Literature Review

Learn about cutting-edge Earth Law developments in journals from across the world! You can sort by topic, date, geography, and other categories.

Learn about cutting-edge Earth Law developments in journals from across the world!

Journal
Buen vivir and the Making of Indigenous Territories in the Peruvian Amazon
Peru

Roger Merino

2021

November 17, 2023

Awajun, Wampis, and other Amazonian indigenous peoples in Peru have acquired title to the collective property of their native communities as a legal strategy for the defense of their ancestral territory. This strategy, however, has failed to stop the expansion of extractive industries and the degradation of their livelihoods. In response, indigenous peoples in the northern Amazon are proposing the legal recognition of their “integral territory” under a politics of buen vivir. This new model for territorial governance is aimed at transforming indigenous peoples from ethnic communities with property entitlements to nations with territorial rights.

Buen Vivir
Journal
The Sustainable Development Goals viewed through Gross National Happiness, Ubuntu, and Buen Vivir
International

Dorine E. van Norren

2020

November 17, 2023

The Sustainable Development Goals (SDGs)—a normative (non-binding) global international environmental agreement (IEA)—claim to be universal as they were multilaterally negotiated between UN member states. However, is giving the Global South a seat at the table truly inclusive development? This article looks at a cross-cultural comparison of the African philosophy of Ubuntu (specifically in South Africa), the Buddhist Gross National Happiness (Bhutan) and the native American idea of Buen Vivir (e.g. Ecuador) and how they view the SDGs, how they view ‘development’, ‘sustainability’, goals and indicators, the implicit value underpinnings of the SDGs, prioritization of goals, and missing links, and leadership. Viewed through the lens of the three cosmovisions of the Global, the SDGs do not effectively address the human–nature–well-being interrelationship. Other cosmovisions have an inherent biocentric value orientation that is often ignored in academic and diplomatic circles. These claim to be more promising than continuing green development approaches, based in modernism. On the positive side, the SDGs contain language of all three worldviews. However, the SDGs are not biocentric aiming to respect nature for nature’s sake, enabling reciprocity with nature. They embody linear growth/results thinking which requires unlimited resource exploitation, and not cyclical thinking replacing growth with well-being (of all beings). They represent individualism and exclude private sector responsibility. They do not represent collective agency and sharing, implying that there is a need for ‘development as service’, to one another and to the Earth. Including these perspectives may lead to abolishing the word ‘development’ within the SDGs, replacing it by inter-relationship; replacing end-result-oriented ‘goals’ with process thinking; and thinking in cyclical nature, and earth governance, instead of static ‘sustainability’. The glass can be viewed as half full or half empty, but the analysis shows that Western ‘modernism’ is still a strong underpinning of the SDGs. Bridges can be built between Happiness, Ubuntu and Buen Vivir in re-interpreting goal frameworks, global governance and the globalization process. This article is largely based on Van Norren 2017 (Development as service, a Happiness, Ubuntu, and Buen Vivir interdisciplinary view of the Sustainable Development Goals.

Buen Vivir
Journal
Nature as a Subject of Rights? National Discourses on Ecuador’s Constitutional Rights of Nature
Ecudaor

Synneva Geithus Laastad

2020

November 17, 2023

In 2008, Ecuador became the first country in the world to make nature a subject of constitutional rights, and they did so by invoking nature as la Pachamama, the Kichwa Mother Earth deity. This is a biocentric notion which challenges the modernist vision of nature as resources subject to human use, which could imply a fundamental transition in the human-nature relationship with implications far beyond the legal system. With this point of departure, the aim of this article is to explore how Ecuador’s rights of nature are understood and employed rhetorically by relevant actors, particularly in relation to the country’s development model, which is based on extraction and export of natural resources, i.e. a subject understanding of nature. The rights of nature’s meaning have been attempted fixed in a discursive struggle, and three different discourses regarding the rights of nature have been identified from interview data: The Anti-Capitalist Ecologist Discourse, the Transformative Discourse and the Anthropocentric Developmentalist Discourse. The latter, which conceptualizes the rights of nature as anthropocentric sustainable development has become hegemonic. This can explain why the rights of nature can co-exist alongside continued and increased resource extraction with detrimental socio-environmental effects.

Earth Law
Earth Law in Latin America
Pachamama
Rights of Nature
Journal
Buen Vivir vs Development: a paradigm shift in the Andes?
Latin America

Unai Villalba

2013

November 17, 2023

The concept of development and the ways of achieving it have been widely criticised from various viewpoints. In the face of the apparent obsolescence of long-standing models, the novel Buen Vivir approach (roughly translated as ‘living well’ or ‘good living’), which has arisen in different parts of Latin America, may offer an alternative paradigm. However, the implementation of policies that could lead to this Buen Vivir model requires profound changes that follow a range of complex transitions, which may often even seem contradictory in countries like Ecuador, where this approach has already been enacted in the new constitution and laws but where old development practices still continue. Accepting the plurality of visions on Buen Vivir (from the indigenous ontology to the ‘Western–modern’ approach), while at the same time positing common ground in which to define a new development strategy able to overcome a natural resource extraction-based economic pattern, is one of the immediate challenges.

