Photographie de la lagune de Mar Menor

Spanish Act 19/2022, of 30 September, for the recognition of the Mar Menor lagoon and its basin as a legal entity, was passed on 3 October last and came into force the very next day. This Act has aroused great expectations within Spain, Europe and further afield. Here I offer some brief comments on this important legislative innovation that puts nature at the centre of the public and legal debate.

Act 19/2022 as an expression of the international movement for the recognition of the rights of nature

Fifty years have passed since the first world summit hosted by the United Nations in Stockholm in 1972, which served to raise awareness of the gravity of the global environmental crisis. Since then, several proposals have been put forward to establish an ecocentric approach to legislation and to overcome the limitations of the law’s traditional anthropocentric character.

A first option is to consider the environment as the object of a new human right encompassing both rights and duties. This human right to the environment has been recognized by several regional international treaties, including the Aarhus Convention of 1998 (art. 1) and the Escazú Convention of 2018 (art. 1), and by more than 80% of the world’s states (see David R. Boyd, United Nations Special Rapporteur on human rights and the environment). Recently, this human right has been recognized at global level by the UN General Assembly Resolution A/RES/76/300 of 28 July, 2022, entitled The human right to a clean, healthy and sustainable environment.

Another view, which has been acquiring growing support in recent times, places the ecocentric emphasis on the ownership of rights, and therefore considers nature (all of it, or some of its elements) as the subject of rights. This vision is well rooted in indigenous cultures and it is not surprising that it has met with success, for instance, in the Constitution of Ecuador (2008), in two Acts in Bolivia (2010 and 2012), and Colombian Constitutional Court T-622/2016 regarding the Atrato River. It has also been upheld in other states around the world at constitutional and legal levels (including local regulations) and also in case law. A classic historical reference is Christopher D. Stone (1972), "Should trees have standing? Toward legal rights for natural objects", Southern California Law Review, 45, pp. 450-501, in relation to the US Supreme Court case Sierra Club v. Morton, 405 U.S. 727 (1972) with a dissenting opinion by Judge William O. Douglas in favour of recognizing the right of a forest to be protected.

At international level, since 2009, the UN General Assembly has adopted nine resolutions under the Programme Harmony with Nature concerning this new non-anthropocentric relationship with the natural world, and the Global Alliance for the Rights of Nature has been created. These two international fora identify various states that have recognized nature rights. In favour of this major paradigm shift, see, among others, David R. Boyd, The Rights of Nature. A Legal Revolution that Could Save the World, ECW Press, First Edition, Montreal, 2017.

More recently, the discussion of the rights of nature has begun in the EU with the publication of several studies and reports by the European Economic and Social Committee (Towards an EU Charter of the Fundamental Rights of Nature, 2020), and the European Parliament (Jan Darpö, Can Nature Get It Right? A Study on Rights of Nature in the European Context, 2021). And European Parliament Mission Report in relation to the environmental deterioration of Mar Menor of 25/10/2022 has also welcomed a citizens’ legislative initiative  (CLI) to grant legal personality to this lagoon in south-east Spain.

Thus, we see the new Spanish Act is in keeping with this international context of recognizing nature as a subject of rights. It is the first case of its kind in Europe.

Rationale and structure of Act 19/2022

The Preamble of the Act specifies the following two reasons for the adoption of the Act: a) "the serious socio-environmental, ecological and humanitarian crisis experienced by the Mar Menor and the inhabitants of its coastal municipalities" and b) "the inadequacy of the current legal system of protection, despite the important regulatory concepts and instruments that have been developed over the last twenty-five years". There is a broad consensus on the severity of the environmental deterioration of the Mar Menor, which is one of the largest marine lagoon ecosystems in the western Mediterranean. It is also widely agreed that the prior legislation has not achieved the desired results, due either to the inadequacy of its content or to a failure to implement it.

