Biodiversity Protection in Mexico in the Age of Globalization

Biodiversity in Mexico

“Biodiversity” is currently understood in connection with three aspects of living systems: genetic diversity (genetic variation within species), species diversity (genetic variation within a region), and ecosystem diversity (variation of ecosystems within a region) (Sands, 2003). The Convention on Biological Diversity, signed in 1992 in Rio de Janeiro, Brazil, ¹ defines “biodiversity” as variability among living organisms from all sources, including terrestrial, marine, and aquatic ecosystems and the ecological complexes of which they are part, including diversity within species and/or between species and ecosystems (Secretariat of the Convention on Biological Diversity, 2008).

The Ministry of the Environment and Natural Resources has estimated that the number of endemic species in Mexico is approximately 64,878, including 26,000 species of plants, 282 of amphibians, 439 of mammals, and 707 of reptiles (Ramírez et al., 1999). Taking this into account, it is not surprising that the United Nations Environment Program has listed Mexico as the world’s most diverse country with regard to reptiles, the second-most-diverse for mammals, and the fourth-most-diverse for amphibians and for flora (CONABIO, 2006). The explanation of the extraordinary biodiversity lies in Mexico’s geographic location and topography, variety of climates, and complex geological, biological, and cultural history. All these factors have contributed to an intricate mosaic of environmental conditions that enables the flourishing and evolution of a variety of life forms.

Unfortunately, many species are facing extinction in Mexico. According to the International Union for Conservation of Nature (IUCN, 2016), Mexico contains some of the most threatened mammal species in the world (either critically endangered, endangered, or vulnerable), with at least 101 mammal species, excluding whales and porpoises, listed as threatened (World Bank, 2016).

Mexican Environmental Law

International regulation in fauna and flora protection was initially motivated by the need to find solutions to international problems. Later, regulation was also motivated by local concerns about biodiversity conservation with international implications. In this regard, Mexico has ratified most of the international instruments related to the protection of biodiversity and has enacted suitable domestic laws to fulfill its international obligations. Its constitution includes major provisions related to biodiversity conservation and natural resources that accord with international principles. For example, Article 2 sets out special rules for indigenous people, who have the right to preserve and improve habitats as well as to preserve the integrity of their lands. It entitles these groups to access with certain limitations to their lands’ natural resources. The most significant of these limitations are set out in Article 2, Section A, Number II, with regard to the possibility of applying their own normative systems in the regulation and solution of internal conflicts, abiding by the general principles of the constitution and respecting individual guarantees, human rights, and the dignity and integrity of women. As to the possession of land, Number VI of this section establishes limitations based on acquired rights of third parties and zones declared strategic. Some scholars argue that this provision restricts the recognition of ownership of land by indigenous people because, according to Article 27, the state owns their land, of which they are only beneficiaries (Gaona, 2013; Odello, 2012). In practice, they say, there is no real recognition of indigenous land rights, a situation that might be considered contrary to international law.

Article 4 establishes that every person has the right to live in an environment adequate for his or her development and welfare. Because it recognizes the importance of the environment to the well-being of individuals and acknowledges the potential adverse effects of environmental deterioration (Herrera et al., 2008), this provision can be considered the foundation of the Mexican environmental regulatory framework (CEC, 1998).

As stated above, Article 27 establishes the constitutional basis of land tenure and use of natural resources. It provides that the lands and waters within Mexico’s boundaries belong originally to the nation, which, under the constitution, has the right to transfer title to the private sector. Although the constitution regulates property rights, both public and private, the latter are subordinate to the former. The third paragraph of Article 27 states,

The nation will have at all times the right to impose on private property the modalities dictated by the public interest, as well as to regulate, for social benefit, the use of natural elements susceptible of appropriation, in order to make an equitable distribution of public wealth, take care of its conservation, and achieve the balanced development of the country and the improvement of the living conditions of the rural and urban population.

This rule is significant because it allows the state to take the measures required to preserve or restore the ecological balance, to prevent the misuse of ecosystems, and to guarantee the conservation of natural resources and the fair distribution of public wealth. It goes on to provide that

necessary measures will be dictated to order the human settlements and establish adequate provisions, uses, reserves and destinies of lands, waters and forests, in order to execute public works and to plan and regulate the foundation, conservation, improvement and growth of the population centers; to preserve and restore the ecological balance; for the division of large estates; to provide, under the terms of the regulatory law, the organization and collective exploitation of ejidos and communities; for the development of small rural property; for the promotion of agriculture, livestock, forestry, and other economic activities in rural areas; and to prevent the destruction of natural elements and the damage that property may suffer to the detriment of society.

