By Pablo Solón
The rights of Mother Earth are a call to abandon the existing dominant anthropocentric paradigm and to imagine a new Earth society. For anthropocentrism, human beings are at the center of everything and are superior to all other beings and elements that are part of the Earth. Humans are the only ones who possess consciousness, values and morals. Humanity and nature are two separate categories. In this anthropocentric paradigm, nature exists mainly for the survival and development of human societies.
Capitalism, productivism and extractivism are deeply rooted in this dominant vision of our times. For these visions, everything can be extracted, transformed, commodified, controlled and “repaired” through the advancement of technology.
The rights of Mother Earth challenges this vision and argues that in order to build alternative societies, we need to overcome anthropocentrism and change our relationship with nature. The use of the term “rights” gives the impression that this would be essentially a normative or legal proposal. However, as we will see later, the rights of Mother Earth go far beyond the need for a new legal framework that takes nature into account.
The incorporation of the rights of Mother Earth or nature in the legal order of a municipality, country or international institution is a very important step, but only one of the first steps necessary to begin to overcome anthropocentrism. The final aim of the rights of Mother Earth proposal is to build an Earth community: a society that has humans and nature as a whole.
The recognition of the rights of nature and Mother Earth in Ecuador and Bolivia back in 2008 and 2010 gave the impression that this proposal comes only from the Andean region of South America. However, the reality is much more complex and in truth, the rights of Mother Earth are the result of the confluence of different currents that have developed in different regions of the world.
In a schematic way we can group the different contributions to the rights of Mother Earth in four streams: indigenous, scientific, ethical and legal. Each one represents a particular perspective that interacts with the others, forming an alternative vision that is still under development.
Within the rights of Mother Earth there are debates and discussions that fuel the construction of the proposal. For example, the rights of Mother Earth and the rights of nature are not exactly the same. Mother Earth is the whole, while nature is a part of the whole. The rights of nature seek the recognition of rights for the non-human components of the Earth system. Whereas the rights of Mother Earth aspires to create a new regime of rights for all and everything, where there are obviously differences according to the characteristics of each of the components of the Earth system, but where we begin to overcome the separation between humans and nature so we can leave anthropocentrism.
Throughout this chapter we will look at the different aspects that converge in the construction of the proposal of the rights of Mother Earth, we will analyze their evolution, how they have been institutionalized in Ecuador and Bolivia, and finally we will explore some of the problems and challenges ahead.
The Indigenous Stream
The rights of Mother Earth reflect the vision of indigenous peoples in many parts of the world, and in particular, of the Andean region of South America. This indigenous vision entails a deep respect of nature. In this vision, everything on Earth and in the cosmos have life. Humans are not superior beings who are above plants, animals, or mountains. Humans “inter-be“with other non-human beings forming an Earth community. The division between living beings and non-living beings does not exist. In the Andean indigenous vision, everything has life including the hills, rivers, air, rocks, glaciers and oceans. All are part of a larger living organism that is Pachamama or Mother Earth. In the Andes of South America you cannot explain life if you do not take into account the “whole.” Humans are just one of the components of the Earth community. They do not own the Earth or other beings, nor are they their masters. Human existence depends on harmony with nature; a balance that is not static, but dynamic, that changes and moves in cycles, and brings misfortune when broken.
The rights of Mother Earth are based on the indigenous premise that questions: If we are all part of Mother Earth, why do some have to be more than others? Why do some beings enjoy protection and privileges, while others are relegated to the status of things?
In this vision, in order for the Earth community to flourish, we must give equal treatment and respect for all who are part of it: from glaciers to forests, animals to humans, plants to the wind and all beings.
Though the indigenous stream does not speak of “rights” directly, as the concept of “rights” in the Western philosophical sense, the essence of the indigenous vision underpins the whole approach of the rights of Mother Earth. The concept of “rights” is a construction that comes from outside the indigenous context and therefore the “rights” of Mother Earth or “rights” of nature are expressed through socio-cultural practices rather than legal terms.
The Scientific Current
Different communities of Earth scientists acknowledge that the Earth behaves as a single, self-regulating system with physical, chemical, biological, and human components. The Earth system consists of the land, oceans, atmosphere and poles, and includes the planet’s natural cycles of carbon, hydrogen, nitrogen, phosphorus, sulphur and others. As noted in the 2001 Amsterdam Declaration on Earth System Science, “The interactions and feedback between the different components of the Earth sciences are complex and exhibit multi-scale temporal and spatial variability”. According to NASA (National Aeronautics and Space Administration) of the United States, human life is an integral part of the Earth system and affects the carbon, nitrogen, water, oxygen and other cycles and processes.
