Between 1962 and 1971, the US military sprayed millions of gallons of Agent Orange, a herbicide containing the toxic contaminant dioxin, to defoliate the forests of South Vietnam and expose Vietcong forces. Many described the military operation as ecocide. But 50 years on, ecocide remains controversial in international law, and only limited jurisdictions have criminalized it. 

—

Ecocide refers to the act of deliberately harming the environment. The term was debated in specific international law circles between the 1970s and 1990s, and re-entered international discourse when Scottish barrister and environmental lobbyist Polly Higgins submitted a proposal in 2019 to amend the Rome Statute to include ecocide as a crime.

The Rome Statute is the international treaty and foundation of the International Criminal Court (ICC). It creates a legal framework for prosecuting individuals for international crimes. Following Higgin’s submission to the ICC, the Maldives and Vanuatu requested all parties to the Rome Statute to make an amendment to criminalize ecocide. 

Ecocide in International Law

Today, international law does not specifically ban ecocide. 

The closest restriction to an “ecocide provision” that currently exists in international law is Article 8(2)(b)(iv) of the Rome Statute. The article states that “Intentionally launching an attack in the knowledge that such attack will cause…widespread, long-term and severe damage to the natural environment”. This is qualified by a statement that it should be known that the damage caused to the environment “would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. 

The provision sets an incredibly high threshold that is extremely difficult to establish. As such, no cases have been prosecuted in the ICC based on the article since its insertion in 1998. 

Which Countries Criminalize Ecocide?

Despite being described as “radical” by some commentators, ecocide laws have been implemented into the domestic laws of several countries in the past three decades. 

In 1990, Vietnam became the first nation to adopt ecocide into its criminal law framework. Article 342 of Vietnam’s Penal Code provided that “those who, in peace or war time, commit…acts of ecocide or destroying the natural environment, shall be sentenced to between ten years and twenty years of imprisonment, life imprisonment or capital punishment.” However, the country has since removed the ecocide provision in its latest version of the Penal Code, nonetheless retaining prohibitions against illegal forest destruction (article 189).  

After the collapse of the Soviet Union, several former Soviet republics incorporated ecocide into their criminal codes. In the Criminal Code of the Kyrgyz Republic, following article 373 concerning genocide, article 374 prohibits “massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe.” Many of the former Soviet republics mirror each other with similar provisions. 

The most recent example of implementing a domestic ecocide law is Belgium, which in 2024 became the first European nation to adopt ecocide into their Penal Code.

The table below summarizes all the jurisdictions that previously or currently have ecocide laws in effect. It should be noted that all of them have some form of mens rea (intention or knowledge) requirement. In other words, it must be established that the perpetrator intended to or knowingly or recklessly committed the crime. Such a crime contrasts with a strict liability crime, which has no such requirement. For the former Soviet republics, it is a general principle that even if intent is not specifically mentioned in the article itself, the crime is presumed to require mens rea unless explicitly stated otherwise.

Challenges in Prosecuting Ecocide and Potential Solutions

Expanding ecocide out of a military context

Under the current international law framework, an ecocide-like action is only illegal if it is known that the damage caused to the environment “would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” (Article 8(2)(b)(iv) of the Rome Statute).

In 2016, the Office of the ICC Prosecutor stated that they would prioritize environmental crimes that resulted in environmental destruction and natural resource exploitation, though as mentioned above, no such cases have been prosecuted in the ICC to date.

In 2024, the Office of the ICC Prosecutor released a policy document outlining strategies to prosecute environmental crime through other provisions such as Article 7(1)(d), which criminalizes deportation or forcible transfer of population. This means that destroying homes or polluting the environment, which forces communities out of their homes, could be an environmental crime and potentially an act of ecocide that breaches this provision. 

The ICC Prosecutor’s desperate efforts to overcome the limited protection for the environment in Article 8(2)(b)(iv) demonstrates that there is an urgent need for reform. A new environmental crime and ecocide provision should extend beyond wartime contexts, with no exemptions allowed for military or economic gain.

