Rights of nature: milestones for the construction of a general theory

RIGHTS OF NATURE MILESTONES FOR THE CONSTRUCTION OF A GENERAL THEORY Anna Maria Cárcamo Carla Judith Cetina Castro Chantelle da Silva Teixeira Felício Pontes Jr. Johny Fernandes Giffoni Lucivaldo Vasconcelos Barros Manoel Severino Moraes de Almeida Mariza Rios Monti Aguirre Vanessa Hasson de Oliveira Casa Leiria Editor Luiz Felipe Lacerda Authors

The Juridical Working Group (Juridical WG) is an operative group of studies and concrete incidences in the field of the Rights of Nature – Mother Earth. Composed of jurists and other professionals who are involved in different fronts, such as university, assistance to social movements, non-profit organizations, it advises federative entities, as well as political, legal, and ecclesial actors on the advancement and implementation of these rights. The Juridical WG is a self-managed collective derived from the National Articulation for the Rights of Nature – Mother Earth, which began its work on April 22, 2020, from the cooperative union between dozens of institutions and social movements that, within the scope of the Forum on Socio-Environmental Climate Change, agree on the urgency of effectively confronting current and predicted socio-environmental crimes and disasters in our society.


RIGHTS OF NATURE: MILESTONES FOR THE CONSTRUCTION OF A GENERAL THEORY ARTICULAÇÃO NACIONAL PELOS DIREITOS DA NATUREZA GRUPO DE TRABALHO JURÍDICO Authors Anna Maria Cárcamo Carla Judith Cetina Castro Chantelle da Silva Teixeira Felício Pontes Jr. Johny Fernandes Giffoni Lucivaldo Vasconcelos Barros Manoel Severino Moraes de Almeida Mariza Rios Monti Aguirre Vanessa Hasson de Oliveira Articulation Brent Milikan Luiz Felipe Lacerda Organization (Edition) Luiz Felipe Lacerda OBSERVATÓRIO NACIONAL DE JUSTIÇA SOCIOAMBIENTAL LUCIANO MENDES DE ALMEIDA – OLMA Provincial of the Province of Jesuits in Brazil Pe. Mieczyslaw Smyda, S. J. Secretary for the Promotion of Socio-Environmental Justice of the Province of Jesuits in Brazil and National OLMA’s Coordinator Pe. José Ivo Follmann, S. J. Executive Secretary Dr. Luiz Felipe B. Lacerda CASA LEIRIA Ana Carolina Einsfeld Mattos Gisele Palma Haide Maria Hupffer Isabel Cristina Arendt José Ivo Follmann Luciana Paulo Gomes Luiz Felipe Barboza Lacerda Márcia Cristina Furtado Ecoten Rosangela Fritsch Tiago Luís Gil EDITORIAL BOARD (UFRGS) (IFRS) (Feevale) (Unisinos) (Unisinos) (Unisinos) (UNICAP) (Unisinos) (Unisinos) (UnB)


The texts are the responsibility of the authors. Any part of this publication may be reproduced, provided that the source is cited. Edition: Casa Leiria. Cover Art: Matheus Ribs. Translation and proofreading: Andrea da Rosa. RIGHTS OF NATURE: MILESTONES FOR THE CONSTRUCTION OF A GENERAL THEORY Luiz Felipe Lacerda (Editor) International Data Publishing Cataloguing Librarian: Carla Inês Costa dos Santos – CRB 10/973

Rights of Nature: milestones for the construction of a general theory 7 TABLE OF CONTENTS 9 Foreword Ivo Poletto 11 Introduction Luiz Felipe Lacerda 15 1. The paradigm of the Rights of Nature Johny Fernandes Giffoni Manuel Severino Moraes de Almeida Mariza Rios Vanessa Hasson de Oliveira 29 2. The defense of nature in court: the action of the Prosecutor's Office in favor of the Xingu River in the case of the construction of Belo Monte Hydroelectric Power Plant Felício Pontes Jr. Lucivaldo Vasconcelos Barros 45 3. The Whanganui River and the Maori people: recognition and guarantee of the Rights of Nature Monti Aguirre Anna Maria Cárcamo 53 4. Xukuru People v. Brazil: a paradigm of the Inter-American Court of Human Rights in the construction of collective territorial rights of indigenous peoples Chantelle da Silva Teixeira 67 5. Colombian Amazon as a subject of rights: judgment of the Supreme Court of Justice of Colombia Carla Judith Cetina Castro

Rights of Nature: milestones for the construction of a general theory 8 81 6. The Case of Verdinho Parrot and the Paradigm Shift in Brazilian Jurisprudence Anna Maria Cárcamo 91 7. Consultation Protocols and Prior, Free, and Informed Consent in the state of Pará Johny Fernandes Giffoni 103 8. Resistance and Territory: Traditional Peoples and Covid-19 Manoel Severino Moraes de Almeida 109 9. Everything is Interconnected: The River, the Community, and the Earth Mariza Rios 127 10. The Rights of Nature in Brazil: the case of Bonito – PE Vanessa Hasson de Oliveira 143 Final Thoughts 147 Addendum – Open Letter for the defense of the rights of Mother Earth and the life of the Amazon with its peoples 154 The authors

