A novel way of being together? On the depoliticising effects of attributing rights to nature

ABSTRACT

The recent trend of attributing rights to nature arguably introduces a novel way of ordering the relationship between humans and nonhumans. But to what extent does it challenge the political, legal, and economic categories of modernity? By analysing the processes that led to the inclusion of the rights of Mother Earth in the Bolivian legal system, I explore whether and how rights of nature express a distinct form of relating to the environment. Using the lenses of juridical symmetry and political conflict, I argue that attempts to ascribe rights to ecosystems can be read as examples of hyperpoliticisation which ultimately result in depoliticisation. I contend that rights of nature bring together the neutralisation of political conflict by extending the logic of juridical symmetry to nonhuman entities. Thus, far from constituting a renewed way of being together, these processes reiterate the aporia of the modern Western conceptual horizon.

KEYWORDS:

• Rights of nature
• depoliticisation
• juridical symmetry
• conflict
• Bolivia

1. Introduction

In September 2008, Ecuador became the first country to attribute legal rights to nature by incorporating the Derechos de la Pacha Mama (Rights of Nature) into the new constitution (Tanasescu 2013). In January 2009, the Bolivian Constituent Assembly adopted the Political Constitution of the Plurinational State of Bolivia, therein constitutionalising the protection of Mother Earth. These initiatives soon gave rise to flourishing global movements, which resulted in a broader attribution of rights to ecosystems around the world. In 2010, the Global Alliance for the Rights of Nature was established to coordinate grassroots initiatives working towards the implementation of rights of nature. In 2014, the New Zealand Parliament passed the Te Urewera Act recognizing the Te Urewera National Park as a legal entity with all the rights, power, and obligations of a legal person (Sanders 2018). In 2017, the Whanganui River in New Zealand and the Indian Ganges, with the Yamuna as its main tributary, became legal and living entities (Kothari et al. 2017). More recently, in April 2020, the municipality of Curridabat in Costa Rica attributed citizenship to pollinators, trees, and native plants (Greenfield 2020). In July 2020, the Spanish municipality of Los Alcazares recognized the Mar Menor lagoon as a subject of rights (Alvarez 2020).

This trend of attributing rights and legal personhood to ecosystems raises a series of theoretical and empirical questions regarding the stakes of such attempts. The inclusion of a diverse array of nonhuman entities within the modern legal rights framework requires a critical analysis of modern conceptual categories. Existing literature often assumes that ascribing legal rights to the ecosystem expresses a novel way of ordering the relationship between humans and nonhuman entities. Recent debates on the attribution of legal rights to nature have focussed either on the normative foundations and procedural implications of rights of nature (hereafter, RoN) within the legal framework of environmental law (Calzadilla and Kotzé 2018, Kauffman and Martin 2018, Bétaille 2019, Kinkaid 2019), or they have examined the philosophical premises and consequences of the ontological extension which allows nature to be conceived as a bearer of rights. These latter contributions have positioned themselves as partaking in the ontological turn and in the formation of post-humanist, new materialist, object-oriented ontological approaches in contemporary philosophy and social theory.¹ They are enthusiastic about attempts to ascribe rights to nature, which is portrayed as a revolutionary means to positively reorient interaction between humans and nonhumans (Burdon 2011, Maloney and Burdon 2014, Demos 2015, Boyd 2017, Puig de la Bellacasa 2017). Some have specifically argued for extending the legal right to own property to wildlife as a way to halt its destruction (Bradshaw 2020, Davies et al. 2021), while others have focussed on the potential of extending agency to nonhuman entities and using RoN as a tool to enhance political change (Winter 2021). However, as I will demonstrate, the above-mentioned streams of literature fall short when it comes to critically analysing the intrinsic aporetic dimension of rights-based claims and their consequent legal recognition. In other words, the literature on attributing rights to nature fails to analyse the extent to which RoN challenge the political, legal, and economic categories of modernity, such as the state’s monopoly of power, individual rights, and private property.

