humans’ desire to exploit them is stronger than their desire to protect them.
  15. “This Court declares the existence of violations to the rights to life, in its positive dimension, and integrity of the chorongo monkey named Estrellita in particular, and therefore, the violation of the rights of Nature; answering in a positive way the legal problems and subproblems raised in the second part of this constitutional analysis.” (p. 48)
  16. The right to integrity includes both physical and psychic integrity:
    By omitting to consider the particular circumstances of the wildlife specimen in the ruling that simultaneously ordered the seizure and subsequent transfer of the Chorongo monkey to an environmental management center (eco zoo), the right to integrity of the Chorongo monkey was violated to the extent that such right not only ensures physical integrity but also psychic integrity, and, therefore, the rights of Nature were also violated. (p. 45)
  17. “This Court considers legitimate the exercise of powers by State authorities for the protection of wildlife provided for in the legal system as well as the possibility of imposing civil, criminal or administrative liability for violations of the legal system (such as the absence of an authorization for the possession of wildlife). However, when the exercise of such powers has the potential to affect or they actually affect the rights of animals in a way that is not compatible with the principles of interspecies or ecological interpretation, the protection of the wild animal and the specific context in which it is found must be the first priority”. (p.43)
  18. This was an important point for one of the dissenting judges, who wrote: “I express my total disagreement with the decision to revoke the sentences issued in the habeas corpus action.” The dissent’s objection was based in part on the familiar claim that habeas corpus cannot apply to animals, but also because the action was filed “to perpetuate the commission of an unlawful act.” Hence, he wrote, the claimant’s “standing to file the habeas corpus action is not justified, and even more so when the purpose of the guarantee itself is to return the animal to its irregular state of captivity.” (p. 63)
  19. Likewise, in the 2021 ruling upholding the rights of nature, the constitutional court said these rights apply across the whole country, not just to protected areas.

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