Spain has recently granted the status of 'legal person' to the Mar Menor nature reserve following a citizens' initiative. This is a remarkable and significant development in the legal battle for nature conservation, writes philosopher Gerben Bakker onEW Podium.
In the lush art nouveau spa in Los Alcazares, the British jet set once queued for a mud bath. Now, tourists stare disheartened at the green soup around their milky-white ankles. 'No swimming,' is the motto, reinforced by the smell of dead fish that occasionally drifts by. For the Mar Menor, the unique inland sea on the Spanish Costa Calida, from which the spa once drew its therapeutic waters, is in a deplorable state. But after decades of pollution and mismanagement, it seems a turning point has truly been reached.
A legal novelty
At the beginning of this autumn, one could witness a legalnovelty in Madrid.It may represent a seismic shift in the field of nature conservation. For the first time in European history, a nature reserve has been granted the status oflegal person.This was made possible thanks to the efforts of citizens, scientists, and environmental organisations who were allowed to submit a legislative proposal based on more than 600,000 collected signatures.
The new law was able to be passed thanks to the Spanish initiative for popular legislation. With more than half a million signatures collected, citizens are allowed to submit a draft law for a vote. Successfully, as the law, also passed by the Senate, stipulates that the Mar Menor must be treated as an independent legal entity.
A nature area as a legal person?
Sounds impressive, but what does that mean? Quite a lot, according to environmental law scholar Dries Verhaeghe. He explains that a nature organisation typically brings a case against a polluter on its own behalf. Such lawsuits are costly and the expenses are often non-recoverable. Moreover, the focus shifts from ecological importance to the conflict of interests between business and NGO. Often, various fragmented environmental legislation is applicable. The core then breaks down into sub-issues that are debated at length.
A much more compelling duty of care
For the Mar Menor, this did not help at all. Due to the strong lobbying and unreliable regional politics, nothing happened for years. The lagoon became increasingly polluted with nutrients from the surrounding runoff area, leading to an ongoing ecological disaster. Areas like this face atipping point, a turning point. The algal growth can spiral out of control due to high nitrate levels, suffocating all other life. The lagoon could then face the same irreversible fate as, for example, the Salton Sea in the United States, one of the few comparable ecosystems in the world. There, water scarcity and toxic dust storms have also made human life completely impossible in some areas.
With this law, in principle, any citizen can bring a case on behalf of the area. 'The new law grants the right to protection, preservation, management, and restoration at the expense of the authorities and their riverside residents,' says Verhaeghe. A much more compelling duty of care, therefore. But also a much lower threshold to take legal action. Property developers must be extremely nervous. For it is not unthinkable that even adjacent tourist complexes could be demolished if a harmful connection is demonstrated.
The rights of nature movement
The granting of rights to natural entities, from a single animal to an entire mountain range, is rooted in therights of nature movement.. The founding father is Christopher D. Stone with his seminal workShould Trees Have Standing?(1972). The core idea is that we must first shift our normative perspective to change legally: we can certainly be willing to see natural things, just like companies, as legal entities. But we are simply accustomed to viewing nature primarily as property. This relationship fosters exploitation and causes poor stewardship.
In the past, rights have been granted to natural entities before. But it often concerned the status that a river or forest had for indigenous peoples. They generally experience a strong connection to their environment and more readily attribute a right to exist to animals, mountains, and rivers. For example, Ecuador has enshrined the duty to protect the entire natural heritage in its constitution. In New Zealand the government has granted three rivers plus watersheds with a sacred status full legal personality.
But such an indigenous perspective did not play a role in the Mar Menor. The status has been granted from an independent ecological interest. But can humans really stand in the place of natural interest in that way? Opponents of the movement point out that the legal personality of non-human entities undermines the principle of reciprocity. A legal entity should always possess rights as well asdutiesBut this can never be the case for a natural area.
Wadden Sea in the courtroom?
Nature organisations will have looked on in amazement at this success. So far, parties like Urgenda and Milieudefensie have focused in court on how environmental damage is in conflict withhumanrights, such as the right to clean air. Or they are utilising the legal opportunities that arise because the government does not adhere to the environmental regulations it enforces itself.
Will the Wadden Sea and the Hoge Veluwe soon also head to the courtroom? It is unlikely to happen quickly. Granting rights to nature is not enshrined in Dutch law. However, it is quite conceivable that similar proposals will emerge here as well. For the time being, these initiatives will have to come from political parties. Because a comparable initiative for popular legislation does not (yet) exist in the Netherlands. Nevertheless, everything is happening much faster than expected. Verhaeghe: ‘Without this precedent, it could have taken twenty years for the minds to be ready for this kind of change.’ When it comes to granting rights to nature, it seems the genie is definitely out of the bottle.