Should Intent Be Removed From Ecocide? 

Many commentators, including Higgins herself, have argued that ecocide should not be a law of intent but rather a strict liability crime. Proving intent has been viewed by many as a barrier to the successful prosecution of ecocide. 

During early debates over inserting a crime of environmental destruction into the Rome Statute’s draft, Austria and other countries opposed an intent requirement, as perpetrators usually act with a profit motive. On that basis, Austria argued it is difficult to establish intent if the primary subjective intent is not environmental destruction. 

However, an intent requirement does not have to be conceptualized in such a way. A mens rea requirement can be determined objectively, based on the external behavior of the perpetrator and can even be a standard of “recklessness” – such as in the Belgian Penal Code. A correctly formulated intention requirement will not render the crime of ecocide unenforceable, even against corporate actors. There are extensive studies demonstrating that corporations are regularly prosecuted for intent-based crimes such as fraud or cartel conduct – consequently facing enforcement actions and criminal sanctions or being forced to settle. Moreover, in order for a potential ecocide law to remain faithful to its original concept, a mens rea requirement is arguably necessary. In response to the Vietnam War, Galston forcefully protested the United States by condemning ecocide – the “wilful and permanent destruction” of the environment. Galstons’ use of the term ecocide was powerful because of its connection to genocide. If ecocide was merely a strict liability crime, the crime may be more easily enforced but at the cost of losing its gravity and meaning.

Ecocide should not be considered an all-encompassing term for environmental crime. Instead, it has long been, and should continue to be considered, a sub-category of environmental crime. 

Countries that currently incorporate ecocide law generally mandate some form of mens rea requirement. Moreover, ecocide is distinguished in all countries from other environmental crimes of strict liability, such as breaching air or water pollution standards in Poland and Russia. Ecocide is also heavily punished in domestic law frameworks, with penalties attaching to the crime often ranging between eight and 20 years imprisonment. 

If ecocide is to be the most heinous example of environmental crime, then its legal threshold should be set accordingly. An intent threshold is necessary if ecocide is to be conceptualized in such a way. 

More on the topic: Explainer: What Is Environmental Crime?

What if Intent Is Not Removed? 

A solution to ecocide being too narrow is to broaden other environmental rights. For example, in Ecuador – albeit not being an ecocide law – there are constitutionally recognised rights for nature itself. 

Article 71 of the Ecuadorian Constitution provides that “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”

Article 71 calls on public authorities to enforce the rights of nature, such as the right for nature to be restored under Article 72. As it is not a penal provision, if the environment is harmed through irresponsible deforestation or pesticide use – even if intent and therefore ecocide cannot be proved – the constitution still demands that nature be restored to its original state. 

Insofar as the law operates as a holistic and restorative mechanism, legal rights for nature itself may be more effective than punitive action against bad actors.

Ecocentrism

International environmental law, through the Rome Statute, prohibits a certain form of ecocide in the context of war and crimes against humanity. Beyond this, a number of countries have taken the initiative to criminalize ecocide in their domestic law frameworks. 

Ecocide is a mechanism that should be used to protect ecosystems and communities that depend on them from deliberate acts of wilful destruction. However, such legal frameworks remain largely anthropocentric – they prioritize human interests over the environment. To create a more balanced and effective system, this approach should be complemented by ecocentric principles. Granting legal rights to nature itself –as championed by Ecuador in its constitution – offers a more holistic path to environmental protection. Such a paradigm shift can help ensure the preservation of natural systems not just for human benefit, but for their own intrinsic value.

Featured image: Ivan Radic/Flickr.

The post Explainer: What Is Ecocide and How Is It Treated in International and Domestic Law? appeared first on Earth.Org.

As negotiations on the Global Plastic Treaty are set to resume this August in Geneva, Switzerland, countries remain deeply divided over the objectives and policies that should be included in the agreement. Last November’s talks in Busan, South Korea highlighted deep divisions between countries advocating for strict measures and those favouring voluntary measures.