9 FOREWORD Ivo Poletto The organizations, movements, and pastorals that constitute the Forum on Climate Change and Socio-Environmental Justice - FMCJS have decided, at the National Seminar held in November 2019, without leaving aside the other activities provided for in the work plan, that two priorities should get assumed: the defense of life in the Amazon with its peoples and the recognition of the Rights of Nature, Mother Earth. The conclusions of the recent Synod for Amazon, recognized and reinforced by Pope Francis through the message Dear Amazon, indicated that it would be indispensable to defend the rights of people and nature to save the Amazon life with its peoples. And, even before the Synod, the encyclic Laudato Si’ – On Care of Our Common Home had motivated FMCJS to advance in the valorization of biomes created by Earth in all the actions aiming at its permanent objective: identifying and combating the causes of global warming, giving special attention to those affected by the climate changes, in the perspective of the construction of Well-Living societies. The Articulation for the Rights of Nature – Mother Earth, which organizes this publication, was constituted by organizations, movements and pastorals that have welcomed the FMCJS’s invitation to share the mission of implementing the necessary mobilization to reach the recognition of these rights in all the scope of national life. And for it to provoke an ample and profound re-education process of changing the dominant culture that lies on the separation between humanity and nature, sheltering the cultures of indigenous peoples and traditional communities. The ancestral people did not think it was necessary to recognize legally the Rights of Nature, by them reverenced as Mother Earth. In their view, the Earth was the Mother of all living beings that inhabited it and, for that reason, what we should ask ourselves is about our duties towards it. It reveals that every different biome is a living space and a source of life to all the beings that live in it, corresponding to humans the conscious mission of caring for its preservation. Moreover, its sons and daughters must prime for the equality of rights among all people, thus honoring their Mother. That is: we are part of the Earth, and we can only live if it continues living. Reality shows us, however, that this is not the way many people relate to the Earth. The dominant education has spread an anthropocentric – and even androcentric – culture of considering the human being as superior to all the others

Ivo Poletto 10 because of its rationality and freedom, intelligence, and creativity. What has been designed as “nature” was considered something exterior and inferior and, little by little, something that was appropriate as an exclusive space of a group or a person, creating a division not authorized or signed by Mother Earth. It is in this kind of society in which there is a land market that propriety has taken an absolute- and unlimited-right air by the power of laws created by instances controlled by several types of large proprietors so that it is necessary to set the debate and fight for the recognition of the Rights of Nature, Mother Earth. After all, the Earth itself is at risk of losing its vitality and energetic balance because of the absurd intensity of its exploration under the services of a few great landowners, reinforced by the few owners of fossil energy sources and the few that, through indebtedness and speculation, have become the lords of the richness expressed in cash and financial credit titles. May this book help us advance and achieve recognition of the Rights of Nature, Mother Earth, a condition for the “real” validity of Human Rights. Ivo Poletto Forum on Climate Change and Socio-Environmental Justice – FMCJS (Fórum Mudanças Climáticas e Justiça Socioambiental – FMCJS) National Articulation for the Rights of Nature – Mother Earth (Articulação Nacional pelos Direitos da Natureza – a Mãe Terra)

11 INTRODUCTION Luiz Felipe Lacerda The collective called National Articulation for the Rights of Nature – Mother Earth was born on April 22, 2020, when dozens of institutions - moved towards the effective need of politically, socially, legally, and academically advancing in the facing of the imminent socio-environmental disaster in the path of humanity - committing to work along for the Earth and the beings living on it, broadening the conceptions of what is the subject of rights in the general context of our society and also in its juridical universe. This union’s manifest can be found at the Public Letter: For the defense of Mother Earth’s rights and the life of the Amazon with its peoples, attached to this book. Derived from this broad alliance for the Common House, some working groups took place. It fell to the National Observatory of Socio-Environmental Justice “Luciano Mendes de Almeida” (Observatório Nacional de Justiça Socioambiental Luciano Mendes de Almeida – OLMA) and the International Rivers the task of conventionally constituting what was called the Juridical WG. It was a group of specialists from the juridical world and different regions of the country responsible for elaborating efficient proposals in legal and academic fields towards the advance of the Rights of Mother Earth in Brazil. Thus, we sought in the juridical advice at the Missionary Indigenous Council (Conselho Indigenista Missionário – CIMI) the knowledge that they have built, through decades, working along with indigenous people from Brazil. We sought support from colleagues at the Prosecutor's Office and the Public Defensory (DP/PA) to ensure the legal perception of all the socio-environmental populations affected by the current system, which emphasize the market of nature and life. Not different from that and producing an effective interlocution with the academic world, we counted with colleagues from Law School “Dom Helder Câmara” (EDHC/MG) and Universidade Católica de Pernambuco - UNICAP, through its Chair on Human Rights “Dom Helder Câmara” (CDHDHC – UNICAP), that operate very well the concept open, community universities, connected to the actual needs of the populations, promoting the effective dialog of knowledges. Finally, adding up to this team of experts, we had the effective collaboration from civil society with broad paths on the defense of