Human society would not only be a component of the Earth system but in the last centuries would alter the functioning of the system as a whole, causing global change.
“Human activities are significantly influencing Earth’s environment in many ways in addition to greenhouse gas emissions and climate change. Anthropogenic changes to Earth’s land surface, oceans, coasts and atmosphere and to biological diversity, the water cycle and biogeochemical cycles are clearly identifiable beyond natural variability. They are equal to some of the great forces of nature in their extent and impact. Many are accelerating. Global change is real and is happening now” (Steffen, et al., 2004).
This global change cannot be understood in terms of a simple relation of cause and effect. Human driven changes cause multiple effects that cascade through the Earth System in complex ways. These effects interact with each other and with local and regional scale changes in multidimensional patterns that are a challenge to understand and even more difficult to predict.
Presently, human activities have the potential to transform how the Earth System operates in ways that may prove irreversible and that may make this planet less hospitable to humans and other life. The probability of a human driven abrupt change in the Earth’s environment has yet to be quantified, but it is significant.
Throughout its existence, the planet Earth has undergone several sudden and radical changes. Yet this is the first time that these changes of planetary scale would be produced by human activity creating less hospitable conditions for humans and other forms of life.
For the scientific community, the Earth System has moved well outside the range of the natural variability exhibited over the last half million years at least. The nature of changes now occurring simultaneously in the Earth System, their magnitudes and rates of change are unprecedented. The Earth is currently operating in a non-analogue state (IBGP, 2001).
Some members of the scientific stream have even gone further and advocated for a kind of ethical framework to address the systemic crisis that we are facing. In 2001, scientists from the IHDP (International Human Dimensions Programme on Global Environmental Change), the IGBP (International Geosphere-Biosphere Programme), the WCRP (World Climate Research Programme), and DIVERSITAS issued the Amsterdam Declaration on Earth System Science affirming:
“An ethical framework for global stewardship and strategies for Earth System management are urgently needed. The accelerating human transformation of the Earth’s environment is not sustainable. Therefore, the business-as-usual way of dealing with the Earth System is not an option. It has to be replaced – as soon as possible – by deliberate strategies of good management that sustain the Earth’s environment while meeting social and economic development objectives” (IBGP, 2001).
Between 2001 and 2005, 1,360 experts from 95 countries participated in the Millennium Ecosystem Assessment, which was carried out at the request of the United Nations. One of their key conclusions was that species and ecosystems have “intrinsic value”; that “is the value of something in and for itself, irrespective of its utility for someone else” (Millennium Ecosystem Assessment 2005).
The Earth sciences provide a set of data and analysis that place the challenge of thinking and building a new system of management of the planet to restore the balance of the Earth System. This is why the scientific stream is fundamental for the rights of Mother Earth that aims to preserve and strengthen the Earth community.
The Ethical Stream
The ethical stream that contributes to the emergence of the rights of Mother Earth is very broad and diverse, and comprises a series of voices that advocate for an improvement or change in the relationship with nature, based on philosophical, religious or moral considerations.
For example, the thoughts of St. Francis of Assisi are part of this ethical current since they advocate for the equality of all creatures rather than the domination of man over creation. St. Francis of Assisi referred to the sun, the Earth, the water, and the wind as his brothers and sisters. Today, Pope Francis develops this thought and affirms: “This is our sin, exploiting the Earth and not allowing her to give us what she has within her.”
In Buddhism, we also find similar perspectives. The Fourteenth Dalai Lama condemns environmental destruction and commands humanity to realize its obligations to the planet:
“We are part of nature. (…) Among the thousands of species of mammals on earth, we humans have the greatest capacity to alter nature. As such, we have a two-fold responsibility. Morally, as beings of higher intelligence, we must care for this world. The other inhabitants of the planet – insects and so on – do not have the means to save or protect this world. Our other responsibility is to undo the serious environmental degradation that is the result of incorrect human behavior. We have recklessly polluted the world with chemicals and nuclear waste, selfishly consuming many of its resources. Humanity must take the initiative to repair and protect the world” (Dalai Lama et al., 2001).
Also part of this ethical stream is the thinking of the North American conservationist, Aldo Leopold (1887–1948) who proposed a “land ethic”; a body of self-imposed limitations on freedom, which derives from the recognition that “the individual is a member of a community of interdependent parts.” In his words:
“The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land. A land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow members, and also respect for the community as such” (Leopold, 1949).
