Ecocide We all know climate change is cooked. It cooks us, it cooks the planet and it cooks countless ecosystems. What’s more, thanks to the cookers in Parliament lifting the ban on oil and gas exploration in Aotearoa, the extractive industries responsible for causing it continue unabated. And then you have the very cooked process of extracting oil and gas; a high risk industry in which things can, and do, go very wrong. Take the Deep Water Horizon disaster, where five million barrels of oil were spilled off the coast of Mexico, resulting in immeasurable ecological harm. Or the MV Rena “incident”, where 360 tonnes of heavy fuel oil spilled off the Bay of Plenty coast in 2011, causing the largest spill in Aotearoa’s recent history, killing 1,300 birds and devastating the marine environment in the area to this day. If only there was a law that dealt with such catastrophic disasters, a law that drew a line in the sand when it comes to the utter collapse of ecosystems. Surely such a law would leave oil companies wary of continuing business as usual and make them realise that the risks outweigh the profits. Cos let's be real, oil barons don’t care about you, they don’t care about future generations or the environment; the only way you can get an oil baron to think twice about drilling by a vulnerable marine reserve is the threat of criminal liability. Enter: ecocide. “Ecocide” was a term coined in 1970 after the US dropped the chemical defoliant Agent Orange across Vietnam, causing widespread irreparable harm to people and the environment, the horrific effects of which are still felt today. Most recently, ecocide has been proposed as a crime under international law defined as: “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”... which means what exactly? Not to be confused with the delicious soupy dumplings, legal jargon defines “wanton” as “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated”. This basically sets out a proportionality test in which the effects of an ecologically damaging act are to be weighed up against the ol’ economy. The purpose of ecocide law is pretty simple: to impose an environmental bottom line. It’s the kind of low hanging fruit that you would think already exists. But unfortunately, Aotearoa does not recognise ecocide as a law… yet. Climate Clinic is working with Stop Ecocide Aotearoa and Stop Ecocide International to research and advocate for a crime of ecocide that would grant jurisdiction to the International Criminal Court (ICC) to prosecute natural persons for grave environmental harms.
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Although New Zealand has indicated some support for “continued discussions around serious environmental damage”, we can definitely take some cues from our neighbours in the Pacific including Vanuatu, Fiji and Samoa who brought the matter of ecocide before the ICC. Hopefully, with enough pressure from civil (and uncivil) society, we can get recognition for ecocide not only in the international arena (which, lets be honest, is not the most effective at the best of times - see the ongoing genocide in Palestine), but also in domestic legislation. This would enable courts to directly prosecute climate criminals, and prevent and punish disasters like the Deep Water Horizon and the MV Rena. It’s not a silver bullet, but it’s sure as hell better than nothing.
Law and Disorder is a regular column by the VUW Climate Clinic.