Luiz Felipe Lacerda 12 the Rights of Mother Earth, especially from International Rivers, from UN Harmony with Nature Platform and OSCIP MAPAS. In that way, those who propose the Guidelines for a General Theory of the Rights of Nature in the following pages are people and institutions with unquestionable legitimacy facing this knowledge field and irrefutable credibility among their pairs and facing different social, political, academic, and juridical actors. Even though they share with humbleness the certainty that it is not a finished work, if not a first step, taken with steadiness, study, practice, and conviction, but a first step which invites colleagues from different areas of knowledge production, from juridical sceneries, political contexts, and social fields to unite in this construction which must, with no other option, be collective. The Juridical WG started its works in April 2020 and, with weekly meetings for studies and debates about the different national and international cases in which the rights of Nature achieved advances, analyzing its characteristics, contexts, and strategies, the collective has covered, in a self-managed way, profound analytical and propositional path. The book we present is the result of this journey: this first deep step and, case by case, it intends to reveal some of the essential principles to the re-foundation of the juridical guideline regarding the rights of nature in Brazil. We begin this book in chapter 1, presenting the sharp differences between the hegemonic and the emergent paradigms regarding the rights of nature. From this analysis derives the proposal of what is principled in the foundation of this new field we intend to build. In the end, we explain why it is urgent to long for this rupture and paradigmatic reconstruction. In sequence, the second chapter, written by Felício Pontes Jr. and Lucivaldo Vasconcelos Barros, starts to present the cases studied by this group of experts, exposing the activities of the Prosecutor's Office in favor of Xingu river, in the case of the construction of Belo Monte Hydroelectric Power Plant. In the third chapter Monti Aguirre and Anna Maria Cárcamo, from International Rivers, take us to New Zealand to study the case of the Whanganui River and the Maori people in recognizing and ensuring the rights of nature. With Chantelle da Silva Teixeira, from the Missionary Indigenous Council (CIMI), we come back to our analysis of Brazil in the fourth chapter, presenting and reflecting on the case of the Xukuru people in a paradigmatic approach of the Inter American Court of Human Rights on the construction of territorial rights for collectives of indigenous peoples. In the fifth chapter, along with Carla Judith Cetina Castro, also from the Missionary Indigenous Council (CIMI), we lean over the emblematic case of the Colombian Amazon as the subject of rights in the sentence from the Colombian Supreme Court of Justice. Following that, in the sixth chapter, we can comprehend an example of paradigmatic change in the Brazilian jurisprudence with Anna Maria Cárcamo, from International Rivers, who presents the case of the parrot “Verdinho” under the view of the Rights of Nature.

Introduction 13 Chapters seven and eight are respectively presented by Johny Fernandes Giffoni, from Pará Public Defensory, approaching the protocols of consulting and prior, free, and informed consent; and by Manoel Severino Moraes de Almeida, from the Chair on Human Rights “Dom Helder Câmara”/ Universidade Católica de Pernambuco, tackling the resistance and the territories of traditional peoples facing the COVID-19 pandemic. In the subsequent chapter, Mariza Rios, from Law School “Dom Helder Câmara”, advances on the reflection about the Rights of Nature regarding public policies, democracy, and the municipal budgets, demonstrating that everything is interconnected. Closing the stage of expositions and case studies, the tenth chapter, written by Vanessa Hasson de Oliveira, from OSCIPE Maps, enlightening us through the cases from Bonito (PE) and Florianopolis (SC), presents an accurate analysis of legal texts to allude to the fundamentals of a promising perspective to the Rights of Nature in Brazil. All the exposed cases re-introduce and exemplify, gradually, the application of the principles that establish the guideline for the General Theory of the Rights of Nature. Each author, through individual and collective studies conducted in the context of the Juridical WG “National Mobilization of the Rights of Nature,” has been invited to promote the theoretic and practical intertwining between the cases presented and this new construction to which this work is intended. We do expect that it will gain space among the mandatory bibliographies in the universe of the juridical training, as well as it will offer argumentative backing for the decision takers in favor of the Rights of Nature, Nature as the “effective subject of rights” and, therefore, of everything that lives. We believe that by reading this book, reflecting, and debating the ideas exposed on it, you may become an agent of this paradigmatic transformation, and, for that, we wish you enjoy your reading!

15 1. THE PARADIGM OF THE RIGHTS OF NATURE Johny Fernandes Giffoni Manuel Severino Moraes de Almeida Mariza Rios Vanessa Hasson de Oliveira INTRODUCTION In the present chapter, the authors seek to present some of the pillars of the Rights of Nature paradigm as the theoretical/scientific founding capable of guiding the rationality model used in the systematization of experiences presented in the following chapters of this work, rationality based on the community building of knowledge through the recovery of the traditional as a compelling strength of a new interpretation of social relationships between human beings and between them and other beings of the Planetary Community and, therefore, a new understanding of the Law under a change in the epistemic paradigm with the ecocentric spin. For this reason, they seek to systematize a conducting line for rationality capable of sheltering the plurality of knowledge constituted by the denial of the exclusion of non-human members of Nature, that constitute the Planet Earth in interdependence with humans, in their social and ecological diversity, through the promotion of a complementarity that, in the authors’ view, passes by the understanding that modernity is an unfinished reality and, in it, the journey of the knowledge of regulation stands with the same face of colonialism and, to some extent, the post-modernity is recognized by the naturalization of the exclusion produced globally by modernity itself (SANTOS, 2000; BAUMAN, 2000). Finally, it is possible to affirm that the logic of the juridical rationality guiding this study has as a challenge to advance in the understanding and strengthening of principles, from the biocentric spin to the ecocentric ethics and under the basis of the paradigm of harmony with Nature, interdependence, reciprocity, complementarity, and community acting in two complementary directions. The first seeks the formal construction of Nature as a subject of rights, while the second one intends to improve the balance between the pillars of regulation and emancipation as the nourishment of a possible General Theory of the Rights of Nature.

