Walter Brenes Soto v. Costa Rican Institute of Fisheries and Aquaculture and Others (Ruling 912-2023) (Costa Rica) – The Hammerhead Shark Case

In 2019, Walter Brenes Soto (appellant) sued the Costa Rican government and several governmental bodies (defendants) to challenge a resolution (AJDIP/290-2017) that permitted the hunting of three endangered Hammerhead shark species. 

The relevant Hammerhead species – Sphyrna lewini, Sphyrna mokarran and Sphyrna zygaena – dwell in Costa Rican waters. The three species face significant population decline and extinction threats due to overfishing and commercial exploitation. Despite international recognition of the species’ endangered status and protection under international agreements ratified by Costa Rica, the defendants had not implemented specific conservation measures nor included the Hammerhead species on the list of Endangered Wildlife Species. Instead, they had issued “Non-Detriment Findings” twice in the previous five years, permitting the capture and export of these species through a narrow international exception. The defendants justified their inaction and actions permitting further endangerment of the species on the grounds that neither they nor any other governmental entity recognized the Hammerheads as “wildlife,” “fauna” or in danger of extinction. They successfully challenged Soto’s legal right to bring his claims, resulting in the suit’s dismissal.  

On appeal, the appellant contended that the state had not effectively protected the Hammerhead species, which indeed constituted “wildlife” entitled to protection. Highlighting international law and scientific evidence supporting the species’ endangered status, the appellant argued further that the defendants’ actions and omissions violated statutory and constitutional principles of environmental protection, including the principles of prevention, precaution and the right to a healthy and ecologically balanced environment (R2HE). He sought, among other things, annulment of the resolution and implementation of measures necessary to restrict the species’ capture and export.

Ruling for the appellant, the Supreme Court of Justice emphasized that the autonomous right to a healthy and ecologically balanced environment (R2HE) requires that the State and its citizenry act according to environmental legal principles such as the precautionary and prevention principles, even in disputes relating only to biodiversity, i.e., cases featuring a lack of evident risk to individual persons. Citing domestic precedent and international jurisprudence from bodies such as the Inter-American Court of Human Rights, the Court held that the defendants acted contrary to the environmental principles R2HE requires by failing to analyze and adequately respond to the evidently critical status of Hammerhead sharks. 

Moreover, the Court recognized all three Hammerhead species as “wildlife,” “fauna” and as integral parts of Costa Rica’s national heritage. This status – far from freeing the State of obligations – imposed new duties of protection rooted in public domain law. The Court emphasized the obligation to uphold international agreements and consider scientific consensus when determining a species’ endangered status. It affirmed the appellant’s argument that the precautionary principle shifted the burden of proof onto the defendants, requiring them to show they had implemented effective measures to prevent further harm to the species. Further, international and domestic law provided an explicit legal prohibition on the trade of endangered animals. Lastly, the Court invalidated resolution AJDIP/290-2017, citing the issuing entity’s lack of authority to declare commercial interests in endangered species. 

The Supreme Court of Justice ordered the governmental entities to protect the Hammerheads as endangered “wildlife” under domestic law, to list the species as endangered and to take all necessary steps to comprehensively eradicate not only the intentional export but also all incidental capture – sometimes called ‘bycatch’ – of Hammerhead sharks.

Using an established domestic body of law

Central to the appellant’s success was his reliance on established domestic law relating to environmental principles and human and fundamental rights. Ultimately, this invocation availed the appellant of a lower burden of proof on appeal and raised key inconsistencies and deficiencies in the lower court’s reasoning. Moreover, invoking jurisprudence of the Court alongside statutes like the well-established Biodiversity and Wildlife Conservation Laws enabled the appellant to make arguments based upon the laws’ interactions and cumulative meaning. 

Invocation of domestic R2HE precedent strengthened the appellant’s claim and lent it the heightened urgency necessitated by claims of a fundamental and constitutional nature. Based on its previous jurisprudence and emphasizing the “undeniable” relationship between environmental protection and the realization of other human rights, the Court reiterated that R2HE demands that resources be used rationally and obligates both States and citizens to act according to environmental principles. 

The invocation of domestic statutes provided an opportunity for the Court to define R2HE’s meaning and scope of application. By giving due credence to the environmental principles contemplated in statutory law, the Court illuminated the substantive and procedural principles implicit in the actualization and pursuit of R2HE. Substantively, analyzing the Biodiversity Law led the Court to conclude that all living beings have the right to life, regardless of economic value or potential. The utilization of biodiversity resources must be pursued in a manner consistent with guaranteeing the “development opinions of future generations, food security, conservation of ecosystems, protection of health, and improvement of quality of life.” Procedurally, review of the law led to the Court’s emphasizing the prevention, non-regression, in dubio pro natura and precautionary principles, which played critical roles in shifting the burden of proof to the other party.

Using an established international body of law to support R2HE

International law played a central role not only in the Court’s treatment of R2HE and the related obligations imposed on actors of all kinds but also in the Court’s analysis of Hammerhead sharks and their endangered status.

The Court’s recognition of R2HE as an autonomous right and inclusive of environmental legal principles like sustainable development and intergenerational equity was further supported by jurisprudence from international bodies such as the Inter-American Court of Human Rights. This support bolstered the Court’s emphasis of those same principles found in the domestic Biodiversity Law. Furthermore, it served to support the Court’s broad reading of R2HE as applying in contexts where the evidence suggests great harm to animal species and ecosystems but not necessarily to individual human persons. Emphasis on the inherent value of nature – as “transcending” human beings and indifferent to instrumental use by humans – also emerged from the Court’s recognition of a United Nations General Assembly resolution. Precedent from the Mexican Supreme Court supported the finding that R2HE possessed two dimensions: first, an ecological dimension focusing on the defense and restoration of nature independently from humans, and second, an anthropocentric dimension through which R2HE guarantees the realization and enforcement of all related human rights. 

