Until relatively recently, legal systems all over the world have been positioned against the environment’s conservation. The path toward legal reform requires a delicate balance between new and existing principles that ensure the preservation of nature, and thus environmental and human rights, for present and future generations.
Humanity’s relationship with nature is in a new phase, where environmental and human systems are inextricably determinative of one another and their respective fates. With recent reports suggesting we have passed six of nine planetary boundaries, there is a tangible shift in understanding that we cannot sustain the illusion of unchecked interference with our finite natural environment, and that our shared planet, and even outer space, has a hastily depleting capacity to sustain such practices.
Unlike human rights, the environment doesn’t have a comprehensive and foundational legal provision that reflects the severity of violations committed against it. Accompanied by very weak monitoring and enforcement, environmental protection is misaligned in both theory and procedure. For example, Article 4(2) of the Paris Agreement – widely hailed as the best international commitment on climate change to date – only states parties shall “aim” to achieve objectives, a non-binding obligation that doesn’t emphasise the need for strong environmental action. The framing of environmental offences as regulatory infractions enables environmental damage through the acquisition of an appropriate licence, and environmental regulation is frequently contingent upon decisions of administrative authorities, often overlooking cultural sensitivities. Thus, environmental crimes have been regarded by European prosecutors and judges as difficult to identify, define and enforce effectively.
By their very nature, regulation of environmental issues necessitates a global and inter-disciplinary approach to reflect the complexity of our interrelated climatic system. Repercussions of environmental crimes and harms are transboundary and trans-generational, and the challenge of legal reform is simultaneously inter-spatial and inter-temporal. It is therefore fundamental to propose comprehensive and inclusive legal frameworks that reach a wide variety of actors and contexts and preserve rights for nature and humans. Given the scale of the crises, it is also essential to pose effective offences that can adequately deter and punish the worst forms of environmental harm.
The assumption that capital holds the sole solution to the climate and ecological crises conceals the systemic roots of these crises, embedded in current patterns of global production, consumption, finance and the organisation of social life. In recent years, there have been significant advances in environmental law and the protection of environmental resources, not only for their human-derived value but for their intrinsic value in themselves.
With the changes onset by capitalism, accelerated by the neoliberal era of the 1980s, the world has bent further and further to the insatiable drives of a social system predicated on infinite growth, changes that depend on the exploitation of both citizens and the environment. Many are acquainted with Marx’s arguments to this effect, but neglect the fact that the environment, predominantly since this era, has also been viewed as a tool for profit. The ideological discourse that grounds this is “concerned about human impacts on the environment but at the same time deeply romantic about the existing capitalist world”, which is accepted a priori as progressive development and anthropocentric in our agency as a species.
The logic of unlimited growth has enabled ecocide: the wilful or reckless destruction of conditions that maintain life such as ecosystems. It is clear all human actions result in an ecological imprint, and it is undoubtedly important that environmental law acknowledges and reflects competing considerations such as the right to development, which is why it is so fundamental to create a framework of safety around these inevitable considerations. Increasingly, experts are convinced a paradigm shift is vital that advocates the interdependence of human and non-humans based on a community of interests.
Criminal law can play a pivotal role in affirming our inherent interdependencies with the natural world and our collective duties to it. As the ultimate sanction, it is important that criminal law has a restricted field of application: we must extend our vision beyond theories of punishment to understand criminal law’s fundamental role in facilitating coordination around essential collective social values. Due to the different nature of their legal frameworks, reconciling environmental law with criminal law raises complex new issues, although there are strong reasons to supplement existing environmental legal frameworks with a criminal law backstop. A new crime of ecocide, a preventative and all-encompassing framework, can rectify an existing taboo in international environmental regulation: the most serious destructions of nature are morally reprehensible and thus criminally liable acts. Ecocide law therefore holds significant potential to usher in a new era of environmental governance that can ensure exacting protection for nature, on Earth and in outer space.
Ecocide Law
Ecocide is not a new concept in domestic or International law. For example, a provision with similarities to ecocide is found in Article 8 (2)(b)(iv) of the Rome Statute, which provides for the crime of “intentionally launching an attack in the knowledge that such attack will cause…widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Ecocide was almost a crime in peace time too, and was included in early drafts of the Rome Statute. The crime has been promoted at various high-level conferences such as the UN Stockholm Conference on the Human Environment in 1972, been subject to various juridical formulations — such as Professor Richard Anderson Falk’s draft Convention, published by the competent UN Sub-Commission on the prevention and punishment of genocide — and has been debated amongst the International Law Commission regarding the “Draft Code of Crimes Against the Peace and Security of Mankind”. The crime gains traction at legal, academic and grassroots levels for its possibility to provide an enforceable legal measure that can deter the severest forms of environmental damage.
