“In ancient times, mountains were erected, rivers were moved, lakes were formed. Greenery and flowers covered our Amazon, our chaco, our altiplano and our plains and valleys. We populated this sacred Mother Earth with different faces, and we understood since then the current plurality of everything and our diversity as beings and cultures”.
This how the Bolivian constitutions starts (read entire constitution).
The first thing that strikes the reader of the Bolivian constitution is the fact that human beings are not the alpha and omega but depicted as mere residents of a pre-existing land. This is not a very common feature among world’s constitutions. Constitutions are usually very anthropocentric. «We the people». That is how both the United States constitution and the United Nations charter start. Of course today some try to push forward a recognition of non-human animals as « people », but this was certainly not the original intention (see previous posts on primates and habeas corpus).
Many other constitutions adopt the same tendency to exclude all non-human agents. Here is an excerpt of the preamble of the 1947 Japanese constitution:
“sovereign power resides with the people and do firmly establish this Constitution. Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded”.
The French constitution was originally as anthropocentric as many others and focused specially on human rights. Today, it includes in its first paragraph a reference to the 2004 « charte de l’environnement » (read the preambel), which – while certainly being an important step forward – does not go as far as the Bolivian Constitution and legislation.
The particularity of the Bolivian Constitution is to recognize humans as having obligations towards nature itself. As stated in article 342 of the Bolivian Constitution:
“It is the duty of the State and the population to conserve, protect and enjoy in a sustainable way the natural resources and the biodiversity, and to maintain the balance (el equilibrio) of the environment”. (read constitution).
The general principles of the Bolivian constitution were later expanded in law 071 and law 300. Explaining the content of law 071 to the United Nations, the Bolivian Government insisted on the fact that the text recognized rights to the Madre Tierra and only obligations to humans:
« the central purpose (of the law) is to recognize rights to Mother Earth, as well as obligations and duties of the Plurinational State and the society to ensure that those rights are respected ” (read entire text).
Technically, it means that Mother Earth is considered a “collective subject of rights” (art 5, ley 071) and that obligations rest both on the public authorities and the individuals. Those obligations are set forth in law 300 which provides for example an obligation of restitutio in integrum for those who damage mother earth (art 4§5, Ley 300) or a general obligation to treat the natural resources in a way that permits their natural regeneration (art 4, §6, Ley 300).
To the exception of the Ecuadorian constitution, the way Bolivian constitution is crafted seems quite unique in the sense that nature itself is a subject of rights. This element was the main reason this post was written but next ones will dig deeper into the Bolivian legislation. First, to understand the extend to which material obligations are different than the ones set forth in the systems I am more familiar with (Europe and the United States). Second, to analyse how “mother earth” is defended in practice. Who, for example, can stand in front of a court in its name? And can he/she defend the animals?
Vincent Chapaux – February 2015