The term "biodiversity" or "biological diversity" embraces genetic diversity, the diversity of species and the diversity of the ecosystems in which species exist or live - that is, their "habitats". There are many threats to biodiversity: pollution and other disturbances in natural habitats and species caused by economic development, fires, floods, erosion, urbanization, farming and other human activities. boy, 1 February 1994. This was adopted by the European Community in a Council Decision of 25 October 1993 (OJEC L/l 309, 13 December 1993). 3 The number of "taxa" (systematic classification of living beings, including all hierarchies: group, class, order, family, genus, species and subspecies) estimated for Spanish territory is "almost 80,000, making Spain the country responsible for the largest portion of diversity in the continent". Spanish Ministry of the Environment, Actuaciones Publicas en Materia de Medio Ambiente, 31 October 2000 (henceforth, MMA, Actuaciones Publicas), p. 16 (see http://www.mma.es). 4 OJEC 206, 22 July 1992. See also Directive 97/62/EC, 27 October, adapting scientific and technical progress in Directive 92/43/EEC (OJEC 305, 8 November 1997). In this context, almost all the types of habitat in Appendix 1 derive from the classification compiled in the course of the Coordination, Information and Environment (CORINE) environmental programme, approved by Council Decision 85/338/EEC, 27 July (OJEC L 176, 6 July 1885) and set forth in the Biotope Project/CORINE Standard Manual, 19 March 1988. Note that its considerable biological diversity qualifies Spain for the Alpine, Atlantic, Mediterranean and Macronesian regions, but not for the Continental and Boreal regions.
5 Ministerio de Medio Ambiente de Espana, Direcci6n General de Conservaci6n de la Naturaleza (DGCN), (Informe 1999 sobre el Desarrollo de la Directiva Habitats 92/43/ CEE) (hereafter, DGCN, Informe 1999), p. 2. Fernandez de Casadevante Romani was already stressing and analysing these problems. See C. Fernandez de Casadevante Romani, "La proteccion internacional del medio ambiente", Cursos de Derecho Internacional de Vitoria-Gasteiz (1988), 149- 315, pp. 25fr-257. See section IV.1.C infra. The Community legislator innovates in distinguishing two categories of natural space susceptible of protection. On the one hand, States should promote the protection of the "natural habitats" listed in Annex I. And on the other hand, States should assure the conservation of the "habitats" of certain animal and plant species of interest to the Community", listed in Annex II. See Annexes I and II, Habitats Directive. The practice cited refers to both land and marine areas, but the article deals essentially with the protection and conservation of land habitats.
10 As regards this development, Juste Ruiz points out that over time international environmental law has entered an "expansive phase" resulting in "progressive expansion beyond its original boundaries". In connection with the conventional methodology used, Professor Juste Ruiz highlights "three outstanding features": "conventional asymmetry" produced by diversification of the parties" obligations and rights, the "reality" of commitments, and the "continuity" of the process through the drafting of framework conventions subsequently supplemented by series of protocols. J. Juste Ruiz, "La evoluci6n del Derecho internacional del medio ambiente", in Hacia un nuevo orden internacional y europeo. Estudios en homenaje al Projesor Manuel Diez de Velasco, Madrid, 1993, 397-413, p. 402 and 407. See also, A. Ch. Kiss, "Nouvelles tendances en droit international de l'environnement", GYIL, vol. 32 (1989), 241-263, pp. 259-263. 11 Art. 1, Convention on Biological Diversity (see note 2 supra and section 11.2.A.b infra). For developments in the protection of species, see P. Van Heijnsbergen, International Legal Protection oj Wild Fauna and Flora, Amsterdam/Berlin/Oxford/Tokyo/ Washington, 1997, pp. 51-52 and M. C. Maffei, "Evolving Trends in the International Protection of Species", GYIL, vol. 36 (1993), 131-186, pp. 134-148. �Z Gaceta de Madrid, 25 July 1936. The approach to nature protection in article 45.2 of the Spanish Constitution of the Second Republic of 1931 is similar to that of the London Convention. This article declares that "the state shall also protect places of outstanding natural beauty or of acknowledged artistic or historical value". That Constitution viewed nature as a static entity whose preservation simply required measures to guarantee its survival as a series of landscape or natural areas of particular aesthetic merit. The protective measures proposed did not therefore call for a global
cont. defence of nature and sought only to prevent changes in certain aspects of the rural environment. A. E. Perez Luiio, "Articulo 45: medio ambiente", in O. Alzaga Villaamil, Comentarios de la Constitucion espanola de 1978, vol. IV, Madrid, 1998, 237- 279, p. 250. For the position of the current Spanish Constitution, see section IV.1 infra. 13 In 1933 Spain participated in the Conference for the Protection of Fauna and Flora in Africa at the invitation of the United Kingdom, following the recommendations of the International Congress for the Protection of Nature, held in Paris in 1931. The London Convention was drawn up and signed at that Conference. I. Rodriguez Muiioz and R. Ortega Dominguez, Tratados internacionales sobre medio ambiente suscritos por Espana, Ministerio de Obras Publicas y Transportes (MOPT), 1993, p. 23. 14 bid. For the regulatory framework applying to cross-border cooperation on environment protection between the cited Spanish cities in Africa and neighbouring Morocco, see the Spanish-Moroccan Treaty of Friendship. Good Neighbourship and Cooperation, 4 July 1991, especially article 6.b (BOE, 26 February 1993). Spain also concluded a Treaty of Friendship. Good Neighbourship and Cooperation with the Republic of Tunisia on 27 October 1995 (BOE, 9 January 1997). As regards the other countries in the region, the London Convention was replaced by the African convention for the conservation of nature and natural resources, Algiers 15 September 1968, under the auspices of the OAU, and supplemented by the Protocol on Protected zones and wild fauna and flora in East Africa of 1985. F. Marino Menéndez, "La protecci6n internacional del medio ambiente (II): regimenes particulares", in M. Diez de Velasco, Instituciones de Derecho Internacional Publico, ]3th ed., Madrid, 2001, Ch. XXXII, 660-683, p. 674. useful to the 1950 Convention replaced the Convention for protection of birds useful to agriculture, Paris, 1902. The Convention reflects the ideas of a time in which nature protection was addressed by conservation methods based on the "utility of the protected species" - in the case in point, birds useful for agriculture. The importance of this ratification lies in Spain's geographical situation on one of the main natural routes for bird migration (BOE, 13 September 1955).
16 The Spanish Constitution dates back to 27 December 1978 (BOE, 29 December 1978). The period prior to the 1978 Constitution was characterized by the construction of large reservoirs throughout the country and by the drying-up of more than half of all natural lagoons and marshes, in the mistaken belief that such areas were useless and unhealthy. As a result, wetlands were the ecosystems that suffered most aggression from human intervention in Spain. See sections IV.2.B and C infra and note 158 infra. 17 In this connection, see C. de Klemm, "Voyage a l'interieur des conventions intemationales de protection de la nature", in Les hommes et 1'environnement. Quels droits pour le vingt-et-unième siecle? Études en hommage à Alexandre Kiss, Paris, 1998, 611-652, pp. 611-614. 18 BOE, 20 August 1982. 19BOE, 14 July 1987. 20 Ramsar Convention, Preamble, paragraphs one and five. 21A. Ch. Kiss, "La protection internationale de la vie sauvage", AFDI, t. XXVI (1980), 661-686, p. 686.
22 International cooperation as a postulate of the general duty of States to protect the environment is enshrined in the Stockholm Declaration on the Human Environment (Principle 24, Doc. A/Conf.48/14 and Corr. 1) and is addressed in several documents [see Preamble and Principle 21 of the World Nature Charter, AG. Res. 37/3, 28 October 1982. Doc. A/37/51 (1982)] and Principle 7 of the Rio Declaration on the Environment and Development [U.N. Doc. A/CONF.115/5 and I.L.M., vol. XXXI (1992-4), 874-880, p. 879]. The specific elements of this principle include not only the duty to promote treaties and other international instruments for this purpose, but also the duty to exchange information relating to the protection of the environment, to undertake other initiatives to that end, and the duty of States to notify other States and offer assistance in situations where there is a risk of environmental damage. The Ramsar Convention may therefore be seen as one of the first international treaties to incorporate that principle. z3 Art. 2.4 of the Convention. Spain has added the following wetlands to its original List: Tablas de Daimiel National Park, Donana National Park and Laguna de Fuente de Piedra (A. Troya and M. Bernues (Eds.), Humedales espanoles en la lista del Convenio de Ramsar, ICONA, Madrid, 1990). By the year 2000, 115 States had acceded to the Ramsar Convention, and 970 wetland areas totalling 70 million hectares had been declared of international importance. Spain has added to the Ramsar Wetlands List a total of 38 zones covering a total of 158,288 hectares. These are classified by Autonomous Communities, and most of them have been declared "Special zones for protection of birds" (SZPBs) (see section III.1.A infra). MMA, Actuaciones Publicas, p. 21.
