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Juris Doctor The concept of Vivir Bien (Living Well) and the constitutional recognition of indigenous epistemologies: Towards a decolonising legal project María Itatí Dolhare LLB – Juris Doctor A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2019 Faculty of Humanities and Social Sciences School of Languages and Cultures 1 Thesis abstract This thesis examines the concept of Vivir Bien as decolonising legal project in the context of the current Political Constitution of the Plurinational State of Bolivia (2009). This multidisciplinary study adopts as theoretical background decolonial theories such as Santos’ Epistemologies of the South and Latin American Decolonial Thought in combination with New Latin American Constitutionalism. With the aid of this theoretical framework, two legal methodologies of analysis (statutory analysis and case law analysis) are used to examine the data. The data is sourced from four legal documents. The first one is the Bolivian Constitution, particularly the articles that expressly incorporate or refer to the concept of Vivir Bien. The second and third ones are national legislation: Act 071- Law of the rights of Mother Earth (2010) and Act 300 - Framework Law of Mother Earth and Integral Development for Living Well (2012) which supplement the constitutional text, particularly regarding Mother Earth, integral development and Vivir Bien. The fourth source of data is Plurinational Constitutional Judgment 0300/2012 regarding the interpretation and application of the concept of Vivir Bien as a constitutional principle to the resolution of a legal dispute. In Plurinational Constitutional Judgment 0300/2012, the Bolivian Plurinational Constitutional Court, was asked to decide as to the content and scope of indigenous peoples’ constitutional right to be consulted about two legislative measures affecting the Indigenous Protected Area and National Park Isiboro Sécure - TIPNIS – its intangible character as well as the proposed construction of a highway accross the TIPNIS. My analysis seeks to ascertain whether and how the constitutional incorporation of the concept of Vivir Bien represents a legal and epistemological shift within the new Bolivian Constitution. By “legal and epistemological” shift, I mean indigenous (non-Western) epistemologies have been incorporated within a type of Western legal document – in this case a modern liberal constitution – typically informed by dominant Western epistemologies. By examining a constitutional text that purports to incorporate, with equal hierarchy, both Western legal principles and non-Western ones, and by proposing a set of “decolonising” constitutional principles, I aim to advance the body of knowledge regarding this novel type of decolonial “hybrid” constitutional model. This original constitutional text acknowledges the growing need to fundamentally change the relationship between humankind and the natural world as well as fostering intercultural consensus building in highly diverse societies. Ultimately, the Constitution seeks to construct “a just and harmonious 2 society, built on decolonisation, without discrimination or exploitation, with full social justice1 to Vivir Bien”. 1 Political Constitution of the Plurinational State of Bolivia (2009): article 9 (1). 3 Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis. 4 Publications included in this thesis No publications included. 5 Submitted manuscripts included in this thesis No manuscripts submitted for publication 6 Other publications during candidature Dolhare, M. I., & Rojas-Lizana, S. (2017). The indigenous concept of Vivir Bien in the Bolivian legal field: a decolonial proposal. The Australian Journal of Indigenous Education, 1-11. The first author developed the central idea and wrote the first draft of the paper. The second author contributed with her area of expertise in the areas of cultural studies and critical discourse analysis. Both authors collaborated into turning the paper from a legal paper into a multidisciplinary one from its second draft to the final one. The contribution of the first author is 80%, and the second author 20%. Rojas-Lizana, S., & Dolhare, M. I. (2019). ¿Qué Importa el preámbulo? Pensamiento decolonial en el preámbulo de las constituciones de Bolivia y Ecuador: una aproximación desde el análisis del discurso, Critical Discourse Studies. doi:10.1080/17405904.2019.1567363 The first author developed the central idea and wrote the first draft of the paper. The second author contributed with her area of expertise in the areas of constitutional law and legal studies. The contribution of the first author is 80%, and the second author 20%. 7 Contributions by others to the thesis Ms. Carolina Caliaba Crespo: proof-reading and editing. Ms Lisa Krynen: proof-reading and editing. 8 Statement of parts of the thesis submitted to qualify for the award of another degree No works submitted towards another degree have been included in this thesis. 9 Research Involving Human or Animal Subjects No animal or human subjects were involved in this research 10 Financial support This research was supported by a University of Queensland Research Scholarship (UQS). 11 Keywords Indigenous people’s constitutional recognition, Land law and indigenous people, Mother Earth’s law, Vivir Bien (Living Well), alternative to development, Indigenous people’s right to be consulted, Decoloniality - Coloniality and Modernity, Latin American new constitutionalism, Epistemologies of the South, indigenous epistemologies, social cohesion and consensus building in highly diverse societies. 12 Field of research Australian and New Zealand Standard Research Classifications (ANZSRC) 180108 Constitutional Law: 60% 200299 Cultural Studies not elsewhere classified: 40% Fields of Research (FoR) Classification 1801 Law and Legal Studies, 60% 2002 Cultural Studies, 40% 13 Dedications This thesis represents the fulfilment of long term personal and professional goals. The last five years have been some of the most challenging and rewarding years of my life and I have enjoyed them immensely (most of the time). This thesis embodies in many ways my eclectic experience as a “Latin-American-Australian” female lawyer and academic living in Australia. It has stretched my personal boundaries, gave the opportunity to step out of my comfort zone, helping me to bring together my professional experience as a legal practitioner and academic both in Latin-America and Australia. But the most important and valuable experience gained from this project has been without a doubt the enormous amount of support, mentoring, advice and friendship that so many people provided so generously over the last five years. To all of them this thesis is dedicated and I apology in advance if I have omitted anyone. I would like to dedicate this thesis to the following people: To my late father, Dr. Daniel Roberto Dolhare who always led by example, supported and encouraged my intellectual curiosity and professional practice. There were so many times that I wished I could have shared this with you but as I cannot, I would like to say thanks for everything you taught me and for accepting me without trying to change me. Se te extraña siempre. Gracias totales!! To my husband, because a random encounter in the lobby of a Barcelona hotel, has led to so many adventures and experiences, to you all my love, respect and admiration. A mi madre, porque cada año que pasa aprendo a apreciar más tu capacidad, tu coraje, tu inteligencia y la enorme energía y dedicación que conlleva ser esposa, madre y profesional en un país como nuestra querida Argentina. Yo sé que poco te va el inglés así que esta dedicación, desde mi afecto más profundo, va en nuestro idioma, adecuadamente llamada la lengua materna. Gracias por un mes maravilloso en el cual descanse y junte la energía suficiente para terminar esta tesis. Espero que esta nueva etapa post-PhD nos traiga muchas buenas experiencias y momentos compartidos. A mi hermano, cómplice y mejor amigo, con quien me rio y comparto, desde que tengo memoria, recuerdos, vivencias, secretos y todo lo que conforma ese “difícil” encanto de ser argentino. 14 “Gasmín” si no te lo dije antes, te lo digo ahora, tenerte cerca de nuevo es lo mejor que me pasó en mucho tiempo. ¡¡Gracias totales!! To B and B “the boys” because there is no love like “staffy” love and there is no dog like “staffy” dog. To Donald, Jeannette, Steve, Tracey, Chaise, Piper and Summer, my lovely Australian family. To my wonderful advisors, Sol, Roberto and Sally for their commitment, mentoring, support and passion for my project that made this experience so enjoyable. I could not have chosen better advisors for this thesis.
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