In this same line of ethical thought was the Earth Charter launched in 2000. This document states that “the protection of Earth’s vitality, diversity, and beauty is a sacred trust,” the charter calls for “universal responsibility” to protect the “unique community of life” that includes all the living and non-living beings on this planet (Boff, 2000). It contains a broad range of principles, from ensuring sustainable life in all its rich diversity, to the adoption of alternative systems of production that “safeguard Earth’s regenerative capacities” (Boff, 2000).
Many other thinkers and philosophers have contributed to forge this ethical current that contributes to the vision of the rights of Mother Earth.
The Juridical Stream
The juridical stream takes into account all the elements mentioned above, and seeks to place them in a legal framework, with the perspective that the scientific, ethical, and indigenous principles that prescribe radical transformation in the relationship between humans and the Earth require tools for the enforcement of that change. This stream recognizes that law and governance are social constructions, which evolve over time and change with new realities. They are important mechanisms for regulating human behavior, but need to remain flexible to account for a shift away from an anthropocentric order. Every process of economic and social transformation leads to changes in the juridical framework of the society. The challenge that we now face is to do a profound revolution in this legal framework to overcome anthropocentrism and prevent a catastrophe befalling the Earth.
As Leopold says, a legal framework implicitly considers human beings as the center and the end of the universe, and claiming that the universe exists to satisfy human needs and desires, is absolutely anthropocentric (Leopold, 1949).
In this context, the juridical stream that feeds the rights of Mother Earth intends to develop jurisprudence that is centered in the Earth instead of being centered in the human being. A new legal and institutional framework that includes the postulates of scientific, ethical and indigenous currents to accelerate the change we need.
According to Australian law professor Peter Burdon (2010):
“Law is a social creation and a legal conclusion and as legal philosopher Philip Allot notes, ‘law cannot be better than society’s idea of itself.’ As a consequence, it should not be surprising that many aspects of our law reflect an anthropocentric view of the earth. (…) Law is a significant description of the way a society perceives itself and projects its image to the world. (…) As an evolving social institution, law needs to adapt to reflect this understanding.”
The juridical stream is currently asking how to rethink the legal and institutional order to allow the welfare of the Earth and all of its components? How can our legal and normative frameworks reflect the fact that nature has intrinsic value? How to build a governance that helps prevent catastrophic imbalances on planet Earth?
In search of a new Earth jurisprudence, the catholic priest and “eco-theologian” Thomas Berry (1914-2009) emphasized that “all rights have been bestowed on human beings” and that the other modes of non-human existence have no rights (Berry, 1999). Consequently, all other non-human components have no value and are only taken into account as they serve the human being. In this context, what is not human becomes something totally vulnerable to exploitation by the human.
So to advance to an Earth jurisprudence it is necessary to overcome that conception of the non-human world like “a collection of objects” (Berry, 1999) and begin to think in terms of a “communion of subjects”, alive, non-alive, human and non-human (Boff, 2000).
In this way, it is necessary to question the legitimacy of any law that exceeds the ecological limits of the environment in order to satisfy the needs of the human species (Leopold, 1949).
The dualism between subject and object is a key aspect of Western civilization. We have assigned values to subjects and everything that are like “us” and we deprive rights from all other aspects of the world that we tend to consider “objects”. Subjects are able to think and create while the rest are only resources, instruments or environment.
To move away from this position, the juridical stream of the rights of Mother Earth propose a revolution in how we conceive of the law. As Berry puts it:
“To the industrial-commercial world the natural world has no inherent rights to existence, habitat, or freedom to fulfill its role in the vast community of existence. Yet there can be no sustainable future, even for the modern industrial world, unless these inherent rights of the natural world are recognized as having legal status. The entire question of possession and use of the Earth, either by individuals or by establishments, needs to be considered in a more profound manner than Western society has ever done previously” (Berry, 1999).
The proposal for the “rights” of nature was initially developed in North America and Europe in the mid-20th century, and was built on a platform of ideas, including those of Aldo Leopold and proponents of animal rights, such as Peter Singer, Tom Regan and Jeremy Bentham.
The defense of animal rights contributed to the development of the rights of Mother Earth by questioning the concept of rights as being exclusive to human beings. In 1789, Bentham wrote, “The day may come when the rest of the animal creation may acquire those rights which never could have been withheld from them but by the hand of tyranny… The question is not, can they (animals) reason? Nor can they talk? But can they suffer?” (Bentham, 1789).
The rights of animals have been resisted and until now transit different paths in the legislation of countries. In the case of Germany, the Section 90a of the Civil Code states: “Animals are not things. They are protected by special statutes. They are governed by the provisions that apply to things, with the necessary modifications, except insofar as otherwise provided.”
