23 Feb ELI’s Overly Narrow Definition of Ecocide
A few days ago, the European Law Institute published its final report on ecocide. The report not only provides a definition of ecocide, it also contains Model Rules for an EU Directive and a Council Decision that ELI hopes will both “contribute to the inter-institutional negotiations in the EU on the Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law” and will “inspire legislative developments beyond the EU.”
As regular readers know, I have criticised Stop Ecocide Foundation’s definition of ecocide for taking too anthropocentric of an approach to lawful acts of development — not criminalizing lawful acts that cause (or are likely to cause) “severe and either widespread or long-term damage to the environment” as long as they are sufficiently beneficial to humans. Unfortunately, ELI’s definition of ecocide is even more anthropocentric, failing to criminalize any lawful act of development.
The key provision is Art. 3, “Ecocide,” reprinted here in full:
- Member States shall ensure that the offence of ecocide as defined in this Article is punishable as a crime.
- For the purposes of paragraph 1, ecocide means any conduct as defined in paragraph 4 or 5 committed with intent which may cause or substantially contribute to causing severe and long-term damage or severe and irreparable or irreversible damage to an ecosystem or ecosystems in the natural environment.
- For the purposes of paragraph 2, a person has intent where:
- In relation to conduct, that person means to engage in that conduct; and
- In relation to a consequence, that person means to cause the consequence or is aware or could not be unaware of the substantial likelihood that it may occur.
- Any conduct (a) infringing Union legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of Union policy of protecting the environment as set out in the Treaty on the Functioning of the European Union, or (b) infringing a law, an administrative regulation of a Member State or a decision taken by a competent authority of a Member State which gives effect to such Union legislation under which Member States are required to ensure that it constitutes a criminal offence under domestic law shall be qualified as ecocide under domestic law if the conditions set forth in paragraphs 2 and 3 are met.
- Paragraph 4 does not prevent Member States from identifying additional conducts likely to cause damage to the environment and to qualify them as ecocide if the conditions set forth in paragraphs 2 and 3 are met.
The problem is Paragraph 2’s insistence that “ecocide means any conduct as defined in paragraph 4 or 5.” As those two paragraphs make clear, an act does not qualify as ecocide unless the act infringes upon (1) “Union legislation” protecting the environment; (2) “a law, an administrative regulation of a Member State or a decision taken by a competent authority of a Member State which gives effect to such Union legislation”; or (3) conduct that a Member State has justifiably deemed to be ecocidal. If there is no such violation — if the act is wholly lawful under EU and Member-State law — an act cannot be ecocidal even if it causes “severe and long-term damage or severe and irreparable or irreversible damage to an ecosystem or ecosystems in the natural environment” and has no anthropocentric benefit at all. Legality is all that matters.
This categorical lawful/unlawful distinction is reason enough to question ELI’s definition of ecocide. But the definition’s approach to the environmental-damage aspect of ecocide’s actus reus is also troubling. According to Art. 3(2), an act can be ecocidal only if it can “cause or substantially contribute to causing severe and long-term damage or severe and irreparable or irreversible damage to an ecosystem or ecosystems in the natural environment.” There are two problems with this requirement. First, there is almost no difference between an act that causes “severe and long-term damage” and an act that causes “irreparable or irreversible damage,” because Art. 2 defines “long-term damage” as damage that “cannot be redressed through natural recovery within a reasonable period of time.” Second, and more importantly, the definition excludes one of the best aspects of the Stop Ecocide definition, which is that it also criminalises (ceteris paribus) causing severe damage to the environment that is not long-term but is “widespread” — “damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings.”
The drafters of the ELI definition justify this exclusion by arguing that “[i]t does not appear appropriate to link the configuration of the crime to the concept of ‘widespread damage’… because that concept would create discrimination in terms of geographical expansion resulting in a possible denial of protection of people’s rights.” To be honest, I am not sure what this means. How could expanding the reach of ecocide discriminate against people on the basis of geography? I cannot see any justification for permitting an (unlawful) act to cause severe damage that “extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings” simply because the damage is not irreparable. And what about acts that cause severe and long-term damage in one area but cause “only” severe damage in another? Does limiting the label “ecocide” to the first area despite the widespread nature of the severe damage not “create discrimination in terms of geographical expansion”?
In two important respects, then, the ELI definition of ecocide is narrower than the already too narrow Stop Ecocide definition. Although ELI deserves praise for putting so much work into its report, I hope the European Commission will endorse a broader concept of ecocide if and when it calls on Member States to criminalise ecocide domestically.