Climate Justice in an Unequal World: A Chat with Professor Richard Falk, Ecocide’s Legal (Grand)Father

[Dr. Luigi Daniele is a Senior Lecturer at Nottingham Law School, NTU.]

This interview is being cross-posted by Opinio Juris, the Nottingham Law School Climate Justice Hub, and the Queen Mary School of Law Centre for Climate Crime and Justice. 

I had the great honor and special pleasure of discussing ecocide and climate justice with Professor Richard Falk, Albert G. Milbank Emeritus Professor of International Law and Practice at Princeton University, Chair of Global Law and Co-director of the Centre for Climate Crime and Justice at Queen Mary University London. He has been nominated multiple times for the Nobel Peace Prize since 2009, and his pioneering contributions and global engagement on ecocicde, environmental policy, and climate change as world order problems since the early ‘70s are unparalleled in international legal scholarship.

LD: Professor Falk, thanks sincerely for your usual, kindest availability in finding the time for this interview.

RF: It is my pleasure, Luigi. Thank you for proposing it.

LD: Professor Falk, you authored the first article on ecocide in legal history in 1973, proposing a treaty to outlaw it. It is fair to say you are the father of ecocide as international legal concept (or ‘grandfather’, as you suggested in our previous conversation [we laugh]). You wrote that article shortly after biologist Arthur Galston coined the term ‘ecocide’ in 1970, and Olof Palme used it in his famous speech at the 1972 United Nation Conference in Stockholm — conference in which you played an active role. My first question is about the context around the years when ecocide emerged. What factors determined the unprecedented worldwide attention about it?

RF: I believe the crucial factor was the Vietnam War. The references you made were all to responses of opposition to what was happening in Vietnam [US forces, from 1962 to 1971, sprayed 80 million liters of a highly toxic herbicide containing dioxin, known as Agent Orange, across an expanse exceeding 31.000 square kilometers of Vietnam’s dense jungle]. This opposition was further reinforced by an influential article in the ‘Scientific American’ by scientists Arthur Westing and Bert Pfeiffer. They presented a systematic and empirically grounded assessment of the use and catastrophic harm caused by Agent Orange to the Vietnamese people and natural environment. Later on, Olof Palme’s referred to ecocide at the UN Conference on the Human Environment in 1972. Palme was the most prominent leader in the West opposing the Vietnam War, and rather explicitly. He gave to our side event on wartime ecocide in Stockholm international coverage, as the United States (US) had successfully endeavored to keep environmental warfare and environmental destruction during war off the official agenda of the conference [for the US angered reaction to Palme’s speech, see here]. This important civil society event, connected to the official intergovernmental conference but formally separate, consisted of people like myself with a legal background, scientists, and anti-war civil society activists.  The initial surge of interest in ecocide was undoubtedly prompted by the suffering and destruction media were starting to uncover in Vietnam. Notably, the environmental warfare of those years continues to cause harm to the Vietnamese people at present, a half century later. The US left behind large stockpiles of Agent Orange, which seeped into the water supply and soil, resulting in numerous cases of severe congenital anomalies in the newborn. There are entire clinics in Vietnam dedicated to caring for these children born with a variety of malformations, who – even 50 years later – are still victim of that dreadful war.  Another important point is that the perception at that time was still anthropocentric. We focused on the harm to people rather than take any account of  the rights of nature. Nowadays, it would likely be seen differently. Our response initially focused on describing the extreme vulnerability of the environment and of people to these means of warfare, employed from a safe distance by attackers. I had personal awareness of the situation because I had visited Hanoi twice during the war and had contact with the Vietnamese Prime Minister and policymakers. I was impressed by the quality of Vietnamese leadership during that difficult time of national trauma.