Nonetheless, the vision of the rights of nature as a whole only began to develop in the middle of the twentieth century. In the 1970s, two key sources of the juridical stream developed in Europe and North America. One is “deep ecology” promoted by Norwegian philosopher Arne Næss and the other one is “Earth jurisprudence” or “wild law”, initially developed by Thomas Berry an American catholic priest and eco-theologian.
Arne Næss (1912 – 2009) envisioned two different forms of environmentalism: “deep ecology”, which interrogates, on the most fundamental level, the root causes to Earth’s imbalance, and “shallow ecology,” which tends to focus on short-term, surface-level changes, often promoting technological fixes (e.g. recycling, increased automotive efficiency, export-driven mono-cultural organic agriculture) that are rooted in the same consumption-oriented values and practices of today’s industrial economy. The Deep Ecology approach involves redesigning our whole system to align with values and methods that truly preserve the ecological and cultural diversity of natural systems.
For Michael E. Zimmerman: “Deep Ecology is founded on two basic principles: one is a scientific insight into the interrelatedness of all systems of life on Earth, together with the idea that anthropocentrism – human-centeredness – is a misguided way of seeing things. Deep ecologists say that an eco-centric attitude is more consistent with the truth about the nature of life on Earth. The second component of deep ecology is what Arnie Næss calls the need for human self-realization (“re-earthing”). Instead of identifying with our egos or our immediate families, we would learn to identify with trees and animals and plants, indeed the whole ecosphere. This would involve a pretty radical change of consciousness, but it would make our behavior more consistent with what science tells us is necessary for the well-being of life on Earth. We just wouldn’t do certain things that damage the planet, just as you wouldn’t cut off your own finger” (Zimmerman, 1989).
Næss rejected the idea that beings can be ranked according to their relative value. For example, judgments on whether an animal has an eternal soul, whether it uses reason or whether it has consciousness have all been used to justify the ranking of the human animal as superior to other animals. Næss states that from an ecological point of view “the right of all forms [of life] to live is a universal right which cannot be quantified. No single species of living being has more of this particular right to live and unfold than any other species” (Næss, 1973).
A primary critique of deep ecology focuses on the proposal of some of its advocates like Bill Devall and George Sessions who wrote that, “the flourishing of human life and cultures is compatible with a substantial decrease of the human population. The flourishing of non-human life requires such a decrease.” The main argument of the critique is that to promote birth reduction as a key solution especially targets poor countries and leads to racist attitudes. Other Deep Ecology theorists like Warwick Fox in Australia respond to this notion by arguing for the distinction between being misanthropic (hating humanity) and being anti-anthropocentric.
In addition, many social ecologists and eco-feminists agree that deep ecology does not conduct sufficient analysis of the social forces at work in the destruction of the biosphere. Finally, others have critiqued deep ecologists who sometimes attribute human characteristics to non-human organisms, falling into anthropomorphism.
Earth Jurisprudence or Wild Law
Thomas Berry (1914-2009) inspired the movement for Earth Jurisprudence or Wild Law. Interestingly, Berry’s main point of reference was not nature or the Earth, but the universe.
“The universe is the only text without context. Everything else has to be seen in the context of the universe. The story of the universe is the story of each individual being in the universe’, and so the journey of the universe – forever evolving, continually emerging – ‘is the journey of each individual being in the universe’. We can read the story of the universe in the trees. Everything tells the story of the universe. The winds tell the story, literally, not just imaginatively. The story has its imprint everywhere, and that is why it is so important to know the story. If you do not know the story, in a sense you do not know yourself; you do not know anything” (Berry, 1999).
The term “Earth Jurisprudence” was coined to highlight the need to overcome the anthropocentric framework of contemporary jurisprudence. Wild Law reflected the view among the movement’s advocates that their work was about bringing together and balancing two different parts of the whole: civilization and nature. Cormac Cullinan explains the concept in these terms:
“I know that “wild law” sounds like nonsense -a contradiction in terms. Law, after all, is intended to bind, constrain, regularize and civilize. Law‘s rules, backed up by force, are designed to clip, prune and train the wilderness of human behavior into the manicured lawns and shrubbery of the civilized garden. “Wild”, on the other hand, is synonymous with unkempt, barbarous, unrefined, uncivilized, unrestrained, wayward, disorderly, irregular, out of control, unconventional, undisciplined, passionate, violent, uncultivated, and riotous. A wild law is a law to regulate human behavior in order to protect the integrity of the earth and all species on it. It requires a change in the human relationship with the natural world from one of exploitation to one of democracy with other beings. If we are members of the earth’s community, then our rights must be balanced against those of plants, animals, rivers and ecosystems. In a world governed by wild law, the destructive, human-centered exploitation of the natural world would be unlawful. Humans would be prohibited from deliberately destroying functioning ecosystems or driving other species to extinction” (Cullinan, 2011).
