1 Introduction
The Anthropocene inaugurates a new regulatory reality that requires a fundamental rethink of how our socio-regulatory institutions facilitate participation (and by implication representation) in the numerous governance processes that affect all constituents of a vulnerable living order, and which includes both human and non-human beings. While numerous laws at the international, regional and domestic levels laudably offer humans an opportunity to have a say in the environmental governance processes that affect their health and wellbeing, these laws, by their purpose and design, are predominantly anthropocentric and exclusively aimed at promoting human interests.1 The legal means to facilitate participation in environmental governance therefore remain, on balance, mostly geared towards promoting human interests and to facilitating human representation in these processes. The Anthropocene’s deepening socio-ecological dilemma exists,2 in part, precisely because we have not sufficiently cared for a vulnerable human and non-human world.3
Our basic proposal is that the hitherto ignored voices of the non-human world and its interests must be more fully present and represented in our anthropocentric socioregulatory institutions. The Anthropocene, therefore, urges an opening up of the anthropocentrically embedded notion of participation in law and governance processes to also include more-than-humans, if law and governance is to more fully respond to the differentially distributed vulnerabilities of the entire living order, including non-human vulnerability. This could be accomplished through the rights of nature paradigm. This
In this chapter we make out a case in support of opening up the notion of participation to also include within its strict anthropocentric remit the concerns of non-humans, by drawing on the rights of nature paradigm.4 We do so, first, by briefly reflecting on the new socio-ecological reality of the Anthropocene, its deepening socio-ecological crisis, and its multiple patterns of differentially distributed vulnerability, which we believe collectively demand better care for the non-human world. We then interrogate why a rights of nature based approach could be a viable option, in theory, to extend participation opportunities to the non-human world. The next part analyses several examples from Latin American countries where rights of nature provisions are being used, or at least have the potential to be used, to facilitate participation of the non-human world in the governance processes that affect their health, integrity and wellbeing. Our discussion shows that new ways to enable participation for non-humans in the context of rights of nature are mostly facilitated through innovative measures that enable humans to act as guardians and representatives of nature in formal law and governance processes. While these measures have their own limitations and pitfalls, they hold out considerable promise for law and governance to offer the non-human world better protection in the Anthropocene epoch.
2 The Anthropocene’s Vulnerable Living Order5
Humans are pushing the earth system into an unpredictable and unstable state. We have left the Holocene epoch – a relatively harmonious interglacial
The Anthropocene trope abandons the idea that the Earth “somehow provides a stable ground on which the social or human world is constructed”,9 and instead exposes the extraordinary degree of planetary harm that has historically been caused, is currently being caused, and will be caused in future, by some powerful humans.10 In doing so, the Anthropocene trope clearly reveals the vulnerability of the entire living order: we (humans and non-humans) are all vulnerable in the Anthropocene. We are vulnerable because of oppressive forms of human mastery that are exercised by some privileged, hierarchically superior, humans at the expense of an oppressed human and non-human world on which humans depend to sustain an unsustainable neoliberal growthwithout-limits metabolism that feeds of a vulnerable living order.11
The embodied existence of individuals is, to a large extent, encompassed by vulnerability. While our embodied existence has generally been viewed as coterminous with the surrounding biophysical environment, the conceptualization of vulnerability has most often focused on human susceptibility to external harms posed by our biophysical or social environments.13
Harris elaborates that “[H]umans are dependent not only on one another but [also] on a series of trans-human systems, and this interdependence is a source of resilience and vulnerability”.14 In this view, “humans are vulnerable not only because they age, become ill, and die, but because their survival depends on complex macro- and micro-ecologies — all of which are, in turn, vulnerable to harm”.15 The Anthropocene trope therefore illuminates the “agentic entanglement [of humans] with a planetary field of radically distributed, multiplicitous agentic forces”.16 The agentic entanglement that characterizes the Anthropocene means that the ‘fate of humanity’, will be determined as much by planetary integrity and the extent to which a stable earth system can support life, as it will be by humanity itself. In short, our vulnerability, while differentiated because not everyone is equally vulnerable, is ultimately also shared.
