Literature Review

Scientific evidence indicates that the global environmental crisis is accelerating and that environmental laws have not been able to reverse the trend. A movement to recognize nature as a rights holder argues that existing laws regulate, rather than stop, the destruction of the natural world. Instead of incrementally reforming such laws, a growing number of jurisdictions around the world have recognized rights of nature. This may better protect natural systems, though questions remain and contributions from various disciplines will be necessary to implement this rights revolution and ensure its effectiveness.

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see if, like corporations, the Constitution might be sufficiently capacious to allow nature direct access to Article III courts. Finding toeholds in these theories, the Article identifies some institutional and practical problems with allowing nature to appear directly in court. The Article suggests possible answers to these problems, such as limiting the type of cases brought by nature to those that involve important and/or irreplaceable resources threatened by government inaction and requiring that nature must be represented by lawyers who have sufficient expertise, commitment, and resources to prosecute her interests. While success is not guaranteed, nor can it ever be, the author hopes that others, like the lawyers representing Little Mahoning Creek, will petition for judicial relief in nature‘s name. Given the rigidity and hostility of the current Court‘s standing jurisprudence, the intransigence of Congress, and the over-crowded agenda of the Executive Branch, this may be the only way to protect our disappearing natural resources.

Throughout the last thirty years bushfires or wildfires have increased globally with devastating impacts on ecosystems, human habitats and greenhouse gas emissions. The recording of unprecedented temperatures coupled with the warming of international oceans, and the melting of polar icecaps from anthropocentric climate change are major contributors to the increase of global wildfires that are forecasted to worsen unless urgent political intervention reduces greenhouse gas emissions. The state and corporate actors that enable widespread toxic emissions have been referred to as ‘climate criminals’ within discourses of ecocide and green criminology. This article adopts a green criminological lens to the emerging concept of ‘ecocide’ to examine political leaders and their mismanagement of devastating bushfires. Through a detailed interrogation of Australia’s Royal Commission into National Natural Disaster Arrangements it traces the devastating Summer events of 2019/2020 and concludes that political inaction underpinned by fossil fuel economic priorities were instrumental in creating the contexts for a preventable environmental and human catastrophe.

This paper applies English School theory to explain the failure of efforts to establish ecocide as the fifth core international crime in the Rome Statute. It argues that while there is an emerging norm of environmental responsibility in international politics, the way this norm has been codified into laws has been influenced by two, arguably ‘stronger’ norms: the market and human rights. These two institutions of the international society have constrained the emergence of the norm of environmental responsibility. This has resulted in the establishment of utilitarian and anthropocentric environmental laws, rather than ‘ecocentric’ laws, as advocated by environmental lawyer Polly Higgins.

While recognizing economic development is important, it is necessary to strike a balance between such activities and its effect on the environment. With industrialization and economic prosperity being the underlining goals of various governments in various jurisdiction, the author indicates that these activities be carried out from an ecocentric view point, focusing on the importance of rights to nature and the problem of ecocide. History reveals the negative impact such activities have had on the environment. Environmental protections have been given international recognition; however, the modern approach of environmental activism has to be incorporated in the scheme of things. The author carefully explains the importance for the domestic and international community to move from an anthropocentric standard to an ecocentric one, by providing and statutorily recognizing the intrinsic value for nature. This is imperative in order to prevent events that have caused large scale destruction on the environment from repeating itself and preserve the original state of the earth for the benefit of both human and nonhuman life forms present in the ecosystem.

The current legal regime allows states and corporations to despoil the environment with impunity. This injustice has inspired a new movement of legal experts and citizens calling for the codification of ecocide as a fifth crime against peace, joining genocide, crimes of aggression, crimes against humanity, and war crimes. Their work aims to transform our understanding of nature from property to an equal partner with humans in building sustainable societies. The political and enforcement hurdles are formidable, but an awakened and engaged citizenry, strengthened by the Paris climate agreement, may prove powerful enough to elevate the prevention of crimes against nature to an internationally recognized norm.

This paper explores an international law of ecocide, “the mass damage and destruction of the environment resulting from human action,” arguing that it is a legal imperative. Upon tracing ecocide’s definitional challenge, the authors present environmental law, human rights law, and torts law as developing bodies of law that support ecocide as an international crime against peace “by building upon doctrines that link humanity with the environment as trustees, stewards and equally, potential violators of the duty to protect.” The authors conclude that while “[t]he viability of ecocide being inserted into the Rome Statute, or alternatively being the impetus for an alternative forum such as an International Environment Court, is universally considered difficult” at the time of writing, “ecocide law is a legal necessity that surpasses considerations of political lethargy.”