What kind of rights does nature have? Are they similar to human rights?
The first and most comprehensive responses to these questions are in the Ten Principles of Earth Jurisprudence written by Thomas Berry.
| Ten Principles of Earth Jurisprudence
1) Rights originate where existence originates. That which determines existence determines rights.
2) Since it has no further context of existence in the phenomenal order, the universe is self-referent in its being and self-normative in its activities. It is also the primary referent in the being and the activities of all derivative modes of being.
3) The universe is composed of subjects to be communed with, not objects to be used. As a subject, each component of the universe is capable of having rights.
4) The natural world on the planet Earth gets its rights from the same source that humans get their rights: from the universe that brought them into being.
5) Every component of the Earth community has three rights: the right to be, the right to habitat, and the right to fulfill its role in the ever-renewing processes of the Earth community.
6) All rights are role-specific or species-specific, and limited. Rivers have river rights. Birds have bird rights. Insects have insect rights. Humans have human rights. Difference in rights is qualitative, not quantitative. The rights of an insect would be of no value to a tree or a fish.
7) Human rights do not cancel out the rights of other modes of being to exist in their natural state. Human property rights are not absolute. Property rights are simply a special relationship between a particular human ‘owner’ and a particular piece of ‘property,’ so that both might fulfill their roles in the great community of existence.
8) Since species exist only in the form of individuals, rights refer to individuals, not simply in a general way to species.
9) These rights as presented here are based on the intrinsic relations that the various components of Earth have to each other. The planet Earth is a single community bound together with interdependent relationships. No living being nourishes itself. Each component of the Earth community is immediately or mediately dependent on every other member of the community for the nourishment and assistance it needs for its own survival. This mutual nourishment, which includes the predator-prey relationship, is integral with the role that each component of the Earth has within the comprehensive community of existence.
10) In a special manner, humans have not only a need for but also a right of access to the natural world to provide for the physical needs of humans and the wonder needed by human intelligence, the beauty needed by human imagination, and the intimacy needed by human emotions for personal fulfillment.
According to Berry, rights originate where existence originates. Beings have rights not because they have consciousness or moral status, but merely because they exist and because their existence can only be explained as interaction between the different elements of the whole. Everything is interrelated, nothing exists in isolation, and all share the same source of existence: the universe.
For Berry, every component of the Earth community has three rights: the right to be, the right to habitat, and the right to fulfill its role in the ever-renewing processes of the Earth community.
These three rights are role-specific or species-specific, and limited. Rivers have river rights. Birds have bird rights. Insects have insect rights. Humans have human rights. Difference in rights is qualitative, not quantitative. The rights of an insect would be of no value to a tree or a fish.
Thus, the rights of nature are not an extension of human rights to nature. According to Christopher D. Stone “to say that the environment should have rights is not to say that it should have every right we can imagine, or even the same body of rights as human beings have. Nor is it to say that everything in the environment should have the same rights as every other thing in the environment” (Stone, 2010).
Moreover, human rights do not supersede the rights of other modes of being to exist in their natural state. These rights are based on the intrinsic relations that the various components of Earth have to each other. No living being nourishes itself. Each component of the Earth community depends on every other member of the community for its own survival.
The concept applies only in the context of human interaction with nature and would place duties only on human beings. The rights of nature motivate to action people in a position to help promote or safeguard a given right (Burdon, 2011).
In the 21st century, the proposals of Earth Jurisprudence began to be incorporated into legal texts. In 2006, with the help of the Community Environment Legal Defense Fund (CELDF), the town of Barnstead in the State of New Hampshire in the United States passed an ordinance that states: “Natural communities and ecosystems possess inalienable and fundamental rights to exist and flourish within the Town of Barnstead. Ecosystems shall include, but not be limited to, wetlands, streams, rivers, aquifers, and other water systems.”
Similar resolutions have been adopted in other towns in the United States. These municipal ordinances are focused on specific areas of nature, and are not of general application; they empower local communities to assume the role of guardian for nature. Authorities measure damages in terms of the actual harm caused to the ecosystem rather than to a human property owner.
