In the face of the global climate crisis, the decline of biodiversity, anthropogenic pollution, and increasingly destructive industrial projects, the recognition of rights for Nature is one of the necessary levers to engage states and communities of actors, both private and public, towards ecological transition. For about fifty years, local, national, or international initiatives have gradually advanced this right.
Interview with Bernard Mossé, scientific director of the NEEDE Mediterranean association, with Victor David, lawyer, research officer at the Institute for Research and Development (IRD), and member of the Mediterranean Institute of Biodiversity and Ecology (IMBE).
#5 The Mediterranean: a common good or a legal personality?
Bernard Mossé: I would like to conclude with more general considerations. What are the implications of the notion of legal natural entity on our vision of nature?
It is understood that for indigenous peoples, it is linked to a divinized conception of Nature. For European countries, it would allow, if I understand you correctly, to exempt elements of nature from property rights. But isn't the notion of common good already sufficient?
Victor David: There is a difficulty in the notion of common good. I would say that I have remained with a somewhat negative view of the commons, in the sense of the "tragedy of the commons," of overexploitation of common resources. It is not enough to say that Nature is a common good of humanity for it to be protected.
The example I have had before my eyes, so to speak, is the Great Barrier Reef, to the west of New Caledonia, Australia. It has been part of the UNESCO World Heritage since about forty years ago. It is endangered both by climate change, of course, but also by the industrial, mining, and agricultural activities that the State of Queensland is developing excessively.
All the pollution ends up in the sea, like part of the coal that is loaded in the main ports; or like the fertilizers from banana plantations that end up in the sea… And all this ends up killing the Great Barrier Reef, which is, after all, an Australian pride admired by the whole world. But who really defends it? No one, in fact, except UNESCO, which threatens to withdraw its World Heritage label…
BM: So we need to imagine other solutions?
VD: Yes, create the sui generis status of legal natural entity and, in our case, benefit the Mediterranean. It is not about reinventing the wheel or unnecessarily complicating the protection of the Mediterranean by creating, for example, new bodies for this purpose. There are already bodies today that do not have this vocation a priori but could take it on. For example, there would be legitimacy for the UfM (Union for the Mediterranean) to be the spokesperson for the Mediterranean recognized as a legal natural entity. It has the capacity and legitimacy to speak with both Cyprus or Lebanon as well as Turkey or, of course, France.
So I think there is no need to create a solution ex nihilo. We need to start from the existing to evolve it and have the countries take on this new approach to the Mediterranean.
BM: Isn't the difficulty in moving from national collective goods to an international common good?
VD: It is clear that we are confronted with state sovereignty. Today, each state can do what it wants in its maritime space. So go tell them that they must respect the Mediterranean because it has rights: it is certain that states will think twice about it! But perhaps at the second reflection, some will start to say: OK, I consider the Mediterranean as a legal entity and it is better for everyone…!
BM: And thus grant rights specific to the Mediterranean?
VD: On this question, I draw attention to the fact that there is no competition between the rights of Nature and environmental law.
The rights of Nature are akin to human rights: just as humans have a right to work, a right to health, to education, to life, to dignity, etc….
Environmental law is a whole, a set of public policies, legal rules for public and private actors, etc.
The rights of Nature have no intention of replacing environmental law. The specific rights recognized for the Mediterranean will simply reinforce the protection recognized for the sea by existing texts,
BM: In this regard, I return to a phrase you pronounced regarding New Caledonia: Man and Nature are one.
Is there not a contradiction between this statement and the creation of legal natural entities or even with environmental law? Certainly, Man is part of nature, and one can say in this sense that he is one with it. But is it not in the name of the natural imbalances and the disruptions of the Earth that he causes that he must assume a prominent responsibility towards it, even to the point of creating a specific law?
VD: I think this contradiction is surmountable. When we look at humanity itself, we see that not all humans have always been equal among themselves. I think of women, of slaves. And even today, what do I have in common with Elon Musk: he has a power over the planet that I do not have. But he has as much responsibility as I do towards the Earth, as you say. That man has an increasing responsibility is not incompatible with the fact that the Earth has rights to better defend itself. That is why I wanted to ultimately move out of the debate on the rights of Nature, perhaps even move out of philosophical debates, to really place myself in the legal arena.
BM: I have taken up, after many others, the comparison between genocide and ecocide in an online article. Does this seem to you to go in the right direction?
VD: We have already discussed the question of ecocide together. For me, we cannot "kill" an entity that does not exist legally. In this sense, national and international NGOs that fight for ecocide are putting the cart before the horse. First, let us recognize that Nature and some of its elements are beings, legal entities, and at that moment, we can say that harming them, even irreparably, can constitute an ecocide. I would like to clarify here that in my view, there is no need to give the term ecocide the emotional and historical weight that accompanies the term genocide. Ecocide should simply be the name given to certain serious harms considered as crimes against elements of Nature. Just as we talk about fratricide or homicide. So the main idea for me is the prior recognition of a new status for certain elements of Nature before talking about ecocide. We can very well imagine in the legal process that, indeed, there are humans designated to speak on behalf of and in the interest of the entity, and not as a state.
BM: Why couldn't the state represent a natural entity?
VD: The problem with the state is that it is both judge and party. It is simultaneously saying that it needs to develop the economy, create jobs, etc. And on the other hand, it should prevent trees from being cut down. Whereas, to bring the contradiction, there needs to be a person who can say: "I am the forest, here are my interests!" This allows for a rebalancing of the trial.
Today, on one side, Nature remains an object. On the other, the rights of Nature are nothing more than sophisticated philosophical concepts about life, our worldview, etc. They need to have real legal significance.
Considering the Mediterranean, its species, and its environments as a legal entity in a trial where they would be able to defend themselves, at a concrete, down-to-earth level, would have significant consequences for better protection of Nature. And ultimately in the interest of all.