The Rights of Nature Reach the Mediterranean Shores: and now what?

I. Introduction

On September 30^th 2022, the Spanish Parliament enacted Law 19/2022, for the recognition of legal personality to the Mar Menor and its basin, the first of its kind to be passed in Europe¹.

The coastal area concerned is one of the largest in the Mediterranean. The lagoon covers an area of 135 km² with a maximum depth of 7 m and is separated from the Mediterranean Sea by a 22 km long sandy bar, called La Manga. The surrounding area consists of the watershed lands extending in an area of 1.600 km2 up to the neighboring mountain ranges. The area described has unique environmental values and is emblematic for the Region of Murcia. It was a natural paradise until progressive intensification of numerous development activities turned it into a degraded ecosystem. Among the main drivers of the deterioration of this unique coastal zone the following should be highlighted: the exhaustive urbanization of La Manga and the peripheral area of the lagoon, dredging and widening works, the proliferation of marinas, the creation of artificial beaches, the reception of mining waste through runoffs, the radical transformation of agricultural uses in the watershed, the transfer of flows between the Tagus and Segura rivers, the massive entry of fertilizers and pesticides from intensive agriculture, the proliferation of unauthorized wells to extract water from aquifers and the installation of legal and illegal desalination machines.

Intensive exploitation of the area over the years has had dramatic ecological and social consequences. The waters of the Mar Menor, which were until relatively recently oligotrophic (low in nutrients and primary production), have undergone a serious process of eutrophication due to the daily release of tons of nitrates into its waters. Successive crisis of eutrophication in 2016, 2019, 2021 and 2022, resulted in a widespread mortality of fish and crustaceans and environmental collapse. The irremissible degradation of the area, in spite of numerous political and legal initiatives, has had significant ecological, economic and social consequences and caused anxiety among the population (solastalgia)².

The enactment of law 19/2022, recognizing legal personality to the Mar Menor and its basin, sets a new normative stage in the Mediterranean context, the impact of which will be assessed in the following pages.

2. Origins, legislative process and content of the law

The initiative to promote a law recognizing the Mar Menor legal personality as a natural entity arose from a legal clinic held at the Department of Philosophy of Law at the University of Murcia on how to achieve better legal protection for this deteriorated coastal area.

A draft bill drawn up at this academic seminar was subsequently debated in multiple venues and forums, achieving a high level of support. From there, a political and social movement emerged that advocated for the passage of a more ambitious and effective law through a popular legislative initiative (PLI). By August 2021 a Promoting Commission had managed to collect 639.824 signatures, far beyond the 500.000 signatures required by law for the submission of a PLI. During its passage through Parliament the law received broad support from political groups and, on September 21, 2022, it was approved by an overwhelmingly majority in the Senate, with only 3 votes against, cast by the right-wing party Vox. A subsequent appeal on grounds of unconstitutionality filed also by Vox was dismissed by the Constitutional Court in a ruling dated November 14, 2024³.

Law 19/2022 has a very simple structure consisting of a preamble, seven articles, a derogating clause and three final provisions⁴. The preamble summarizes the ontological and epistemological foundations of the law proposing “an eco-centric interpretation” of the Spanish legal system enlarging “the category of subject of law to natural entities”.

In its operative provisions, the law recognizes the legal personality of the Mar Menor and its basin and defines its territorial scope (Article 1). The law then proclaims de “bill of rights” of the natural person created, which includes: the right to exist and evolve naturally, the right to protection, the right to conservation and the right to restoration (Article 2). A nominal Guardianship of the Mar Menor, composed of a Committee of Representatives, a Monitoring Commission and a Scientific Committee, is established for its representation and governance (Article 3). Those who violate the rights of the Mar Menor, whether a public authority, a private law entity, or a natural or legal person, will assume civil, administrative and criminal liability and shall be prosecuted and punished (Articles 4). Any acts or actions by public administrations that violate the law shall be considered null and void and shall be reviewed through administrative or judicial proceedings (Article 5). Any natural or legal person is granted the right to access to justice to bring legal action in defense of the Mar Menor before the competent administrative or judicial authority, without procedural costs for plaintiffs who win the case (Article 6). Public Administrations, whether national, regional or municipal, are assigned specific obligations to ensure the objectives of the law are met (Article 7).

