Category: International Environmental Law

By Zhonghua Du

[Zhonghua Du is currently completing Magister Juris (Master in Law) at the University of Oxford,
and her research interests include international environmental law, international law of the sea,
international criminal law and international humanitarian law. LinkedIn: https://www.linkedin.com/in/zhonghua-du-ab4079140/]

Introduction 

In a far-reaching Advisory Opinion in 2017, the Inter-American Court of Human Rights affirmed the “autonomous” nature of the right to a healthy environment and stated that such a right “protects the components of the environment, … as legal interests in themselves”.With the proliferation of environmental lawsuits around the world, it is worth asking whether the existing international environmental and human rights law are sufficient to address the issue of environment and human rights protection, and what value an autonomous internationally recognized right to a healthy environment (“AIRRtHE”) adds to the existing framework. This essay presumes that current international law (lex lata) doesn’t recognize an autonomous right to a healthy environment. Therefore, the argument that asserts the customary nature of AIRRtHE is dismissed, and this essay will address the AIRRtHE as a matter of lex ferenda. This essay will argue, that an AIRRtHE can bridge the gap between positive international law and environmental aspirations, but it falls short of addressing the drawbacks of anthropocentricism, regional bias, and the integrity of human rights system. 

1. The definition of an AIRRtHE

The definition of AIRRtHE is three-fold as understood by this essay. Firstly, by “autonomous”, AIRRtHE embodies the normative value of environmental rights in and of itself, instead of “greening” the existing human rights through invoking the relationship between the enjoyment of a wide range of human rights and the protection from environmental harm (Knox, 2020, p. 84). Secondly, by “recognized”, AIRRtHE refers to a “formally recognized entitlement to a particular quality of environment” that “states and their citizens could claim through a source of international law that would hold states to account in the international regulatory domain vis-à-vis one another and in relation to their citizens” (Kotzé, 2018, p. 137). And thirdly, by “international”, AIRRtHE posits itself as a universal right, differing from the right to a healthy environment under regional human rights agreements and domestic constitutions. 

2. The existing international environmental and human rights law framework and the added values of an AIRRtHE

The right to a healthy environment has been recognized by human rights law from a rather early age, explicitly or implicitly. As a pioneer in this field, the African Charter recognized it as an autonomous right as early as 1981: “all peoples shall have the right to a general satisfactory environment favorable to their development”. Following this, the San Salvador Protocol to the American Convention on Human Rights, the Arab Charter on Human Rights, and the ASEAN Human Rights Declaration all provide for such a right. Although the European Convention on Human Rights doesn’t include a separate article on the right to a healthy environment, the European Court of Human Rights (“ECHR”) has managed to develop a jurisprudence to protect environmental rights indirectly through the right to life and the right to respect for private and family life (Kotzé and Daly, 2019, p. 1055).

Even at their best, these instruments are insufficient for environmental protection. Firstly, no global human rights instrument has explicitly endorsed the right to a healthy environment. For the regional human rights instruments, only the African Charter makes the environmental right reviewable by an international body, for the Arab Charter, the ASEAN Declaration and the San Salvador Protocol, the right to a healthy environment is not subject to oversight mechanisms. Secondly, the substance of the environmental right, as interpreted by different treaty bodies, varies. For example, although ECHR recognized the possibility to address environmental concerns in connection with fundamental human rights, in Kyrtatos v. Greece, it dismissed the argument that Article 8 or any other Articles of the Convention were designed to protect the environment, and stated that even if they were, the standard of proof for environmental harm to be detrimental to the rights of individuals is relatively high. On the contrary, different from the environmental implications of other rights, the Advisory Opinion OC-23/17 recognized the right to a healthy environment as an autonomous right. Thirdly, the effectiveness of the international processes is highly questionable. Even for the high-profile case of SERAC v. Nigeria, in which the African Commission identified widespread oil pollution as a violation of the right to live in a healthy environment, little change has happened in the actual environmental conditions endured by communities in oil-producing regions following the ruling (Boyd, 2018, p. 24).

For international environmental law, the overall picture is similar to human rights law. By framing environmental right in “pure anthropocentric developmental and domestic-focused terms”, the Rio Declaration is considered to be a retrogressive step compared to the Stockholm Declaration (Kotzé, 2018, p. 139). No legally binding instrument recognizes the relationship between human rights and climate change concerns, and even if the Paris Agreement does contain an explicit reference, its preambular appearance marks the political skepticism behind it (Rajamani, 2018, p. 244). As Kotzé (2018) correctly pointed out, the “imprecisely formulated international right to a healthy environment only has the status of soft law”, which can only provide non-binding guidance to states.

It is against this context that quite a few international environmental lawyers enthusiastically commended AIRRtHE’s contributions to both international environmental law and human rights law. Such contributions can be summarized in the following three dimensions. 

First, morally, an AIRRtHE will elevate the relative importance of environmental concerns compared with the utilitarian concerns of short-term economic growth, which can energize the advocation for the right (Rodríguez-Garavito, 2018, p. 159); it can also reverse the colonial narrative of human rights law because much of the diffusion of the right to a healthy environment was led by countries in the Global South (Knox, 2020, p. 92). Secondly, normatively, an AIRRtHE can overcome the intrinsic defects of international environmental law and human rights law. International environmental law always places its primary focus on transboundary harm and traditionally overlooks environmental harm within the borders, while human rights law is just the opposite, focuses primarily on internal obligations instead of extraterritorial ones (Knox, 2020, p. 89). In this respect, an AIRRtHE can fill the conceptual gap of the two dogmatics. Thirdly, practically, an AIRRtHE, by its universal bindingness, could bring up the possibility of a new effective international compliance and enforcement machinery and provide a more uniform and standardized minimum level of protective obligations of states, a “safety net” (Boyd, 2018, p. 31). 

