Abstract
This article is the revised text of the 2020 Stockholm Environmental Law lecture. Its two parts discuss, respectively, some of the issues surrounding access to justice by NGOs in order to protect the environment and whether the time has come to add a fifth crime of ‘ecocide’ to the crimes against humanity that are criminalised under the Rome Statute.
Keywords
Introduction
Where better to start this lecture than with Tolkien’s Lord of the Rings: with Treebeard and the Ents (those amazing shepherds of the magically eloquent moving trees that comprise the forest of Fangorn)? Here is part of Treebeard’s dialogue with Pippin and Merry, just before he decides to call an ‘Entmoot’ to determine whether the Ents and the trees that they guard should take the extraordinary step of marching upon Isengard, its virtually impregnable citadel Orthanc, and its tree-destroying master, the treacherous wizard Saruman:
. . . He and his foul folk are making havoc now. Down in the borders they are felling trees –good trees. Some of the trees they just cut down and leave to rot –orc-mischief that; but most are hewn up and carried off to feed the fires of Orthanc. There is always a smoke rising from Isengard these days.
Curse him, root and branch! Many of those trees were my friends, creatures I had known from nut and acorn; many had voices of their own that are lost for ever now. And there are wastes of stump and bramble where once there were singing groves. I have been idle. I have let things slip. It must stop! 1
In real life, the environment is not as eloquent with words as the trees of Fangorn were with their singing –or perhaps we are less attuned than the Ents to hearing and understanding its voice. The environment is, however, eloquent in terms of showing us the physical effects of taking actions that damage the natural balance. The Arctic ice-cap is melting. There is more extreme weather around for all of us to see and indeed experience: unusually severe storms, more frequent and stronger hurricanes, and landslides being only three examples. In the meantime, engaged persons (such as David Attenborough) or non-governmental organisations (‘NGOs’) (such as Client Earth, Friends of the Earth and Greenpeace) have highlighted the negative consequences of not caring for our world.
This study on the role of law in protecting our environment divides naturally into two distinct parts: ‘do trees have rights?’ and ‘wondering about ecocide’ (the debate about adding ‘ecocide’ as a fifth crime to the Rome Statute of the International Criminal Court). 2 .
‘Do Trees Have Rights?’
In 1972, a young law professor in the USA named Christopher Stone wrote an influential article called ‘Should Trees Have Standing?’ 3 Stone argued that trees and other natural resources should have rights (for example, the right to exist) and that environmental groups should be entitled to speak for them and to present their claims in court. That same year, in Sierra Club v Morton, 4 the US Supreme Court held 4-3 that Sierra Club had no standing to sue because it did not allege that it was itself in any way injured by the ski resort that Disney were about to build at Mineral King Valley in the Sierra Nevada mountains. 5
The case is, however, famous also for the dissent by Justice Douglas, who argued eloquently that trees and other natural resources should have legal rights:
‘The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated . . . in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. . . This suit would therefore be more properly labelled as Mineral King v. Morton.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. . . .
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes . . . The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water . . . must be able to speak for the values which the river represents and which are threatened with destruction....
The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana . . . are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.
Perhaps they will not win. Perhaps the bulldozers of “progress” will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?
Those who hike the Appalachian Trail . . . or who canoe and portage the Quetico Superior . . . certainly should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away. Those who merely are caught up in environmental news or propaganda and flock to defend these waters or areas may be treated differently. That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court...
That, as I see it, is the issue of “standing” in the present case and controversy.’
Not long afterwards, the US Congress passed the Clean Water Act, 1972 6 and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 1980 7 . Congress did grant legal rights to natural resources, in the sense that, when the US government sues (under the ‘natural resources damages’ provisions) for injury to natural resources, it is suing not in its own right but as a ‘trustee’ on behalf of that natural resource; and any recoveries (compensation recovered) must be spent on that natural resource itself –they cannot be spent on other projects that the government would like to fund.
A more recent example would be the Lake Erie Ecosystem Bill of Rights, drawn up by the City of Toledo in December 2018 and passed by referendum with 61% in favour in February 2019: 8 ‘It has become necessary,’ the bill declares, ‘that we . . . extend legal rights to our natural environment to ensure that the natural world [is] no longer subordinated to the accumulation of surplus wealth and unaccountable political power’.
But is this an awkward anthropomorphic classification of nature? Perhaps we should rather put it as Thomas Berry (1914-2009) did in ‘The Great Work’ 9 and say, ‘Trees have tree rights, insects have insect rights, rivers have river rights, and mountains have mountain rights’? Were we to do so, we might have to think a little more deeply about what specific rights trees need in order to prosper as trees and rivers need in order fully to enjoy their river-hood; and the conclusions that we draw as to what legitimately may be done to the environment surrounding trees and rivers without trespassing upon their respective rights might be different.
For the purposes of this article, I am going to sidestep that important debate. Rather, as a very practical working lawyer, I want to ‘unpack’ the various different elements that are bundled together here and ask, ‘if we as concerned human beings who love the natural environment want to try to help to protect it, how can we best go about that?’