“Under existing environmental laws, a person needs to prove ‘standing’ in order to go to court to protect Nature. This means demonstrating personal harm from logging, the pollution of a river, or the extraction of water. Damages are then awarded to that person, not to the ecosystem that’s been destroyed. In the wake of the BP oil spill, the only damage deemed compensable by the legal system is the financial damage caused to those who cannot use the Gulf ecosystem anymore. Under a rights-based system of law, a river has the right to flow, fish and other species in a river have the right to regenerate and evolve, and the flora and fauna that depend on a river have the right to thrive. It is the natural ecological balance of that habitat that is protected. Just as the lion hunts the antelope as part of the natural cycle of life, recognizing Rights of Nature does not put an end to fishing or other human activities. Rather, it places them in the context of a healthy relationship where our actions do not threaten the balance of the system upon which we depend” (Margil & Biggs, 2010).
The Constitution of Ecuador
The most important achievement in legal text is without a doubt, the Constitution of Ecuador in 2008. The Constitution devotes Chapter Seven to the Rights of Nature and says:
Article 71. Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.
Article 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.
Article 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles. The introduction of organisms and organic and inorganic material that might definitively alter the nation’s genetic assets is forbidden.
The text is clearly the result of the combination of the indigenous stream with the juridical stream. It speaks about nature as synonym of Pachamama (Mother Earth), which for some is not accurate because Mother Earth comprises nature and humans. The specific rights for nature that are recognized in the Ecuadorian constitution are the right to exist, to its integrity, to regenerate, to its vital cycles and to be restored.
The Constitution of Ecuador doesn’t include mechanisms of enforcement of these rights and gives the State the flexibility to interpret these regulations for national interests. Therefore, much of the enforcement of the rights of nature depends on the will of the government and an active society.
The case of Bolivia
The constitution of the Plurinational State of Bolivia adopted in 2009 doesn’t include the concept of the rights of nature and is more in the line of “environmental rights” for the benefit of present and future generations of humans (Art. 33). The most advanced development of this legal text is that “any person, in his own right or on behalf of a collective, is authorized to take legal actions in defense of environmental rights” (Art. 34), something that we can also find in the Ecuadorian Constitution.
The rights of Mother Earth was developed in the case of Bolivia after the adoption of the Constitution and is directly linked to an international response to the global crisis of climate change. In 2010, in Cochabamba, Bolivia, at the “World’s Peoples Conference on Climate Change and the Rights of Mother Earth” with the participation of 35,000 participants, and more than one thousand delegates from around one hundred countries drafted the “Proposal for a Universal Declaration on the Rights of Mother Earth.”
This Declaration says “that we are all part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny” and that “in an interdependent living community, it is not possible to recognize the rights of only human beings without causing an imbalance within Mother Earth” and “that to guarantee human rights it is necessary to recognize and defend the rights of Mother Earth and all beings in her.”
This approach to Mother Earth rights sees that humans and nature are part of the Earth community and therefore we must see these rights as the rights of the whole and all its beings and not only of the non-human (nature) part.
For this declaration “the inherent rights of Mother Earth are inalienable in that they arise from the same source as existence” and that all “organic and inorganic beings” have rights “that are specific to their species or kind and appropriate for their role and function within the communities within which they exist”.
The specific rights that are recognized to Mother Earth as a whole and to “all beings of which she is composed” are the rights to life and to exist; to be respected; to regenerate its bio-capacity and to continue its vital cycles and processes free from human disruptions; to maintain its identity and integrity as a distinct, self-regulating and interrelated being; to water; to clean air; to integral health; to be free from contamination, pollution and toxic or radioactive waste; to not have its genetic structure manipulated and to full and prompt restoration.
This Universal Declaration of the Rights of Mother Earth was presented to the United Nations and the Climate Change process of negotiations, and at the end of 2010 its text was incorporated and adopted as Law 71 of the Plurinational State of Bolivia.
The most important advancement of the Bolivian Law of the Rights of Mother Earth is the inclusion of an Ombudsman of Mother Earth (Defensoría de la Madre Tierra) whose mission would be to look after the compliance and enforcement of those rights. However, this Ombudsman of Mother Earth has not yet been put in place in Bolivia.
The rights of nature initiatives are spreading in different parts of the world. In the case of the United States, the struggle continues for ordinances at municipal level that recognize the rights of nature; in Europe there is an initiative to have the European Parliament and Council recognize that nature has rights; in New Zealand the Crown has signed an agreement with the iwi (the local Māori people) stating that the Whanganui River will be recognized as a person when it comes to the law; in the Philippines and other countries there has been juridical awards that speak about the “health of the people and the environment which are equally protected under our fundamental law”; in the United Nations every year there is dialogue on “Harmony with Nature” where the proposal for a Universal Declaration of the rights of Mother Earth is discussed; also at the UN and in the International Criminal Court of Justice there is an initiative from civil society groups to recognize the crime of ecocide; at the global level, since 2014, there is a Rights of Nature Ethics Tribunal that is promoted by the Global Alliance for the Rights of Nature.
