28 Februar 2023

Towards European Rights of Nature

How the Mar Menor Case Lays the Basis for a New Legal Approach in Europe

On 24 February, Marie-Christine Fuchs on this blog discussed the 2022 Spanish Mar Menor Act – the first rights of nature case in Europe – in light of Latin American precedents and the criticism the Act is facing from right-wing populists in Spain. Whether the Act remains the first law in Europe granting rights to a non-human natural entity will now be decided by the Spanish Constitutional Court. In her analysis of the socio-legal foundations of the Mar Menor Act, Fuchs argues that it had a “more fragile argumentative basis” than precedents in Latin America. The Spanish legislator should have put the Act on a more solid basis so that it could withstand objections. In contrast, this article argues that the Spanish legislator, based on the popular legislative initiative, succeeded in placing the Mar Menor Act on its own argumentative footing, thus opening the door for a genuinely Western liberal conception and implementation of rights of nature in Europe.

The Current State of Environmental Constitutionalism

Fuchs’s first point of criticism is that the Mar Menor Act with its new non-anthropocentric approach was not backed by the anthropocentric Spanish Constitution. It is true that European constitutions have not yet detached from an anthropocentric stance with regard to environmental protection. This does not only apply to Article 45 of the Spanish Constitution but also to Article 23 no. 4 of the Belgian Constitution, to the French Charter of the Environment, which was added to the French Constitution in 2005, to Article 74 no. 1 of the Polish Constitution and to Article 2 of Chapter 1 of Sweden’s Instrument of Government, to name but a few. All these provisions rather place the “human being at the center of environmental protection and not nature itself”, to put it in Fuchs’s words.

Yet, it does not follow from the traditional anthropocentrism of European constitutions that the entire legal system is permeated with anthropocentrism. Anthropocentric constitutional provisions have not prevented legislators from enacting non-anthropocentric laws. On the contrary, non-anthropocentrism has become an established part of many Western-liberal legal systems. For example, § 1 of the German Federal Nature Conservation Act protects nature and landscape not only for being the basis of life of current and future generations, but also “[b]y virtue of their intrinsic value”. § 3 of Norway’s Animal Welfare Act states that “Animals have an intrinsic value which is irrespective of the usable value they may have for man”. Article 120 para. 2 of the Swiss Constitution speaks of the “dignity of living beings as well as the safety of human beings, animals and the environment”. With respect to Spain, since a comprehensive legal reform by Law 17/2021, of December 15, on the legal regime of animals, which amended the Civil Code, the Mortgage Law and the Civil Procedure Law, Spanish law recognizes animals as living beings endowed with sentience and animal welfare as an independent interest.

As these examples show, the anthropocentric approach of European constitutions does not appear to be an obstacle to legislatures to enact non-anthropocentric laws. In light of this, the Mar Menor case does not seem to be as revolutionary as it may look at first sight. It is merely the extension of an existing non-anthropocentric legal approach mainly on the sub-constitutional level, which has so far not been considered unconstitutional either. This being said, constitutional amendments incorporating legal non-anthropocentrism are still desirable to provide clear and solid socio-legal foundations for rights of nature and the further ecological transformation. As for the German constitution, Jens Kersten has recently made numerous concrete and convincing proposals for an “Ecological Grundgesetz”.

Diverse Rights of Nature Approaches Around the Globe

Another point of Fuchs’s criticism is that the Mar Menor Act did not create a sufficient connection to the Mar Menor’s socio-cultural context and therefore lacked an argumentative basis for the recognition of the lagoon as a legal subject. In contrast to the Mar Menor case, non-Spanish rights of nature cases had a “close relationship (…) with ethnic cosmovisions”. As compared to cases, e.g., in New Zealand or Colombia, this “argumentative pillar” was “missing in the case of the Mar Menor”.

It is true that in many cases indigenous cosmovisions have played a certain, sometimes major, role for recognizing rights of nature. However, this observation should not distract from the fact that rights of nature have been recognized in different places in a wide variety of ways and against diverse political, cultural, and legal backgrounds. For example, while Hinduism played a decisive role for the judicial recognition of rights of nature in India, no reference to indigenous cosmovisions can be found in the context of the Ugandan National Environment Act of 2019 that recognizes rights of nature in its Article 4. And even in the Latin American cases, where political ambitions of newly elected leftist governments created the space for legal reforms in the first place, indigenous cosmovisions were only one aspect among many leading to the recognition of rights of nature. Especially where rights of nature have not been implemented locally but, as in Ecuador, Bolivia or Uganda, at the constitutional or legislative level and therefore apply to the whole state and not only in territories of ethnic or indigenous minorities, rights of nature cannot be limited to certain ethnic or indigenous backgrounds.

If there is a common thread that connects all rights of nature cases worldwide, it is the ambition to use them as an instrument to make environmental protection more effective and to transform the human-nature relationship sustainably towards a healthy coexistence. This argument can be found in every rights of nature case worldwide, perhaps with the exception of New Zealand. It is precisely this thread that the Mar Menor case ties into. And it is precisely the aspect of environmental protection that creates a link between existing rights of nature in the Global South and their future implementation in the Global North, thus enabling a fruitful global discourse on the rights of nature.

The Mar Menor Act as a Model Case?