More recently, increased attention has been directed at the need to problematise the implications of RoN, especially concerning the Eurocentric assumptions and exclusions entailed in such a paradigm. Some scholars within this stream of literature have addressed the overstated identification of RoN with Indigenous knowledge systems and the consequent risk of both depriving them of, and flattening out, their radical political potential (Todd 2016, Rawson and Mansfield 2018, Tanasescu 2020, Celermajer et al. 2021, Fitz-Henry 2021). Others have focussed critically on the political context in which RoN have flourished, raising concerns over the triumphalism often inherent in RoN narratives (Marshall 2020, Reeves and Peters 2021, Tanasescu 2021). This article builds on this latter stream of literature and contributes to the growing chorus of concern about the political implications of RoN. It does so by exploring the (un)intentional consequences of RoN, namely the implicit assumption of modern Western conceptual categories and the levelling of conflictual asymmetries through the positive affirmation of a flat juridical symmetry. When referring to juridical symmetry, I mean a characteristically modern mechanism through which formal juridical equality between equally free subjects is established by the state’s coercive power to found a lasting order (Chignola and Duso 2008, Hobbes 2018). Such a mechanism, which nowadays is extended to nonhuman entities, operates through the progressive neutralisation, and hence depoliticisation, of conflict and the consequent accumulation of a monopoly of power in the hands of the modern nation state (Benjamin 2021).

My contribution further problematises the conversation about RoN in environmental politics, by exposing the shortcomings of a paradigm that has increasingly been mobilised as a novel way of being together, that is a more equal and just way to engage with and regulate the relationship between humans and nonhumans. I will critically explore a specific case of attributing rights to the ecosystem – the broad processes which led to the inclusion of the rights of Mother Earth in the Bolivian legal system – and consider whether these forms of relating disrupt the dominant socio-ecological arrangements built on individual rights, the state’s monopoly of power, and a proprietary regime of ownership. I scrutinise different gradients of juridical (a)symmetry and political conflict with the aim of tracing their inversely proportional relationship. I argue that attempts of ascribing rights to the ecosystem can be read as instances of hyperpoliticisation (i.e. a monopolisation of the political by the state) which ultimately result in depoliticisation (i.e. the foreclosure of the political). As such, far from constituting a way of challenging the modern logic of individual rights, private property, and the absolutisation of the state’s power, these processes reiterate the aporia of these specific modern Western conceptual categories.

I conceive ‘the political’ as the conflictual dimension constitutive of social relationships where a given order is rendered visible and contested by those who are excluded from it (Lefort 1988, p. 11, Mouffe 2005 −9; Rancière 1999, p. 11). Conceived as such, the political brings forth the problematisation and disruption of an established configuration of power, and introduces the possibility of radical change in the form of conflicting alternatives. My use of ‘depoliticisation’ refers instead to the attempted neutralisation and foreclosure of conflict by means of displacing it from the field of public dissensus to that of techno-managerial manageable consensus (Rancière 2004, Swyngedouw 2011). By removing the space of contestation and debate, depoliticisation obliterates the possibility of change and thus reduces the political to an administrative instrument devoid of transformative potential (Zizek 2006). These notions of ‘the political’ and the process of depoliticisation guide the analysis of the cases presented here. The rationale for choosing the Bolivian case is that it offers an opportunity to trace the problematic dynamic underpinning the mobilisation of RoN by showcasing both the theoretical and practical implications inherent in such paradigm. I do not mean to universalise the Bolivian example by focussing on one particular case. Rather, I aim to show how a close reading of the legal and political processes through which legal rights have been attributed to nature can be a productive approach for advancing a critique of RoN. Although I can only offer a close reading of one case, this approach may well resonate with similar cases elsewhere.

Section two of the paper provides an overview of the process that led to the adoption of the two laws that have operationalised the rights of Mother Earth in Bolivia. Section three offers a critical analysis of the text of these two laws and the Draft Law, with the aim of outlining the progressive depoliticisation of the most radical political claims contained within these texts. Section four turns to the TIPNIS conflict as a means to bring to the fore yet another dimension of the weakening of the political linked to a rights-based legal framework. Section five delves deeper into the aporetic implications of attributing rights to nature through the analysis of the homogenising effects of juridical symmetry applied to the cases presented. The paper ends with a discussion of the implications of these arguments for environmental politics.

2. Laying the groundwork for potential conflict

On 29 August 2009, the United Nations General Assembly declared the Bolivian president Evo Morales the ‘World Hero of Mother Earth for being the leading exponent and paradigm of love for Pachamama’ (La Jornada 2009). Bolivia’s pioneering actions to protect the rights of Mother Earth are acknowledged internationally and are celebrated as instances of a different relationship between humans and the ecosystem. However, despite Article 108 of the 2009 Bolivian Constitution stating that all Bolivians should safeguard, defend, and protect the natural, economic, and cultural heritage of Bolivia and contribute to a sustainable use of natural resources (Constitución Política Del Estado Boliviano (CPE), 2009, arts. 108.14–108.16), the Rights of Mother Earth are not officially constitutionalised in the Bolivian system.² These rights are instead outlined in two laws, namely Law 71, which identifies a set of rights ascribed to Pachamama (Mother Earth), and Law 300, which operationalises these rights within the specific framework of integral development. The process that led to the adoption of these two laws is of particular relevance to my argument as it allows me to trace how the logic of juridical symmetry operates as a depoliticising tool when it clashes with alternative legal trajectories.