However, the approach adopted by Act 19/2022 is to provide legal personality to the Mar Menor and its basin and to recognize it as a subject of rights. The rationale underlying the Act is the need to take a step forward and adopt a new legal-political model in tune with the international legal vanguard and the global movement for the recognition of the rights of nature. Furthermore, it is based on the ecocentric interpretation that the case law has made of the human right to the environment (art. 45 of the Spanish Constitution), although in fact it goes further by considering nature as a subject of rights and not merely as an object of protection. But this approach has also come in for some criticism from opponents who do not see the need to recognize the legal personality of the Mar Menor, but rather insist on improving and applying the current legislation.

The structure of the Act is quite straightforward. The Preamble is followed by seven articles: the declaration of the legal personality of the Mar Menor and its status as a subject of rights (art. 1); the rights of the Mar Menor (art. 2); its governance (art. 3); the legal consequences of the infringement of its rights (art. 4 and 5); judicial protection (art. 6) and obligations of the public authorities (art. 7). The Act concludes with a derogation clause and three final provisions.

The grassroots origin of Act 19/2022 and its approval in parliament with an ample majority

The Act derives from a proposal promoted by a CLI that eventually collected 639,286 signatures, much during the Covid pandemic. The debate in Parliament was conducted as an emergency measure, due to the serious environmental problems facing the Mar Menor. In both chambers of the parliament the motion was passed with overwhelming majorities, with more than 80% of votes in favour.

In the parliamentary debate there were numerous references to the importance of establishing the Mar Menor as a legal entity in order to strengthen its protection, and also to the importance of the effective enforcement of the Act and other legislation. It was stressed that the Act was fully in accordance with the Constitution (art. 45) and the Spanish legal system, and that it represented a historical milestone in Europe. The amendments introduced are quite technical, and broadly speaking respected the requirements of the CLI. The only parliamentary group that voted against the Act was the extreme right-wing party Vox, which described it as "legal and administrative nonsense and, of course, an unacceptable attack on freedom, private property and economic activity", and announced that it will appeal to the Constitutional Court.

The key aspects of Act 19/2022

Despite the improvements in the legislative process, there are still some imprecise or confusing precepts that need to be clarified by new regulations or case law, without detriment to possible future specific amendments.  The main issues raised can be classified into four groups: 1) the constitutional framework; 2) the matter of whether, under Spanish law, nature can have legal personality and be the subject of rights; 3) its content, and 4) its effectiveness.

1. The constitutional framework

The constitutional grounding lies in the ecocentric approach taken by the case law regarding art. 45 of Spanish Constitution, both in terms of the status of nature as a subject of rights since the use of the term "all" necessarily includes nature, and in terms of the object of duty incumbent on the public authorities to protect the environment. The consideration of the Mar Menor as a natural public domain (art. 132.2 Spanish Constitution) does not exclude other environmental protection mechanisms if this classification of public domain is respected.

A positive aspect of this Act is that it is based on the sharing of competences regarding environmental protection (art. 149.1.23 Spanish Constitution), which enables the State to approve the basic legislation and the Autonomous Communities to approve the development of legislation and additional protection regulations. Despite the civil and procedural aspects, environmental matters prevail, based on the overriding importance of environmental protection.

2. Admissibility under Spanish law of the notion that nature may have legal personality and be subject to rights.

The recognition of the legal personality of the Mar Menor and its status as a subject of rights (art. 1) is perfectly plausible under Spanish law. Legal personality is a legal construct that the law has admitted for cases other than natural persons. This means that the Mar Menor has legal capacity (i.e., to be a holder of rights) and thus to be a party to a process. The list of cases of legal persons included in art. 35 of Civil Code of 1889 as having legal capacity is thus extended, since it is not a closed list and must be interpreted (as laid down in art. 3.1 Civil Code) in accordance with the social reality of the time. And art. 6.1.3 of Civil Procedure Act recognizes the capacity to be a party for legal persons.

It would have been helpful to clarify the private or public nature of this new legal entity. However, it seems to us that it is an atypical, independent public legal person, in view of the reference to the "autonomous governance of the lagoon" in the Preamble and to the three bodies that comprise it mentioned in art. 3. This difficulty might have been overcome if the Mar Menor had been recognized as a subject of rights, without the need to establish it as a legal entity. This is possible under art. 6.1.5 of Civil Procedure Act that recognizes the capacity to be a party for "entities without legal personality to which the law recognizes the capacity to be a party". However, these two paths constitute a major innovation that would demand (as is also the case the human right to the environment) adjustments of the material and procedural legal system, which was constructed more for the protection of individual legal situations than for collective ones such as those involving the environment.

