In view of the worsening situation and continued and continuous exploitation of the planet, in the full knowledge that such actions contribute to Global Warming, Desertification and Rising Sea Levels (by way of examples), by nations and corporations acting out of a desire for economic gain, rather than sustainable growth - and where such rape of the earth is damaging to our precious ecosystems - we (Cleaner Ocean Foundation, a not for profit organization with charitable objects) consider and would like to add support to the notion, or newly/freshly propose that it is time that the crime of Ecocide was recognised and admitted as an internationally recognized and punishable offence, by way of amendment to the Rome Statute, done in Rome on the 17th day of July 1998.

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The Model Law – proposed amendment to the Rome Statute

THE CRIME

Ecocide crime is:

acts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.

To establish seriousness, impact(s) must be widespread, long-term or severe, [based on evidence visible change or scientific data].

For the purposes of paragraph 1:

(a) ’climate loss or damage to or destruction of’ means impact(s) of one or more of the following occurrences, unrestricted by State or jurisdictional boundaries: (i) rising sea-levels, (ii) hurricanes, typhoons or cyclones, (iii) earthquakes, (iv) other climate occurrences;

(b) ’ecosystems’ means means a biological community of interdependent inhabitants and their physical environment;

(c) ’territory(ies)’ means one or more of the following habitats, unrestricted by State or jurisdictional boundaries: (i) terrestrial, (ii) fresh-water, marine or high seas, (iii) atmosphere, (iv) other natural habitats;

(d) ‘peaceful enjoyment’ means peace, health and cultural integrity;

(e) ‘inhabitants’ means indigenous occupants and/or settled communities of a territory consisting of one or more of the following: (i) humans, (ii) animals, fish, birds or insects, (iii) plant species, (iv) other living organisms.

4. For the purposes of paragraph 1: the Paris Agreement of 4 November 2016 shall be considered to be established premise for prior knowledge by State, corporate or any other entity’s senior person, or any other person of superior responsibility.

THE ELEMENTS

The perpetrator’s acts or omissions caused, contributed to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to, or destruction of ecosystem(s) of a given territory(ies).

The perpetrator’s activity has or will severely diminish peaceful enjoyment by the inhabitants.

The perpetrator had knowledge or ought to have had knowledge of the likelihood of ecological, climate or cultural harm.

The perpetrator was a senior person within the course of State, corporate or any other entity’s activity in times of peace or conflict.

What ECOCIDE LAW will achieve

LAW OF ECOCIDE

• Prevents the risk of and/or actual extensive damage to, destruction of or loss of ecosystem(s);
• prohibits decisions that result in extensive damage to or destruction of or loss of ecosystem(s);
• pre-empts decision-making of a political, financial and business nature that may lead to significant harm.

DUTY OF CARE

Superior responsibility provision: an international and transboundary duty of care on any person or persons who exercises a position of superior responsibility, without exemption, in either private or public capacity to prevent the risk of and/or actual extensive damage to or destruction of or loss of ecosystem(s).

Business provision: an international and transboundary duty of care on CEOs and directors of a business and/or any person who exercises rights over a given territory to ensure ecocide does not occur.

Political provision: an international and transboundary duty of care on governmental actors, specifically Heads of State and Ministers with environment/energy/climate change portfolios, to ensure ecocide does not occur and to provide emergency assistance before, during and after to other territories at risk or adversely affected by ecocide.

Financial provision: an international and transboundary duty of care on financiers, investors, CEOs and directors of any banking and investment institutions who exercises a position of superior responsibility, to ensure ecocide is not financed.

TRUSTEESHIP

A law of Ecocide also imputes a legal duty of care in the event of natural catastrophe (e.g. rising sea-levels, droughts, earthquakes). The United Nations Trusteeship Council’s purpose (as one of the founding pillars of the UN Charter) was to assist territories that were unable to self-govern; it is proposed that the Trusteeship Council re-open it’s doors and be put to use again to assist non-self governing territories that have been or are at risk of being harmed by Ecocide[5]. It can be used to assist territories suffering from Climate ecocide as well as ecological ecocide and cultural ecocide.

By re-opening the UN Trusteeship Council chamber (set in abeyance since 1994), Member States that are facing ecocide, and thus can no longer self-govern, have a ready-made forum in which to appeal to and receive aid. For instance, nations seeking a humanitarian response to flooding and rising sea-levels could then seek the assistance of the international community under the auspices of the Trusteeship Council, to ensure that nearby nations are supported as they give safe harbour to frontline States that have or about to suffer climate ecocide.