The Court’s mention of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the IUCN’s Red List of Threatened Species added substantial evidentiary weight, framing the omissions of the State’s entities within a comprehensive and scientifically credible context. This context not only clarified the imperiled status of the Hammerheads but also highlighted the State’s failure to investigate the necessity of protections for these species.

Reliance on CITES – ratified in Costa Rica and thus binding on the State – also enabled the appellant to invoke additional, concrete obligations not previously recognized under domestic law.

Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations

The case primarily challenged the failure of Costa Rican governmental entities to pursue and implement conservation and protection measures for the three Hammerhead species. This failure was in violation of obligations set forth in domestic environmental law and international agreements such as CITES. The governmental defendants were found to have violated their statutory and R2HE obligations through omissions and actions. Such affirmative acts included promulgating a resolution that contradicted their duties to protect and conserve endangered species. The claims of omission received more attention from the Court, which emphasized the State’s duty to apply the environmental principles inherent in the constitutional R2HE and enshrined in statutory law. The Court upheld the environmental principles of non-regression, precaution and prevention, stating that since the endangered Hammerhead sharks were integral to Costa Rica’s biodiversity, it was incumbent on the State to ensure their effective protection.

Reinforcing the status of the R2HE as a fundamental and independent human right

The Court went to great lengths to emphasize the independent and fundamental nature of R2HE, reiterating that the right’s “autonomous” nature meant that it could apply and be vindicated in situations involving no per-se harm to humans or human health. R2HE could help defend natural entities such as rivers, forests, ecosystems and animal species. Citing domestic R2HE jurisprudence, the Court reiterated several of the principles informing the scope and content of R2HE. These included the principles of non-regression and progressivity, sustainable use of natural resources, a holistic consideration of nature in all its dimensions and an understanding of species as interdependent. The Court went so far as to classify these principles as “supra-constitutional,” interpreting them as granting greater rights than the Constitution itself and constituting a referential framework for addressing and solving environmental disputes.

Connecting R2HE to the rights of nature (RoN)

Although the appellant did not directly invoke R2HE’s connection to the rights of nature, the Court nonetheless interpreted R2HE in an ecocentric light, writing in dicta that the autonomous nature of the right served in part to recognize the natural world’s intrinsic value. Moreover, the Court found that environmental principles related to R2HE mandate that states, individuals and public and private entities are duty-bound to care for and promote the well-being of nature – including a correlative duty to impose limits on nature’s use and exploitation – regardless of its value to humans. The rights of nature, wrote the Court, assert that every living being has the right to the conservation and protection of ecosystems’ health and integrity and affirms that nature has an intrinsic right to exist, thrive and evolve. The Court cited with approval international developments related to the recognition of non-human legal personality in both judicial rulings and constitutional frameworks. 

The Court’s favorable reading of the rights of nature no doubt bore on its ecocentric interpretation of R2HE and its extension of the right’s protection to Costa Rica’s biodiversity. Based in part on statutory definitions of biodiversity – which encompassed diversity within each species and among species and ecosystems of which species are a part – the Court concluded that the Hammerhead sharks were part of the country’s biodiversity. The sharks were subjects of rights to be protected for their own sake. Similarly, in the context of its discussion on the public domain principle and the idea that Costa Rica’s flora and fauna belong to no one, the Court wrote: “In this way, the anthropocentric view of nature is overcome to move to a more evolved stage constituted by an ecocentric, biocentric, or geocentric criterion.”

Utilizing a variety of legal arguments

By advancing administrative and procedural claims alongside substantive and constitutional R2HE arguments, the appellant sought parallel tracks to the same end and warded off the possibility that rejection of one argument would prove fatal for the entire suit. The challenge to resolution AJDIP/290-2017, for instance, was based and decided largely on administrative and procedural grounds. Meanwhile, the appellant simultaneously argued that the uncontrolled export of endangered Hammerhead species violated environmental principles (based in both domestic and international law) and R2HE. Ultimately, both of these claims succeeded and achieved different ends – to null the ‘fishing and commercial interest’ resolution on one hand, and to demand affirmative and material protective measures on the other. Their simultaneous advancement, however, lent them additional rigor and expanded the scope of remedies the appellant was eligible to request.

Shifting the presumption proving adequacy of actions

Invoking the precautionary principle – as required by R2HE and Costa Rican statutory law – achieved the critical goal of reversing the parties’ burden of proof. The lower court had placed the burden of proof on the appellant, dismissing his claims after finding that he failed to prove that the State’s actions implied an absolute lack of protection for the Hammerhead species or that they contributed to excessive fishing. However, the Supreme Court found that the precautionary principle required placing the burden of proof on the party accused of environmental harm – here, the State. Under this burden, the governmental defendants were required to prove not only that they had instituted protection and conservation measures, but also that those measures were material, sufficient and effective for the protection of the Hammerhead species. The defendants failed to meet this burden, and the Hammerheads – thanks to Walter Soto and the precautionary principle – prevailed.

The case powerfully illustrates R2HE’s capacity to support claims demanding material and effective state action where previous or existing state action has proven ineffective or superficial. 

Moreover, the case demonstrates how appellants and courts can invoke R2HE to defend the natural world, ecosystems and animals, even absent any specific link to a human individual or harm.