3. The lingering paradox of an AIRRtHE

However, an AIRRtHE is never a panacea for all environmental and human rights issues. It is subject to a number of criticisms from both the legal and political perspectives. 

First, the argument that because of the ambiguity of a generic AIRRtHE, it cannot give rise to operationalized rights and obligations is relatively easy to rebut. Many fundamental rights are also codified in a rather imprecise and generic manner, and it is precisely the indeterminacy of the language that allows flexible interpretations so as to accommodate new challenges. For example, the broadly defined nature of the right to respect for private and family life under Article 8 of the ECtHR has been utilized by the ECHR under a couple of circumstances to respond to the development in society, including the protection of professional activities against arbitrary interference, prevention of environmental pollution, and protection of personal data. Moreover, the fact that the environmental right has been adjudicated by a crowd of national courts and have positive effects around the world proves that the right to a healthy environment would not be too vague to be implemented.

Secondly, a more trenchant criticism comes from the theory of “Anthropocene”, which exposes the supremacy of human beings as the hegemony over other beings and nature and urges us to look at the human-environment relationship from an eco-centric perspective instead of an anthropocentric perspective (Kotzé, 2014, p. 135). The approach of an AIRRtHE, on the contrary, reinforces anthropocentricism. By seeing the environment as an entitlement of a human being, it still places human at the centre of environmental governance, and it only protects the environment when the negative effects have been such that the human enjoyment of rights has been interfered with (Kotzé and Daly, 2019, p. 1068). It may be argued that the more integrated human rights and environmental protection is, the less important is the distinction between the anthropocentric and the eco-centric approach, however, it is undeniable that up until now, the dominant approach of human rights bodies still emphasizes the adverse effect of environmental pollution on humans, not a general protection of the environment as such; and even if the Court gives some credit to the normative value of autonomous environmental rights “in themselves”, it is hardly operationalizable.

Thirdly, another sharp criticism is the regionally biased effect of the AIRRtHE. The observation made by Handl (1992) that human right to a healthy environment is by its very nature a context-dependent right is still tenable almost thirty years later. The narrative of environmental rights is still largely dominated by the racially and monetarily dominating power in the world, while the disproportionally affected, poor and non-white groups by global environmental deterioration are still striving for social-economic and political empowerment. Subjecting an inherently relative environmental right to a generalized AIRRtHE standard will potentially turn the standard into a completely empty shell, and it may subject the already disadvantaged groups to further discrimination (Handl, 1992, p. 131). 

Last but not least, there’s also anxiety that the introduction of an AIRRtHE will have an “atomizing effect”, making the international human rights regime filled with individual litigation and claims even more fragmented (Rodríguez-Garavito, 2018, p. 165). It remains a problem how to reconcile the potentially differentiated standards of the right to a healthy environment in the myriad litigations and jurisprudence at the domestic level even after the enaction of an AIRRtHE.

Conclusion 

Environmental protection requires global awareness and systematic behavioural changes, and it cannot be accomplished in an action. An AIRRtHE, if to be embodied in a universally binding instrument, has the potential of bridging the gaps of the existing corpus of international environmental and human rights law, but it leaves many issues unsolved, including the right of the “Mother Earth”, the issue of environmental justice, and the fragmentation of international human rights law. In an era when we are facing “daunting and enduring obstacles in a geopolitical context” even in the negotiation of soft-law instruments (Rodríguez-Garavito, 2018, p. 166), it is highly questionable whether the blueprint of an AIRRtHE will be realized in the near future. 

By Aaryyan Aathreya

Aaryyan Aathreya is a second-year law student from School of Law, SASTRA University India. He is passionate about Public International Law and International Dispute Settlement.

INTRODUCTION

Climate change is unequivocally one of the most challenging issues that the international community has been mandated to deal with. International Environmental Law (‘IEL’) is faced with a diabolical paradox insofar as mitigating the adverse effects of climate change is concerned. 

On the one hand, there is judicial ambivalence regarding the legal character of norms that underlie climate change mitigation obligations under relevant international instruments. For instance, the International Court of Justice (‘ICJ’) has characterized the precautionary principle as an “approach” rather than a principle of IEL, in the Pulp Mills and Construction of a Road cases. In the case concerning the Gabcikavo-Nagymaros Project, the ICJ had regarded sustainable development as an “objective” as opposed to a principle. 

On the other hand, there has been a proliferation of decisions and resolutions adopted by the Conference of Parties (‘COP’) of Multilateral Environmental Agreements (‘MEA’) that require state parties to reduce the negative impact of climate change mitigation activities— albeit their legal character is normative at best. In accordance with the principle of common but differentiated responsibilities, developed state parties are required to take the lead in combating climate change and developing state parties are obligated to contribute only in accordance with their respective capabilities and common but differentiated responsibilities. However, with the enactment of the Paris Agreement, the gap between developing and developed state parties has reduced. Several developing countries have submitted and continue to submit their Nationally Determined Contributions (‘NDCs’), in accordance with their obligations under Article 4 of the Paris Agreement.

