The indigenous concept of land in Andean constitutionalism
| Autor | Silvia Bagni |
| Páginas | 111-136 |
THE INDIGENOUS CONCEPT OF LAND
IN ANDEAN CONSTITUTIONALISM
Silvia Bagni
1. Introduction
Some legal scholars1 consider the constituent processes held in Latin
America between the end of the XX and the rst decade of the XXI century
as an autonomous constitutional cycle (“nuevo constitucionalismo latinoa-
mericano”). The main features selected by Viciano and Martínez to describe
it are: originality of content; long texts; the complexity of the multiple values
included, even if the language has been kept simple and easy to understand
for the general public; a constitutional reform process through a constituent
assembly.
As for the rst feature, most of the substantial innovations have been in-
troduced in the eld of environmental law. It must be taken into account that
the constitutional debate in these countries has taken advantage of the in-
ternational discourse on sustainable development and the actual need to de-
fend the environment, begun in the Seventies with the Stockholm conference
on the human habitat and with the 1987 Brundtland report: “Our common
future”. So, the language of Latin American constitutions, as far as the en-
vironment is concerned, refers to modern concepts, such as sustainability,
ecosystems, habitats, etc. and explicitly recognizes a healthy environment as
a fundamental right.
Consider, for instance, the case of Colombia: “Article 79. Every individu-
al has the right to enjoy a healthy environment. The law will guarantee the
community’s participation in the decisions that may affect it. It is the duty
of the State to protect the diversity and integrity of the environment, to con-
serve the areas of special ecological importance, and to foster education for
the achievement of these ends. Article 80. The State will plan the handling
and use of natural resources in order to guarantee their sustainable develop-
ment, conservation, restoration, or replacement. Additionally, it will have to
caution and control the factors of environmental deterioration, impose legal
1 Viciano Pastor, Martínez Dalmau 2012, pp. 36-44; Carducci 2013, p. 12 s.; De Sousa
Santos 2010.
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SILVIA BAGNI
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sanctions, and demand the repair of any damage caused. In the same way, it
will cooperate with other nations in the protection of the ecosystems located
in the border areas”.2
Personally, I propose going further, preferring to speak of a nuevo con-
stitucionalismo andino, whose main features are: interculturalism; popular
participation both in the constituent process and in ordinary decision-mak-
ing processes, through the enhancement of direct, participatory and deliber-
ative instruments; a new legal paradigm for the environment.3
These characteristics derive from the choice of including, within the legal
system, references to indigenous worldviews, or the ancient traditions that
constitute the intercultural background of the values enshrined in these consti-
tutions. The most innovative content of these indigenous traditions, as opposed
to the Western approach, is the type of relationship between humankind and
nature that they propose and defend: bio-centric, holistic, interdependent.
The most representative examples of this new constitutional cycle are Ec-
uador and Bolivia, which constitutionalized, in 2008 and 2009, the Kichwa
sumak kawsay and the Aymara suma qamaña. Both constituent processes
adopted an intercultural approach. This means that the indigenous cultural
paradigm was not simply mentioned as an implementation of the cultural
and identity rights of a minority group, as has happened in multicultural con-
texts,4 but was included as part of the common cultural heritage of a new
pluri-national form of State.5
These rst experiences inuenced other legal systems in Latin America
(e.g. references to Pacha Mama can be found in Nicaragua’s constitutional
revision of 2014; the rights of Nature were introduced in the State Constitu-
tion of Guerrero in 2014, and in the Mexico City Constitution in 2017), but
2 “Art. 79. Todas las personas tienen derecho a gozar de un ambiente sano. La ley
garantizará la participación de la comunidad en las decisiones que puedan afectarlo. Es
deber del Estado proteger la diversidad e integridad del ambiente, conservar las áreas de
especial importancia ecológica y fomentar la educación para el logro de estos nes.
Art. 80. El Estado planicará el manejo y aprovechamiento de los recursos natura-
les, para garantizar su desarrollo sostenible, su conservación, restauración o sustitución.
Además, deberá prevenir y controlar los factores de deterioro ambiental, imponer las san-
ciones legales y exigir la reparación de los daños causados”.
3 Bagni 2013, p. 19.
4 Even if the multicultural approach is also included in the Constitutions we are com-
menting on, with chapters dedicated to the rights of indigenous peoples as ethnic groups.
5 Pegoraro 2017, p. 35-36 and p. 66-67; Pavani, Estupiñan Achury 2017, pp. 106-107.
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