Departing from such an ‘enlarged’ notion of a differentially distributed shared vulnerability, we propose ‘earth system vulnerability’ as the context for rethinking participation of non-humans in the Anthropocene. Earth system vulnerability is a concept that potentially embraces the social-human and ecological elements of a disrupted earth system, explicitly emphasising the stakes of the Anthropocene and the fact that human vulnerability is ontologically intertwined with non-human vulnerability.17 Because it relates
[v]ulnerability can be understood as intrinsic to the intercorporeality offered by [an] alternative ontology, for we can understand vulnerability as an irreducible incident of physical embodiment—and as a general condition of biotic materiality. A full emphasis upon our thoroughly incarnate materiality … allows us to acknowledge what we share, not only with other human beings, but with the living order itself - a certain affectability emerging from biomateriality itself.18
The idea of earth system vulnerability dissolves cartesian dualisms and epistemologies of mastery by reconnecting humans with a hitherto externalised, submissive and compliant ‘nature’ that can be ‘managed’, shaped, exploited and used as ‘resources’ by promethean humans.19 Such a recognition is occurring consequent on an awareness, that is foregrounded by the Anthropocene tope, of the power of humans in transforming the earth system and the realisation that how we use this awareness will shape planetary futures and the future of all life, not only our own.20 As Dryzek says:
The Anthropocene … does not just amplify existing ecological concerns: it changes their content by putting humans at the centre of causal processes in the Earth system. In highlighting the vulnerability of the character of the system on which we depend to human action, it also confirms that this system is not something out there demanding limited and occasional attention. Rather, human-induced instability means this system is a key player in how human history will unfold.21
there has never been a time when human history and the history of the Earth were so intertwined. Attempts to grapple with this insight cannot be resolved through scientific questioning alone and ought to give rise to an appreciation of the uniqueness and integrity of each component of the Earth system (humans included) and the world as a relational whole.23
The implications of such a realization and the need for new imaginations have the potential to significantly disrupt law, and particularly environmental law. Among others, human law will arguably have to be more sensitive and responsive to the shared vulnerability of the entire living order. One way to do so is to discard assumptions of human mastery that anthropocentric law still underwrites.24 As we will show below, this endeavour lies precisely at the heart of the rights of nature paradigm.
3 Rights of Nature: A Non-anthropocentric Approach to Address the Socio-ecological Crisis
We have argued above that law will have to be more focused on protecting non-humans, not because such an endeavour would benefit humans, but because it must adhere to an ethical obligation to address earth system vulnerability in its widest sense by extending juridical care to law’s non-traditional subjects. We already see encouraging signs of what is possible in this regard emerging around the globe in the form of rights of nature in several countries.25 Mostly stemming from indigenous laws and cosmovisions, and their altogether more
While in some countries groundbreaking legislation has been adopted for the recognition and protection of rights of nature, in others an emerging jurisprudence built on ecocentric rightsbased approaches to environmental protection is changing the legal status of non-human living entities such as rivers, mountains and forests. As a result, nature has been recognised in several countries as a legal subject with enforceable rights.27 This paradigm shift confirms that non-human living entities have intrinsic value and can no longer be viewed as objects of property, or mere service and resource providers; they must instead be considered as vulnerable subjects of law that deserve special legal protection that could also be facilitated through rights. Rights of nature are especially flourishing in several Latin American countries such as Ecuador, Bolivia, and Colombia, which have all recognized nature as a subject of rights that is entitled to legal protection. For the purpose of this chapter, we will focus on these three countries.
