PACHAMAMA AND THE RIGHTS OF NATURE

Respect for our surroundings and recognition of the network around us

Introduction

Definition

“The fundamental principles of the indigenous movement are life, Mother Earth, and peace, these fundamental principles of the indigenous movement of the world are permanently threatened by a system, by a model, the capitalist system and the model of how to end with life and Mother Earth ⟦…⟧ It’s an imperative for all the governments of the world to advance with the overcoming and eradication of the conditions of extreme poverty and the discrimination that still indigenous people are suffering, this in order to give a solution to the structural poverty problems ⟦…⟧ This World Conference must be the starting point to define collective actions in the defense of life to initiate processes of transformation and change starting from sovereignty and science of indigenous population in direct combination with technology and scientific progress of these times ⟦…⟧ It’s an imperative that indigenous populations around the world realize full exercise of their individual and collective rights on earth and territory”.

Evo Morales, 2008

In Quechua language, the word “Pachamama” is composed of two words - Pacha (or Earth) and Mama (or Mother), and means Mother Earth or Madre Tierra. The word itself suggests a way of thinking that transcends the primary social order’s common view. According to Henri Gooren, Pachamama is “[...] reverential appellation with which the Andean peoples worship earth for being the place of human life, and especially the Quechua and Aymara peoples of central and southern Andes, for whom Pachamama is a living and conscious being that has the ability to produce”. For the Indigenous societies of the Central Andes in South America, who venerate her (Pachamama) as a totemic goddess, she can be found in everything else that is alive, or being a thought of organic social motion. Pachamama is nature, water, earth, plants and everything that allows for the construction, progression, and prosperity of life in this world. The social and ethnic events that happen are completely aware of the relationship with Pachamama, and thus represent the compromise between the individual and her. She is not only the planet, but she encompasses that to be more generous. Nature is in constant contact with the individual, and the means of contact are infinite and various. Pachamama protects people and, through her actions, enables them to live their respective lives. This is why individuals have to administer Pachamama and account for her. The Andean culture and tradition of reverencing Pachamama are still present in the countries of the region that inhabit Los Andes’ region. In Argentina, Bolivia, Chile, Colombia, Ecuador, and Perú, Indigenous people continue to advance the generational tradition of respect towards Mother Earth. 

Colonization

After the Spanish colonization of the Americas started in 1492, the conquerors forced native communities to adopt Roman Catholic belief, and because of religious syncretism, the figure of the Virgen was associated with Pachamama for many Indigenous, the Black Virgen. Nowadays, a lot of traditional Indigenous practices and rituals that honor the Pachamama are conducted together with Christian ones. With the advent of colonization, western ideas started to spread in the colonized countries. Together with the dissemination of western culture around the colonies, the factual diversity between populations inhabiting the world led to the conceptualization of modern anthropology. Born in the 17th century, this new science drew itself from knowledge capable of classifying different human races, based on physical, cultural, and social features. Primitive populations appeared in the taxonomy, and still, it appears difficult to eradicate the discriminatory and colonialist paradigm that was enacted then. Indigenas is the name given to people who are natives of one land that bring forward an ancestral cultural tradition.

Institutional framework

The “Declaration on the Rights of Indigenous People Act” (2007) has the primary purpose of trying to attend to the basic needs of the 370 million native people around the world who lack access to their belongings. The first “World Conference on Indigenous People” or “Conferencia Mundial sobre los Pueblos Indígenas” took place in 2014 at the United Nations (UN) headquarters in New York. Around 2,200 representatives of Indigenous populations from seven regions of the world -or around 100 countries with Indigenous population- took part in this conference, meant to provide institutional protection for the 370 million natives. The forum’s primary task was to homologate the 2007 Declaration. The Declaration viewed Bolivia as the main actor due to its great advocacy in the defense of the rights of Pachamama. Climate change was one of the main flags in the Conference, because of the strong impact it has on the culture of indigenous populations around the world; together with climate change, historical claims for land and territory were discussed with the same preeminence. Evo Morales, 65th President of Bolivia, was considered the main administrator of the homologation of indigenous population’s rights.