We think that the recognition of the legal personality of the Mar Menor will inevitably have an effect on other environmental settings which are also in crisis. Sooner or later, it would not be surprising if this led to a recognition of the legal personality of nature in general.

3. Content

We welcome the fact that the scope of the Mar Menor basin has been defined (art. 1) and that the rights to protection, conservation, maintenance, restoration (art. 2) and the corresponding obligations of the public administrations (art. 7) have been specified by Parliament. A minimum definition of the right to exist as an ecosystem and to evolve naturally would also have been desirable. However, the statement that the governments and the local residents are responsible for the fulfilment of these rights introduces an element of imprecision. Obviously, the public administrations (art. 7) and any other responsible parties (e.g., those involved in polluting activities) must be included, as provided for in art. 45.3 of Spanish Constitution and in the existing environmental legislation which is not repealed as it does not contradict Act 19/2022, but in fact complements it by extending the parties responsible. These rights of the Mar Menor could reinforce the limitations on other rights and, particularly, the clause concerning the social function of the property in art. 33.2 of Spanish Constitution.

The representation and governance of the Mar Menor is established through three bodies: the Committee of Representatives, the Monitoring Commission and the Scientific Committee, whose composition and functions are specified in art. 3. Citizen participation thus predominates; the sole exception is the Scientific Committee, which is made up of five independent experts. Although it is said that the representation of the Mar Menor is specified in these three bodies responsible for the lagoon’s Tutorship, it is not actually assigned to any of them, and in fact the Tutorship of the Mar Menor is a mere denomination without any specification. Furthermore, as we shall see, art. 6 attributes representation to any natural or legal person. In any case, the functions of these bodies respect those assigned by the legislation to the different public administrations for the protection of the Mar Menor because these bodies can only make proposals for action (in the case of the Committee of Representatives), disseminate the Act and information regarding its compliance (in the case of the Monitoring Commission) and provide advice to these first two bodies and identifying indicators on the ecological state of the ecosystem, risks, and restoration measures (in the case of the Scientific Committee). The only exception is the attribution of administrative powers of control and surveillance to the Committee of Representatives and the Monitoring Commission which, like the other functions, must be coordinated with those attributed to the public administrations by the legislation.

The legal consequences of violations of the rights of the Mar Menor and other issues are foreseen in the Act. First, art. 4 refers to the criminal, civil, environmental and administrative responsibilities established by law. We are surprised by the reference to the environmental responsibilities, unless this means those provided for by the environmental liability legislation, which are of an administrative nature. And secondly, art. 5 states that any act or action by the public administrations that violates the Act will be considered invalid and will be reviewed through administrative or judicial proceedings. This should be understood as referring to any administrative action that is either formalized (e.g., administrative rules or acts) or not formalized (e.g., inactivity and material action). It would have been desirable to specify whether the invalidity refers to serious violations (art. 47 of Act 39/2015, of 1 October, of the Common Administrative Procedure of Public Administrations) or any other violation (art. 48. of Act 39/2015).

There are important novelties in the field of actions by citizens in administrative and judicial proceedings (art. 6). Despite the occasionally incorrect use of certain legal terms the following points are worth highlighting. First, the party is the Mar Menor, since it has been recognized as a legal entity and as a subject of rights. Second, procedural capacity (i.e., the capacity to carry out procedural acts) is assigned to any natural or legal person. Two points should be stressed here: a) a legal person cannot have procedural capacity, but their representatives can; and b) this is not an actio popularis because these persons, as the Act correctly states, act on behalf of the Mar Menor ecosystem. Third, the standing will be examined regarding the relationship of the party (the Mar Menor) – not its representatives – with the object of the process. Fourth, certain measures are established for overcoming the economic barriers to access to justice, such as the recovery of costs when a claim has been upheld, exemption from legal costs, and bail bonds for precautionary measures. These are essential measures to effectively guarantee access to justice. However, other changes in Spanish procedural law are necessary, such as remedies that are mainly foreseen for individual legal rights or interests, or the possible existence of different proceedings with the same object.

