Rights of Nature Through the History of Problematizations

In 2022, the Spanish saltwater lagoon Mar Menor became the first ecosystem in Europe to be granted rights of nature. This widely celebrated success, which allows this ecosystem the “right to exist and evolve naturally”, was the result of long-running social campaigns that ultimately brought this legislative proposal to the Spanish Parliament through a popular initiative. I understand this granting of legal personhood as one solution to the decades-long environmental pollution of the Mar Menor, which has especially since the 1970s been burdened with rising tourism, mining, and intensive agriculture. To grasp this solution, it is worthwhile to examine the historical conditions of its creation. Therefore, I offer an analytical framework that makes the historical preconditions for the Mar Menor’s legal personality sociologically investigable. The analysis aims to show how subjective rights for the Mar Menor became possible through historical problematizations and problem work by various actors. The associated thesis is that the formation of the problem itself opens up and limits the possibilities of how the law operates. In this regard, Gilles Deleuze points to Henri Bergson’s concept of problems: “it is the solution that counts, but the problem always has the solution it deserves, in terms of the way in which it is stated (i.e. the conditions under which it is determined as a problem), and of the means and terms at our disposal for stating it.”

From an Ecological Problematization to the Rights of Nature  

To approach the problem history of the Mar Menor from a historical perspective, I draw on Michel Foucault and his considerations on problematization. Thinking historically or genealogically with Foucault means questioning the conditions of possibility for example to produce knowledge from a specific position in the present. The concept of problematization encompasses this understanding, aiming to denaturalize established categories. Although Foucault only introduced the term in his later work, it implicitly underpins his entire oeuvre as a methodological maxim with the following guiding question: “How and why certain things (behavior, phenomena, processes) became a problem.”

To address this question, it is worth turning to the 1970s, a period of profound ecological transformation for the Mar Menor. During this time, the creation of the channel ‘El Estacio’ as part of this change connected the lagoon to the Mediterranean Sea, increasing water flow, reducing its high salt concentration, and introducing new species. To investigate how this specific material change was formed into a problem, I will now examine the empirical-analytical dimension of the concept of problematization. From a socio-theoretical perspective, difficulties and ambiguities can lead to a potential problematization, which, if successful, assembles elements of the situation in such a way that something like a situational picture of the problem emerges. The case of the ‘Estacio’ provides a clear example of this. Various scientific studies on the canal problematized the harmful impacts caused by this transformation and, in combination with other environmental problematizations, created the issue of ecological stability of the Mar Menor in its entirety. This specific formation of the problem is reflected in Article 2 of the Mar Menor’s legal personhood law as a right “to ensure the balance and regulation capacity of the ecosystem.” Thus, the construction of problems and the implications arising from this process are central to legal texts and their orientation towards addressing (legal) problems.

Problem Work Through Apparatuses: Collecting Signatures for the Mar Menor

To understand how the once-established problems are further processed, I will now introduce the concept of the apparatus in this problem-centred perspective. Apparatuses are socio-material networks that focus on problems in their area of responsibility (such as addressing scientific issues within a research institute). They must confront practical challenges – ranging from everyday challenges to specific practices such as measurements – to advance problem work. However, through problematizations apparatuses can also integrate new problems into their area of responsibilities or even constitute themselves through this process. Accordingly, the concept of the apparatus makes it possible to empirically trace the practical work on already formed, yet malleable problems – such as the problem of ecological stability of the Mar Menor.

In 2019, this problem became particularly evident, when over three tons of fish died due to oxygen depletion caused by eutrophication stemming mainly from intensive agricultural activities. As a response to this massive fish die-off, the “Iniciativa de Legislación Popular” (ILP), a movement and campaign to collect signatures for establishing the legal personhood, emerged as a temporary apparatus to address this issue. The stated goal – introducing the legal personhood – can be traced through thousands of small practices, such as collecting signatures, persuading other Spanish citizens, and establishing various networks among activists, lawyers, and environmental organisations. Through these activities, the now-evolved problem of ecological stability found a practical treatment, which not only brought the draft law to parliament but also manifested in the concrete layout of the Mar Menor’s representation. Accordingly, the temporally ILP apparatus, influenced by the material effect of the fish die-off and over three decades of problematizations, synthesized the issue of ecological stability with the proposed solution of granting subjective rights to nature, while further evolving the (legal) problem and its resolution. However, one crucial question remains: how did the activists’ proclaimed solution of granting a legal personhood to nature even make its way to Spain in the first place?

How Problems Travel: Global Translations into Local Contexts

In this regard, one could particularly refer to the global history of the rights of nature (and its conditions and politics), which undoubtedly extends not only to the development of subjective rights but also to indigenous cosmologies and broader legal philosophies. The various and numerous versions of the rights of nature can be understood – without pushing this interpretation in a functionalist way – as responses to the different contexts, their associated problems and apparatuses. The further development of a local problem, e.g. how a specific ecology can be endowed with legal personality rights (as in the case of the Atrato River in Colombia with biocultural rights), can thus become relevant for a new local context, such as the Mar Menor. In the case of drafting the personhood of the Mar Menor, South American cases concerning the rights of nature, theories of Earth Jurisprudence, as well as norms from the European Aarhus Convention, played a significant role. In this process, other problem constellations of rights of nature cases were translated into the local context and ultimately incorporated into the legal text in alignment with local problem work and requirements.

Final Remarks on an Analytical Framework of Problems

After these brief excursions through the problem history of the Mar Menor and the accompanying analytical framework, I hope to have demonstrated that those problematizations, problems, and their processing through apparatuses play a crucial role for understanding its solutions – in this case, the legal personhood of the Mar Menor. In short: Problems matter, in and beyond law. Therefore, I conclude by summarising three analytical insights from this approach. First, the framework emphasises the importance of history but does not limit it solely to the law itself. Rather, the analytical expansion to problematizations and their processing reveals how legal issues, such as the recognition of a threatened ecology, arise from them and are shaped by them. Second, it enables an analytical view to mark the effects of apparatuses as instances of problem work, as well as the material effects of the ecology, as decisive for the law. In turn, this leads to the understanding that current law must not merely be conceptualised as legal text but within the context of apparatuses and material effects. Third, problem work is inherently multi-dimensional: spanning both local and global scales, with problem work being transferred and adapted from one context to another.