By: Guillermo Ferrer Hernáez, Junior Research Associate, PILPG-NL
Human activity is altering the planet's natural ecosystems, which could lead to their disappearance and that of the living beings that inhabit them. Efforts to avoid this disastrous situation are leading to the implementation of novel global actions for the defense of ecosystems, such as the recognition of the rights of natural elements and ecosystems.
On April 5, 2022, the Spanish Congress of Deputies approved the processing of a law promoted by the Iniciativa Legislativa Popular (ILP) Mar Menor with the support of a petition with 640,000 signatures collected throughout the state, granting legal personality to Mar Menor, a saltwater lagoon. If the plenary of the Spanish Congress of Deputies approves this bill in the following months, it would be the first legal recognition of the personhood of an ecosystem in Europe. This blog will analyze the case of Mar Menor as a possible first recognition of a natural entity as a legal person in Europe and will assess the possible impact of this recognition.
The state of the Mar Menor
The Mar Menor is the largest saltwater lagoon in Europe, located on the coast of the Region of Murcia, Spain. This natural treasure is seriously threatened by an excess of nutrients in its waters, a process known as eutrophication. Fertilized water from the surrounding crops and desalination plants, loaded with nitrates, reaches the Mar Menor, where it feeds and nourishes phytoplankton. When this type of algae in the Mar Menor proliferates, it blocks the light to the plants that grow on the seabed, preventing photosynthesis and causing them to die. In turn, the death of these plants means a lack of oxygen in the waters of this sea affecting the fauna that inhabits the Mar Menor, causing ecological disasters like the one in October 2019 in which tons of dead fish were removed.
This ecological crisis highlights the current legal protection system's failure, which has not prevented the continued discharge of polluted waters. For this reason, Spanish citizens have decided to mobilize to protect and preserve this natural ecosystem.
The bill recognizes the legal entity of this ecosystem
Faced with the inaction of the Spanish authorities, a group of lawyers, scientists, and activists, with the support of the Legal Clinic of the University of Murcia, started a movement under the name of ILP Mar Menor to protect the lagoon by drafting a bill. The association behind the bill has highlighted the need to preserve the lagoon's ecological value and guarantee intergenerational solidarity in line with international conventions such as the Paris Agreement.
This new bill includes the possibility of granting legal personality to the Mar Menor lagoon ecosystem, which would mean that it would be considered a subject of law. This new juridical status would grant the lagoon with subjective rights, limiting its private use and enabling any citizen to enforce these rights in court. In addition, the Mar Menor would thus become the only natural entity in Europe that functions as a subject of law. This could be a precedent for the recognition of other endangered natural entities’ rights within Spain and Europe. Nevertheless, authorities would still need to recognize the legal personality of these endangered natural entities individually or collectively in their national systems. In the Spanish case, the Spanish Parliament would still need to recognize the possibility of extending the legal personality to other endangered entities in national law.
According to the bill, the legal representation and guardianship of the lagoon would be exercised through an authority that would include representatives of public administrations; members of universities, research, and scientific centers; and residents of local municipalities. Public administrations have an obligation to conserve, preserve, and restore this ecosystem. If the administration does not fulfill this duty, this new legal authority could demand criminal and administrative action before Spanish tribunals. In addition, any citizen would be able to demand reparations from those responsible for the damages produced in the lagoon before the Spanish courts. In this regard, this blog will take the example of the Latin American states to see how natural ecosystems can be protected through citizen initiatives.
Examples from Latin American states
The Constitution of the Republic of Ecuador, which came into force in October 2008, revolutionized the concept of Nature as a subject of law in the Latin American region. The constitutional recognition of the legal personality of Nature, also known as Pachamama, includes the possibility for any person, community, or people to demand from the public authority the fulfillment of the rights of Nature.
This same idea has inspired many Latin American states, such as Chile, which have recently included the same provisions in their constitutions. These initiatives go further than other attempts to protect the rights of Nature, such as the Escazú Agreement, and set an example for other states around the world, such as Spain, to follow.
Latin American NGOs and citizens have made use of the recognition of the subjectivity of these ecosystems and their consequent rights to sue the authorities for not preserving the wellbeing of these ecosystems. However, in many cases, such as in Ecuador, the recognition of the Rights of Nature has not been able to stop the abusive exploitation of these ecosystems with the value of subjects of rights. The recognition of the subjectivity of these ecosystems establishes a starting point for their protection, but without effective enforcement mechanisms, the ultimate objective cannot be achieved.
Conclusion
Time is running against the sustainability and welfare of the Mar Menor. If the Spanish Congress approves the bill presented by ILP, Spain will build a new path toward protecting the rights of Nature in Europe, following the example of other Latin American states. This is the first step toward protecting these ecosystems.