Updated: Feb 14
Image Credits: Domestic Preparedness
It is 1984, Bhopal, India, the Union Carbide’s Plant that stores Methyl isocyanate leaks and kills over 15,000 people and severely affects the health of over 600,000 people, leading to one of the worst industrial disasters in the world. The multibillion-dollar company just had to pay $470 million with no criminal liability imposed on any of the top management of the company. Moving to the United States of America, in 2010, US Oil Conglomerate BP-operated oil drilling rig Deepwater Horizon at Macondo Prospect site in the Gulf of Mexico exploded, releasing 130 million gallons of crude oil into the gulf, leading to the largest marine oil spill in the history of Petroleum industry and the US.
11 workers died and millions of marine species were affected. Even after the decade of the disaster, its effect can still be detected in the ecology and habitat of the region. BP had to pay an unprecedented $5.5 billion Clean Water Act penalty and up to $8.8 billion in natural resource damages; however, no individual was criminally penalized for the disaster. The history is replete with several such examples where these disasters have led to immense degradation of the natural habitat.
With the invariable rise in global temperatures and subsequent rising sea levels, all forms of living species are at the risk of extinction and habitat loss. Diverse plant and animal species are on the verge of extinction and as per IUCN, at least 10,967 living species on the Red List of Threatened Species are most likely to become extinct soon due to habitat loss, genetic mutation, and altered food chains. Moreover, the livelihood of millions of people is affected every year. In 2020, 55 million people migrated due to climate-induced disasters, which is more than conflict-induced migration.
Image Credits: Umweltbundesamt
ROLE OF CORPORATIONS
Grave industrial practices adversely affecting the environment is one of the major causes of climate disasters. According to the Carbon Majors Report released in 2017, Top 100 companies, including ExxonMobil, Shell, BHP Billiton, and Gazprom are responsible for 71% of industrial greenhouse gas emissions since 1988. Although high compensations are imposed by the courts and environmental laws, these mega-corporations are not held criminally liable for their disastrous acts and, given their mammoth financial clout, they still manage to continue their unsustainable means. Over the years, the harmful practices of corporations have induced severe degradation of the climate, causing uncertainties for future generations.
Countries still do not have the law that imposes criminal liability to the individuals causing damage to the environment. Nor is there any international law that binds the nations to impose criminal liability on the corporations and their management.
ECOCIDE- WHAT AND WHY
This vacuum in law and rapidly deteriorating health of our ecosystem led to the rise of the concept of ecocide, which literally means large-scale destruction of the earth’s ecosystem. The proponents call for imposing criminal liability on the apex management of the corporations for their environmentally unsustainable practices. They demand the inclusion of ecocide as the fifth international crime against peace in the Rome Statute alongside genocide, war crimes, ethnic cleansing, and crimes against humanity. It would give the power to the International Criminal Court to impose criminal liability such as imprisonment along with fines on corporations and their management.
It came into the limelight post-world war-II, especially during the Vietnam war, where the American forces caused widespread damage to the ecology of Vietnam through chemical and biological weapons. Then in 1973, a draft Ecocide convention was introduced, calling for considering ecocide as an international war and peace crime. Since then, several international forums have tried to bring the concept of ecocide into the limelight.
In 2010, Polly Higgins, a former British barrister, presented the proposal before the UN Law Commission for including ecocide in the Rome Statute. She defined it as “extensive damage... to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.” Higgins tried to change the course of liability and bring the directors of the Multinational Corporations criminally liable for damaging the environment apart from paying the damages. Further, while mentioning “inhabitants”, she just not focused on humans but all forms of living species.
THE NEED FOR LAW
The proposed law on ecocide seeks to prevent environmental destruction at pre-emptive, preventative, and post-operative stages. Under the law, strict liability would be imposed on the individuals where intention will not play a role in determining the liability. The law at the first stage would ensure to consider the ramifications of harmful practices in advance in order to impose a duty of care on the individuals and governments. At the preventative stage, corporations would have to take preventative measures to avoid environmental disasters and large-scale pollution. In the last, the law would be post-operative by imposing criminal liability along with fines in case of failure of the measures by the corporations. It would also direct the government and companies to restore the environment.
If ecocide is incorporated in the Rome statute, then the government will have the onus to punish the individuals and corporations through fines and imprisonment. If they failed or are not willing to do so, then the ICC could intervene or individuals can directly move to the ICC for justice.
Although the platform has been created and several voices of climate activists and lawyers are asking the nations to implement the proposal, the challenges beset the idea of ecocide being criminal harm. The problem further exacerbates in the underdeveloped and developing economies where the growth agenda belittles the need for imposing criminal liability on private corporations.
Conversely, in developed nations, the private lobby still manages to convince the government to not act in a manner detrimental to their interests. Though people are getting aware, implementing ecocide as international law would still take several years to come into existence, and given the rising differences among the UN nations, particularly Security Council, on the climate agenda, the proposal still lurks in uncertainties as to how countries would react to this proposal. Therefore, it remains to be seen how the Ecocide agenda is put forward by the proponents to the government and the common masses.
The Way ahead
The Westphalian system, which created the edifice of the foundations of sovereignty for nations, is fading away due to the invariable effect of climate change as, paradoxically, nations are using too much sovereignty to further their interests in the name of development. As the state is weakening and private corporations are getting stronger, as we can see from the US example where the Private Corporations lobby still dominates the policies of the government, it would inadvertently become difficult for people to stop the carnage by corporations. Therefore, the need of the hour is to bring companies into the International law frameworks for securing a sustainable future for the next generation.
BY NAYAN CHANDRA MISHRA