Put slightly differently: when the legislator has enacted laws that do protect trees (or surfaces of water, or habitats for birds and animals), the important next question then becomes, ‘how are those laws actually to be enforced?’
Stage One: Setting Standards
It may seem obvious, but I suggest that the first step is to recognise that there is a problem about X. Thus, for example, recognising that untreated effluent discharged into rivers is going to damage the ecosystem; recognising that nesting sites for birds have to be protected during the breeding season; recognising that wide-scale logging operations in Poland’s Białowieża Forest would destroy one of Europe’s last remaining primeval forests; recognising that unless a Europe-wide network of sites (Natura 2000) is both designated and protected, various features of the natural landscape that we take for granted now may simply not be around in 50 years’ time.
Recognising the problem already requires that a certain combination of factors be present: the existence of scientific knowledge; awareness of that knowledge; the necessary motivation to want actually to do something about the situation; and a decision to use hard tools (law) rather than soft tools (persuasion, advertising, awareness-raising campaigns) to address the problem that has been identified.
So far so good –but no environmental standard that I have ever worked on has been self-enforcing. Once the standard is in place, enshrined in a nice new law, how are we going to ensure that it is actually respected?
Stage Two: Enforcement
You can, of course, always set up an official agency, tasked with monitoring and, where necessary, enforcing the law. Such agencies abound, and they often do a good job. But there are limitations.
Thus (for example), the agency cannot tackle every potential problem. It has to set, and keep to, priorities. That may mean that some important and deserving project just gets left out. The agency will be constrained by its (limited) resources, by its budget. It will not be omniscient about everything nefarious that is going on. A national agency may have less raw passion about the need to address a particular local problem than a concerned group of local citizens. As time passes and the agency becomes an accepted feature of the establishment landscape, its permanent staff may settle comfortably into their roles. The suspicion may perhaps be born (and then grow) that the very agency that is meant to supervise and regulate in a particular area may perhaps be getting a little too close to those whom it is supposed to be regulating.
So, what about the NGO? An NGO may be international or national in its coverage and membership. Obvious examples in relation to protecting the environment generally would include Client Earth, Friends of the Earth and Greenpeace. Other well-known NGOs, like the World Wildlife Fund, address a particular aspect of environmental protection. 10
At the other end of the spectrum, there is the local action group, like the little ‘Isle of Dogs Environmental Action Group’ (the ‘IODEAG’) that I am absurdly proud to have founded as a young barrister in East London. The IODEAG came into being as an ad hoc group of local activists to fight the greedy and irresponsible development for luxury housing –a development, as originally conceived, to be pursued without any precautionary measures being taken during the entire demolition and construction process –of the site of a former leadworks which had eye-watering levels of most toxins and pollutants that you can think of. Should a local grouping like the IODEAG have access to justice, if necessary, on behalf of the environment; or should the (desperately needed) environmental action have to be brought in the name of (for example) one of the seven local schools whose pupils’ health would be adversely affected by the clouds of dust flung up by carrying out the work without precautionary measures? 11 Should we go as far as to allow the individual concerned citizen to bring enforcement proceedings, via an actio popularis? Incidentally, we should also recognise along the way that being a defender of environmental human rights is not always a safe and respectable and middle-class occupation. Sometimes it involves putting one’s livelihood and maybe even one’s life on the line. 12
Here, we need to step back for a moment and look at the way legal systems are designed in relation to actions brought under administrative law.
Locus Standi Requirements and their Consequences
As readers will know, locus standi is shorthand for having the right to go before a court and ask it to decide a particular issue. Court time is a finite resource. Many if not indeed most legal systems operate on the basis that there should be some limitations on who can bring a matter before a court. How (technically) that limiting process is done will vary from system to system, but there is a common underlying philosophy: namely, that you should (of course) have access to a court to protect that which is yours: your property, your right, your interest. Conversely –so the thinking runs –we do not want every Tom, Dick and Harry to be able to push his way in through the doors of the court in order to take up valuable court time with an argument about something in which he has no personal stake.
So, administrative procedural law sets ‘locus standi’ / ‘standing’ conditions controlling who can get before an administrative judge to argue his case. Typically, these are some variants of a requirement that the applicant: has a sufficient interest; or is maintaining that he has a right that is being impaired; or perhaps (the US test) has himself or will himself suffer injury, whether economic or otherwise.
These are all very ‘me-focused’ tests.
In principle, there is a lot of good sense behind that philosophy. As applied to environmental actions, however, it can lead to difficulties. That thinking led to the majority decision in Sierra Club v Morton, mentioned earlier. I tried to make the issues clear in my Opinion in Case C-115/09 Trianel, in the context of the Environmental Impact Assessment (‘EIA’) Directive. 13 This is what I said:
‘The German Government contends that the effectiveness principle is not infringed by making locus standi contingent on the existence of substantive individual rights.
During the hearing, it became clear that there was a wide range of environmental legislation in place in Germany, not all of which can readily be associated with the protection of substantive individual rights. As the Commission rightly points out, the Court has on a number of occasions interpreted the EIA Directive extensively[ 14 Against that background, it seems to me that excluding all actions based on environmental provisions other than those which also accord substantive rights to individuals is clearly not an effective implementation of the EIA Directive.