ROME STATUTE

The Rome Statute of the International Criminal Court is the governing document which sets out the existing international Crimes. The international crimes currently provided for under the Rome Statute do not however address:

• the protection of ecology (non-human inhabitants of a territory);
• the protection of indigenous and cultural rights (for example when there is destruction of a traditional way of life); or
• loss, damage and destruction that occurs in peace time.

Ecocide crime shall address all of this and was included in earlier drafts, until it was removed in 1996.

The Process

There are currently 124 nation States that are signatories to the Rome Statute. Amendments to the Rome Statute of the International Criminal Court must be proposed, adopted, and ratified in accordance with Articles 121 and 122 of the Statute. Any State Party to the Statute can propose an amendment. Adoption of the proposed amendment is by a two-thirds majority vote in either a meeting of the Assembly of States Parties or a review conference called by the Assembly. An amendment comes into force for all States Parties one year after it is ratified by seven-eighths of the States Parties.

Any amendment to articles 5, 6, 7, or 8 of the Statute (the crimes) only enters into force for States Parties that have ratified the amendment. A State Party which ratifies an amendment to Articles 5, 6, 7, or 8 is subject to that amendment one year after ratifying it, regardless of how many other States Parties have also ratified it. (Article 121(5)) For an Article 5, 6, 7, or 8 amendment, the Statute itself is amended after the amendment comes into force for the first State Party to ratify it. (Article 122(2))

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[1] Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010 (2nd Ed 2015), pp. 61- 92. See also her second book, Earth is our Business, 2011.
[2] Preamble, Rome Statute.
[3] See iecc-tpie.org, who are calling for an International Criminal Court for the Environment.
[4] See icecoalition.com and see also the International Court for the Environment Foundation.
[5] ‘Ecocide is the missing 5th Crime Against Peace’ Summary Document setting out the history of Ecocide law. First published in 2012 and updated in July 2013. See: SAS Ecocide Project
[6] See Chapter 6, Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010 (2nd Ed 2015), pp. 72 – 92.

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IT IS ASSERTED THAT ECOCIDE ENCOMPASSES:

1. Climate change

2. Change in biosphere integrity (biodiversity loss and species extinction, industrial fishing)

3. Biogeochemical flows (nitrogen and phosphorus cycles)

4. Land-system change (for example deforestation, industrial farming, mining, oil drilling, palm oil production)

5. Ocean acidification

6. Freshwater use

7. Atmospheric aerosol loading (microscopic particles in the atmosphere, air pollution)

8. Stratospheric ozone depletion - greenhouse gases

9. Introduction of novel entities (e.g. oil spills, organic pollutants, radioactive materials, nuclear energy, nuclear weapons & waste, nanomaterials, and micro-plastics).


The planetary boundaries are the limits to the stability of the global ecosystem, determined in 2009 by Johan Rockström’s scientific team, revised in January 2015 by Will Steffen‘s team from the Stockholm Resilience Centre, beyond which human existence is threatened.

The science shows that these nine processes and systems regulate the stability and resilience of the Earth System – the interactions of land, ocean, atmosphere and life that together provide conditions upon which our societies depend.

Four of nine planetary boundaries have now been crossed as a result of human activity. The four are: climate change, loss of biosphere integrity, land-system change, altered biogeochemical cycles (phosphorus and nitrogen). Two of these, climate change and biosphere integrity, are what the scientists call “core boundaries”. Significantly altering either of these “core boundaries” would “drive the Earth System into a new state”.

“Transgressing a boundary increases the risk that human activities could inadvertently drive the Earth System into a much less hospitable state, damaging efforts to reduce poverty and leading to a deterioration of human well being in many parts of the world, including wealthy countries,” according to Professor Will Steffen.

The planetary boundaries are inextricably related, and the transgression of one increases the risk of surpassing other limits (e.g. climate change significantly affects the freshwater cycle). Professor Johan Rockström asserts that once certain thresholds are passed, there is a risk of “irreversible and abrupt environmental change”, the consequences of which would be catastrophic for humanity. For example, by 2050 it is estimated that half a billion people are likely to experience water-stress, increasing the potential for conflict over scarce resources.