24 The functions of the Ramsar permanent office include the following: to act as depositary of Wetland Lists, to receive information from Parties on any changes in the ecological conditions of registered wetlands, to pass on to interested Parties the recommendations of conferences on the Wetland Lists, and to assist in the convening and organization of the Conferences (arts. 6 and 8.2 of the Convention). Sec C. de Klemm, "Voyage a l'interieur des conventions internationales...", loc. cit., pp. 645 and 649. 25 See section IV.2.C infra. The Strategy is the general framework indicating the guidelines to be followed by future sector plans and specific programmes for conservation of biodiversity, and also the measures to be instituted by the various Spanish public authorities concerned - Spanish Environment Ministry, Department of Nature Control, Spanish strategy for conservation and sustainable use of biological diversity, 1998 (hereafter, DGCN, Spanish biodiversity strategy). See in particular, "El estado actual de los instrumentos para la conservaci6n de los humedales", 48-73, pp. 60-73 and "Humedales de Ramsar", pp. 70 and 97. 26 bore, 1 July 1982. The Convention takes up the idea, developed in the 1930s and consolidated in national legislation in the 1970s, of comparing landscapes and other elements of nature with man-made historical and artistic assets. Thus, a new need arises - to protect nature in the same way as only man's historical heritage had been protected hitherto (see art. 45.2 of the Spanish Constitution of 1931, note 12 supra). For that purpose, the Seventeenth Meeting of the UNESCO General Conference adopted the Convention in question in 1972. each participating State will submit an inventory of items of cultural and natural heritage located in their territories to the World Heritage Committee, which is dependent on UNESCO. This inventory will not be exhaustive and will contain documents indicating where these assets are situated and their points of interest. It will also be used to compile a list of the World Heritage and another list of the Endangered World Heritage, to be reviewed every two years. Ibid. See note 179 infra.
28 For the conservation of nature as a part of world heritage, and of species and habitats in particular, see A. Ch. Kiss, "La notion de patrimoine commun de 1'humanite", Recueil des Cours, t. 175 (1982), 99-256, pp. 175-176 and A. Blanc Altemir, El patrimonio comun de la humanidad. Hacia un regimen juridico intemacional para su gestion, Barcelona, 1992, pp. 170- 175 and 178-189. z9 BOE, 29 October 1985, with corrections in BOE, 11 December 1985. The amendments and corrections of errors were published in BOE, 11 February 1987, 7 April 1987, 19 September 1990. For Appendices I and II of the Convention incorporating amendments by the Conference of Parties in 1985, 1988, 1991, 1994, 1997 and 1999: BOE, 10 February 2000. It was approved on behalf of the EEC by Council Decision of 24 June 1982 (OJEC L 210, 19 June 1982; EE 15/03, p. 215). 30 Preamble, paragraphs four, five and six of the Bonn Convention. Ibid. The commitments negotiated within the framework of that Convention included the Agreement on the Conservation of Migratory Waterbirds of Africa and Eurasia of 1995, ratified by Spain on 12 March 1999 and the Agreement on the Conservation of Cetaceans in the Black Sea, the Mediterranean Sea and Contiguous Atlantic Area, 1996, ratified by Spain on 2 February 1999. See MMA, Actuaciones Publicas, p. 6 and BOE, 11 December 2001. On species as cross-border resources, see A. Ch. Kiss, "La protection internationale de la vie sauvage", loc. cit., p. 680 and C. Fernandez de Casadevante Romani, La proteccion del medio ambiente en Derecho internacional, Derecho comunitario europeo y Derecho espanol, Vitoria-Gasteiz, 1991, pp. 237-245, especially 244-245. 3i In the treaties by which Spain is bound, there are also examples of supplementary conservation measures ex situ. One such is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington, 3 February 1973, to which Spain acceded in 1986. This convention promotes the protection of wild species of flora and fauna by means of international trade regulations; in other words,
cont. trade is only allowed in specimens where this does not threaten the survival of the species concerned (BOE, 30 July 1986 and 10 August 1991). For amendments to Appendices I, II and III approved at the Tenth Meeting of the Conference of Parties at Harabe, 1997 (BOE, 13 April 1998). The EEC had previously signed and adopted this Convention by virtue of EEC Regulation 3626/82,3 December 1982 (OJEC L 384, 31 December 1982). At Community level, the applicable regulation is CITES 338/97, 9 December 1996, ,governing the protection of species of flora and fauna by means of trade control. This was amended by regulation (EC) 939/97, 26 May (OJEC L 140, 30 May 1997) and also partially amended by Regulation (EC) 2307/97, 18 November (OJEC L 325, 27 November 1997). 3z BOE, 14 February 1997. 33 J. Juste Ruiz, Derecho Internacional del Medio Ambiente, Madrid, 1999, p. 69. 3a Art. 194.5. of the Convention. With respect to the provisions dealing with the exploitation and conservation of species, particularly certain groups of species such as marine mammals or anadromous, catadromous and sedentary species, the clause providing for an exclusive economic zone where exploitation is permitted is not applicable until optimum utilization of the species is achieved. Arts. 63-68, 116 b) and 120. Ibid. 3s The Convention constitutes a major step forward from preceding treaties as regards the peaceful settlement of disputes in order to guarantee the integrity of the terms, control of their application and implementation by the parties. The system involved is based on the free choice of means and allows for compulsory settlement procedures through the courts (arts. 279-299 and Appendices V-VIII of the Convention). See V. Carreno Gualde, "El arreglo pacifico de las controversias internacionales en el ambito de la proteccion del medio marino contra la contaminaci6n", ADI, vol. XVI (2000), 39-64, pp. 53-59.
36 Statute in Appendix VI of the Convention. 3� For relevant comments, see J. A. Pastor Ridruejo, "La soluci6n de controversias en la III Conferencia de las Naciones Unidas sobre el Derecho del Mar", REDI, vol. XXX (1977), 11-32, pp. 13-30 and R. M. Riquelme Cortado, "El arreglo pacifico de controversias internacionales, con especial referencia a la politica convencional espanola", Cursos de Derecho Internacional de Vitoria-Gasteiz (1998), 213-313, pp. 298-300. 3$ Addressing the General Assembly on 5 November 1992, Ambassador Yafiez Barnuevo, the Spanish Representative at the UN, declared that Spain "is prepared to contribute in the most effective way possible to the practical application of the agreements arrived at in Rio. The first step, nationally, was the setting up of an interministerial Committee in which the various departments are represented. The Committee has already begun its work of following up and implementing the agreements reached at the Conference as far as Spain's participation is concerned". UN Doc. A/47/PV.58, pp. 51-52. See "Spanish Diplomatic and Parliamentary Practice", SYIL, vol. II (1992), pp. 179-180. The Spanish strategy for biodiversity is the principal direct outcome of the work of the interministerial committee referred to. See note 25 supra. 39 principle 7 paragraph two states that "since they have contributed to different extents to the degradation of the world environment, States have common but differentiated obligations. The developed countries acknowledge the responsibility that rests with them in an international quest for sustainable development, in view of the pressures that their societies exert upon the world environment and of the technologies and financial resources that they possess". See note 22 supra and Rapport de la Conference des Nations Unies sur 1 'environnement et le Developpement, vol. I, Resolutions adoptees por la Conference (Rio de Janeiro, 2-14 June 1992), 3 vols, New York, 1993. 40 Principle 3. Ibid. U.N. Doc. A/CONF. 151/26/Rev.l (Vol. I). Although like other soft law documents these instruments are not legally binding on States, they possess an undeniable political value and in practice are essential elements in the development of regulations on the subject.