Johny Fernandes Giffoni, Manoel Severino Moraes de Almeida, Mariza Rios and Vanessa Hasson de Oliveira 16 1.1 PARADIGMS SUPPORTING THE DOMINANT LOGIC OF KNOWLEDGE AND PROMOTION The passage from a utilitarian knowledge model, based on the formulation of laws that have as an assumption the ideas of order and stability of the world, whose centrality relies on the privilege of the functioning things despite its groundings, has as its purpose to dominate and transform, despite the capacity of understanding facts and phenomena. This logic product from the body to the dominant modern paradigm of knowledge has been extensively studied by Santos (2000) and, to the same extent, by Bauman (2000). Both authors present, among several contradictions of this paradigm, the idea that scientific knowledge is apart from common knowledge and, likewise, Nature is apart from the human individual. Bauman (2000), (re)reading the principles of emancipation and regulation, the promises of modernity, has occupied himself with the social dimension and, in that context, sustained that the weakening of emancipation has become evident through the liquidity process of modernity. Therefore, for the author, modernity is liquid because it has abandoned emancipation in the hands of the consumption and market. Boaventura de Sousa Santos, in his turn, recognizes that the project of modernity did not accomplish its promises of emancipation and regulation. Thus, it prioritized a rationality type whose order builds on the economic and consuming space, which required the abandonment of the principle of the state and community, leaving the field open to the market. With this, regulation succumbed to emancipation and, thus, the regulation and emancipation pillars collapsed, creating an unprecedented contingent of exclusion. Science, in its turn, embarked on this model of rationality (dominant paradigm), producing even more regulation without the confirmation of emancipation, space of citizenship, and community. In this paradigm of modern sciences, laws are a type of formal thing with privilege in the functioning of things entirely apart from its operation. What becomes evident is a relevant differentiation from common knowledge, in which the cause and the intention coexist without problems because the centrality lies in unity and not in separation. Thus, we can affirm that the modern and dominant paradigm coexists with the idea that the world is a machine whose pillars are order and economic progress at all costs and, because of that, we have, as the result of this logic, an unprecedented exclusion process. We call this the utilitarian and functional growing, whose centrality relies on dominating and transforming without the minimal intention of understanding (SANTOS, 2000). The pillars of this logic are a model of development and knowledge imprisoned by the idea that the world only has a chance of existing, the daily assumption that society only develops itself through the logic of market and consumption and, in this context, developing requires the acceptation that order and liberal economic progress be above any suspicion. The regulation knowledge, in this context, ended up integrating to its logic the emancipation knowl-

The Paradigm of the Rights of Naturea 17 edge and, therefore, the modern emancipation confuses with the regulation itself (SANTOS, 2000). However, if this modern logic, on the one hand, through the regulation knowledge, constituted social exclusion, on the other hand, through the meeting with its contradictions, has brought the presence of the possibility of another logic, the emancipation knowledge understood by the denial of the exclusion and, thus, by the inclusion of all human and non-human beings, those living and not living, that practice a natural relationship regarding the interconnection they operate as components of an ecological system and one that still speaks to the social system dynamics, which strengthen itself through a shared reading among the principles of interdependence, solidarity, complementarity, reciprocity, and community living with several social practices and natural dynamics of the elements of Nature, which point out to the strengthening of law, culture, and planetary community. This rationality brings in its essence two main understandings. The first one is the false idea that post-modernity is the reverse of modernity. On the contrary, it is the naturalization of an excluding human society which survives the deepening of its members’ individuality, the indivisibility of foreign, the alterity, and the perverse struggle against the exercise of community citizenship. The second one feeds from the denial of the social exclusion that is turned concrete through the necessary reciprocal bonding between the regulation and the emancipation knowledge. On the same field, the referred rationality points out to the understanding that, contrary to what modernity aimed, we have the resurgence of the logic of knowing through the community experience constituted by the opposite of modernity, individualism. What it intends is “to question the failed tentative of propelling the development as a global imperative and a unilineal way, not seeking anymore to propose alternatives of development, but alternatives to development” (ACOSTA, 2016, p. 85). Therefore, the dichotomy between subject and object, nature and culture, present in social relationships claims for the complementarity logic, a paradigm that, to the same extent, brings the social scientific designed by Santos (2000) of knowledge based on two guiding principles: prudence (prudent scientific knowledge) and decency (decent life), and, thus, a prudent knowledge that mandatorily has to be social to achieve a decent life. In the same way, Acosta emphasizes the need to “accept that the human being performs in the community, with and in the function of other human beings, as an integral part of Nature, assuming that the human beings are Nature, without intending to dominate it” (ACOSTA, 2016, p. 104). This liberal model is hit by an epistemic and socioeconomic crisis, a civilization crisis, which has one of its major expressions in the death of Nature and, along with it, because it is part of it as the most sensitive maidenhair, the poorest population is placed in the coffin of social, economic, and values exclusion, that calls for the unity of humanity with Earth and Nature, which are prevented of manifesting because if they do so, there will be a hit in the global order of de-

