Ecuador is an enthusiastic participant in the international human rights system. Unfortunately, its eagerness to sign treaties has not been matched by a comparable commitment to follow through on treaty obligations. Ecuador has ratified all of the major human rights treaties in both the UN and OAS systems (including the San Salvador Protocol on ESCR), along with the principal ILO treaties (including ILO 169 on indigenous peoples). Ecuador has made only minor reservations to its ratifications, and none on the International Covenant on Economic, Social and Cultural Rights (ICCPR) or the Covenant on the Elimination of Discrimination against Woman (CEDAW).
Ecuador plays an active role on various human rights bodies in both the UN and OAS systems. Among the most notable posts: first UN High Commissioner for Human Rights; longstanding member of the UN Committee on ESCR; member of the UN Committee on the Elimination of Discrimination against Women; president of the Interamerican Court of Human Rights. An Ecuadorian was also instrumental in drafting the International Convention on the Elimination of All Forms of Racial Discrimination and Ecuador has frequently responded to requests for information from UN working groups and Special Rapportuers.
Ecuador´s record of complaince with these bodies is mixed. As the former government representative to the UN Human Rights Committee laments “The conduct of Ecuador in front of international organizations has had unfortunate failings. First, the dates for the presentation of reports has not been respected and we have been confronted with justified criticism for the excessive tardiness. Secondly, the reports have been deficient and have not complied with the norms established for their presentation. Finally, the delegations that have appeared before the UN Human Rights Committee have not always been of sufficiently high office nor have they had command over the required information.” (Prado Interview). Though often late, Ecuador has submitted reports to all of the main UN human rights bodies, with the notable exception of the Committee on Economic, Social and Cultural Rights, for which it is now long overdue. In 1994, Ecuador allowed an on-site investigation by the OAS Human Rights Commission and has complied with recent findings of the Commission and Court in a handful of high profile cases involving torture, disappearances and arbitrary detention. .
Ecuador’s current Constitution, adopted by the National Congress in May of 1996, was the product of considerable debate and popular consultation. It strengthened and elaborated on both CPR and ESCR and incorporates human treaties immediately into the legal system upon their ratification (“self-executing”). The Constitution is one of the most progressive constitutions in Latin America and provides for the full enjoyment of all the CPR and ESCR as well as a number of additional guarantees for vulnerable populations. The Constitution declares that “the highest duty of the State [is to] respect, and ensure respect, for human rights” (art. 19) and that the Ecuadorian State “guarantees to all individuals, male and female, who are subject to its jurisdiction, free and effective exercise and enjoyment of the civil, political, economic, social and cultural rights enunciated in the declarations, covenants, agreements and other international instruments in force” (art. 20).
The Constitution includes two important provisions for enforcing human rights guarantees: the right of “amparo”, and habeas corpus. The right of amparo provides that “any person may apply to the organs of the judiciary designated by law and request the adoption of urgent measures to halt, prevent the commission of, or immediately remedy the consequences of, an unlawful act by a public authority violating any of the constitutional rights and which may cause imminent, serious and irreparable harm.” If the judge determines the action to be well founded, “he shall order the suspension of any current or imminent action that may result in a violation of the constitutional right” (art. 31) This is a broad-based protection similar to an injunction in common law systems. Being such a new tool, most civil society groups have yet to take advantage of this right and are just learning about its potential use.
Habeas corpus predates the current constitution and provides a powerful remedy for challenging illegal detentions. Unlike many countries, in Ecuador it is the mayor that reviews habeas corpus petitions, rather than a judge. Accordingly, the usefulness of the remedy depends largely on the individual disposition of the mayor, and challenges under habeas corpus differ greatly between cities. In Quito, for example, it is an often used and effective remedy, whereas in Guayaquil it is much less commonly employed. Alongside Habeas Corpus, the new Constitution added the right of Habeas data that guarantees any person access to documents, databases and reports about that person held by public authorities. It also allows a judge to modify or eliminate these reports on the request of the person.
The new Constitution contains a separate chapter devoted to ESCR which includes an extensive elaboration of rights and duties relating to labor, health, education, social security, family, vulnerable populations, and culture. A separate chapter on collective rights includes articles on minority rights, environmental rights, and consumer rights. These two chapters contain a number of ambitious guarantees and underscore the overall importance placed on ESCR. Among the most notable provisions are obligations to designate a stipulated percentage of the annual budget to health and education, guarantees of bilingual education, communal land-holdings, consultation and participation in development projects, prioritization of services for vulnerable populations, and special labor protections for women.