The law concludes with a clause repealing “all provisions contrary” to its mandates and three final provisions establishing the exclusive competence of the State, empowering the Government to approve the regulatory developments needed, and declaring its immediate entry into force upon publication.

3. Legal and theoretical innovation: the rights of nature

As stated in its preamble, the law intends to “make a qualitative leap and adopt a new legal-political model in line with the international legal vanguard and the global movement for the recognition of the rights of nature”.

In its operative provisions, the law endorses the most advanced legal trends in modern environmental law regarding the protection of marine areas, as demonstrated by its broad geographical scope, the application of the ecosystem approach, the protection of the aesthetic, cultural, and emotional values of the area, and the promotion of public participation.

The law also fully adheres to the doctrines of the rights of nature (RoN), which are gaining prominence in current international environmental law. According to the RoN theories the three reasons that have led to the current global environmental emergency are: anthropocentrism (humans are separate from and superior to the rest of the natural world); the conviction that the elements of nature are the property of humans, who can use them as they please; and the aspiration to achieve unlimited economic development⁵. As brilliantly summarized by Tiffany Challe, the RoN movement is fundamentally rethinking humanity’s relationship with nature, advocating for ecosystems such as rivers, lakes, mountains and seas to bear legal rights in a similar manner as human beings. The theories on the rights of nature strive for a paradigm shift in which nature is placed at the center and humans are connected to it in an interdependent way, rather than a dominant one. According to the RoN doctrine, an ecosystem is entitled to legal personhood status and as such, has the right to defend itself in a court of law against environmental degradation. The rights of nature doctrines recognize that an ecosystem has the right to exist, flourish, regenerate its vital cycles, and naturally evolve without human-caused disruption. Furthermore, when an ecosystem is declared a “subject of rights,” it has the right to legal representation by a guardian — much like a charitable trust designates a trustee — who will act on their behalf and in their best interest⁶. According to its champions, the goal of conferring rights to nature is to guarantee the highest level of environmental protection under which an ecosystem can thrive and whose rights are not violated. In current comparative law, the rights of nature have been progressively incorporated at the constitutional, legislative, or judicial level in the legal systems of Ecuador, Bolivia, New Zealand, Colombia, Argentina, Peru, Pakistan, India, the Philippines, Canada, the United States, and Spain, among others.

In international law, the progressive acceptance of the rights of nature has been boosted by the growing influence of indigenous peoples and their cultural beliefs, as well as synergies with environmental human rights. It is also worth highlighting the United Nations’ action on “harmony with nature” since the first General Assembly resolution on the subject in 2009. Sure enough, the resolutions on harmony with nature consider the rights of nature as a vision of “some countries” that share the culture of Mother Earth. However, the latest resolution on the subject, adopted in 2024, notes in its preamble the important contributions of “Earth system science” and “Earth-centered law” to considering human beings as part of nature. In its dispositive provisions, the resolution calls for a “holistic and integrated approach … to facilitate support for and recognition of the fundamental interconnections between humankind and nature (11 and 12, a) ⁷.

Discussions on the rights of nature have also made headway at the European Union level with the publication of several studies and reports by the Economic and Social Council contemplating the possible adoption of a European Union Charter on the fundamental rights of nature⁸.

4. Global and regional instruments on marine protected areas

In international law, the establishment of protected areas started with the 1940 Convention on the Protection and Preservation of Wildlife in the Western Hemisphere, the 1946 Convention on the Regulation of Whaling and the 1971 Ramsar Convention on Wetlands of International Importance.

