https://doi.org/10.37955/cs.v8i2.346
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
The right to the city and the rights
of nature: an analysis of their
relationship from the blue-green
ordinance
Derecho a la ciudad y derechos de la naturaleza: análisis
de su relación desde la ordenanza verde-azul
Sandra Tapia Barros
Abogada de los Juzgados y Tribunales de la República del Ecuador por la
Universidad de Guayaquil. Candidata a PhD (Doctorado en Ciencias Jurídicas) por la
Universidad Nacional de Mar del Plata-Argentina, sandra.tapiab@ug.edu.ec,
https://orcid.org/0000-0002-6907-3537
ABSTRACT
The central objective of this research is to illustrate the connection
between the right to the city and the rights of nature, highlighting the
blue-green ordinance as a means of managing, preventing, building
and redressing these rights. The relationship between the right to the
city and the rights of nature in its guarantee is decisive in the
construction of equitable, resilient, sustainable and environmentally
friendly urban spaces. This paper provides a conceptual and legal basis
for the right to the city and the rights of nature, outlining their
fundamental principles and their evolution in the urban context. It
also addresses analyses of sustainable urban planning policies that
emerge in the applicability of the principle of interdependence
between the right to the city and the rights of nature focused on
safeguarding and restoring both ecological balance and social justice
in cities. Finally, we reflect on how the actions or omissions of the
public entities that make up a local government in their management
have an impact on the enjoyment or violation of these "city-nature"
rights, and explain the importance of the role played by decentralised
municipal autonomous governments in the effectiveness of the
development of their competences, especially in the area of
Centro Sur Vol. 8 No. 3- July– September - Revista Centro Sur - eISSN: 2600-5743
56
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
environmental management, in line with the content of the
Constitutional Court's ruling No. 2167-21-EP/22 "Monjas River".
RESUMEN
El objetivo central de esta investigación es ilustrar la conexión que
existe entre el derecho a la ciudad y los derechos de la naturaleza,
destacando a la ordenanza verde-azul como un medio de gestión,
prevención, construcción y reparación de estos derechos. La relación
de derecho a la ciudad y derechos de la naturaleza en su garantía
conjugan decisivamente en la construcción de espacios urbanos
equitativos, resilientes, sostenibles y considerados con el medio
ambiente. El presente trabajo recoge bases conceptuales y legales del
derecho a la ciudad y los derechos de la naturaleza, rotulando sus
principios fundamentales y su evolución en el contexto urbano. De la
misma manera aborda análisis de las políticas de planificación urbana
sostenibles que surgen en la aplicabilidad del principio de
interdependencia entre el derecho a la ciudad y los derechos de la
naturaleza enfocados en salvaguardar y restaurar tanto el equilibrio
ecológico como la justicia social en las ciudades. Finalmente, se
reflexiona como las acciones u omisiones de las entidades públicas
integradoras de un gobierno local en su gestión inciden en el disfrute
o violación de estos derechos “ciudad-naturaleza”, por lo que explicar
la importancia del papel que cumplen los gobiernos autónomos
descentralizados municipales en la efectividad del desarrollo de sus
competencias y especialmente en la que tiene que ver con la de gestión
ambiental se tratará en aras del contenido del dictamen de la Corte
Constitucional en su Sentencia No. 2167-21-EP/22 «el río Monjas».
Keywords / Palabras clave
right to the city, right to nature, urban law, green-blue ordinance
derecho a la ciudad, derecho a la naturaleza, derecho urbano,
ordenanza verde-azul
Introduction
The right to the city and the rights of nature are intrinsically related.
In the context of Ecuadorian constitutionalism, since its recognition in
the Supreme Norm of 2008, it has allowed us to understand its impact
on the promotion of sustainable urban development in harmony with
the environment for the materialisation of the good life of its citizens.
57
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
The relationship between the right to the city and the rights of nature
corresponds to one of the fundamental principles of human rights
called the "principle of interdependence", which means that "these
rights" cannot be fully enjoyed without each other. Environmental
degradation obstructs the enjoyment of human rights and the exercise
of these rights favours the protection of the environment and leads to
sustainable urban development.
Consequently, it has been the constitutional justice through its highest
organ of administration and control through the relevance given to the
"Monjas River" case in its sentence No. 2167-21-EP/22 as it states:
"(...) to allow the development, in a State that protects the environment
and recognises rights to nature, of the protection of water basins and
their relationship with sustainable development and the right to the
city".
In the specific case ruled by the Constitutional Court with the filing of
the extraordinary action for protection and whose reference is linked
to the initial filing of an action for protection in which the plaintiffs
point out that the "responsibility of the municipality in provoking and
tolerating the environmental and soil contamination that has been
generated in the Monjas River for years is considerably affecting the
quality of life of the people" and that this "reflects two clear violations
of constitutional rights by the Municipality and its authorities. The
first is in relation to the right of all citizens to live in a healthy and
pollution-free environment, which by its magnitude and scope is
directly related to the right to life, health, housing and property".
Therefore, in order to analyse the problem of the Monjas River, the
Constitutional Court in its ruling did so from a holistic perspective,
developing and invoking the application not only of the right to nature
and others but also the right to the city under the use of the principle
iura novit curia, known as "the judge knows the law", which allows a
judge to determine the law applicable to a dispute without deference
to the rules invoked by the parties, which since the filing of the
constitutional actions that have been mentioned in this case did not
point it out under objectivity.
The antecedent facts of the problem raised in this case, is given in the
basin of the Monjas River located to the north of the city of Quito,
along it are located several rural and urban parishes. The Monjas River
is polluted because the domestic and industrial wastewater produced
58
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
by the neighbourhoods in the north-west of Quito is discharged
directly and without treatment into the Monjas River.
In addition to these difficulties, there is water erosion, the rainwater
that the river receives, the lack of good water management in the city
(rainwater and sewage are not separated), and the two are joined by
the same sewer and flow together into the rivers, urban sprawl and
settlement cements the soil and makes it impermeable, and the city's
soil has little capacity to precollect water, all of which leads to an
increase in the flow of rivers and streams and changes in the hydraulic
behaviour of the natural course of the stream.
In view of this, the Municipality of the Metropolitan District of Quito
has drawn up several plans and studies which have not been sufficient,
because in the public mandate not only the intention, the wording and
the lyricism count, but the execution of effective management, its
measurement and evidence in works and/or services translated into
the satisfaction and enjoyment of rights by the citizens.
Among all these circumstances, the lack of urban planning as a vital
instrument in the construction of the guarantee of the right to the city
translates into the transgression of the rights of people and nature,
which is why it is more than the responsibility and commitment of
local authorities to fulfil their functions, attributions, powers and
competencies described constitutionally and legally in the Ecuadorian
legal system, whether these are exclusive or concurrent, in cooperation
with other levels of government for the benefit of the common good.
Under these references, the Constitutional Justice, through its ruling
in the "Monjas River" case, in order to rehabilitate and not repeat these
events, ordered the Municipality of Quito to take three compulsory
reparation measures: 1) the execution of works aimed at stabilising
the riverbed in the La Esperanza section and protecting the Hacienda
Patrimonial house; 2) the definition and execution of a public policy,
which is materialised in the elaboration of a complementary plan for
the Monjas River, and which must contemplate short, medium and
long term measures; 3) the issuing of a 'blue-green' ordinance.