Rights Of Nature

Overview

“The fact is, that each time there is a movement to confer rights onto some new "entity," the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of "us"-those who are holding rights at the time”.

Christopher D. Stone, 1972

The legal history of rights has been characterized by the re-proposition of situations in which subjects considered rightless had to fight to have their intrinsic rights recognized. Perspectives, considering ecosystems as property, are still persistent. Frequently, laws are composed in order to protect the property rights of individuals, corporations, and other legal entities recognized as legal subjects, and this empowers them when assessing justice. Javier Milei, a newly-elected Argentinian president, has stated in the second presidential debate held in the University of Buenos Aires (UBA): “All these policies that blame human beings for climate change are false”. Similarly, a candidate from La Libertad Avanza (LLA), referred to climate change as a “socialist lie” . 

According to this article, the Rights of Nature should acknowledge and recognize nature's rights to exist, resist, pertain, and regenerate its vital cycle. Thus, these rights must be enforced by people who inhabit the ecosystem, and are therefore responsible for nature's well-being. In essence, mutual support should be established between Mother Earth, who made life possible, and the child, who is supposed to be taking care of her. The theory of the Rights of Nature was proposed for the first time in 1972 by Christopher D. Stone in the Southern California Law Review, titled “Should Trees Have Legal Standing? Towards Legal Rights for Natural Objects”. In the article, Professor Christopher D. Stone observes the contestation of Nature as a rightless entity, thus having no legally recognized rights to defend and enforce, and further advocates for the construction of a system of rights that must be granted for the protection of the Earth. Since then, in academia and beyond, such concepts as Environmental Law have been considered. Indeed, various articles, declarations, manifestos, and campaigns have been raising awareness and advocating for the Rights of Nature. Ganga Action Parivar and the Global Interfaith WASH Alliance launched a campaign in 2012 in India, calling for the recognition of the Ganga River’s rights, which is also represented in their slogan, “Ganga’s Rights are Our Rights”. The National Ganga River Rights Act was then drafted, enabling the Ganga River to have a legal personality and thus entail a set of rights. Similarly, the Colombian Supreme Court recognized the Colombian Amazon as “an entity subject to rights, entitled to protection, conservation, maintenance and restoration by the State and the territorial entities that comprise it” in 2018. Furthermore, Tamaqua, Pennsylvania, the US, was the first place in the world to recognize the Rights of Nature in 2006, when it banned the dumping of toxic sewage sludge as a violation of the Rights of Nature. In 2008, Ecuador was the first country to recognize the Rights of Nature in its national constitution. In 2009, the UN proclaimed the “International Mother Earth Day” on the 22nd of April. The following year, during the “International Mother Earth Day” at the World’s People Conference on Climate Change and Rights of Mother Earth, held in Cochabamba, the “Universal Declaration for the Rights of Mother Earth” was issued. The Declaration is composed of the following articles: the Mother Earth, its inherent rights, the obligations of human beings to Mother Earth, and definitions. Overall, some positive national, regional, and international developments have been seen with regard to protecting Mother Earth.

Human beings were able to evolve and acquire knowledge thanks to paradigms’ shifts in ways of thinking, acting, and considering the world around them. This shift requires consciousness improvement and the enforcement of not only regulations, governing our surroundings, but also provisions, able to protect our surroundings and communities. Due to the increased interdependence of Nation States, a process of constitutionalization of international organizations, and uniformity with regard to some constitutional principles, a shift in global legal transitions should be expected (Bosselmann, K., 2008, p. 173). Such transnational concerns refer to the rule of law, justice, democracy, and human rights, among others. Arguably, the environment is even more fundamental than human rights, as it represents the natural conditions of all life including human beings (Bosselmann, K., 2008, p. 173). It is indeed a necessary precondition to lead one’s chosen life; therefore, it has been, at times, classified as a human right to a healthy environment. Although this is just one way of constitutionalizing the environment, since, as Alan Boyle says, “environmental rights do not fit neatly into any single category [...] of human rights".