—

The Global Plastic Pollution Treaty is a United Nations-led international legal agreement aimed at ending plastic pollution. 175 nations have joined the negotiations for a new treaty, which started in 2022, with other major stakeholders such as large corporate alliances maintaining an immense influence. 

The fifth – and what was meant to be the last – Intergovernmental Negotiation Meeting (INC-5) in Busan, South Korea, was largely unsuccessful. Major producers like the United States and Saudi Arabia remain cautious to avoid an onerous treaty, while a high ambition coalition, led by countries like Australia and Norway, pushed for stricter global control of plastic production

Major Coalitions in the Global Plastic Treaty Negotiations

1. United States

The US supports the least ambitious option with respect to the objectives of the plastic pollution treaty.

While sharing some of the positions held by countries including China, Russia and Saudi Arabia, the US – unlike these other nations – has indicated a willingness to reduce the “global production…of virgin plastics.” 

The country has also pushed for requiring minimum standards for design and performance on plastic products, including certification and labelling.

However, those positions mostly reflected the sentiment of the Biden Administration in 2024. Since Donald Trump took office in January, the US has positioned itself as generally more skeptical of environmental policy and international collaboration, arguing that climate-friendly policies pose unfair and improper restrictions on the US economy and are not in line with the new administration’s priorities.

In a highly symbolic move, Trump recently signed an executive order that reverses a Biden administration policy to get single-use plastics, including straws, plastic cutlery and packaging, out of federal food service operations by 2035 in a bid to tackle the growing threat of plastic pollution.

“These things [paper straws] don’t work, I’ve had them many times and on occasion they break, they explode,” Trump told reporters at the White House on Monday as he signed the order. “It’s a ridiculous situation so we’re going back to plastics.”

The US plastic industry produces 232 million tons of carbon dioxide equivalent gas emissions (CO2e) annually, equal to 116 coal-fired power plants.

2. China, Russia, Iran, Saudi Arabia

Nations including China and petrostates Russia, Iran and Saudi Arabia, reject an overly ambitious vision for the treaty, instead favoring a much less ambitious treaty which they described as “realistic”. While supporting proper management of plastic waste, these developing nations oppose limiting plastic production. 

Many oil- and gas-producing nations have historically resisted strict environmental regulations, particularly those that might limit plastic production, which is closely tied to the petrochemical industry.

Some distinguishing positions adopted by the group include:

• Opposing trade provisions within the plastic pollution treaty that prohibit or restrict certain types of trade with certain countries (e.g. non-members to the treaty) to curb plastic pollution.
• Emphasizing the “sovereign right of states” to exploit their own resources and stresses that all national action plans should be “nationally determined.”
• Regarding the instrument as a cooperative mechanism rather than top-down determination of countries’ commitments to managing plastic pollution. 
• Ultimately preferring a bottom-up approach and emphasizes the principle of common but differentiated responsibility. This principle acknowledges that, while all nations have shared obligation to address environmental degradation, not all states have equal responsibility with regard to environmental protection. 

These nations also intend for the instrument to support developing countries both financially and through technology transfer. However, they only regard the technology transfer mechanism as a pathway of “phas[ing] down plastic pollution,” and not reducing plastic production. Many of the nations that are part of this coalition are among the world’s top 10 oil producers, and thus not inclined to enter into treaties that could significantly restrict their domestic oil and plastic production, ultimately affecting their economies.

3. High Ambition Coalition  

The overarching goal for the high ambition coalition, which includes the European Union, Australia, Canada, South Korea, and the United Arab Emirates (UAE), is to push for an ambitious treaty that ends plastic pollution by 2040. As opposed to the previous groups, these nations want to develop binding obligations to “restrain plastic consumption and production.” 

The coalition promotes outcomes and principles including:

• A precautionary approach involving greater regulation and, where the scientific data is unclear, deference to a course of action least harmful to the environment. 
• A waste hierarchy principle that prioritizes avoiding the production of plastic waste over processing plastic waste. 
• Eliminating problematic plastics, substances and additives, which it defines as “plastic packaging items, components, or materials where consumption could be avoided through elimination, reuse or replacement and items that…are detrimental to the recycling or composting system due to their format, composition, or size.” 
• Developing global sustainability criteria and standards for plastics.