Indeed, the objective of this qualitative research under the structure of
case analysis will be to show how rights to the city and rights to nature
are connected, highlighting the use of the blue-green ordinance as a
means to manage, prevent, build and restore these rights. As a result,
this article describes the conceptual and legal foundations of the right
to the city and the rights of nature, outlining their fundamental
59
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
principles and their evolution in the urban context. It also recounts
how the Constitutional Justice recognises the violation of the right to
the city and the rights of nature and orders their redress.
Right to the City
Conceptually, various international and national authors approach the
study of the right to the city. In this sense, it is from the 1970s in France
where the philosopher Henri Lefebvre appears, forging the definition
of the origin of this right.
The right to the city, defined by Lefebvre as "...the right of urban
inhabitants to build, decide and create the city, and to make it a
privileged space of anti-capitalist struggle", building his hypothesis of
seeing the right to the city "...as the possibility and the capacity of
urban inhabitants and mainly of the working class, to create and
produce the city", so that (Molano, 2016, p. 4) says that he describes
the right to the city as "the right of urban inhabitants to build, decide
and create the city, and to make it a privileged space of anti-capitalist
struggle". 4) says that he describes the central elements of the right to
the city as "...autonomous construction and collective work in the face
of capital and the state".
On the other hand, David Harvey of British origin influenced by
Marxist social theory assumes the right to the city "as a social
possibility of struggle and anti-capitalist theory, which makes urban
territory a scenario for the construction of alternatives of
appropriation and political and spatial participation, on the way to a
society that overcomes capitalism" (Molano, 2016, p. 5).
The right to the city for Jordi Borja, a Spanish urban planner and
politician, "includes the right to housing and to a meaningful and
beautiful public space, to the preservation and improvement of the
environment and heritage, to permanence in place and to change of
residence, to mobility and centrality, to socio-cultural identity and
visibility, to accessibility and monumentality, to the democratic
government of the metropolitan city and to decentralised or proximity
management, to continuous training and to a citizen salary, to security
and shelter. The right to the city implies the political-legal equality of
all residents and universal access both to goods and services of general
interest and to participation in the elaboration and management of
public policies" (Borja, 2012, p. 58).
60
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
Manuel Moreno, assistant professor and doctor of administrative law
at the University of Malaga, conceives of the right to the city "as an
emerging human right comprising all internationally recognised
human rights, which find in the city the proper sphere for their
realisation. It would come to be, therefore, the right of city dwellers to
satisfy their social, political, economic, cultural and environmental
needs and aspirations" (Moreno, 2022, pp. 313-314).
Then Edward Soja, an American researcher for whom "the right to the
city is not restricted to anti-capitalist struggle, but articulates forms of
ethnic, gender and cultural resistance, as an expression of the diversity
of urban experiences" (Molano, 2016, p. 5).
Alicia Ziccardi, a researcher at the Institute for Social Research of the
National Autonomous University of Mexico, addresses the right to the
city from the perspective of urban policies and its links to the notion of
this right as a collective appeal that has historically changed its
content, but which fundamentally alludes to a profound urban
transformation led by social movements with the intention of
counteracting the capitalist processes that generate socio-spatial
inequality and urban segregation, and to produce better living
conditions for the citizenry as a whole (Ziccardi, 2019, p. 61). 61).
For his part, Pablo Slavin, PhD in Law with a specialisation in political
science from Argentina, makes a critical analysis of the thinking of
three authors that he considers key to understanding the right to the
city and the relevance of the functioning of the capitalist mode of
production: Lefebvre, Soja and Harvey; he reflects on the phenomenon
of urbanisation and its problems and explains the importance of
building a social movement that offers alternatives to the neoliberal
hegemony that is currently imposed at a global level.
In this framework, he conceives the right to the city as associated with
the right to citizenship, and to a special type of citizenship: liberating,
egalitarian, inclusive, creator of new rights, transformative and
simultaneously a tool for reform and for revolution; he thinks of the
right to the city as an integrality, contrary to the fragmentation of
space, so we must understand space and its reasoned production as a
totality (Slavin, 2021, pp. 36,40).
On the other hand, in the national sphere since its definition, few
researchers have dealt with the right to the city, but from their critical
perspectives it has been addressed from different approaches such as:
61
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
The contribution of Daniela Ayala who develops research and debate
on the content of the right to the city from the approach of mobility,
observing the growth of modern cities, the effect of industrialisation
that brings with it several problems that are difficult to foresee,
pointing out the space demanded for the automobile, the privatisation
of public space, air pollution and pressure on natural resources.
He considers the need to generate public policies to make cities viable
as places where it is possible to live well, defining the right to the city
as:
(...) the possibility of good urban living, both for life in cities to be
sustainable in the medium and long term; and for cities to be
transformed into truly habitable places for people. For cities to be the
place where we want to live and not where we have to live (Ayala, 2017,
p. 58).
Jaime Breilh, an Ecuadorian doctor and researcher, has approached
the right to the city from an analysis focused on the relationship
between urban space, health and equity. Breilh argues that the right to
the city implies guaranteeing access to a healthy, equitable and
sustainable urban environment, where human rights are respected,
citizen participation is promoted and socio-spatial inequalities are
eradicated. With this Breilh (2009) argues:
That is why we say that there is a relationship between health,
environment and society. And of course, legally speaking, it is clear
that the right to health encompasses more than the right to the goods
that make adequate curative care feasible, but rather that the right to
a healthy life is linked to the validity of other rights of the good life.
Our struggle together with multiple organisations in the constituent
stage, as part of the Network for the Right to Health, achieved that the
new constitution establishes this relationship: Art. 32.- Health is a
right guaranteed by the State, whose realisation is linked to the
exercise of other rights, including the right to water, food, education,
physical culture, work, social security, healthy environments and
others that support the good life (Breilh, 2009, p. 264).
The authors (Llop & Vivanco, 2017) distinguished the right to the city
from the analysis of urbanism for intermediate cities in Ecuador and
synthesised it into two basic statements and concluded:
"The right not to be excluded and to live in dignity without
discrimination of any kind, regardless of gender, age, the community
62
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
to which one belongs or social, economic, educational, cultural or any
other issues. To fulfil this right means that the model of exclusion must
be countered by an inclusive model of social and territorial integration,
equal opportunities to enjoy the goods, services and resources that
cities offer, making the real exercise of rights possible" (p. 18).
"One of the prerogatives of the City is the right to Plan, where Urban
Planning is a necessary condition in the construction of cities. Every
extended reality of today's world generates the reflection of how to act
in networks, which are not stable and visible elements for everyone.
Therefore, they must be thought of in a special and spatial way so that
they can be part of the contents of education and urbanism. Cities have
less visible networks in the aspects of communication and
management actions and the new urban economy. New
communication technologies create new virtual spaces that are more
difficult to see in the management of the transformations of life in
society" (p. 94).
For (Carrión F. M., 2019) architect and academic of the Department
of Political Studies FLACSO-Ecuador has approached the right to the
city from a perspective of urban policies and public space. He argues
that the right to the city implies guaranteeing public space from the
"city of quantity and expansion" to a "city of quality, open and diffuse"
(p.192), in which the democratisation of municipal government is
highlighted; public space becomes a citizen's right, "in the
understanding that it is precisely there where citizenship is built, and
therefore, the political community that is the city" (p.193 ); in which
"urban planning must be organised on the basis of the public and not
the private, of the collective and not the individual" (p.201); and in
which the element of "representation of the collectivity where society
is made visible" (p.202), with its active and meaningful participation
of citizens in decision-making on urban development, in order to
promote democratic and participatory urban governance.