Eco- or anthropo-

The extent to which environmental rights should be considered through either an ecocentric or anthropocentric lens is therefore discussed below. On the one hand, an anthropocentric approach would place the focus on human interest and well-being, ensuring that nature would be valued based on its benefits for humans, ultimately prioritizing short-term benefits only for human beings. On the other hand, an ecocentric view would emphasize the intrinsic value of nature as separate from the value it gives to human activities, potentially hindering sustainable development. An integrated approach as an unsolicited response could recognize the existing interdependence between human well-being and ecological health. Global environmental constitutionalism must address its ethical foundations. After all, Pachamama constitutions in Latin America, eco-constitutional discourses in Europe, and the growing Earth jurisprudence movement fundamentally question Western anthropocentrism. Similarly, a truly global perspective should be critical of Eurocentric notions of constitutionalism, which still shapes mainstream comparative constitutional studies (Bosselmann, K., 2008, p. 173). It could be thus said that the choice between ecocentrism and anthropocentrism results from the tradition embedded in one’s belief system.

When shifting from legal and judicial terms to economic ones, a distinction can also be made with respect to economic anthropocentrism or economic ecocentrism, which in economic terms correspond to environmental and ecological economies. The core concepts of environmental economics are the theory of environmental externalities -externalities are an effect of a market transaction that impacts the utility, positively or negatively, of those outside the transaction-, the optimal management of common property and public goods, the optimal management of natural resources over time, and the economic valuation of environmental goods and services (Harris, J.M., & Roach, B., 2021). The core concept of ecological economics assesses that the economic system is a subset of the broader ecological system, sustainability should be defined according to ecological, rather than economic, criteria, and that it is essential to rely upon a range of academic disciplines and perspectives, in addition to economics, to provide insight into environmental issues. Indeed, ecological economics implies a more holistic and pluralistic approach. At the same time, the Brundtland Commission defined Sustainable Development as a development that meets the needs of the present without compromising the ability of future generations to meet their own needs, and is consistent with standard environmental economics, which implies that at least some degradation of the environment can be acceptable as long as it does not interfere with meeting human needs. Therefore, it could be argued that both ecocentric and anthropocentric approaches should be integrated to achieve a more balanced outcome.

Environmental Justice and Distributive Politics in Latin America

According to the United Nations’ data on Sustainable Development Goals, regions of Latin America and the Middle East represent the world’s most affected and unequal regions in terms of income distribution, among others. While Brazil, Chile, and Mexico have the highest degree of income inequality among all countries in the region, Argentina, Ecuador, and Uruguay have witnessed some decline in inequality since the 2000s. Although some positive trends are visible, inequality persists and significantly shapes the distributive politics of environmental protection in the region. The power of the different actors at play in the distribution reflects policy outcomes, as it is often the case the poor -that should rely on state protection- are the ones suffering from environmental issues. The different actors that can be identified in this scenario are the State, social and economic actors. The latter two differ because of profit orientation: economic actors are profit-oriented, while social actors are not. The modern state therefore has to confront itself with the contradiction of having to simultaneously achieve capital accumulation and democratic legitimacy. Behind every environmental conflict there is a distributive inequality between those who benefit from the appropriation and contamination of natural resources and those who suffer from the socio-environmental costs of that appropriation (Alcañiz, I. & Ricardo, A.G., 2022). The connection that a state creates in the area of environmental protection often foretells who is going to benefit the distribution of state actions. To protect the environment, additional fundings and budget surpluses that come from extracting activities, are oftentimes required.

Extractive activities’ negative impact on the indigenous communities, in particular, is often disregarded even though the point of extraction has consequences in terms of “health, livelihood stability, social disturbance, cultural resilience, and their critical importance and adaptive capacity in the context of changing climatic patterns” (MacLennan, M., & Perch, L., 2012). Thus, apart from GHG emissions, the aforementioned externalities must be taken into account. Logging and deforestation, mining, expansion of agriculture, and oil and gas extraction are all activities that interfere with indigenous communities and their way of life when there is no consent or compromise over the proceedings.

