Symposium Exploring the Crime of Ecocide: Rights of Nature and Ecocide

[Anastacia Greene is an Immigration Clinical Fellow with the Intimate Partner Violence Assistance Clinic (IPVAC) at the Levin College of Law.]

[This symposium was convened by Shirleen Chin, founder of Green Transparency.  Shirleen was inspired by attending an Expert Working Group on international criminal law and the protection of the environment at the Promise Institute for Human Rights at UCLA School of Law in Spring 2020. See here for the original Opinio Juris symposium which emerged from that meeting.]

Rights of Nature Legal Theory

The “Rights of Nature” theory recognizes that nature itself has inherent rights, including the right to exist. A river has the right to flow, a mountain has the right to stand, and a whale has the right to swim in the ocean. Rights of nature can take different forms, including extending legal personhood to animals, rivers or ecosystems. This creates an ecocentric model, focused on nature itself.

Proponents of “rights of nature” argue that current environmental laws are insufficient to stop the destruction of the environment. Instead, the  rights of nature movement creates a fundamental change – shifting from anthropocentric consideration of property owners, corporate profits, and economic interests, to an ecocentric focus on the rights and interests of nature itself. This paradigm shift can give the natural environment the rights needed to prevent its destruction.

The legal basis for the “rights of nature” framework may have originated with a 1972 article by Prof. Stone. This article, “Should Trees Have Standing?” proposed a new approach in humanity’s relationship with nature. Prof. Stone proposed that natural objects and ecosystems themselves should have rights before the law, including the right to exist and have its interests represented in court. This article was later quoted by United States Supreme Court Justice Douglas in his dissent to the case of Sierra Club v. Morton.

As the environmental movement grew in the 1970’s, the calls for “rights of nature” grew along with it. This legal theory, often called “earth jurisprudence,” or “wild law,” emphasized that laws must be set “in the context of fundamental principles of ecology and the limits imposed by nature.”

Rights of Nature around the World

In 2008, Ecuador became the first country to establish rights of nature in its Constitution. Ecuador’s Constitution recognized the rights of “Pachamama,” or Mother Earth.  The Constitution that both humans and nature have rights. Humans have a right to live in a safe, ecologically balanced environment, and the obligation to “respect the rights of nature, preserve a healthy environment.”

In 2010, Bolivia passed a bill establishing the “Law of the Rights of Mother Earth.” Bolivia also led an effort to establish a UN Resolution regarding rights of Nature. In 2009, The UN General Assembly adopted a Resolution on Harmony with Nature.

Other countries, such as New Zealand and Australia, have taken a lead in according rights of nature. In 2017, New Zealand passed a law that declared the Whanganui River a living entity; recognizing the personhood of the river itself and the Te Urewera forest. Similarly, in Australia, the Yarra River Protection Act recognized the Yarra River as a living entity; the Act also recognized the traditional people as the custodians of the river and land. Indigenous people have helped to shape nature’s rights actions throughout the world, and many countries that have enacted such protections have done so in partnership with indigenous communities.

In the United States, rights of nature do not yet form part of federal or state US law. However, on a local level, almost 200 local communities have created “community bills of rights” recognizing the rights of nature. Communities have established specific rights for rivers, watersheds, or other natural objects. Several communities, including Pittsburgh, PA, have adopted “rights of nature” ordinances in order to prevent fracking and other destructive practices. Some tribal nations have also recognized rights of nature.

Rights of Nature and Ecocide

“Rights of Nature” involves a systematic reframing of humanity’s relationship with nature. However, the rights of nature theory has typically not been extended to criminal law. Should criminal remedies exist for violations of the rights of nature? What shape could such a law take?

A law of ecocide essentially establishes criminal penalties for severe violations of environmental laws. Various definitions have been formulated, but they typically focus on severe actions. Many countries with a law of ecocide follow the definition initially formulated by the International Law Commission: “intentionally causing widespread, long-term and severe damage to the natural environment.” This is an ecocentric law, which considers the damage or harm suffered by the natural environment itself as the basis for the crime.

In many ways, a law of ecocide is the logical extension of establishing rights of nature. Other “rights of nature” approaches focus on Constitutions, civil law, trusteeship/guardianship of lands, and legal personhood of natural objects. But these “rights of nature” measures typically do not involve criminal law, or creating new criminal penalties for environmental destruction. Ecocide extends these principles to the field of criminal law, establishing that severe environmental destruction is a crime. This can create a powerful incentive to prevent such destruction. A law of ecocide can enforce the rights of nature. Indeed, one can argue that a law of ecocide is necessary to truly implement rights of nature.

The field of “wild law” has exploded, with a plethora of innovative approaches to advancing the rights of nature. The philosophical principles for recognizing “rights of nature” are strong and compelling. However, in some respects this new approach towards environmental law is missing a key measure – tangible results.

Time and again, even where rights of nature are recognized, that right has not been strong enough to overcome powerful corporate, government or industry interests. For example, the Supreme Court dissent in Sierra Club v. Morton supported establishing rights of nature, but the majority still ruled for the plaintiff resort, and allowed the destructive development to continue. A US federal court struck down a city ordinance that established “rights of nature” for Lake Eire. Other local “rights of nature” ordinances in the US were repealed after state pressure.

Even in Ecuador, which first enshrined the legal rights of nature into its Constitution, advocates have had difficulty invoking these rights to prevent environmental destruction. In a landmark case, the Ecuadorian court upheld the rights of the Vilcabamba River, and held that dumping construction debris into it violated those rights; yet despite that, construction dumping continues to pollute the waterways, and the river has not been restored.

Even where nature’s rights are established, they can be difficult to enforce. Civil penalties can be included as a cost of business. Once the environmental harm occurs, restoring the environment can be a costly and lengthy endeavor, if it can be done at all. However, criminal penalties can have a much more significant impact in preventing the harm from occurring in the first place.

Corporations have a duty of care to shareholders, and to maximize profit. But where criminal penalties exist for severe environmental destruction, it serves to create an enforceable duty of care towards nature itself. It also offers a clear line beyond which we cannot cross. A law of ecocide can serve as “an expression of moral outrage”, which repudiates severe destruction of the environment, or violation of the rights of nature.

As powerful as the concept of “rights for nature” is, it may be that these rights are not sufficiently strong without a specific criminal action for severe violations. In this way, a law of ecocide can form an essential pillar to support a true “right of nature.” A law of ecocide is consistent with establishing “rights of nature,” and may be necessary to fully recognize those rights.