Written by: Sanja Katic
16 October, 2023
Ecocide is defined as anthropogenically-caused mass destruction of the natural world. While this definition beckons the extremity of what such an act by the human population may entail, it is not considered grave enough to be recognised as an international crime. Not only does mass destruction of the environment depict that nature itself should possess the right to respect, but it causes direct detriment to the quality of human lives. Accounts of destruction of property, homicide cases, environmental protestors have all been held to criminal courts, yet the mass killing of species and biodiversity cannot arise a criminal conviction. This article will explore the effectiveness of possible legal tools in ecocide cases, and argue why criminalisation of ecocide continues to be a necessity for the future.
Historical Development
Historically, the concept of ecocide was developed as a result of the natural detriment caused to the landscape of Vietnam during the war in 1955. This lead to the development of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques by the UN, which intended to prevent any environmental devastation of the sort from happening again. In the 1998 Rome Statute, it was considered once again that ecocide be included before the ICC, however was unsuccessful. Most recently, environmental barrister, Polly Higgins, has been petitioning the courts and leading campaigns for this to be considered a crime against humanity. All of this has still not reached the desired result, and crimes of ecocide are not holding those necessary accountable to the degree that they should be.
The work of Polly Higgins has been extremely significant, so much so that the majority of the modern concept can be credited to her. She argues in her book, ‘Eradicating Ecocide’,(1) how corporate and political policies are at the source of what is destroying the planet. One major case that she discusses, a prime example of ecocide, entails damage caused to Athabasca, a bog in Canada, nearly the size of England and Wales. An oil spillage had occurred, an normally warning bells are used as a back-up system to prevent birds from engaging with the area, however in this case 1600 of these ducks died. It wasn’t until two years later that the company was finally found guilty and fined $3 million, however this amount of money is still not nearly enough to actually reverse the detrimental effects of oil, from restoring the habitat itself after significant time period to restoring the biodiversity that was once at stake. The company was also fined on several accounts, however maximum fines for such actions still stand at low rates of $500,000 - $800,000. As Higgins puts it, “ecocide is a crime against peace,” and the lack of legislation is responsible for harming the well-being of all.
Regulation via Other Legal Tools
Issues such as climate change have potential to be regulated by tort law, although this can be difficult as claimants must be able to trace the harm directly back to the defendants themselves. With cases surrounding carbon emissions, it is consistently multiple large corporations that contribute to the harm simultaneously over an indefinite period of time, and tort simply cannot have the resources to support the abundance of defendants, as well as the time period not aligning in the manner with which how tort is litigated. One cannot single out one corporation or measure specifically how much more harm they would have caused in comparison to another. Larger issues also arise with the lack of scientific accuracy and knowledge, creating obstacles in how this can be deemed as a claim under areas such as negligence. If large corporations are sued for damages in tort, the legal uncertainty would also result in low damages being awarded. This does not pose a great deterrence to such wealthy corporations for engaging in illegal actions as they find it an economically feasible risk. Many of these corporations are able to cause irreparable damage to ecosystems for this reason, without having to pay for the full restoration of the habitat. In the perspective of environmental activists and legal professionals, this is the reason that arguments are made for ecocide becoming a criminal offence, as Higgins states in her book, criminal law simply has a far more effective deterrence. In an article, ‘The Legally Disruptive Nature of Climate Change’,(2) it’s expressed a lack of legal stability is existent with respect to this issue. In the case of Anderson v. Cryovac, Inc,(3) the law did support the victims of a company that caused severe water damage, however the amount of time and money that the case took was an injustice on its own. In environmental perceptions, it is particularly difficult as new research continually arises, however the law must find a way to develop faster to adapt these concepts.
In many cases, environmental law and cases of ecocide have been concerned overall with human well-being rather than the detriment to nature itself, proposing that such issues can be argued via a human rights route. The 1972 Stockholm Conference on the Human Environment,(4) established the synergistic effect of human well-being and environmental conservation. One of the principles states that it is a human right for people to live in a healthy environment. While this approach can exemplify the importance of conservation, the best interests of humans do not always align with the best interests of the environment. This requirement of a necessary link between human and environmental detriment follows the requirement that for environmental protection to incur, there must a direct and proven connection between the occurring degradation and the infringement of a specific human right. In Kyrtatos v Greece,(5) it was emphasised by the Court that the articles of the ECHR are in service specifically for the protection of the environment, however other international legal instruments and domestic law supersede it, which once again fail to make this law effective enough to either be a deterrent or to have the power to properly bring justice to the damage that a case of ecocide would entail. The main issue with basing environmental protection dependant on the foundation of human well-being, becomes the outcome that several environmental impacts do not have an immediate or direct effect on well-being, and while they are likely to in the long-term this can be difficult to prove.
The Paris Agreement,(6) has a large focus on the environment and its scientific aspects, however still continues to undertake political and socio-economic values. Further improvement must be made, where these values can be appreciated, but environmental conservation must be the determining factor in decisions. The use of particular legal instruments largely focus on environmental protection through the protection of human rights, but even furthermore they are often superseded by other international and domestic legislation. While it is great to appreciate that environmental law is equally pertinent to both the conservation of nature and the existentialism of human beings simultaneously, it continues to be a necessity that the environment would have rights irrespective of human rights. Environmental law in large part concerns itself with the protection of the vulnerable within a community, however this cannot be accomplished when the priority lies with human benefit.
There are various other forms of law that have potential to protect the environment and be used as a deterrent tool to ensure environmental harm of this sort does not occur, however similarly to the ones discussed, it is unlikely that they can be anywhere as nearly effective as they would need to be.
Future Reform
Each jurisdiction is entitled to having their own legal system and running their society as they may see fit, however in certain cases the actions of one affect the population on a global level. In many cases, the countries that cause the most environmental damage and have the highest carbon emissions suffer the least, purely because of geographic advantage. Countries on their own have environmental laws, but many do not take into consideration how their lacking of stricter and clearer laws is impacting climate issues. This depicts why it is necessary for international courts to be able to supplement for any areas of the law that domestic law may fail to address. Soft law regulations and fines do not create a large enough impact, and such an issue that is quite literally a crime against nature, should be presented before the criminal courts.
As humans, we find ourselves far too separate from nature itself. Society categories the term “animal” as reprehensible, often forgetting how our genetics are so interspersed with nature through millions of years of evolutionary processes. Mass murder of the natural world, does not fall so far from genocide of our own populations; in fact it factors into this as a consequence of water pollution, depleted resources, low air quality, and several more factors. Ecocide must become an internationally recognised crime before the ICC, even so that this can be a small step of progress for society to change its attitude towards how nature is treated and the change that is needed for the world can be created.
Citations
Polly Higgins, Eradicating Ecocide (Shepheard Walwyn Publishers Ltd 2015)
Elizabeth Fisher, Eloise Scotford and Emily Barritt, 'The Legally Disruptive Climate Change' (2017) 80(2) MLR 173
Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986)
UN General Assembly, 'United Nations Conference on the Human Environment', 15 December 1972
Kyrtatos v Greece, ECtHR Application No. 41666/98 Judgement (22 May 2003)
UN FCCC (2015) 'Adoption of the Paris Agreement', 21st Conference of the Parties, Paris, UN An Official Publication 6 January 2016
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