In December 2010, the Bolivian Plurinational Legislative Assembly passed Law 71, Law of the Rights of Mother Earth, thus constitutionalising the claims advanced in the 2010 People’s Agreement of Cochabamba. Two years later, in October 2012, a revised and adjusted version of Law 71, Law 300, Framework Law of Mother Earth and Integral Development for Living Well, was passed. Although this latter law does not have constitutional force, it nevertheless has a superior status given its preferential application to matters of natural resource management and protection (Lalander 2017).

Far from following a homogeneous and nonconflictual trajectory, the process leading to the formal adoption of the rights of Mother Earth within the Bolivian juridical system can be read as a deliberate and gradual weakening of Indigenous plural political claims in favour of the state’s monopoly of power over, and the foreclosure of, such claims. The first step of this process can be traced back to the Unity Pact among Indigenous, Originary, and Peasant Organizations, an alliance of highland and lowland Indigenous and peasants’ groups established in 2004. The overall aim of the alliance was to reconfigure state-society relations and to propose Indigenous autonomy as part of the new plurinational constitution (Tapia 2010, Postero and Fabricant 2019). On 5 August 2005, during the first meetings of the Constituent Assembly, the Unity Pact advanced a proposal with a detailed project for the creation of a plurinational state based on principles of juridical pluralism, direct democracy, unity, complementarity, reciprocity, equity, and solidarity (Pacto de Unidad, 2006, p. 4). Section III of the Pact, dedicated to land and territory, states the rights of autonomy and self-government accordingly to usos y costumbres (uses and customs) and asserts that lands in the territories of the Indigenous, originary, and peasant nations and peoples are of community domain. As a consequence, they are unattachable, nontransferable, imprescriptible, inalienable, irreversible, and indivisible (Ibid., p. 15). The Pact goes on to ascribe a duty to the state to defend and promote the diverse forms of Indigenous communal ownership and to consult local populations before planning or implementing any policy or project that might impact on their territory. At the same time, it acknowledges the communally shared obligation to protect and preserve the ecosystem and refuses any form of privatisation of natural resources.

As Luis Tapia points out, the radical imaginative power exercised by the Unity Pact was soon confronted with an attempt by Morales’ party Movimiento al Socialismo (Movement Towards Socialism, MAS) to adapt the Pact’s vision to the framework of modern liberal statehood which recognises cultural diversity but not on conditions of equality (Tapia 2010, p. 143). It is beyond the scope of this article to provide an in-depth account of the strategies carried out by the MAS to marginalise the Unity Pact and its promoters. More relevant here is to emphasise that through gradual strategies of weakening the Indigenous possibility to partake in the Constituent Assembly, the MAS was able to adopt a new constitution whose claims were ambiguously different from those advanced by the Unity Pact (Regalsky 2010).

After the adoption of the new constitution, most of the Indigenous groups belonging to the Unity Pact gathered at the World People’s Conference on Climate Change and the Rights of Mother Earth held in Cochabamba in April 2010. Following up on the aim of elaborating a universal declaration on the rights of Mother Earth advanced in the People’s Agreement of Cochabamba in November 2010, the Unity Pact presented the Anteproyecto de Ley de la Madre Tierra (Draft Law of Mother Earth) to the Bolivian Environment Commission for further discussion and negotiation. In December 2010, an agreement was reached on a shortened version of the draft text and the Law of Mother Earth (Law 71) was passed by the legislative assembly. Two years later, in October 2012, the Plurinational Legislative Assembly passed Law 300, which outlined the legal framework for the country’s development agenda. In the following section, I critically analyse the texts of the Draft Law of Mother Earth, Law 71, and Law 300 in order to trace the gradual weakening of the levels of conflict and the subsequent depoliticisation of the radical political claims contained in these three laws.