In our opinion, this provision is insufficient in that it empowers the state with an attribution rather than imposing upon it a legal obligation to adopt measures for conservation when appropriate. Had it imposed such an obligation, the violation of them would presumably have had consequences, whereas no juridical consequence results from the failure to exercise an attribution. If a legal obligation is violated, the transgression is considered unconstitutional and to reinstate the constitutional and legal order the effects of the breach are declared null and void. Furthermore, in our opinion, the spirit of this constitutional provision might well be extended to cover activities such as exploration and exploitation of underground resources conducted by private companies (mining, for instance).

In 2013, under the PRI-led neoliberal government presided over by Enrique Peña Nieto, a modification of the constitutional framework on the national oil industry was introduced. The reform was adopted with a clear majority that included the neoliberal PAN but also seven senators of the Partido Verde Ecologista (Green Ecologist Party—PVE). The reform was next approved by the House of Representatives, again with an ample majority. The opposition was led by the nation’s main progressive party at the time, the Partido de la Revolución Democrática (Democratic Revolution Party—PRD), and included the Partido Movimiento Ciudadano (Citizen Movement Party—PMC) and the Partido del Trabajo (Labor Party—PT). By means of this modification, the Mexican state’s exclusivity in conducting upstream, midstream, and downstream energy activities came to an end (Boman, 2014). A rapid increase in oil and shale gas exploration and exploitation through fracking and offshore drilling by newly allowed private corporations ensued. This frenzied expansion of activities raised important environmental concerns in itself, not to mention that the regulations of Mexican Comisión Nacional de Hidrocarburos (National Hydrocarbons Commission—CNH) contain no limits on the use of potentially harmful chemicals (Godoy, 2014). The oil-related constitutional reform made possible offshore drilling and fracking, though arguably both are environmentally harmful activities.

To address the environmental problems inherent in industrial growth and trade liberalization, in line with the constitutional obligation to protect the environment and natural resources, Mexico enacted the General Law on Ecological Balance and Environmental Protection (also known as the Federal Ecology Act), in effect as of March 1, 1988 (Behre, 2003), which offered a comprehensive approach to Mexican environmental protection measures and provided a framework for state laws and regulations. The law holds the federal government responsible for creating and administering protected areas of national interest, including national waters, to protect wild flora and fauna and preserve biodiversity. Further, it recognizes the relationship between the natural environment and the well-being of indigenous people, who usually play an important and positive role in the conservation of biodiversity. It also makes the federal authorities responsible for ensuring the rational use of forest resources, federal waters, and soil in productive activities.

The law provides mechanisms to facilitate the formulation and implementation of actions to preserve biodiversity, one of which is the environmental impact assessment, through which the Ministry of the Environment and Natural Resources ensures that the conditions required to carry out projects under federal jurisdiction that might cause ecological imbalances be met. The environment impact assessment allows for effective public participation in the process (National Institute of Ecology, 2001: 50–55). Some scholars argue that citizens interact with the government only with regard to specific projects affecting their private interests rather than in environmental public policy making in general (Le Bouthillier et al., 2012). Further, it has been noted that the Mexican environmental law does not even require the state to provide relevant information to active participants in this area, contrary to international environmental law. Mexican authorities at all levels should be required to provide full disclosure to stakeholders within a relatively short time. Furthermore, the complaint process lacks guidelines for uniform application and fails to include strategic environmental assessment of federal policies or plans.

Another important piece of legislation protecting biodiversity is the Federal Criminal Code, Article 420 of which punishes (Larson Guerra et al., 2004: 123–152) those who

illegally execute any activity with trafficking purposes, or capture, possess, transport, collect, introduce to the country, or extract from it any specimen, its products, sub products, and other genetic resources of any wild flora and fauna species, territorial species or aquatic species on temporary prohibition considered endemic, threatened, endangered subject to special protection or regulated by any international treaty of which Mexico is a party.

Criminal sanctions for this activity range from one to ten years of incarceration and fines between 300 and 3,000 minimum daily wages.

The environmental law fails, however, to address measures such as the restoration of affected natural elements or the duty to repair and reintegrate them into the ecosystems from which they have been illegitimately extracted. Indeed, an effective remediation procedure for environmental damage does not fall within the scope of the law. García (2007) argues that in many countries there are no laws providing for the repair of environmental damage, and only a few have specific provisions regarding assumption of liability and reparation.

