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

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 4: The Unlawfulness of Conduct 

There is currently a debate over how a crime of ecocide at national level should relate to other environmental laws and regulations. If an act is not in violation of environmental regulations, can it still constitute the crime? This is less relevant at the international level, as the fact that something is permitted under national law does not exclude it from being an international crime.  

Most of the new laws require the ecocidal act to be “unlawful”, or prohibited by other existing laws. This is the case for the European Crime Directive (ECD), the Belgian Penal Code, and the French Climate & Resilience Act. 

By contrast, the Jalisco Penal Code, as well as the Dutch and Peruvian proposals do not have any requirements on the unlawfulness of the act or omission. The laws would create a stand-alone crime of ecocide, which would trump existing regulations. 

Critics of this approach point out problems of legal certainty, and charge that prosecuting someone for an act for which they have a permit is unfair. Defenders argue that a permit cannot authorise ecocide. Solutions to reconcile these two points of view have also been proposed, such as suggesting that permits obtained through corruption, deception or failure to fully disclose environmental effects be invalidated.  

The International Proposal requires an act of ecocide to be either unlawful or wanton (a reckless disregard for damage), creating a new wantonness test for lawful acts that meet the threshold of harm.  This approach is followed by the Scottish, Italian, Brazilian, and Mexican (federal) proposed laws.