Obando and Baeza (2023) Ecuadorian lawyers and researchers outline
the right to the city from the study of urban law, stating "that it is
indispensable to generate order, structure and balance in cities, which
derives in legal security for citizens, and therefore, in a better quality
of life in cities" (p.35); and they warn that urban law from the
perspective of making a city should:
Respond with new regulations in all fields: transport, construction
standards, urban development and housing, among others. Also, with
63
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
regard to the environmental field, urban law is obliged to react in a
resilient manner in order to guarantee a healthy and ecologically
balanced environment, avoid environmental pollution and prevent
irreversible consequences on the planet (Obando & Baeza, 2023, p.
36).
This being said by international and national authors regarding the
definition of the right to the city, I understand that its guarantee in
Ecuador would be configured as the materialisation of a set of rights
that the Ecuadorian Constitution calls "rights of good living", which
would be of no use if they are only written in a text (dogmatic part)
when the institutional management (organic part) and that of public
servants in the performance of their duties does not evidence the
enjoyment of these rights for citizens.
Instrumental and legal framework at the international and national
level of the Right to the City
Regarding the right to the city, it is stated that: "(...) it has been
institutionalised and codified through a series of instruments adopted
at the international and European level through the charters of the
right to the city (...)", instruments that are considered indicative rather
than normative (Moreno, 2022, p. 313).
In this sense, he points out different international instruments that
have tried to define the right to the city and delimit its content, such
as: the World Charter for the Right to the City, the European Charter
for the Safeguarding of Human Rights in the City and the World
Charter-Agenda for Human Rights in the City. Likewise, the New
Urban Agenda - Habitat III also contains some reference to this
concept.
One of the first initiatives in the framework of the World Social Forum,
through which the creation of a "Charter" that contributes to
institutionalising the theme of human rights in the city and the
collective right to the city in various parts of the world was promoted,
converged in dealing with the theme and the processes appropriate to
the formulation of the "World Charter for the Right to the City", in
whose Art. 1 specifies the right to the city:
(...) as the equitable use of cities within the principles of sustainability,
democracy, equity and social justice. It is a collective right of city
dwellers, especially vulnerable and disadvantaged groups, which gives
them legitimacy of action and organisation, based on their uses and
64
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
customs, with the objective of achieving the full exercise of the right to
self-determination and an adequate standard of living.
Thus, over the years, the right to the city began to be addressed in
Europe and from the juridical point of view in America in the cases of
"Mexico, Brazil", and it is in 2008 in the Ecuadorian constitution
where its recognition and guarantee is crystallised. The Ecuadorian
Supreme Norm on the right to the city in Art. 31 states:
"People have the right to the full enjoyment of the city and its public
spaces, under the principles of sustainability, social justice, respect for
different urban cultures and balance between the urban and the rural.
The exercise of the right to the city is based on the democratic
management of the city, on the social and environmental function of
property and the city, and on the full exercise of citizenship.
The aforementioned article has a great content, when it refers to the
exercise of several rights due to its characteristic of being a collective
right that seeks to guarantee "the full enjoyment of the city",
understanding this as the Right to the City Agenda for the
implementation of the 2030 Agenda for Sustainable Development and
the New Urban Agenda (NUA):
The right of all inhabitants, present and future, permanent and
temporary, to inhabit, use, occupy, produce, transform, govern and
enjoy just, inclusive, safe, sustainable and democratic cities, towns and
urban settlements, defined as common goods for a dignified life, to be
shared and owned by all members of the community.
The right to the city means ensuring cities and human settlements (i)
free of discrimination; (ii) with gender equality; (iii) integrating
minorities and racial, sexual and cultural diversity; (iv) with inclusive
citizenship; (v) with increased political participation; (vi) fulfilling
their social functions, including recognising and supporting social
production processes and habitat reconstruction; (vii) with diverse
and inclusive economies; and (viii) with inclusive urban-rural
linkages.
However, from the date of its drafting in the Magna Carta to the
present day, the mere recognition of rights has not been enough, since
the lethargy of public administration has made the rights to live well
and the right to the city literally described in it a utopia. As irrefutable
evidence of the universe of cases, I point out the case of the "Monjas
River".
65
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
Rights of nature
As one of its most important ideas, the 2008 Constitution enshrines
the rights of nature in its preamble and in the seventh chapter of Title
II. With this decision, as explained by (Wilhelmi, 2008, p. 21), the
Constituent Assembly broke with some of the most dogmatic and
conservative schemes in terms of the ownership of rights, as it
understands it beyond human beings, thus opening up new
perspectives on the very conception and function of rights.
This means that not only individuals, communities, peoples,
nationalities and collectives are entitled to and will enjoy the rights
determined in the supreme text, but also nature is named as a subject
of those rights.
The prologue of the Constitution stresses that we have decided to build
a new form of citizen coexistence, in diversity and harmony with
nature, to achieve the good life, sumak kawsay translated from the
Kichwa language means "ideal fulfilment in fullness and life". To
achieve these ideals, according to the criteria of (Mármol, 2023, p. 58)
a change of vision is fundamental, that is, to leave aside the previous
androcentric vision, and assume the new biocentric vision (nature-
humans) within a catalogue of rights, which implies the constitutional
recognition under the title "Rights of Good Living" (Derechos del Buen
Vivir).
Consequently, the Rights of Good Living are constitutionally
catalogued in Title II as: water and food, healthy environment,
communication and information, culture and science, education,
habitat and housing, health, work and social security. For their
materialisation and guarantee, these are linked to the regime of
development and the regime of good living, the latter under the
structure of systems: that of inclusion and equity, and that of
biodiversity and natural resources.
It is clear that nature is a protected legal asset and thus the supreme
text recognises it, expressing in its content: the integral respect for its
existence; the maintenance and regeneration of its vital cycles,
structure, functions and evolutionary process; that of its restoration;
and, that of applying precautionary and restrictive measures for
activities that could lead to the extinction of species, the destruction of
ecosystems or the permanent alteration of natural cycles.
66
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
The right to nature recognised by the Constitution, which includes
access for all people to live in a healthy and sustainable environment,
was declared a human right by the UN Human Rights Council on 18
October 2021. Grijalva (Grijalva, 2023, pp. 43,45) does not explain
how human rights have long been conceived without regard for nature,
and why there is still resistance to recognising the rights of nature.
Along these lines, the author explains how the rights of nature are
related to human rights, such as health, water, work, a healthy
environment, housing and food. In fact, he says, the Ecuadorian
Constitution expressly includes these rights in several of its articles, in
a sort of greening of human rights.
And he cites (Grijalva, 2023, pp. 45,46) some examples in which the
Supreme Law relates environmental and natural rights with various
human rights, among which he cites: property, the right to the city, the
right to health, prior consultation, housing, economic freedom,
participation, dignified life, food sovereignty, the right to water, the
right to free time, effective judicial protection, among others.
In short, constitutionally establishing the rights of nature places the
state under the obligation: to guarantee a sustainable model of
development, environmentally balanced with the needs of present and
future generations in mind; to comply at its different levels of
government with the application of environmental management
policies that avoid negative environmental impacts; to guarantee the
active and permanent participation of people in the planning,
execution and control of any activity that generates environmental
impacts. This state protection of the environment will go hand in hand
with the co-responsibility of citizens in its preservation and will be
articulated through a decentralised national system of environmental
management.