Though a discussion of the 2019 Brazilian Amazon fires, this article examines the contested politics of environmental rights in Brazil. It analyses how the concept of ecocide can offer a useful lens with which to articulate the socio-ecological consequences of President Bolsonaro’s extractive imperialism, and the persistent failure of current international governance frameworks to address the continuing widespread destruction of the natural environment. Firstly, the article places the concept of ecocide within the context of the international governance framework of the 2030 Agenda for Sustainable Development and the challenges that natural resource exploitation presents to the achievement of sustainable development in Latin America. Secondly, it presents an overview of the concept of ecocide that includes cultural genocide as a method for undermining a way of life and a technique for group destruction. Lastly, through an analysis of Brazil’s environmental politics, contested claims of sovereignty and the recent push for the industrialisation of the Amazon, the article considers whether claims of ecocide in the Brazilian Amazon can be substantiated when using the criteria for the crime of ecocide – namely the size, duration and impact of the extensive damage to, destruction of or loss of ecosystems in the Amazon rainforest.

The Lesotho Highlands Water Project is a bi-national collaboration between Lesotho and South Africa. One of the most comprehensive water projects in the world it aims to harness the water resources of Lesotho to the mutual benefit of both states. Once completed, about 2,200 million cubic metres per annum of water will be transferred from Lesotho to the South African network. In return, Lesotho will benefit in terms of ancillary developments and, in particular, revenue from royalties. However, due to hydropolitics, the Project has impacted negatively upon human security in Lesotho. This article examines the relationship of hydropolitics, ecocide and human security, with reference to the Project. It argues that due to the hydro-strategic interests of the political elite of both countries, co-operation exists between them over the Project. These strategic interests, however, outweigh social and environmental considerations in Lesotho, thereby constituting a threat to human security. The construction of the Project has resulted in ecocide and, as such, it has adverse environmental and social effects. It has contributed to chronic threats, while at the same time disrupting the patterns of daily life of the affected communities. Most of the displaced are no longer able to enjoy their human security as they did prior to the construction of the Project.

This essay adopts an interdisciplinary approach to consider the meaning of “eco-crime” in the aquatic environment and draws on marine science, the study of criminal law and environmental law, and the criminology of environmental harms. It reviews examples of actions and behaviors of concern, such as offences committed by transnational organized crime and the legal and illegal over-exploitation of marine resources, and it discusses responses related to protection, prosecution and punishment, including proposals for an internationally accepted and enforced law of ecocide. One key element of the policy and practice of ending ecocide is the call to prioritize the adoption of technologies that are benign and renewable. Our essay concludes with a description of the “Almadraba” method of fishing to illustrate that there are ways in which the principles of sustainability and restoration can be applied in an ethical and just way in the context of modern fisheries.

The term ecocide was first coined to categorize massive destruction of the environment in war. If the sheer scale of the harm done be the distinguishing feature of ecocide, it is contended that the term may justifiably be appled to peacetime activities that destroy or damage ecosystems on a massive scale. The author shows that, although ecocide has a long history, it had little impact on international law until the advent of catastrophic oil spills at sea, nuclear accidents, long-range air pollution, and the threat of global warmng. Then the international community began to demonstrate a growing concern, but the measures undertaken in response may already be too little and too late. The concluding part of the article deals with the more raical legal remedies (such as treating ecocide as an international crime) that may be needed to avert the threat of ecocide.

Ecocide is a structurally reoccurring phenomenon contributing to a serious disequilibrium in the Earth-system that buttress all planetary life. Ecocide is also a possible method of genocide if it fragments or destroys vital socioecological and cultural relationships between humans and nature. Practises that inflict ecocide are hence often responsible for the destruction of ecological and social life-systems that face adversities due to deteriorating ecological conditions. This article therefore articulates the importance of an international crime of ecocide that can prosecute perpetrators for acts of ecocide as well as ecocidally induced physical and cultural genocide under the jurisdiction of the International Criminal Court (ICC). In doing so, it outlines the structural drivers of ecocide, articulates the links between ecocide and genocide, and argues that the failure to establish an international crime against ecocide and its genocidal effects is a deeply rooted and unacceptable legal-epistemological disregard of alternative life-systems’ intrinsic right to existence by international law. In response, this article calls for an international crime of ecocide and its genocidal violence under the ICC not as a legal silver bullet but as a tool for larger processes of decolonisation which must be coupled with alternative methods of enforcement and resistance.