LD: Your last remark about the anthropocentrism leads me to a question on how the concept of ecocide has evolved. While it remains central to protect the environment in situations of armed conflicts, as seen in recent probable war crimes such as the Kakhovka Dam attack in Ukraine, international legal instruments aimed at holding the most responsible individuals accountable have remained largely anthropocentric. The only crime within the Rome Statute (RS) of the International Criminal Court (ICC) mentioning the environment [disproportionate attacks, art. 8(2)(b)(iv) RS] has never been prosecuted, nor even charged in the first 20 years of ICC’s activities, highlighting issues with this type of offense [see e.g. Heller & Lawrence]. However, this war crime has been one of the key templates selected by the Expert Panel of the Stop Ecocide Foundation for their proposed definition of ecocide as 5^th international crime. How do you see these efforts focused on the ICC, in order to making ecocide punishable even in peacetime?

RF: Well, I think that the effort, properly credited to Polly Higgins and her group in the UK, correctly recognized that deliberate environmental degradation was a side effect of corporate capitalism [relatedly, see e.g. McNeill and Klein], where profit is the imperative and any associated costs, such as worker safety or environmental integrity, are minimized or ignored altogether. Shifting the focus to corporate accountability [see Whyte] in this respect was an extremely important element. As damaging as the environmental impacts of wartime are, the ecological threats posed by peacetime economic activities are even more significant and systematic. Whether it’s deforestation in the Amazon, extractive mining industries, or the environmental depletion caused by fossil fuel transnational corporations, all these activities contribute to the ecological and climate instability of the planet. In a sense, the issues of wartime accountability were also downplayed in implementation, which contributes to the absence of indictments you referred to. The US, despite not being a state party to the ICC, has exerted significant political influence and passed alarming domestic laws to keep military activities outside the scope of accountability [see the 2002 American Servicemember Protection Act, also known as ‘Hague Invasion Act’; recently, see Scahill]. Looking back at the end of World War II, the idea of accountability for unlawful attacks in combat situations became associated with losing the war, and this victors’ justice model still persists in different forms today [see, ex multiis, Koskenniemi and Zolo]. Even in the recent G7 meeting in Hiroshima, there hasn’t been even an informal apology for what was arguably the most egregious indiscriminate attack of the war: the atomic bombing of Hiroshima and Nagasaki, which could not even be credibly regarded as military targets. If such an attack had been launched by Japanese or Nazi Germany militaries, it would have undoubtedly been criminalized, and we might not be living in the nuclear age [on the dangers of new nuclear escalations, see here]. Major nuclear powers have controlled the global security architecture not through disarmament but through establishing a non-proliferation regime that allows the nuclear weapons states to exert supremacy over non-nuclear countries, primarily the Global South. It’s a form of post-colonial hyper-imperialism based on military hegemony that subverts the equality of states before the law, and poses threats to species survival.

LD: Do you imply that even the adoption of the crime of ecocide risks to fall under the same unequal enforcement paradigm, and discriminatory selectivity based on nationality, that has characterized war crimes law?

RF: Yes, this idea that winning in a conflict grants you impunity while accountability is reserved for the losing side is deeply flawed. We saw this in the case of the aggression against Iraq, where the probable crimes committed during the aggression initiated by the US and UK were never examined or held accountable. There are clear double standards at play [see relatedly Wilde, Kotova & Tzouvala, Odinkalu & Nakandha], sufficient to look at the disturbing data on civilian victimization during the first months of the aerial bombing campaign of the Iraq war, or the punitive sanctions imposed afterwards, which resulted in the death of hundreds of thousand civilians, with effects commensurable to those attributable to weapons of mass destruction. This also raises important questions about whether sanctions can be seen in many cases as structurally oppressive and perpetuating postcolonial hegemonic relationships [see the recent LPE-Yale Symposium]. The challenges in addressing and rectifying these injustices are ongoing.

LD: Your points about inequality before international law and the selectivity of its enforcement seem crucial in the context of climate justice. The unequal contribution of Global North countries to carbon emissions, atmospheric consumption, and thus responsibilities for climate breakdown compared to developing countries and emerging economic powers raises serious issues, such as that of climate reparations (both by states and corporations). Does this reopen concrete perspectives of political alliances between less powerful states in the face of climate change and environmental destruction, and of new counter-hegemonic protagonism of the poorer, who are also the most affected?