Finally, the lowest level of the hierarchy is legislation at the state level. The Federal Ecology Law sets out the scope of federal competence and the states’ role in environmental protection, providing lists of issues either falling under federal jurisdiction or subject to state or municipal jurisdiction and providing principles and guidelines for developing federal policies, standards, and regulatory programs. (For instance, states and municipalities are responsible for creating and administering two types of natural areas: urban parks and ecological conservation zones.) There is, however, a lack of coordination and exchange of information among federal, state, and municipal authorities.

The law identifies competences for local governments to develop actions with regard to biodiversity conservation. The decentralization of powers empowers the government to intervene and assist in areas that require immediate protection and conservation. This feature is important because not all programs and policies related to the biosphere reserves are centralized. Nevertheless, the determination of jurisdiction over various matters in this area is sometimes complex because of the absence of general guidelines (Bernstein and Hobbs, 1996: 291).

To protect Mexican ecosystems, Article 3 of the law establishes the concept of clearly designated areas of the national territory whose original environmental conditions have not been significantly altered by human activity or that require protection and/or restoration and lists the program’s objectives: (1) to preserve representative natural environments of diverse biogeographical and ecological regions and fragile ecosystems, ensuring the balance and continuity of both evolutionary and ecological processes; (2) to ensure the preservation and sustainability of local biodiversity, particularly that of species of fauna and flora in need of special attention; (3) to provide a suitable environment for scientific research and for traditional methods and knowledge of nature protection; (4) to further the development of technologies on biodiversity conservation; and (5) to protect the natural environments of other important cultural zones, such as archaeological sites.

According to the law, various types of protected areas—federal, state, municipal, and private—are under the administration of the National Commission of Protected Natural Areas. Perhaps the best known are Los Leones Desert National Park (in the Federal District) and the Monarch Butterfly Biosphere Reserve (in Michoacán). According to the National Commission for the Knowledge and Use of Biodiversity, the federal authorities have recognized 166 protected natural areas, of which 58 belong to the national system because they involve biodiversity and special ecological characteristics. There are 39 biosphere reserves (119,924.50 square kilometers), 68 national parks (15,056.43 square kilometers), 4 natural monuments (140 square kilometers), 7 protected areas of natural resources (34,673.86 square kilometers), 34 protected areas of relevant fauna and flora (65,654.17 square kilometers), and 18 sanctuaries (1,462.54 square kilometers), together representing 12.93 percent of Mexican territory.

International Environmental Law and Local Engagement in Biodiversity Protection

To implement international environmental law, Mexico has developed a number of national biodiversity plans. It has adopted a model strategy that, according to the Organization for Economic Cooperation and Development (OECD), facilitates steps toward developing and implementing national biodiversity action plans. The biodiversity and natural resource policies put in place since the 1990s have aimed at gradually changing production patterns with adverse environmental impacts and furthering the sustainable use of natural resources (OECD, 2013). The OECD has declared that Mexico has substantially increased the number of protected natural areas in an effort to protect its ecosystems. This was accompanied by the establishment of the national system of protected natural areas, the adoption of a number of environmental management plans, and increased opportunities for funding from public, private, and international sources.

Policy measures for the conservation of ecosystems include Pro Arbol, a reforestation program supporting flexible payments for protecting forests against fires, ecosystem restoration/conservation services, and community-based forest plantings and related commercial businesses promoting interaction between civil society and productive sector stakeholders on forest topics (UNEP, 2008). ² It is focused on four objectives: conservation and reforestation, planning and forest organization, production and productivity (Escobar, 1998; Narchi, 2015, but for a conflicting view see Dahl, 1993, and Milton, 1996), ³ and development of infrastructure, communication, and other requirements for sustainable forestry. It has been criticized on the ground that, rather than promoting the reforestation of fragile areas with native trees, it favors mainly exotic tree species that are unfit for arid regions, thus negatively affecting ecosystems (Greenpeace Mexico, 2011).

The National Forestry Commission was created in 2001 to increase the contribution of forestry to the gross domestic product, reduce deforestation by 75 percent by 2025, and promote ecosystem conservation/restoration. Projects advanced and administered by the commission include increasing timber production (to 11 million cubic meters a year through certification of over 2.5 million hectares by 2018) and the conservation of 3.1 million hectares in 2018 by means of schemes of “payment for environmental services,” soil restoration, and reforestation of 1 million hectares.

