Analysis of the principle of necessity in the states of exception decreed between 2016 and 2024 in Ecuador

Abstract

Introduction: This chapter analyses the principle of necessity in the states of exception decreed in Ecuador between 2016 and 2023, from a constitutional law perspective. It emphasizes the requirement that extraordinary measures be strictly limited to what is necessary to address emergencies, as mandated by Article 164 of the Ecuadorian Constitution. A qualitative approach is used, reviewing legal sources, Constitutional Court rulings, executive decrees, international human rights treaties and relevant doctrine. The results identify patterns (such as frequent invocation of necessity in decrees), omissions (lack of specific justification of duration or scope), tensions (between emergency powers and ordinary law) and deviations (extended emergencies on identical grounds). Key events studied include the 2016 earthquake, October 2019 protests, the COVID-19 pandemic, and the 2021–2023 prison crisis. The discussion contrasts Ecuador’s practice with international standards (ICCPR Art.4, American Convention Art.27) and comparative doctrine, highlighting the “strict necessity” threshold. It also examines the Constitutional Court’s oversight (which has noted failures to comply with necessity, e.g. declaring a COVID-19 emergency decree unconstitutional. The chapter concludes with legal findings on the use of necessity, the dangers of its abuse, and legislative or institutional recommendations (e.g. requiring objective evidence in decrees and stronger legislative review) to ensure its proper application.