 However, in light of the judicial ambivalence regarding principles of IEL and the several COP decisions under MEAs, how should countries characterize climate change mitigation obligations as a norm of IEL and thereby successfully resolve the conflict between obligations under climate change treaties and other MEAs? 

POTENTIAL FOR DISPUTES: A BACKGROUND

Apart from the UNFCCC, its Kyoto Protocol and the Paris Agreement, other key MEAs whose decision-making bodies have inter alia dealt with climate change include, but are not limited to, the Convention on Biological Diversity (CBD), Convention on the Conservation of Migratory Species and Wild Animals (CMS) and the Convention on the Conservation of Bats in Europe (EUROBATS). 

From as early as 2008, the COP to the CBD had adopted decisions to warn state parties of the potential negative impacts of climate change mitigation activities. In its decision IX/16, the COP had urged state parties to increase the positive and minimise the negative impacts of climate change mitigation activities. This has been successively reaffirmed using stronger language by the COP of the CBD in 2010, 2014, 2016 and 2018. 

The Secretariat to the CMS has adopted resolutions 7.5, 11.27 and 12.21 that call upon state parties to minimize negative effects of climate change mitigation measures because they allegedly have the most immediate negative impact on migratory species. In a similar vein, the COP of the EUROBATS, in resolution 8.7, has also urged state parties to adopt mitigation measures whenever activities are undertaken by state parties to mitigate climate change. There is also growing scientific evidence regarding the potentially harmful impact of mitigation activities on migratory species and the biodiversity as a whole. 

Despite the precarious stances adopted by decision-making bodies of these MEAs, the 5^th Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) states— “mitigation involves some level of co-benefits and risks due to adverse side effects but these risks do not involve the same possibility of severe, widespread, and irreversible impacts as risks from climate change.” According to Conclusion 12 of the International law Commission’s Conclusions on the Creation and Identification of Customary International Law, resolutions adopted by intergovernmental organizations or conferences do not in themselves constitute customary international law— they may indicate towards the creation of customary international law in the future. Therefore, given the proliferation of decisions and resolutions adopted under the auspices of various MEAs that call upon state parties to minimize the negative impact of mitigation activities, there may be potential disputes regarding the specificities of such requirements in the future. 

CLIMATE CHANGE MITIGATION AS AN ERGA OMNES OBLIGATION 

Theoretically, there exists an ambiguity with respect to the legal character of erga omnes obligations and its enforcement before international adjudicatory bodies. Scholars,, such as Fitzmaurice, such as Fitzmaurice, have argued that the legal character of international obligations pertaining to climate change are not traditionally bilateral in character but have to be placed within the paradigm of obligations erga omnes. In para 31 of the judgement in the Barcelona Traction case, the ICJ had distinguished between obligations owed vis-à-vis another state and obligations owed to the international community as a whole. It is the latter set of obligations that are regarded as obligations erga omnes. Contrary to the claim that it is quixotical to attribute responsibility for ambiguous obligations, it has been extensively suggested by scholars and organisations, that there is growing evidence that the duty to mitigate the adverse effects of climate change is erga omnes in character. 

The phraseology of Article 2 of the UNFCCC and Paris Agreement, which prescribe the objective of both the agreements, indicate that the obligations under them are owed to the international community as a whole. Furthermore, the IPCC 5^th Assessment Report elaborately details the consequences of delaying additional mitigation measures to 2030, including the costs that it would entail for all states— financially and environmentally. 

Although climate change mitigation was not mentioned as an example of an erga omnes obligation by the ICJ when it rendered its Barcelona Traction judgement, it would, in all likelihood, be characterized as an erga omnes obligation since all states have a legal interest in the protection of the environment. If international adjudicatory bodies were to accept this characterization, it would no longer require them to determine the question of the prevalence of one MEA over another and would rather place climate change mitigation on an independent and higher pedestal under IEL. 

PRECLUDING WRONGFULNESS: THE DOCTRINE OF NECESSITY 

Although the doctrine of necessity under international law has been regarded as a virtual subterfuge, it is contributory to, and not subversive of international law, to the extent that it adequately compliments climate change mitigation measures. Customary international law and Article 25 of the ARSIWA preclude wrongfulness when there is a grave and imminent peril against an essential interest of a state, provided that it does not impair the rights of any state and the measure adopted by the state is the only means of doing so.

 According to the ICJ in para 54 of the Gabcikavo-Nagymaros Project judgement,, a “peril” appearing in the long term might be “imminent” as soon as it is established, at the relevant point in time, however far off it might be, if it is not thereby any less certain and inevitable. Since dangerous levels of anthropogenic emissions are very likely to have adverse effects on the environment and climate change is an incumbent concern, albeit its consequences may drastically appear only in the long term, it is a grave and imminent peril.

 In para 53 of its Gabcikavo-Nagymaros Project judgement, the ICJ held that the environment constitutes an essential interest of a state. However, by recognizing climate change mitigation obligations as obligations erga omnes, adjudicatory bodies and states could go one step further to argue and adjudge that mitigation activities not only protect the essential interest of a state, but that of the international community. 

With several means to mitigate climate change, the onus would be on each state to demonstrate how a particular activity is the only means available for the state pursuing the activity. If a state can successfully establish a causal link between the principle of sustainable development and the activity being pursued, it would be a strong defense in its favour under international law.

