Spotlight on environmental law Quarter 3 2021

By MYRLE VANDERSTRAETEN, Published in Spotlight On Environmental Law

Since 1970, global surface temperatures have risen faster than in any other 50-year period over the past 2 000 years. The past five years have been the hottest since 1950, and according to the National Oceanic and Atmospheric Administration (NOAA), July was the hottest month recorded since record keeping began 142 years ago. The report is quite clear: there will be floods; there will also be water shortages. Some regions will be dangerously hot; others will be uninhabitable because of rising sea levels. Polar ice and glaciers are melting fast, contributing to rising seas, and extreme weather events will become more frequent and more intense – threatening lives and livelihoods. Some species will adapt, but others will become extinct. Polar bears may disappear as the ice on which the rely melts; tropical coral reefs may disappear as oceans become more acidic; and the poor in the poorer countries, which are least able to adapt, will suffer the most.

In 2009, I asked Polly Higgins if she would write an article for without prejudice – she adapted something she had already written. A Scottish barrister practising in London, Polly worked tirelessly, until her untimely death in 2019, to have a global definition of ecocide that would enable the International Criminal Court to prosecute for offences against the environment.

She wrote that 'just as the Universal Declaration of Human rights was born of an humanitarian crisis, so now we have a planetary crisis. Climate change – a symptom of the crisis we face – is trans-boundary in nature and affects us all. That is why I am proposing a Universal Declaration of Planetary Rights'. 'History', she said, showed that 'when forced to by law, polluting energy industries will successfully move to trade in other commodities, reinventing their commodity base to be renewable and non-polluting energy'. 'History demonstrates clearly that voluntary business guidelines produce little more than business as usual scenarios.' It would have been considerably important to her that on 22 June 2021, it was reported that legal experts from across the globe had drawn up an "historic" definition of ecocide, intended to be adopted by the international criminal court to prosecute 'the most egregious offences against the environment'. Ecocide is defined as "unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts". The Guardian reports that if the definition is adopted by the ICC's members, it would become just the fifth offence that the court prosecutes – alongside war crimes, crimes against humanity, genocide and the crime of aggression – and the first new international crime since the 1940s, when Nazi leaders were prosecuted at the Nuremberg trials. That should put the need for climate change into perspective for us all.

Myrle Vanderstraeten.