42 Chapter 15 deals exclusively with the protection of biological diversity. See note 1 supra. The implementation of this programme was analysed by the UN General Assembly in a special session on 23-27 June 1997 (GA. Res. 51/181 20 January 1997). Another evaluation session is scheduled for the year 2002 (GA. Res. S-19/2 19 September 1997). a3 See note 2 supra. On the relationship between the approaches adopted to biological diversity and protection of ecosystems, see M. C. Maffei, "The relationship between the Convention on Biological Diversity and the other International Treaties on the Protection of Wildlife", ADI, vol. XI (1995), 129-169, pp. 157-158. 44 BOE, 11 February 1997. The Conference further proposed the drafting of a Forestry Convention, , which is still pending, to include the "International Programme of Cooperation for Sampling and Evaluation of the Effects of Atmospheric Pollution on Forests" (ICP/Forest). 45 Arts. 8 and 9.d, Ibid. However, the Convention contains no list of areas to be protected. In the course of negotiations on the Convention it was mooted that "there should be caution in the development of Global Lists, because such a list has the potential to undermine areas not on the list". Annex I to the Report of the "Ad Hoc" Working Group on the Work of its Third Session in Preparation for a Legal Instrument on Biological Diversity on the Planet, Doc. UNEP/Bio.Div. 3/12 of 13 August 1990. as Article 22 of the convention states generally that its provisions "do not affect the rights and obligations of every Contracting Party arising out of any existing international agreement, except where the exercise of such rights and the fulfilment of such obligations may seriously harm or endanger biological diversity". This position differs from that of the Convention on Maritime Law (art. 311.1) as it relates to the Geneva Conventions of 29 April 1958.
47 See notes 25 and 38 supra. 48 Art. 27 and Appendix II (arbitration and conciliation), Convention on Biological Diversity. 49 Art. 27.3.b). Ibid. Of the 174 Parties to the Convention, only Austria, Cuba, Georgia and Latvia accepted this procedure for the settlement of disputes. so Given that the aspiration to create a special jurisdiction in respect of environmental protection generally has yet to be realized, it is important to note that in 1993 the ICJ inaugurated a permanent special Section devoted to the environment, as provided in its Statutes (art. 26.2). R. M. Riquelme Cortado, "Constituci6n por la CIJ de una Sala especiaIizada en medio ambiente", REDI, vol. XLVI (1994), 895-899, pp. 897-898. sl BOE, 6 November 1990. See J. A. Pastor Ridruejo, "The Spanish Declaration of Acceptance of the Compulsory Jurisdiction of the International Court of Justice", SYIL, vol. I (1991), 19-34, pp. 25-32. s2 For the conventions concluded by Spain in the sphere of bilateral relations with neighbouring states, see C. Fernandez de Casadevante Romani, La proteccion del medio ambiente en Derecho internacional, Derecho comunitario europeo y Derecho espanol, op. cit, pp. 321-329, "La proteccion internacional del medio ambiente", loc. cit, pp. 306-313 and "La cooperaci6n transfronteriza: su aplicaci6n a las ciudades de soberania", in I. Garcia Rodriguez (Ed.), Las ciudades de soberania espanola: respuesta para una sociedad multicultural, Alcald de Henares, 1999, 131-152, p. 140. s3 BOE, 1 October 1986, 7 June and 5 December 1988. For the treaty signed on 5 May 1997, listing the endemic species of Canary Islands flora proposed by Spain for inclusion in Appendix I (BOE, 25 May 1997), and the amendments to Appendices I and II, which should be included in Appendix I of the Convention (BOE, 7 June 1997). The Community acceded to the Berne Convention by Council Decision of 3 December 1981 (OJEC L 38, 10 February 1982).
54 For species and habitats targeted for conservation, see Appendices I-III of the Convention. See also comments on the Berne Convention in the Conclusions of Attorney General Walter Van Gerven, presented on 5 December 1990 (ECCJ, Case C- 57/89, Commission v. German F.R.), Rec. I (1991-2), pp. 1-907-908. ss See arts. 1 and 10, and Appendices II and III of the Convention. 56 Outwith the sphere of land habitats, Spain is a party to a number of important regional treaties applying to marine habitats. These include the Instrument of Spanish Ratification of the Protocol on Specially Protected Areas and Biological Diversity in the Mediterranean and its appendices, adopted respectively in Barcelona on 10 June 1995 and in Monte Carlo on 24 November 1996 (BOE, 18 December 1999). See also Council Decision 99/800/EC of 22 October 1999, on conclusion of this protocol, and the acceptance of the related appendices OJEC L 322, 14 December 1999. For Spanish doctrine, see V. Carreno Gualde, La proteccidn internacional del medio marino mediterrdneo, Madrid, 1999, 89-149, V. Bou Franch, "Hacia la integraci6n del medio ambiente y el desarrollo sostenible en la region mediterranea", ADI, vol. XII, 201-251, pp. 230-234 and 237-242, and V. Bou Franch and M. Badenes Casino, "La proteccion internacional de zonas y especies en la region mediterranea", ibid, vol. XIII (1997), 33- 130, pp. 72-85. Again regarding regional treaties, Spain has ratified the Antarctic Treaty, Washington, 1 December 1959 (BOE, 26 June 1992). This treaty has provided the framework for promotion of the Convention on the Conservation of Antarctic Marine Living Resources, (CCAMLR) Canberra, 20 May 1980 (BOE, 25 May 1985) and the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), Madrid, 4 October 1991 (BOE, 18 February 1998). Also, in 1994 Spain ratified the Oslo and Paris Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), Oslo-Paris, 22 July 1992, on protection of the North West Atlantic marine environment, protocol V of which, on biodiversity, was signed in 1998 (BOE, 24 June 1998). See MMA, Actuaciones Publicas, p. 4 and J. Juste Ruiz, op. cit., pp. 240-257 and "La Convention pour la protection du milieu marin de l'Atlantique Nord-Est", RGDIP, t. 97 (1993), 365-393, pp. 369-382. Readers will not require an exhaustive list to realize the importance and the significance of this. 57 senegal (since 13 April 1987) and Burkina Faso (since 14 June 1990) are Parties to the Convention. Other international instruments have also used this model. For example, the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean is not limited to the Mediterranean region, nor is it exclusively binding on its signatories. The purpose of its provisions is to protect endangered or threatened species throughout the territory in which they make their lives.
58 The other members of Group II are: Slovenia, Italy, San Marino and Monaco. For full details of Spanish strategy and participation, see M. Dejeant-Pons, "La strategie paneuropeene de la diversite biologique et paysagere", in Les hommes et l'environne- ment. Quels droits pour le vingt-et-unieme siecle? Etudes en hommage a Alexandre Kiss, op. cit., 583-609, pp. 583-586, 595-598 and 604. s9 See notes 25 and 38 supra. 60 in exterior relations, the European Community has concluded or signed various international treaties which recognize that habitats are an international asset and that there is a duty to protect them. In this connection see notes 2, 29, 31, 53 and 56 supra. sl OJEC L 103, 25 April 1979. See also Commission Directive 49/97 EC, 29 July, amending Council Directive 79/409/EEC (OJEC L 223,13 August 1997). The loss of wildfowl living spaces resulting from certain land planning initiatives was one of the grounds cited in the recommendations of the Commission prior to the Directive. These documents acknowledge the "international dimension" of the problem and urge member states to accede to the relevant international treaties, in particular the Paris Convention (1950) and the Ramsar Convention (1971). Commission Recommendation 75/651 of 20 December 1974 on protection of architectural and natural heritage, and Commission Recommendation 75/66/EEC of 20 December 1974 on protection of birds and their living spaces (OJEC L 21, January 1975).
62 Preamble to the Birds Directive. See Conclusions of Attorney General Walter Van Gerven presented on 5 December 1990 (Commission v. German F.R., case C-57/89), Rec. I( 1991-2), p. 1-903. 63 In this connection see Principle 7 of the Rio Declaration. 64 See section II.2.A)a) supra. 65 Art. I, point g.l of the Bonn Convention. In this connection, see Conclusions of Attorney General Walter Van Gerven presented on 5 December 1990 (Commission v. German F.R., case C-57/89), Rec. 1 (1991-2), pp. 904-905. 66 On this subject, see J. Diez-Hochleitner, "La interdependencia entre el Derecho Internacional y el Derecho de la Union Europea" Cursos de Derecho Internacional de Vitoria-Gasteiz (1998), 39-88, pp. 43-48 and 67-68; and C. Jimenez Piernas, "El incumplimiento del Derecho comunitario por los Estados miembros cuando median actos de particulares: una aportacion al debate sobre la interdependencia entre Derecho comunitario y Derecho internacional", RDCE, vol. 7 (2000), 15-48, pp. 15- 21. 67 Art. 1 of the Birds Directive. 68 Art. 3. (ibid). There is also provision for special protection in wetlands, especially those used by migratory species. There is additionally a policy of indirect protection entailing the establishment of bans on the trading of products derived from certain species and evaluation of the environmental impact of certain public and private projects on wild birds and their habitats (Art. 4, ibid).
