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may bring a civil action, providing they are
able to demonstrate their interest in the claim
(in the United Kingdom, Austria, France and
Italy, together with South Africa and the
Philippines outside Europe). A different form
of protection, through an “environmental
ombudsman” (or expert committees operating
within the structure of the ombudsman) is
offered by the legal systems of other countries,
both inside and outside Europe (Austria,
Greece, Hungary, Kenya and Costa Rica).
Even wider protection is offered in countries where legal action can be taken without the plaintiff
being obliged to demonstrate a personal and direct interest in the suit. In these cases, the individual
citizen directly exercises a number of functions in defence of constitutional legality, including
environmental protection. This is so in a number of countries in Europe (Spain, Portugal, the
Netherlands and Estonia), South America (Brazil, Peru, Colombia and Costa Rica) and Africa
(Sudan and Kenya). In particular, in 2010, the last subsection of art. 70 of the new Constitution of
Kenya specifies that the plaintiff need not demonstrate that any person has incurred loss or suffered
injury (Mwenda & Kibutu, 2012).
A step forward at supranational level came in the form of Directive 2004/35/CE of the European
Parliament and of the Council of the European Union of 21 April 2004 on environmental liability
with regard to the prevention and remedying of environmental damage. Based on the “polluter
pays” principle, this Directive was issued with the aim of preventing and remedying damage to
wildlife, plants, natural habitats, water and the land.
There is thus a tendency for Nature to pass from object (res) to entity of collective public interest
and thus the holder of legal rights, although without legal capacity. Its protection is guaranteed by
means of representatives/guardians (associations, groups or even individual citizens) who initiate
civil proceedings, with Mother Earth the sole beneficiary of compensation for damages.
In Ecuador in 2011, the first sentence in favour of nature, in this case the Vilcabamba River, was
passed by the Provincial Court of Loja. According to this court, through an “acción de protección”,
the plaintiffs had exercised “the principle of
universal jurisdiction” in favour of Nature. The
sentence goes on to state that: (1) the
protective action pursuant to art. 88 of the
Constitution is the only suitable and effective
procedural remedy to repair the environmental
damage promptly, (2) the precautionary
principle must be interpreted in terms of the
probability of damage, not its certainty, (3) the
burden of proof relative to the environmental
impact lies with the counterparty in accordance with art. 397, para. 1, of the Constitution. The
Court also affirms that (1) the criterion for determining the damages to Nature is generational, in
other words, that the damages will also impact future generations; and that (2) the balancing of
conflicting interests (such as the right of Nature and the right to development) must be resolved by

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