Finally, rather than impairing a state’s rights under various MEAs, climate change mitigation activities protect the rights of other states due to its erga omnes character. Consequently, wrongfulness may be precluded, if adjudicatory bodies are satisfied with such a characterization based on the facts and circumstances of each case. 

CONCLUSION 

Climate change as a concern of International law has existed ever since the 1990s with the enactment of the UNFCCC Agreement. However, there has never been a dispute before the ICJ solely concerning climate change mitigation activities. Given the uncertain status of several norms of International Environmental Law in general, and norms that underlie climate change mitigation in particular, recognizing the erga omnes character of climate change mitigation activities would provide a new dimension to a general defence (the doctrine of necessity) under International law that has, until recently, only been cautiously explored. 

By Melina Lima, Marina Carvalho, and Catarina Baddini

Melina Lima has a bachelor degree in Law and a PhD in International Relations. She is currently an International Law Professor at IBMEC in Brazil and she leads a research group on International Law and the Amazon. Marina Carvalho and Catarina Baddini are Law undergraduate students and a researchers at International Law and the Amazon research group.

See also their previous post on the Jus Cogens Blog here.

Introduction

There is no novelty in the fact that the Amazon rainforest coverage has long been decreasing, as this territory has been under attack since the beginning of the European colonization. Nevertheless, the complete lack of concern for the environment of the current Brazilian administration is taking the devastation to unprecedented levels and studies calculate that the forest could soon reach an irreversible tipping point of becoming a savannah. This tragic prospect provides quite reasonable grounds for developing the discussions on whether environmental rights are human rights. To this end, this text aims at analyzing the precedents of both European and Inter American Courts of Human Rights to understand if the current devastation of the Brazilian Amazon could alone – without considering indigenous rights – become a case before the Inter American Human Rights System.  

Even though the ECtHR would not have jurisdiction over a case involving the Brazilian Amazon, international precedents can and should always be taken into consideration, since they function as an indicative of the development of the international law and its many subjects. As ruled by Article 38 (d) of the Statute of the International Court of Justice (ICJ) about the sources of international law, judicial decisions are a subsidiary means for the determination of rules of law. Moreover, environmental issues have been frequently assessed in the European Court’s decisions, which could serve as a guide and inspiration for the Inter-American Court of Human Rights (IACHR) if a case regarding the Amazon is filed. 

Environmental rights as human rights in the European Court of Human Rights 

Just like most – if not all – of the international human rights norms that constitute the foundation of the International Human Rights Regime, the European Convention on Human Rights (ECHR) does not enshrine any explicit right to a healthy and/or preserved environment. Notwithstanding this fact, the subject is not new to the European Court of Human Rights and the precedents on environmental issues amount to approximately 300, including topics such as pollution, dumping of toxic waste and natural disasters, amongst others. Since the environment is not mentioned in the ECHR, the Court’s judgments that addressed environmental issues were based on all sorts of provisions, such as the right to life, protection of property and the right to respect for private and family life. 

Given that it is impossible to mention all the cases, we shall present two that might relate to situations occurring now in the Amazon. The case Dubetska and other v. Ukraine concerned the operation of a coal mine and the health impacts for those who lived nearby. In the Brazilian Amazon, legal and illegal mining has always been an issue and it has gotten much worse during the current administration, as the government is explicitly in favor of promoting mining even if it leads to increasing deforestation. Apart from a law project that allows mining activities in indigenous demarked lands, non-indigenous populations are at risk as well. In the Amazon region, artisanal and small-scale gold mining is ‘responsible for an estimated 71 per cent of all mercury emissions, totaling more than 200 metric tons of emissions each year’, which includes the contamination of air, water and soil. The World Health Organization has classified mercury as one of the ten most dangerous chemical substances to public health. Therefore, it is clear that the health of much of the Amazonian population is in jeopardy. 

Another case that could be somehow related to the Amazon situation is Duarte Agostinho and others v. Portugal and 32 other states. Despite the fact that there is no ruling yet, it involves an environmental issue of utmost importance contemporarily, which is greenhouse gas emissions and global warming. The applicants read the ECHR’s articles in the light of the Paris Agreement (2015) and the case has brought innovations in many ways. Apart from being the first one to address climate change, the claimants presented an extraterritorial jurisdiction argument, as the environmental harm caused has a transboundary nature. Moreover, in addition from provisions commonly used, such as the right to life, the ECtHR also invoked the prohibition of torture and inhuman and degrading treatment (Article 3), which is unusual in climate change cases. Some elements of this groundbreaking case could serve as precedent to a hypothetical similar case concerning the Amazon. 

The Brazilian Amazon is the largest rainforest in the world and it should play a vital role in curbing global warming. However, it has lost 34% more of its forest in 2019 than in the year before, according to INPE. The deforestation alone is one major element that causes greenhouse gas emissions, but the fact that industrial-scale cattle ranching is one of the main reasons for the deforestation of the Amazon aggravates the emissions even more, as cows release methane into the atmosphere, which is 84 times more potent than carbon dioxide. The damage that people from the Amazon region are suffering is evident, such as the increase in the number of respiratory diseases, but the harm is already probably affecting other regions of Brazil and possibly other countries too, as natural disasters such as droughts and desertification in places thousands of miles away from the Amazon, like São Paulo, have been happening. Therefore, the Duarte Agostinho case relates in some aspects to the current situation in the Amazon, as there is clearly a climate change issue to be solved and the American Convention on Human Rights could be read in accordance with the 2015 Paris Agreement as well. The extraterritorial jurisdiction may also apply, for potential victims are not necessarily located where greenhouse gas emissions originate, but elsewhere in Brazil or in other countries of the continent whose citizens might be entitled to press charges against Brazil in the American System.    