69 Art. 4 and Appendices I and II (bid) and note 80 infra. 70 In addition, for the requisite assessment States must inform the Commission of special protection and conservation measures as required by the Directive. On the obligation to inform the Commission, see ECCJ, dec. of 17.01.1991, Commission v. Italy, case C- 334/89, Rec. I (1991-1), 102-106, p. 106, b.i.l. 9. 71 OJEC, C 247, 21 September 1988. 72 see note 3 supra. It should be remembered that 1992 is the year that the TEU was adopted. The Treaty expressly incorporated protection of the environment as one of the institutional objectives of the Community, and it became Community policy. See arts. 2, 3, 174-176 and 95 TEU and section IIL3 infra. '3 Preamble, Habitats Directive. The principle that "he who pollutes, pays" is, of all the principles of international environmental law, the one that verges closest on the sphere of economics. Briefly, the purpose of this principle is to ensure that the person causing pollution is made to defray the cost of measures to prevent and combat it, without in principle receiving any compensatory financial aid. It was initially limited to the costs of measures implemented by the owner of a polluting industrial plant to prevent and reduce such pollution. Over time, it has come to be applied to other types of cost such as administration, payment of damages and compensation, or to other situations such as cases of environmental pollution. H. Smets, "Le principe polluer payeur, un principe economique erige en principe de droit de 1'environnement?", RGDIP, t. 97 (1993), 339-364, pp. 340-355. 74 Sec note 3 supra. The principlc that "he who pollutes, pays" was articulated in Principle 16 of the Rio Declaration. Since then it has appeared in sector and regional
conventions on protection of the environment. J. Juste Ruiz, op. cit., pp. 82-83. 75 on the relationship between the cited Directives, see W. P. J. Willis, "La protection des habitats naturels en droit communautaire", Cahiers de Droit Europien, no 3-4 (1994), 388�30, pp. 413�tl4. 76 see note 8 supra. The Habitats Directive rules that the Natura 2000 network is to be composed of sites containing types of natural habitat and of species listed in the Appendices. On the basis of the criteria set forth in Annex III of the Directive and of the relevant scientific information, each member state must put forward a list of sites indicating the types of natural habitat and the habitats of autochthonous species. 77 See note 7 supra, Preamble to the Habitats Directive and comments by N. de Sadeleer, "La directive 92/43/CEE eoncemant la conservation des habitats naturels ainsi que de la faune et de la flore sauvages: vers la reconnaissance du patrimoine naturel de la Communaute Europeenne" Revue du Marche Commun et de 1 'Union Europienne, n. 364 (1993), 24-32, p. 27. 78 For this decision, the European Commission followed a methodology developed by The European Topic Centre on Nature Conservation. See S. P. Johnson and G. Corcelle, The Environmental Policy of the European Communities, 2nd ed., London/ The Hague/Boston, 1996, pp. 310-311. �9 These notices were sent in June 1992. See note 70 supra. 80 In exceptional cases where the Commission finds that a site containing a type of natural habitat or a species of priority status and classified as indispensable is not included in the national list, there is a procedure whereby the State concerned and the Commission will compare notes to check the scientific data used by either party. If the
cont. discrepancy still stands at the end of the verification period, the Commission will submit a proposal to the Council regarding its selection as a site of importance to the Community. Another important achievement is the inclusion in the Directive of precautionary protection; this means that for the duration of the verification procedure until a final decision is reached, the protected site concerned will come under the provisions of the Directive. The Council has consistently adapted the Habitats Directive to the dictates of scientific and technical progress by means of other Directives, among them Directive 97/62 EC. In the same vein, the Commission has issued a series of decisions approving the various standard forms for remittal of the pertinent information. One of the means used by the Commission to control the implementation of the Directive are the reports that non-member states are required to compile every six years. These reports must include adequate information on all conservation measures adopted and an assessment of the effects of these measures on the state of conservation of habitats and species (art. 17 of the Habitats Directive). 82 Regulated by arts. 226-228 TEC. ECCJ case law contains decisions on preliminary requests for interpretation of the relevant EC regulations (regulated in art. 234 TEC). The nature of the cases originating these procedures varies: criminal proceedings for hunting, capture or trading of protected species, and administrative appeals by ecologist organizations against the national legislation on species. There are no cases entailing interpretation on issues of habitats; all the appeals have been on the interpretation of provisions on the protection of species. The decisions referred to are: ECCJ, dec. of 23.05.1990, case 169/89, Rec. I (1990-5), 2160-2165; ECCJ, dec. of 19.01.1994, case C-435/92, Rec. I (1994-1), 88-98; ECCJ, dec. of 8.02.1996, case C- 202/94, Rec. I (1996-1/2), 380-388; ECCJ, dec. of 8.02.1996, case C-149/94, Rec. I (1996-1/2), 322-329; ECCJ, dec. of 7.03.1996, case C-118/94, Rec. I (1996-3), 1242- 1252 ; and ECCJ, dec. of 12.12.1996, case C-10/96, Rec. I (1996-12), 6793-6802. s3 In this connection see the following Decisions: ECCJ, dec. of 8.07.1987, Commission v. Belgium, case C-247/85, Rec. I (1987-7), 3057-3072; ECCJ, dec. of 8.07.87, Commission v. Italy, case C-262/85, Rec. I (1987-7), 3094-3107; ECCJ, dec. of 17.07.1987, Commission v. German Federal Republic, case C-412/85, Rec. I (1997-8), 3514-3519; ECCJ, dec. of 17.09.1987, Commission v. Netherlands, case C-236/85, Rec. I (1987-9), 4005�012; ECCJ, dec. of 28.04.1988, Commission v. France, case C-254/ 85, Rec. I (1988-4), 2261-2270; ECCJ, dec. of 15.03.1990, Commission v. Netherlands, case C-339/87, Rec. I (1990-3), 878-888; ECCJ, dec. of 17.01.1991, Commission v.
cont. Italy, case C-334/89, Rec. I (1991-1), 102-106; ECCJ, dec. of 17.01.1991, Commission v. Italy, case C-157/89, Rec. I (1991-1), 83-91. the relevant decisions are: ECCJ, dec. of 28.02.1991, Commission v. German Federal Republic, case C-57/89, Rec. I (1991-2), 924-933; ECCJ, dec. of 2.02.1993, Commission v. Spain, case C-355/90, Rec. I (1993-8), 4272-4286; ECCJ, dec. of 19.05.1998, Commission v. Netherlands supported by the German Republic, case C-3/ 96, Rec. I (1998-5), 3054-3074; ECCJ, dec. of 18.03.1999, Commission v. France, as. C-166/97; ECCJ, dec. of 15.11.1999, Commission v. France, case C-96/98; ECCJ, dec. of 6.04.2000, case C-256/98, Commission v. France. 85 In this connection, see the comments of M. Diez de Velasco Vallejo, Aspectos juridicos actuales de la proteccion del medio ambiente en la Comunidad Europea, y en especial, la contribuci6n de su Tribunal de Justicia, Granada, 1991, pp. 34—41 and L. Riechenberg, "La Directiva sobre la proteccion de las aves salvajes: un hito en la politica comunitaria del medio ambiente", RIE, vol. 17 (1990), 369-402, pp. 388-392. 86 See ECCJ, dec. of 8.07.1987, Commission v. Belgium, case 239/85, Rec. I (1986-12), p. 3645, b.i.l. 9 and comments by K. Riechenberg, "La Directiva sobre la proteccion de las aves salvajes: un hito en la politica comunitaria del medio ambiente", RIE, vol. 17 (1990-2), 369-400, p. 377. Particularly relevant here is the ECCJ Decision of 11 December 1997 in Case C-83/97. This was an appeal in a complaint of non-compliance lodged by the Commission against the German Federal Republic for failure to meet the obligations incumbent on it, in that it did not adopt the legislative, regulatory and administrative measures required to conform to the Habitats Directive (art. 23) within the stipulated time (2 years). The problem is therefore one of transposition. The German federal government did not deny having instituted all necessary measures to adapt its internal law to the Directive. It further declared that since the expiration of the said period the competent authorities had been applying the Directive directly and that the national statutes then in force were interpreted in accordance with EC law. The ECCJ considered this insufficient, allowing the Commission's appeal and declaring that the German Federal Republic had failed to meet its obligations under the Habitats Directive (ECCJ, dec. of 11.12.97, Commission v. German F.R, case C- 83/97), b.i.l. 8 and 9. 87 See ECCJ, dcc. of 15.03.1990, Commission v. Netherlands, case 339/87, Rec. I (1990- 3), 878- 888, b.i.l. 6 and 7.