The new Constitution established and strengthened institutions relevant to human rights protection. Most significantly, the Constitution established Ecuador’s first “Defensor del Pueblo” (ombudsman). Under the Constitution, the Defensor del Pueblo is required to initiate or sponsor habeas corpus and amparo actions, and to carry out other functions aimed at defending the rights of persons and communities. The Defensor del Pueblo's Office Organization Act of 1997 elaborates upon the Defensor`s responsibilities, which include: initiating unconstitutionality motions in the Constitutional Court; intervening as a mediator in disputes with public authorities; taking efforts to protect the environment and cultural heritage; promoting human rights training; visiting prisons to verify respect for human rights; presenting draft legislation on behalf of civil society; providing information for the purposes of the signature and ratification of international covenants, conventions or declarations relating to human rights and ensuring their effective execution; and reporting annually to Congress on the human rights situation in Ecuador. Ombudsmen have been established in the majority of the country’s provinces and have already had an impact on human rights issues. Of particular relevance to ESCR, the ombudsmen are charged with supervising the provision of basic services, such as water, electricity and access to medical care.
The Constitution also strengthened the Constitutional Court as an autonomous body whose primary function is to ensure observance of the Constitution and its rights provisions. The Court’s nine members are selected by the three branches of the State (legislative, executive and judicial), each designating three members. The Constitutional Court has jurisdiction over the unconstitutionality of laws, decrees, ordinances, and administrative acts by any public authority. A declaration of unconstitutionality entails repeal of the act. In addition the Court can decide on unconstitutionality objections raised by the President of the Republic against bills approved by Congress, settle conflicts on competence or responsibilities assigned by the Constitution, and intervene in the protection of the fundamental rights of the individual. One of the primary functions of the Constitutional Court is to hear appeals to decisions denying Constitutional rights and brought under the remedy of amparo. The decisions of the Court are final.
Resort to the Court’s precursor, the Constitutional Tribunal, by human rights groups was common in the 1980s, but is rarely used at present. While the Court has shown some independence in its decisions, it lacks the political power to ensure compliance and many successful decisions have been undermined by a simple refusal to respect them by the relevant public institutions. Two significant recent decisions by the Court declared unconstitutional the criminalization of private homosexual relations between consenting adults and the extra detention of persons charged on a Narcotics law.
Congress has a separate Commission on Human Rights, which is composed of legislators representing all political affiliations and whose basic aims are the following: analyzing and verifying alleged human rights violations; instituting administrative and criminal proceedings against any officials who conceal, order or commit violations of human rights; encouraging human rights education; investigating prison conditions; proposing constitutional and legal reforms to strengthen human rights; overseeing petitions brought against Ecuador in front of international human rights bodies; promoting human rights in regional Latin American bodies; and calling for declarations by Congress in the most serious cases of human rights violations. The Congressional Commission on Human Rights has yet to realize its potential and is largely stymied by party divisions.
Two ad hoc Commissions established in the mid-nineties to examine human rights violations going back to the late 1970s have been effectively disbanded. Other institutions covering womens’ and indigenous and minority rights have been recently established and are increasingly important in terms of ensuring priority and protections to these populations.
Ecuadorian laws, like its Constitutions, are generally progressive towards human rights. This is particularly notable in the field of labor laws, which provide extensive trade union rights and mandatory benefits as well as requiring companies to provide 12 weeks of maternity leave, prohibiting the firing of women due to pregnancy, and requiring day care centers in companies with more than 35 female employees. In recent years, the Ecuadorian government, working closely with civil society has also elaborated a number of National Plans covering human rights, women, children, and development more generally, that establish an ambitious set of standards for government action in these areas. The executive and congressional branches have officially adopted these plans. However, government compliance with the “National Plans” for women and children, both adopted in the early 1990s, has been disappointing and widely criticized.
The government has discussed these plans in its reports to UN bodies:
The National Plan of Action established diagnoses, objectives, strategies and projects in the areas of education, health, water supply, sanitation, nutrition and children living in especially difficult circumstances. The Plan is being implemented in part by the institutions of the Social Front and by NGOs. The Office of the Secretary-General for Planning carries out limited follow-up to the Plan, and there is no evidence that it has been able to guarantee priority for the allocation of resources for its implementation. The Committee on the National Plan of Action has not met since the adoption of the Plan, and therefore its responsibilities are not being met. Some of the constraints on implementation of the Plan relate to the fact that it was closely linked to the Government in power at the time of its development and to a policy of public spending, and was oriented towards civil society. (Ecuador report to CRC)
Ecuador has incorporated in its National Development Plan a set of gender—perspective strategies, policies and goals in each of the critical areas covered in the Platform for Action approved at the Fourth World Conference on Women in Beijing in September 1995. These are aimed at: alleviating poverty; eliminating violence against women; increasing participation of women in the benefits of development, particularly with regard to education and training, health, employment and the environment; and increasing women's participation in politics and in decision—making at all levels.
A 1995 Law Against Violence Affecting Women and Children, drafted by a coalition of women's organizations, criminalizes spousal abuse for the first time, including physical, sexual, and psychological abuse. It also creates family courts and reforms the Penal Code to give courts the power to separate an abusive spouse from the home. In 1994, the government established the "Comisaria de la Mujer," or Women's Bureau, which accepts complaints about abuse of women and passes them on to the Prosecutors office.