RF: You raise an important point. The primacy of military supremacy, economic domination, and power politics, particularly among the permanent members of the Security Council, does undermine equitable accountability before international law. The privileged status of the P-5 countries, notably their veto power, based on their victory in World War II, is not necessarily reflective of their degree of influence, representation, or legitimacy in the current global order. Nonetheless, it is inherent in the UN Charter itself [see recently Moyn], extending the same issues mentioned in relation to victors’ justice, and projecting them in the realm of international legal policies at large. While important challenges to this status quo exists, for example by movements like the Third World Approaches to International Law (TWAIL [see Chimni]), their strength and transformative influence is still limited. However, such movements and alliances have the potential to unveil the unsustainability of the existing system and cast light on its injustices. In this sense, even symbols and legal values become politically significant. Mobilizing civil society around the injustices of the current system can generate powerful movements and challenge various aspects of the status quo.

A notable example is the anti-colonial movement, which first delegitimized colonialism and eventually led to its dismantlement. Similarly, international law can play a crucial role, even amidst the relativities of its enforcement, in shaping perceptions of legitimacy and illegitimacy. Questioning the legitimacy of the system (whether for imposing to poorer countries contributing the least to climate degradation to suffer its worst consequences, or for the unwillingness of industrialized nations to protect climate migrants) is a necessary premise for structural changes. While international law may not successfully constrain behavior or change the actions of the most powerful actors, it can contribute to the mobilization of civil society, generating pressure for change, and making a significant difference in practice.

LD: What you’re saying makes me think about many who, also taking inspiration from your approach, see international law as a field of contestation, and potential platform for transformative social and political initiatives for human rights and social justice, actionable from below, not only as an instrument inherently serving domination and reproduction of existing power relations [see Rajagopal and Anghie]. How do you see, within this background, the possibility of codifying an international crime of ecocide? Is it sufficient? Do we need more? Is there any chance that this could bring about the consolidation of a customary international law prohibition against serious environmental destruction? 

RF: Oh well, it’s a challenging issue because, to effectively address and prevent ecocide, one is confronted by the opposition of capitalist, corporate, and financial forces, who might either directly contrast such codification, or endeavor to reduce it to a purely symbolic gesture with little effectiveness by influencing its definition. The issue is whether one can find ways to neutralize or circumvent the influence of these forces. If you look back at the history of the effort to criminalize ecocide, the International Law Commission initially had it on its agenda, but somehow it disappeared in the final phases. One has to suspect, at least, that it resulted from a ‘realistic’ view of what was ‘feasible’. The extent and pervasive entwine between leading governments and corporate and financial interests [see Harvey], with its extractive interests incompatible with environmental protection, it’s a very difficult political hurdle to cross. But again, my own view is that in areas like this, it is worth trying to do what Chimni and others have tried to do, which is to assert the relevance of an international law that is people-oriented, reflects the interests of human well-being collectively conceived, and that activates civil society and national communities in ways that can have unpredictable results. One good example is the anti-apartheid movement [see Thörn], which I think seemed only to be about the symbolic denunciation of racism, but it translated itself into sufficient global solidarity initiatives that it actually did have a decisive transformative effect. It is an example we should bear in mind.

With respect to international law, it’s important to distinguish between what one might call high politics, of which I would put what we’ve been discussing so far, and routine interactions, and transaction, where international law works on the basis of mutual interests and provides a ground for negotiation. There can be an important role of mediation of international law when it effectively represents a platform of interaction between the interests of people rather than the separate interest of their ruling classes. The law of the sea it’s a good example where a set of conditions were negotiated between developed and developing countries, with important exceptions such as naval freedom of the high seas, and areas that were never regulated because sensitive for the geopolitical agenda. When you get to core dominant interests, however, international law becomes an instrument against adversaries, with big powers refusing to subject themselves to the same legal constraints they demand be enforced against their rivals.