z See section IV. 1 and 2, especially IV.1.8) infra. 89 See ECCJ, dec. of 2.08.1993, Commission v. Spain, case C-355/90, Rec. I (1993-8) pp. 4276- 4277, ff. 11. Cf. the position of the Spanish Constitutional Court (hereafter, TC), TC Decision 64/1982, 4 November, basis in law (hereafter, b.i.l.) 2 (BOE, 10 December 1982) and TC Decision 102/1995, 26 June, b.i.l. 4 (BOE, 31 July 1995). See section IV.I.A infra. 90 See ECCJ, dec. of 8.07.1987, Commission v. Italy, case C-262/85, Rec. 1(1987-7), 3094-3107. 91 For comments on this decision, see C. Fernandez de Casadevante Romani, "El incumplimiento del Derecho comunitario en las Marismas de Santofia" (Comentario a la Sentencia del TJCE de 2 de agosto de 1993. Comision c. Espana, C-355/90), RIE, vol. 21 (1994), 137-156. 92 See section IV.2.C) infra. ., � ,t, ..h93 On territorial extension, the Court took the view that "it must be placed on record that the territory of the Nature Reserve does not embrace the whole of the marshes, there being a total of 40,000 sq.m. excluded. However, this terrain is especially important for aquatic birds under threat of extinction according to article 4, section 1 point a) of the Directive, since it has been shown that the spaces available for nesting in the other zones near the coast are becoming progressively reduced". ECCJ, dec. of 2.08.1993, Commission v. Spain, case C-355/1990, Rec.,1 1 (1993-8), p. 4279, ff. 29. In this connection, see ECCJ, dec. of 19.05.1998, Commission v. Netherlands, case C-3/96, b.i.l. 39 and 44.
94 Regarding the legal status of protection, the Court opined that "it should be further noted that they have not ordered the necessary protective measures, even for the marshes situated in the classified zone. Thus, from the record of proceedings it appears that the competent authorities have not approved a Plan for the Regulation of Natural Resources (PORN) as provided in article 4 of the Act. And yet such a Plan is of primary importance for the protection of wildfowl and is intended to identify the activities that constitute a disturbance of the ecosystem of the zone". The Court concluded: that "given the failure to institute such essential measures as those required to order the zone or to regulate the use of the marshes and the activities carried on there, they cannot be said to have met the requirements of the Directive". ECCJ, s. 2.08.1993, pp. 4279- 4280, b.i.l. 30. On the allusions to the PORN in the Decision, see comments by C. Fernandez de Casadevante Romani, "El incumplimiento del Derecho comunitario en las Marismas de Santona...", loc. cit., p. 149, note 30. 9s In this context, the population trends of species or European protection levels are relevant to both types of obligation. In this connection, see Conclusions of Attorney General Nial Fennelly, 9 October 1997, [ECCJ, dec. of 18.05.1998, Commission v. Netherlands, case C-3/96], Rec. I (1998-5), 3033-3053, p. 3045. Article 4 of the Birds Directive as modified by the Habitats Directive deals with measures for the conservation of habitats of birds mentioned in Appendix I as the target of conservation measures to ensure their survival and reproduction within their area of distribution. These obligations include the classification of SZPBs and the institution of appropriate measures to prevent the contamination or deterioration of habitats within these zones. An important, and moreover recent, decision (February 1999) on the subject was that of Case C-166/97. In 1992, the Commission sent a summons to the French government for failing to comply with these Directives in respect of the Seine estuary, to wit: firstly, the area of the protection zone created by France in 1990 was insufficient to meet the pressures of bird population, and secondly, the legal protection regime was not satisfactory. The Commission further indicated that the construction of a titanium gypsum store in the vicinity of the zone contravened the Birds Directive. The French government replied that the provisions were transitional [Agreement of 11 April 1985 between the French Ministry of the Environment and the autonomous ports of Le Havre and Rouen] and that it intended to introduce measures enabling it to guarantee, both in the short term and permanently, the protection of the most sensitive zones in the estuary. France further argued, among other things, that the Commission had not demonstrated that France had made no effort to prevent the pollution or deterioration of the habitat where the titanium gypsum plant was built. In fact, as regards pollution the Commission itself recognized that the plant had no significant effects. The ECCJ partially upheld the Commission's appeal for non-compliance and declared that the French Republic had failed to honour its obligations under article 4 sections 1 and 2 of the Birds Directive, in that it did not classify a sufficiently large area of the Seine estuary as a special protection zone and did not institute measures to provide the classified special protection zone with an appropriate legal regime. ECCJ, dec. of 18.03.1999, Commission v. France, case C-166/97, b.i.l. 15 and 26.
96 See notes 2, 22 and 40 supra. 97 For all this paragraph, see N. Navarro Batista, "La protecci6n del medio ambiente", in M. Lopez Escudero and J. Martin y Perez de Nanclares (coords.), Derecho comunitario material, Madrid, 2000, Ch. 20, 283-230, pp. 289-290. 98 Regulated by arts. 32-38 TEC. For a comprehensive review of the CAP and the outlook for the period 2000-2006 (Agenda 2000), see Doc. COM EC (97) 2000 final. 99 For the Spanish administration, "there is nothing to prevent the authorities within their respective purviews, parallel to the establishment of the Natura 2000 network as a set of spaces structuring Spanish natural and rural territory on ecological principles in the form of Special Conservation Zones, from designing another coherent network closely linked to the first, but in this case a network of Special Rural Development Zones". DGCN, Informe 1999, p. 18. loo See Preamble to the Habitats Directive.
�°� Regulation 2081/93, OJEC L 193,1 December 1993 and Doc. COM EC(97) 2000, in particular the last part. Community structural funds are financial instruments whose essential purpose is to prevent the single market from negatively affecting the least developed regions by reducing the main existing regional imbalances so as to achieve economic and social cohesion of the Community as a whole. For comments on financial instruments for Community action in the sphere of environmental protection, see V. Carreno Gualde, op. cit., pp. 146-150. ioz As in the other EC countries, the tendency in Spanish rural areas has been a drastic reduction in the number of farms and the workers in the sector. Regarding the area of available farmland in Spain and its socio-economic importance, see J. Lamo de Espinosa, La nueva politica agraria de la Uni6n Europea, Madrid, 1998, pp. 16 and 55. 103 The Cohesion Fund was set up to support environmental projects and trans-European transport infrastructure networks (art. 161 TEC). See Council Regulation I 164/94 of 16 May 1997 creating the Cohesion Fund, OJEC L 130, 25 May 1994. This Fund is intended for those states of the Union whose per capita GNP is less than 90 per cent of the EC average. Since 1993, the beneficiaries have been Spain, Greece, Portugal and Ireland. A. Valle Galvez, "La intervencion financiera estructural", in M. Lopez Escudero and J. Martin y Perez de Nanclares (coords.), op. cit., 353-367, pp. 366-367.
