In Line with the Vanguard of International Law?
Spain’s Act 19/2022 in Its International Environment
When the sun sets over Mar Menor, flamingos wade slowly through the silt at the shores. The lagoon’s waters are shallow, used to be crystal clear and abundant with seahorses. To save the lagoon as an ecosystem, a civil society movement campaigned to grant the Mar Menor legal personhood, which resulted in a successful Popular Legislative Initiative (for recent analyses look here, here, here, here and here). On 3rd October 2022, Act 19/2022 went into force and gave birth to the first ecological legal person in Europe. According to its preamble, Act 19/2022 is in line with the “international legal vanguard” (“vanguardia jurídica internacional“). This phrasing does not solely refer to a comparative perspective, but it also points to international law itself.
The blog post aims to shed light on Act 19/2022 in its international law environment. To this end, I reflect on certain instruments of the international framework which provide thematically the normative blueprint for Act 19/2022.
The lagoon is surrounded by the flat, fertile soil of the Campo de Cartagena. Farmers used to produce wheat, oranges, and olives by dry farming. In the 70ies, the Spanish government built canals to bring water from central Spain to the Murcia region and irrigation-based agriculture took its start. River beds, „ramblas“, which used to carry water during heavy rain only, continually bring water filled with phosphates and nitrates to the lagoon. This oversupply of nutrients triggered heavy growth of algae and phytoplankton in the lagoon, which caused a decline in oxygen – known as eutrophication – and killed off other marine life (compare here and here). The ongoing decline of the lagoon’s state triggered a civil society movement which eventually led to the adoption of Act 19/2022. The lagoon and its basin were granted the right to exist and evolve naturally, the right to be protected, the right to be conserved and the right to be restored in case damage has occurred. Additionally, any natural or legal person can claim the rights of the lagoon.
The International Legal Vanguard
By referring to the “international legal vanguard”, the preamble’s phrasing certainly gives room for interpretation. It might point to the fact, that rights of nature are by far not recognized in any legal system, but only in few countries, e.g. in Colombia, Ecuador, India (here and here), New Zealand – to name a few prominent ones. The phrasing might also refer to scholarship engaging in the topic. However, when referring to the international legal vanguard, the phrasing does not clearly point to a comparative perspective alone, but to international law itself.
When pondering the term vanguard, one might think of something progressively pushing the boundaries of existing normative frameworks – which indeed Act 19/2022 does by giving legal personhood to the lagoon. According to Article 15 of the Statute of the International Law Commission the expression “progressive development of international law” is used to denominate the drafting “on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States.” The vanguard would thus refer to international law which transcends the existing framework or is at the verge of existence. By following the Popular Legislative Initiative the Spanish legislator might have referred to recent trends in international law which, by reflecting a more inclusive understanding and awareness of inherent anthropocentrism, go beyond the existing international order.
Human Environment and Biocultural Rights
There is a clear gap between the environmental protection provisions in force and the actual protection of ecosystems. The Mar Menor is, for example, listed in the SPAMI list (Specially Protected Areas in the Mediterranean under the UNEP Barcelona Convention) and as well listed as a wetland of international importance in the Ramsar List since 1994. Yet, environmental degradation went unhalted. According to its preamble, the reasons for the establishment of Act 19/2022 are not only “the serious socio-environmental, ecological and humanitarian crisis” but the “inadequacy of the current legal system of protection”. Apart from this, Act 19/2022 is supposed to “strengthen and extend the rights of the people living in the lagoon area”, referred to as “biocultural rights.” The concept is well present in the international sphere, e.g. in the Inter-American Court of Human Rights’ Advisory Opinion OC-23/17 concerning State obligations in relation to the environment. The Opinion’s considerations first highlight the interrelationship between human rights and the environment and proceed by elaborating on the right to a healthy environment. In para. 62 the Court notes, that the right to a healthy environment “protects nature and the environment, not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights […] but because of their importance to the other living organisms with which we share the planet that also merit protection in their own right [emphasis added].” Though the subsequent phrase refers to the recognition of the rights of nature on the domestic level, the Court transfers the concept of nature as a rights-bearer to the international level. Similarly, but inexplicitly, the UN Human Rights Committee refers to nature’s intrinsic value. In Daniel Billy et al. v. Australia, paras. 8.6 and 8.10, it highlights the linkage of the claimants’ health to the health of the islands and ecosystems surrounding them. In their capacity as human rights bodies, the Committee as well as the Inter-American Court emphasize nature’s relation to humans but also characterize it as an entity on which rationales like health ultimately apply.