The proposal of rights of Mother Earth has gained momentum after the experiences in Ecuador and Bolivia but is now facing a very difficult moment as there is a lack of implementation and several provisions are being violated by the governments that originally supported them.
In this process, the rights of Mother Earth approach has to address some key concerns in relation to the issue of compliance and implementation; articulate a clear rejection to threats like the payment for ecosystem services and the green economy; deepen the discussion around property rights that clearly obstruct the implementation of rights of Mother Earth; and go beyond legal texts to address key issues such as what kind of democracy do we need for an Earth democracy.
Compliance and implementation
Without any doubt one big challenge that the rights of nature and the rights of Mother Earth face is the implementation and compliance of these rights where they have already been recognized. In Ecuador and Bolivia, there is not one single case that can be used as a positive emblematic example. On the contrary, there have been several backlashes, where government projects and decisions have been made in clear violation of these rights.
In 2011, the government of the Plurinational State of Bolivia tried to build a road that was going to cut the “Isiboro Ségure Indigenous Territory and National Park”, TIPNIS in Spanish. TIPNIS covers 12,363 km2 of Amazonian and Andean territory. It is among the richest reserves of biodiversity in Latin America. It shelters thousands of species of flora, mammals, birds, reptiles, amphibians and fishes. It is the land of the Mojeño, the Chimán and the Yuracaré.
Thanks to the resistance of these indigenous peoples and the mobilizations of many sectors of the society, the government has put on hold the project to build the road. Unfortunately though, this decision to put the project on hold was taken only after the police had committed acts of repression and violence against the indigenous peoples that were then marching to the city of La Paz. In no moment during the conflict and until today, there has not yet been an official process by the authorities to take into account the rights of Mother Earth that are going to be affected and violated if the road is constructed.
In the case of the Yasuni-ITT Initiative, the government of Ecuador was going to refrain from exploiting the oil reserves of the Ishpingo-Tambococha-Tiputini (ITT) oil field within the Yasuni National Park. It was presented as a real positive step in preserving the rights of nature in such a biodiversity-rich region. But in 2013, the government of Correa announced that they will exploit the oil in that area because they had not received enough economic support from the international community and all the initiatives to have a national referendum on this issue have been blocked by the authorities in Ecuador.
The case of Yasuni-ITT made it clear that it is not possible to condition the respect of the rights of nature to the existence of an economic or monetary compensation or some form of payment for environmental services. Just as human rights must be guaranteed in all circumstances, irrelevant to monetary or economic gain, so must the rights of nature.
Besides these very infamous cases in Bolivia and Ecuador, in many other projects of mining, oil extraction, deforestation, nuclear energy, GMOs, fracking and others with evident negative impacts to the rights of nature, there has been no official process to see how the rights of nature are or will be affected and what measures should be taken to protect these rights. There is an evident contradiction between the discourse and the practice of these governments, between the legal rights that are recognized and the rights that are respected and guaranteed in reality.
Nonetheless, the fact that these rights are legally recognized and are now very well-known in the society, has allowed different indigenous groups, social and environmental organisations to develop different actions demanding the implementation of these rights.
The threat of Payment for Environmental Services.
Another issue is that of the threat of the concept of the Payment for Environmental Services. One thing is that of the environmental services of cleaning the streets and parks of a city, quite another, is to use the term to refer to the functions of nature, to measure them, and to put a price on them to market them under the name of “environmental services”. This has been introduced through the “Green Economy” that starts from the good premise that “nature has an intrinsic value” but then uses this premise to push in favor of the commodification of ecosystem services and the development of new kinds of “biodiversity offsets”. The idea is that if a company destroys nature anywhere in the world it can “compensate” for its destruction by buying “credits” from another project that in a different part of the world promotes biodiversity conservation. An example of this is the REDD (Reducing Emissions from Deforestation and Forest Degradation) initiative, which suggests that air transport, instead of effectively reducing their greenhouse gas emissions, can buy “carbon credits” from conservation projects of forests.
The idea of offsets at the level of carbon emissions or offsets of biodiversity represents a very speculative process of the financialization of nature that will further deepen the imbalances of the Earth system. The preservation of one species can never compensate for the destruction of another species. The rights of nature can never be guaranteed through a market logic in which polluting companies buy “permits” to continue with their harmful activities on the environment.