Indeed, Article 7 of the “Indigenous and Tribal Peoples Convention” (1989) states: 

“The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly”.

The Convention thus establishes the design of community consultation that can range between free, prior, or informed consent consultation for Indigenous communities.

Similar networks established between state and non-state agents play a crucial role in the protection of nature and, consequently, may lead to its institutionalization. For instance, the creation of Ombuds Offices - a neutral and impartial office that behaves as a third party and receives and solves complaints and problems that arise within organizations - in Argentina, Costa Rica, and Peru can signify such change. In her study from 2018, M. Paredes finds that the network that links the Ombuds Office (Defensorìas del Pueblo) and human rights groups, was able to increase the representation of marginalized communities, especially the indigenous ones, in the fight for environmental protection actions.

Indigenous Rights to Self-Determination

The adoption of the Indigenous and Tribal Peoples Convention (1989), the United Nations Declaration of Rights of Indigenous People (2007), and the recognition of self-determination in the American Declaration on the Rights of Indigenous People (2016) by the Organization of American States (OAS), are all examples of multicultural reforms enacted to recognize the multifaceted rights of Indigenous People. Despite positive developments in the international law provisions, violations against Indigenous People are continuously perpetrated. Deeply-rooted social, economic, and political inequalities, among others, have not allowed for the regulations to be appropriately and timely executed. Significant economic growth, brought about by the commodity boom in the last two decades, and the expansion of extractive industries to rural areas, has both urged the Indigenous People of Latin America to make greater claims of self-determination. For Maria de los Angeles Santiago Sánchez, an Indigenous member of San Antonino Castillo Velasco in Ocotlán, Oaxaca: “[...] self-determination means that we use the ways of working of our communities; elect the people that will represent us in the municipalities, decide what happens in our territories, and decide what is best for the community including the participation of all” (Ramírez-Espinosa, N., & Cerqueira D., 2021).

In light of the criticism towards the neoliberal policies and their danger for autochthonous communities, leftist governments, sustained by Indigenous voters, in Bolivia (2006), Ecuador (2007), and Peru (2011) came to power together with their agenda noted with Indigenous rights’ promises. In Peru, the centrality of extractive industries remained a strong driver for the economy of the country, not allowing for internal reforms. On the other hand, those internal reforms were approved in Ecuador and Bolivia with regard to the national constitution and its care for Indigenous Rights and Environmental Protection. For instance, in the new constitutions of Ecuador and Bolivia, the principle Buen Vivir was included. The concept has to be defined as one deeply rooted in the indigenous cosmovision and cultural tradition of the possibility of conducting a good-life only if one belongs to a community, where the good life of the community is placed above that of the individual as the community encompasses the ecosystem as a whole. In reality, the introduction of this concept was made compatible with the expansion of oil and mining industries in the countries, allowing for a half-way agreement between the economic and the social actors.

In conclusion, there is not a single and established way to reach self-determination among Indigenous communities, and not even anti-extractivism can be considered a common feature. Communities build their connections with state and non-state actors and therefore use Favorable Legislation Frameworks (FLF) - electoral autonomy regimes, justice administration, customary laws, prior consultation, and compensation mechanisms - to try to improve their conditions. To discuss national legislative frameworks in greater detail, an analysis of some constitutions is presented below (Torres-Wong, M., 2023).

Constitution of Ecuador

In the Preamble of the 2008 Ecuadorian Constitution, the sovereign people of Ecuador recognize their age-old roots and celebrate nature, Pacha Mama, “of which we are part and which is vital to our existence. ⟦…⟧Hereby -the population- decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumak kawsay -quechua neologism created in the 1980s as a political and cultural proposal later on traduced as Buen Vivir-; a society that respects, in all its dimensions, the dignity of individuals and community groups.” With regard to natural resources, the Constitution states: “[...] nonrenewable natural resources of the State’s territory belong to its inalienable and absolute assets, which are not subject to a statute of limitations”.

