Literature Review

The missing link in discussions and debates about climate change are the carbon criminals. These are governments (the key focus for climate action) and transnational corporations (the key drivers of global warming). While state-corporate collusion in support of activities that add to and rationalise carbon emissions is widely acknowledged, rarely are such activities and denials of harm subject to the discourses of criminalisation. Recent efforts to name these as transgressions and injustices have done so under the rubric of ecocide. Despite foreknowledge of the immense harms it will cause, global warming continues apace. This article explores the dynamics of climate change criminality through discussion of the perpetrators of climate-related harm, issues of responsibility and responses to the causes of climate injustice.

Questions concerning (nonhuman) animal rights have been increasingly addressed within the criminological literature due to growing interest in green criminology. Often within criminology, animal rights issues have been primarily addressed from philosophical standpoints, which omit how animal rights are addressed in more concrete terms through the legal system. This philosophical orientation toward animal rights, while important, has led to a neglect of the ways in which animal rights might be promoted through legal means. This article addresses that latter point by exploring the use of writs of habeas corpus for animals promoted by Steven Wise and the Nonhuman Rights Project (NhRP) in the US. Much of the NhRP’s efforts have been devoted to nonhuman primates, and consistent with that approach, this assessment focuses attention on legal efforts to protect nonhuman primates’ rights. In addition to NhRP efforts, other possibilities for using the law to obtain rights for animals in the US are examined. While this article focuses on circumstances in the US, several nations employ such writs or similar legal mechanisms.

This article provides an outline for action against climate change ecocide. Critical criminology has primarily focussed on exposing the political economy surrounding global warming and the powerful interests that perpetuate harmful practices even in the light of overwhelming scientific evidence. Questions of activist intervention have been less forthcoming, although specific attention has been given to concepts such as ecocide to highlight the criminality and social and ecological injustices involved in “business as usual.” After discussing the nature and dynamics of the nation-state and global capitalism, the article then presents an action plan matrix that incorporates elements relating to law and legal reform, environmental law enforcement, courts and adjudication, and social action. The article argues for the necessity of greater integration of theory and practice through the development of a social praxis for climate change justice.

The term ecocide was used as early as 1970, when it was first recorded at the Conference on War and National Responsibility in Washington, where Professor Arthur W. Galston “proposed a new international agreement to ban ‘ecocide’”. Ecocide as a term had no strict definition at that time: “although not legally defined, its essential meaning is well-understood; it denotes various measures of devastation and destruction which have in common that they aim at damaging or destroying the ecology of geographic areas to the detriment of human life, animal life, and plant life”. What was recognised was that the element of intent did not always apply. “Intent may not only be impossible to establish without admission but, I believe, it is essentially irrelevant.” Richard A. Falk, in his draft (1973) Ecocide Convention, explicitly states at the outset to recognise “that man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace”. By the end of the 1970s the term itself seems to have been well understood. So how was it that an international crime whose name was familiar to many who were involved in the drafting of the initial Crimes Against Peace was completely removed without determination? Documents that have only now been examined and pieced together shed a whole new light on a corner of history that would otherwise be buried forever. What is so remarkable is that the collective memory has erased this crime in just 15 years, and yet documents tell a story of engagement by many governments who supported the criminalisation of ecocide in peacetime as well as in wartime. Extensive debate over 40 years, with committees of experts specifically tasked to undertake examination of ecocide and environmental crimes, documented in the paper trail left behind tells us that this was well-considered law; early drafts, which have been referred to in some of the papers that have been uncovered, provide definitive reference to ecocide as a crime which was to stand alongside genocide as a Crimes Against Peace – both during peacetime as well as wartime.