Fuchs acknowledges that in principle the concept of nature as a subject of rights can also be applied to regions where no ancestral or indigenous communities live. However, in her view, 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”. In my view, this criticism is based on a comparison that is difficult to draw. Without being an expert on the Murcia region, I think the Act is well embedded in the regional context.

To begin with, “regional context” in the Mar Menor case has a different meaning and relevance than “regional context” in rights of nature cases in Latin America. Due to the different social structure in Spain (and Europe), the role and status of the inhabitants of the Murcia region in the relatively homogenous Spanish society is hardly comparable to that of ethnic or indigenous minorities in Latin America living on a specific territory. The question therefore already arises whether it makes sense to speak of “the rights and culture of the people of Murcia”, as one does, e.g., in the case of the “rights and culture” of a certain indigenous community in the Amazon region or at the Atrato or Whanganui rivers. Thus, when the Spanish legislator speaks of 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”, this does not aim at establishing, as Fuchs calls it, a special “intrinsic connection between nature and the culture of the people who live in the Mar Menor region”, which would have to be particularly justified. Rather, the Mar Menor case is also conceivable in any other region of Spain (and Europe). This is also shown by the last half-sentence, “as is the case of the municipalities bordering the Mar Menor lagoon”, which highlights the Mar Menor only as an example case.

At several points, the Act succeeds in laying its very own foundations for a rather Western liberal conception of rights of nature, in which the main rationale is the effectivization of environmental protection. According to the Act’s preamble, the reasons why it was adopted were the “serious socio-environmental, ecological and humanitarian crisis” occurring at the Mar Menor as well as the “inadequacy of the current legal system of protection, despite the important regulatory figures and instruments that have been introduced over the last twenty-five years”. Against this background, it states that “the time has come to make a qualitative leap and adopt a new legal-political model, in line with the international legal vanguard and the global movement for the recognition of the rights of nature”.

What Fuchs does not mention is that the preamble speaks of the crisis that both “the Mar Menor and the inhabitants of its coastal municipalities are experiencing” and stresses the Mar Menor’s role as an “element of cultural identification of the Region of Murcia” that “awakens in all Murcians a strong emotional attachment”, thus putting it explicitly into the regional context. It also states that granting rights to the Mar Menor “strengthens and expands the rights of the people living in the lagoon area threatened by ecological degradation”. Moreover, representatives of the local population are part of the bodies representing the Mar Menor. Not least, the very fact that the Act was born from a citizens’ legislative initiative proves the obvious link between the Mar Menor as a legal subject and the regional population.

The Act therefore explicitly deals and tries to come to terms with the failure of Western liberal law to address the environmental crises of the Anthropocene with their adverse effects for human and nature over the past decades. In doing so, the Act chooses an explicitly Western liberal approach when it bases the extension of legal personhood to nature “on the evidence provided by the sciences of life and the earth system”, thus opting for a science-based biocentric and ecocentric approach instead of referring to holism or other mainly religious-ideological approaches. This pragmatic basis argues against classifying the Act as “ecopopulism” or “legal utopia or fetishism”. The fact that the Act does not simply copy from existing rights of nature cases in the sense of a legal transplant shows how adaptable the concept already is in light of the ecological crises, even in classical European legal thought. The Mar Menor case can therefore serve as a model for further implementations of rights of nature in the Global North.

The Dawn of a European Approach to Rights of Nature

The central question of Fuchs’s article is “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”. This question does not get to the heart of the idea of introducing rights of nature in Europe. Due to the socio-cultural and legal differences, the Mar Menor Act cannot be a simple legal transplant but can and must form its own foundations. In other words, Fuchs’s criticism is built on a comparison with precedents from other legal cultures, which at the same time makes it difficult to acknowledge the unique and new approach of the Mar Menor Act. Because it manages to establish its own argumentative basis, different from previous cases, the Act is a conceptual success. It creates the beginning of a Western liberal conception of rights of nature, as, in Fuchs’s words, “one more piece in the mosaic of a global movement towards ecological justice”.

After all, Fuchs is right when she stresses that “each new concept of ‘ecological justice’ (…) must be constitutionally sound, fit into the specific legal traditions and cultures of each country or region, and must not ignore its effect”. It is the value of the Mar Menor case that it directly or indirectly raises and addresses these issues. By daring an experiment, it initiates new social and legal negotiation processes, to which the pending ruling by the Spanish Constitutional Court may also contribute. It goes without saying that the ideas of the Act need to be further shaped and negotiated. It is true that the Act contains uncertainties, especially regarding the future enforcement of the rights of the Mar Menor by the newly created representative bodies. Thus, as Fuchs rightly observes, “only the future will prove whether the granting of legal personality to the Mar Menor really equates to more effective environmental protection”. This is less surprising, however, when one considers that this is the very first European rights of nature case which did not have a role model in European legal practice. In this sense, the Act is a pioneer. Inspired by rights of nature cases in the Global South, the Mar Menor case is not the end but the beginning of a new legal development. It sets a precedent for a potential ecological transformation of Western liberal legal systems through rights of nature in Europe.

SUGGESTED CITATION  Mührel, Jasper: Towards European Rights of Nature: How the Mar Menor Case Lays the Basis for a New Legal Approach in Europe, VerfBlog, 2023/2/28, https://verfassungsblog.de/towards-european-rights-of-nature/, DOI: 10.17176/20230228-185321-0.

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