Estrellita the Woolly Monkey and the Ecuadorian Constitutional Court

We didn’t think the case could succeed. When Ecuadorian environmental law attorney Hugo Echeverría contacted the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School and the Nonhuman Rights Project to draft an amicus brief for the Ecuadorian Constitutional Court on animal rights, we were initially skeptical because woolly monkey Estrellita had died before the writ of habeas corpus was filed.

Habeas corpus means “show me the body” in Latin. This century-old legal procedure challenges an individual’s imprisonment, who must be brought to court, so a judge can decide whether the detention is unlawful and, if it is, order the individual’s freedom. In Estrellita’s case, there was no (live) body to bring to court, and thus, there was no individual to set free. In other habeas corpus cases filed on behalf of nonhuman animals in other countries, the animal was always alive and suffering from the effects of captivity in a zoo or lab. Hence, this peculiarity of Estrellita’s case, added to the fact that it was the first writ of habeas corpus filed on behalf of an animal in Ecuador, explains our initial uncertainty about the scope of the case.

However, it didn’t take us long to realize that this case represented an enormous opportunity to expand animal rights in Ecuador in a novel way: through the constitutional rights of nature. The 2008 Ecuadorian Constitution recognizes nature as a rights holder, so any person or community can request a court or public authority to protect the rights of nature or Pachamama, the Quechua word for Mother Earth.

Until the Constitutional Court’s ruling in Estrellita’s case, the rights of nature had only referred to the protection of animals considered as species, not as individuals. Estrellita’s case offered us the perfect opportunity to argue that the rights of nature also protect individual animals. We’d like to lay out for you the main arguments we used to convince the court to recognize individual animals as subjects of rights protected by the rights of nature and the positive consequences of the Constitutional Court’s landmark ruling.

Estrellita’s Story

At this point, you may be wondering what the writ of habeas corpus and the rights of nature have to do with a woolly monkey named Estrellita. Shouldn’t Estrellita live in the Amazon Forest hundreds of miles away from human interference and, thus, from bureaucratic legal proceedings? And the answer should be yes, but sadly, Ecuador has a massive illegal wildlife market. Millions of animals are killed, captured, stuffed into boxes, luggage and even toilet paper rolls, and smuggled across the country or border to be sold as pets or to collectors who pay thousands of dollars for them.

Estrellita was poached when she was only one month old. Hunters usually shoot the mothers to capture the babies falling from the treetops, desperately grasping onto their dying mothers. After being smuggled around Ecuador, Estrellita was probably sold at an illegal wildlife market in Ambato to a woman, whom we’ll call A.B., with whom she lived for 18 years. Estrellita learned to drink from cups, sit on chairs, and wear clothes and diapers like a human baby. She went unnoticed by neighbors until 2019, when someone anonymously tipped off the environmental authority about a monkey living in a private home.The Ecuadorian Environmental Code prohibits the possession of wild animals without a license, which is generally not issued to individuals, so Estrellita was confiscated on September 11, 2019. She was put in quarantine at the San Martín de Baños Zoo, where she died less than a month later from a cardiorespiratory arrest on October 9, 2019. The abrupt change of circumstances and her physical condition upon entry to the zoo probably caused her death.

After Estrellita was confiscated, A.B. filed a writ of habeas corpus requesting Estrellita’s return and the issuance of a wildlife license to her. It was apparently unknown to A.B. that Estrellita had already died in the zoo. She claimed that the zoo hadn’t informed her about Estrellita’s death before seeking her release. The lower court denied the habeas claim, which was later modified to refer to Estrellita’s corpse, but the Court of Appeals affirmed the denial. 

However, the Constitutional Court of Ecuador selected the case to develop binding jurisprudence on animal rights and the rights of nature, and specifically asked the following three questions:

• Can an animal be considered as a subject of rights?
• What is the scope of the writ of habeas corpus in relation to the protection of other living beings?
• Can nonhuman animals be considered as subjects of rights protected by the rights of nature that are provided for in Article 71 of the Constitution?

 Our Amicus Brief

We co-authored the brief with attorneys Steven Wise and Kevin Schneider from the Nonhuman Rights Project, who mainly worked on the habeas corpus question, while we worked on the rights of nature question— the crucial aspect of the case. In our brief, we responded that (1) nonhuman animals can be the subjects of rights, (2) the writ of habeas corpus can be appropriate for nonhuman animals, and (3) nonhuman animals are subjects of rights protected by the rights of nature.

 In our answer to question 3, we wanted to convince the Constitutional Court that the rights of nature protect individual animals, not only species. Species protection has not been able to stop the mass extinction of animals, and animals continue dying and suffering miserably because of poaching, hunting and habitat loss due to the expansion of farming land for livestock, cities and roads. 