Environmental rights as human rights in the Inter-American Court of Human Rights 

The American Convention on Human Rights (1969), also known as Pact of San Jose, is another example of human rights law that ignored environmental issues. Nevertheless, in 1999 the Additional Protocol of San Salvador entered into force in the Inter-American System and it represented a step forward concerning environmental rights, as it’s Article 11 provides that (1) every person has the right to live in a healthy environment and that (2) the state parties will promote the protection, preservation and the improvement of the environment. In spite of this explicit provision that is legally binding for 16 ratifying states, including Brazil, its violation cannot be questioned through the Individual Petition System of the IACHR. According to Article 19 of the Protocol, only rights related to education and unions can be pleaded using the aforementioned system. The rest of the rights, including the environmental one, can only be demanded when they are connected to other rights in the Pact of San Jose. 

Addressing the precedents of the IACHR on environmental issues, they are not as numerous or as diverse as those from the European Human Rights system, amounting to less than 10 cases. In addition from being less developed, the approach of the environment topic diverges considerably when we compare the Inter-American and European Human Rights Courts. Whilst the European system has had cases involving all types of violations of the ECHR, the Inter-American Court analyses environmental issues mostly in cases concerning indigenous rights violations, which many analysts consider to be an oblique or transversal path to address environmental issues.     

Among the cases, two of them are especially worth mentioning for the innovations they have brought comparatively with the others. The case Comunidade La Oroya v. Peru, despite the fact it has not been ruled on by the IACHR, is considered a milestone. This is not only because it was the first case to be admitted by the Human Rights Commission that specifically mentioned an environmental degradation, but also because it was the first one that did not relate to indigenous communities. The case concerned the pollution caused by a metallurgical company in a Peruvian city and the petitioners claimed that the rights to life, humane treatment, right to health, among others were violated by the private company, but were attributable to state omissions, especially the noncompliance with environmental and health regulations. It is interesting to note that much of the current devastation in the Brazilian Amazon involves private businesses, air pollution and is largely due to state omission.  

The other case is Comunidades Indígenas Miembros de La Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina. Although it concerned an indigenous community, it is relevant because it was the first contentious case that the IACHR directly addressed the right to a healthy environment, condemning Argentina. The Court ruled that Article 26 of the Pact (progressive development) had been violated. Notwithstanding the fact that Article 26 does not mention the environment, the Court understood that the rights to a healthy environment, adequate feeding, water and cultural identity were implicitly comprised in it, which was an unprecedented interpretation. Since Article 26 can be applied indistinctly to any person whose country is under the jurisdiction of the IACHR, it could serve as precedent in a hypothetical case involving the Brazilian Amazon.  

Apart from the decisions aforementioned, there is an Advisory Opinion (OC-23/17) of the IACHR from 2017 that is rather relevant for the development of the topic. Colombia required the Court to determine how the Pact of San Jose would be applied in relation to other environmental conventions that aim at protecting specific regions. In the Opinion, it was made clear that the right to a healthy environment is a fundamental right and that States have several obligations when it comes to ensuring that their actions do not put in jeopardy these rights. According to the IACHR, ‘This Opinion constitutes one of the first opportunities that the Court has had to refer extensively to the State obligations arising from the need to protect the environment under the American Convention’. 

The contemporary attacks against the Amazon and the IACHR’s jurisdiction

Brazil has ratified the Pact of San Jose in 1992 and has recognized the compulsory jurisdiction of the IACHR in 1998. Therefore, individual petitions about the Amazon rainforest against Brazil have potential to be admitted by the Commission, which is the institution that ultimately takes the cases to the Court. The hypothetical cases would surely need to fulfill other formal requirements as well, such as proving an unjustifiable delay of the Brazilian judicial system or the exhaustion of domestic remedies, but the moot point to consider is the merits, especially the possibility of trying an environment case in spite of the lack of provisions in the Inter-American Human Rights laws. Although the environment topic is still quite underdeveloped in the Inter-American System, the international precedents as a whole clearly show that interpreting environmental rights as human rights is a growing trend. The Advisory Opinion (OC-23/17) also reveals this tendency.  Therefore, considering the merits of a hypothetical complaint, one must notice that the Brazilian Amazon rainforest is in a dire situation and the world’s context of global warming makes the devastation an even more urgent matter. No one questions that environmental issues tend to affect more indigenous populations than non-native ones. Nonetheless, it is also unquestionable that a healthy environment is vital for every human being, regardless of ethnicity. It is, thus, about time that environmental rights are seen as human rights and that the IACHR addresses such cases directly, without having to take the oblique path it usually follows. And this new perspective should not mean that native populations would no longer be entitled to discuss environment matters in their cases; it simply means that the IACHR would be able to try environment cases that are not related to indigenous. We might be witnessing the first steps of a long journey in which environmental rights and human rights will merge into a single area of international law and, if nothing changes in the Brazilian Amazon, a case concerning this region could set a sad, yet historical, judicial precedent that will help consolidate this integration.  

By Anh Nguyen

Anh Nguyen is a law graduate of the University of Vienna and trainee in international dispute resolution at Knoetzl Haugeneder Netal, currently completing her judicial clerkship in the Vienna Circuit. She tweets at @mikanguyen27.