3. From anteproyecto to ley 300, or the foreclosure of the political

The Anteproyecto de Ley de la Madre Tierra (Draft Law of Mother Earth), as presented by the Unity Pact in November 2010, is an extensive and detailed compendium of articles addressing a wide array of topics. They range from the relationship between Pachamama and Indigenous peoples, to the rights of nature and the reciprocal obligations between the state and the people to defend, protect, conserve, and restore harmonious relations with the ecosystem. The Anteproyecto is composed of twelve titles, each delving into the theoretical and practical aspects of conceiving of Earth as a subject of law. As the introductory explanatory note states,

Mother Earth as a subject of law demands a theoretical displacement and an epistemological break with the modern Western juridical system. It is about a different way of thinking. It is a matter of being open to juridical pluralism (Anteproyecto 2010, p. 5).

The alternative proposed by the Draft Law breaks radically with the dominant Western colonial legacy that has imposed its conceptual categories to homogenise legal, economic, and political systems. With regard to this violent imposition of categories, it is worth noting that the subsequent Law 71 and Law 300 obliterate any reference to epistemological and juridical pluralism, thus depriving alternative ways of being together of all meaning. As Nancy Postero underlines, especially after the consolidation of Morales’ and MAS’ power in 2010, the Bolivian government started reframing the concept of decolonisation as economic emancipation, adopting a narrative that served to support the move toward progressive extractivist development (Postero 2017, pp. 137–157). As a consequence, far from being a tool for liberation, the narrative of decolonisation was deliberately used to foreclose any discussion of alternatives that contested the state’s progress-oriented development agenda.

Another crucial topic highlighted in the Draft Law is the right of Indigenous communities to prior, free, informed, and binding consultation, conceived of as a plural exercise of self-determination of peoples (Anteproyecto, p. 42). This specific right and its broader consequences are dismissed in Law 71, while Law 300 refers only to a general and vague process of consultation with the Indigenous communities before planning and implementing any policy or project (Ley 300, 2012b, p. 40). Overall, vague and general formulations are the basis of Law 71. As I will demonstrate, both the Law 71 and Law 300 showcase the inadequacy of attempts to translate Indigenous juridical, political, and economic systems into the grammar of the state’s liberal framework. Law 71 consists of only four titles and can be read as a generic declaration of principles, which fails to outline precise legal instruments for their application. The idea of creating the Office of Mother Earth is taken up from the Draft Law but all its juridical and practical specificities, outlined in detail in the Draft, are not taken into account in the subsequent Law. In addition, Law 71 recalls only some of the principles presented in the Draft Law, namely harmony, collective good, the guarantee of the regeneration of Mother Earth, respect and defence of the Rights of Mother Earth, no commodification, and interculturality.

It is also noteworthy that principles of mutual aid, redistribution, plurality, and ecological responsibility, which are explained in their full complexity in the Draft Law, do not appear in Law 71 and Law 300. While the former simply dismisses most of the principles discussed in the Draft, the latter frames them within the ambiguous and broad framework of desarrollo integral (integral development). This framework sets out a series of socio-economic measures, including redistributive justice and welfare reforms, to free people from material, social, and spiritual poverty (Ley 300, 2012b). Within this framework, the concept of vivir bien is assumed as an indefinite point of reference and as the ultimate goal of the state. This concept, defined as a ‘new civilisational and cultural horizon which posits itself as an alternative to modernity and capitalism’ (Ley 300, 2012b, Art. 5.2), is to be achieved through integral development. As Eduardo Gudynas argues, by subsuming the concept of vivir bien under integral development, the Morales government deliberately minimised the alternative radical components entailed in the concept, which can instead be read as a ‘break with development and the transcendence of modernity’ (Gudynas 2013, p. 25). It is worth noting that the concept of buen vivir, which can be translated as living a plentiful and harmonious life, goes beyond the sphere of individual economic well-being to designate a more expansive notion of living in harmony with communities of other people and nature (Acosta 2009). Although a thorough account of buen vivir goes beyond the scope of my argument, it is important to underline the plural legal, economic, and political ways of being together which are denoted by this concept (Gudynas 2011, Vanhulst and Beling 2014). Such plurality does not find space within the Bolivian juridical system, which, by formally including and recognising the plural ways of being together through a rights-based framework, renders the plurality of differences equally undifferentiated.

