September 29, 2022

Jeevesh Dubey

The author is a student at National Law University Nagpur

INTRODUCTION:

Humanity and the environment are inextricably intertwined and reliant on one another. The destruction of the environment has had a significant impact on the current human generation and poses a threat to future generations as well. The global state of health and healthcare expenditures point to the necessity for legislative measures to protect the environment to avert the majority of health problems. The existing national legislation for sustainable development only covers a narrow geographic area, and global law is necessary to safeguard the entire planet. While making it unlawful to harm the environment, the legislation should also encourage its long-term usage. It’s one thing to utilize the environment sustainably, and another to return it to its natural condition. The hour requires to make improvements that will help to boost the economy while maintaining environmental stability. Because of the increased loss of biodiversity around the world and the lack of reversing techniques to compensate for system failure, considering ecocide as an international crime is the single most powerful approach for highlighting the importance of maintaining the security of our planet on a global scale. Ecocide is described as “a large-scale harm or destruction that would result in a significant transformation of the global commons or the Earth’s ecological system” – on which all living species, including humans, rely – while remaining within known planetary bounds. Ecocide thus encompasses all significant environmental disasters, but it is most commonly associated with anthropogenic (human-caused) consequences. The irresponsible exploitation of the planet’s finite resources by humanity has resulted in the current fast climate change and the sixth mass extinction catastrophe. As a result, the current and future generations’ existence is jeopardized. To protect biodiversity and future generations’ rights, a new definition of well-being and prosperity is required, one that is founded on scientific knowledge of these concepts. The term “ecocide” literally means “killing the environment.”

The word ecocide is derived from the Latin verb ‘caedere,’ which means ‘to cut down’ or ‘to murder.’ It is derived from the ancient Greek word ‘Oikos,’ which means home, or the Latin word ‘eco,’ which means ‘household,’ and has come to signify ‘habitat,’ or ‘environment,’ through time. The term ‘homicide’ refers to the killing of a human person, with ‘homo’ meaning ‘human’ in Latin. As a result, ecocide is a crime against ecosystems. It might be used for any human activity that causes significant environmental harm or destruction. There is currently no law that makes such harm illegal, though many environmentalists are advocating for it to be changed.

DEMAND TO CONSIDER ECOCIDE AS CRIME:

Before the United Nations Conference on Sustainable Development in Stockholm in June 2022, international leaders will emphasize the binding principles and rules for considering ecocide as a crime at the International Criminal Court (ICC)[2]. The UN Stockholm Meeting, the first worldwide conference on environmental issues, was organized in 1972 to address concerns about environmental degradation[3]. Expert publications from international organizations, such as the International Energy Agency’s “Net Zero by 2050,”[4] are weighing in. The report serves as a reminder that time is running out to meet the “Paris Agreement’s” and “IPCC’s” “Special Report on Global Warming of 1.5°C” targets.[5] Professor Arthur W. Galston invented the term in 1970 to characterize the impacts of the United States’ deployment of Agent Orange in Vietnam. At the time, Galston advocated an international accord to prohibit ecocide. In early draughts of what has become the Rome Statute of the International Criminal Court, it became recommended for inclusion as a further offense along the worldwide crimes prosecuted withinside the Nuremberg trials (battle crimes, genocide, and crimes in opposition to humanity) (ICC), but was ultimately excluded. According to the WWF’s current Living Planet Report,[6] the population number of mammals, birds, fish, amphibians, and reptiles has decreased by 68 percent globally, and by as much as 94 percent in Latin America. Similarly, the “Royal Botanic Gardens”, Kew’s latest State of the World’s Plant and Fungi Report finds that 39 percent of all plants and species – about 140,000 – are on the verge of extinction in the coming decades[7], with the primary cause being the degradation of natural resources and ecosystems. Biodiversity loss and the climate emergency are serious dangers to humanity, as the first UN Environment Programme synthesis report and the first joint IPCC/IPBES Report[8] have recently demonstrated. International firms’ illegal environmental degradation in low-income, biodiverse countries risks exacerbating the problem of global inequities and systemic injustice. It is vital to protect nature to solve both biodiversity loss and the climate issue at the same time.[9]

UNDERSTANDING OF DEFINITIONS AND PROPOSED DRAFT:

The concept was initially proposed by the late Swedish Prime Minister Olof Palme. At a 1972 environmental symposium in Stockholm, he attempted to promote the notion of ecocide[10]. The Daily reported Prof. Philippe Sands of University College London, who is also a Queen’s Counsel, as saying: “The four other crimes are all solely concerned with human well-being. Of course, this one accomplishes that, but it also proposes a new non-anthropocentric approach, namely, placing the environment at the center of international law, which is unique and novel. The most important aspect of this initiative for me is that it is part of a larger process of changing public consciousness, recognizing that we are in a relationship with our environment, that we are dependent on the environment for our well-being, and that we must use various instruments, political, diplomatic, and legal, to achieve environmental protection.”[11]  Polly Higgins, a lawyer, and environmental activist urged the United Nations in 2010 to establish an international crime of ecocide. Despite the UN’s rejection of her case, the International Criminal Court (ICC) said in 2016 that it would consider environmental degradation to be a “crime against humanity.”[12] The Rome Statute also excludes corporate and state accountability. In other words, firms and states that pollute water and air, participate in unlawful deforestation, or produce oil spills during peacetime are immune from prosecution. ICC crimes have no legal consequences for injuries that occur during times of peace.

The Rome Statute of the International Criminal Court (ICC) goes on to define crimes against humanity as “acts committed as part of a massive systematic onslaught designed against any civilian population.” Many people believe the term is too restrictive to include ecocide under the ICC’s jurisdiction. Ecocide was recently defined by a group of attorneys as “unlawful or wanton acts performed with an awareness that there is a strong risk of severe and widespread or long-term environmental harm as a result of such acts” on June 22, 2021.[13]

  • “Wanton” denotes a wilful disregard for harm that would be excessive in comparison to the anticipated social and economic gains;
  • “Severe” refers to environmental damage that causes drastic changes, disruptions, or harm to any aspect of the environment, including significant consequences for “human life or natural, cultural, or economic resources”.
  • “Widespread” refers to harm that goes beyond a defined geographic region, transcends state borders, or affects an entire ecosystem, species, or big group of people.
  • “Long-term” harm is defined as damage that is permanent or cannot be repaired via natural healing in a reasonable amount of time.
  • “The planet, its biosphere, cryosphere, lithosphere, hydrosphere, and atmosphere, as well as outer space, are all considered environments”.[14]

The conduct must be harsh and either widespread or long-term, and it must also be unlawful or wanton, according to the criteria. Furthermore, an offense will not be committed just because of pollution or environmental damage[15]. But either from the willful lack of safety standards or from knowing the extent of the damage that would be done. Furthermore, the men’ rea concept set out in Article 30 of the Rome Statute was deemed insufficient to encompass severe, widespread, or long-term environmental damage. The draft’s goal is to make increasing environmental difficulties punished to avoid additional harm to the environment. The conservation of the environment is thus inextricably related to the protection of people and the world as a whole.

NATIONAL AND INTERNATIONAL VIEW ON ENVIRONMENT PROTECTION:

Different national and international laws emphasize the importance of balancing environmental protection and economic development. The right to a safe, tidy, and healthy environment has been included in the basic “right to life”, demonstrating the significance of both the environment and life. Royal Dutch Shell was ordered by a court in the Netherlands in May 2021 to reduce its emissions by 45 percent by 2030. In the same week, Australia’s Federal Court found that the Minister for the Environment owed a duty of care to protect Australian children from climate change’s effects. Air pollution claims are increasingly being heard in courts throughout the world, putting pressure on governments to follow the law. Citizens are increasingly conscious of and exercising their human rights to a clean environment, which is one of the causes behind this. With greater capacity in this area, judges are becoming increasingly conscious of the vital role they play in climate and environmental adjudication.

  • State of T.N v. Hind Stone:[16]

Natural resources include rivers, trees, minerals, and other natural resources. A single generation cannot waste and exhaust these resources. To the best of their abilities, each generation owes it to future generations to develop and conserve the nation’s natural resources.It is in the best interests of the entire world. It is in the national interest.[17]

  • T.N. GodavarmanThirumulpad v. Union of India:[18]

Our legal system, which is founded on English common law, incorporates the public trust concept as part of its jurisprudence, as this Court noted in M.C. Mehta v. Kamal Nath.[19] The state is the custodian of all-natural resources that are intended for public use and pleasure by their very nature. The coastline, flowing waterways, air, woods, and environmentally delicate territories all benefit the general population. The state has a legal obligation to safeguard natural resources as a trustee. These resources, which are intended for public use, cannot be turned into private property.

  • Jitendra Singh v. Ministry of Environment:[20]

Water bodies, in particular, are a valuable source of fisheries and much-needed drinkable water. Many parts of the nation are perpetually afflicted by water shortages, and most Indians have insufficient access to safe drinking water. Allowing such precious communal resources to be taken over by a few people is thus unethical.

REASON BEHIND INTRODUCTION OF ECOCIDE:

The draft’s goal[21] is to include ecocide as a crime among the four other categories of crimes that already exist: genocide, war crimes, crimes against humanity, and aggression. As the conclusion made by scientific shreds of evidence, the environment would undoubtedly suffer catastrophic repercussions as a result of greenhouse gas emissions and ecosystem degradation at present rates on the earth and the environment.