On the 25^th January, 2021 a French court commenced hearings for a lawsuit filed by Ms. Tran To Nga, a French national of Vietnamese descent, against more than 20 firms, amongst them Monsanto and Dow Chemicals, complicit in the production of Agent Orange, the deadly herbicide used by the US military in Operation Ranch Hand during the Vietnam War between 1962 and 1971.

Ms. Tran’s lawsuit casts light upon the continuing devastating effects of environmental warfare on Vietnam’s ecosystem and population and it is out of the protests against the use of Agent Orange and “rainbow” herbicides that the “ecocide” movement was born. This term was coined in 1970 for a proposal of an international agreement to ban the “wilful and permanent destruction” of the environment by Arthur Galston, a biology professor, who identified the defoliant effects of chemicals later developed into Agent Orange. Three years later international law professor Richard Falk  proposed an Ecocide Convention to criminalise acts committed “with the intent to destroy, in whole or in part, a human ecosystem both in peace and wartime”.

As with the four “core crimes” under the Rome Statute, genocide, crimes against humanity, war crimes, and crimes of aggression, the criminal dimension of acts constituting ecocide emerged from the ravages of war. Revisiting the roots of ecocide in the legal discourse on environmental warfare employing Agent Orange will enlighten contemporary efforts to establish ecocide as an international crime.

According to the ILC’s definition, environmental destruction must be “widespread, long-term and severe” to constitute ecocide. During wartimes destruction is considered “widespread” if it “encompasses an area on the scale of several hundred kilometres,” “long-lasting” if it “lasts for a period of months, or approximately a season,” and “severe” if it “involves serious or significant disruption or harm to human life, natural and economic resources or other assets.” Measured against this definition Operation Ranch Hand would have constituted an act of ecocide. The widespread damage is seen in the estimated 76,000 m3  of herbicides and defoliants, the equivalent of 30 Olympic size swimming pools, sprayed over 22,000 km2 of forest and crops in South Vietnam to deprive the North Vietnamese and Viet Cong troops of cover and sustenance. Among the present day Vietnamese population, as many as 4.8 million people suffer illnesses or have been left disabled from exposure to Agent Orange. Health problems ranging from leukaemia, Hodgkin’s, Parkinson’s disease, many forms of cancer to inheritable birth deformities, attest to the long-lasting and severe effects of Agent Orange.

Rather than environmental destruction as a form of warfare, our contemporary “peacetime” understanding of potential ecocidal acts is informed by acts of exploitation of the environment for resources, over the course of which the environment is destroyed. As a matter of actus reus, it seems intuitive that destruction and exploitation be considered alternative modi operandi for ecocide. However, Prof. Galston, who coined the term ecocide, and international law scholars considered ecocide an act of war, and as such would not encompass environmental exploitation through resource extraction. In Prof. Falk’s proposed Ecocide Convention only the forcible removal of human beings from their habitation “to expedite the pursuit of military or industrial objectives” was included as a non-military modus operandi of ecocide. 

Between 1984-1986 the ILC considered the inclusion of environmental crime as an international crime under Art 26 of the ILC Draft Code of Crimes Against the Peace and Security of Mankind, the preparatory work for the ICC Draft Statute. Ultimately references to environmental destruction adopted in the Rome Statue only remained within the narrow confines of war crimes under Article 8(2)(b)(iv):“intentionally launching an attack in the knowledge that such attack will cause […] 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.”

In 2016 the Office of the ICC Prosecutor published a Policy Paper on Case Selection and Prioritization, pledging to investigate crimes under the Rome Statute resulting in three kinds of grave environmental impacts: destruction of the environment, illegal exploitation of natural resources or the illegal dispossession of land. Although it may seem like the OTP’s pledge considerably widens the possibility to bring charges in respect to environmental crimes, unless ecocide becomes a stand-alone crime under the Rome Statute, acts of grave environmental destruction can only be investigated, if they prima facie constitute admissible crimes under the Rome Statute (see Art 53(1)(a) Rome Statute). The fulfilment of the OTP’s pledge is constrained by the ICC’s jurisdiction, which only extends to the four “core crimes” under the Rome Statute. 

Drawing from the developments elaborated upon above ecocide could be advanced as:

(1) Ecocide is the wilful destruction of the environment, the exploitation of natural resources or the dispossession of land, causing widespread, long-term and severe damage to the natural environment in whole or in part, whereby such acts violate international or national law, or cause damage incommensurate with the concrete and legitimate economic public policy objective intended.

(2) Complicity to ecocide is the perpetration or facilitation of illegal activities, which directly enable the acts as proscribed in paragraph 1.

The actus reus is modelled upon the three modi operandi enumerated in the OTP’s Policy Paper. Regarding mens rea (“wilful destruction”), it remains open if the characteristic “double intent”, a prerequisite for genocide, should be also required: the intent to commit the underlying act damaging the environment and the ulterior aim of destroying it. The underlying mental element of ecocide distinguishes itself from that of genocide in that neither a political vendetta against nor a dehumanising “othering” of the environment exists, thus genocidal “double intent” cannot be adopted to the letter for ecocide. When establishing mens rea behind destruction through a “scorched earth” strategy, as seen in the environmental warfare of Agent Orange, the intent of the underlying act and ulterior motive “to destroy” the environment seemingly converge. During peacetime, however, acts such as oil drilling, fracking, deep sea mining, mineral extraction or mass deforestation, causing the environmental hazards within the realm of ecocide, are not conceived as a criminal, but rather industrial enterprises. Rather than any specific or “original” intent to destroy, utter recklessness or lack of concern for the inevitable destruction of the environment in favour of profits drive potential acts of ecocide perpetrated by extractive industries.

