The five judges who make up the conservative minority of the Constitutional Court (TC) have issued a dissenting vote where they distance themselves from the sentence approved by the seven judges of the progressive majority that endorses the recognition of the legal personality of the Mar Menor, considering that it is “an unjustified paradigm shift towards the ecocentrism».
In the dissenting opinion, to which Europa Press has had access, judges Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel, César Tolosa and José María Macías explain that the ruling “equates a natural system with people – and even with the potential for raise conflict to people-“, which represents a “paradigm change” that, in his opinion, “It has no place in our Constitution”which “attributes rights exclusively to people.”
The magistrates indicate that, until now, constitutional doctrine understood that “the duty to protect the environment is linked to the conditions that make possible the exercise of the right to life and physical and mental integrity of people, which, inevitably, “It places it as a tool at the service of the person and humanity, on an anthropocentric level.”
From this perspective, they state, “the protection of the environment is not an end in itself, but to the extent that it serves the development of human life; “a human life that, as a species, is naturally oriented towards its survival, through future generations, in a natural environment that allows it.”
At this point, they emphasize that the constitutional doctrine “already included the adequate compatibility between the quality of life of people and the protection of the environment, also for the benefit of future generations.”
For the signatories, this anthropocentric conception “It is perfectly compatible” with the consideration of the environment “as a good worthy of protection, improvement and restoration, and does not require – nor accept – any paradigm shift.”
«We must overcome an apparently pejorative meaning attributed to the anthropocentric concept of the environment, which seems to aim for the unlimited exploitation of natural resources, and not their use, enjoyment and protection for the improvement of the quality of human life, which is the doctrine of the TC,” they say.
Thus, they defend that “recognizing that human beings live in a certain natural environment, which makes human life itself possible, implies, without a doubt, a moral and legal imperative of protection of nature as a means for our own survival as a species, but which cannot and should not place the human being on the same axiological plane as his environment.
And they remember that “this has been done with Law 7/2023, of March 8, on the protection of the rights and well-being of animals; rule that, despite its title, does not grant animals the status of persons or grant them their own legal personality, but rather considers them as sentient beings that deserve respect and protection.
“In short, and in a few words: to grant due protection to the environment it is not essential to give it the same legal status as a person,” they summarize.
«Significant regression for quality of life»
Furthermore, they warn that this “paradigm change” can generate “unknown consequences” because, “far from being appreciated as a progressive reading of the constitutional text, it could lead to a significant regression for rights, freedoms and, ultimately, for the quality of life of human beings.
They add that this sentence comes at the “most suitable moment”, “after the recent events that have occurred in this country”, in reference to the dana of last October in Valencia.
«The mere insinuation that some natural environments may oppose their rights to people, which justifies not altering the channels of ravines or streams in already inhabited areas or the proliferation of sugarcane fields, thus avoiding the adoption of corrective measures that could avoiding natural catastrophes cannot be assessed from the perspective of a mere question of opportunity, but rather from the true calibration of the consequences,” they say.
And “what in no case can be considered or should influence the judgment of this court, and even less endorse, are approaches (…) such as the apparent agreement of political parties in accepting initiatives of mere legal snobbery not thought through or in its legal and constitutional correctness nor, even less, in its consequences that, in addition to being eventually tragic, can actually imply a regression in the protection of the environment,” they add.
A sentence of 2022
The Vox deputies brought Law 19/2022 before the Constitutional Court considering that several of its articles could violate regional powers regarding environmental protection, as well as the principle of legal certainty.
In the ruling, to which Europa Press has had access, the TC recalls that the Magna Carta imposes on public powers the obligation to ensure the environment and emphasizes that “this connection of caring for the natural environment with the guarantee of “Quality of life is an essential element of any constitutional assessment.”
Furthermore, the TC cites jurisprudence from the European Court of Human Rights (ECtHR) which states that “the well-being of people depends on the well-being of the ecosystems that support life.”
In this sense, the majority of the Plenary defends that article 45 of the Constitution offers “a framework of reference that is sufficiently open for the legislator to develop provisions for environmental protection from very diverse perspectives and approaches that must, in any case , keep in mind and respect: the close connection between the protection of ecosystems, the natural environment, non-human life and human life and the full development of the latter.
In its resolution, the court of guarantees emphasizes that the law that recognizes the legal personality of the Mar Menor “is the first Euro-Mediterranean norm that is part of the model that attributes legal personality to natural entities, assumed by the legislator (…) “a transfer of the protection paradigm from the most traditional anthropocentrism to a moderate ecocentrism.”
Along these lines, the TC emphasizes that, “despite the existence of a series of international obligations to protect the lagoon, neither the classification as a preferential protection wetland, nor the obligations to preserve the marine environment derived from the Montego Bay Convention , known as ‘Constitution of the Sea’, have prevented this ecosystem from being progressively deteriorated by human intervention for 40 years.”
Regarding a possible violation of powers, the magistrates recall that the TC itself has already recognized that the State can cover laws that have as their object a physical area delimited within the national territory and gives as an example the laws declaring national parks.
However, the Constitutional Court emphasizes that it does not find “sufficient reasons to consider that the challenged norm should be declared unconstitutional, without it being of course the task of this court to judge the greater or lesser success of the legislator.”
The court concludes that “with the recognition of the legal personality of the Mar Menor and its basin there is no intention to relativize the dignity of the person.”
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