See you in court, Mother Earth!

Can a law granting Mother Earth legal rights be implemented? Can it become a global standard?

To celebrate Earth Day 2011, we are offering two perspectives on Bolivia's Law of Mother Earth.  The reflections come from a political scientist (Michelle Baert), and a management scholar and former lawyer (Catalin Ratiu).



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By Michelle Baert

In January 2011, Bolivia passed a law “Ley De Derechos De La Madre Tierra” (Law of Mother Earth), as part of the restructuring of its legal system following a change of the constitution in 2009. It enshrines 11 new rights for nature. They include:

    * the right to life and to exist;
    * the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air;
    * the right to balance;
    * the right not to be polluted;
    * and the right to not have cellular structure modified or genetically altered.

The act also establishes a Ministry of Mother Earth to function as a kind of ombudsman in cases where development projects might have an impact on local communities. These initiatives make Bolivia the first nation in the world to grant Nature autonomous legal standing. Bolivian President Evo Morales plans to take his initiative to the international level by campaigning for a UN treaty of the same kind.

The notion of an Ombudsman for the Environment can be seen as an extension of a system of a commonwealth tradition of unelected administrative officers that answer directly to national parliaments, beyond the short-term political concerns. Though an ombudsman is typically more of a mediator than an enforcer, the notion of a Ministry of Mother Earth is similar to other administrative offices.

Posts such as the Auditor-General, the Privacy Commissioner, and the Chief Electoral Officer exist in Commonwealth countries and express a similar function of a neutral advocate for a public interest of one kind or another. In the case of the Auditor-General, the abstract notion of the ‘public purse protector’ finds an advocate. In the case of the Privacy Commissioner,  ‘personal data’ finds a protector; likewise the Chief Electoral Officer is the advocate for the electoral system itself.

The Bolivian initiative is dramatic in the sense that it illustrates the contrast between a broadly indigenous worldview and the liberal-individualist ethos that informs the Western legal traditions. As Western nations have struggled rather poorly to make legal sense of collective ownership posed by Aboriginal land claims, this Bolivian law takes the challenge much, much further by using the language of ‘rights’ to advance recognition of another kind of intelligence holder. Traditionally, liberal rights are grounded in the individual human being’s rationality and autonomy. Research on natural systems in the last several decades has clearly indicated Nature’s capacity for self-regulation and independent adaptation. Perhaps unwittingly, this has expanded our notions of rationality and agency and made them inadvertently more accessible to non-human entities.

The Bolivian initiative cleverly appropriates this expansion and takes them to radical new ends. Western legal theory today is, as a result, less culturally able to protect against the extension of rights to the non-human. As a result of this, it seems likely that the Bolivian initiative will slide easily into the consciousness of North and South Americans, at least, and be embraced as a way of making claims on behalf of the environment that go beyond their usual deadlock as conflicts between differing human interests.  The new laws may have a difficult time with the raw political realities of poor countries that need the investment of resource-exploiting companies but at the very least, the conceptual space for Nature has been greatly expanded.


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By Catalin Ratiu

Bolivia is making history through the recently proposed Law Of Mother Earth, which grants equal rights to the natural environment.

From a legal standpoint, this law is an innovative, though not unprecedented, attempt to deal with the consequences of climate change in Bolivia, which have been perhaps more dire than in many other parts of the globe.  Essentially, the law personifies the natural environment through a legal artifice, in order to allow for the possibility of representation in court. This is not unprecendented, because legal artifices have been used to personify other abstract concepts, such as public good or human rights.

What is daring and impressive about the law is that it moves the discourse on the environment away from the opportunity/threat identification, or the protection of humans through the protection of the environment, to a discourse where the natural environment has a right to be protected, for no instrumental role in perpetuating human life.

The key to a regulatory undertaking of this magnitude is creating a legal framework that allows it to be operationalized effectively through the procedural system.  Ecuador's example is not encouraging.  The natural environment has received consitutional rights in Ecuador a while ago, but the legal enforcement of these binding regulations has lagged depressingly. How will Bolivia ensure that the judicial overhaul that needs to happen is not jammed by political polarization?

Furthermore, what are the consequences of this regulation to Bolivia's international competitiveness?  While primarily a resource intensive economy, the country has not been able to optimize a proprietary extractive capacity which would allow it to diversify its economic output.  As a result, would this important process of legitimizing the natural environment be slowed by Bolivia's dependance on foreign investment directed at unsustainable exploitation of its natural resources?

From a business perspective, the Law of Mother Earth creates tremendous opportunities for firms that have invested in creating sustainable processes, and innovating their business models proactively towards sustainability.  Should a law granting equal rights to the natural environment become a global standard, firms already operating on the basis of such framework will be able to quickly move ahead of more complacent firms that have simply reacted to existing, often low-threshold regulation on environmental protection.