Adapted from existing international law, the most authoritative definition of ecocide defines the crime as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment caused by those acts.”
The existing nature of international environmental harm is largely considered technical, scattered and difficult to enforce, and does not account for the reality of nature, and the damage committed against it, as interconnected and occurring on a multitude of scales.
An Independent Expert Panel considered these limitations when creating the definition of ecocide. To ensure all aspects of the environment, including its interlinkages and interconnections, were included, the environment is defined on the basis of earth-system science and the five main spheres of the Earth — biosphere, cryosphere, lithosphere, hydrosphere and atmosphere — as well as outer space.
The qualitative nature of the definition ensures it applies to any actions, whether committed intentionally or through gross negligence, that directly or indirectly expose the environment in its various components to an immediate risk of substantial degeneration, endangering the safety of the planet and the survival of humankind. This is important to change behaviour: faced with an ambiguous list of legally prohibited actions against the environment, a potential perpetrator may spend a significant amount of time or resources to evade legal liability. A general standard of significant harm shifts mindsets from how do I avoid fitting into this list, toward how do I avoid creating that level of severe environmental harm.
The “unlawful” element of the definition promotes a strengthening of existing environmental laws, as they would be invoked in ecocide law’s application. The “wanton” standard — referring to an action’s potential harm in relation to the social and material benefits anticipated — can reflect the reality of new and emerging issues in environmental law, providing an appropriate analytical tool to ensure that ecocide law is reflective of other human rights. It is essential that environmental provisions can operate both independently and interdependently, ensuring that impunity does not result because of legal technicalities. Ecocide law, according to a continuum of enforcement through domestic criminal courts to the ICC, would further prevent severe and widespread or long-term environmental offences that occur under the existing protections of a licence, those committed in countries with poor environmental laws, and areas beyond national jurisdiction, like the high seas and outer space.
Ecocide Law and International Environmental Governance
Society’s relationship with nature under extractivist capitalism largely reflects “individualism and individualisation, leading to the appropriation, monopolisation, commodification and financialisation of nature against a backdrop of scarce natural and living resources and the deterioration or dysfunctioning of ecosystems”. The success of this system is largely contingent upon insufficient wages, the exploitation of natural resources and societal indifference to environmental and social issues. It is well accepted that the unhindered commodification of nature has accelerated climate change. Globalisation in particular is understood as a key driver of environmental and biodiversity damage due to increased consumption, production and movement of goods, along with their associated GHG emissions. Consequently, legal measures proposed for governing the climate and ecological crises must be aware of these considerations, in conjunction with the more specific, and just as significant, local and national elements to environmental governance.
The definition of ecocide law largely reflects a “natural commons approach”, where the environment and its regulation is conceived as a relational and dynamic system, composed of a web of interdependent relationships between humans, non-humans and the planet. The things or resources classified as natural commons thus form part of a whole called “common heritage”. By including them in this heritage they can be collectively managed with the purpose of preservation. This perspective conceives law’s role in environmental protection distinct from the dichotomy between a subject and object or an exploiter and exploited, towards relationships of solidarity and greater balance. Conceptualising environmental resources as “common heritages of humankind” implies that such resources belong to all of humanity in collectivity, available for everyone’s use and benefit, taking into account future generations and the needs of developing countries.
From the perspectives of Indigenous peoples and local communities across the world, the emphasis on resources and relations to things that are held as common ownership is critical, where community and kinship relations, and relations with nature and life are highly intertwined with the idea of commons. The legal construction of natural commons proposes an alliance of companionship between species and nature. On this basis, the common heritage principle embodies new connotations, highlighting our “special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors”. The collective responsibility to preserve nature is referred to as “Earth stewardship”.