\04 See Appendix 1. 105 0. Alzaga Villaamil reminds us that the interpretative value of the Preamble to the Constitution lies in the fact of its being "a solemn declaration of intent collectively made by the constituent power". O. Alzaga Villaamil, La Constitucion espanola de 1978 (Comentario sistem6tico), Madrid, 1978, p. 69. 106 See Appendix 1 and TC Decision 102/1995, 26 June, b.i.l. 4 (BOE, 31 July 1995). 107 A. E. Perez Luno, "Articulo 45: medio ambiente", loc. cit., p. 252. 108 R. Martin Mateo, Tratado de Derecho Ambiental, vol. I, Madrid, 1991, p. 150 and G. Escobar Roca, La ordenacion constitucional del medio ambiente, Madrid, 1995, p. 66. Following this restrictive criterion, the Constitutional Court considers that the catalogue of fundamental rights embraces only those contained in Chapter II section 1 of the Spanish Constitution. In this connection, see TC Decision 161/1987, 27 October, which classifies conscientious objection as an autonomous but not a fundamental constitutional right. That interpretation would apply to the rights referred to in articles 30 to 38 of the Constitution (Chapter II, section 2), whereas those contained in articles 39 to 52 (Chapter III) would be neither autonomous nor fundamental (BOE, 12 November 1987). For a position opposed to this, see A. E. Perez Luno, Derechos humanos. Estado de derecho y Constitucidn, 5a ed., Madrid, 1995, pp. 83-84 and loc. cit, pp. 257-259, and J. Jordano Fraga, La proteccion del derecho a un medio ambiente adecuado, Barcelona, 1995, p. 81. The latter position, which is also grounded on the Spanish Constitution, associates the right to the environment with the "right to quality of life", a fundamental right enshrined in the socio-economic provisions (art. 45.2). This idea is supported by the Supreme Court (hereafter TS) (3rd Division), 7 November 1990. 109 See Appendix 1. 110 One international consequence of the TC's refusal to admit an appeal for a declaration of fundamental rights was a Decision of the ECHR against Spain on 9 December 1994, based upon breach of article 8 of the European Convention on Human Rights, Rome 1950 (BOE, 10 October 1979), Case Lopez Ostra v. Spain. Ms. Lopez Ostra appealed to the European Commission on Human Rights (ECHR) after being forced to abandon her home and later purchase another house for environmental reasons -
cont. namely, the pollution caused by a solid and liquid waste treatment plant built with public subsidies in the town of Lorca. Before lodging this appeal. Ms. Lopez Ostra sought the protection of fundamental rights in Spain (articles 15, 17, 18, 19 and 45 of the Spanish Constitution), but received an adverse verdict in the High Court of Murcia on 31 January 1989. The TS dismissed her appeal in a decision of 27 July 1989. In both instances, the Public Prosecution reported favourably on Ms. L6pez Ostra's case. Finally, the TC declared that the appeal lodged for a declaration of fundamental rights was inadmissible in that it was manifestly groundless. Eur. Court HR, L6pez Ostra v. Spain, Judgment of 9 December 1994, series A n. 303-C, pp. 41-66. We would also note at this point that the Spanish legal system lacks any means of ensuring execution of Decisions of the European Court of Human Rights. See Dissenting Vote of Gimeno Sendra in TC Decision 245/1991 16 December, on the appeal for a declaration of fundamental rights submitted by Barbera, Messegue and Jabardo. BOE, 15 January 1992. On the doctrine, see D. Linan Nogueras, "Efectos de las Decisions del Tribunal Europeo de Derechos Humanos y Derecho espanol", REDI, vol. XXXVII (1985), 355- 376, pp. 367-374, C. Escobar Hernandez, "Problemas planteados por la aplicacion en el ordenamiento espanol de la Decision Buit6 (Comentario a la Decision del Tribunal Constitucional espanol 245/1991, de 16 de diciembre)", RIE, vol. 19 (1992), 139-163, pp. 148-163 and J. Ferrer Lloret, Responsabilidad Internacional del Estado y Derechos Humanos, Madrid, 1999, 61-63. 111 see Appendix 1. RTC Decision 36/1991, 14 February 1991, b.i.l. 5 (BOE, 18 February 1991). 113 sin a Decision of 25 April 1989 overturning the appealed decision which upheld the right of a householder to oblige his/her local authority to take the necessary steps to prevent problems arising out of deficiencies in waste water disposal facilities, the TS took the view that "although coming under the heading of guiding principles of social and economic policy, the precepts enshrined in Title I Chapter III of the Constitution are no mere programmatic guidelines applying only to political rhetoric or the empty words of the demagogue. Therefore, this article 45, like all the other articles in the said chapter, possesses regulatory force and compels public authorities, each in their own sphere, to put them into effect. Clearly, therefore, the appellant has every justification for bringing the issue here debated to the courts of justice".
114 TEC Decision TC 64/1982, 4 November, b.i.l. 2 (BOE, 10 December 1982). 115 TC Decision 102/1995, 26 June, b.i.l. 4 (BOE, 31 July 1995). However, in other decisions the TC has not hesitated to invoke the value of quality of life and the need to watch over the environment as legitimating constraints on property rights and other economic activities harmful to these values and constitutional goods. See TC Decision 227/1988, 27 November 1988, b.i.l. 7 (BOE, 23 December 1988), TC Decision 66/1991, 22 February 1991, b.i.l. 3 (BOE, 24 April 1991) and TC Decision 273/1993, 30 September 1993, b.i.l. 5 (BOE, 26 October 1993). "6 Given the need for development to be rendered compatible and harmonized with the environment, an effective system for the protection of biodiversity is contingent upon respect for the fundamental principles of international environmental law, in particular as regards sustainable development (see notes 22 and 40 supra) and evaluation of the environmental impact of projects that may significantly affect the medium. See Principle 11, C) of the World Nature Charter and Principle 17 of the Rio Declaration on the Environment and Development (see note 22 supra). For the application of that principle, see Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J., Reports 1997, pp. 67-68, para 112. 117 act. 45.1 and 2. Appendix 1. 118 are. 45.2. Ibid. "9 Art. 45.3. Ibid. 120 TC Decision 102/1995, 26 June, b.i.l. 7 (BOE, 31 July 1995).
�z� The situation is in fact worse if we consider that this distribution of competences does not entail an attendant distribution of subject matters. In the Constitution, the same environmental matters are subject to more than one different competence, the exception to this being competences relating to attributes of sovereignty (international relations, administration of justice, defence, etc.), which are the exclusive province of the State. The attribution of environmental competences to the CCAAs flows from the relevant Statutes of Autonomy and Decrees transferring functions. For the TC's position on matters of CCAA competence and transfer decrees, see TC Decision 329/ 1994, 1 December 1994, b.i.l. 6 (BOE, 18 January 1995). art. 148.1. 3°) and 9°) (see Appendix 1). Regarding the competences of the Central Administration and the CCAAs, see also arts. 2,137, 147.2.d), 149 and 150. Also, with regard to the non-transferability of competences attributed to the Central Adminis- tration and to the CCAAs by the Constitution, see TC Decision 167/1993, 27 May 1993, b.i.l. 2 (BOE, 21 June 1993). 123 art. 149.1. 23°). Also on this subject, see arts. 2, 137, 147.2.d) and 150. And again, see TC Decision 69/88, 19 April 1988, b.i.l. 4 and 5, on articles 148 and 149 (BOE, 5 May 1988). Regarding the problems of determining what is or ought to be "basic legislation", see S. Munoz Machado, Las potestades legislativas de las Comunidades Autdnomas, Madrid, 1981, p. 202. For details of the administrative organization of nature protection in Spain, see L. Kramer and R. Cortes, "La proteccion de la naturaleza", in J. Picon Risquez (coord.), Derecho medioambiental de la Uni6n Europea, Madrid, 1996, Cap. X, 249-272, pp. 250-252 and http://www.mma.es/ areainfor.htm#Organismos. 124 TC Decision 156/1995, 26 October 1995, b.i.l. 4 (BOE, 28 November 1995). See also TC Decision 16/1996, 1 February 1996, b.i.l. 2.E (BOE, 2 February 1996). Regarding the TC's interpretation on the scope of the legislative competences of the State and the CCAAs in matters of environmental protection, see TC Decision 64/ 1992, 4 November 1982 (BOE, 10 December 1982), TC Decision 170/1989, 19 October 1989 (BOE, 7 November 1989), Decision 149/1991, 4 July 1991 (BOE, 29 July 1991), Decision 102/ 1995, 26 de January 1995 (BOE, 31 July 1995), TC Decision 156/1995, 26 October 1995 (BOE, 28 November 1995) and Decision 13/1998, 13 January 1998 (BOE, 12 February 1998).
125 The Statutes of Autonomy of the CCAAs and the corresponding provisions dealing with their respective competences on environmental matters are as follows: Organic Law 3/1979, 18 December, on a Statute of Autonomy for the Basque Country (BOE, 22 December 1979), art. ll.a); Organic Law 4/1979, 18 December, on a Statute of Autonomy for Catalonia (BOE, 22 December 1979), art. 10.6; Organic Law 6/1981, 30 December, on a Statute of Autonomy for Andalusia (BOE, 11 January 1982), art. 15.7; Organic Law 5/1982, 1 July, on a Statute of Autonomy for the Valencian Community (BOE, 19 June 1982), art. 32.6; Organic Law 10/1982; 10 August, on a Statute of Autonomy for the Canaries (BOE, 16 August 1982), art. 32.12; and Organic Law 13/ 1982, 10 August, on Restoration and Enhancement of the Foral Regime of Navarra (BOE, 16 August 1982 and correction of errors, BOE, 26 August 1982), art. 57.c. 126 Organic Law 9/1992, 23 December (BOE, 24 December 1992). This Law transferred the relevant competences to the CCAAs of Asturias, Cantabria, La Rioja, Murcia, Aragon, Castilla-La Mancha, Extremadura, Balearics, Madrid and Castilla y Leon within the framework of basic State legislation, and, where appropriate and in the terms there established, the implementing legislation and the execution of "additional regulations for the protection of the environment" (art.3.b). 127 TC Decision 195/1998, 1 October 1998, b.i.l. 3 (BOE, October 1998). 128 In this connection, see TC Decision 64/1982,4 November, in judgment of Catalan Act 12/1981, 24 December on protection of sites of special interest affected by mining activities BOE, 10 December 1982); Decision 69/1982,23 November, in judgment of Catalan Act 2/ 1982, 3 May on protection of Garrotxa zone (BOE, 29 December 1982); Decision 82/1982, 21 December in judgment of Catalan Act 6/1982, 6 May classifying the Macizo de Pedraforca as a nature site (BOE, 15 January 1983).
