Literature Review

This article explores the barriers to international criminal law penalizing environmental destruction. Given the strong arguments that favor the creation of international environmental offenses, perhaps the key question should be: why is there not (already) a comprehensive international criminal law of the environment? This Article proposes that the emergence of an international criminal law of the environment is dependent on four distinct elements whose assemblage requires great care: international law, a regime increasingly emphasizing cooperation but also traditionally built on state sovereignty and equality; the global environment, a complex and all-encompassing notion whose protection as a global public good is problematic; international environmental law, the branch of public international law most specifically concerned with the protection of the environment but perhaps not naturally inclined to criminalization; and criminal law, a regime emphasizing public order, individual guilt, and punishment.

International criminal law is an imperfect tool for solving broad environmental problems. Issues such as climate breakdown are primarily political and economic in nature, and require political and economic solutions.In the absence of effective political leadership in this space, the definition of wanton acts is an ambitious attempt to bring international criminal law to bear on these broad problems. It would require the ICC to balance the environmental damage of an activity against the economic and social benefits it may bring. Finding a consistent and fair approach would be a difficult task for the ICC.

The “Rights of Nature” movement stems from traditional Indigenous knowledge that recognizes the interconnectedness of all living beings. It could eventually spur legal protection for water, animals and ecosystems, but would require a remaking of the United States’ legal system.While some of the most recent municipal and court actions may be good symbolic first steps, law professor Noah Sachs said, they haven’t yet led to any meaningful enforcement or protection of nature in the U.S.

The environment provides a multitude of ecosystem services that ensure our well-being; clean water, pure air, and food, to name a few. Yet, individuals continue to degrade the environment with little to no recourse. Current international laws in place prove ineffective in protecting our environment at a global level. Thus, it is time to enact stricter international laws to hold big polluters accountable.Ecocide, broadly understood to mean mass damage and destruction of ecosystems – severe harm to nature that is widespread or long-term, is a continuing issue on our planet. Thus, it is necessary to criminalize such action to prevent further environmental degradation. The Independent Expert Panel, convened by the Stop Ecocide Foundation for the Legal Definition of Ecocide, recently proposed an amendment to the Rome Statute of the International Criminal Court to include the crime of ecocide. While this proposal offers a viable solution to our current environmental issues, there are several weaknesses in the proposal. This article analyzes the history of ecocide, the proposed Rome Statute amendment, and the weaknesses of the proposed amendment. Through this analysis, it becomes clear that it is necessary to criminalize ecocide despite the disadvantages.

The proposal to include ecocide as the fifth crime in the Rome Statute of the International Criminal Court ('Rome Statute') is part of ongoing efforts by jurists aimed at enhancing environmental protection through international criminal law. If adopted, the crime would be the first standalone environmental crime under the Rome Statute. Its proponents view it as a powerful liability norm for dealing with the humanitarian, ecological and structural aspects of environmental damage that together threaten international peace and security. Its accommodation into the Rome Statute would necessitate changes to the substantive provisions of the Statute. In light of the controversial change, this article raises questions about its feasibility as a criminal liability norm and concludes that the crime of ecocide represents an appropriate legal response to environmental damage. This argument is anchored on the ecological integrity framework understood as a grundnorm for international law.

As part of its Rights of Nature movement in 2012, Bolivia adopted a new approach to environmental law. In view of its status of South America’s poorest country, with nearly 40% of it’s citizens living in poverty, this undertaking surprised many countries. Economists fear the increased challenges it may cause, while environmentalists largely support it.

The rich potential of legal rights in advancing planetary health is no longer untapped. “The right to a clean, healthy and sustainable environment as a human right” is now recognized.

Argyrou and Hummels analyse the language of New Zealand’s Te Awa Tupua Act, which assigns the Whanganui River legal rights with Māori guardianship to preserve the cultural and spiritual relationship of the land and the people. Because the Whanganui River is central to the identity of the Māori people, there are clear grounds upon which to justify its designation of legal personhood; without the interdependence of the two, this would be significantly more difficult to accomplish. Argyrou and Hummels argue beyond ecocentric and anthropocentric conceptions of humans’ relationship to nature, instead proposing a third alternative wherein nature and humanity are connected as a single entity in an “intertwined economy.” This new conception necessitates the consideration of the health and needs of both the people and the river, allowing putting forth a new model of sustainable development which includes legal rights.

While earth system governance has become a well-researched topic, its corresponding link to law has received relatively little scholarly attention. In this article, Kotzé and Kim advocate earth system law as a holistic response to the unique regulatory challenges posed by the Anthropocene epoch. The authors outline a variety of ways in which the law as it is currently conceived is not equipped to address the rapidly changing social and ecological conditions of the modern era, arguing instead for deep structural reforms and global governance beyond state-centric systems. Drawing a distinction between international law and planetary law, Kotzé and Kim propose a framework for earth law that departs from traditional environmental regulation by elevating nature beyond its status as a utilitarian object. Unlike ecological law, earth law embraces the planet as a human-dominated, socio-ecological system that looks toward the future in developing a vision to sustain a diversity of life for generations to come. As climate change progresses, Kotzé and Kim remind us that it is increasingly urgent for the global community to champion legal paradigms that take a proactive approach to prevent us from crossing key planetary boundaries

The practice of granting legal personhood to rivers, lakes and other natural sources was until now limited to certain areas of countries with Indigenous populations. his international momentum mirrors a number of initiatives in France, many of them led by groups of local residents who defend the rights of rivers, including the Tavignano River in Corsica, the Garonne in Nouvelle-Aquitaine and the Têt in the Pyrénées-Orientales.

One of Thomas Berry’s major contributions to what he called the Great Work was his articulation of the principles and philosophy of Earth Jurisprudence. (...) “Earth Jurisprudence is the term first used by cultural historian Thomas Berry to name the philosophy of governance and law, in which the Earth, not human interests, is primary. As he saw it, even the United States Constitution is fundamentally flawed by reserving all rights for humans and recognizing none for nature. For Thomas, the deficiency cries out for a fundamental transformation of our modern ideas of law. At the heart of this transformation, he noted, is the shift from a human-centered to an Earth-centered understanding of our relationship with the larger community of life. A profound change in perspective, he felt, would enable humans to recognize and protect the inherent rights of the natural world. Given that the prevailing jurisprudence system does not protect other species or components of the living Earth, Thomas asked what would a different system look like?

In this article, Barentine argues that conventional Western modes of regulation fail to meaningfully mitigate light pollution. Artificial light at night (ALAN), which he describes as a “reverse ‘tragedy of the commons,’” has adverse effects on systems from global economics to biological processes. Barentine considers both legal and legislative avenues as possible pathways to pursue the regulation of light pollution, but concludes that neither one is a reliable option given the magnitude of the issue and the pervasiveness of lackluster policies meant to tackle it. As an alternative, Barentine advocates a Rights of Nature approach to managing light pollution that recognizes the inherent natural value of dark nights for ecosystems and the public good. Barentine does recognize that Rights of Nature paradigms are novel, and their success in mitigating ALAN would largely be measured by the extent to which they raised public awareness about the dangers of light pollution.