Law 300 used the new rhetoric of pursuing vivir bien through integral development to justify the strengthening of extractivist projects and agro-industrial capitalist alliances while framing it within a conventional development logic (Farthing 2009, Lalander 2015). As a consequence, despite referring to an abstract need to take into consideration the regenerative capacity of Mother Earth, article 15 of Law 300 legalises the ‘advancement of the use and exploitation of natural resources […] with the best technologies available’ (Ley 300, 2012b, art. 15.3) with the aim of ensuring growth and equal access to natural resources. In this sense, Law 300 expands and brings to completion the trajectory that the 2009 Constitution had already embarked upon in its explicit address of the territorial rights of Indigenous people. In the Constitution, articles 394 and 395 declare that ‘the State recognises, protects and guarantees communitarian or collective property’ (CPE, art. 394.3). However, as article 355 specifies, ‘the industrialisation and commercialisation of natural resources shall be a priority of the State.’ As a further limitation, article 346 of the Constitution asserts that ‘natural heritage is of public interest. Its conservation and use for the benefit of the population will be the responsibility and exclusive authority of the State.’ Within this framework, Mother Earth ceases to be a mere sujeto de derecho (subject of law) as it is in the Draft Law and instead becomes a sujeto colectivo de interés público (collective subject of public interest) in Law 300. The rights of this collective subject are dependent on other series of rights aimed at guaranteeing buen vivir through the means of integral development. As such, the extensive list of fourteen rights ascribed to Mother Nature in Title II.I of the Draft Law is halved in Law 71 and is not explicitly referred to in the final version of Law 300.

On 24 August 2012, several Indigenous and peasant representatives in the Plurinational Legislative Assembly voiced their discontent regarding the legislative process, which resulted in the approval of Law 300 and sent the Carta de La Brigada Indígena (Letter of the Indigenous Brigade) to the president of the Chamber of Deputies, Rebeca Delgado. In the letter, the representatives of the Unity Pact organisations reprimand the government for its failure to include all Indigenous organisations in the drafting process and for adopting a legislative document which is different in spirit to the previously discussed Draft Law (Ibid., p. 2). With regard to the right to prior consultation, the letter rightly highlights that it is ‘diluted in the idea of a citizen participation which excludes any decision-making possibility, and which results in mere suggestions that the government may or may not consider’ (Ibid., p. 6). In a nutshell, as can be read in the letter, ‘Law 300 does not propose a change in the structural foundations of the capitalist system nor a reconfiguration of the nation state’ (Ibid., p. 7).

By underlining how Law 300 weakened, dismissed, and omitted most of the principles included in the Draft Law, the Carta de La Brigada Indígena exposes a specific mechanism carried out by the Bolivian government, namely the progressive depoliticisation of radical claims through the logic of juridical recognition and the foreclosure of any conflictual dissensus. The letter aimed to reaffirm a different grammar, one that goes beyond the modern logic of individual rights and proprietary regimes of ownership. In doing so, this collective document clearly shows the pitfalls of hyperpoliticising the issue of ascribing rights to Mother Earth. By constitutionalising the protection and rights of Pachamama, the Bolivian state operated on three levels simultaneously, namely monopoly of power, juridical symmetry, and obliteration of conflict. By extending the modern logic of juridical symmetry to Mother Earth, the state transformed Pachamama into a passive subject whose rights are to be guaranteed and protected by the state itself and, most importantly, according to the state’s development agenda. Enshrining the rights of Mother Earth and of Indigenous peoples within the mechanism of the modern nation state forecloses any means of questioning an intrinsically exclusive system, that is it forecloses ’the political’ conceived in its conflictual and transformative dimension. As explained above, the process leading to the adoption of Law 300 strengthened and safeguarded the state’s monopoly of power by pursuing a meticulous strategy of marginalising and depoliticising any attempt to disrupt the progress-oriented trajectory of the nation state.

As the following section further demonstrates through the analysis of the TIPNIS conflict, although the conflictual dimension of the political attempts to disrupt the depoliticising logic of juridical symmetry, it is nevertheless once again neutralised by the logic of the nation state.

4. The TIPNIS conflict, or the attempted return of the political

By the end of November 2011, eight of the eleven organisations that had formed the Unity Pact in 2004 had left the coalition in protest over the government’s strategies to gradually limit the participation and representation of the Indigenous and peasant organisations in Bolivian political life. The decisive breaking point, causing most of the Indigenous representatives to abandon the Unity Pact, came when Morales announced his decision to realise a 600 km-long highway connecting Villa Tunari in Cochabamba to San Ignacio de Moxos in the department of Beni. The proposed route passed through the Territorio Indigena del Parque Nacional Isiboro-Secure (Isiboro Sécure Indigenous Territory and National Park), referred to as TIPNIS. The TIPNIS territory was recognised as Indigenous Territory in September 1990. The recognition followed the massive mobilisation by local native people for the March for Territory and Dignity, a two-month and 600 km-long march from Trinidad in the lowlands to La Paz to oppose the government’s projects of mining and deforestation in their territory (Guzmán 2012). In June 2011, the Confederation of Indigenous Peoples of Bolivia-CIDOB organised another march to oppose the government’s project, mobilising thousands of Bolivians. After experiencing fierce repression from the state, the march successfully arrived in La Paz and started the negotiation process with the government. The marchers presented a list of sixteen demands ranging from the protection of territory, consultation, and Indigenous autonomy to other economic and social issues (Tierra 2012, pp. 9–48).