“Thus with political, diplomatic and economic initiatives, international law has a role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony.”

Environmental crimes are now only considered international crimes during times of armed conflict. “Destruction of the natural environment may not be used as a weapon,” says Article 35(3) of the Additional Protocol. It is also necessary to mention deliberate crimes that negatively affect and destroy the environment.[22]

BENEFITS:

The addition of ecocide as the fifth international crime is significant since it brings with it a slew of benefits. To begin with, the environment will reclaim its lost relevance, which has been pushed aside by a selfish human race that is always abusing it to acquire more and more economic benefits. Second, member nations may be motivated to amend their criminal laws, increasing the severity of the crime and environmental protection. Third, it will aid environmental law crimes that are not covered by national laws and cannot be included in the four international law crimes currently in place.[23]

CONCLUSION:

Making environmental harm a crime and the offender a criminal is a need in today’s technologically evolved society, which is continually pursuing economic advantage. The continuing exploitation of the environment must be stopped; otherwise, the end of the planet is near, as daily news reports indicate forest fires, glacier melting, and, according to some sources, the use of Covid-19 as a bioweapon. As a result, international authorities must acknowledge the concept and document, and every country should attempt to sign it.


[1] Jeevesh Dubey, a 1st-year law student at Maharastra National Law University, Nagpur.

[2]Ministry of Environment Affairs, “Stockholm+50”, (The Government Offices of Sweden, 2022), available at<https://www.government.se/government-policy/stockholm50/>, visited on 11-01-2022.

[3]  United Nations, United Nations Conference on the  Human Environment,  5-16 June 1972,  Stockholm,  Environment and Sustainable Development, available at<https://www.un.org/en/conferences/environment/stockholm197>, visited on 11-01-2022.

[4] IEA (2021), Net Zero by 2050, Paris, available at<https://www.iea.org/reports/net-zero-by-2050>, visited on 11-01-2022.

[5] The Intergovernmental Panel on Climate Change (IPCC), Special Report on Global Warming of 1.5°C, <https://www.ipcc.ch/sr15/>, visited on 11-01-2022.

[6] The Royal Botanic Gardens, Kew,State of the World’s Plants and Fungi,(2020) <https://www.kew.org/science/state-of-the-worlds-plants-and-fungi>,visited on 11-01-2022.

[7] Eimear Nic Lughadha, et al., Extinction Risk and Threats to Plants and Fungi, 29-9-2020, available at <https://doi.org/10.1002/ppp3.10146>, visited on 11-01-2022.

[8] Eimear Nic Lughadha, et al., Extinction Risk and Threats to Plants and Fungi, 29-9-2020, available at <https://doi.org/10.1002/ppp3.10146>, visited on 11-01-2022.

[9] Alexandre Antonelli and Pella Thiel, Ecocide Must be Listed alongside Genocide as an International Crime, <https://www.theguardian.com/environment/commentisfree/2021/jun/22/ecocide-must-be-listed-alongside-genocide-as-an-international-aoe>, visited on 11-01-2022.

[10] A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>, visited on 11-01-2022.

[11] Sujit  Bhar, A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>,visited on 11-01-2022.

[12] John Vidal and Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases, The Guardian, 15-9-2016, available at<https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases>, visited on 11-01-2022

[13] Siddique, Haroon,  Legal Experts Worldwide Draw up “Historic” Definition of Ecocide,  The Guardian, 22-6-2016, available at <https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 11-01-2022.

[14] Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and Core Text, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 20-01-2022.

[15] Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and CoreText, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 20-01-2022.

[16] State of T.N. v. Hind Stone, (1981) 2 SCC 205, 212.

[17] (1981) 2 SCC 205, 212.

[18] (2002) 10 SCC 606, 638.

[19] (1997) 1 SCC 388.

[20] 2019 SCC OnLine SC  1510.

[21] Haroon Siddique,  Legal Experts Worldwide Draw up “Historic” Definition of ecocide, The Guardian, 22-6-2021, available at<https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 20-01-2022.

[22] Racheal Tillman, Coalition of Lawyers Push for “Ecocide” to be an International Crime, Spectrum News 1, 24-6-2021,  available at<https://spectrumlocalnews.com/nys/central-ny/news/2021/06/24/ecocide-international-criminal-court-proposal-lawyer>,visited on 20-01-2022.

[23] Mélissa Godin, Lawyers are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account? 19-2-2021, available at<https://time.com/5940759/ecocide-law-environment-destruction-icc/>,visited on 20-01-2022.

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