Ecocide, the large-scale, severe and irrevocable destruction of ecosystems, has been gaining a lot of attention in recent years as a potential international crime. The European Parliament is currently advocating for the acknowledgement of ecocide under EU law. The Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) voted on the 6th of February 2023 to include ecocide in the updated EU Directive that focuses on protecting the environment through criminal law. However, as we discussed here, it could be argued that the space for criminalizing ecocide under international law appears limited and restrictive.
So, is there a legal avenue that could potentially contribute to the establishment and safeguarding of ecocide? This article explores the possibility of ecocide claims being entertained by the International Court of Justice (ICJ).
Before delving into whether the ICJ can serve as an appropriate legal platform for ecocide cases, it is important to understand the ICJ's contribution to the field of international environmental law (IEL) in general. The ICJ has played a considerable role in the advancement of IEL by enunciating fundamental principles, interpreting environmental agreements, and enhancing and expanding on existing principles. However, it is contended that the ICJ's role has been to lend its authority to rules already instituted in soft law instruments and treaties rather than to dynamically develop the law.
Despite this, the ICJ's increasing willingness to set new standards for the adjudication of future IEL cases signifies its potential to entertain ecocide claims. Entertaining ecocide claims in the ICJ would help overcome the limited jurisdiction barrier of the International Criminal Court (ICC). That is because the subject matter of the contentious cases in the ICJ is international legal disputes between two States and is therefore deemed considerably broader compared to the ICC, since it can go way beyond the four crimes mentioned in the Rome Statute. Nevertheless, the ability to institute legal proceedings before the ICJ is limited as it can solely adjudicate cases between States, filed by States excluding individual defendants.
Furthermore, adjudication of ecocide disputes by the ICJ would allow ecocide law to be developed separately from the Rome Statute and potentially apply to massive destruction of the environment in both peacetime and wartime. However, the ICJ is a civil tribunal traditionally engaging with disputes regarding the rights and responsibilities of sovereign States, which means that adjudicating ecocide claims in the ICJ would strip ecocide off its criminal nature. This might not be enough to properly protect nature and hold perpetrators accountable for their actions. Critics argue that criminal sanctions are stronger than other legal actions, hence adjudicating ecocide under a civil court would fall short of that standard since it technically means that ecocide wrongdoers may not face as severe consequences as they would if found guilty by the ICC.
Despite these limitations, the ICJ can theoretically overcome the limited jurisdiction and prohibitive mens rea hurdles faced by prosecution under the ICC. Is that enough for ICJ to be held as an appropriate forum to adjudicate ecocide?
Because of the differences and the unique characteristics of ecocide cases concerning i.a.duration, impact etc, the role of the judicial reasoning becomes even more important. Given the considerable body of ICJ’s jurisprudence, the question arising is whether any of its existing cases could support a claim for ecocide.
The most suitable and prominent ‘defender’ of the ecocide agenda seems to be the Costa Rica v. Nicaragua case (Certain Activities Carried Out by Nicaragua in the Border Area) where it was ruled that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law.” Despite the uncertainty regarding placing a monetary value on the ecosystem and its subsequent ecological services, the Court did not shy away from awarding compensation for the impairment or loss of such environmental services. In calculating the compensation, the court took into consideration the unlikeliness of Costa Rica’s biodiversity fully recovering and reaching the state prior to Nicaragua’s unlawful activities in the foreseeable future.
The magnitude of this decision in the development of IEL as well as the creation of fertile ground for the establishment of ecocide is considerable, given that it is the first time the amount of compensation subject to grave and irrecoverable environmental damage was determined by the ICJ in an international environmental law case. Furthermore, the ICJ enunciated “loss of ecological services and goods” as environmental harm eligible for compensation in the context of an internationally wrongful act.
Although this development should undoubtedly be welcomed as a step towards the right direction, it is worth recalling that this is not a case of transboundary environmental harm as more ecocide claims potentially will be, since Nicaragua’s unlawful actions that resulted in environmental damages for Costa Rica took place in the very territory of the latter. Hence, it is difficult to see the Costa Rica v. Nicaragua compensation decision applying in transboundary environmental cases and transboundary ecocide claims, as it is more challenging to attribute liability for environmental harm to a neighboring state.
Even if that pitfall is surpassed, according to Art.59 of its Statute, ICJ decisions have no binding force except as between the parties and concerning the specificities of the respective case. Although it is recognized that States tend to view ICJ’s decisions as ‘authoritative pronouncements of the current status of international law’, cite them in their court proceedings and take them into account when navigating their behavior in the international environmental arena, there is no formal precedential effect to the Court’s opinion technically equating it with an ICJ’s advisory opinion. Consequently, despite its significant contribution to creating favorable conditions for the legal establishment of ecocide and adjudication of relevant claims in the ICJ, Costa Rica v. Nicaragua cannot be viewed as a solid foundation to embark on the aforementioned endeavors, since it has no formal precedential effect, with the court highlighting that no specific method of valuation of environmental harm is to be prescribed and that each similar situation should be evaluated on a case by case basis.
It deserves to be noticed that the ICJ can issue advisory opinions on legal questions upon request from the General Assembly or Security Council or by another U.N. organ or specialized agency authorized by the General Assembly (U.N. Charter, art. 96). Therefore, given the implications of environmental harm and climate change as ‘multipliers’ of the traditional security threats as well as the significance of previous ICJ contributions to human rights processes (by validating that Special Rapporteurs are entitled to assert the privileges and immunities under the U.N. Convention on Privileges and Immunities against their own governments), it’s interesting to see whether the Security Council will recognize severe irrevocable environmental harm as a potential threat to peace and security and hence ask for ICJ’s advisory opinion to impose environmental obligations for States linked with ecocide. Despite the legal weight of such an action though, as mentioned above, ICJ advisory opinions hold little practical force.
Overall, although the ICJ has been assuming an increasingly more dynamic role in the development of international environmental law, its inherent limitations such as the lack of precedential effect of its decisions keep confining its scope of action and influence in serving as a stimulus for IEL development rather than a substitute for negotiations. Whether it can make for an appropriate legal platform for adjudicating potential ecocide cases, depends on which attributes of ecocide are put as a priority; ICJ can overcome the limited jurisdiction and prohibitive mens rea hurdles faced by prosecution under the ICC, however it provides limited ability to institute legal proceedings before the court (locus standi) and deprives ecocide of its criminal character.
Article sources:
Jorge Viñuales, 'The Contribution of the International Court of Justice to the development of international environmental law: A contemporary assessment' [2008] 232(32) Fordham International Law Journal 235
Daniel Bodansky , 'The Role and Limits of the International Court of Justice in International Environmental Law' [2020 Forthcoming] 20 The Cambridge Companion to the International Court of Justice 3 Available at SSRN: https://ssrn.com/abstract=3606268.
Barbara Kwiatkowska, 'The Contribution of the International Court of Justice to the Development of the Law of the Sea and Environmental Law' [1999] 8(1) Review of European, Comparative & International Environmental Law 12.
Bronwyn Lay, Laurent Neyret , Damien Short, Michael Urs Baumgartner & Antonio A. Oposa Jr., 'Timely and Necessary: Ecocide Law as Urgent and Emerging' (2015) 28 J Juris 431
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Sherri Goodman, Pauline Baudu, 'Climate Change as a Threat Multiplier: History, Uses and Future of the Concept' [2023] Center for Climate and Security Briefer 1.