Everything viewed from a human rights-based perspective
Many jurisdictions regard violations against the environment as a civil wrong, for which the appropriate remedy is the imposition of compensation of fine. The notion that polluters pay is a principle widely entertained by many jurisdictions, which only comes into play after the environmental damage has occurred. An effort to penalize crimes against the environment was not made. Nature was regarded as a means for the survival of mankind.
Gone are the days where wars were fought with swords, bows, and arrows. Technological advancements enabled man to invent weapons of mass destruction capable of changing the face of the ecosphere. Mankind witnessed the devastating effects of chemical, biological, radiological, and nuclear weapons during the world wars. Following World War II, the plea for the recognition of human rights resonated across the globe. Learning from the past, the UN Charter reaffirmed the faith in human rights and acknowledged their inevitable role in achieving global peace and security. This also trigged the unveiling of various human rights, and the second half of the 20th century witnessed the birth of numerous instruments including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and various other treaties focused on rights of women and children.
It is pertinent to note that the impact of anthropogenic activities, especially wars, was only perceived as that affecting human rights. In other words, everything was approached through a human rights-based approach, ignoring the effects of such dreadful activities on the environment. Towards the 1990s, global warming and climate change were acknowledged as a global emergency requiring a global response. Once again, the need for sustaining the environment was regarded only as a necessity for the survival of future generations.
The emergence of ecocide
Damage to the environment has a transnational effect. Although the cause of damage occurs in one part of the world, its impact may occur in other regions. The Antarctic ozone hole and sinking states are examples to support this argument. The peculiar nature of this form of environmental damage is that it occurs because of ordinary anthropogenic activities and the consequences occur progressively. It would enable countries to take adequate measures to reverse the damage. But, what if the damage to the environment was caused at a large scale, intentionally by one state to cause dreadful consequences to another? Hypothetically this issue can be illustrated as follows. The Amazon rainforest, one of the largest carbon sinks, and biodiversity, located in Brazil play a key role in sustaining life on Earth. Therefore, damage done to the Amazon forests causes irreversible damage to the planet itself. Now, what if Brazil decides to conduct massive deforestation? Legally, the Amazon is within the territorial jurisdiction of Brazil, and its sovereignty entitles it to exploit its natural resources. Also, the mutual respect for sovereignty ideally prevents one state from interfering in the internal affairs of another. Further Article 2(7) of the United Nations Charter prohibits the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State[1].
Ecocide as the most serious crime of concern to the international community
A narrow approach would not solve the emerging challenge of transnational environmental crime, especially if such crime is committed intentionally causing mass damage to the environment. The international community acknowledged this global issue and termed it as ‘ecocide’[2], but the term is not yet legally defined. On 17 November 2020, the ‘Stop ecocide foundation’ announced the launch of the independent expert panel for the legal definition of ecocide, following a request by Swedish parliamentarians for a legally robust definition of ecocide[3]. The definition of ecocide is imperative to satisfy the principle of legality. The definition developed by the panel is to be proposed, by one or more State parties[4], as an amendment to the Rome Statute of the International Criminal Court. Once the proposed amendment is agreed by at least two-third majority[5] of States Parties, it shall be adopted in the Statute after a special crime review conference[6] where the final text of the amendment will be discussed and agreed by the majority of the States Parties.
It means an effort is made to expand the subject matter jurisdiction of the International Criminal Court to include emerging forms of serious crimes of concern to the international community as a whole.
Ecocide as a new form of the threat or use of force
Ecocide may be interpreted as an emerging form of the ‘threat’ or ‘use of force’ prohibited by Article 2(4) of the UN Charter.[7] The possibility of using ecocide as the use of force cannot be ignored, taking into consideration the changing dimensions of war or armed conflict. Recognition of ecocides as means of the threat or use of force would legally bypass the restriction on the UN under Article 2(7) of the Charter which prevents the UN from intervening in matters which are essentially within the domestic jurisdiction of any State. In effect, such recognition would justify the intervention of the UN Security Council, under Article 39 of the UN Charter, to determine the existence of such threat to peace or act of aggression and to adopt such measures to maintain or restore peace and security.
This does not mean that trivial and independent incidents such as forest fires, oil spills, etc. may be regarded as a ground for UN intervention. Such possibility of misuse is prevented by Article 2(7). Thus, UN intervention would be justified only when the damage to the environment occurs in a widespread and systematic way, affecting international relations, and the responsible national government willfully causes destruction and/or neglects or omits to take measures to prevent such damage.
Invoking the state responsibility
The notion of ecocide may also be interpreted considering the ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts.’ According to Article 1, every internationally wrongful act of a State entails the international responsibility of that State. Article 33 provides that such obligations of the responsible State may be owed to another State, to several States, or to the international community depending on the character and content of the international obligation. Undoubtfully, mass destruction of the environment affects the international community. Hence, the responsible States are under an obligation not to intentionally cause such damage. Further, Article 29, which provides for the continued duty of performance of obligation, read with Article 30 obliges the concerned responsible State to cease the wrongful act and to offer appropriate assurances and guarantees of non-repetition.
Declaring crucial biodiversity as the common heritage of mankind
Ecocide may also be prevented by using the notion of ‘common heritage of mankind’. The idea is to identify, preserve and protect crucial biodiversity, such as the Amazon rainforest and Artic region, by declaring it as the common heritage of mankind. Theoretically a possibility, but practically hardships may occur due to the opposing wave of the notion of sovereignty.
Conclusion
Many national jurisdictions are now making endeavors to criminalize conduct that causes damage to the environment. But these efforts would be meaningful only if such crime is recognized on par with other most serious crime of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes, and crime of aggression[8]. This reinforces moral power in people’s mind. This article concludes with a prayer to the reputed readers to support the Stop Ecocide foundation and sign the international petition[9] to support making ecocide an international crime. Stop ecocide before nature commits homicide.
Varun Vivekanandan is an advocate practicing at the High Court of Kerala, India and an affiliate member at the International Criminal Court Bar Association. He is a member of the UNODC Counter-Terrorism e-learning platform and is presently studying LL.M in Transnational Crime and Justice at the United Nations Interregional Crime and Justice Research Institute.
[1] Article 2(7) of the UN Charter states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” Available at Chapter I: Article 2(7) — Charter of the United Nations — Repertory of Practice of United Nations Organs — Codification Division Publications.
[2] According to the Stop Ecocide foundation, “ecocide is mass damage and destruction of ecosystems- harm to nature that is widespread, severe or systematic”, available at What is ecocide? — Stop Ecocide.
[3] European parliament urges support for making ecocide an international crime, available at European Parliament urges support for making ecocide an international crime — Stop Ecocide.
[4] Any state which has ratified the Rome Statute of International Criminal Court may propose an amendment. There are currently 123 States Parties.
[5] Vote in favor by minimum 82 States Parties out of 123.
[6] Review conference of the Rome Statute, available at Review Conference (icc-cpi.int).
[7]Article 2(4) of the UN Charter prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial integrity and political independence of other States.
[8] Article 5 of the Rome Statute of the International Criminal Court.
[9] Support making ecocide an international crime by signing the petition at Stop Ecocide.
Well written article. It cites the need for the evolution of international law , especially international Criminal law , to meet global challenges. But such an evolution is retarded by the differing state practice which forms the backbone of public international law.