Johny Fernandes Giffoni, Manoel Severino Moraes de Almeida, Mariza Rios and Vanessa Hasson de Oliveira 18 velopment, and, consequently, in the dominant anthropocentric paradigm that their existence needs the death of the logic of integrality attended by the idea that everything is interconnected: Earth, humanity, and the other beings in Nature. This ecological and civilization crisis overcome resides on the amplification of the anthropocentric perspective to include it in the paradigm of ecocentric ethics. Gudynas (2015) recognizes the values of the ecosystems in themselves, which go much further than their market value as natural resources, surpassing their materiality to include relational values that presuppose the founding interdependence of the Living supporter and, even, the metaphysics of the ancestral knowledge protected by traditions, the worldviews of the native peoples. Therefore, it creates an environmental conscience capable of “corroborating for the consolidation of rules centered on the satisfaction of dignity beyond the human being” (MORATO LEITE, 2015, p. 181). This landscape, exemplified by Rios (2008) in a study of the experience in a “quilombola” community in the process of territory recognition, reveals the western juridical formality when used to regulate a community that has, as its paradigm, the community right – understanding of the owner (proprietor) of succession and collective – that was differently presented from the Eurocentric logic and, thus, brought the opportunity of understanding the contradiction between this two logic but, more than that, it demonstrated it was possible to find dialogue points in the resolution of a territorial conflict, called by the author as the right of the judge versus the community right. In practice, this scenario requires the “state judge” to have the sensitivity to embody in the understanding the idea of juridical plurality and, to the same extent, the community comprehension that the process of hearings from both perspectives becomes essential to this plurality affirmation. The result of the study confirms the possibility of a balance between regulation and emancipation. In this context, we dedicate the following item to the support paradigm of the emergent rationality of knowledge and promotion. 1.2 SUPPORT PARADIGMS OF THE EMERGENT RATIONALITY OF KNOWLEDGE AND PROMOTION Anambé (2019, p. 41) draws attention to the existence of evidence capable of defining the paradigm, which consists in a kind of knowledge, presenting itself as a knowledge “not inductive nor deductive but analogic,” moving from one singularity to another. In the same way, it makes possible the neutralization of the dichotomy established by the “rationality of the colonial-modern-world system” (MIGNOLO, 2016), which takes place between the general and the particular, substituting this dichotomic logic for a reasoning based on the analogic bipolar model. Another relevant piece of evidence is that the paradigmatic case “becomes such by suspending and, at the same time, exposing its belonging to the group, so that it is never possible to separate its exemplarity from its singularity” (AGAM-

The Paradigm of the Rights of Naturea 19 BEN, 2019, p. 41). Consequently, modern science and its critical theories did not break or deconstruct the paradigms that ground the modernist imagination of “humanity as a constructed totality based on a common project: universal human rights” (SANTOS, 2019b, p. 42). If the rights are human and universal, everyone is equal, not possessing differences, and human beings must protect and guarantee the human within the paradigms and rationalities we will call “colonialist.” In their economic and instrumental faces, they stand as pillars for the civilization process, shaping the relationships between the social body and nature. It reproduces, thus, the “scientific and technological rationality that seeks to increase the capacity of certainty, prediction, and control over the reality, ensuring a growing efficacy between means and ends” (LEFF, 2015, p. 136), the necessity of a domain over nature and its total subjunction. The emerging logic of knowledge and promotion as a “paradigm” has in the environmental rationality one of its pillars, subdividing itself, in Leff’s words (2015, p. 137), in four spheres: Value/belief-oriented rationality; theoretical rationality; purposive/instrumental rationality and cultural rationality. Thus, “the paradigmatic group is never presupposed by the paradigms; it is immanent in them” (AGAMBEN, 2019, p. 41). These rationalities as “paradigms” are capable of “deconstructing” (DERRIDA, 2001, p. 48), inverting the logic of needs and hierarchies built in the bulge of the rationality of the colonial-modern-world system. To deconstruct this rationality means to admit the evidence of the paradigm raised by Agamben, recognizing that the colonial model grounds on the distinction between non-abyssal exclusions – strains and exclusion between individuals; however, they do not question equivalence and basic reciprocities, and abyssal – strains and exclusions of what is not human, the field of the inexistence of equivalence and reciprocity (SANTOS, 2019b, p. 43). Indigenous, quilombolas, riverside, traditional people live in a world of “they” and do not possess any relation with the “rationality,” since they are irrational, barbaric, underdeveloped, and need to abandon “nature” because it is the place of the “irrational.” If nature is the object of the rationality of the colonial-and-modern-world system and the people are there, they do so because they are irrational and, so, they must be assimilated and accultured. We emphasize that “the conventional human rights, as part of the western world, have as an ontological limit the impossibility of recognizing the full humanity to subjects that are unfathomably excluded” (SANTOS; MARTINS, 2019, p. 22). First, admitting that monoculture is not capable of solving the problems created by modernity, like the end of poverty and inequality, means recognizing the existence of plurality and diversity of human beings who are not contemplated by conventional human rights. Thus, “the western understanding of the universality of the human rights does not conceive that there are different principles about human dignity and social justice” (SANTOS; MARTINS, 2019, p. 22). The struggle for recognition of identities in Latin America and the pluralism of legal, social, economic, and cosmic experience; beyond pluralism as a possibility of recognition of differences can be noticed in Latin-American Constitutions since 1980.

