26 September 2022

The law that recognizes rights to the Mar Menor and its basin: a new paradigm for the legal defense of nature

About a year ago, I wrote on this blog about the environmental disaster that was taking place in the Mar Menor of Murcia. Today, this protected natural space is once again the protagonist, but not because of the environmental tragedy but because of an innovative and daring measure such as the enactment of a law that gives it legal personality. It is a challenge to see how the efforts of some jurists committed to environmental defense, and protected by the support of citizens (640.000 signatures supported this popular legislative initiative) have led to the enactment of the aforementioned law, which provides rights to the Sea Minor.

It is Eduardo Salazar, lawyer and doctor of law, one of the active promoters of this initiative, who explains to us in this blog the development, evolution and content of this new law, which should represent an advance in the defense and protection of that a natural space as emblematic as La Manga del Mar Menor.

Jose Manuel Marraco Espinos. lawyer

The law that recognizes rights to the Mar Menor and its basin: a new paradigm for the legal defense of nature

Eduardo Salazar Ortuño. Lawyer and Doctor of Law

Mar MenorOn the eve of the publication in the Official State Gazette of the final text of the Law approved in the Senate on September 21, it is worth celebrating the approval of a similar regulation through an analysis of the context that has led to the approval of this Law a pioneer in Europe and a survey on what can happen in relation to the ecosystem of the Mar Menor, the largest salt lagoon in the European Mediterranean. An ecological misfortune that has provoked an unprecedented citizen reaction and that will be known throughout the world. Together with legal prospecting, I consider it necessary to highlight the human dimension of this legislative milestone.

I have been lucky enough to experience this process closely due to my collaboration for a few years with the Professor of Philosophy of Law Teresa Vicente Giménez at the University of Murcia, ideologue of the Law that will soon come into force. It is a very pleasant opportunity to share in this blog of the Abogacía Española the effort made by all the people who have been believing in the need for the Law to adapt to an ecological Ethics that has been advancing in recent times in the face of planetary degradation (Anthropocene), aspire to a new model of Justice that takes into account a relationship between human beings and the ecosystems that make life possible and, in addition, introduces the element of participation and access to justice required by the international commitments that we have assumed (Aarhus Convention).

Professor Teresa Vicente is not only an expert in the enforceability of human rights, but has also been a socially committed lawyer in the years prior to joining the University. Her approach, which has its roots in the Philosophy of Law and the critical function on the legal system, does not take its feet off the ground because she knows that, without the possibility of an adequate procedural Justice, the recognition of rights can remain in any. Teresa Vicente has taught me and convinced me that, as jurists and although we are overwhelmed by the struggle of judicial practice, we must not assume a mere role of applicators of a positive Law that may be failing to achieve its goals, but rather we must criticize and, if possible, to be creative in our attitude towards the Law.

The situation of environmental and institutional degradation around the management of the Mar Menor as a protected natural area since the 80s of the last century and the eutrophic crisis is well known. acaed since 2015. The efforts of nature defense groups and scientists committed to warning of the excesses of mining, urban-tourist and agrarian activity in recent decades have not been able to slow down a socioeconomic model that has led us to the collapse of the lagoon ecosystem. Since 2016 almost all of the marine flora has been disappearing and when in 2019 the fish and other marine fauna came out of the water in search of oxygen denied by the excess of nutrients in the waters of the Mar Menor, the tragedy ceased to be the Chronicle of an ecocide announced to plunge citizens into solastalgia, that sadness that accompanies those who see an identity natural landscape disappear.

As lawyers specialized in environmental matters, we could not contemplate a similar catastrophe without also feeling the frustration for the fracaso of an Environmental Law that is qualified as preventive. What has been the use of the legislation and legal instruments created to protect the biodiversity and the public domain associated with the Mar Menor? It is obvious that we must measure the effectiveness of this Environmental Law that does not prevent the catastrophe of the Mar Menor, including questioning the legality of private and public activities that have contributed, by action or omission, to this disaster. Anyone is free to settle only for a repressive law that takes the form of eternal criminal proceedings that do not usually end in a conviction for ecological crime or with the difficult activation of a complex system of environmental responsibility (Law 26/2007), but a few Murcian jurists we decided that it was time to create a complementary game board. In addition to listening to the voice of the Mar Menor and that of the peoples who in other parts of the world maintain the idea of ​​the dignity of nature, we have been aware that the situation deserved a more intense legal implication: the expansive vis in the recognition of rights to nature, as the most powerful attribute of legal personality. If in the past rights have been recognized for unduly excluded persons (women, slaves, people of other races or ethnic groups, minors) and legal personality has been given to non-human entities (corporations, foundations, associations, etc.), not without a tremendous social struggle in the first case, perhaps the time has come to move in that direction in relation to the central entity of our lives: the ecosystem.