Ecuador is at the forefront in terms of promoting and recognising rights of nature at the constitutional level.28 In 2008, the country adopted a new constitution that incorporates indigenous worldviews and that recognizes the inextricable link between human beings and nature. By accounting for the need to (re)define the humannature dichotomy and to move away from an anthropocentric orientation of law generally and of rights specifically, the Constitution embraces an ecocentric ontology and extends its protection of
Bolivia does not offer an explicit constitutional provision providing for rights of nature in the same way as Ecuador does.32 However, the Bolivian Constitution adopted in 2009 provides for an environmental right that includes non-humans that
everyone has the right to a healthy, protected, and balanced environment. The exercise of this right must be granted to individuals and collectives of present and future generations, as well as to other living things, so they may develop in a normal and permanent way.33
Consequent on this provision, the formal recognition of nature as a bearer of rights was achieved through subsequent legislative reforms, notably with the adoption of two statutes that are rooted in indigenous thought: (i) the Law of the Rights of Mother Earth (Ley de Derechos de la Madre Tierra),34 and (ii) the Framework Law of Mother Earth and Integral Development for Living Well (Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien).35 The Law of the Rights of Mother Earth enumerates specific rights to which nature is entitled and the obligations and duties of the State, and society more broadly,
The case of Colombia shows that rights of nature can be recognised not only exclusively through legislative channels, but also through judicial endeavours. Unlike Ecuador and Bolivia, no legislation on rights of nature has been adopted in Colombia so far. However, tribunals in the country have ruled in favour of non-human entities through groundbreaking decisions. This has changed these entities’ legal status by recognising them as rights-bearing subjects, and it is setting important precedents for rights of nature in Colombia and around the world. In 2016, for example, the Colombian Constitutional Court drew international attention when it issued a landmark judgment recognizing a river – the Atrato River – and its basin and tributaries as a “subject of rights” (sujeto de derechos); a status traditionally reserved for natural persons and legal entities.39 The decision was issued on the basis of a constitutional ‘tutela’ injunction (acción de tutela) that was brought in 2015 by a nongovernmental organization and several indigenous communities against various agencies of the Colombian government. They sought to obtain an order from the court for the effective protection of their fundamental rights, which were allegedly
Following unsuccessful first instance and appeal rulings, the plaintiffs took the case to the Constitutional Court for review. Acknowledging the vulnerability of the river and its destruction because of pollution, the Constitutional Court ruled in favour of the plaintiffs to guarantee the effective enjoyment of their rights. By adopting an ecocentric and biocultural legal interpretation approach, it recognised the Atrato River not as an object to be used for the benefit of humans, but as a legal subject with concrete rights. In this way, considering the river as a living entity that sustains other forms of life (and indigenous cultures more generally), the Court initiated a paradigm shift by granting the Atrato River specific rights, including the right to protection, conservation, maintenance and restoration. Moreover, with the view to ensuring that the river’s rights are actually guaranteed in practice, the Court formulated a number of orders to enforce its decision, including the elaboration of action plans for the restoration and conservation of the river.40 At the time of writing, some progress had been made in complying with the Court’s orders; however, they have not yet been fully implemented.41
Collectively considered, these ground-breaking developments demonstrate the increasing relevance of the rights of nature paradigm to enhance protection of an increasingly vulnerable non-human world. At least on paper, they provide an opportunity to move away from structurally deeply embedded neoliberal and anthropocentric paradigms and, ultimately, to provide a different legal and governance context that can transform the human-nature relationship on the basis of non-anthropocentric world views. Importantly though, these innovative legal developments neither ensure the immediate and effective protection of nature and people, nor do they guarantee ongoing and unimpaired well-being, or prompt comprehensive restoration. This is clear in the light of the “Latin American paradox”, in terms of which unabated mining, hydrocarbon activities, and monoculture exports continue to fund social spending and public works despite rights of nature provisions being recognised by some Latin