On 24 October 2011, Law 180 of Protection of the Isiboro Sécure Indigenous Territory and National Park was passed. The law acknowledged TIPNIS as a ‘site of sociocultural and natural heritage, an area of ecological preservation and historical reproduction, as well as the habitat of Indigenous peoples, whose protection and conservation are of primary interest to the Plurinational State of Bolivia’ (Ley 180, 2011, Art. 1.1). The law also stated the indivisible, imprescriptible, unattachable, inalienable, irreversible, and untouchable character of TIPNIS, recognising it as a protected area of national interest (Art. 1.2). Further, as article 3 declared, ‘the Villa Tunari-San Ignacio de Moxos road, like any other [road], will not cross the Isiboro Sécure Indigenous Territory and National Park.’ However, only a few months after Law 180 was passed, the government approved Law 222 on the Consultation of Indigenous Peoples of the Isiboro Sécure Indigenous Territory and National Park – TIPNIS, which called for a prior, free, and informed consultation process with the Indigenous peoples inhabiting the TIPNIS. The declared aim of the law was to ‘reach an agreement with the Indigenous originary peasant peoples […] and to define whether the TIPNIS should be an intangible area or not, in order to make development activities viable, including the construction of the Villa Tunari – San Ignacio de Moxos road’ (Ley 222, 2012a, Art. 4). Several concerns were raised regarding irregularities during the consultation process, such as late notifications, lack of proper information and representation, and disregard of uses and customs (Achtenberg 2013, Sur 2016).

The adoption of Law 222 was followed by massive protests, which led to the second TIPNIS Indigenous march. At the same time, the government had begun the questionable consultation process over the TIPNIS project as well as the strategic takeover of CIDOB, the national Indigenous organisation which had been leading the protests (Postero 2017, pp. 137–157). This resulted in the marginalisation of most of the Indigenous representatives who had been fiercely opposed to the TIPNIS highway. They abandoned the mobilisation to go back to their communities, thereby paving the way for the takeover of CIDOB by a group of supporters of the MAS government. With regard to this, it is worth recalling the words of a peasant union leader and MAS militant, Roberto Coraite, who backed the construction of the TIPNIS road and stigmatised the opponents as clandestine, destitute, and savages (Comunidad de Derechos Humanos 2011).

The consultation process over the TIPNIS highway ended in December 2012 with 80% of the consulted communities allegedly voting in favour of the road (FIDH & APDHB, 2013, pp. 13–20). However, the government waited until 2017 to implement the results of the controversial consultation process with the adoption of Law 969 for the Protection, Integral and Sustainable Development of the Isiboro Sécure Indigenous Territory and National Park – TIPNIS, which repealed the intangibility and protected status of TIPNIS previously declared in Law 180. In addition, Law 969 clearly stated that ‘within the framework of the results of the prior, free, and informed consultation, the State will execute, at all levels, integral and sustainable development programs and projects which consolidate their rights to integration, health, education, housing, and basic services’ (Ley 969, 2017, Art. 8.1). As article 9 further clarifies, such projects include ‘the opening of neighbourhood roads, highways, river navigation systems, air, and others.’ As such, Law 969 puts an end to the TIPNIS case by concentrating all (legislative) power in the hands of the nation state, thereby fully realising the foreclosure of any possibility of conflict.

As others have extensively noted, the TIPNIS case ought to be read within the developmentalist and violently repressive agenda of the MAS government (Hindery 2013, Delgado 2017, Roncken 2019). While this analysis is certainly correct, I suggest that there is also a need to scrutinise the TIPNIS case through the lenses of political conflict and juridical symmetry. As demonstrated above, through its initial conflictual dimension, the TIPNIS case brings to the fore the possibility of negotiating and reconfiguring alternative legal and political categories insofar as it re-opens the debate over the question of politics, individual rights, and property relations. However, at the same time, it further illuminates the broad depoliticising implications intrinsic to the attribution of legal rights to Mother Earth through which nature as a contested space is rendered politically and socially neutral (Swyngedouw 2010). This consideration leads to the following section, where I discuss the aporia entailed in the attribution of rights to nature through the analysis of the homogenising effects of the juridical applied to the cases presented.