Johny Fernandes Giffoni, Manoel Severino Moraes de Almeida, Mariza Rios and Vanessa Hasson de Oliveira 20 We highlight the struggle of the emerging social movements that “are gestating new rights – environmental, cultural, collective – in response to an environmental problem that emerges as a civilization crisis, an effect of the saturation point, and the overflowing of the dominant economic rationality” (LEFF, 2015, p. 346), building a new political space and new rationalities under its ethnic identities and cosmologies. According to Leff (2015, p. 346), “the process of modernization, guided by the technological growth, has been supported in a legal regime based on the positive right, forged in the ideology of individual liberties, which privilege private interests.” On the other hand, the emerging social movements focused on the deconstruction of the monoculture ideology, which was raised in the law institutions and normative instruments, firstly recognizing pluralities and, later, recognizing legal pluralism. According to Fajardo (2009), over the last 25 years, Latin America has experienced three cycles of constitutional reforms, in which there has been the guarantee of plural and multicultural rights. The first cycle of the Multiculturalist Constitutional Reform began in the 1980s, 20th century, characterized by the “introduction of the right – individual and collective – to cultural identity, along with the inclusion of specific indigenous rights.” (FAJARDO, 2009, p. 25). There is evidence that, on the threshold of the first to the second cycle proposed by Fajardo, we have the creation of Convention n. 169, by the International Labor Organization, which recognized indigenous' and tribal peoples' “rights to land and territory, and access to natural resources; recognizing customary law itself, as well as rights regarding work, health, communication, development of one’s languages, intercultural bilingual education, etcetera (FAJARDO, 2009, p. 21).” Between the first and the second cycle lies Brazil, whose constitutional reform preceded the adoption of Convention 169 of the ILO by a year, recognizing some of the positive concepts in the international order, such as the right to self-determination and the plurality of social, cultural, and economic organization of ethnically differentiated peoples such as indigenous and quilombola people. Regarding Nature, the Constitution took a stand for “extended anthropocentrism” by considering the environment “as a common good for the people, attributing to it the undeniable character of a macro-good. Art. 225 establishes a broad vision of the environment, not restricting the environmental reality to a mere set of material goods (forests, lakes, rivers)” (MORATO LEITE, 2015, p. 169). The second cycle takes place during the nineties of the 20th century, incorporating rights contained in ILO Convention 169. For Fajardo, this cycle “affirms the right (individual and collective) to identity and cultural diversity, already introduced in the first cycle.” However, it develops a broader concept of “multiethnic nation” and “pluricultural state” (2009, p. 26). Such Constitutions began to qualify the nature of the people, advancing towards the character of the State, recognizing the “legal pluralism, as well as new indigenous and Afro-descendant rights” (FAJARDO, 2009, p. 26). We must consider that “the Constitution is not the most political of all the juridical documents, it is the most juridical of all the political documents” (ACOS-

The Paradigm of the Rights of Naturea 21 TA, 2016, p. 153). Because of this, we had the third cycle of the “Multicultural Constitutional Reform,” which happened during the first decade of the 21st century. Its main characteristic was the institutionalization of the Plurinational State of Bolivia (2007/2008) and Ecuador (2008), founded on a “model of egalitarian legal pluralism, based on intercultural dialogue (FAJARDO, 2009, p. 27).” The struggle between the rationality embraced by emerging social movements and “Western modernity as a paradigm based on the strain between regulation and social emancipation” (SANTOS; MARTINS, 2019, p. 20) involves the decommodification of the Rights of Nature, pushing away any theoretical construction, denying its existence in itself, where it will only have value when inserted in the economic rationality (ACOSTA, 2016, p. 120). Forest, indigenous, quilombola, riverside dwellers, and other traditional peoples assume the community value, all being an integral part of Nature, having no intention of domination (ACOSTA, 2016, p. 104). To the same extent, the Constitution of Ecuador, recognizing the Right of Nature: [...] Article 71 of the 2008 Constitution of Ecuador is considered a pioneer in this field, an article linked to the philosophy of nature of indigenous peoples. For the Andean peoples, nature, far from being an unconditionally available and appropriable natural resource, is the motherland (Pachamama in Quechua), the origin and foundation of life and, therefore, the center of all ethics of care (SANTOS, 2019a, p. 54). Since “Mother Earth” is the one that gives life and existence, she was conceived as being represented by people, communities, peoples, and nationalities (ACOSTA, 2016, p. 131). Contrary to what was established by the Constitution of Bolivia, the Rights of Nature in the Ecuadorian Constitution were explicitly foreseen, being oriented to safeguard “vital cycles and the various evolutionary processes, not just endangered species and natural reserves” (ACOSTA, 2016, p. 132). The Bolivian Constitution includes the so-called “sociology of absences” by including the concepts of Pachamama and referring to indigenous knowledge and social organization Suma Qamaña (well living) (SANTOS, 2019a, p. 54). Emerging social movements have a poly-classist character, recognized for their assembler character and driven by the search for recognition of their autonomy. They establish dialogue processes between knowledge and disciplines through the translation of knowledge elaborated independently of the dominant discourses and the discourses of specialists. They are guided by valuing local knowledge, which has its source in the relationship of Indigenous, Campesinos, Quilombolas, Rooters, Afro-Colombians, and other ethnically differentiated groups with the universe of Nature and its cosmology as a science (SVAMPA, 2012, p . 20). Autonomous or Community Protocols for Consultation and Consent of Indigenous and Quilombola Peoples, Life Plans, Recognition of Pachamama as a subject of Rights, Recognition of Territories and Territorialities in the internal judicial sphere of Latin American countries or within the scope of the Inter-American Court of Human Rights represent strategies for deconstruction of western modernity and its paradigm of regulation and social emancipation.