The concept of legal personhood of nature is not international law born. Originating in indigenous traditions and derived from national law, mainly from the Global South, it could rather be “exported” into the international sphere where it already pops up incidentally (for a recent and critical in-depth analysis of the rights of nature in the context of “greening” international law look here). In the preambular paragraphs of resolution A/RES/75/220, following previous resolutions on the sub-item Harmony with Nature since 2012, the UN General Assembly (UNGA) notes “that some countries recognize the rights of nature or Mother Earth”. UNGA thus emphasizes the concept’s origin in the domestic sphere of some countries. Yet, the wording’s continuous use in the UNGA’s resolutions concerning the topic might gradually form a gateway for the recognition of rights of nature – which are not yet there, but literally part of the international legal vanguard. And in fact: Subsequent norm setting pushes rights of nature beyond preambular affirmations, such as Paragraph 7 (b) of the Kunming-Montreal Framework which includes rights of nature into the Framework’s text by explicitly recognizing and considering “diverse value systems and concepts, including, for those countries that recognize them, rights of nature and rights of Mother Earth”.
Act 19/2022 gives those tendencies shape within the domestic environmental regime.
Ecosystem Protection in the Context of Climate Change
Strikingly, the preamble refers solely to the Paris Agreement (PA) as to Spain’s compliance with international law commitments while emphasizing “the demands of […] the Anthropocene”. Neither the 1992 Convention on Biological Diversity, including the Strategic Plan for Biodiversity 2011-2020 with its Aichi Targets, nor the Ramsar Convention are mentioned, though those agreements are relevant in the context of the Mar Menor. Apparently, the legislator aims to highlight the importance of healthy ecosystems in the greater context of the climate crisis by referring to the international climate regime. The reference is in line with the PA itself, which mentions the integrity of ecosystems and biodiversity protection in its preamble. Article 7 (5) and (9) PA demand state parties to consider vulnerable ecosystems in their adaptation efforts. Article 8 (4) (h) PA mentions, inter alia, the resilience of ecosystems – their capacity to adapt to climate change. This forms also part of the Kunming-Montreal Framework, which was adopted a few months after Act 19/2022 went into force and has since been celebrated as the “Paris moment” of biodiversity protection. And indeed: undamaged wetlands are crucial to keep carbon dioxide in the soil. Posidonia oceanica, a sea grass species prevalent in the Mar Menor, plays a major role in carbon fixation. Act 19/2022 apparently bundles current international ecosystem protection efforts rooted in different regimes.
Article 4 Act 19/2022 gives rise to the application of criminal, civil, environmental and administrative regulations to prosecute and sanction any violation of the rights of Mar Menor. Accordingly, Act 19/2022 will be applied in a complex interplay within a multilayered system of regional, national, international and EU norms. Yet, Act 19/2022 took a major step ahead by conferring the right to claim the lagoon’s rights any natural or legal person, under the exemption from all procedural costs. This procedural figure, often labeled as actio popularis – even though it arguably constitutes a form of legal representation, as people will act on behalf of the lagoon as the party concerned (as stressed here) – certainly alleviates the application of international norms in that respect. In the past, smaller environmental organizations were not able to go to court due to high financial burdens, since Spain did not comply with the respective obligations according to Article 9 paras. 4 and 5 of the Aarhus Convention, which grants, inter alia, access to justice in environmental matters. The entitlement provided now could be described as an extension of the environmental democracy embodied in the Aarhus Convention, as it broadens access to justice. This, in conjunction with the legal personhood of the lagoon, could be groundbreaking in that respect.
A Step Ahead
Considering tendencies in international environmental law, Act 19/2022 seems to reflect some of it. It invokes biocultural rights, well present in the international sphere. It clearly strengthens access to justice in environmental matters in Europe. Taking even a step ahead, it embraces ecocentric approaches by giving the lagoon legal personality. This even transcends the current international framework which does not stipulate the legal personality of nature yet. Act 19/2022 thus pushes the normative order on the domestic level towards a paradigm shift by including progressive and inclusive trends already embodied in international instruments. This proves symptomatic for the rights of nature in Europe, which are not established yet, but subject of a vibrant discussion.