Buen Vivir
Journal
Ecuador’s Constitutional Rights of Nature: Implementation, Impacts, and Lessons Learned
Ecudaor

Kyle Pietari

2016

November 17, 2023

In 2008, Ecuador became the first nation to grant constitutional rights to nature, or pachamama (Mother Earth to many indigenous Ecuadorians). The prevalence of laws granting rights to nature has dramatically increased in recent years at local, state, and national levels. In the United States, approximately 200 municipalities have passed ordinances that grant rights to nature in some manner. This movement was substantially catalyzed by Ecuador’s 2008 Constitution. Granting rights to nature shows a fundamental rethinking of the purpose of law. Nearly all legal systems were designed only for the benefit of people. Property law, in particular, was built on the premise that the modification of the natural environment for human benefit should not only be acceptable, but incentivized. John Locke’s Second Treatise on Government provided the foundation for the labor theory of property, which establishes that in a world given by God to all of humanity in common, individual property ownership of any specific aspect of that world should be based on the labor that the individual puts into utilization of natural resources for human benefit. Similarly, traditional environmental law is largely based on protecting the rights of people to have the benefits of a healthy environment and the resources it provides. Even the Endangered Species Act, which was enacted for the sake of protecting species, states in its text under the section, “Findings, Purposes, and Policy,” that endangered species are of “esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people,” highlighting that its purpose is, at least officially, anthropocentric. Granting rights to nature is a new approach to environmental law that conceptualizes the natural, non-human world as something worthy of protection for its own sake, and not just as something to be used for the benefit of people. While a great deal has been written by scholars theorizing about what the effects of granting rights to nature might be, it is difficult to find information about how Ecuador’s law has actually been used in legal practice. To help fill this gap, the emphasis of this Article is on analyzing how nature’s rights have been utilized and implemented in Ecuador, and what effects they have had. A final summary of key takeaways and lessons learned, that might be relevant for other rights of nature jurisdictions, is provided.

Earth Law
Earth Law in Latin America
Pachamama
Rights of Nature
Journal
Non-Western Epistemology and the Understanding of the Pachamama (Environment) Within the World(s) of the Aymara Identity
Bolivia

Yaneth Apaza Huanca

2019

November 17, 2023

The purpose of this article is to understand, from the perspective of the Bolivian Aymara identity of Bolivia, the intrinsic relation these persons have with Nature. This task is developed through the study of what they call Pachamama (sacred Mother Earth), which is part of their identity as an ‘all interrelated whole, the Suma Qamaña or Good Living’, and which can be considered a non-Western epistemology. Their worldview breaks with the Western (anthropocentric) conception of environment that informs European and AngloSaxon continental law, and that is currently predominant in international standards of reference. Proponents of this perspective achieved a transformation in the international treatment of Nature, recognised by the United Nations (Resolution 63/278 of 2009, promoted by the Bolivian State), gaining inspiration from the inclusion by Ecuador of Pacha Mama (Nature) as a subject of rights in its constitution (2008).

Indigenous Ecocentric Law
Pachamama
Rights of Nature
Journal
Environmental policies and Pachamama in Ecuador. Theory and practice in Rafael Correa’s Government (2007–2013)
Ecuador

Santiago García Álvarez

2015

November 17, 2023

The aim of this paper is to analyse the environmental policies implemented in Ecuador in the period from 2007 to 2013. According to the Ecuadorian Constitution these policies must be based on the promotion of the sumak kawsay or well-being, which promotes harmonic relations between human beings’ activities and the Pachamama or Mother Nature. From the theoretical perspective, this approach is related to biocentrism and the super strong sustainability. But in the real world, the Ecuadorian Government has failed to implement a long-term strategy for protecting the Pachamama, because it is not easy to forget the social and economic necessities of its citizens. Anyway, this interesting experience gives us an important alternative which is the Net Avoided Emissions (NAE). This mechanism is closely linked to the concept of super strong sustainability and biocentrism that criticises the global carbon market

Pachamama
Journal
Rights of Pachamama: More Like Poetry Than Law? Assessing the Strength and Impact of Nature’s Constitutional Rights in Ecuador
Ecudaor