4 Letting Nature Participate: Who Speaks for Nature?
Although subject to criticism, as we have shown above, granting rights to nature is generally considered to be an innovative way than can help humans to reenvision our relationship with non-human living entities based on the understanding that non-humans are legal subjects with inherent rights that have to be protected for the sake of protection because it is the right thing to do; not because of nature’s economic or instrumental value for humans. To this end, the rights of nature paradigm might also present a viable opportunity to extend participation opportunities to the non-human world through a range of innovative legal and related political mechanisms. Under traditional environmental and other legal arrangements, humans – individually and collectively – are able to participate in governance processes and institutions, and can only make indirect arguments in support of protecting nature. As principle 10 of the Rio Declaration states: “[E]nvironmental issues are best handled with participation of all concerned citizens, at the relevant level.”45 Clearly, the
The rights of nature paradigm opens up the traditional anthropocentric approach of participation by providing the opportunity to include the rights, needs and interests of nature, so that nature can ‘participate’ in the governance processes and institutions that affect her in a way that recognises that humans and non-humans “are all part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny”.47 In terms of this view, it would be beneficial for the living order if nature also had a voice and a place of her own in governance, judicial and legislative processes that relate to activities that threaten or affect her. This would certainly also enable the full enjoyment of the entire range of legal protection benefits that are created by rights generally. Obviously, however, non-human entities cannot physically appear in a courtroom, nor can they ‘speak’ in governance processes and institutions. Our anthropocentric laws, and legal and political institutions, have not been designed to accommodate nature’s participation, despite rights of nature’s attempts to militate against these parochial closures and exclusions of modernist ‘Western’ law. This conundrum raises several questions including, at a general level: who belongs to communities of justice in the Anthropocene; and how can law address the living order’s shared but differentially distributed vulnerability in the face of accelerating earth system decay and diminishing planetary integrity?48 At a more practical level, the question is: who can speak on nature’s behalf to uphold her rights, needs and interests in decision-making spaces and governance processes that affect her?
The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water –whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents, and which are threatened with destruction.51
In the case of Latin American countries, such as in Ecuador, Bolivia and Colombia, a variety of practical measures are being adopted under the rights of nature approach to determine who can act and speak on behalf of nature, and take action to protect and enforce her rights, as well as what the respective roles and responsibilities of these guardians are. Although these approaches vary from one jurisdiction to another, one does observe the promising emergence of representation and guardianship processes. In particular, in terms of the understanding that the state is not, or should not be, the only entity
In Ecuador, the Constitution incorporates provisions specifying who can speak for nature and participate on her behalf in decision-making processes. While providing that the State has a guardianship role in respect of the environment,52 the Constitution allows any person – individually or collectively – to act on behalf of nature and to take action against public authorities to enforce her rights.53 In this sense, a wide locus standi is recognised by the supreme law to enable anyone to represent and enforce the rights of nature, regardless of whether a direct interest exists.54 This approach has been confirmed by the Código Orgánico General de Procesos,55 which includes an entire chapter on the “representation of nature” in which it provides that any natural or legal person, group or collective, or the Ombudsman, can represent nature and call upon public authorities to enforce her rights.56 In the case of the Ombudsman, it must carry out the protection of nature’s rights ex officio.57 Those representing and acting on behalf of nature can then directly revert to the Constitution to invoke protection of her rights through legal actions, notably through the constitutional protection proceeding (Acción de Protección).58 It is precisely on this basis that civil society and indigenous and environmental organizations have filed several cases (admittedly with diverse results) against the government and private project developers to challenge activities; for instance, to suspend large-scale extractive projects that affect and violate nature’s rights.59
Several important steps have been taken to date to comply with the Court’s orders. However, there is still a lack of clarity regarding the scope of the river’s recognition as a subject of rights and the responsibilities (for example, in case of non-compliance) of the actors involved, especially of the legal representatives of the river. Despite attempts to provide a voice to the river through its legal guardians and attempts to promote intra and interinstitutional cooperation between these and other public and private actors, the necessary means and details to meaningfully operationalize guardianship tasks have not been provided. For instance, funding and organisational support are key to uphold the rights of nature,73 but in this case neither the expected level of coordination between the guardians and other actors has been fully achieved, nor has additional funding to support the guardians’ new duties been provided (especially in relation to indigenous communities).74 Moreover, there has been criticism that guardians from indigenous communities were excluded from protection initiatives led by various government bodies, even though they are the people who best know the territory and the state of the river.75 The guardians also complained about threats against them, and lack of government protection when they are threatened by armed groups and promoters of illegal agricultural and other activities in the area.76 Environmental defenders are increasingly oppressed and criminalized, and they face stigmatisation from the government and media as they are branded “anti-development” and even “terrorists”.77 The killing of environmental defenders in Colombia (65 in 2020) remains a major and deepening concern.78
5
The rights of nature paradigm that has been adopted in countries such as Ecuador, Bolivia and Colombia represents a paradigm shift in the way that we perceive and interact with the non-human world, helping us, as it does, to (re)visualize, (re)conceptualize and ultimately, to reimagine nature/society relations. Perhaps even more importantly, it also helps us to better appreciate how human-made laws can better protect the non-human world, not for human benefits, but because it is the right thing to do. One of the additional advantages of the rights of nature paradigm, is that it opens up the notions of participation and associated representation and guardianship possibilities in this respect, by extending law’s protective embrace to non-human living entities so they can ‘participate’ in decision-making processes, mostly through innovative representation and guardianship measures provided by legal and quasi-legal arrangements.