There has been a resurgence of interest in community-based conservation and resource management systems that use customary practice and local knowledge, as it is no coincidence Indigenous communities are guardians of roughly 80% of the world’s biodiversity. On a local scale, commons management, when implemented correctly, has consistently led to improved rates of regeneration, protection and biodiversity. Increasingly, it has been evidenced that the assumption that common-property regimes will lead to the famous “tragedy of the commons” — in that allowing open access and unrestricted demand for common resources will inevitably lead to over-exploitation, requiring privatisation — is simply a misunderstanding of how commons operate successfully. When Hardin referenced a “a pasture open to all” in his depiction of the commons tragedy, he was referencing an ungoverned, law-less, open-access scheme from which nobody could be excluded. This is not a reference to common property regimes as properly managed, but a resulting collective action problem. Climate change itself is a clear collective action problem, for example. The distinction between common property and open-access is well understood in the relevant literature. Moreover, a growing body of empirical evidence exists that demonstrates users of commons are able to work their way out of the trap envisaged by Hardin and, in fact, environmental management according to theories of the commons reveal significant success. Therefore, the necessary question in reviewing the suitability of common property schemes in global management of the climate and ecological crises is not whether common property is feasible at all, but rather under what (legal) conditions.
Rather than promoting rigid protection and management of landscapes under centralised state agencies and institutions, community management seeks to incorporate the perspective of Indigenous and local peoples, setting up a negotiable framework that supports local innovation and experimentation and is thus tailored to the specific requirements of the environmental resource. Elinor Ostrom and colleagues have identified that the distillation of certain features in common property regimes across the world, which have proved effective in ensuring the sustainable management of common-property resources: a clearly defined community of resource users; a clearly defined resource; the presence of clearly defined rules clarifying rights, responsibilities and sanctions for non-compliance; effective monitoring systems; graduated sanctions matched to the level of the offence; cheap and easily accessible conflict resolution mechanisms; minimal recognition of rights to organise; and systems for adaptive management. Community models adapt technical and regulatory norms to specific local conditions. The challenge is understanding how to translate local principles to global environmental governance issues, such as transboundary environmental crime.
Existing international law, in conjunction with ecocide law, supports this possibility. In current international law, the “common heritage of mankind” (CHM) generally refers to the high seas, outer space and celestial bodies, all of which may not be subject to the sovereignty of any state, and states are bound, at least in theory, to refrain from actions that adversely affect their use by other states. The term mankind here reflects a collective concept referring to an entity comprising all people in the world. In Article 137(2) of UNCLOS for example, the rights are vested in “mankind as a whole”. In terms of scope, mankind is “inter-spatial” and “inter-temporal”. Since mankind is a separate legal entity representing all people in the world, the CHM, as mankind’s property, should meet the demands of mankind. As the Institute for Advanced Sustainability Studies note, “the principle of the Common Heritage of Mankind demands intra- and intergenerational equity, and entails a particular respect for transparency, accountability and environmental sustainability”. On this basis, the “common heritage of mankind” principle highlights our “special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors”.
As the State of South Africa has highlighted: “[T]he common heritage of mankind principle is not solely about benefit sharing. [It] is just as much about conservation and preservation. The principle is about solidarity; solidarity in the preservation and conservation of a good we all share and therefore should protect. But also solidarity in ensuring that this good, which we all share, is for all our benefit.”
In spite of our traditional top-down international models of environmental regulation, the “common heritage” of humankind principle has sustained conceptions around particular global resources for decades, and the relations of Indigenous communities with the environment for millennia. This different perspective and practice reveals a different picture for environmental protection possibilities, and the unquestionable success of common-property management schemes globally in ensuring more exacting environmental protection than traditional state-based models. Reiteration of such principles at the international level is one important step, however the critical issue is integrating global and local perspectives in a legal framework of environmental protection which is neither excessively punitive — and therefore hindering other crucial rights such as the right to development — or neglectful of vital ecocentric mainstreaming to international and national societies.
Ecocide law is relevant to theoretical and procedural elements to protection of the global commons. At the root of the growing movement for the international criminalisation of ecocide is the protection of the Earth and the biosphere as the common good of humanity, which requires necessary interventions to be taken in order to stop and avert the dangers for present and future generations. Along with a greater assurance of enforceability of environmental and therefore human rights, ecocide law offers an avenue for shifting general values underlying the legal framework, from anthropocentric to ecocentric, a move from a relationship of dominance to mutual reciprocity and respect for the environment in law. Ecocide law’s theoretical basis is that of a universal value: respect for our natural environment. Moreover, with a rooting in criminal law — a legal framework constituted by morality and accountability, which is enforceable in national and international courts — ecocide law can also represent a less political and more localised avenue for environmental protection than the existing state-based liability international framework, reflecting the “common heritage of mankind” principle in theory, with accompanying procedural protection strategies.
