49 Legal Action
49.1 Ecocide: Crime?
Ecocide is not yet illegal. International lawyers are working to codify it as a fifth crime but their campaign faces a long and uncertain road, riddled with thorny issues.
Pope Francis
Pope Francis, shepherd of 1.2 billion Catholics, has been among the most outspoken, calling out the wrongdoing with the full force of his office. He has advocated for the prosecution of corporations for ecocide, defining it as the damage or destruction of natural resources, flora and fauna or ecosystems. He has also suggested enumerating it as a sin in the Catechism of the Catholic Church, a reference text for teaching the doctrine of the faith.
President Emmanuel Macron of France, too, has been sharply vociferous. He has called the burning of the Amazon’s rainforests an ecocide and blamed Brazilian President Jair Bolsonaro for reckless mismanagement of a planetary resource.
Indigenous leaders have gone further. They have formally requested the International Criminal Court to investigate Bolsonaro for crimes against humanity.
To prosecute and imprison political leaders and corporate executives for ecocidal actions, like Bolsonaro’s, would require a parsing of legal boundaries and a recalibration of criminal accountability.
The moral power of advocates is increasing with the advance of environmental destruction. They already have much admissible evidence to make a case for placing limits on behaviors that make planetary matters worse.
Half a century after the problem was clearly identified, no one and no entity can yet be held responsible for climate change, the largest ecocide of all.
Kutznet
The International Criminal Court, which was formally established in 2002 under a treaty called the Rome Statute to prosecute genocide, crimes against humanity, crimes of aggression and war crimes when its member countries, which currently number 123, fail to do so themselves.
Early drafts of the Rome Statute included the crime of environmental destruction, but it was removed after opposition from the United States, United Kingdom and the Netherlands, relegated instead to a wartime offense that has never been enforced.
As a result, international criminal law includes few guardrails to prevent peacetime environmental destruction.
“We currently cannot hold big corporations or big governments accountable for ecocide. So, what do you do? We name and shame, that’s all we’ve got.”
An ecocide crime would require International Criminal Court members to enact their own national ecocide laws, and failure to enforce those laws would enable the international court to step in.
Making ecocide a crime could help in weak states, where corporate polluters are sometimes more powerful than national governments.
While political leaders and warlords have been the usual targets of the court, an ecocide crime could place business executives on notice, too.
China, the United States, India and Russia—four of the world’s top polluters—are not members of the International Criminal Court, but if a corporation based in one of those countries were to operate within a member state, as many of them do, their executives could fall under the court’s jurisdiction.
The push to criminalize ecocide remained on the periphery until December 2019, when Vanuatu and the Maldives, two island nations threatened by rising seas and climate change-driven extreme weather, recommended that the court consider amending its statute to “criminalize acts that amount to ecocide.”
After Vanuatu asked the International Criminal Court to consider criminalizing ecocide, Mehta’s Stop Ecocide Foundation independently convened a panel of international legal experts, including Mackintosh of UCLA, to draft a clear definition of ecocide. They plan to publish their definition in June, at which point they hope at least one of the court’s member nations will formally propose making ecocide the fifth international crime against peace.
Mehta has said the definition would likely require “willful disregard” for environmental destruction related to practices like widespread logging, drilling, mining and deep-sea trawling.
But climate change poses a greater challenge: Not only is it difficult to connect polluters to specific harms, he said, but there’s also nothing illegal about extracting or burning fossil fuels.
“The situation we’re dealing with is that the carbon system, which has fueled our economies since the Industrial Revolution, has not only been lawful, but it’s been encouraged,”
Another point that the drafters will have to grapple with is whether the crime of ecocide should require prosecutors to prove that humans have been harmed. Mackintosh said that while this “human harm” threshold could prove appealing politically—the court’s existing crimes all largely involve harm to humans—focusing ecocide only on the environment could make it easier for prosecutors to prove, especially when it comes to harms related to climate change, which are often incremental and indirect.
If a nation agrees to introduce the ecocide proposal to the International Criminal Court for consideration, that is when even harder work will begin. Ratification is a multi-step process that ultimately requires support from either two-thirds or seven-eighths of the court’s members, depending on the type of amendment introduced.
While no country has committed to formally proposing that the court adopt ecocide, the campaign is gaining traction, fueled by the youth-led climate movement and radical new groups like Extinction Rebellion.
In December, Belgian Foreign Minister Sophie Wilmès asked International Criminal Court member states to examine the possibility of adopting ecocide as a crime. A member of Belgium’s Parliament has also proposed a bill to criminalize ecocide. And French lawmakers are working on legislation to make ecocide an offense punishable by fines and prison, though Stop Ecocide criticized the bill as “weak.”
At least 10 countries have national ecocide laws already, including Vietnam, which enacted the law in 1990.
Separately, French lawyers in January filed a request with the International Criminal Court on behalf of Amazonian indigenous groups asking that the court investigate Brazil’s Bolsonaro for crimes against humanity.
Mehta’s campaign is also part of a wider effort by activists who have been looking to the courts to force more aggressive action on climate change.
As of July 1, 2020, at least 1,550 climate change cases have been filed in 38 countries, according to a U.N. report.
49.2 German Constitutional Court
In an order published today, the First Senate of the Federal Constitutional Court held that the provisions of the Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz – KSG) governing national climate targets and the annual emission amounts allowed until 2030 are incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards. In all other respects, the constitutional complaints were rejected.
The judgment of 29 April 2021 quashing parts of the Climate Protection Act (CPA) has made history. Not only because the First Senate of the BVerfG put an end to deferring the reduction of greenhouse gasses to the future, or at least to the next government. But because this turn to the future came in the form of a turn to international law and institutions. It is precisely by relying on international law that the court overcomes the counter-majoritarian difficulty commonly tantalizing climate litigation and human rights law generally. The most astonishing fact is, however, that the court entirely avoids the tragic choice between supposedly undemocratic international commitments and the democratic legislature. I argue that it does so by approaching constitutional law in a decidedly postcolonial perspective.
[Goldman - Verfassingablog 30 april 2021](https://verfassungsblog.de/judges-for-future/
49.3 EU Import Ban
Guardian
Beef, palm oil, cocoa and other products linked to deforestation will be banned from entering the European Union under landmark legal proposals that attempt to help prevent the felling of the world’s great forests.
“What we propose is a pioneering initiative,” Virginijus Sinkevičius, the EU environment commissioner, said. “EU action alone will not solve the problem. We also need major markets like the US and China to clean up their supply chain and we need producers to step up protection of the forests, but we stand ready to help.”
The EU’s proposals left out fragile ecosystems such as Brazil’s Cerrado savannah and peatlands in south-east Asia, both rich stores of carbon, plant and animal life.
Between 1990 and 2008, EU consumption led to 10% of global deforestation, according to a commission estimate.
Gurdian (2021) EU aims to curb deforestation with beef and coffee import ban