Provisions of the Ecuadorian Constitution aim to protect nature, which can be seen from the integration of nature in constitutional tradition as justified by the multi-cultural traditions and ecological claims. In addition to a universalized conception of rights of nature, the constitutional courts are engaging in the process to protect these rights. One of the examples is the Vilcabamba River case, in which Richard Frederick Wheeler and Eleanor Geer Huddle demanded the observance of the rights of nature, also protected in Article 71 of the Ecuadorian Constitution. 

Article 71 of the Ecuadorian Constitution states:

“Nature, or Pacha Mama, 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. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate. 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.”

All the stakeholders are therefore enabled to act as guardians of Pacha Mama and her rights. Consequently, Richard Frederick Wheeler and Eleanor Geer Huddle sued the provisional project -delivered by the Provincial Government of Loja- that damaged the surrounding environment. Naming the appropriate parties was denied in the first petition, but eventually the Provincial Justice Court of Loja settled down for interpretations of the constitutional provisions, according to which public authorities must provide evidence that exploitation does not damage resources. If such damage occurs, a plan to restore the environment must be implemented. Last year, the Ecuadorian citizens voted in two historic referendums to halt the development of oil drilling in a protected part of the Amazon rainforest and mineral extraction in a forest just outside of Quito, the capital. Ecuador’s Chamber of Mining head Maria Eulalia Silva stated: “Obviously what happened with Yasuni and in the Choco Andino doesn’t help any oil or mining investment, nor any foreign investment.” However, the Ecuadorian citizens recognized the climate crisis that is affecting the Amazonian and were the first country in the world that, through a democratic vote, was able to set a limit regarding the extraction of resources.

Constitution of Bolivia

Evo Morales, a Bolivian politician and activist belonging to the indigenous pueblo aymara, became the President of the Estado Plurinacional de Bolivia in 2006. During his mandate, Bolivia was one of the countries with the most economic growth in Latin America, with a significant reduction in poverty and inequalities - there was an average growth in GDP of five per cent-. The application of the Cuban methodology “si, yo puedo” (yes, I can) in the area of education significantly decreased the rate of illiteracy in the country, allowing for the recognition of the “free from illiteracy” status declaration by UNESCO in 2008. Moreover, he promulgated the 2009 Bolivian Constitution, which allowed the country to recognize its multicultural internal reality and the diversity of communities that were united during the Spanish colonization. “We have left the colonial, republican and neoliberal State in the past. We take on the historic challenge of collectively constructing a Unified Social State of Pluri-National Communitarian law, which includes and articulates the goal of advancing toward a democratic, productive, peace-loving and peaceful Bolivia, committed to the full development and free determination of the peoples.”

The recognition of the Rights of Nature is emblematic in the Constitution of Bolivia, as every individual is recognized to be a guardian of the environment and therefore representative of its legal personality. The title “holder of inherent rights'' is given to Pacha Mama in the Law of the Rights of Mother Earth, which was established the year after the Constitution was enacted. Investment in the rights of nature is guaranteed:

“For the purpose of protecting and enforcing its rights, Mother Earth takes on the character of collective public interest. Mother Earth and all its components, including human communities, are entitled to all the inherent rights recognized in this Law. The exercise of the rights of Mother Earth will take into account the specificities and particularities of its various components. The rights under this Act shall not limit the existence of other rights of Mother Earth.” 

Therefore, the collective public interest features are enshrined in the law, and are complemented by a broader definition of ecosystem and the inclusion of the cultural, social, and economic dimensions of human communities. Since the enactment of the Bolivian Constitution, the Law of the Rights of Mother Earth, and its successor, the Framework Law of Mother Earth and Integral Development of Living Well (Buen Vivir) in 2012, no individual has brought cases against the state for its overall climate policy as found in a study conducted in 2021 by the C2LI platform. 