Relationship between the right to the city and the rights of nature
Based on the constitutional premise of considering all principles and
rights of equal hierarchy, it can be deduced that both the right to the
city and the rights of nature in their guarantee sustain the quality of
life of the inhabitants of a territory on an equal footing. It is therefore
necessary to demand that the State assume its active role and promote
policies aimed at achieving the good living that it advocates, framed in
the promotion and protection of human rights.
67
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
In this framework, both the exercise of the right to the city and the
rights of nature are currently classified as "human rights".
Thus, (Slavin, 2021, p. 68) points out that the right to the city is
categorised as an emerging human right, constituting that physical
space where people live and coexist, and in which they struggle to
achieve their full political, economic, social, cultural and ecological
realisation.
In a related sense, city and nature combine in harmony with respect to
the rights and guarantees of both, insofar as, as human beings, we need
it to exist and it needs us to protect it. In view of this, and taking into
account what is said by (Grijalva, 2023, p. 51) nature cannot defend
itself, it is human beings who, through political participation
processes, different types of consultation and legal actions, including
constitutional ones, can and must defend it. In fact, environmental
organisations and movements play a leading role in this defence,
articulating these possibilities for action and raising public awareness.
Thus, for example, the relationship between the right to the city and
the rights of nature, referring specifically to the right to a healthy
environment, is illustrated by the Monjas River case, which was raised
by several amici curiae in the two hearings held by the Constitutional
Court, which is worth highlighting due to the interest of citizens in
participating in this cause in defence of these rights, making it clear
that: "The pollution of the Monjas river, the undermining of its bed
and the erosion of its walls is not only a question of poor management
of the use of the natural resource, but its origin is to be found in the
very planning of the city " as I describe:
For Paola Romero who indicated "the case currently under
consideration constitutes an opportunity for the Court to analyse...the
application of the right to the city...from the facts it is clear that the
excess of flows contributed to the Monjas River, a consequence of an
absence of integral territorial planning, which guarantees a balance
between the growth of the city with the capacity of the natural systems,
has caused a risk to the lives of the inhabitants....
In the same way, Luis Germán Andrade in relation to the case stated
that "...in the current situation, citizens are deprived of having their
property and surroundings fulfil a social and environmental function
due to the difficulty that residing in such places would entail due to the
circumstances. All this makes this case a demographic and urban
challenge for the present and the future".
68
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
On the other hand, Daniel Rosero said: "I am moved to know that there
is a social impact and an environmental impact and that we still believe
that there is no one responsible for it, and this is because we are still
lacking the empathy that we need for our ecosystems, so I call you to
remember article 31 of the Constitution (...). )so you can see in this
figure, we have paving, we have cementing of various areas to be able
to improve our mobility and yet we have forgotten this social and
environmental function of our city, that is to say I have the right to live
in this, I can use the resources, but I also have a responsibility, and
who is in charge of making it easier for me to fulfil this responsibility?
, As you know.
From this participation, territorial and urban "planning" is seen as a
key instrument for the management of national and local governance
in cities so that their constituents can achieve sustainable development
with environmental and social criteria in the medium and long term.
The idea is from a collective position to adjust the rational use of
resources under the characteristics of the principles of planning,
efficiency, effectiveness, transparency, accountability and others to
which the work of the sectional public administrations must be
subjected.
Urban planning
One of the tools that allows the right to the city to be considered is
planning, and within the different planning instruments, the "urban
planning" instrument is highlighted, which should be aimed at
establishing the conditions for cities to be resilient to issues such as
climate change, natural disasters or natural phenomena. That is to say
that, within a city, nature can maintain and regenerate its vital cycles.
Consequently, the United Nations as an international organisation in
which a large number of countries in the world are part of in order to
promote the improvement of living standards, social progress, protect
the planet and human rights, in 2015 outlined the way to achieve
sustainable development through the structuring of 17 goals (SDGs) in
which number 11 corresponds to guidelines on "sustainable cities and
communities", together with the Urban Agenda 2030 and its goals are
the instruments that mark the course that cities should follow.
In short, planning a model that responds to the implementation of
these goals is a way to build a better city and one that sectional bodies
should consider in the exercise of their mandate.
69
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
The New Urban Agenda is the most important global guide that
provides clear guidance on how well-planned and managed
urbanisation can be a transformative force for accelerating the
achievement of the Sustainable Development Goals (SDGs),
represents a paradigm shift based on the science of cities, and sets
standards and principles for planning, building, developing, managing
and improving urban areas across its five main pillars: national urban
policies, urban legislation and regulations, urban planning and design,
local economy and municipal finance, and local implementation.
It is undeniable that the municipal administration, as a State entity, is
instituted to serve the community and through its management and
under its competencies it is obliged to protect the natural and cultural
heritage, to be a provider of efficient and quality public services that
will translate into making good living a reality; without forgetting that
in the urban fabric, citizen participation will be key in the decision
making process of the development, planning and management of the
city.
From what has been illustrated, the model of democratisation in the
urban sphere as stated by (Obando & Baeza, 2023, pp. 176-177) are
citizen participation, transparency and access to information,
decentralisation and local autonomy, as well as equality and social
justice. This model aims to promote more inclusive, participatory and
accountable governance in cities, allowing citizens to be actively
involved in the planning and development of their urban environment.
Consequently, these authors further encourage the implementation of
a human rights-based model of urban management, which involves
incorporating human rights principles and standards into all stages of
the process of planning, development and management of cities. It is
an approach that seeks to ensure that every person, regardless of their
origin or status, has access to a dignified life in the urban environment.
To achieve this, it will be necessary to establish a legal and policy
framework that recognises and protects human rights in the urban
context (pp. 177-178).
Public policy, regulatory and institutional planning instruments in
Ecuador
Prosperous, attractive and inclusive cities do not emerge
spontaneously, a phrase that is reproduced by the Centre for the
Future of Cities of the Tecnológico Monterrey and which is worth
highlighting insofar as building cities entails the sum of processes of
70
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
creation and application of a series of public policy instruments,
regulations and executive roles of the different levels of government.
It should be noted that, when talking about planning in this research,
we do so from the perspective of development planning "the universe"
and urban planning "the species" of which I have generated a
background or content above.
Development planning, according to a reference taken from the
IAEN's New State Collection, which cites SEMPLADES, is
fundamental for change, to organise the public function, to rescue its
efficiency and legitimacy, and to orient private activity towards
national objectives. Only integral coordination between state
institutions, central government and sectional bodies will make the
redistribution of wealth viable, which is indispensable for a fairer
society, what has been called Buen Vivir, understood as the
development of human capacities and talents and coexistence in
harmony with the environment.
And at the local level, development plans constitute the main
guidelines for decentralised autonomous governments with respect to
strategic development decisions in the territory. These will have a
long-term vision and will be implemented through the exercise of their
competences assigned by the Constitution of the Republic and the
Laws, as well as those transferred to them as a result of the
decentralisation process (Zamora & Carrion, 2013, pp. 15-16).
The growth of the urban population is evident and, according to
estimates developed by the UN by 2050, it will increase to the extent
that the urban space will be violated, with great impact for future
generations and for the management of local governments, which
must prepare themselves to face the different economic, social and
environmental problems that will arise.
A structured management system in which local regimes under the
constitutional and administrative law principles of decentralisation,
organisation, planning, accountability, transparency, evaluation and
co-responsibility, to name but a few, are those that need to be
implemented under a constitutional and legal regime that
circumscribes actions related to territorial and urban planning
between the different political and administrative entities of the State,
be they central, provincial, cantonal or parish governments.