Mexico has made some progress with conservation and recovery programs for several priority listed species. For example, the creation of the units system for the conservation, management, and sustainable use of wildlife has provided greater territorial coverage, and a biodiversity conservation program in the Sierra Madre Range supplies freshwater to several states and municipalities, most notably Chiapas (Schrorth et al., 2009).

The Uncertain Future for Biodiversity in Mexico

A new biodiversity law was passed by the Senate on December 14, 2017, and forwarded to the House of Representatives. From the beginning, however, the initiative had been criticized by nongovernmental organizations, scholars, and political and social stakeholders. The criticism points to the need to amend and reinforce the wildlife law, incorporate the Convention on Biological Diversity and related international protocols on biodiversity into Mexican law, secure the informed participation of indigenous peoples and most important, integrate the provisions on biodiversity into a single comprehensive and manageable biodiversity-protection legal system. Some have argued that the proposed bill is in fact a step in the wrong direction because it does not include the recognition of indigenous people’s rights and their relationship to the conservation of natural resources. Indeed, Greenpeace has warned that the bill will open the way for the privatization of both genetic resources and the traditional knowledge of Mexico’s indigenous people. In this context, a critical view would highlight the biocultural richness that has nurtured and enhanced biodiversity in Mexico for over 13,000 years.

The Center for Environmental Law argues that the bill violates Article 2 of ILO Convention 169, one of the most important international instruments on the rights of indigenous people. The convention makes governments responsible for promoting coordinated actions with the participation of the peoples concerned in order to protect indigenous rights, including their land. Safeguarding this obligation means that the state must guarantee, build, and protect a space for such groups to exercise their right to participate in the legislative process with regard to initiatives that may directly affect them. In the context of this criticism, it seems apparent that the proposed initiative would infringe on the collective rights of indigenous communities and should be revised to guarantee free, prior, and informed consultation (CEMDA, 2017).

The Nagoya Protocol, which entered into effect in October 2014, aims at providing a transparent legal framework for the effective implementation of one of the Convention on Biological Diversity’s objectives: the fair and equitable sharing of benefits arising out of the utilization of genetic resources (Dias, 2013). One of the criticisms of the draft biodiversity bill is that it may allow more human activity in protected natural areas. In the critics’ view, it merely adds ambiguity and relaxes the rules for creating and/or administering these areas, ultimately threatening their conservation.

Stakeholders have pointed out serious wording issues affecting several sections of the bill that seem to reveal contradictions and misunderstanding of major aspects of international law. Deeply concerned about the foreseeable harmful effects of the proposed bill, some scholars have called on the Congress to open public discussion of the project. In March 2018 the House’s Committee for Indigenous Affairs opposed the bill on the ground of potential violation of indigenous peoples’ rights with regard to their traditional knowledge and use of genetic resources. A group of lawmakers proposed to undertake a consultation process with indigenous peoples and communities with regard to the bill and Article 6 of ILO Convention 169. Despite the assumption of power of the left-leaning MORENA party on December 1, 2018, no action has yet been taken to initiate the consultation process. The draft of a very much-needed comprehensive bill on biodiversity protection is still dormant because of lack of political will.

Finally, the achievement of a comprehensive and workable biodiversity-protection legal system requires a new legislative approach focused on ecosystems and habitats, a serious effort at regulatory coordination across the three levels of government (local, municipal, and state), and active community involvement. These three complementary measures should be accompanied by the gathering and exchange of information among all actors.

Conclusions

The Mexican government has taken some important steps toward protecting biodiversity, ratifying the related international instruments and enacting federal and state laws in order to fulfill its international obligations. However, these steps are insufficient for preserving the country’s fauna, flora, and ecosystems because of the deficiency in domestic regulation. Regulatory uncertainty is due to the lack of a comprehensive legal framework and detailed practical guidelines, a regulatory vacuum that fosters irregular application, and lack of cooperation and information exchange between federal and local authorities.

In addition, the current Mexican environmental laws neither encourage adequate active participation of local communities and social organizations interested in conservation nor establish a system to provide timely, complete, and relevant information on projects potentially affecting ecosystems. Furthermore, it is necessary to take a critical view of the way legal mechanisms can effectively contribute to preserving biodiversity. International and national law should not ignore the biocultural heritage accumulated over the history of Mexico and the productive, sustainable, and biodiverse agro-ecosystems (such as the chinampas, the milpas, and the ejidos) mostly maintained by indigenous people.