Victoria Claire Jennings

2022

November 17, 2023

In 2008, Ecuador became the first country in the world to constitutionally adopt Nature’s rights.The concept of RoN has since seized the world’s imagination, with Ecuador’s early and bold adoption exalted by environmental groups. Nature’s rights are now recognised in various forms in thirty-nine countries. However, RoN is still an emerging field of research. Studies largely focus on analysis of the Nature’s substantive provisions without examination of their application through procedural rights, institutional development and policy. Although research often discusses the legal outcomes of individual cases, environmental outcomes are left mostly unaddressed. Where analysis exists, it often does not situate outcomes within their larger political and economic context, focusing only on questions of law. The paper aims to ameliorate these gaps by linking theory with practice through empirical comparative analysis of the impact Nature’s rights in Ecuador. The research will examine the question: what is the strength of Nature’s rights implementation in Ecuador and what has been the impact of their legal adoption? The paper will assess the strength of RoN fulfillment in Ecuador and attempt to quantify the impact of implementation on normative and environmental outcomes. Barriers identified will then be explored and contextualised and some solutions offered. It is hoped the paper will enable future research to establish conditions required for successful RoN implementation in order to aid international replication.

Earth Law
Earth Law in Latin America
Pachamama
Rights of Nature
Journal
Unearthing Women's Anti-Mining Activism in the Andes: Pachamama and the “Mad Old Women”
Peru and Ecuador

Katy Jenkins

2015

November 17, 2023

Women play an important role in social activism challenging the expansion of extractive industries across Latin America. In arguing that this involvement has been largely unrecognised, this paper explores Andean Peruvian and Ecuadorian women's accounts of their activism and the particular gendered narratives that the women deploy in explaining and legitimising this activism. These discussions contribute to understanding the patterning of grassroots activism and making visible the gendered micro-politics of resistance and struggle around natural resource use, as well as to understanding the gendered and strategic ways in which women contest dominant discourses of development.

Activism
Pachamama
Journal
Can You Hear the Rivers Sing? Legal Personhood, Ontology, and the Nitty- Gritty of Governance
International

Cristy Clark, Nia Emmanouil, John Page and Alessandro Pelizzon

2019

November 17, 2023

In 2017, multiple claims and declarations from around the legal world appeared to signal a tipping point in the global acceptance of a new and evolving legal status for nature. Whether it was litigation in the United States, India, and Colombia, or legislation emanating from New Zealand and Australia, the law seems to be grappling with a new normative order in relation to the legal status of nature. However, this shift has been a long time coming, being at least fortyfive years since Christopher Stone famously asked whether trees should have legal standing. This Article explores what this emerging Ecological Jurisprudence means for the legal personhood of rivers. Nature, the environment, and even single complex ecosystems, are seldom easily quantifiable as bounded entities with geographically clear borders. Within the complex spectrum of establishing where a legal subject ends and another begins, however, rivers are more easily identifiable. A river’s very being is premised on historicized boundaries that measure its watery ambit from riverbed to riverbank. Still, rivers elude a final, clearly defined, and uncontroversial description. As a result, they inhabit a liminal space, one that is at the same time geographically bounded, yet metaphorically transcendent, physically shifting, and culturally porous. Drawing on comparative case studies from Ecuador, Colombia, India, New Zealand, the United States, and Australia, this Article explores the deep and often murky bond of the river and us. This relational, ancient, and ultimately environmentally urgent bond forms the prism through which the rich story of legal personhood, ontological change, and the consequential nitty-gritty of river governance is told. Indeed, this complex story is best heard through the metaphor of song, since “[i]f we are to take metaphor seriously, we must explore its poetic dimension, the persuasive power of its rhetoric, coupled with its aesthetic appeal.” In seeking to discern a river’s legal personality, we ask, can we hear the rivers sing?

Earth Jurisprudence
Ecocentric Law
Journal
Human Rights and Rights of Nature: The Individual and Pachamama
International

Aurelio de Prada García

2014

November 17, 2023

Pachamama
Rights of Nature
Journal
Interpretive Affinities: The Constitutionalization of Rights of Nature, Pacha Mama, in Ecuador
Ecuador

Cristina Espinosa

2015

November 17, 2023

In 2008, Ecuador adopted the world's first constitution recognizing the rights of nature. The status of nature was redefined to enable, ideally, legal interventions to protect ecosystems. This article examines the process through which rights of nature entered the Ecuadorian context by contextualizing the campaign to mobilize support for these constitutional changes launched by Fundación Pachamama, a nongovernmental organization close to indigenous and environmental movements. The collective action forms involved in the constitutionalization of rights of nature are approached as sites of knowledge production and contestation. Concepts from the sociology of knowledge approach to discourse are applied to reconstruct the interpretive repertoires of rights of nature advocates, a faction of the indigenous movement and the environmental movement during the constitutional reform. This analysis reveals that interpretive affinities or resemblances among the interpretive repertoires of rights of nature advocates and indigenous and environmental movements shaped and enabled the advocacy for rights of nature. Moreover, the article demonstrates that throughout the debates at the Constituent Assembly, the concept of rights of nature was stitched onto a discursive context imprinted with nationalist feelings underpinning a critique of neo-liberalism, and aspirations for legal progress and the decolonization of society.

Pachamama
Rights of Nature