The Role of Enforcement
Research details that in order for regulation of the commons — at local and global levels — to be effective, it must be rooted in adequate enforcement. For example, in a discussion of the Marine Areas Beyond National Jurisdiction, it was argued that “ideally, a central international governing authority would apply the same policies and rules to all countries activities’ in the ABNJ”, which would “likely produce more coherent and consistent results than a Paris-style system of each country formulating its own policies and submitting them to a central authority for review”. It was further highlighted however that hybrid governance models, or smaller, regional, authorities are also effective when they include strong reporting and enforcement requirements. Similar results were obtained in research by Helen Ross and James Innes on cooperative management of the Great Barrier Reef, where they found that “for a range of factors that we have identified as necessary to successful co-management in the context of the Great Barrier Reef, we advocate treating the non-negotiable ‘givens’ as parameters, outlining a flexible shared space where common interests can be developed”. Research of another commons, outer space, showed that top-down regulations, combined with monitoring and sanction mechanisms, could ensure greater sustainability in orbit.
Where clear and non-discriminatory rules facilitate convergence towards cooperative behaviour, enforcement mechanisms can dissuade “free-riding”. Ecocide law is reflective of this framework, as the crime would not neglect the role of adaptive, community-oriented environmental governance, while providing clear and enforceable rules for key decision-makers.
Substantively, ecocide law under the Rome Statute could provide clear parameters and homogenised rules of environmental protection to the international community. Procedurally, national, regional and international levels of an ecocide crime could provide the multi-spectred and networked enforceability, and prevention of impunity, that effective environmental protection, and consequently protection of all our human rights, requires.
The place of criminal law in tackling the climate and ecological crises is a key question. More and more stakeholders see the merit of a legal parameter, and criminal law is the guarantor of social values deemed essential to the collective. An intentionally evolving legal discipline that follows changes in society, encompassing the social needs of the time and reflecting new challenges. This now includes the inescapable emergence of the issue of the environment and the narrative we sustain globally around it. To this effect, terminology and its associated narrative is central to the ecocide debate, most prominently in the 2021 definition. As Daryl Robinson has argued, “the argument in favour of ‘ecocide’ [etymologically] is that it is striking: it is the proposed crime of ‘ecocide’ that has stirred public and political interest and passion, whereas anodyne labels have not. The expressive function of a label is a legitimate consideration; an important function of criminal law is ‘message’.”
Legal history denotes a traditional reliance on criminal law by a sovereign state as a primary and effective way to solve numerous social, political and economic problems. As Andrew Ashworth has highlighted, criminal law’s boundaries are “historically contingent” – depending not on the product of principled inquiry or consistent application of a given set of criteria, but the fortune of successive governments, campaigns in the media and the activities of various pressure groups.
With increasing engagement and support at governmental, academic and grassroots levels, ecocide law stands to promote a new era of environmental governance: one that can provide a useful cross-sector outer-boundary through which to examine business, prevent the most destructive projects, and invoke investment and action in more sustainable practices. It also reflects a deeper respect of nature and our duties as its steward for future generations.
Criminal law has been historically used to guide societies, protecting our most fundamental rights and ensuring social order. The International Criminal Court was devised with the understanding that some offences are so grave their criminalisation warrants further international protection and a greater emphasis on transboundary cooperation on the world’s most serious crimes. In the face of catastrophic climate and ecological breakdown, and recent estimates of a near guaranteed warming close to two degrees, ongoing hesitations and protracted deliberations are no longer possible. We need exacting legal sanctions that punish individuals who threaten disruption of our most vital life systems: if not from an ecological appreciation of our environment and its species, but from an anthropocentric lens regarding the delivery of our most basic human rights.
As the Rome Statute professes in its preamble, its ambit is to protect the peace and security of international society from the gravest crimes that “shock the conscience of humanity”, for present and future generations. It is intuitively clear that significant environmental harms threaten not only environmental rights but also all other human rights, for present and future generations. There is a compelling argument that this consideration should be transposed into legal rules and enforcement.
We would be wise to reflect on the potential consequences of further exploitation of nature and put limits in place to ensure any developments no longer reflect a one-sided relationship. Protecting our planetary boundaries protects our peace and security, and the route to action in this regard is enforceable law, for people and nature, on Earth and in space.
Ecocide may be conceived as the missing crime against peace.
Anna Maddrick is a Climate Adviser at the Permanent Mission of the Republic of Vanuatu to the United Nations, New York, and PhD student at the University of Bologna, focusing on ecocide law.
