Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia

Abstract

Juridical protection of the rights of nature is steadily emerging in several legal systems and in public discourse. Building on a recent publication in Transnational Environmental Law in which we interrogated Ecuador’s constitutional experiment with the rights of nature, we critically reflect in this contribution on Bolivia’s legal regime providing for the rights of Mother Earth. We do so, first, by sketching the juridical-political context within which these statutes were drafted and adopted, and then by analyzing the relevant constitutional provisions that provide the basis for the laws of Mother Earth. The third part forms the bulk of the discussion and details the background and the most relevant provisions of Bolivian statutes with a view to enabling a deeper critique in Part 4, in which we critically evaluate both the symbolic and the theoretical significance of the statutes as well as concerns related to their practical implementation. Insofar as the rights of nature paradigm has now become a truly global debate and a consideration in transnational comparative legal borrowing practices, our analysis aims to reveal the Bolivian experience, which could be instructive for civil society groups, academics, politicians and legislatures in a transnational setting.

Paving the Way for Rights of Nature in Germany: Lessons Learnt from Legal Reform in New Zealand and Ecuador

“…91 The scope and definition of legal personality in the Ecuadorian Constitution has been criticized as being too vague. 92 Using the term 'Pachamama' manifests respect for Indigenous values, but the broad definition offered in the text's preamble arguably creates difficulties for its enforcement. 93 On the other hand, the broad scope of the term is consistent with the intention of portraying nature as an interconnected ecosystem.…”

“…97 It does not clarify in what way rights of nature can be limited or how to justify such limitations. 98 This illustrates the issue of resolving tensions between economic development models and incorporating Indigenous beliefs with regard to the humannature relationship. 99 Natural resource exploitation is still promoted by the Ecuadorian government as part of the country's development strategies.…”

“…116 At the same time, granting certain rights in constitutions should be viewed critically as it can also be used in an unauthentic manner to improve a country's image within the international community. 117 However, the further these norms become integrated into the legal systemfor example, through secondary laws, as has been the case in Ecuador since 2014the harder it will be to circumvent them and use them only as a poster child for the international community.…”

Earth System Law for the Anthropocene

“…An all-embracive conception of humans as part of the Earth system (and not masters of it), thus offers an opportunity to think how law could be reformed from serving as a powerful tool of exploitation, domination and mastery, to instead serving as an accommodative means of facilitating mutual respect, care and the pursuit of an all-inclusive form of Earth system integrity. The recent emergence of "rights of nature" in some domestic legal orders is a useful example of what the law could achieve in its attempts to dissolve hierarchies by deliberately embracing ecocentrism and care for the non-human world, and by shunning human mastery while affording humans and non-humans the same status in law [62,63].…”

A critique of the Global Pact for the environment: a stillborn initiative or the foundation for Lex Anthropocenae?

“…The Pact's draft environmental right provision aims to promote an ecologically sound environment for the benefit of human development, and not for the sake of nature or for preserving the integrity of the Earth system. It is a far cry from the emerging non-anthropocentric rights of nature provisions and jurisprudence aimed at safeguarding ecological integrity that are now found in several countries such as in Bolivia, Ecuador, Columbia, New Zealand and some states in the USA (Kotzé and Calzadilla 2017;Calzadilla and Kotzé 2018).…”