5. The homogenising effects of the juridical

Commenting on an interview given by the Bolivian vice president Álvaro Garcia Linera (Jornada 2012), Carlos Crespo Flores affirms the non-state-centric character of the Indigenous struggle over TIPNIS. Far from being inscribed in the logic of demanding and obtaining rights, Flores points out that the TIPNIS conflict ought to be conceived as a struggle to maintain TIPNIS as ‘a marginal area in terms of geographical, economic, and political aspects, clearly distinguished from an area subjected to the power of the nation-state’ (Crespo Flores 2012). As such, the Indigenous protests against the government’s project positioned themselves as outside of the state logic of juridical recognition. As Flores states in his critical analysis on the TIPNIS case,

Demanding rights from the state is a form of collective action which is promoted by the dominant powers, as doing so keeps the demands within a state-centric horizon; asking things from the government in the form of rights is the highest expression of regulated citizenship […]. Due to its confrontational nature, it is not possible to unite society through the use of rights. […] For the government, the discourse of rights is a device for making the TIPNIS more legible, controlling it, and intervening into it in the name of its modernisation (Crespo Flores 2012).

Flores’ words reveal perfectly the aporia entailed in the modern logic of juridical inclusion and its consequent depoliticising effects, thus exposing the inversely proportional relationship between juridical symmetry and political conflict. Flores seems to be fully aware that, as Costas Douzinas points out, claiming rights means accepting the established order and power by assigning the role of protector of that specific order to the legal system, thus depoliticising every social and political tension (Douzinas 2007, p. 107). In this sense, Flores’ words act as a counter to the dominant narrative of the nation state, thoroughly embodied by Linera’s reply as to why the TIPNIS road was necessary despite strong opposition from a part of the population. Following Linera’s reasoning, the road ought to be realised ‘to guarantee to the Indigenous population of the TIPNIS park access to constitutional rights and guarantees: drinking water […] schools […] access to markets.’ Besides this, the highway is conceived by both Linera and the Bolivian government as a way to regain state sovereignty over the Amazon, a ‘sovereignty that has been replaced by the power of the landlords, the foreign timber companies, and the drug-traffickers’ (Jornada 2012). Linera’s words are worth noting insofar as they showcase what the mechanism of juridical inclusion through the recognition of rights can accomplish, namely the justification of the state’s monopoly of power in the name of those rights which the state itself has to guarantee. The higher the level of juridical symmetry, the lower the dimension of political conflict. By referring to the constitutional right to vivir bien which is subsumed within the broader framework of integral development, as explained earlier, the state assumes the exclusive responsibility of determining the conditions under which such rights are to be guaranteed. It is thus a matter of the state’s priorities within a progress-oriented development trajectory, rather than a matter of finding a way to experiment with forms of autonomous political and legal praxis through the reconfiguration of legal, political, and economic categories. This latter horizon would disrupt the state’s monopoly of power, thus reopening the foreclosed question about alternative trajectories.

As the various Laws analysed here and the TIPNIS case clearly show, the modern logic of juridical symmetry similarly operates through the process of attributing rights to Mother Earth. As we proceed along the continuum of juridical symmetry, the political gradually deteriorates to the point where, for the state’s sovereignty to be safeguarded, such rights can not only be dismissed and not mentioned (as the case of Law 300 shows), but are also deliberately violated in the name of the supposed common good (as is the case with the TIPNIS highway). In this sense, the construction of the TIPNIS road by the government should not be read as the outcome of a malevolent state, but rather as the logical prolongation of the above-mentioned gradual deterioration of the political and the absolutisation of the modern state’s power. Similarly, it is not the state’s benevolent attitude that led to the inclusion of the rights of Mother Earth in the Bolivian juridical system. It is instead a specific strategy of regulating and foreclosing the conflictual dimension embedded in the Indigenous claims to change the structural foundations of an unjust and exclusive system, as highlighted in the Draft Law of Mother Earth and the Letter of the Indigenous Brigade. By making use of juridical symmetry and extending a vague list of rights to Mother Earth through Law 71 and Law 300, the ability of Indigenous communities to determine the condition of natural resource management and usage is reduced. This responsibility is instead assumed by the state, which can deliberate on, or even suspend, those same rights at its discretion and with absolute power.