Efforts to criminalise ecocide should consequently be irrespective of a presumed or arguable “legality” of the underlying industrial enterprise. Thus, remodelling the “exceeding military advantage anticipated” requirement in Art 8(2)(b)(iv) Rome Statute sanctioning grave environmental destruction as a war crime, egregious destruction of the environment by extractive industries incommensurate with any legitimate public policies or economic rationale should be punishable. Furthermore, it is an open secret that these industries operate with governmental legal blessing through lobbied permits and licences or outright regulatory capture. Therefore, complicity to ecocide should also be considered to sanction extractive industries’ or other actors’ involvement in illegal activities, especially the corruption of legislators, public officials and agencies, which directly enable ecocidal exploitation of the environment. 

Finally, making ecocide an international crime paves the way to establish individual criminal responsibility of corporate executives as natural and corporations as legal persons. For international criminal law scholars this means testing the ICTY’s doctrines of joint criminal enterprise and functional perpetration and command responsibility from a military context to corporate units and executives. Turning to state responsibility, a counterpart international obligation of states should exist for the prevention and punishment of ecocide, as in the Genocide Convention, compelling states to adopt national legislation against ecocide (e.g. several countries, the first amongst them Vietnam, adopted the wording of Art 26 ILC Draft Code) as well as guardrails to halt extractive industrial practices, which overtime snowball into ecocidal destruction of the environment.

While Ms. Tran’s lawsuit centres around establishing the direct relationship between Agent Orange and the diseases suffered by Vietnamese civilians exposed to it, a determination of the widespread, severe and long-term effects of Agent Orange on the environment by French courts would set an invaluable precedent for the ecocide movement, for which – serendipitously –  Ms. Tran’s legal counsel, Valérie Cabanes, is campaigning. In a similar American lawsuit brought by Agent Orange victims against Dow Chemicals US courts minimised Agent Orange as “not […] designed for targeting human populations”, as such was “only secondarily, and not intentionally harmful to humans”. Assuming this argument is remotely palatable, the fact remains that the deployment of Agent Orange, if only to “primarily” defoliate forests and crops, would have already constituted an act of ecocide. Ms. Tran’s lawsuit is a searing reminder that ultimately the victim of the unspeakable harm inflicted by ecocide is not some mystical Mother Nature, but us, her human population. We only have to search out for the images of Agent Orange victims to apprehend the inherent criminal potential of ecocide and thus the imperative to make it the fifth core crime under the Rome Statute.

By Manoëlle Koninckx

Manoëlle Koninckx, Master of Laws, graduated from the University of Antwerpen having as main subject of interest International Criminal Law, Human Rights and Environmental Challenges. 

The environmental situation on Earth is extremely alarming. In this turmoil, a clear consensus has emerged as to the fact that action must be taken internationally to alleviate human’s destructive frenzy; the question however remains as to the means required. While it has been largely argued in literature that a new crime ‘ecocide’ should be added to the list of International Criminal Law (ICL)’s core crimes, in this post, I take the stand that international instability and the time required to amend an instrument like the Rome Statute on the International Criminal Court (ICC) renders such approach inefficient and unfitted to the environmental emergency. Rather, relying on the umbrella provision of Article 7(1)(k) of the Rome Statute, I argue that, even if limited to some extent, a more pragmatic solution may be found in the prosecution before the ICC of attacks on humans, directly perpetrated by means of harms to their environment.

1. How does the Crimes Against Humanity provision of the Rome Statute provide protection against Environmental destruction? 

Until now, Crimes Against Humanity (CAH) provisions find application in contexts of state repression or predation by armed groups. Environmental harm, on the other hand, is only explicitly prohibited under ICL in war contexts under Article 8 of the Rome Statute. This post nonetheless suggests a contemporary application of the Rome Statute provisions on CAH is possible based on a teleological interpretation of CAH’s definition.

Such interpretation finds its roots in the publication of the 2016 Office of the ICC Prosecutor Policy Paper on Case Selection and Prioritization, which insisted on giving particular attention to the ‘means employed to execute the crime (…) [focusing inter alia on] crimes committed by means of, or resulting in, the destruction of the environment or of protected objects (…) illegal exploitation of natural resources or the illegal dispossession of land’. Since the publication of this document, the interpretation of CAH as encompassing crimes against the environment was rendered foreseeable. 

Still, not any environmental harm may be interpreted as a CAH. It should fulfill the conditions required by Article 7 of the ICC Statute; hence 1. Be a prohibited act enlisted in the Statute; 2. Constitute an attack against a civilian population; 3. Be widespread or systematic; 4. Derive from a state or organizational policy; and 5. Be done with intent. 