A number of studies have shown that ecocide can be a method of genocide if, for example, environmental destruction results in conditions of life that fundamentally threaten a social group's cultural and/or physical existence.Footnote1 With the ever-increasing rise of such cases of ecological destruction brought on by the extractive industries, or indirectly induced by anthropogenic climate change, we argue that the field of genocide studies should draw from the rich scholarly tradition of political ecology and environmental sociology. Indeed, it is the contention of the authors that, given the looming threat of runaway climate change in the twenty-first century, the advent of the geological phase classified by geologists and earth scientists as anthropoceneFootnote2 and the attendant rapid extinction of species, destruction of habitats, ecological collapse and the self-evident dependency of the human race on our biosphere, ecocide (both ‘natural’ and ‘manmade’) will become a primary driver of genocide. It is therefore incumbent upon genocide scholars to attempt a paradigm shift in the greatest traditions of scienceFootnote3 and to cohere a synthesis of the sociology of genocide and environmental sociology into a theoretical apparatus that can illuminate the links between, and uncover the drivers of, ecocide and genocidal social death.Footnote4 Following a discussion of both the conceptual and legal nexus between ecocide and genocide, we further contend that capitalist ‘land grabs’ carried out by extractive industries, industrial farms and the like are, through the annexation of indigenous land and the associated ‘externalities’, the principal vectors of ecologically induced genocide when the genos in question is an indigenous people.

Continuing injustices and denial of rights of indigenous peoples are part of the long legacy of colonialism. Parallel processes of exploitation and injustice can be identified in relation to non-human species and/or aspects of the natural environment. International law can address some extreme examples of the crimes and harms of colonialism through the idea and legal definition of genocide, but the intimately related notion of ecocide that applies to nature and the environment is not yet formally accepted within the body of international law. In the context of this special issue reflecting on the development of green criminology, the article argues that the concept of ecocide provides a powerful tool. To illustrate this, the article explores connections between ecocide, genocide, capitalism and colonialism and discusses impacts on indigenous peoples and on local and global (glocal) ecosystems.

This article aims to assess the suitability of the concept of ‘animal dignity’ as a normative principle for the legal approach towards animals. Through an analysis of the recent debate on the applicability, meaning(s) and implications of dignity to (non-human) animals, it will defend the argument that, despite its conceptual vagueness, the concept of ‘animal dignity’ has the potential to address some of the shortcomings in the current paradigm based in animal welfare, as well as in the often proposed paradigms based in ideas of animal rights. By taking a neo-pragmatic perspective (focusing on the use rather than the exact—but impossible to pinpoint—meaning of ‘animal dignity’), it seeks to demonstrate that traces of animal dignity can already be found in positive law, e.g. in the attention given to the intrinsic legal relevance of animals and their interests. It also argues that dignity does not need to be a monolithic concept applicable in the same way to all animals, but can be adapted to species-specific needs to flourish: dignity is therefore more of a sliding scale, depending on the breadth and width of the needs of each animal species. The article concludes that introducing ‘animal dignity’ as a normative principle in the legal realm might be a desirable step towards more-than-human legalities in the Anthropocene.

This Article demonstrates that states, and arguably individuals and organizations, causing or permitting harm to the natural environment on a massive scale breach a duty of care owed to humanity in general and therefore commit an international delict, ecocide. 3 The Article then examines the extent to which ecocide could be considered an international crime. Ecocide is identified on the basis of the deliberate or negligent violation of key state and human rights and according to the following criteria: (1) serious, and extensive or lasting, ecological damage, (2) international consequences, and (3) waste. Thus defined, the seemingly radical concept of ecocide is in fact derivable from principles of international law. Its parameters allow for expansion and refinement as environmental awareness engenders further international consensus and legal development.

A wide range of actions imperil the planet and threaten the future of humanity and other species. This essay notes some examples of crimes and harms damaging to the environment and human and non-human species as well as various forms of response that have called for more effective and appropriate models of justice and law than currently prevail. This leads to a discussion of several suggestions regarding the development and expression of an earth jurisprudence and to the history of a proposal that “ecocide” be recognised internationally as a crime. Analysis of documentary sources traces this idea from debates about the concept of genocide to consideration by United Nations officials as to how crimes against the environment might be defined, and shows how near such a proposal has previously come to acceptance and enactment. The article concludes with an argument for supporting a law of ecocide as the 5th Crime against Peace.

