BLOG: Ecocide – getting serious about environmental justice

This week is the 26th United Nations Climate Change Conference (COP26), in Glasgow.

To mark the occasion, the University of Northampton is hosting a COP26 companion programme of events throughout the week, which will see students, University staff and industry discuss climate change.

Each day we will be publishing a blog about climate change from our experts who are taking part in our event.

Today (Thursday 4 November), it’s the turn of Senior Lecturer in Law, Ebenezer Laryea.

Ecocide – getting serious about environmental justice

Before oil was discovered in its underbelly by British Petroleum and Shell in 1956, the Niger Delta was a lush and fertile landscape consisting of mangroves and swamps which supported a complex aquatic ecosystem.

The local peoples living within the Delta were farmers and fishermen who benefitted from its rich ecosystem which supported their own economic livelihoods through farming and fishing. It was often said back then that the waters of the Delta were so teeming with fish, that one could leave a fish trap on a river bank and come to find it bursting with trapped fish after the high tide had retreated.

Today, the Niger Delta is unfortunately a place of environmental tragedy, broken promises, shattered dreams and decimated economic livelihoods. The hundreds of oil spills and decades of gas flaring, which have occurred in the Delta since the extraction of oil began in the late 1950s, have turned it into one of the most polluted places on earth.

The sheer scale of the environmental damage done to the Niger Delta came into plain and naked focus in 2011 when there was an oil spill at Shell’s Bonga oil fields. The spill caused 40,000 barrels worth of crude oil to be released into surrounding water bodies. Hundreds of farming communities were affected, and tens of thousands of fishermen were forced to abandon their livelihoods as the heavily polluted water bodies could no longer support fish and the ecosystem upon which they rely. Today the Niger Delta stands as a warning to all of humanity; an example of what happens when multinational corporations – especially those who operate in countries with low regulatory effect – are not held to account for the damage they cause to the environment.

The crucial law that never was

Much like in the Niger Delta, there are various areas around the globe where we have seen high profile cases of environmental pollution and damage over the years. With such events remaining common place – and often with increased regularity – and with the need to take better care of our environment having become clearer in the face of climate change, the question now arises as to whether it is time, to recognise and adopt within international criminal law, the crime of ecocide; a crime against the environment.

The idea of adopting and prosecuting a crime against the environment, much like we prosecute crimes against humanity, has been discussed within international circles for decades. Much of the UN’s environmental conference in Stockholm, in 1972, was devoted to this subject. Even then, world leaders acknowledged the damage being done to the environment by the commercial activities of multi-nationals and the urgent need to address this with a legal remedy which would compel multinationals to do more to protect the environment from the damaging consequences of their commercial activities.

Whilst all attending parties equally recognised the scale of the challenge, and the need for a legal remedy within international criminal law to address it, the political will to act was lacking, and the incorporation of a crime of ecocide remained a matter of lip service for decades. In the process of time, a potentially defining moment arrived in 1998 when the option of including a crime of ecocide within the International Criminal Court’s Rome Statute. Ultimately, the political will was lacking to turn the promise of this moment into reality, and the idea of incorporating a law ecocide into the Rome Statute was shelved.

A new defining moment

With the COP26 climate summit in full swing, and with world leaders in full agreement about the need for us to do more to tackle climate change and environmental pollution, another defining moment is upon us. The fact of the matter remains today, as it did at the UN environmental conference in 1972, that our efforts – however strongly willed they may be – to protect our environment, will only succeed if our good intentions are supported by a concrete remedy within international criminal law by which we can hold to account, those who do damage to our environment.

This assessment was echoed by the French President, Emmanuel Macron, at the Convention Citoyenne pour le Cimat (CCC) in the summer of 2020. At the CCC, the idea of adopting a new crime of ecocide within France’s own laws was supported by 99% of attending delegates. In response to such overwhelming support, the French President promised to work on an agenda which would aim to begin to explore how a crime of ecocide could be incorporated within French law. Furthermore, Macron committed to champion and encourage his fellow international leaders towards a framework which would result in the enshrining of the crime of ecocide within international criminal law.

With this commitment, Macron became the first leader of a wealthy industrial nation, and the first amongst the G7 leaders, to support the adoption of a crime on ecocide within international criminal law. His enthusiasm sparked a global debate amongst experts within international criminal law, who for the first time, recently drew up a historic definition of the crime of ecocide. The definition states that the ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts, would amount to the punishable crime of ecocide’.

Questions about the suitability of this draft law will be asked, and discussions will be had over whether the constituent parts of it go far enough, and whether the threshold it sets is much too high. Nevertheless, the draft law represents the furthest we have ever come to doing what should have been done long ago to protect the environment and deter those acts which damage it.

With this draft law in place, we find ourselves at another crossroads – another defining moment – just as with the UN environmental conference in 1972 and the Rome Statute in 1998. The question before us today is whether world leaders will finally get serious about environmental justice and look beyond the politics of what’s needed to find the will to do it, by agreeing the makings of a  process at Glasgow which will result in the incorporation of the crime of ecocide within international criminal law.

The Niger Delta and the many environmentally damaged places like it around the world are dark monuments which attest to our failure as a global society to use the necessary mechanisms and remedies of international law to hold multinational corporations to account when they undertake actions which cause damage to the environment. Now is the time for us to get more serious about environmental justice and push to succeed where others have failed, if our hope to do better by the environment and prevent the occurrence of many more Niger Delta’s is to be realised. History has given us another opportunity – I say we seize it.