71
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
As instruments that reflect the results of the effective management of
the appointing authorities of the local public administrations
"mayors", there is the "planning". In a framework that can achieve
sustainable development with a view to the present and future city,
"urban planning" will allow from effectiveness (capacity to obtain what
is proposed in the indicated time) and efficiency (to reach the
objectives and goals with fewer resources) to build the guarantee of
rights in favour of the citizens.
To this end, we ask ourselves whether Ecuador has regulatory and
technical-institutional planning instruments.
The answer is positive, and we start from a constitutional reference
taking into account the definition of the State that we currently
advocate and that is described in Art. 1 of the Constitution, which
describes us as a "constitutional State of rights (...)" whose
characteristics derive from the following: 1) The Constitution is the
Supreme Rule (Art. 424); 2) The Constitution has a normative
character and binding force on its own (Art. 426 final clause); 3) The
Constitution is of direct and immediate application by all judges,
courts, authorities and public servants (Art. 426 final clause); 4) The
Constitution is of direct and immediate application by all judges,
courts, authorities and public servants (Art. 426 second clause); 5) The
Constitution has a normative character and binding force on its own
(Art. 426 second clause); 6) The Constitution is of direct and
immediate application by all judges, courts, authorities and public
servants (Art. 426, second paragraph); 4) The Constitution establishes
a defined and broad set of Jurisdictional Guarantees; and, 5) Finally,
a constitutional justice is defined as the highest and main instance for
the resolution of conflicts arising from the violation of the
constitutional rights and guarantees of citizens and nature, in the
Ecuadorian case, through the establishment of the Constitutional
Court, the body that administers Constitutional Justice (Art. 429
CRE).
In the constitutional organic sphere, the Supreme Charter developed
the institutional infrastructure that refers to the organisation and
functions of the organs of power, among them the recognition of the
Municipal Decentralised Autonomous Governments with duly defined
competences and attributions, and under the principle of co-
responsibility hand in hand with the Central Government under
national planning instruments such as the so-called National
72
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
Development Plan, which constitute the technical roadmap that must
be followed by all the Public Administration in Ecuador.
From this constitutional analysis, there are various articles of the
Supreme Charter whose content corresponds to the motivation for the
development of planning within Ecuadorian territory and which
support decision-making in the public administration of local
authorities.
And in the infra-constitutional to be in tune with the Fundamental Law
we have the Organic Code of Territorial Organization, Autonomy and
Decentralization COOTAD published in the Official Register 303 on
October 19, 2010 is that legal norm that regulates all the activity of the
Decentralized Autonomous Governments GAD; the territorial
decentralization of the different levels of governments and the system
of competences; the procedures for the calculation and annual
distribution of the funds that the GADs will receive from the General
State Budget and will set the deadline for the creation of autonomous
regions, which at that time, since the creation of the Constitution in
2008, would not exceed eight years, which for this last item has not
been complied with this constitutional mandate.
On the other hand, the Organic Code of Planning and Public Finances
(COPFP) published in the second supplement of the Official Gazette
No. 306 on 22 October 2010. 306 on 22 October 2010 adds the
Ecuadorian legal system towards development planning, with the aim
of organising, regulating and linking the National Decentralised
System of Participatory Planning with the National System of Public
Finances, and regulating its functioning at different levels of the public
sector, the exercise of planning powers and the exercise of public
policy, within the framework of the development regime, the regime of
good living, and constitutional guarantees and rights.
In essence, this body of law establishes the guidelines for development,
which guide all levels of government in their actions, focusing among
other things on contributing to the exercise of the guarantee of citizens'
rights, the equitable allocation of public resources and management by
results; fostering citizen participation and social control in the
formulation of public policy; promoting territorial balance, within the
framework of the unity of the State, which recognises the social and
environmental function of property; and, through public policy,
promoting harmonious coexistence with nature, its recovery and
conservation.
73
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
In addition to all this, there is the Organic Law of Territorial Planning,
Use and Management of Land (LOOTUGS) and its Regulations, which
aim to establish the general principles and rules governing the exercise
of the powers of territorial planning, use and management of urban
and rural land, and their relationship with others that have a
significant impact on the territory or occupy it, so that they can be
effectively articulated, promote the equitable and balanced
development of the territory and promote the exercise of the right to
the city, to a safe and healthy habitat, and to adequate and dignified
housing, in compliance with the social and environmental function of
property and promoting an inclusive and integrating urban
development for the Good Living of people, in accordance with the
competencies of the different levels of government.
With the normative, technical and institutional tools of national
planning, the decentralised autonomous governments must, under
legal mandate (COFP), elaborate and align their Territorial
Development and Planning Plans (PDOT).
The (PDOT) is defined as (...)the planning instruments that contain
the guidelines of these levels of government with respect to strategic
development decisions and that allow for the concerted and
articulated management of the territory. They also aim to organise,
make compatible and harmonise strategic development decisions
regarding human settlements, economic and productive activities and
the management of natural resources according to territorial qualities,
through the definition of guidelines for the materialisation of the
desired territorial model, established by the respective level of
government. Its minimum contents will contain a diagnosis, a
proposal and a management model.
The elaboration of the (PDOT) is based on the knowledge and analysis
of the characteristics of each territory, the interests and needs of its
population; it is complemented by the proposal of the elected
authorities, contained in their work plan and will contain a Land Use
and Management Plan (PUGS), whose technical norm and regulation
will be issued by the Technical Council of Land Use and Management.
To operationalise the purpose of the PUGS, the following must be
considered: 1) The work plan of the elected authorities. 2) The
exclusive competences of the municipality or metropolitan district. 3)
Strategies of articulation with other levels of government and civil
society actors; and 4) Budgetary viability.
74
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
The Land Use and Management Plan (PUGS) will be made up of the
long-term contents that respond to the development objectives and the
desired territorial model as established in the municipal or
metropolitan development and territorial planning, and the provisions
corresponding to other scales of territorial planning, ensuring the best
use of the potential of the territory in terms of harmonious, sustainable
and sustainable development, based on the determination of the
urban-rural structure and the classification of the land. The PUGS will
be in force for a period of twelve years, and may be updated at the
beginning of each management period.
And from the institutional point of view, under the aforementioned
constitutional and legal basis, we have systems and technical
infrastructure with the capacity to guide and evaluate the planning
processes at the national and local level in Ecuador, based on the
creation of the National Decentralised System of Participatory
Planning with several entities such as: 1. the National Planning
Council; 2. the Technical Secretariat of the System; 3. the Planning
Councils of the Decentralised Autonomous Governments; 4. The
Sectoral Public Policy Councils of the Executive Function; 5. The
National Equality Councils; and, 6. The participatory bodies defined in
the Constitution of the Republic and the Law, such as the Citizens'
Councils, the Consultative Councils, the participatory bodies of the
Decentralised Autonomous Governments and special regimes and
others that are created for the exercise of participatory planning; and
7. The Planning and Development Council of the Amazon Special
Territorial District.
These legal, technical and institutional instruments are of great
relevance in urban management, as they constitute powerful legal and
systematic tools at the national and local levels that guide and
determine the decision making of those in charge of the public
commission in order to materialise the sustainable and sustainable
development of the city in balance with the natural heritage, reflected
in the effective guarantee of the rights of its inhabitants under the
regime of good living.
