24 February 2023

Rights of Nature Reach Europe

The Mar Menor Case in Spain in the Light of Latin American Precedents

On September 30, 2022, the Spanish Senate approved the “Mar Menor Act” (Law 19/2022) which granted legal personality to the Mar Menor lagoon and its basin. Being the first legal text in Europe to recognize a natural entity as a subject of rights, it is one more piece in the mosaic of a global movement towards ecological justice, which tries to find strong legal answers in times of global ecological crisis.

However, the Act is not met with approval everywhere. It is a thorn in the side of Spanish right-wing populists. A few days ago, on the 7th of February 2023, the Spanish Constitutional Court allowed a constitutional challenge against the Act brought forward by members of the Vox parliamentary group. In addition to alleged violations of the right to private property and freedom of occupation, among others, Vox challenges the Act’s legal basis because of disproportionate restrictions on agricultural activities in the region. They consider the concept of rights of nature as constitutionally unclear. Any decision or sanction carried out on the basis of the Act would be legally uncertain and therefore void.

This text does not pretend to evaluate the legal arguments of the plaintiffs and compliance of the Act with the Spanish Constitution. Rather, the author’s aim is to analyse the foundation of the Mar Menor Act in light of other decisions that have granted legal subjectivity to natural entities. In fact, the Spanish landmark decision follows the precedents of countries such as Colombia, Ecuador, New Zealand, India and the United States. In this context, it is worth asking whether the legal and socio-cultural bases of the concept of the rights of nature, as developed in the aforementioned cases, especially in those stemming from Latin America, are also sustainable in Europe and for the Mar Menor case.

Legal personality for the Mar Menor

For several years, the Mar Menor lagoon, one of the most unique ecosystems in Spain, has been suffering from a serious process of environmental degradation due to the imbalance caused in its biodiversity. As described before in this blog, the largest saltwater lagoon in Europe, once teeming with life, has been subjected to unrestrained agricultural and tourist exploitation, which has caused the death of tons of fish and algae.

After many unsuccessful legal attempts to achieve a better protection of the lagoon, recurring to conventional instruments of Spanish environmental law, in October 2022 a so called Popular Legislative Initiative (ILP) succeeded in triggering the legislative process by collecting 600,000 signatures. Thus, the Law 19/2022 recognizes the lagoon’s own right “to exist as an ecosystem and to evolve naturally” as well as its right to protection, conservation, maintenance and restoration. As natural entities cannot speak up for themselves, it provides for the creation of three new bodies: a Committee of Representatives, a Monitoring Commission and a Scientific Committee, who share the “Guardianship” for the Mar Menor.

In many aspects, the provisions of the Act are similar to cases in Latin America, most of which have been decided by courts that have recognized rights of nature to the natural entity at stake. For example, the Colombian Constitutional Court (Ruling T-622/16) granted the Atrato River, a highly polluted ecosystem located in one of the poorest regions in Colombia, its own right of regeneration, care, conservation and protection. In such scope, it designated the Colombian Ministry of Environment as the legal representative of the river, after which Colombia created the Commission of Guardians of the Atrato River.

Constitutional basis of the Mar Menor decision

The Mar Menor Act, being a law issued by a parliament, undoubtedly has a more direct democratic legitimacy than the aforementioned Latin American rulings. However, in two aspects, in my opinion essential, it has a more fragile argumentative basis:

One aspect refers to the legal anchoring of the Act in the Spanish Constitution. Unlike, for example, the Ecuadorian Constitution, which in its articles 10 and 71 explicitly recognizes the rights inherent to “Pacha Mama” (mother nature) and also specifies who can represent nature, the Spanish Constitution – as no other European Constitution – so far does not recognize the legal subjectivity of nature. Its article 45, maintaining an anthropocentric vision of environmental law, provides that “everyone has the right to enjoy an environment suitable for personal development, as well as the duty to preserve it”. It places the human being at the center of environmental protection and not nature itself. Therefore, while the rulings of the Constitutional Court of Ecuador, which in recent years have recognized rights to certain endangered natural entities, such as the “Los Cedros” rainforest or mangroves judgment, have a clear constitutional basis, the constitutional entrenchment of the Mar Menor Act is at least not so evident.

Now, one could argue that in Colombia the 1991 Constitution, until today considered as progressive, does not recognize the concept of legal subjectivity of natural entities either, at least not directly. It only provides for peoples’ rights to life, health, water, food, territory, culture and a healthy environment. However, the Constitutional Court of Colombia already in 1992 developed the concept of an “ecological constitution” (Sentence T-411/92), elaborating further on the fundamental right to a healthy environment. For its part, in 2017, in the Atrato River ruling, the Court goes one step further and explains thoroughly why the legal concept of “biocultural rights”, which it creates in this judgment, derives directly from the Constitution and why it entails subjectivity of rights of non-human natural entities.

