Mining and Ecocide Law

There is a growing movement and advocacy for the introduction of ecocide law at both a domestic and international level. The common definition of ecocide is the destruction of large areas of the natural environment as a consequence of human activity.  Some obvious examples of ecocide are the Niger Delta, Alberta Tar Sands and the pollution caused by Chevron/Texaco in Amazonian jungle in Ecuador. Under ecocide law, irresponsible and harmful mining projects and practices could become punishable crimes and this would impact upon the extractive industries.

After the Vietnam War the Nobel Prize winning plant biologist Arthur Galston first used the word ecocide in a public forum to describe extreme environmental harm, in his case the widespread effects of Agent Orange. Subsequently there have been many international jurists, academics, lawyers, politicians and Prime Ministers, such as Olof Palme of Sweden, who have called for ecocide to be an international crime and the movement is growing. The list of those advocating for ecocide law is formidable in terms of legal intelligence and influence: Richard Falk, Indira Gandhi, Tang Le, Adolfo Perez Esquivel, Mark Grey, Laurent Neyret and Polly Higgins to name only a few.

The capacity and proliferation of potential ecocide sites across the globe has risen with the technological capacity of humans. At the same time many jurisdictions, from local to global, from criminal to administrative planning law, struggle to deal with the rise of environmental harm and formulate adequate legal responses. One legal definition of ecocide from the advocate Polly Higgins is: “Ecocide is the extensive damage to, destruction of or loss of ecosystems 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 or will be severely diminished.” If enshrined in law there would be measurements of harm such that environmental harm would need to be widespread, long lasting or severe. These are already defined under the United Nations Convention on Environmental Modification.

The inclusion of ecocide within criminal codes creates a legal duty of care for all inhabitants that are at risk of being harmed by environmental damage and is the legal expression of our obligation to care for our common home. Crimes that already exist within the jurisdiction of the International Criminal Court under Article 5 of the Rome Statute are known as crimes against peace, such as genocide and war crimes and it is proposed that a crime against ecocide be the fifth. Initially ecocide was included in the negotiations of the Rome Statute and the circumstances of its exclusion still remain unclear. There are many different possible legal definitions of ecocide. Some have proposed that it be a crime of strict liability rather than intent and the lack of clarity around what exactly constitutes an ecocide and how it could be defined has been the reason cited for those who oppose its introduction. However the same could be said of the law against genocide.

Environmental crime is an emerging are of law and governance, however there is industry resistance to it gaining force as it will hinder markets and the exploitation of resources. On the other hand there exist many within industry who believe it will clarify the duties and obligations of companies and governments towards the environment and create a level playing field between companies. More clarity on the limits of harm to ecosystems would also shine a lens on government policy regarding development and regulation of extractive industries which is a constant shape shifter confusing all involved.

Depending on how it is formulated ecocide law would have a significant impact on how companies and CEOs make decisions and manage risk.  Some of the proposals for international ecocide law include personal liability for CEOs or State officials who are the top of the chain of command. As with the other crimes against peace enshrined in the Rome Statute the responsibility is individual and put before a criminal court. Therefore the use of the corporate veil and forum shopping to avoid liability would be significantly reduced. Interestingly, in terms of penalties there is a strong push for restorative justice in order to ensure that the areas where ecocide have occurred receive adequate rehabilitation or a process of mitigating against further harm.

If ecocide was to become a crime against peace and included within the Rome Statute, exploitation and harm that occurs in one territory but is enacted and the decision made in another would not give that individual a “get out of consequences free” card. Although many countries have not signed the Rome Statute, ecocide as an international crime would have a significant impact on the risk minimising strategies of transnational companies who operate in nations with weak governance structures and which have difficulty holding powerful companies to account for the damage they do. This is explicitly illustrated in the battle the indigenous people and the government of Ecuador has had with Chevron/Texaco to take responsibility for the extreme harm done in the Amazon.

Ten countries currently have laws against ecocide at a domestic level but there has not yet been a significant prosecution. What is needed is international recognition of this law as the damage and harm from ecocide is not going away. Equally the legal and public movement for ecocide law is growing and hasn’t abated since the 1970’s.