The coalition is aligned with the likes of China and Russia on providing technical and financial assistance for lesser developed nations but distinguishes itself for the more ambitious end goal of reducing global plastic production. 

Members of this coalition, including Australia, have already implemented single-use plastic bans, indicating a commitment to curbing plastic production and usage.

4. India

India supports a nationally determined approach that considers the unique circumstances and compliance capabilities of each country. As the instrument is legally binding, India considers it vital that each nation determines its own obligations based on their historical and present contributions to plastic pollution. This is another reference to the common but differentiated responsibilities doctrine. 

India has provided a number of key positions, including:

• Opposing caps on the production of any products, chemicals or primary polymers.
• Opposing a plastic pollution fee on production of primary plastic polymers.
• Support for mandatory financial resources and technology transfers from developed countries to developing countries to be enforced via “compliance of substantive obligations.” In other words, India wants legally binding provisions mandating technology transfer and financial support as opposed to mere mandatory reporting or other procedural obligations.

5. Brazil and GRULAC

Although not part of the higher ambition coalition, Brazil previously claimed to support an “ambitious instrument”. The South American country, alongside the Group of Latin America and the Caribbean Countries (GRULAC), is open to implementing production restrictions measures if appropriate phase-out and just transition schemes are implemented. The group is in support of an integrated approach including financing, capacity building, technical assistance and technological cooperation.

In Busan, GRULAC also submitted that the treaty could “benefit from a network of technical centres that could provide regulatory, technical and technological cooperation at national, regional and global levels.”

What Do the Major Companies Want?

Around 72% of the world’s largest companies claim that they want to “reduce” plastic waste. But what does that actually mean? What is the nature of their commitment, if any? 

There are two main corporate alliances with two distinct approaches to this treaty. 

International Council of Chemical Associations (ICCA)

The ICCA wants to reduce plastic waste and reduce its impacts downstream, without curbing production. 

The group is opposed to trade restriction provisions in the treaty. An example of a trade restriction provision is article 4 of the Montreal Protocol on Substances that Deplete the Ozone Layer, which prohibits the trade of certain restricted substances with parties that have not signed up to the protocol. Effectively, the trade restriction is utilized to prevent further pollution.

The ICCA includes major petro-chemical companies including ExxonMobil, Dow, Shell, TotalEnergies and Chevron Phillips. 

Business Coalition For a Global Plastics Treaty 

The second major corporate coalition has a more progressive opinion on the global plastic pollution treaty that more closely aligns with the high ambition coalition. 

The coalition is composed of over 250 organisations, including major companies like IKEA, PepsiCo, Walmart and the World Wildlife Fund (WWF).

There are three key global outcomes that this coalition seeks after:

1. Reduction of plastic production and use through a circular economy approach, which involves eliminating plastic materials, components or additives that can easily leak into nature
   
2. Circulation of all plastic items that cannot be eliminated, keeping them in the economy at their highest value. This involves designing products and systems that enable all plastics to be reused, recycled or composted in practice and at scale

3. Preventing and remediating micro and macro-plastic leakage into the environment, including preventing the release of microplastics into the environment from, for example, abrasion, fibre shedding or pellet loss.

What the World Ultimately Needs

Addressing the entire lifecycle of plastics, from production to disposal, can significantly reduce plastic leakage into the environment by 96% by 2040, according to the Organisation for Economic Co-operation and Development (OECD).

With plastic pollution expected to increase by 70% between 2020 and 2040, it is clear that a successful treaty is one that is ambitious, substantive and burdensome for the status quo. Ultimately, the outcome of the negotiations will leave a mark on the planet for generations to come.

More on the topic: Why the World Urgently Needs a Global Plastic Treaty

The post Key Players and Positions in the Global Plastic Treaty Negotiations appeared first on Earth.Org.