On the contrary, although the Preamble of Law 19/2022 mentions article 45 of the Spanish Constitution, the argumentation in favor of an ecocentric interpretation of the Spanish legal system is anything but in-depth. The legislator quotes a 1990 Spanish Supreme Court ruling (3851/1990): “The differentiation between evils affecting the health of the people […] and the environment is largely due to the fact that human beings do not see themselves as part of nature but as an external force designed to dominate it […]. It should be remembered that nature does not allow unlimited use […]”. The legislator allows this quotation and the reference to the opinion of some legal scholars – without citing them – to suffice in order to extend “the category of legal subjects to nature”. It is not clear on which arguments the extension of the category of legal subjects is based, especially since the wording of article 45 of the Spanish Constitution provides for an anthropocentric interpretation of the Spanish legal system. Thus, the derivation of nature’s own rights from an ecocentric interpretation of the Spanish Constitution – unlike in the Colombian case – is not readily convincing here.

Close relationship of rights of nature with ethnic cosmovisions

This brings us to the second aspect in which the Spanish case and most Latin American cases – as well as the Whanganui River case in New Zealand and some U.S. and Canadian cases – differ: The affected territories in the mentioned non-Spanish cases are inhabited by ancestral or indigenous communities that traditionally live in close connection with nature. Therefore, one of the argumentative pillars of the respective decisions to recognize their own rights to natural entities is the intrinsic link between the cosmovision and rights of these ethnic communities – in many of these countries constitutionally protected and recognized – and nature.

In the Colombian Atrato River case, for example, in order to give effective application to the newly created “biocultural rights”, the Colombian Constitutional Court considered that the river should be legally categorized as the Afro-Colombian and indigenous communities inhabiting the Atrato basin conceive it: as a subject of rights and not as an object at the service of human beings. This second aspect, together with the fact that the legal bases of decisions such as that of the Atrato River, the Cedros rainforest or the Whanganui River are inserted in a cultural environment and in the constitutionally recognized cosmovisions of the indigenous or Afro-descendant peoples, who have lived since time immemorial in harmony with nature, is missing in the case of the Mar Menor.

Now, I do not mean to say that the concept of nature as a subject of rights can only be applied to regions where ancestral or indigenous communities live. This would mean a certain “romanticization” of the ethnic worldview and would basically exclude the recognition of subjective rights to any natural entity in Europe. However, despite the fact that this argumentative approach theoretically also had potential for the Mar Menor case, the Spanish legislator fell short in developing the intrinsic relationship between the rights and culture of the people of Murcia, and those of the Mar Menor itself as an “entity” to which legal title was recognized.

In line with the Latin American judgments, the Spanish legislator emphasizes in the Preamble of the Act that “the great challenge facing environmental law today is to achieve the effective protection of nature and of the cultures and forms of human life that are closely associated with it, as is the case of the municipalities bordering the Mar Menor lagoon”. Thus, the text refers to the intrinsic connection between nature and the culture of the people who live in the Mar Menor region. However, the legislator does not explain why this culture or the legal customs and beliefs of these people necessarily suggest the legal personality of the Mar itself. Here, too, the Spanish case falls one argumentative step short of the Latin American rulings cited.

Effectiveness and “ecopopulism”

There is no doubt that the Mar Menor ecosystem must be protected in a more effective and sustainable way, without further hesitation. From this point of view, the citizens’ initiative in the case at hand, which has drawn worldwide media attention to the “fate” of the lagoon, is in any case to be applauded.

However, the question remains as to whether the creation of new legal fictions in favor of some natural entities really increases their degree of environmental protection or – on the contrary – is more a case of legal utopia or fetishism. This doubt arises in each case of recognition of the rights of nature. The granting of legal personality to the Spanish lagoon and its hydrographic basin does not contain, by itself, any guarantee of the effectiveness of environmental law.

Basically, as for now, apart from the symbolic significance of the Act in the sense of a further ecological “wake up call”, it only means a transfer of competences from traditional administrative authorities to the bodies defined in Law 19/2022, whose exact tasks are, by the way, not so obvious. Therefore, only the future will prove whether the granting of legal personality to the Mar Menor really equates to more effective environmental protection.

In any case, to counter reproaches of “ecopopulism”, as already pointed out in this blog, the Spanish Parliament would have done well to look more closely into the constitutional basis of the Law. It is not surprising that the weak constitutional anchorage has already attracted the attention of the Spanish ultra-right, which is now putting its finger on the sore spot with the above mentioned appeal of unconstitutionality. It will be of no use to anyone – and much less to the lagoon – if Spanish Constitutional Court would cement the constitutional doubts regarding this legal text, in a verdict of unconstitutionality.

Conclusion

Without any doubt, the increasingly urgent calls for more environmental and climate protection require new legal avenues. Well-argued legal precedents can provide creative and progressive solutions to a complex problem. However, in order not to give wings to populist movements, for whom every argumentative weakness is easy prey, hasty decisions must be avoided. Each new concept of “ecological justice”, even if it has the best intentions, must be constitutionally sound, fit into the specific legal traditions and cultures of each country or region, and must not ignore its effect.

 

This text has already been published here in Spanish in a shorter and slightly different form. The author did not write this text in her capacity as a desk officer of the German Federal Ministry of Justice.


SUGGESTED CITATION  Fuchs, Marie-Christine: Rights of Nature Reach Europe: The Mar Menor Case in Spain in the Light of Latin American Precedents, VerfBlog, 2023/2/24, https://verfassungsblog.de/rights-of-nature-reach-europe/, DOI: 10.17176/20230224-185211-0.

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