But this approach also has its challenges. It remains unclear, for example, what the full scope of implications of recognising nature as a rights-bearing subject will be, and if these legal and jurisprudential developments will actually be able to effectively enhance participation practices for the benefit of nature. Will such recognition only be limited to a symbolic step, or will it generate the necessary thoroughgoing transformations that we need to see? Our analysis tentatively suggests that rights of nature and several practical measures such as the appointment of guardians, is only a first, but necessary, step in what will probably be a much longer process of realising a more comprehensive and effective approach to protect non-human beings.79
Our analysis also suggests that, while laudable, in order to be more effective, efforts to represent nature in law and governance through guardianship functions will have to address several concerns. For example, and in addition to those mentioned above, representation and guardianship duties have been entrusted to the state and other public agencies at regional or local levels, alongside indigenous communities. However, designating the state as the central guardianship authority raises doubts over its true commitment to speak on behalf of nature and to protect her rights given the extractivist policies enacted by the very same state. In these countries, as in other countries throughout Latin America, the unsustainable anthropocentric and neoliberal logic of development based on the exploitation of nature continues to be promoted,
Ensuring independency and impartiality of guardians, clearly defining their duties and tasks, and developing supervision and monitoring mechanisms, are key elements for nature guardianship procedures to respond to the particular needs and vulnerabilities of non-human living entities, and to continuously ensure the quality of guardianship practices. In many instances, these support mechanisms still seem to be largely absent. Governments’ lack of political will also remains a concern, as the case of Bolivia suggests. More than ten years after the law created the legislative foundations for the establishment of an independent and impartial office entrusted with guardianship functions, this has not yet been achieved. Colombia for its part shows the risks that some guardians of nature, especially those from indigenous and Afro-descendant communities, face when defending nature and their territories and culture, and when they resist development projects that impact their rights and the rights of nature.
Despite these challenges, we agree with Gellers that the rights of nature paradigm holds out considerable promise to “force humanity to reconsider the range of ideas eligible for inclusion in legal systems and the kinds of entities deserving of legal personhood and rights. The prospects for achieving socioecological justice may depend upon this kind of ontologically broad and epistemologically diverse alteration of the status quo.”82 In our view, rights of nature remains one of the most viable, and certainly exciting, prospects to extend law’s care to the non-human world, and to draw non-humans within the protective embrace of the law through innovative ways to facilitate meaningful ‘participation’ through representation and guardianship roles.
See, for an overview, Thomas Beierle, Democracy in Practice: Public Participation in Environmental Decisions (Routledge 2002).
A dilemma that has itself been created as a result of predatory forms of anthropocentric development that law facilitates. See Louis Kotzé, ‘International Environmental Law and the Anthropocene’s Energy Dilemma’ (2019) 36 EPLJ 437.
Clive Hamilton, ‘The Anthropocene as Rupture’ (2016) 3 The Anthropocene Review 93.
Other related studies focus, among others, on how the rights of nature paradigm could counter the stifling hegemonic closures and oppression of the vulnerable living order that are being occasioned by the neoliberal sustainable development principle in international environmental law. See eg, Louis Kotzé and Sam Adelman, ‘Environmental Law and the Unsustainability of Sustainable Development: A Tale of Disenchantment and of Hope’ (2022) Law & Critique, <https://doi.org/10.1007/s10978-022-09323-4> last accessed 12 September 2022.
This part draws on Louis Kotzé, ‘The Anthropocene, Earth System Vulnerability and Socio-ecological Injustice in an Age of Human Rights’ (2019) 10 JHRE 62.