Prohibited act:  Article 7(1) of the ICC Statute requires the commission of one of the acts it enlists. In this regard, the category of ‘other inhumane acts’ (Article 7(1)(k)) retains all our attention.  This umbrella provision creates an openness to the concept of CAH. As such, it acknowledges that no explicit provision can ever rival the imagination of criminals and opens the floor for environmental destruction as a means to perpetrate CAH. The destruction should be inherently grave as being the source of ‘great suffering, or serious injury to body or mental or physical health’ of the victims (Article 7 (1)(k)) and be of a ‘character similar to any other act’ referred to in Article 7(1)(a-j) of the Statute. Authors such as Amissi Melchiade Manirabona have in this matter argued that toxic waste poisoning could in some cases qualify as a CAH when causing a significant amount of direct harm.

Attack against a civilian population:  Established jurisprudence shows that the term ‘attack’ should be distinguished from the context of an armed conflict and is not limited to the use of armed force. Rather, it encompasses ‘any mistreatment of the civilian population’ (ICTY, Kunarac case, para. 86) or any ‘campaign or operation carried out against the civilian population’ (ICC, Bemba case, para. 149). Accordingly, attacks are conceptualized broadly by the ICC. They hence hold the potential to encompass massive environmental destruction because of its value for earthlings’ survival.

Widespread or systematic: Under the Rome Statute, any natural person, be a state official, a member of an armed group, or a civilian, may be prosecuted for CAH where his or her action is sufficiently connected to a widespread or systematic attack against a civilian population with the knowledge of the attack. The ‘widespread’ criterion mostly refers to a quantitative threshold, referring to the scale of the attack or, equivalently, to the substantial number of victims. In the context of environmental destruction, one could consider ‘widespread’ the act of dropping a considerable amount of hazardous waste on a residential area. The ‘systematic’ requirement, on the other hand, refers to the nature of an act of violence. As such it should imply a certain degree of organization and planning. The violation of individual rights should follow a pattern and involve the repetition of similar criminal conduct on a regular basis. This provision could, for example, encompass the constant dropping of untreated and unfiltered petroleum waste in the natural environment surrounding oil exploitations, considering their dramatic effects on human health.

Policy of a State or a Corporation: the attack should be committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’; a consensus seems to emerge from literature and ICC’s jurisprudence (ICTY, Tadic case, para. 131) that under this formulation, any organized group of people with a particular purpose, such as a government department or even a corporation could qualify, hence recognizing that the purpose and motivation of such actors for capital and profit may be of a corruptive and tempting influence. When such deviance occurs, corporations contain a structure of authority, legitimized by the law, to facilitate the perpetration of crimes. For this matter, some authors have suggested that it might be possible to prosecute the corporation’s CEO or other high-ranking officers for their decision(s) in the management of the firm (the ongoing investigations on Colombia could be interesting in that matter as the file includes examinations of the corporate Chiquita for CAH alleges). Others have theorized that corporate officers could be held as accomplices in some form, be by the ‘aiding and abetting’ provision of Article 25(3)(c) of the ICC Statute; joint criminal enterprise or co-perpetration of Article 25(3)(d); or superior responsibility for crimes committed by their subordinates of Article 28(b). Those options all hold the potential to overcome the ‘corporation excuse’, according to which the fact that the corporate nature of the author could prevent any prosecution before the ICC. 

Intent: The final contextual element relates to the intention of the author. Some may argue that most of the time, environmental destruction is not committed for the purpose of harm and is rather profit-driven. Nonetheless, these motives do not prevent compliance with the mental requirement enshrined in Articles 30 and 7 of the ICC Statute. Indeed, it has been long established that the motives that inspired the perpetrator to take part in the attack are of little significance. The perpetrator’s knowledge that its actions amount to CAH does not matter either. However, the awareness that its act will, in the ordinary course of events, have as a consequence massive destruction of the environment and thereby a disastrous impact on the local population, is crucial. Therefore, ‘it is enough that the accused was aware of the environmental destruction’ to consider the intent requirement to be fulfilled. 

2. Limitations

Antropocentrism: The Rome Statute approach only evaluates environmental damages for their impact on humans, as such, it provides for an anthropocentric and somehow limited approach to environmental destruction. Yet, it does not mean that non-human environmental entities (i.e. ‘natural objects’ such as rivers, mountains oceans, or what comes under the definition of fauna and flora) may not be defended. Nonetheless, they will never be for their intrinsic value. Ecocentric considerations are non-receivable before the ICC. Which means that, for example, the destruction of the Amazon forest in Brazil may never be considered as a CAH as such, rather, it may be for its instrumental or utilitarian value for mankind (shelter, source of food, medicine, clean air, …). 

Foreseeability: The mandate of the current ICC prosecutor (and author of the 2016 Policy Paper), Fatou Bensouda, will end on 15 June 2021. As of March 2021, no investigations or prosecutions in which environmental damage or illegal natural resources were regarded to be aggravating circumstances in the case selection and investigation criterion. It remains to be seen whether the new prosecutor, Karim Khan, will pursue similar policy guidance on case selection and prioritization.

3. A call for pragmatism 

While limited to some extent, protecting earthlings from mass environmental destruction under Article 7(1)(k) of the Rome Statute is feasible and should not be overlooked. CAH, as known for their grave character of their prosecution tend to shine the spotlight on events that otherwise would be undermined or ignored before national courts. As such, the prosecution of few but massive environmental destructions may set an example and contribute to the fight against impunity. 

Considering the urgency of the present situation, no means of defense of the environment should be neglected. Especially those whose symbolism is likely to inspire the international community to more sustainable practices. To paraphrase the Irish author and philosopher Edmund Burke, more than ever, nobody will make a greater mistake than he who does nothing because he can only do a little.