It is within this constitutional, legal and institutional framework
delimited under the "Monjas River" case that the Constitutional
Justice has prevailed with its ruling No. 2167-21-EP/22 when it
ordered integral reparation to the Metropolitan District Government,
which includes the issuing of a "green-blue" ordinance in the
municipal normative context.
75
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
Based on the above, and under the legislative power of the sectional
governments, the Court ordered the construction of this normative act
under the "blue-green" characteristics. According to the Court, this is
one of the most effective ways to promote "non-repetition" with the
creation of this ordinance, which aims to "establish the principles and
rules, taking into account the rights developed in this sentence, so that
the Monjas river basin and other similar basins in the Quito canton are
restored and treated in an integrated manner".
Seen in this way, the creation of the green-blue ordinance should be an
instrument that should "(...) value, respect, protect and restore nature
in its interrelations with the city and its inhabitants ("green"), and the
conservation and restoration of the sources, training, treatment,
supply, design, efficient use and sanitation of water and its ecosystems
("blue")".
In the content of this local regulation, the Autonomous Decentralised
Government of Quito conceives the need to create an entity with
financial and administrative autonomy under the name of the
Metropolitan Directorate, which will be in charge of organising all the
processes provided for in this regulatory act. In compliance with the
ruling issued by the Constitutional Court and in the exercise of the
legislative power held by the Quito Metropolitan Council, it approved
the blue-green infrastructure ordinance on 4 July 2023.
Blue-green infrastructure
This term is not new, as a precedent the European Commission in 2013
publicly officialised the European Green Infrastructure Strategy
(Green Infrastructure-Enhancing Europe's Natural Capital, European
Commission, Brussels, 6.5.2013) with the purpose that Green
Infrastructures are taken into account in land use planning at regional,
national or local level.
In this document, the European Strategy defines Green Infrastructure
as "a strategically planned network of natural and semi-natural areas
and other environmental features designed and managed to deliver a
wide range of ecosystem services. It includes green spaces (or blue
spaces in the case of aquatic ecosystems) and other physical features
in terrestrial (natural, rural and urban) and marine areas".
As a tool, Green Infrastructure (GI) contributes to the realisation of
not only environmental, but also economic and social benefits from
nature itself through healthy ecosystem services that in urban areas
76
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
support the well-being and health of their inhabitants, integrating in a
balanced way into spatial planning and territorial development.
Having healthy ecosystems within cities will mitigate the effects of
climate change, slow down erosion, reduce the carbon footprint,
control flooding, improve air quality, reduce the rise in temperature in
urban environments and reduce the "urban heat island" effect.
In addition, Green Infrastructure helps to avoid dependence on
infrastructure that is costly to build when nature can often provide
cheaper and more durable solutions. In contrast to grey, single-
purpose infrastructure, Green Infrastructure brings multiple benefits.
It does not constrain territorial development, but promotes natural
solutions if they are the best option.
Municipalities in favour of environmental improvement and the
habitat of citizens living in the cities they manage, within their
management are obliged to rethink the construction and
transformation of more resilient cities and in tendency to put
architecture in contact with nature "biophilic design", through the
implementation of a favourable political, legal and economic
framework to promote public policies and regulatory instruments that
promote the application of green-blue infrastructure for the benefit of
sustainable urban development.
Thus, from the technical and legal point of view, for example, the blue-
green infrastructure is defined by the Metropolitan Development and
Land Use Plan of the Municipal District, the Land Use and
Management Plan of the Metropolitan District, the Organic Law
Reforming the Organic Code of the Environment and the Code of
Territorial Organisation, Autonomy and Decentralisation.
Green-Blue Ordinance
The issuing of a blue-green ordinance by a local government is
considered by the Constitutional Court to be a reparation measure,
aimed at rehabilitation and non-repetition in the "Monjas River" case.
Against this background, the local administration considered this
normative framework identified as "Metropolitan Ordinance No.
0602023" as one that should value, respect, protect and restore nature
and its interrelations with the city and its inhabitants ("green"), and
the conservation and restoration of the sources, catchment, treatment,
77
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
supply, design, efficient use and sanitation of water and its ecosystems
("blue").
Likewise, in its content this ordinance gives importance to natural
ecosystems, especially related to water, within a city vision in which
the Green-Blue Infrastructure is a central component of the planning
for shared action between the authorities and the population in
accordance with the instruments in force and in adherence to the
operational strategies identified in the strategic objectives 2 and 3 of
the Metropolitan Development and Land Use Plan 2021-2023.
The explanatory memorandum provides a technical rationale for the
creation of the ordinance, which in summary details Quito as one of
the geographic areas of Ecuador that contains the greatest variety of
ecosystems and organisms. Its important biodiversity maintains
complex life support systems that have been the basis for the
development of human populations for thousands of years. Human
settlements have been located in areas as disparate as the lowlands and
quality of the northwest or the cold of the paramos, which has allowed
the emergence of diverse cultures. In recent decades, population
growth has led to the expansion of the urban sprawl and an increase in
land use changes for urbanisation, agriculture and/or natural resource
extraction.
In terms of content, the ordinance begins by detailing the Blue-Green
System as general considerations of this, its infrastructure from the
organisation, planning, integrated management (management and
regulation of the blue-green infrastructure; management of slopes,
rivers, streams and slopes; management of vegetation cover;
sustainable urban drainage systems; risk management), the
organisation, planning, integrated management (management and
regulation of the blue-green infrastructure; management of slopes,
rivers, streams and slopes; management of vegetation cover;
management of sustainable urban drainage systems; risk
management), the institutional framework of the Blue-Green System;
citizen participation; training, promotion and dissemination of the
Blue-Green System; financing and incentives of the Blue-Green
System; the sanctioning regime (infractions, fines, mitigating and
aggravating circumstances); general, transitory, reformatory,
derogatory and final provisions.
In short, the Blue-Green Infrastructure will be articulated in a Blue-
Green System, which in its context the ordinance indicates:
78
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
Article 6. The Blue Green System. - The Blue Green System allows the
coordination, articulation and integration of the actions of the
municipal institutions of the district with the citizenry, through local
policies, planning and management instruments, programmes,
projects and norms, which aim at the comprehensive management of
the blue green infrastructure of the Metropolitan District of Quito.
Article 7. Blue-Green Infrastructure. - The Blue-Green Infrastructure
of the Metropolitan District of Quito is a living, functional and
biodiverse structure, organised as a multi-scale network, with all the
natural, semi-natural and built, terrestrial and aquatic spaces that
make up the landscape. Managed to ensure the provision of ecosystem
services that increase the resilience of the District's population to
climate change, reducing the risk of disasters due to hydro-
meteorological phenomena and mass movements; and to provide
opportunities for environmental, social and economic benefits to the
inhabitants, both at rural and urban levels.
The green matrix is composed of corridors and elements such as
protected areas; protective forests; sustainable production areas;
green spaces found in public and private spaces; parks; squares;
buildings; heritage trees; and green corridors; streams, stream
territory, micro-watersheds, reservoirs, water sources, wetlands, and
geographical features at high non-mitigable risk.
Green elements and corridors may be established between public,
private and community owned areas.
The blue matrix comprises those natural and built components at the
landscape and city scale, such as rivers, streams, lakes, estuaries and
wetlands, as well as other elements designed to capture and infiltrate
rainwater, such as Sustainable Urban Drainage Systems.