Will Steffen, Paul J Crutzen and John R McNeill, ‘The Anthropocene: Are Humans Now Overwhelming the Great Forces of Nature?’ (2007) 36 Ambio 614.
See, among others, United Nations Environment Programme (UNEP), ‘Global Environment Outlook 6: Healthy Planet Healthy People’ (UNEP 2019), https://wedocs.unep.org/handle/20.500.11822/27539;jsessionid=6397789F9F41D2F33A1D6791D926ECC0 last accessed 28 March 2022.
Anna Grear, ‘Legal Imaginaries and the Anthropocene: “Of” and “For”’ (2020) 31 Law & Critique 351.
Gerard Delanty and Aurea Mota, ‘Governing the Anthropocene: Agency, Governance, Knowledge’ (2017) 20 EJST9.
Frank Biermann, ‘“Earth System Governance” as a Crosscutting Theme of Global Change Research’ (2007) 17 Global Environmental Change 326.
Sam Adelman, ‘The Sustainable Development Goals, Anthropocentrism and Neoliberalism’ in Louis Kotzé and Duncan French (eds), Sustainable Development Global Goals: Law, Theory and Implementation (Edward Elgar 2018).
For example, Martha Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale JL & Feminism 1.
Huey-li Li, ‘Rethinking Vulnerability in the Age of Anthropocene: Toward Ecologizing Education’ (2017) 67 Educational Theory 435.
Angela Harris, ‘Vulnerability and Power in the Age of the Anthropocene’ (2014) 6 Washington and Lee Journal of Energy, Climate, and the Environment 98.
Ibid at 98.
Grear, n 8, at 358.
Anna Grear, ‘The Vulnerable Living Order: Human Rights and the Environment in a Critical and Philosophical Perspective’ (2011) 2 JHRE 23.
Ibid at 43.
Sam Adelman, ‘Epistemologies of Mastery’ in Anna Grear and Louis Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar 2015).
William Clark, Paul Crutzen and Hans Schellnhuber, ‘Science for Global Sustainability: Towards a New Paradigm’ in Hans Schellnhuber et al (eds), Earth System Analysis for Sustainability (MIT Press 2004).
John Dryzek, ‘Institutions for the Anthropocene: Governance in a Changing Earth System’ (2016) 46 British Journal of Political Science 937.
Donna Houston, ‘Crisis is Where we Live: Environmental Justice for the Anthropocene’ (2013) 10 Globalizations 439.
Peter Burdon, ‘Rethinking Global Ethics in the Anthropocene’ in Peter Burdon, Klaus Bosselmann and Kirsten Engel (eds), The Crisis in Global Ethics and the Future of Global Governance: Fulfilling the Promise of the Earth Charter (Edward Elgar 2019).
Shawkat Alam et al (eds), International Environmental Law and the Global South (CUP 2015).
Eg Roderick Nash, The Rights of Nature: A History of Environmental Ethics (University of Wisconsin Press 1989).
Bawaka Country et al, ‘Co-becoming Bawaka: Towards a Relational Understanding of Place/Space’ (2016) 40 Progress in Human Geography 455.
For a summary of those countries, see Harmony with Nature United Nations, ‘Rights of Nature Law and Policy’ (Harmony with Nature, date unknown), www.harmonywithnatureun.org/rightsOfNature/ last accessed 28 March 2022.
For a thorough analysis of the Ecuadorian case, see: Louis Kotzé and Paola Villavicencio Calzadilla, ‘Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador’ (2017) 6 TEL 401.
Constitution of the Republic of Ecuador (Constitución Política de la República del Ecuador) [Ecuador], 20 October 2008, Official Registry No 449, at art 14.
Ibid at arts 10, 71 and 72.
Ibid at art 11(6).
Eg Paola Villavicencio Calzadilla and Louis Kotzé, ‘Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia’ (2018) 7 TEL 397.
Constitution of the Plurinational State of Bolivia (Constitución Política del Estado (CPE) Plurinacional de Bolivia) [Bolivia], 7 February 2009, at art 33 (own emphasis).
