🌍 Understanding the Elements of Ecocide Law: A Seven-Part Series 🌍

Part 3 - Prohibition of Acts vs Prohibition of Consequences 

This series breaks down the seven key elements of adopted and proposed ecocide legislation, why they matter and how they have changed in comparison to the international proposal.  

Xuchen Zhang and Kate Mackintosh conducted an extensive comparison of existing and proposed laws that you can read here. In this series, we present their findings in bite-sized pieces, examining each element in detail to highlight its significance.

Part 3: Prohibition of Acts vs Prohibition of Consequences 

Most of the new legislation – laws in Belgium and Jalisco (Mexico) and proposals in Mexico (federal), Brazil, the Netherlands, Italy, Peru, and Scotland – describe the crime through the consequences of acts (or omissions), rather than listing prohibited acts. Acts amount to ecocide when and if they threaten or cause a certain level of harm to the environment. The International Proposal takes this approach, prohibiting acts which cause a substantial risk of harm without detailing which actions create that risk.  

By contrast, the 2024 EU Environmental Crime Directive (ECD) not only specifies the threshold of harm but also lists the acts or omissions that are prohibited. The French Climate & Resilience Act similarly provides a list of prohibited conduct in addition to setting the threshold of harm. 

Providing lists of prohibited acts more clearly defines the circumstances that are considered unlawful and increases the foreseeability and certainty of law. At the same time, it may limit what would constitute unlawful behaviour in unintended ways, for example when a scenario was not envisaged by the lawmaker but does create significant environmental harm. Focusing exclusively on defining prohibited consequences may also encourage cautious behaviour in the face of uncertain outcomes, in line with the environmental law principles of prevention and precaution.