The Green-Blue Infrastructure will be managed at three territorial
scales: urban, urban-rural and rural, which will be determined in the
corresponding technical norm, and will be in accordance with the
Metropolitan Development and Land Use Plan and the Land Use and
Management Plan.
Environmental responsibility and competences of the Municipal
governments
In any State governed by a Constitution (Larrea, 2019, pp. 5,6), which
establishes a representative and republican government, all those who
79
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
exercise public functions are accountable for their actions. In view of
this, all officials must faithfully comply with the positive rules of the
legal system and in the case of transgression or omission of their
obligations, responsibility arises, which implicitly carries the
correlative sanction whether in the sphere of Administrative,
Constitutional or Criminal Public Law or even in the Political sphere
when it is a dignitary.
In the same vein, the author cites (Bielsa, 1961, p. 281) when he states
that "The legal basis of liability lies in the violation of a legal duty, and
as the legal duty only exists for imputable subjects; and the civil
servant is one, it follows that his liability is based on the
aforementioned principle.
At this point, we highlight the strict liability for environmental
damage, constitutionally recognised in Ecuador, which specifies the
obligation to restore ecosystems, to abide by sanctions that require full
reparation and even the power of the State to take legal action against
public servants who, within their functions, by action or omission,
cause the damage. In the same sense, the Organic Environmental Code
urges public administrations to govern their activities according to
environmental principles, highlighting that "the polluter pays".
Due to the facts analysed, for the case at hand, although the sectional
public administration claimed to have carried out several studies to
address the problem of the "Monjas River", which evidences the
diligent role of its authorities, it was not enough. As the Constitutional
Court states "(...) The scope of the rights does not depend on the
capacity of the municipal authorities to execute their competences to
guarantee them", but on their effectiveness and efficiency in the results
that demonstrate the guarantee of rights.
The plaintiffs in the constitutional guarantee of extraordinary action
of protection presented before the Constitutional Court and from
which the content of Ruling No.2167-21-EP/22 "el río Monjas"
originated, alleged:
"(...) that the technical studies and planning have remained mere
documents and mere proposals that have not been executed by the
authorities. That is to say, those studies, far from becoming a supposed
protection of constitutional rights, in practice are proof of such a
violation, since they precisely establish the serious level of
contamination that exists in the area due to the municipality's own
irresponsibility in the management of wastewater, as well as the urgent
80
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
need to take definitive measures in accordance with the magnitude of
the problem and the damage caused (...).
In this sense, the responsibility of the municipal governments cannot
be evaded; due to their competencies, the entities that make up the
local autonomous regime in their management must establish, among
their prevention and control activities, effective mechanisms to protect
the environment and care for the water basins. In the development of
activities generated by the sectional administrations, their actions or
omissions will have repercussions on the enjoyment, enjoyment or
violation of the rights of the inhabitants living in the cities.
Therefore, the State, through its different levels of government and
public institutional infrastructure, including the local regime, has the
duty to protect the environment, nature, water basins and their
inhabitants, which corresponds to sustainable development and the
right to the city.
In the search for a synthesis between environment and development,
for an adequate (cyclical) management of resources and greater
governance of conflicts, what we now call sustainable development is
placed, which for cities is a development capable of sustaining their
growth with more homeostatic models of resource use, compatible
with more and more human qualities of life for all inhabitants (ECLAC
& United Nations, 2022, p. 55).
Sustainability, as stated by (Grijalva, 2023, p. 46) refers to the
intergenerational continuity of resources, and it is here that the
Constitution enriches the concept by relating it to good living, which
includes not only such continuity but also a balanced relationship
between human beings and nature.
In this context, the role of local governments and their responsibility
in the materialisation of rights to the city and to nature is fundamental,
as the proximity they maintain with their inhabitants and the urban
environment they administer allows them to know their needs up
close.
And in terms of guaranteeing under their governance the so-called
rights of good living, in which the right of people to live in a healthy,
ecologically balanced and pollution-free environment is immersed, the
municipalities under their tutelage have the constitutional
decentralisation of the competence of environmental management,
which allows them to concurrently establish the appropriate policies
81
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
and means to comply with the constitutional and legal mandates for
the well-being of the community and of nature as a whole.
Materials and Methods
The methodological approach is qualitative and focuses on a case
analysis design based on the theoretical and legal aspects of the right
to the city and the rights of nature. It is necessary to analyse the right
to the city in its entirety, as it derives from it the protection of various
rights, including the rights of nature and others that are linked to the
environment.
Theoretical methods applicable to the qualitative model are: the
historical, analytical, case study and hermeneutic methods.
The historical approach is based on the exhaustive description of the
characteristics of the phenomena that have attracted attention in the
content and analysis of the case under review, as well as the reality of
public management in the materialisation of the development of its
competences, observing the legal-constitutional evolution that
sustains good living and the guarantee of its rights.
From the data obtained in the historical context, through the analytical
method from the particular to the general, the cause-effect of the
phenomena are examined in order to answer research questions that
allow the development of solid proposals that strengthen local
authorities in the construction of the right to the city.
The hermeneutic method focuses on the study and critical analysis of
the legal, constitutional, legal and regulatory norms that regulate the
materialisation of the right to the city and rights of nature. It also
examines the constitutional jurisprudence in which the highest body
of constitutional control recognises the violation of the right to the city
and the right to nature and orders its reparation.
Results
The research, in correspondence with the formulated objectives,
provides theoretical, normative and methodological foundations that
shape the right to the city and the rights of nature, superimposing the
82
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
importance of the role of local governments in the guarantee of rights
and the responsibility of public management with the fulfilment of
constitutional and legal precepts aimed at contributing to the
effectiveness of the so-called principle of good public administration
in favour of cities, citizens and nature.
In the development of this work, it has become pertinent to question
the following:
How can Constitutional Jurisprudence be considered a tool of legal
hermeneutics, which imposes local governments to comply with the
legal system in order to guarantee rights, including the right to the city
and the right to nature?
How does effective public management, based on responsibility, ethics
and legality, transcend decision-making in the development of its
competencies for the benefit of the city, citizens and nature?
Conclusions
Right to the City and Rights of Nature are intrinsically related and are
also considered human rights. People need nature for our existence
and nature needs us to protect, conserve and care for it.
The ecological declaration of the human right to a healthy
environment in which people want to live is connected with that of
cities under this same quality because of their interdependence.
Therefore, their practical economic, social, cultural and environmental
function in the city must be made effective.
There are various constitutional, legal, technical and institutional
instruments available to us for the exercise of the right to the city and
the rights of nature, aimed at building the city we want to live in. It is
therefore inconceivable that having a Supreme Norm guaranteeing the
rights of people, the city and nature, a legal system and instruments
that guide public action in favour of guaranteeing the good life, the
results are contrary to what is proclaimed.
The municipal mandate must be implemented under the vision of an
urban-ecological local government in which, with the technical
application of its planning instruments, human beings and nature can
coexist in balance in their environment, under a resilient and just city
transformation approach that takes into account the rights of its
inhabitants.
83
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
This reality must be reflected in the effective management of the
dignitaries in local administrations, who have a fundamental role in
the exercise of guaranteeing the rights of the city and of nature, and
who must be subject to mechanisms of responsibility and sanctions
from the political, administrative, civil or criminal point of view for the
non-fulfilment of their duties focused on the service to the community
and the environment. In this way, public power would be limited by
the Constitution and the law.
