By Sheyla Cuenca
Dear friends and clients:
The Constitutional Court of Ecuador, in its recent Opinion 2-24-EE/24, declared the constitutionality of the extension of the state of emergency until March 7, 2024. This opinion not only reaffirms the validity of the measures adopted under this state, but also provides a detailed analysis of the nature and application of internal armed conflicts within the Ecuadorian legal framework.
Definition of internal armed conflicts in Ecuador
According to the Constitution of Ecuador, specifically its Article 164, the President has the power to declare a state of emergency for various reasons, including internal armed conflicts. However, this concept was not clearly defined in the law.
Thanks to the analysis provided by the Court, it is now understood that for the existence of a non-international armed conflict (NIAC) to be considered, two basic criteria must be met:
the organization of the armed group, and
the intensity of the hostilities.
This is in accordance with international law, in particular the Geneva Convention and its Additional Protocol II.
Classification of Armed Conflicts in Ecuador
This Opinion distinguishes between a low-intensity NIAC, in which these two conditions are present, and a high-intensity NIAC, which is characterized by the direct participation of the armed forces of the State and territorial control by an organized armed group.
It is important to emphasize that the existence of a NIAC does not require official recognition by any of the parties involved, as it is a determination based solely on the presence of the aforementioned criteria.
Thus, when the existence of a Non-International Armed Conflict (NIAC) is confirmed, the President of the Republic is authorized to take immediate action. This action does not require subsequent validation by the Constitutional Court or any other body.
Exceptional circumstances, limitations and criteria
The Court emphasizes that recourse to the exceptional regime is appropriate only when the situation exceeds the response capacity of ordinary institutional mechanisms and is not suitable for addressing chronic problems that require long-term structural solutions.
When the Court speaks of "recourse to the exceptional regime," it refers to the use of special or emergency measures that a government may adopt in extreme situations. These measures often allow the government to restrict certain rights or freedoms in order to deal effectively with an emergency situation. In the case of Ecuador, as in many other countries, the declaration of a state of emergency is one of these measures.
Strengthening legality in times of crisis
This in-depth analysis by the Constitutional Court on the state of emergency and internal armed conflict in Ecuador reflects the complexity of the situations that can lead to the activation of extraordinary measures and the importance of a clear legal framework for their implementation.
With this opinion, Ecuador takes a step forward in the definition and management of internal crisis situations, respecting the constitutional framework and international human rights standards.
To deepen your understanding of how non-international armed conflicts affect legislation and government policies in Ecuador, we invite you to learn more about this important topic. Join the conversation in our discussion forums and share your perspective on the challenges and solutions related to human rights and national security.
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