[Article originally published in EFE Verde]
The Convention on Biological Diversity (CBD) was adopted at the Rio Summit in 1992. Its objectives are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits derived from genetic resources. To achieve this, it takes a holistic approach, unlike other international conventions that focus on specific species or habitats, addressing both the direct and indirect causes of biodiversity loss and promoting the integration of biodiversity considerations into other policies. Among other obligations, it requires contracting parties to adopt national biodiversity strategies and action plans. It also includes various other obligations, such as those related to identifying and monitoring biodiversity and in situ conservation.
Since it came into effect in 1993, many countries have taken steps to achieve its objectives, but these have not been sufficient, as highlighted by the Global Assessment Report on Biodiversity and Ecosystem Services published by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services in 2019. This report indicated that biodiversity loss is occurring at an alarming rate. In response to that report, and in an effort to halt biodiversity loss and degradation, the CBD COP 15 adopted the Kunming-Montreal Global Biodiversity Framework in 2022. Under the theme “Peace with Nature,” COP 16 is being held in Cali, Colombia, from October 21 to November 1.
Many of the measures taken to address biodiversity loss are legal in nature. As recognized by the Kunming-Montreal Global Biodiversity Framework itself, different value systems and concepts around nature exist. This diversity is reflected in legal systems for nature protection. Thus, many countries have been adopting biodiversity protection laws, even before the CBD came into effect, as various treaties for species and habitat protection had already been signed.
In the European Union, a directive for bird protection was approved in 1979 and is still in force. Since then, a legal-institutional framework has been developed to protect habitats, species, and ecosystems. These laws require, among other obligations, the adoption of management plans, prior authorizations before conducting activities that might disturb or degrade certain species, habitats, and ecosystems, and restoration in case of damage. However, their enforcement has been inadequate.
Based on indigenous worldviews, Ecuador’s 2008 Constitution declared nature to be a subject of rights, sparking an international movement promoting the recognition of “rights of nature.” This initiative grants rights to nature as a whole or to certain ecosystems, primarily rivers. The main rights granted to nature are to exist, be protected, conserved, maintained, and restored. In some cases, these ecosystems are also granted legal personality, meaning they not only hold rights but also obligations and responsibilities. Legal personality entails the capacity to hold rights and obligations and the recognition of legal capacity to act. As a result of this legal personality, entities have been established to act as guardians and provide legal representation for these ecosystems.
Alongside Ecuador, Bolivia also granted rights to nature as a whole through its 2010 Law of Mother Earth. Neither Ecuador’s nor Bolivia’s constitutions granted legal personality to Pachamama or Mother Earth, making them the only two cases that recognize rights for all of nature. In 2016, Colombia’s Constitutional Court recognized the Atrato River, its basin, and tributaries as rights-bearing entities entitled to protection, conservation, maintenance, and restoration by the State and ethnic communities.
Examples of legal personality recognition include the Whanganui River in New Zealand, which was granted rights through legislation, and the Ganges and Yamuna Rivers in India, which were granted rights by a ruling from the Uttarakhand High Court, though this ruling was later overturned by the Indian Supreme Court on appeal by the state government, questioning if flood victims along the rivers could sue their guardians. In both cases, these rivers are recognized as rights- and obligation-bearing entities, similar to any other legal person. Similarly, the 2019 Lake Erie Bill of Rights granted legal personality to Lake Erie, although a federal judge later declared this declaration unconstitutional. Spain’s Mar Menor Lagoon and its basin were also granted rights and legal personality, though this law does not state that it is also a rights-bearing entity.
It is worth asking whether existing legal biodiversity protection frameworks, developed over the past four decades, provide protection equivalent to the rights of nature. This is a question raised by the International Institute for Law and the Environment in its report titled “Rights of Nature: A New Paradigm for Biodiversity and Climate System Protection?” In the case of our country, as an EU member state, it has a well-developed legal framework for nature protection.
The global issue of ecosystem degradation does not stem from a lack of legal personality but from a deficit in enforcement, compliance, and respect for biodiversity protection laws, which represents a rule of law failure.
One of the greatest challenges in implementing rights of nature is the need for adequate financial resources to enforce laws and implement court rulings. These laws and rulings, in addition to mandating concrete restoration plans, establish guardians and other bodies to represent the protected ecosystem and ensure these rights are upheld. These guardians and bodies require resources to operate, much like longstanding public institutions created to protect nature. The lack of economic resources for adequate staffing, monitoring, and enforcement has led to this enforcement deficit, sometimes compounded by a lack of political will. It is worth questioning whether the same will happen when nature is granted rights, given how closely linked these rights are to indigenous cosmovision.
The Declaration of the Global Coalition for Peace with Nature, made at COP 16, calls for “enhanced national and international efforts towards a balanced and harmonious relationship with nature—protecting, conserving, restoring, sustainably using, and sharing our global biodiversity.” This should be done based on each society’s different value systems. Time is of the essence.
Ana Barreira
Ana Barreira is a lawyer and founding Director of the International Institute for Law and the Environment (IIDMA), an organisation that this year celebrates its 25th anniversary. She is co-president of the energy and environment section of the Madrid Bar Association.