The Earth is currently in the ‘Anthropocene’ period of its geological history, named for the unprecedented impact of humans on the natural environment and its biogeochemical processes. Since the Industrial Revolution, human activity has resulted in the escalating loss of biodiversity, massive deforestation, depletion of nitrogen and phosphorus needed for soil cultivation, scarcity of fresh water, ocean acidification, over-concentration of atmospheric carbon dioxide, and finally the loss of integrity of the ozone layer. As of January 2015, the planet has crossed the threshold of four of its nine limits.

SIX (SUGGESTED) STEPS TOWARD ADDRESSING POTENTIAL DAMAGING ECOCIDAL TENDENCIES

1. TRANSPORT: Phase out polluting vehicles. Governments aim to end the sale of new petrol, and diesel vehicles by 2040 but have no infrastructure plan to support such ambition. Such infrastructure should exceed the performance of fossil fuel filling stations, prolong EV battery life and provide power grids with a measure of load leveling. Any such system should seek to obviate the provision of millions of fast charge points to include fuel cell cars, where implementation could otherwise prove to be a logistical nightmare. This may involve international agreement as to energy storage format and statute to steer OEM vehicle makers to collaborate as to future proofing, to include green hydrogen.

Marine transport can be carbon neutral given the right policy incentives, with phased transition in specific stages such as not to unduly penalize present investment in LNG shipping and other recent MARPOL compliant IC powered vessels. Future cargo vessel should be at least in part powered by renewable solar and/or wind energy, on the road to zero carbon, making allowances for technology catch-up. A scrappage scheme might encourage fleet operators to accelerate shipping upgrades, and a fund for radical innovation that would not otherwise qualify under in-situ programmes (such as Horizon Europe) might be introduced - with fast-track, reduced, form-filling and open-loop decision making, such that applications may be tweaked rather than struck out.

Air travel powered by kerosene should attract hefty mitigation offset, where low carbon alternatives should be encouraged such as electric air transport.

2. RENEWABLES:  Renewable energy should replace carbon-based fuels (coal, oil and gas) in our electricity for homes, factories, heating and transport. Coal and nuclear power plants should be phased out.

3. HOUSING: On site micro or macro generation is the best option, starting with new build homes that are both affordable and sustainable by design to replace crumbling housing stocks. Encourage building in timber to provide carbon lock from a renewable natural resource. Planning policies should be updated to outlaw unsustainable development, with harsh financial penalties for kleptocratic local authorities, especially those with a history of corrupt practices (from historic similar fact evidence files).

4. AGRICULTURE: We need to grow more trees to absorb carbon emissions from a growing population, unregulated/unrestricted air travel. New homes should be timber where practical as a priority. We should promote reductions in food waste and the eating of foods that use less energy to produce. Educate children on these matters in schools and via campaigns such as no meat Mondays, should be part of ordinary study. Polluted fish from fisheries, might be replaced with fish farmed by aquaculture inland, rather than risk carcinogens from our seas.

5. INDUSTRY: Factories should be aiming for solar heating and onsite renewable energy generation. EV parking and even service facilities should be part of new industrial estates as part of any building permissions - with subsidies or tax reductions as incentives to property developers.

6. POLITICS: - National governing bodies need to adopt rules to eliminate administrative wastages, to include scaling down spending on (showboat) war machines, increasing spend on educating the public and supporting sustainable social policies that mesh with other cultures. This includes fostering policies and making funds available to close links in the technology chain to make up for lost time. Kleptocratic empire building must cease in the search for natural equilibrium. Politics and politicians must be free of conflicts of interest and self profit. Algorithms used to combat terrorism, could be applied to politician's bank accounts, expenses claims, party political contributions, and land registries internationally, including facial recognition identification and GPS tracking to confirm movements. The aim being to foster absolute transparency and focus. Wealth taxes should be applied to the super rich, to curb their carbon footprint excesses. In the UK, politicians were taking second jobs as consultancies, depriving citizens of hours served as parliamentarians, some even conducting business from government offices and facilities, by way of fraudulent abuses of positions of trust (misconduct in public office). We feel sure the UK is not alone in this, Where other nations are steeped in bribe cultures and procurement fraud. Policy makers need to spend time paid for, actually doing the job they were elected or employed to do. Fines and bans from holding office, should be strictly applied to defeat cronyism.

CONTACTS

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