By Sir Ronald Sanders
Small island states and countries with low-lying coast are the victims of ecocide.
A draft law, unveiled on June 22, defines ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”.
Getting the law accepted would be a long process. It could take years. And, that is precisely why small islands and low-lying coastal states should embrace and promote it now. Every year that passes brings greater dangers of irreparable damage without compensation.
While Climate Change is not specifically mentioned in the draft law, supporting it and eventually joining in its enactment, would send a serious message to states and entities that do little or nothing to stop ecological damage to vulnerable countries.
Something has to give in this unlevel playing field in which small island states and low-lying coastal states are made to suffer. Therefore, the initiative for a new international criminal law, called “Ecocide”, by a group of legal experts, co-chaired by British Professor Philippe Sands QC, and Dior Fall Sow, a UN jurist and former prosecutor from Senegal, is heartening news.
At least, it would open the door for criminal prosecutions against entities that cause ecological damage. Eventually, it could lead to the inclusion of the harmful effects of Climate Change, which, despite all the efforts of small island states, show no prospect of slowing down, let alone ending.
The possibilities for damage to countries that could be classified under ecocide are: transboundary nuclear accidents, major oil spills and Amazon deforestation. The Caribbean has long been exposed to nuclear accidents by the passage through the region of ships carrying nuclear waste from Japan to Europe. Major oil spills have also now become a matter for concern in the area as oil production new extends from Trinidad and Tobago to Guyana and Suriname.
Caribbean nations ought not to be pessimistic about the chances of ‘ecocide’ being added to the four international crimes that now exist and are triable by the ICC. It should be recalled that it was a Caribbean man, A.N.R Robinson, a former prime minister of Trinidad and Tobago who, in 1989, revived the idea of the International Criminal Court (ICC) with jurisdiction over international crimes. He triggered the process that eventually led to the adoption of the Rome Statute – the Court’s founding treaty that came into force in 2002. Large tasks have been taken on by small countries to success when they act together.
Several other small island nations, including Vanuatu, in the Pacific, and the Maldives, in the Indian Ocean, called for “serious consideration” of a crime of ecocide at the ICC’s annual assembly of states parties in 2019. Undoubtedly, they had Climate Change in mind. But, even if, at this stage, including climate change in the definition of ecocide is not possible, the opportunity should be grasped to make it attainable in the future. The perpetrators, who are now getting a free pass, should see that the victims are serious about recompense for damage.
The initiative for a new criminal law is a serious one, backed by the ‘Stop Ecocide Foundation’, a Netherlands-based global coalition. It is the Foundation that gathered a panel of 12 leading lawyers, including Sands and Sow, to work on the draft law.
Professor Sands said it creates “a definition that catches the most egregious acts but doesn’t catch the kinds of daily activity that so many of us, myself included, and regions and peoples and countries are involved in which cause significant harm to the environment over the long term”. The other co-chair, Dior Fall Sow said: “The environment is threatened worldwide by the very serious and persistent damage caused to it, which endangers the lives of the people who live in it. This definition helps to emphasise that the security of our planet must be guaranteed on an international scale”.
So, while the law, if it is enacted, will not include climate change, the panel of lawyers passionately believe that the proposed definition could provide a basis for the consideration of a new international crime. As Sands puts it “what is original and innovative, is that the environment will be put at the heart of international law”.
The initiative has attracted the support of the Caribbean’s Sir Shridath Ramphal, himself an international lawyer, former secretary-general of the Commonwealth and member of the UN World Commission on Environment and Development, whose 1987 report, “Our Common Future” awakened the world to the major threat to the environment. He said of this new initiative: “I urge serious global support for the work of the Independent Expert Panel for the Legal Definition of Ecocide, organised by the Stop Ecocide Foundation. Their ‘Commentary and Core Text’ of a definition of ‘ecocide’ as an international crime deserve humanity’s urgent attention”.
Every country in the Caribbean should embrace and promote the draft law to make ecocide an international crime. Doing so would give them the support of a further strand of international law which, along with diplomacy, is a principal tool for the defence of their interests.