UN Legal: Defining and Criminalising Large-Scale Environmental Destruction

Committee: United Nations General Assembly Sixth Committee (UN Legal)
Agenda: Defining and Criminalizing Large-Scale Environmental Destruction as a Crime under International Law
Sponsors: Antigua and Barbuda, Belize, Botswana, Cabo Verde, Djibouti, Eritrea, Guinea-Bissau, Guyana, Jamaica, Kiribati, Lesotho, Maldives, Nauru, Panama, Seychelles
Signatories: Albania, Andorra, The Bahamas, Barbados, Cambodia, Comoros, Costa Rica, Cuba, Croatia, Dominica, Dominican Republic, El Salvador, Eswatini, Equatorial Guinea, Gabon, The Gambia, Grenada, Haiti, Iceland, Jordan, Lao People's Democratic Republic, Liberia, Liechtenstein, Marshall Islands, Mauritania, Micronesia, Moldova, Montenegro, Namibia, North Macedonia, Nicaragua, Palau, Papua New Guinea, Paraguay, Slovenia

What the resolution does

The resolution recommends that the Assembly of States Parties to the Rome Statute adopt amendments to the Statute: amending the Preamble to recognise that states have a fundamental duty to protect the environment for the benefit of present and future generations, and amending Article 5(1) to include ecocide as the fifth crime within the jurisdiction of the International Criminal Court, alongside genocide, crimes against humanity, war crimes and the crime of aggression. It further recommends amending Article 8 to mitigate the stringent requirement of knowledge or intent, thereby including reckless or wanton acts.

It proposes adoption of the Independent Expert Panel on the Legal Definition of Ecocide's 2021 formulation — unlawful or wanton acts committed with knowledge that there is a substantial likelihood of causing severe, widespread or long-term damage to the environment — and defines each element. Severe: damage causing serious harm to any element of the environment. Widespread: damage extending beyond a limited geographic area, crossing state boundaries, or suffered by an entire ecosystem or species or a large number of human beings. Long-term: damage that is irreversible or cannot reasonably be restored through natural recovery. Wanton: reckless conduct demonstrating disregard for environmental harm clearly excessive in relation to the anticipated social or economic benefit.

The resolution recommends strengthening the existing international scientific advisory panel — composed of environmental scientists, legal experts and indigenous representatives — to assist the Court in determining the occurrence and extent of ecocide. It calls for further strengthening of the Independent Environmental Expert Advisory Body under the supervision of the UN Environment Programme, subject to the consent of sovereign states, to conduct independent scientific investigations into allegations of large-scale environmental destruction, establish environmental baselines, collect evidence and provide expert assessments supporting international and domestic proceedings.

On capacity, it calls upon developed member states, UN agencies and international financial institutions, in accordance with the principle of Common but Differentiated Responsibilities and Respective Capabilities, to provide financial assistance, technical expertise, judicial training, scientific resources and technology transfer to developing and climate-vulnerable states, strengthening their capacity to investigate, prosecute, prevent and remediate environmental destruction. It encourages international cooperation through exchange of scientific expertise, technology transfer, information sharing and joint investigations.

Finally, it calls on member states to strengthen corporate environmental governance frameworks, requiring corporations operating within their jurisdiction to conduct comprehensive Environmental Impact Assessments, maintain environmental due diligence procedures, and comply with internationally recognised environmental standards throughout their operations.

What the preamble records

The preamble notes that although several international environmental treaties provide obligations for environmental protection, there is currently no universally accepted international criminal definition of ecocide, creating inconsistencies in accountability and limiting the ability of the international community to prosecute the gravest forms of environmental destruction. It recognises that Article 8 of the Rome Statute currently limits environmental crimes primarily to situations of armed conflict, leaving significant peacetime environmental destruction beyond its scope. And it records concern that international criminal law focuses on individual criminal responsibility while failing adequately to address the accountability of corporations.

It draws on Principle 15 of the Rio Declaration, Article 192 of the UN Convention on the Law of the Sea, the Convention on Biological Diversity, the International Court of Justice's Advisory Opinion on Climate Change, and Principle 21 of the Stockholm Declaration.

In the room

Four blocs formed: African, European, small islands, and what delegates described as blocs falling into none of those groupings. They split to draft working papers and merged to produce a single draft resolution. The committee does not impose penalties; it recommends new legal frameworks or the strengthening of existing ones.

Delegates of Djibouti, Nauru and Eritrea drove the room. The atmosphere was described as accommodating. By delegates' account, no resolution in the committee passed unanimously.

The committee did not debate its other agenda, on closing the accountability gap for internationally wrongful acts committed through proxy groups and non-state armed groups. A motion to take that agenda first, moved by the delegate of Nauru and seconded by the delegate of Eritrea, was countered by a motion to take the environmental agenda; the latter carried on a vote. After the draft resolution was completed, a further motion to reopen the first agenda failed on a clear vote.