We had two main arguments to claim that the rights of nature include individual animals. First, species are made up of individuals, so hunting or poaching individuals ends up detrimentally affecting the species. For example, in some Amazonian regions, there are only about ten jaguars remaining. If we kill one jaguar, we’re exterminating 10% of the jaguar population.

However, killing and capturing individual animals is also detrimental for species that are not critically endangered. For example, woolly monkeys like Estrellita are sensitive to human presence in their habitat, so the presence of hunters disturbs their reproductive cycles, which is slow since females usually have one baby at a time and invest several years in raising them.

Moreover, countless animals live in complex societies and develop deep emotional bonds with other members of their communities, so hunting and poaching cause extreme suffering, destroying families and tearing friends apart. Animals suffering from loss and grief isn’t trivial for the conservation of the species, as researchers have long established how chronic stress is physically and mentally detrimental to animals, leaving them vulnerable to severe pathologies such as infections and depression.

The truth is that we don’t know whom we’re hunting or poaching. We may be killing a mother caring for her infants, who may not survive without a mother. Or we may be killing babies and leaving mothers vulnerable to physical and mental illness caused by the loss. We may be killing the matriarch or alpha male, essential to the community’s survival. For example, senior elephant matriarchs have the knowledge to lead the herd during extreme droughts to water sources that they remember visiting many years ago. If a hunter kills one of these matriarchs, the herd may perish because the other elephants do not have knowledge of those water sources. Finally, we may be killing animals belonging to different families, destroying the group’s genetic diversity, and leaving only siblings who may not mate. 

Second, we argued that if the Ecuadorian Constitutional Court decided to exclude individual animals from the protection of the rights of nature, then it would be forced to answer an impossible question: How many animals would have to die to trigger the rights of nature? 2, 10 or 100? Or some other equally arbitrary number? Hunters could easily bypass the rights of nature by killing fewer animals than those determined by the Court’s ruling.

The Constitutional Court’s Ruling

Seven of the nine judges of the Constitutional Court of Ecuador decided to recognize Estrellita as a subject of rights protected by the rights of nature, thereby acknowledging that animal rights constitute a specific dimension of the rights of nature with its own particularities. The Court took into consideration the arguments advanced in the amicus brief that challenged the view that regards only ecosystems and species as protected by the rights of nature, not individuals.

Additionally, the Constitutional Court also outlined the rights wild animals are entitled to such as the:

• Right to exist
• Right not to be hunted, fished, captured, collected, extracted, kept, detained, trafficked, traded or exchanged
• Right to the free development of their animal behavior, which includes 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 and the right to freely develop their biological cycles, processes and interactions
• Right to live in harmony
• Right to a habitat
• Right to demand their rights from the competent authorities

However, even though Estrellita was a “wild” animal, the Court did not limit its discussion to woolly monkeys or wild animals generally. In fact, the decision speaks about all animals. The Court asked, “To address the question of whether a wild animal such as Estrellita, the chorongo monkey, is a subject of rights, first of all, it is important to determine whether animals, in general, can be considered as subjects of rights.” This explains why the Court ordered Congress to develop a general bill on animal rights. Furthermore, lower courts are using the list of rights outlined in the Court’s ruling for companion animals. 

Regarding the scope of the habeas corpus, the Constitutional Court considered that although the habeas corpus was inadmissible in Estrellita’s case due to her death, it can be an appropriate action to request the release of a wild animal depending on the circumstances of the case.  

Finally, the Constitutional Court of Ecuador also ordered the Ministry of Environment to develop a protocol that considers and evaluates the particular circumstances of captive wild animals to guarantee their protection, as proposed by the brief. Moreover, the Court ordered the Ombudsman and Congress to prepare and approve a bill on the rights of animals based on the rights and principles developed in the ruling, which is currently being debated in Congress.

Even though the Constitutional Court also offered arguments to defend the human consumption of animals, Estrellita’s ruling has had a general positive effect in Ecuador and has opened the door to argue for animal rights through the rights of nature in Latin America. In Ecuador, lower court judges are starting to use Estrellita’s ruling not only to protect other wild animals like sloths but also companion animals like cats and dogs. We believe it is just a matter of time before the rights of nature are used to argue against the exploitation of an even broader range of animals.

In other Latin American countries like Argentina, advocates have started viewing the rights of nature as a path to argue for animal rights in court, even when the rights of nature aren’t explicitly recognized in their legal system. In contrast, other countries like Chile included the rights of nature and animal protection in their constitutional convention debates (which did not result in the adoption of a new constitution in Chile). Hence, we believe that rights of nature and animal rights are able to complement each other and are not necessarily in conflict.