Forty-three years of Earth Day, and still no UN Ecocide Law

Indigenous Communities on the Banks of the Rio Negro, Amazon, Brazil

By the Human Rights Consortium, School of Advanced Study, University of London

Earth Day was established in 1970.  In the same year, the term ‘ecocide’ was first recorded at the Conference on War and National Responsibility in Washington.

At the 1970 conference Professor Arthur W. Galtson proposed a new international agreement to ‘ban ecocide’.  A couple of years later, at the United Nations Conference on the Human Environment in Stockholm, the Prime Minister of Sweden Olof Palme spoke explicitly of the Vietnam War as an ‘ecocide’.  The Stockholm Conference focused international attention on environmental issues perhaps for the first time, especially those relating to environmental degradation and ‘transboundary pollution’ – an international problem requiring an international solution.  It also established the United Nations Environment Program (UNEP).

Since then, we have had two more global environmental conferences:  the Earth Summit (1992) and Rio+20 (2012), both held in Brazil.  Forty-three Earth Days later, however, we are still no further on agreeing on an international law of Ecocide. Governed only by a multitude of scattered and ineffective agreements, with no unifying convention or statute, environmental law is exceptional among  areas of international law. Why?

The Human Rights Consortium’s Ecocide Project last year released ground-breaking research indicating that an international law of Ecocide had been seriously considered by the United Nations’ law-making body and international diplomats within the UN as early as 1973. Richard A. Falk had even drafted an Ecocide Convention that stated at the outset that ‘man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace’.

The Genocide Convention, although a noble document, suffers a weakness in that it insists that the ‘intent’ to commit genocide must be proven.  Falk declared that ‘intent’ in the context of an Ecocide Convention is ‘essentially irrelevant’- profit or military advantage are the most common motives behind major environmental damage – but the damage itself remains the relevant issue.  By removing the requirement to establish intent the Ecocide Convention was immediately made more effective internationally than the Genocide Convention would ever be.  Perhaps this was what led to its demise?

The paper trail shows that there was extensive debate in UN committees over the next 40 years over a well-considered law of Ecocide. There is proof that that the crime of Ecocide was to stand alongside the crime of genocide as a Crime Against Peace – both during peacetime as well as wartime.

Ecocide was listed as a Crime Against Peace in the draft Code of Crimes Against the Peace and Security of Mankind, the precursor to the Rome Statute of the International Criminal Court (ICC).  The Rome Statute addresses Genocide, War Crimes, Crimes Against Humanity and Crimes of Agression.

The 1998 Rome Statute excluded Ecocide in the final document, despite widespread support for its inclusion from all countries but three (find out which three in our full report).

Despite the overwhelming support for a law to prohibit ecocide during war and peacetime in the years leading up to the creation of the final Rome Statute the proposal was unilaterally removed overnight without record of why this occurred.  One key rapporteur during that time was Christian Tomuschat.  He was noted to have said:

One cannot escape the impression that nuclear arms played a decisive role in the minds of many of those who opted for the final text which now has been emasculated to such an extent that its conditions of applicability will almost never be met even after humankind would have gone through disasters of the most atrocious kind as a consequence of conscious action by persons who were completely aware of the fatal consequences their decisions would entail.

In the aftermath of Earth Day 2013 the Ecocide Project of the Human Rights Consortium cannot help but ask why environmental diplomacy and international cooperation has failed so abysmally.

In a world where Arctic ice is melting at an alarming speed, water shortages and oil spills are commonplace, and resource wars are picking up pace, it is perhaps time to address this important question.