As Maude Barlow says:
“Payment for Ecological Services (PES) puts a price tag on ecological goods – clean air, water, soil etc, – and services such as water puriﬁcation, crop pollination and carbon sequestration that sustain them. A market model of PES is an agreement between the “holder” and the “consumer” of an ecosystem service, turning that service into an environmental property right. Clearly this system privatizes nature, be it a wetland, lake, forest plot or mountain, and sets the stage for private accumulation of nature by those wealthy enough to be able to buy, hoard, sell and trade it. Already, northern governments and private corporations are studying public-private partnerships to set up lucrative PES projects in the global South” (Barlow 2010).
Another issue that needs to be addressed in the implemtation of the rights of Mother Earth is that of private property. One of the main manifestations of anthropocentrism in law is the notion of property. Long before the concept of human rights was adopted, the legal concept of property rights was established and enforced: property rights over land, houses, animals, machines, tools and even other humans such as slaves and women. Property can be sold, borrowed, gifted, split, inherited, etc. In order to have property, the object of possession has to be identified as a thing that has no rights or has less rights than that of the owner of that possession. Property between citizens that have equal rights was not acceptable even in Ancient Greece. In order to become an object of property, the other human had to be disposessed of his or her rights through war and conquest or was born a slave.
The dominant legal relation between humans and nature until today is through property. Laws are established to guarantee the property rights over land, mineral resources, oil, animals, water, etc. Property can be private, State-owned or public, but it is always the property of certain humans over certain “things” of nature. Not every thing is property in nature because in order to become property it has to be delimited, isolated, scarce and subject to be brought to the market. Property fragments nature into “things” that in reality are never dissociated: the forest from the soil, the underground water from biodiversity, the land from the minerals.
In reality, the main contradiction has never been between human rights and the rights of Mother Earth, but between the rights of nature and property rights that are concentrated mainly in a small fraction of humanity.
As Peter Burdon says:
“In western society, property law provides some of the most foundational ideas about the land and about our place in the environment. Many of these ideas are so ingrained that we rarely give them second thought. The common ‘idea’ of private property is individual or absolute entitlement over a thing (what Blackstone called ‘sole and despotic dominion’), which is protected by the will of the State. Our home is our castle, our zone of personal influence ‘where we make the rules’. Our legal conception of property also tells us that the land can be divided into discrete and distinct bundles of legal relations, which individuals hold in relation to each other” (Burdon, 2010).
In order to have a new legal framework that is not anthropocentric, it is necessary to overcome, redefine and limit the concept of property. Earth Jurisprudence can only flourish if property rights are constrained and if we have a new eco-society that is not ruled by capital. In the case of Ecuador and Bolivia, there were important changes with the addition of new rights related to nature but there was no significant change in relation to property rights.
Why, if the rights of Mother Earth and nature were born criticizing anthropocentrism, have they used the concept of “rights” that is very anthropocentric? If humans developed “rights” to govern themselves, why attribute rights to nature instead of building another kind of legal framework to prevent the destruction of the environment?
Thomas Berry was never entirely happy with the language of “rights”, “but it was the best we had to be going on with.” The idea was to try to use a central concept of the current legal system (rights) to restore a certain balance in the Earth system by recognizing rights to the other part of the system that had none. How to reduce property rights, especially those of large companies, if at the same time it is not recognized that nature also has rights? Talking about responsibility and obligation of humans and companies could be another way, but this would not question anthropocentrism and in the current context would always leave nature in a situation of inferiority.
The main objective of the Jurisprudence of the Earth or of the rights of Mother Earth was never to stay in the dead letter of legal texts. The goal is to advance towards an Earth society, and therefore the rights of Mother Earth should not be restricted to the discussion of legal frameworks.
The challenge for the Mother Earth rights movement is to advance in the construction of a system of governance of the Earth at all levels. The recognition and effective application of the rights of nature at the level of a city or a country is a very important but not a sufficient step. The recovery of the balance of our planet requires international mechanisms and regulations. The challenge is how to develop forms of Earth Democracy at the national, regional and global levels that take into account the whole and not just the human part of the whole.
Thomas Berry used to say: “The loss of imagination and the loss of nature are the same thing. If you lose one you lose the other.” Cormac Cullinan continues along the same lines and stresses that the aim of the Mother Earth rights movement is “to foster creative diversity rather than impose uniformity” and “open spaces so that different non-conventional approaches can emerge, flourish, follow its course and die” (Cullinan, 2011).
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