As Boaventura de Sousa Santos points out, the affirmation of juridical positivism functioned to consolidate the modern nation state by requiring the state to have ‘a single nation, a single culture, a single educational system, a single army, a single law’, thus transforming Indigenous legal systems into a violation of the state’s monopoly of power (de Sousa Santos and Exeni 2012, p. 17). This process of singularisation and absolutisation was carried out through the homogenisation of political, legal, and economic categories (Tomba 2013). As the cases I have examined show, the homogenising power of the dominant juridical system tends to synchronise alternative juridical systems that do not comply with the principles of relational symmetry, the state’s monopoly of power, and individual rights. As such, Indigenous practices based on an asymmetrical plurality of powers, community rights, and collective ownership are painted as backwards and do not find space within the homogenising progress-oriented trajectory of the modern legal system. This synchronising mechanism shaped the entire legislative process, from the proposal of the Draft Law on Mother Earth, to the adoption of Law 300 within the framework of integral development, to Law 969 which definitely neutralised the TIPNIS conflict. Complex Indigenous systems of plural authorities, duties, and obligations, as well as their communal forms of accessing and managing natural resources were dismissed as they threatened and violated the absoluteness of the state’s monopoly of power and the naturalisation of individual rights and private ownership as dominant categories of the modern legal system. The rights of nature, as conceived by the Indigenous proponents of the Draft Law, thus have little to do with the modern concept of individual rights, which sees them as guaranteed and protected by the state. Instead, Indigenous political relations go beyond the concept of rights by reactivating a complex web of mutual obligations embedded in the specific practices of common ownership of the land and autonomous political self-government.

6. Conclusion

According to T.J. Demos, ‘the legal innovation of Rights of Nature provides one key mechanism [to ignite political change], representing a cultural-social-political revolution in jurisprudence, and more broadly in philosophical worldview’ (Demos 2015). While I sympathise with the acknowledgement of the procedural novelties introduced on a juridical level by RoN, I have argued that they ought not to be seen as representing a revolutionary way of interacting with the environment. I have focussed in this article on the aporetic implications of the RoN paradigm and its intrinsic complicity with modern normative categories such as the state’s monopoly of power, individual rights, and a proprietary regime of ownership. In doing so, I have demonstrated that the widespread attempts of attributing rights to nature do not provide the theoretical and practical space for inaugurating a novel way of being together. On the contrary, these attempts reiterate a gradual process of neutralising political conflict by extending the logic of juridical symmetry to nonhuman entities. As I have pointed out, the homogenising power of the juridical which derives from such an extension ought to be read as a means to erase the radical plurality embedded in Indigenous attempts to disrupt and reject a given system. My critical analysis of the empirical cases finds that the extension of a set of abstract rights, emptied of conflictual potential, reduces to unity the plurality of different political, legal, and economic systems expressed through a web of mutual obligations and responsibilities. As a consequence, the absolute sovereignty of the nation state presents itself as freed from any constraint which might derive from alternative Indigenous ways of self-government (i.e. a plurality of powers). The modern paradigm of individual rights forecloses any risk of asymmetries and inequalities (i.e. a plurality of obligations). And the primacy of a proprietary regime is secured against the threat of communal possession (i.e. a plurality of ownership models). My contribution has been to build on and extend critiques of conceiving nature as a bearer of rights on a theoretical and empirical level. The implications of my arguments for environmental politics lie in showing the limitations of the RoN paradigm and underlining the need for more critical engagement with the political consequences of thinking through conflict, plurality, and asymmetries. The critique presented here contributes to the field of environmental politics in four major ways. First, it renders visible the problematic entanglement of RoN with conceptual categories of modernity, thus advancing and challenging the literature on the significance of rights of nature. Second, it demonstrates that resorting to the analytic lenses of juridical symmetry and political conflict can productively advance the critiques of RoN. Third, it cautions against an overly enthusiastic reception of the theoretical and practical implications of RoN which can hinder the ability to adequately address environmental problems. Lastly, it shows how the precondition for a transformative way of being together lies in opening political space for contesting the given configuration of power embedded in current uses of RoN.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Proponents of the ontological turn question the human-centric perspective on socio-environmental relationships, arguing instead for the attribution of distributed agency to nonhuman entities as a means of building a symmetric ontology in which the dominant distinction between subject and object is overcome (Viveiros de Castro 2005, Holbraad and Pedersen 2017).

2. All the texts cited in this paper were translated from Spanish to English by the author.