As is the case with other regulations, there is a general derogation clause, which does not always conform to the principle of legal certainty, but which allows the existing legislation for the protection of the Mar Menor to remain in force as long as it is not contrary to the Act. And, finally, the Government is empowered to pass regulations to deploy the Act, and thus to make the appropriate specifications and clarify some of the doubts that the Act creates.

4. Effectiveness of the Act

As we have seen, the main novelty of this Act is the recognition of the legal personality of the Mar Menor and its status as a subject of rights, which thus places nature at the forefront the Spanish legal system. It is to be hoped that the Act will help to bring about a real and major change in the attitudes of public authorities and society as a whole with regard to the relationship between humans and the environment. Other interesting features are the new organizational developments and the effective participation of citizens in the protection of the lagoon. One might wonder whether these latter features might have been enough to achieve the proposed objective.

In any case, the essential point is that this Act should not be considered as just another environmental law, but should be enforced, and the effective application of all the legislation for the protection of the Mar Menor must be guaranteed.

Partager cet article

Articles sur le même thème

Photographie en couleur de la Cour suprême USA

West Virginia v. EPA (30 juin 2022): la consécration de la major questions doctrine (MQD) comme instrument de détricotage de l’État administratif américain

Photographie aérienne d'une plage

Climate change litigation and future generations

Lumière en forme de boule de cristal

La décision publique, l’expertise et le droit XI. Law and Technocracy: the European Variant

Panneau lumineux avec un motif de poignée de mains

La décision publique, l'expertise et le droit X. Expertise et délégation

Photographie d'une bibliothèque

La décision publique, l'expertise et le droit IX. Interprétation des lois et expertise

Photographie d'un autotest de dépistage du covid

La décision publique, l'expertise et le droit VIII. Décision publique, expertise et covid-19: de l'ordinaire à l'extraordinaire

Photographie d'un tube à essai

La décision publique, l'expertise et le droit VII. Stratégies du droit pour décider dans les situations d’incertitude scientifique

Photographie de Luxembourg

Greening Luxembourg? Environmental rights after the 2021 amendments of EU Aarhus Regulation

Photographie aérienne d'une foule

La décision publique, l’expertise et le droit VI. Point d’étape

Photographie d'arbres dans le brouillard

A propos de l’ouvrage de Laurent Fonbaustier, « Environnement », éd. Anamosa, Paris, 2021

Photo du coucher de soleil sur la ville d'Aarhus

The Aarhus Convention and Access to Environmental Information – Will the UK embrace recent changes?

Personne en blouse blanche tenant un masque dans la main

La décision publique, l’expertise et le droit : Qu’avons-nous appris de la crise COVID ? V. Le point de vue du management public

Photographie d'un éclair

La décision publique, l’expertise et le droit IV. L’expertise et le droit public face aux défis du monde contemporain

Photographie d'une manifestation pour le climat

Contentieux climatique en Belgique : une victoire en demi-teinte de la société civile

Photographie d'un fleuve

Protecting Rivers: the rights of nature?

Photographie d'un masque chirugical

La décision publique, l'expertise et le droit III. Time and Virus

Photographie de la terre avec des zones de chaleur

La décision publique, l’expertise et le droit II. Crise sanitaire et étude d’impact en France

Photographi d'une librairie

La décision publique, l'expertise et le droit I. Problématique

Photographie aérienne de nuit des Etats-Unis

Un fonds pour la démocratie : exemples de solutions (II)

Photo de la terre prise de l'espace

Un fonds pour la démocratie : perspectives théoriques (I)

Photographie d'une illustration présentant un masque chirurgical

Les contrats publics face à la crise sanitaire. Une analyse de sociologie juridique

Affiche d'une manifestation où il est marqué en rouge "Act now or swin later"

La lutte contre le changement climatique comme impératif juridique catégorique