129 TC Decision 102/1995, 26 June (BOE, 31 July 1995). The Decision refers to exclusive competences in respect of PNSs attributed by the following Statutes of Autonomy: Andalusia (art. 13.7); Aragon (art.35.15); Canaries (art. 30.16); Catalonia (art. 9.10); Navarra (art. 50.d); and Valencia (art. 31.10). See note 126 supra. i3o In the words of the TC (Decision 102/1995), "the determination of a physical ambit does not necessarily preclude the exercise of other competences in that space". In b.i.l. 4 of Decision 195/1998, 1 October, the TC recalled that "there can be no denying that, given its powers of basic legislation on the environment or legislation on procedure, or even in exercise of its functions relating to protection and conservation of public property as guardian thereof, the State may legitimately institute some of the regulatory provisions contained in any of the precepts of the Act at issue (Act 6/1992, 27 March, classifying the Marshlands of Santofia and Noja as Nature reserves). Nevertheless, it would be pointless and could even pervert the intention of the legislator to treat these regulations as equal and allow them to coexist in the legal system in isolation from the body of regulations in which they originated and in which their significance lies" (BOE, 30 October 1998). 13i The hierarchy of statutes is one of the principles underlying the entire Spanish legal system and enshrined in article 9.3 of the Spanish Constitution. Under this principle, our statutes are governed by an "order of hierarchy", J. D. Gonzalez Campos, L. I. Sanchez Rodriguez and P. Andres Saenz de Santa Maria, Curso de Derecho Internacional Publico, 2a ed., Madrid, 2002, p. 283. Also regarding the Spanish position on the reception and hierarchy of international regulations, see L. I. Sanchez Rodriguez, "Los tratados internacionales como fuente del ordenamiento juridico espanol", Cursos de Derecho Internacional Yitoria-Gasteiz (1994), 139-189, pp. 147- 166 and 170-175, and A. Remiro Brotons, "La Constituci6n y el Derecho Internacional", in Administraciones Publicas y Constitucion, Reflexiones sobre el XX Aniversario de la Constitucion Espariola de 1978, I.N.A.P., Madrid, 1998, 227-257 and Articulo 96: Tratados internacionales como parte del ordenamiento interno", in 0. Alzaga Villaamil, Comentarios a la Constitucion espanola de 1978, op. cit., t. VII, 623- 651, pp. 630- 636 and 640-646.
132 J. D. Gonzalez Campos, L. I. Sanchez Rodriguez and P. Andres Saenz de Santa Maria, op. cit., p. 274. 133 See Appendix I. l3aArticle 1.5 of the Spanish Civil Code (Gaceta de Madrid, 25 July 1889) made official publication of a treaty a condition of its enforceability erga omnes in Spanish law, See Appendix 2. �3s But not always, as pointed out by A. Remiro Brotons, Derecho Internacional. 2. Derecho de los Tratados, Madrid, 1997, p. 339. Then again, assuming that the international treaty retains the status of an international regulation and its special legal force when transposed to Spanish law, its primacy follows from its very nature. This position follows the line upheld by international jurisprudence. A. Mangas Martin, "La recepción del Derecho internacional por los ordenamientos internos", in M. Diez de Velasco, Instituciones de Derecho Internacional Publico, op. cit., Cap. IX, 194-212, p. 200. for the TC's position regarding these assertions, see TC Decision 11/1985, 30 January (BOE, 5 February 1985), TC Decision 28/1991, 14 February (BOE, 15 February 1991) and TC Decision 140/ 1995, 28 September (BOE, 14 October 1995). For the position of the TS, see TS Decision (Bench 4), 27 February 1970 (Aranzadi n. 658) and TS Decision (Bench 1), 22 May 1989 (Aranzadi n. 3877). 137 see comments by A. Fernandez Tomas, "La valida celebración y la incorporación de los tratados en la jurisprudencia constitucional espanola", in Hacia un nuevo orden internacional y europeo. Homenaje al profesor M. Diez de Velasco, op. cit., 341-359, pp. 356-357.
138 Organic Law 15/1994, 1 June, for Cooperation with the International Tribunal for the judgment of persons accused of serious violations of international humanitarian law committed in the territory of the former Yugoslavia (BOE, 2 June 1994) and Act 4/ 1998, 1 July, for Cooperation with the International Tribunal for Rwanda (BOE, 2 July 1998) are outstanding examples of enforcement of acts of International Organizations by means of internal Spanish laws. 139 Art. 93 of the Spanish Constitution (see Appendix 1). In opting for an Organic Law as a means of authorization the constitutional legislator sought "a more stringent procedure in terms of the required parliamentary majority (absolute majority) to validate such authorization, as distinct from the treaties referred to in article 94.1 of the Constitution, which require only a simple majority in Parliament". A. Mangas Martin, Derecho comunitario europeo y Derecho espaflol, Madrid, 1986, pp. 50-51. See also, S. Munoz Machado, El Estado, el Derecho interno y la Comunidad Europea, Madrid, 1986, pp. 208-210. 140 Reception of directly applicable acts of derived law is deemed to take place as from the date of entry in force stipulated in that act. Consequently, "publication as required under article 96.1 of the Constitution and article 1.5 of the Civil Code would be simply excluded by article 93 of the Constitution, since one of the competences attributed is precisely publication of the acts of Community institutions". A. Mangas Martin and D. Linan Nogueras, Instituciones y Derecho de la Uni6n Europea, 2a ed., Madrid, 1999, p. 258. For all this paragraph, see Appendices 1 and 2.
141 see Appendix 1. In the view of the TS, the third paragraph in question is the "penal response" to those in breach of paragraphs one and two of article 45. TS (2nd Division), Decision of 26 September 1994. la2 In this legislative reform it was decided to include criminal provisions in respect of the environment in the Spanish Penal Code as opposed to other types of legislative model- i.e., a special, specific criminal law on the environment or the addition of criminal provisions to a general law on the environment. At all events, the issue affects the actual approach to protection largely in a formal rather than a practical sense. At the same time, "the efficacy of criminal provisions does not depend on which model of protection is chosen; the important point is the actual content of the criminal classification and the resolve of the public authorities to effectively use the criminal regulations to prevent offences against the environment". J. M. Prats Canut, "Analisis de algunos aspectos problematicos de la proteccion penal del medio ambiente", in La protection penal del medio ambiente, Agencia de Medio Ambiente, 1991, 47-83, p. 58. ia3 At the time this regulation came into force, Spain had already ratified international treaties on the subject. See sections IL1 and 2 supra. Moreover, the legislation has followed the line of the recommendations of international associations in the sphere of criminal law. In this connection, see Resolution of the Twelfth International Congress on Criminal Law, Hamburg 1979. The complete text can be found in L. Cuesta Arzamendi and C. Fernandez de Casadevante Romani (Eds.), Protección internacional del medio ambiente y derecho ecol6gico, V Curso de Verano de San Sebastian (1987), Serv. Ed. Univ. del Pais Vasco, pp. 315-318. 144 The offence referred to in article 347 of the former Spanish Penal Code is defined as "an offence of specific endangerment. This means that for the purposes of commission, there need be no actual injury to the protected assets, in this case human health and conditions of animal and vegetable life; it is sufficient to act in any of the ways classified as dangerous to these assets. Hence, for the offence to have been committed, there need be no actual harm to the protected assets. Less will suffice; it is enough that there be serious danger or risk to these assets, as defined in the statute". Decision of the Provincial Audiencia (hereafter AP) of Girona, 26 January 1998.
145 Where a criminal provision remits to certain regulatory or administrative norms, this is known as a "blank penal provision". In the doctrine, Rodriguez Ramos argues that "the new ecological offence is undoubtedly" of the nature of a blank criminal statute. L. Rodriguez Ramos, "La proteccion penal del ambiente en Espana", en L. Cuesta Arzamendi and C. Fernandez de Casadevante Romani (Ed.), Protection internacional del medio ambiente..., 183-188, p. 187. The constitutionality of the use of blank penal provisions in the statute in question was examined by the TC in Decision 62/1994, 2 February (BOE, de 24 February 1994). In a more recent Decision, the Provincial Audiencia of Tarragona explained that "the conduct described in article 347 (bis) (art. 325 in the current Code) is dealt with by the procedure of a blank penal statute, remitting to the statutes protecting the environment, which must have been violated for the classified offence to have been committed. Thus, contravention of the administrative regulation is classified as an offence ... As a direct consequence of the use of a blank penal statute, the Administration is able to define areas of risk which are permitted in connection with criminal environmental law. The penal provision is therefore incorporated in both the state regulations and in the regional or Community regulations ...". Decision AP of Tarragona, 2 February 1999. 146 BOE, 24 November 1995; correction of errors BOE, 2 February 1996. Paz For Titles, Chapters and Articles, see Appendix 3. 148 see arts. 325-337 and Common Provisions, arts. 338-340. 149 BOE, 28 February 1989. 150 BOE, 6 November 1997.