The issue was incorporated into the founding texts of modern international environmental law, such as the 1972 Stockholm Declaration on the Human Environment (Principle 2) and the 1982 World Charter for Nature (Principle 4). Several coetaneous conventions provide for the creation of protected areas which, once established by the competent Party, are included in the corresponding list (listing system); these conventions include: the 1972 UNSCO Convention on World Cultural and Natural Heritage, the 1973 Convention for the Prevention of Pollution from Ships (MARPOL 73/78), the 1979 Bonn Convention on the Conservation of Migratory Species and Wild Animals and the 1979 Bern Convention on the Conservation of European Wildlife.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which has been called “the constitution of the oceans”, imposes on States the obligation to take all necessary measures to prevent, reduce and control pollution of the marine environment from all sources (Article 194, 1) and to protect and preserve rare or vulnerable ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life (Article 194, 5). Although the 1982 Convention does not expressly require the establishment of marine protected areas (MPA), it is the source of the authority of States to create and implement them. The establishment of protected areas is also provided for in the 1992 Convention on Biological Diversity. Its Article 8, on in situ conservation, provides for the establishment of a system of protected areas or areas in where special conservation measures need to be taken (8, a) and details the measures to be adopted by the Parties for the selection, establishment and management of such areas (8, b) to m). The Kunming-Montreal Global Biodiversity Framework of 2022 aims at increasing by 2030 at least 30% the network of protected terrestrial and marine areas effectively managed (target 3). The 2023 Agreement under UNCLOS relating to the conservation and sustainable use of biological diversity in areas beyond national jurisdiction devotes Part III to “area-based management tools, including marine protected areas”.

At the regional level, there are also several agreements establishing MPAs, mainly within the framework of the UNEP Regional Seas Program. With regard to the Mar Menor and its basin, the most directly relevant legal instruments are the Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols (the so called Barcelona Convention system-BCS)⁹.

The first instrument addressing the issue is the 1982 Protocol concerning specially protected areas and biological diversity in the Mediterranean, amended in 1995. Part II of the Protocol provides for the establishment of Specially Protected Areas (SPAs) in which the Parties are required to take protection measures for a series of specific objectives (Article 6). Part III of the Protocol provides that the Parties shall draw up a list of specially protected areas “of Mediterranean importance” (SPAMI), which may include sites containing ecosystems or habitats specific of the Mediterranean area or are of special scientific, aesthetic, cultural or educational interest (Article 8). In accordance with the procedures set out in Article 9, the Parties may request the inclusion in the list of sites whose protection is particularly relevant for the Mediterranean. Once included in the SPAMI list, all Parties –including the one which proposed the SPAMI- must recognize the importance of the site and comply with the measures established for its protection (Article 9, 5). At present, the list contains 39 SPAMIs, of which 10 are located in Spain, including the Mar Menor¹⁰.

In 2008, the parties to the Barcelona Convention adopted in Madrid the Protocol on Integrated Coastal Zone Management in the Mediterranean (ICZM), which entered into force in 2011. This is the first treaty ever adopted that is specifically devoted to coastal zones. The Protocol defines ICZM as “a dynamic process for the sustainable management and use of coastal zones, taking into account the fragility of coastal ecosystems and landscapes, the diversity of activities and uses, their interactions, the maritime orientation of certain activities and uses, and their impact on both marine and terrestrial parts” (Article 2(g)). The general objectives and principles of ICZM are particularly relevant to the protection of places such as the Mar Menor and its basin, as they address many of the challenges facing this SPAMI (Article 7). The Protocol contains provisions prohibiting construction within 100 m of the coastline and establishes specific obligations in relation to the linear extension of urban development along the coast and many other specific activities developed in the concerned coastal area.

The European Union has also developed legislation on protected areas, beginning with Directive 92/43 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. The directive establishes a network of protected areas known as “Natura 2000”, which includes the Mar Menor¹¹. In 2014, the European Union adopted a directive establishing a framework for maritime spatial planning in Member States, which addresses the integrated management of maritime and coastal activities¹².

5. Failing interlinkages and erratic compliance

Law 19/2022, which recognizes the legal personality of the Mar Menor and its basin does not grow in a legal desert but rather in a dense normative space in which national law and international instruments coexist.