Johny Fernandes Giffoni, Manoel Severino Moraes de Almeida, Mariza Rios and Vanessa Hasson de Oliveira 22 The produced knowledge in the struggles and conflicts experienced by these movements can induce environmental rationality it is a paradigm of emancipatory legal hermeneutics. Santos understands as possible to build this rationality through ecologies of knowledge, which would be cognitive forms of collective constructions that would be guided by “principles of horizontality (different types of knowledge recognize the differences between them in a non-hierarchical way) and reciprocity (different incomplete knowledge reinforced through the establishment of complementary relationships among themselves” (2019b, p. 124). We can conclude that the emancipatory rationality brings, at its core, the expansion of the Legal Pluralism, recognition of different statutes; it is what Santos (2019b) called Legal Plurality, whose centrality suits the democratic decision process that has, as a consequence, not only the recognition of cultural diversity and ways of life but also the dialogue possibility between these differences, capable of obtaining collective results. And, more than that, plurality recognizes that everyone is subject to rights to humanity, nature, and earth, and, thus, Nature cannot be conceived as a property of anyone. In this context, recovering the core principles of the rights of nature becomes essential; thus, the following item takes over the task of this recovery. 1.3 PRINCIPLES OF THE RIGHTS OF NATURE The framing of a general theory that intends to build the Rights of Nature begins with the description of principles that merge in the dynamics of Nature and legitimate themselves in the natural conformation of the system of life. In addition to the ecosystem behavior, it also considers the smallest system of human social life, which includes the elements of interculturality and territoriality. In this principled redeem, the social dynamics are multi-versed and include the metaphysics of the manifestations of the encounter between the materiality of life and culture, bioculture, in a way that it is linked to the historical evolution of communities, in the timeline of civilizations and takes place inter-relatedly to the original cosmovision in which the Earth is not a planet, it is the Great Mother, thus, shaping the “Pachamama,” the “macro-pacha” and the biocultural interactions that take place within the community, the “micro-pacha” (FERNÁNDEZ LLASAG, 2018). Like human mothers, Mother Earth is the one endowed with the unique material and spiritual function of providing and maintaining the web of Life: offering territory to walk, food to nourish, energy to maintain the relationships and connections that link the web of Life in a naturally harmonic way between chaos and order, between living and dying, which transmutes and makes the sky remain standing, generating and regenerating. (OLIVEIRA, 2020). In this universe, harmony with Nature is the principle of principles, the amalgamation of other ones that follow in close observation of the creative abundance of “Pachamama,” the complementarity of opposites, and the included third, which, in turn, are derivative from the principle of relationality or reci-

The Paradigm of the Rights of Naturea 23 procity. The paradigm of Harmony with Nature, woven from a plural, multi-relational and symbiotic perception of life, supported by the principles of community and complementarity of opposites, integrated by the consciousness of Life (MORAES, 2018). Then, it follows that there is a visceral interdependence in the broader system of Life, the “Pachamama,” which unfolds from the microscopic relationships between themselves and these with the other beings in the web, with the Coronavirus (SARS-CoV-2) being its greater expression, even the immanent relationships of the energies of the natural elements, physical and telluric, and cosmic ones. The result of harmony in Nature, given the condition of interdependence, depends on the realization of reciprocity as the complementarity in which relationships happen, from biological interactions to the marriage that occurs at the cosmic level and generates everything (BOFF, 1981). From the perspective of the communities of the original peoples, the complementary ones are the mainstay of life, starting from the feminine of Mother Earth filled in communion with the masculine of Father Sun. From the perspective of human drives, complementarity does not go unnoticed in the communication with what is outside the system but makes a great unity with it. Postmodern human beings once again perceive, from the universal ancestral memory, something that moves them since their original cell: that living does not necessarily consist simply in living, but in living with all other animate things and even supposedly inanimate things, that what takes place in the outer world is reflected in their individualized inner world. Relationality, thus, operates in a biased to complementary way and reciprocity consists of having internalized the awareness that the donation will be offered and the counterpart that starts with the individual action is sure because it is a natural part of the systemic behavior which, if not suffering interventions from the outside, operates in the natural flow. It is in the surroundings of this total system, in the global, planetary scope where nature is located that if it does not have its dignity recognized in the totality of partial social systems – that is: law, politics, economy, education, religion, etcetera – with the rights arising from there, as Vanessa Hasson de Oliveira convincingly postulates here, the very basis of support on which the total social system rests will be undermined, with its subsequent downfall (GUERRA FILHO apud OLIVEIRA, 2016). All this relationality, in turn, centers on the community paradigm, in which relationships take place concerning interculturality and with a horizontal orientation. It starts with the real fact that the human community shares the same unity, with unity, with the other members of the planetary community, the Common Home, as stressed by Francis in his Encyclical Letter Laudato Si’ (FRANCISCO, 2015 ). The human being can be inserted in the larger community, the planetary one, and it is because there he meets with others of his human species and other members of the planetary collectivity, being with and among them, therefore, being the unity itself.