Despite some positive improvements during the last two decades, Bolivia remains the poorest country in Latin America “by any means”, as the World Population Review states in its 2024 report. Bolivian communities are heavily affected by the consequences of climate change, among others. Thus, promoting sustainable development while enacting the principles of the Rights of Nature, remains a persistent challenge.

Current Environmental Protection in Argentina

Argentina is the second-biggest country in the region, rich in natural resources, and thus prone to a number of threats and vulnerabilities. The newly-elected president of Argentina, Javier Milei, stated that he will not comply with the 2030 agenda and the 17 Sustainable Development Goals. He declared that the government will not have policies regarding environmental, indigenous, or forest protection. One of the main objectives on the President’s agenda in this regard is the extraction of lithium. Pía Marchegiani, director of environmental policy at the Environment & Natural Resources Foundation (Farn), says that lithium mining brings three key problems to Argentina, namely, “The impact on salt flats in the region and neighboring countries; the changes to the water system used in mining that affect local communities; and the exclusion of those communities from decision-making.” Indigenous communities in the province of Jujuy, North of Argentina, located in the “lithium triangle” where Chile, Bolivia, and Argentina’s borders converge in what is known as the world’s largest reserve of metal, have expressed great concerns regarding the protection of their territories and the rights of nature.

One of the President’s proposals known since the beginning of the election campaign was the one of reducing the number of ministries to the “strictly” necessary ones. The Ministry of the Environment, therefore, since its rise to power on December 10, 2023, has become part of the Ministry of the Interior. Many Ministries have been cancelled or reduced under his presidency, and in the next few months his intentions will be clearer with regard to such delicate and vital topics as the environmental one. In comparison to the aforementioned cases, Argentina does not have provisions on the rights of nature integrated into the national constitution, but laws and environmental regulations have been implemented. The National Environmental Law No. 25,675, sanctioned in 2002, is one of the most relevant regulations in this regard. This law establishes the basic principles for the preservation, protection and improvement of the environment, as well as environmental management instruments.

Regional Protection - The Escazù Agreement

The Escazù Agreement would be a Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean. The Regional Agreement is open to the 33 countries of Latin America and the Caribbean, and it is the only binding agreement stemming from the United Nations Conference on Sustainable Development (Rio+20) and the first in the world containing specific provisions on environmental human rights defenders. The Escazú Agreement was adopted on March 4, 2018 in Escazú, Costa Rica. 

It promotes a four-pillar model of environmental democracy: access to information, access to participation in environmental decision-making, access to justice in environmental matters, protection for environmental defenders.

The United Nations High Commissioner for Human Rights, Michelle Bachelet, stated that “the Escazú Agreement comes at a very opportune time because we can make a real commitment to change. It provides a cornerstone for environmental democracy, international cooperation and multilateralism and that must be at the centre of efforts to build back better using a human rights-based approach.”

Conclusion

This article aimed to raise awareness about the rights of nature in vulnerable areas of Latin America, by exploring the intertwined nature of national, regional, and international legislative provisions and the specific threats posed to Indigenous Communities. In the beginning of the article, the concept of Pacha Mama was introduced. Then, consideration was given to the role played by Indigenous People in protecting the rights of nature. Further, the concept of environmental rights was considered from an ecocentric or anthropocentric lens. Furthermore, the regional and national legislations of Argentina, Bolivia, and Ecuador were considered in greater detail. 

The article demonstrated that the rights of nature are incorporated to some degree in national legislations and, in general, are given greater consideration. However, the rate of recognition is still not proportionate to the drastic pace of climate impact. Among others, legal recognition of Indigenous People’s rights and the rights of nature is the beginning of a shift towards a just future. The required complex solution needs time to be thought, found, and implemented, as H. L. Mencken righteously put it: “Explanations exist; they have existed for all time; there is always a well-known solution to every human problem — neat, plausible, and wrong.”