In accordance with the basic principles governing the systemic relationship between international law and national law, States shall fulfill their conventional obligations by incorporating them into domestic law and enforcing them thereafter. This obligation is strengthened in the case of the European Union legislation enjoying direct effect in the Member State`s legal systems. In Spain, article 96 of the Constitution of 1978 provides that:

Validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order. Their provisions may only be repealed, amended or suspended in the manner provided in the treaties themselves or in accordance with the general rules of international law.

However, in Spanish legal practice, global and regional agreements are often ignored when drafting national and regional legislation for the protection of marine areas. For instance, Law 19/2022 states in its preamble its objective to comply with international commitments, but only mentions the 2015 Paris Agreement on climate change as an example. The law does not take into account other international agreements more directly related to its purpose, such as the Barcelona Convention and its Protocols and the 1989 Aarhus Convention on public participation.

This lack of awareness of the global, and regional agreements applicable to the Mar Menor area also seems to affect non-state actors. In 2017, the NGO Ecologistas en Acción de la Región de Murcia (EARM) filed a complaint against Spain before the Compliance Committee of the Barcelona Convention. In its initial communication, the NGO relied solely on two scientific reports, prepared by the Universities of Murcia and Alicante, highlighting the poor environmental condition of the Mar Menor and its basin, but without identifying which specific obligations under the Barcelona Convention and its Protocols had been breached by Spain. When, at the request of the Compliance Committee, EARN attempted to remedy this omission, it alleged breaches of the Protocol on Protected Areas and Biodiversity, but without taking into account possible breaches of the Protocol on Marine Pollution from Land-Based Sources and Activities and the Protocol on Integrated Coastal Zone Management, both of which set out specific obligations applicable to the situation of the Mar Menor and its basin.

Furthermore, even the Spanish authorities seem to be ignoring their own national laws for the protection of the Mar Menor and its basin. In the documents submitted by Spain in May 2023, in response to the recommendations of the Compliance Committee of 30 June 2022, no specific mention was made of Law 19/2022. Quite surprisingly, the reports submitted by the central and regional authorities of Spain to the Compliance Committee do not mention the law recognizing legal personality to the Mar Menor and its basin nor elaborates on its possible contribution to improving the situation of the affected area. This clamorous omission was remedied by the Compliance Committee itself, some of whose members were aware of the existence of the Spanish law. Then, in its activity report of the biennium 2022-2023 to COP 23, the Compliance Committee filled the gap by congratulating the Government of Spain “for enacting the new legislation for the recognition of legal personality of the Mar Menor and its basin” ¹³.

6. Conclusion

Spanish law 10/2022, recognizing the personality of the Mar Menor as a legal entity, despite the shortcomings pointed out by some legal experts¹⁴, introduces a new scenario that has raised expectations about possible advances in the Mediterranean legal framework.

However, the events described in the preceding pages show that the challenges for the Barcelona Convention system are less related to future improvements to integrate the rights of nature than to the need to ensure more effective implementation of its legal instruments at present. In the case at hand, neither Spain nor the complaining NGO mentioned the BCS’ legal instrument most directly relevant to the Mar Menor and its basin, namely the Protocol on Integrated Coastal Zone Management, adopted in Madrid in 2008. As Michel Prieur has written, the Barcelona system remains an “illustre inconnu” whose institutional and legal capacities are often ignored by both States and other stakeholders¹⁵.

To remedy the current shortcomings in the effective implementation of the legal instruments of the Barcelona Convention, UNEP/MAP should consider how to improve its communication policy to ensure greater awareness among Contracting Parties and partner NGOs.

ENDNOTES

1 Boletín Oficial del Estado «BOE», núm. 237, 03/10/2022, p. 135131. Peñalver, A. “The first case recognizing the rights of nature in Europe: the Spanish Parliament’s brave step towards ecocentrism”. Chemins-publics.org, 16 novembre 2022.

About the author

Jose Juste-Ruiz

Honorary Professor of International Law, University of Valencia, Spain