Johny Fernandes Giffoni, Manoel Severino Moraes de Almeida, Mariza Rios and Vanessa Hasson de Oliveira 24 The condition of a community member presupposes the condition of loss of individuality and, paradoxically, justifies the individual’s existence, insofar as it is just if among and with the other members. For that, the individual needs to be open with the other “no es simplemente ni ante todo generosidad, amplitud en la hospitalidad y largueza en el don, sino en principio da condición de coexistencia de singularidades finitas ‘entre’ las cuales – a lo largo, al borde, en los limites, entre <afuera> y <adentro> circula indefinidamente la posibilidad de sentido” (ESPOSITO apud OLIVEIRA, 2016). What unites the members of a community, and thus constitutes it, is an absence, a one-way duty from individual to individual; it is the other that characterizes the common. It is not what is proper, but what is inappropriate, the other. As a result, the individual is dispossessed of subjectivity and forced to leave himself and move towards the other. The community paradigm, still from the perspective of Andean communities, is circular in aesthetics and seeks to center its logic on the principle of good living (bien vivir) or living well (vivir bien), sumak kawsay, or suma qamaña. Based on this principle understanding that during the period of social confinement, researchers of the rights of Nature published the Manifesto Harmonia, in which they stated that: [...] from intercultural, transdisciplinary, pluriversalist, rhizomatic, spiritual, contemplative, and aesthetic perspectives, and we will sing with the paths to Harmony and Well Living and a participatory-community policy; the values and principles of ecologic ethics and Ecocentric Law; the rights of Mother Earth, Pachamama and the Rights of Nature (AITH et al., 2020, online). This recognition leads us to the announcement of a possible theory of the Rights of Nature. That’s what we’re talking about next. 1.4 EMERGING OF A GENERAL THEORY OF THE RIGHTS OF NATURE The General Theory of the Rights of Nature is based on the principles of Harmony with Nature, Interdependence, Reciprocity, Complementarity, and Community Action. The principle of Harmony with Nature, provided for in article 312 of the Constitution of Bolivia, establishes the need for a model of a plural economy and that the industrialization and exploitation of natural resources processes must be ruled by it. The principle of reciprocity consists in the relationship between nature and human beings, including the sense of renouncing the subjunction of nature by human beings as if it were a commodity. Bolivian law no. 71 from 2010 has established the Rights of Mother Earth; article 7 foresaw the principle of interdependence and complementarity of the components of Mother Earth, being necessary its observance so that the balance for the continuation of the cycles of reproduction of the vital processes be respected. The mentioned law also establishes, in article 5, the definition of “Mother

The Paradigm of the Rights of Naturea 25 Earth” as a living and dynamic system formed by an indivisible community of all systems of life and human beings, all interrelated, interdependent, and complementary, sharing a common fate. The jurisprudence of nature may be identified internationally with the increase of environmental citizenship and a holistic cosmology that integrates ecosystems. It is a turning point in the law interpretation as a social practice and, therefore, capable of responding to and ensuring the dignity of the components that constitute the complexity of life and existence of human beings on Earth. The epistemology of this branch of law proposes its particular methodology and an autonomous legal object because it is a phenomenon identified with general and teleological principles present in the various legal systems in the contemporary world, countries, or traditional communities. Traditional peoples defended an idea of a person not associated with a positive reason but with a dialogical and constitutive relationship of the identity of each society. Therefore, the rivers contain the spirit of their ancestors, and it is a gift to gather fruit and sow the fields. The new Latin American constitutionalism has supported and allowed demands with decisions in the Inter-American Court of Human Rights – IACHR, consolidating theses that ground a theory or theories of the rights of nature. This opening is a guide for decolonial thinking and anthropocentric overcoming. As this was the first non-anthropocentric judgment of the IACHR, it was dated February 6, 2020, and recognized the protection of the rights of indigenous peoples, in the case “Indigenous Community Members of the Lhaka Honhat Association (Nossa Terra) v. Argentina.” It was the first time that the court in its jurisdiction and conventionality had set a precedent on the rights to water, food, healthy environment, and cultural identity1. Another significant precedent occurred in Australia, the Yarra River Protection Act (Wilip-gin Birrarung murron), enacted on December 1, 2017. The repository legally recognizes the Yarra as a living and indivisible entity. It recognized the traditional property right of the traditional peoples of the Yarra River. In 2016, Colombia’s constitutional review, through a decision of the Constitutional Court on the Atrato River Basin, ordered several national, regional, and municipal government agencies to carry out social and environmental programs of toxicological and epidemiological research, decontamination, definitive neutralization of mining and illegal logging along the Atrato River basin. This precedent has called the attention of the United Nations High Commissioner for Human Rights. The UN has systematized numerous decisions and precedents, as demonstrated, being scientific research in the law field responsible for proposing a qualified and technical prospection, which guarantees the strengthening of the transgenerational awareness of nature as a subject of rights. It is in this landscape that, we bet on the hypothesis of a theory of the rights of Nature that should be built based on a rationality that recognizes, first, in 1 UN. Harmony with Nature. Available at http://www.harmonywithnatureun.org/rightsOfNature/. Access on Aug. 21, 2020.