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Thursday, 22 March 2012

The law of Ecocide

The moral imperative trumps the economic imperative; putting people and planet before profit is our number one duty. We’ve done it before and each time business went onto flourish. We abolished slavery, we outlawed apartheid, we prohibited genocide. The next step is to eradicate ecocide.
Download Government Concept Paper, Closing the Door to Dangerous Activity, here
Download 1 page summary of Concept Paper here
The humanitarian crisis of the Second World War required the word ‘genocide’ to describe the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group. So it is in 2010, the International Year of Biodiversity, that the current environmental crisis called for a new language to describe the extensive damage to and loss of ecosystems of a given territory, whether by human agency or by other causes. That word is ecocide. In April 2010 Polly submitted to the United Nations Law Commission a fully worked proposal for the law of Ecocide. The full submission is set out in Chapters 5 and 6 of her book, Eradicating Ecocide: laws and governance to prevent the destruction of our planet. Below is some of the proposal.
“There are certain principles of universal validity and application that apply to civilization as a whole. They are the principles that underpin the prohibition of certain behaviour, for example apartheid and genocide. Such abuses arose out of value systems based on a lack of regard for fellow humanity and are now universally outlawed. The rendering of such action as illegal is premised on the advancement of a higher morality that operates without caveat of qualification, a morality based on the sacredness of human life. In a world aspiring to sacredness of life, it is still necessary to identify the crimes to prevent those who fail to live by similar values. But what of the well-being ofall life – not just that of humanity – but of all who inhabit a territory over which one has certain responsibilities?
It was the humanitarian crisis of the Second World War which prompted the creation of the United Nations Organisation whose stated aims are to facilitate cooperation in international law, international security, economic development, social progress, human rights, and the achieving of world peace. The Charter of the United Nations (UN Charter) declared in 1945:
“We the peoples of the United Nations, determined to save succeeding generations from the scourge of war…to promote social progress and better standards of life in greater freedom”.
In advancement of peace, the term genocide was soon given international legal recognition to describe the enormous deliberate destruction of human life, such as the holocaust of World War 2. Trials were held in Nuremberg to prosecute perpetrators. However, it took over 50 years for the creation of the International Criminal Court (ICC) to provide a permanent international enforcement tribunal, as set down by the provisions in the Rome Statute and ratified in 2002. Jurisdiction is limited to prosecution of individuals of the four“most serious crimes of concern to the international community as a whole”, more commonly known as the 4 Crimes Against Peace. They are: Genocide, Crimes Against Humanity, War Crimes, and Crimes of Aggression. Now another type of international crime against peace has arisen; that crime is Ecocide.
The Crime of Ecocide
The neologism ecocide is already in use to a limited extent, denoting large-scale destruction, in whole or in part, of ecosystems within a given territory. Ecocide is in essence the very antithesis of life. It can be the outcome of external factors, of a force majeure or an ‘act of God’ such as flooding or an earthquake. It can also be the result of human intervention. Economic activity, particularly when connected to natural resources, can be a driver of conflict. By it’s very nature, ecocide leads to resource depletion, and where there is escalation of resource depletion, war comes chasing close behind. The capacity of ecocide to be trans-boundary and multi-jurisdictional necessitates legislation of international scope. Where such destruction arises out of the actions of mankind, ecocide can be regarded as a crime against peace; a crime against peace for all those who reside therein. In the event that ecocide is left to flourish, the 21st Century will become a century of ‘resource’ wars.
For the purpose of international law, I propose the following definition for ecocide:
the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
There are two categories of ecocide: non-ascertainable and ascertainable ecocide. Non-ascertainable ecocide describes the consequence, or potential consequence, where there is destruction, damage or loss to the territory per se, but without specific identification of cause as being that which has been created by specific human activity.
Ascertainable ecocide describes the consequence, or potential consequence, where there is destruction, damage or loss to the territory, and liability of the legal person(s) can be determined. The destruction of large areas of the environment and ecosystems can be caused directly or indirectly by various activities, such as nuclear testing, exploitation of resources, extractive practices, dumping of harmful chemicals, use of defoliants, emission of pollutants or war. Examples of ascertainable ecocide territories of sizeable note include the deforestation of the Amazonian rainforest, the proposed expansion of the Athabasca Oil Sands in northeastern Alberta, Canada and polluted waters, which account for the death of more people than all forms of violence including war.
In any given example of ecocide, the extent of “destruction, damage or loss” suffered requires analysis. Whereas “destruction” and “loss” are easy to ascertain by way of data, what constitutes “damage” for the purpose of establishing the crime of ecocide is more complex. Size, duration and significance of impact of damage to a territory in most instances shall be of relevance to determine whether the crime is made out. The Rome Statute sets out an extended definition of damage to the environment, specifically as a consequence of War Crimes, which provides useful assistance. Article 8(2)(b)(iv) criminalises:
“widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
Change one word here: “widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall community advantage anticipated”, and incidents of ecocide such as the BP Gulf oil spill can begin to be properly assessed.
The wording used in this section was adopted from the 1977 United Nations Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD). ENMOD specifies the terms “widespread”, “long-lasting” and “severe” as
“widespread”: encompassing an area on the scale of several hundred square kilometers;
“long-lasting”: lasting for a period of months, or approximately a season;
“severe”: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.
These expanded definitions, which are already embedded in international laws of war, offer an existing basis upon which the international crime of ecocide can be seated at the table of the ICC. The word “ecocide” bestows the missing name and fuller comprehension of the crime of unlawful damage to a given environment. As a crime that is not restricted to the confines of war alone, the categorisation of ecocide as a crime against peace is appropriate. Thus, for the purpose of defining ecocide “damage”, determination as to whether the extent of damage to the environment is “widespread, long-term and severe” can be applied to ecocide in times of peace as well as in times of war.

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