It is also everyone's responsibility to take care of the cities where we
live and where we wish to live in harmony with nature, which is why
the protagonism and participation of civil society is imperative,
because in this way the rights of citizens and nature become a link for
the State, if they are not respected or are not fulfilled, the citizen and
nature have the means available for constitutional justice to act
expeditiously.
And although the Constitutional Justice in the last four years has had
real protagonism in its jurisprudence regarding the right to the city
and the rights of nature, referring to the "Monjas River" case, in its
ruling, with the aim of rehabilitating and not repeating these events, it
ordered the Municipality of Quito to issue a Green-Blue ordinance as
a reparation measure, which as a normative act is an instrument of
prevention that in its structure contributes to the achievement of
ecological, social and economic benefits through procedures based on
nature. In time and space it will be necessary to evaluate the
effectiveness of this ordinance as a true instrument of redress that
seeks to restore both ecological balance and social justice in urban
contexts and not to create bureaucratic departments that waste the
local budget without results.
Prior to the creation of the ordinance, the Constitution and the Law
stress that Municipalities have concurrently the obligation to
"regulate, prevent and control environmental pollution (...)" and have
the competence to 1. )" and have the competence to 1) care for the
streams and watersheds within their territory, and 2) to ensure water
sanitation and stormwater treatment; i.e. within their executive and
management they have the autonomy to make decisions on their
intervention in the implementation of concrete public policies that
improve the integration of the right to the city and the rights of nature
in urban planning, including provisions to strengthen the
implementation of the Green-Blue ordinance as an effective redress
84
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
mechanism in the promotion of an urban environment in harmony
with the environment.
References
Ayala, A. D. (2017). El derecho a la ciudad sobre dos ruedas. Resistencia(6),
58. Obtenido de
https://repositorio.uasb.edu.ec/bitstream/10644/5918/1/14-OT-
Ayala.pdf
Bielsa, R. (1961). Derecho Constitucional y Administrativo (Vol. Tomo III).
Buenos Aires, Argentina: Depalma.
Borja, J. (2012). Revolución urbana y derechos ciudadanos: Claves para
interpretar las contradicciones de la ciudad actual. Barcelona:
Universitat de Barcelona.
Breilh, P. y. (2009). Hacia una construcción emancipadora de derecho a la
salud. Quito: Universidad Andina Simón Bolivar sede Ecuador,
Programa Andino de Derecho Humanos Ediciones Abya-Yala.
Obtenido de http://hdl.handle.net/10644/948
Carrión, F. (2019). El espacio público es una relación no un espacio. En E. F.
Dammert-Guardia, Derecho a la Ciudad una evocación de las
transformaciones urbanas en América Latina. Lima CLACS, Flacso-
Ecuador, IFEA: Colección Grupos de Trabajo.
Carrión, F. M. (2019). El espacio público es una relación no un espacio. En
E. F. Dammert-Guardia, Derecho a la Ciudad una evocación de las
transformaciones urbanas en América Latina. Lima-Ecuador: Grupo
de Trabajo Desigualdades urbanas. Obtenido de
https://biblioteca.clacso.edu.ar/clacso/gt/20200519104921/Derecho-a-
la-ciudad.pdf
CEPAL & Naciones Unidas, E. (2022). Las nuevas funciones urbanas:
gestión para la ciudad sostenible - Serie 48 Medio ambiente y
desarrollo (Vol. 48). Santiago de Chile: División de medio ambiente y
asentamientos humanos. Obtenido de
https://repositorio.cepal.org/server/api/core/bitstreams/fd01b7fc-564c-
4fb5-bd92-20ddc5d08624/content
Grijalva, A. (2023). Derechos de la Naturaleza y derechos humanos. (B. i.
Spondilus, Ed.) Obtenido de Universidad Andina Simón Bolivar, Sede
Ecuador: https://www.uasb.edu.ec/papers/derechos-de-la-naturaleza-y-
derechos-humanos/
Harvey, D. (2013). Ciudades rebeldes. Del derecho a la ciudad a la
revolución urbana. Madrid: Akal.
85
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
Larrea, A. M. (2019). El juicio político y la responsabilidad de los altos
funcionarios del Estado. Quito, Ecuador: Ediciones Legales EDLE S.A.
Llop, J. M., & Vivanco, L. (2017). El Derecho a la Ciudad en el contexto de
la Agenda Urbana para ciudades intermedias en Ecuador. (R. i.
Cuenca, Ed.) Cuenca: Universidad de Cuenca - Facultad de
Arquitectura y Urbanismo. Obtenido de
http://dspace.ucuenca.edu.ec/handle/123456789/29885
Mármol, P. E. (2023). Garantías Constitucionales y Protección
Jurisdiccional de los Derechos de la Naturaleza en la República del
Ecuador. Guayaquil, Guayas, Ecuador.
Molano, C. F. (2016). El derecho a la ciudad: de Henri Lefebvre a los análisis
sobre ciudad capitalista contemporanea. FOLIOS, Segundo
semestre(44), 4. Obtenido de
http://www.scielo.org.co/pdf/folios/n44/n44a01.pdf
Moreno, M. L. (abril de 2022). El derecho a la ciudad: un intento de síntesis
desde el Derecho Administrativo. Instituto Vaso de Administración
Pública IVAP(122). doi:https://doi.org/10.47623/ivap-
rvap.122.2022.09
Obando & Baeza, G. &. (2023). Manual de Derecho Administrativo para
Gobiernos Autónomos Descentralizados. Quito, Ecuador: Cevallos
Editora-Jurídica.
Obando, G., & Baeza, J. (2023). Manual de Derecho Administrativo para
Gobiernos Autónomos Descentralizados. Quito, Ecuador: Editorial
Jurídica Cevallos.
Slavin, P. E. (2021). La lucha por el Derecho a la Ciudad. Mar del Plata,
Argentina: Universidad Nacional de mar del Plata.
Subía & Mendoza & Proaño, A. (2022). El derecho a la ciudad en Ecuador:
desde un enfoque de derechos humanos. En E. A. Pinto, El derecho a
la ciudad en el contexto ecuatoriano (Vol. Primera edición digital).
Otavalo-Ecuador: Universidad de Otavalo.
Wilhelmi, M. A. (2008). Derechos: enunciación y principios de aplicación.
En M. d. Ecuador, Desafíos constitucionales. La constitución
ecuatoriana del 2008 en perspectiva (pág. 410). Quito, Ecuador:
Editores: Rámiro Ávila Santamaría, Agustín Grijalva Jimenez y Rubén
Martinez Dalmau.
Zamora & Carrion, G. &. (2013). Planificación del Desarrollo y
Ordenamiento Territorial (Colección Nuevo Estado ed., Vol. Segunda
edición). Quito, Ecuador: Instituto de Altos Estudios Nacionales IAEN.
Obtenido de
file:///C:/Users/Sandra/Dropbox/SANDRA%20TAPIA/TESIS%20DO
CTORAL/MATERIAL%20PARA%20TESIS%20PHD/Planificacion-
del-desarrollo-y-ordenamiento-territorial%202013.pdf
86
Received Febrary 08, 2024/ Approved May 25, 2024 Pages: 55 -86
eISSN: 2600-5743
Centro Sur Vol. 8 No. 3 – July - September
Ziccardi, A. (2019). Las nuevas políticas urbanas y el derecho a la ciudad. En
F. C. Dammert-Guardia, Derecho a la ciudad una evocación de las
transformaciones urbanas en América Latina (pág. 403). Lima:
CLACSO, Flacso-Ecuador, IFEA: Colección Grupos de Trabajo.