151 See Appendix 3. 152 sin the case of the base offence, article 325, the margin for the prescribed penalty is less severe: six months to four years imprisonment, fine of eight to twenty-four months and one to three years disbarment from exercising a profession or holding office. Ibid. �s3 See section II.2.A)b) supra. art. 338, see Appendix 3. i ss Ibid.156 See section IL2 supra. 157 See note 17 supra. 158 Until the promulgation of this Act, the existing legislation allowed and encouraged the draining of wetlands, for instance the Act of 24 July 1918 on draining of lagoons, marches and swamps. In consonance with the notions of health and society prevailing at the time, numerous wetlands were reclaimed for farming, thus producing irremediable losses to Spain's natural heritage. I. Rodriguez Munoz and R. Ortega Dominguez, op. cit., p. 174. See also note 16 supra.
ls9 BOE, 28 December 1995. 160BOE, 25 June 1998. ls� For the EC regulations on habitats, see section III. 1 and 2 supra. 162 sin this specific case, the TS applied the following rules to the category of offence: "article 29 of Catalan Legislative Decree 2/1991, 26 September, in the same terms as the basic State law; article 34 a) of the said Legislative Decree, which classifies unauthorized dumping of such waste and the unsupervised and unauthorized storage thereof as a serious violation; article 4.2 of the Order of the Territorial Policy and Public Works Department of the Government of Catalonia, regarding the treatment and elimination of used oils, requiring express administrative permission for such activities; articles 6, 16, 17, 29 et seq. of the Regulations on Annoying, Unhealthy, Harmful and Dangerous Activities, 30 November 1961 and article 3 of the Order for its application, 15 February 1963; articles 89, 92, 95 et cetera of the Waters Act of 2 August 1985 and 259 of the Regulations on Public Water Resources of 11 April 1986, and also articles 3.1 and 7.2 of EEC Directive 76/464, 4 May 1976, regarding contamination by certain toxic substances in aquatic media of the EEC as it relates to the need for administrative authorization to dump any kind of contaminant waste, absent which, such dumping must be considered to be clandestine..." TS Decision (2nd Division), 26 September 1994, b.i.l. 5
�63 See notes 25 and 38 supra. 1641t is estimated that between 1950 and 1980, almost half of Spain's wetlands disappeared, the chief cause being draining for agricultural use. See note 16 supra. 165 Then Plan's objectives are based on the "Ramsar Convention Strategic Plan" ( 1997- 2002), drawn up at the Sixth Meeting of the Ramsar Convention (1996) and on the "Strategy on Mediterranean Wetlands of International Importance" prepared by the Mediterranean Wetlands Committee (MEDWETCOM), which is backed up by the Secretariat of the Ramsar Convention. For the whole paragraph, see Actuaciones Pziblicas, p. 21, and YIEL, vol. 10 (1999), pp. 308- 311. 166 C. Jimenez Piernas explains the dependence of EC Law "in light of the degree of dispersal still evident in its application, which is still not firmly in the hands of Community institutions and requires the cooperation of the member states (indirect application) ... C. Jimenez Piernas, "El incumplimiento del Derecho comunitario por los Estados miembros...", loc. cit., p. 19. 167 Art. 249 TCE. 168 The TS analysed the transposition of Directive 92/43/EEC in a Decision upholding the administrative appeal brought by the Environmental Defence Organizations Co- ordinator (CODA) against article 13.2 of Royal Decree 1997/1995. In this decision, the TS accepted the interpretation of the ECCJ in relation to the vertical affect of Directives in certain circumstances. See TS Decision (3rd Division), 15 February 1999, b.i.l. 2. 169BOE, 28 December 1995. 170 BOE, 25 June 1998.
1�� This transposition also takes place at a regional level. For example, in the Community of Valencia, Act 11/1994 on protected natural spaces in the Community of Valencia and Decree 264/1994, which creates and regulates the Valencian Catalogue of threatened species of fauna and establishes categories and regulations for their protection (DOGV, 9 January and 19 January 1995). lz Besides the now traditional evaluation of consolidated protected natural spaces such as National Parks, the PORNs are intended to favour other places (internationally important wetlands, SCIs, SZPBs, etc.) where the only answer to funding is to exploit the endogenous natural resources in a manner compatible with their conservation. 171 see DGCN, Estrategia espanola de biodiversidad, pp. 81-88 and 110 and DGCN, Informe 1999, pp. 17-18. One practical example is the cooperation agreement concluded by the Ministry of the Environment and the tourist authorities, which contemplates what is referred to as "nature tourism". Ibid. la Council Regulation (EEC) no. 1973/92, 21 May 1992, which creates a financial instrument for the environment (LIFE) (OJEC L 206/1, 22 July 1992). This project was developed between 1993 and 1997, and the Community co-financed nearly 75 per cent of the value of all inventorying work and subsequent data processing. 175 As a result of the inventory , more than 150,000 precincts or representations of 1600 types of habitat have been mapped throughout the national territory, with 1114 maps and 1,650,000 items of related data. There are a total of 633 of taxa included in Appendix II of the Habitats Directive. Of that number, 199 are fauna and 434 flora.
cont. The countries with the largest number are Spain (239), Portugal (208) and Italy (183). About 61 per cent are present in the Mediterranean Biogeographical Region, and only 8 per cent in the Boreal Region. See DGCN, Informe 1999, p. 8. for the general methodological approach to compilation of the National List, see J. C. Orella, J. C. Simon, J. Vaquero, A. Cuadrado, B. Matilla, M. A. Garzo and E. Sanchez, "La Lista Nacional de Lugares de la Directiva Habitats 92/43 CEE: metodologia y proceso de elaboraci6n", Ecologia, n. 12 (1998), pp. 3-65, especially 8-11. 177 Noteworthy in the Spanish Lists of Sites is the Macromesian Biogeographic Region, the first to be agreed on with the EC (it was drawn up in 1996) and the one with the largest area, embracing a total of 172 SCIs covering 35.4 per cent of the territory of the Autonomous Community of the Canaries. It is followed by other lists: the Alpine region, the second largest in terms of area, was delivered to the Commission in April 1997 and expanded in July 1999, with 30 sites (accounting, for example, for 41.91 per cent of the territory of the Autonomous Community of Catalonia). The Atlantic list, delivered in 1998 and expanded in 1999, contains 140 sites (covering, for example, 58.16 per cent of the territory of the Autonomous Community of Castilla y Leon). And lastly, the Mediterranean list was delivered in August 1998 and expanded in August 1999 and is currently being revised. It contains 378 sites. The communities of Madrid, La Rioja, Canaries, Andalusia and the Autonomous City of Ceuta contain the highest percentages of territory proposed by the Central Administration. For its part, the European Commission is still carrying out the requisite studies for its final declaration of sites to be included in the SICs. For all this paragraph, see J. C. Orella et al, "La Lista Nacional de Lugares de la Directiva Habitats", loc. cit., pp. 43-47. the criteria applied in this study were those of the Thematic Nature Centre of the Museum of Sciences in Paris (CTE/CN), the body entrusted by the European Commission with the follow-up and assessment of the national lists. 179 This phenomenon is due to the fact that "some Autonomous Communities, whose networks of Protected Natural Spaces were in their infancy, decided to develop their networks on the basis of the Community regulations or taking advantage of their impetus, as well as, naturally, complying with the mandate of the Directive itself. J. C. Orella et al, "La Lista Nacional de Lugares de la Directiva Habitats...", loc. cit, p. 42. At the same time, areas of nature protection have been enlarged through the work of UNESCO in promoting Biosphere Reserves in the Man and Biosphere Programme. These Reserves constitute an international system of protection whose beginnings go back to 1970. Their aim is to reconcile the conservation of biodiversity, economic and social development and the maintenance of associated cultural values. Classified Biosphere Reserves in Spain currently occupy a total area of 1,116,997 hectares. MMA, Actuaciones Publicas, p. 13. See note 27 supra.
180 sin the relevant report by the Central Administration, it was estimated that "the Habitats Directive requires that the social, cultural and economic characteristics of the areas where it is implemented be taken into account. In practice, implementation must proceed in concert with the social agents, so that the existing land uses - that is, agriculture and stockbreeding, tourism, infrastructure, etc. - can be converted to activities that allow sustainable development". DGCN, Informe 1999, p. 4. See section 111.3 supra. 181 Ibid p. 3. 182 DGCN, Estrategia espanola de biodiversidad, pp. 79-109.