This legal idea, with a strong philosophical anchor and critical renewal in the face of the consequences of the Anthropocene, is not new, despite the fact that it has been and continues to be underestimated in many legal decision-making forums in the Western world. A certainly strange question considering that there is a specific program of the United Nations (“Harmony with Nature”) and several modern constitutions that assume the rights of nature, as well as social and judicial experiences from New Zealand to Colombia, passing through Canada.

Professor Teresa Vicente landed in Murcia after a stay in Great Britain where she studied the Judgment of the Colombian Constitutional Court in relation to the battered Atrato River, to contemplate the massive mortality of marine fauna of the Mar Menor in 2019 with an idea, to propose to the legislator legal personality to the Mar Menor and guarantee basic rights. To the above, it must inevitably add a component of enforceability based on the idea of ​​environmental democracy contained in the spirit of the Aarhus Convention: the empowerment of citizens in decision-making and broad access to justice. And for that we were and are.

The Environmental Law Clinic of the University of Murcia brought together enthusiastic jurists who connected the idea with the democratic mechanisms available to citizens to provoke new legislation, and the approach was heard by a local leader from the riverside municipality of Los Alcázares. The Plaza del Espejo, on the shores of the Mar Menor, connected in the summer of 2020 jurists and representatives of the neighborhood movements for the defense of the coastal lagoon to begin a long journey. First, a municipal popular legislative initiative promoted by the Mayor of Los Alcázares was raised before the Regional Assembly, which was not understood and was blocked in the Murcian legislative body. That same month of July, a Promoter Commission of eight people, presented in Madrid the request to start a Popular Legislative Initiative, in accordance with the provisions of the corresponding Organic Law that regulates it.

The process has had several phases and perhaps the most difficult was that of collecting signatures, in full confinement due to the pandemic. The illusion of many Murcians to collect handwritten signatures in the streets and squares of the entire Region restores hope in democracy to anyone and proves that citizens understand the new ecocentric challenge that Law has ahead. The number of signatures amounted to almost 640.000 and in almost all corners of Spain documents arrived to sign this legislative initiative. Numerous artists came forward to amplify a mobilization characterized by political independence and inclusion. Even the Mar Menor itself revealed its signature through the creativity of an expert calligrapher.

After the social phase, after the bureaucracy before the Central Electoral Board and the official recount, the Congress Table gave entry to a brief text that condenses many pioneering concepts and catalysts for environmental protection. The processing and parliamentary debate has been closely followed by the signatories, as will its effective application, and the permeability of the institutions and people of the General Courts has been at the height of the citizen effort. From the receipt of the reasons for the ILP in the Ecological Transition Commission of Congress to the definitive and overwhelming vote in the Senate, through the consideration of the Plenary of Congress and the meticulous and transparent work of amendments, it has returned us to Many trust us and we have been aware of the citizen empowerment that shines on rare occasions in our democracy.

To summarize the most important challenges of the Law and its implications in the legal system, I would like to highlight that together with the legal personality attributed by the legislator to an ecosystem (article 1), the bill of rights (article 2) to which they will give content the Scientific Committee created in article 3 and the urgent obligations addressed to public authorities (article 7), a democratizing process begins in relation to decision-making for the preservation and restoration of the Mar Menor and its basin. The guardians of the Mar Menor will come from citizens who are aware of the survival of the coastal lagoon, together with the competent Public Administrations, through the Representation and Monitoring Committees (article 3) and anyone will be able to access justice in advantageous conditions. to defend in administrative and judicial channels the rights of the Mar Menor and its basin (article 6). Although there are specific unknowns regarding the effective functioning of the representative and monitoring bodies, the path is littered with tools for the effectiveness of this new scenario of collision of the rights of nature with property rights, urban rights, discharge authorizations, management of biodiversity and the maritime-terrestrial and hydraulic public domain. The revulsive condition to the preventive and restorative function of Environmental Law underlies the legislative mens. The connection with article 45 of the Constitution, which requires an urgent update, is unquestionable and must summon all public powers. The Legislature has been up to the citizen initiative, now it is the turn of the Executive -regulatory development- and the Judicial -sensitivity in weighing the rights of nature in the procedures that are initiated in the different jurisdictions, in which This new natural entity may appear as an interested party, which represents a potential of this new Law.

The ecocentric turn of the Spanish legislator, promoted democratically, will undoubtedly reverberate throughout Europe and will permeate a society that must rethink its relationship with nature which, in the case of the Mar Menor and its basin, ceases to be an object - a natural resource - , to become a subject. A person, as we say in Murcia.