Law 071 of the Rights of Mother Earth (Ley de Derechos de la Madre Tierra, Ley N° 71) 21 December 2010, Gaceta Oficial de Bolivia núm 2370, 5 págs.
Framework Law 300 of Mother Earth and Integral Development for Living Well (Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien, Ley N° 300) 15 October 2012, Gaceta Oficial, núm 431NEC, 61 págs.
Mother Earth is defined as “a dynamic living system comprising an indivisible community of all living systems and living organisms, interrelated, interdependent and complementary, which share a common destiny” (Law 071 of the Rights of Mother Earth, n 34, at art 3).
Ibid at art 5.
Ibid at art 7.
See Tierra Digna y otros v Presidencia de la República y otros, Colombian Constitutional Court, ruling T-622 of 10 November 2016, Expediente T-5.016.242 (full text in Spanish at <www.corteconstitucional.gov.co/relatoria/2016/t-622-16.htm> last accessed 15 December 2021). Since this decision, various Colombian courts and tribunals have also recognised other natural entities – such as rivers and the Amazon rainforest – as subjects of rights along the same lines as those given to the Atrato River. See, for instance, on the Amazon, Paola Villavicencio Calzadilla, ‘A Paradigm Shift in Courts’ View on Nature: The Atrato River and Amazon Basin Cases in Colombia’ (2019) 15 LEAD Journal 49.
Ibid.
See, for instance, Comité de Seguimiento, ‘Quinto informe de seguimiento Sentencia T-622 de 2016’ (March 2020), <uploads-ssl.webflow.com/5f330f48105fd08d006005e0/5f6acb5346e543414fc9e93a_QUINTO%20INFORME%20DE%20SEGUIMIENTO%20CC%20-TAC%2003-2020.pdf> last accessed 28 March 2022; and Ambiente y Ciencia, ‘Ríos, sujetos de derecho: lento avance’ (25 January 2020), <elnuevosiglo.com.co/articulos/01-2020-rios-sujetos-de-derecho-lento-avance> last accessed 15 December 2021.
Miriam Lang, ‘Prologue: Crisis of Civilisation and Challenges for the Left’ in Miriam Lang and Dunia Mokrani (eds), Beyond Development: Alternative Visions from Latin America (Transnational Institute/Rosa Luxemburg Foundation 2013).
Eija Ranta, ‘Buen Vivir as Transformative Alternative to Capitalist Coloniality’ in SA Hamed Hosseini et al (eds), The Routledge Handbook of Transformative Global Studies (Routledge 2020).
Unai Villalba, ‘Buen Vivir vs Development: A Paradigm Shift in the Andes?’ (2013) 34 TWQ 1427.
United Nations, ‘Report of the United Nations Conference on Environment and Development’ (Rio de Janeiro 3–14 June 1992), General Assembly, United Nations publications (Vol. I), U.N. Doc. A/CONF.151/26, 31 ILM (1992) 874 (Rio Declaration) (own emphasis).
Christopher Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ (1972) 45 S Cal L Rev 450.
World People’s Conference on Climate Change and the Rights of Mother Earth, ‘Proposal Universal Declaration of the Rights of Mother Earth’, Cochabamba (Bolivia), April 2010 (PWCC, date unknown), <pwccc.wordpress.com/programa/> last accessed 30 March 2022.
See, generally, Joshua Gellers, ‘Earth System Law and the Legal Status of Non-humans in the Anthropocene’ (2021) 7 Earth System Governance 100083, <https://doi.org/10.1016/j.esg.2020.100083> last accessed 30 April 2022.
For the cases of Australia, New Zealand and India where legal rights were also recognized for rivers, see Erin O’Donnell and Julia Talbot-Jones, ‘Creating Legal Rights for Rivers: Lessons from Australia, New Zealand, and India’ (2018) 23 Ecology and Society 7, <https://doi.org/10.5751/ES-09854-230107> last accessed 30 April 2022.
Ramiro Ávila Santamaría, ‘El Derecho de La Naturaleza: Fundamentos’ in Alberto Acosta and Esperanza Martinez (eds), La Naturaleza Con Derechos. De La Filosofía a La Política (Ediciones Abya Yala 2011), 201 (translation by the authors).
