Darryl Robinson, Your Guide to Ecocide (Part II), OPINIOJURIS (July 16, 2021)

In this blog post, Robinson explains why international environmental law (IEL) does not contain outright prohibitions and why it engages in balancing, and then maps out some of the resulting options for a crime of ecocide. There are activities that may foreseeably cause wide-spread, long-term, and severe harm and yet they may be socially valuable, environmentally responsible, legal, and ethically appropriate (such as airplanes, computers, and mass food production). The “squaring the circle” problem is that criminal law requires fairly precise definitions and predictability, whereas IEL involves balancing and trade-offs, with few hard and clear prohibitions. At the domestic level, an environmental regulatory process assesses benefits and harms, and grants or withholds permission to operate with specified conditions and offenses generally involve doing the harmful activity without a permit. The challenge for ecocide is that there is no similar international environmental regulator. Robinson notes that the anthropocentric vs. ecocentric debate is too simplistic as there is no clear division: protecting the environment also protects human health; conversely, protecting humans from environmental harm also protects the environment.