LD: Your reference to the law of the sea makes me think that environmental activists who have tried to materially sabotage and stop whaling vessels, or off shore oil platforms, have, at times, faced charges of piracy [see Teillet & Shariati]. The historical origins of the concepts of international crimes and universal jurisdiction themselves can be traced back to piracy [see Chadwick], and the emergence of the notion of ‘hostes humani generis (enemies of mankind),’ then vehemently criticized by legal theorists opposing liberal universalism as instrument of new forms of imperialism [see Ruschi]. Are we facing something entirely new from this perspective? Climate science indicates us that fossil-based profits and predatory capitalism (beyond the irremediable loss of biodiversity already produced) are leading us toward new mass extinctive events. It appears we might be facing for the first time in history real hostes humani generis (and of all living species), understood in a very scientifically proven and concrete meaning, as enemies of life on the planet as we know it.

RF: That’s an intriguing perspective you’ve presented. In response to that issue, I approached the problem by raising the question of whether there is evidence to suggest that the human species possesses a collective will to survive. Unfortunately, there is little evidence to support the existence of such a collective will. While there is ample evidence of an individual will to survive, both on personal and national levels, the question remains whether we possess the desire to survive as a species. This is a complex question that requires examination. Another aspect to consider is whether we’ll stop needing an external enemy in order to foster cooperation for our own survival. Think about it, if climate breakdown and environmental catastrophes were, for the sake of argument, part of an offensive by an extraterrestrial life seeking to conquer Earth, we would likely unite overnight, and the conflicts that currently bloody the planet and peoples around the world would fade away. Already during World War II the greater threat of Nazifascism suspended the conflict between East and West, communism and capitalism. Hence, it seems to me that this biopolitical question must be explored: how to build a collective will to survive as a species? Recently, I had a lengthy conversation with my friend Daniel Ellsberg, and he raised an intriguing point. He questioned whether we are contemplating extinction in the wrong manner because, regardless of the magnitude of the climate breakdown or a nuclear war, there is likely to be a survival rate of 8 to 10% of humanity. While this is not extinction per se, one cannot envy the survivors in such a world. This reminder can be significant in countering the nihilistic sentiments that apocalyptic perspectives may provoke, and serve as a reminder of our collective moral duty to prevent handing down such a ravaged world to future generations.

LD: I have a final, closely related question. It concerns the lessons we can learn from the youngest generations who are actively engaged in defense of the environment, and for climate justice. I’m referring to movements like the Extinction Rebellion and many others, as well as to the young activist leaders who played a crucial role in raising worldwide awareness about the urgency of action. You have been one of the first public intellectuals warning about the endangerment of the planet and problematizing human survival already in the early ‘70s [Prof. Falk’s pioneering This Endangered Planet: Prospects and Proposals for Human Survival was considered among the six books of the century by Foreign Affairs], hence your voice is particularly qualified to address the youth and students concerned about these issues, and wondering how to best act collectively. What message would you like to convey to them?

RF: Indeed, the younger generations have a more profound voice in this matter. They have a clear understanding that their own lives are at risk and that those in positions of power are not taking meaningful action. They see the people in control ‘fiddling while Rome burns’, to use a familiar analogy. The crucial question at hand is whether the perceptive and committed youth can be progressively transformed  into a sustained political movement with momentum. What it lacks, in comparison to networks obstructing radical changes, is a strong funding base and robust organizational infrastructure. As a result, it becomes exceedingly challenging for young individuals or small groups to maintain their engagement amidst the pressures and challenges of everyday life, and the sentiment that they cannot effect change alone. The key lies in empowerment — how can this clarity among the youth be empowered and provided with sufficient political traction to make a tangible difference? This question looms over our common future, and the global agenda itself. But the problem cannot be simply postponed, nor delegated to younger generations alone. It is of utmost importance that we, as older generations, do not simply leave the burden solely on the shoulders of the youngest. We hold significant responsibilities because we have played a major role in creating the situation they are facing. We should step up and provide the necessary resources, support, and platforms to facilitate the empowerment of these movements. This challenge extends not so much to the ancient old like myself but to the older young like you and your colleagues. It is crucial that we recognize the magnitude of this struggle, and perceive ourselves as directly invested in its broader purposes and values.

LD: many thanks indeed Professor Falk!