Supreme Court of the United States of America, Sierra Club v Morton, 405 US 727 (1972) at <www.oyez.org/cases/1971/70-34> last accessed 30 April 2022.
Constitution of Ecuador, n 29, at art 399.
Ibid, at art 71. The same art provides that “The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.”
See, also Constitution of Ecuador, n 29, at arts 10, 11, and 396–97.
General Organic Code of Processes of the Republic of Ecuador (Código Orgánico General de Procesos (COGEP)), 22 May 2015, Official Registry No 506.
Ibid, at Cap II, art 38.
Ibid. See also Organic Law of the Ombudsman’s Office (Ley Orgánica de la Defensoria del Pueblo), 6 May 2019, Official Registry No 481, at arts 2–6, 9, 22.
Constitution of Ecuador, n 29, at art 88. The Acción de Protección is a form of constitutional action which aims to ensure direct and efficient protection of the rights enshrined in the Constitution.
Some of these cases involved specific natural entities in the country, such as the Vilcabamba River, the Blanco and Piatúa Rivers, Paramo Tangabana, and a protected forest area Los Cedros. See Observatorio Jurídico de Derechos de la Naturaleza, ‘Casos de Ecuador’ (2018) <www.derechosdelanaturaleza.org.ec/casos/> last accessed 30 April 2022.
Constitution of the Plurinational State of Bolivia, n 33, at art 108.16.
Ibid at art 34.
Framework Law 300, n 35, at art 38.
Law 071 of the Rights of Mother Earth, n 34, at arts 6 and 8–9.
See, for instance, Tribunal Agroambiental de Bolivia, Auto Agroambiental S1ª Nº 40/2021, 5 May 2021.
Framework Law 300, n 35, at art 39.
Constitution of the Plurinational State of Bolivia, n 33, at art 34. This constitutional remedy, termed ‘popular action’ (acción popular) was created as a mechanism to protect and defend collective rights and interests, including those embraced by the environmental right and the rights of nature (see also arts 135–36).
Law 071 of the Rights of Mother Earth, n 34, at art 10; Framework Law 300, n 35, at arts 39.I and 52.VI.
See Tierra Digna y otros v Presidencia de la República y otros, n 39.
In 2017, the Colombian government designated the Ministry of Environment and Sustainable Development as the River’s legal representative. In addition, the local communities chose fourteen representatives coming from seven community organisations to act as “community guardians” of the river. See Presidencia de la República de Colombia, ‘Supreme Decree 1148’ (5 July 2017) on the “community guardians” of the Atrato River, <www.guardianesatrato.co/quienes-somos> last accessed 10 December 2021.
The Commission of the Guardians of the Atrato River was stablished in May 2018. See Ministerio de Ambiente y Desarrollo Sostenible, ‘Resolución 907 de 22 de mayo de 2018’ Diario Oficial No 50.602 de 23 de mayo de 2018.
These plans include: (i) a decontamination plan of the Atrato River basin (Operative part pt 5); (ii) a coordinated action plan to neutralise and eliminate illegal mining in the Atrato River and its tributaries, as well as in all of the Chocó department (Operative part pt 6); (iii) an integrated action plan for traditional livelihood and food retrieval (Operative part pt 7); and, (iv) conducting toxicological and epidemiological studies in the Atrato River, its tributaries and neighbouring communities to determine the degree of contamination and the possible impact on human health (Operative part pt 8). In 2018, the Atrato River Guardianship Commission was created as a coordination space for the fulfilment of the Court’s orders. It has the competency to define its own rules of procedure. See Resolución 907, n 70, at art 3.
The Compliance Committee, which is headed by the Procuraduría General de la Nación and the Defensoría del Pueblo, was also set up in 2017.
O’Donnell and Talbot-Jones, n 49, at 6–7.
Comité de Seguimiento, n 41.
Ibid at 99–100.
Carolina Ávila, ‘Guardianes del río Atrato: amenazados e ignorados’ El Espectador (22 April 2018), <www.elespectador.com/colombia-20/conflicto/guardianes-del-rio-atrato-amenazados-e-ignorados-article> last accessed 28 March 2022.
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