The International Criminal Court (ICC) was set up in 2002 to try cases alleging crimes against peace: genocide, war crimes, crimes of aggression and crimes against humanity. There are compelling arguments for a fifth crime against peace: the crime of ecocide. Generations to come will scarcely believe that we acted with such myopic self-interest at the cost of all life on earth. The ‘war’ that we have waged against the planet is an attack on the peaceful enjoyment of the habitats of all species. A small but important part of the change in international policy would be the creation of ecocide as a new crime against world peace. Broadly defined, ecocide is the significant damage to or destruction of an ecosystem to such an extent that peaceful enjoyment of a part of the planet will be substantially diminished.Decision-makers in companies, organisations or states that cause ecocide would be held accountable in the ICC. Accountability for the ecocide crime is not just the desire of a small number of environmental crusaders. It is a view that is gaining widespread international support from ordinary citizens, politicians and academics. As environmental lawyers, we are morally obliged to add our knowledge and voice to the debate.

All living kinds, human and nonhuman, require rights to water. A UN Declaration upholds rights to clean drinking water and basic sanitation for humans, and some environmental legislation seeks to assure minimal flows of water in ecosystems. However, such rights are situated within complex social and political relations that are often far from equal. The distribution and management of water is entangled in issues such as ethnicity, class, gender, and levels of enfranchisement, and is heavily dependent upon how beliefs and values about water are represented in dominant narratives. Although water has been regarded a “common good” for millennia, many forms of collective ownership of freshwater have been overridden by colonial appropriations and by attempts to enclose and privatize water resources and to reframe them as commercial assets. An accelerating global water crisis caused by climate change, intensifying farming, and the over-allocation of water resources reveals unsustainable pressures on freshwater ecosystems. There have been concomitant losses of access to water for less powerful human communities, and most particularly for nonhuman beings. As a result, approximately two hundred species become extinct every day. Widespread environmental degradation has caused indigenous communities to critique the exploitative practices of colonial societies and to promote alternate and more egalitarian visions of human-nonhuman relationships. Inspired by these alternate cultural beliefs and values, and sometimes in alliance with indigenous people, conservation organizations and environmental activists have sought ecological justice to protect nonhuman beings and their habitats. Many are demanding that the UN should declare “rights for nature” and that the International Court of Criminal Justice should define “ecocide” as an international crime. Anthropologists have challenged dominant dualisms about culture and nature, providing accounts of diverse cultural worldviews in which all living kinds inhabit a nonbifurcated world. They have underlined the fluid interelationalities between human and nonhuman beings and the material environment. Building on a strong disciplinary history of advocating for human rights, they are exploring ways to articulate nonhuman needs and interests, for example, in new forms of river catchment management. There is growing consensus about the need to encourage forms of “pan-species democracy” that will ensure that all living kinds have sufficient rights to water and to the conditions that enable them to flourish.

Twenty-five years ago, in the first issue of Animal Law, the author offered an account of why legal rights do not need to be restricted to human beings. Here the author expands upon that account to provide a review of the ongoing struggle of the Nonhuman Rights Project (NhRP) to obtain legal rights for nonhuman animals. The Author outlines habeas corpus cases the NhRP has brought on behalf of chimpanzees and elephants in New York and Connecticut and provides a view of the New York and Connecticut Pet Trust Statutes, which grant certain nonhuman animals the right to be named a beneficiary of a trust, thereby implicitly creating their legal personhood. This Article further argues that legal personhood does not attach to humans alone and illuminates the varieties of judicial responses it has encountered in its effort to persuade courts to assign legal personhood to nonhuman animals.