The German Government has explained that its system of judicial review involves a careful and detailed scrutiny of administrative decisions and results in a high level of protection of individual rights. [ 15 ] However, like a Ferrari with its doors locked shut, an intensive system of review is of little practical help if the system itself is totally inaccessible for certain categories of action. As I understand it, in circumstances in which no substantive individual right is at risk of impairment, neither an individual nor an environmental NGO has locus standi to bring an action. No one can act on behalf of the environment itself. There are nevertheless circumstances –for example, where a project listed in Annex I to the EIA Directive (and therefore subject to a compulsory environmental impact assessment under Article 4(1) thereof) is located on a virgin site well away from human habitation –where effective participation in environmental decision-making and effective monitoring of the implementation of the EIA Directive make it essential that an environmental NGO should have locus standi to bring an action for judicial review.’ 16
I want to illustrate some of the issues about locus standi by reference to the Aarhus Convention and certain cases relating to its impact within EU law decided by the Court of Justice of the European Union (the ‘CJEU’): the court in which, until recently, I had the honour to serve as an advocate-general. I emphasise hastily that what follows is not a comprehensive review of the CJEU’s case law on that important topic. Let me swiftly set out the necessary legislative background.
The Aarhus Convention Itself
I suspect that the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’) 17 is familiar to many readers of this text. I shall therefore confine myself to recalling certain key points that will be relevant to what I shall be highlighting from the CJEU case law.
Article 2(5) of the Aarhus Convention defines ‘the public concerned’ as ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’.
Article 6 of the Aarhus Convention governs public participation in decisions on specific activities liable to affect the environment.
Article 9 contains provisions relating to access to justice for both individuals and non-governmental organisations, as well as rules applying to judicial procedures. In particular, Article 9(2) states:
2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned:
(a) having a sufficient interest or, alternatively,
(b) maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 2(5) shall be deemed sufficient for the purpose of sub-paragraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of sub-paragraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
As I pointed out in my Opinion in Trianel, 18 the meaning in English of the expression ‘maintaining the impairment of a right’ is not, perhaps, entirely obvious. Its true meaning may be closer to ‘alleging the infringement of a right’; that being an abbreviation for ‘alleging that a right is, or is at risk of being, impaired’. In order to remain faithful to the English text of the Aarhus Convention and avoid introducing an unnecessary element of confusion, I have in general used ‘maintaining the impairment of a right’ where necessary below.
Directive 2003/35/EC
The Aarhus Convention was swiftly incorporated into the (then) Community legal order by means of (inter alia) Directive 2003/35, 19 in anticipation of the ratification of the Aarhus Convention by the (then) European Community (recitals 9 and 11 to that directive make the link clear). 20 Directive 2003/35 amended two earlier environmental directives, namely the EIA Directive 21 and the IPPC Directive, 22 so as ‘to ensure that they are fully compatible with the provisions of the [Aarhus] Convention, in particular . . . Article 9(2) . . . thereof’. 23 The body of Directive 2003/35/EC then dealt with the necessary amendments to those two central instruments of European Community environmental law.
Within the amended EIA Directive, key provisions of the Aarhus Convention for the purposes of this lecture then become: Article 1(2) (transposing the definition of the ‘public concerned’ in Article 1(5) of the Aarhus Convention); Article 6 (transposing Article 6 of the Aarhus Convention on public participation in decisions on certain activities); and Article 10 a, transposing the provisions on locus standi in Article 9(2) of the Aarhus Convention to enable challenges to be mounted to the legality of decisions, acts or omissions made subject to the public participation provisions of the Directive.
Let me now look briefly at five issues that came before the CJEU in relation to what –exactly –the ‘enhanced rights of standing’ actually meant for NGOs.
Issue 1: Article 1(2) of the EIA Directive has a renvoi to national law in the definition of NGOs ‘deemed to have an interest’ that therefore qualify as being ‘the public concerned’ –how much latitude does that give to Member States?
The key text looks innocuous enough: ‘. . . [NGOs] promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’ (emphasis added). Therefore, such NGOs should have automatic locus standi under Article 10a to bring proceedings. But what does that actually mean?
In Case C-263/08 Djurgården, 24 a local environmental association sought to challenge a decision authorising the construction of a tunnel to carry electrical cables. Its challenge was held to be inadmissible as the local association did not fulfil the condition (laid down in national law) that in order to qualify to bring such a challenge, an NGO must have at least 2000 members. At the time, just two NGOs in Sweden satisfied that condition. 25 The Court (like its Advocate General) took a purposive approach. Whilst respecting the potential diversity of national law, the emphasis was firmly practical, focusing on the result that was produced by applying the national rules. If –as here –that resulted in (very) restrictive access, those rules were not permissible.
Issue 2: the boundary between EU obligations and national obligations; the possible direct effect of the Aarhus Convention
These issues arose in Case C-240/09 Lesoochranárska zoskupenie (‘LZ’) (better known to its friends as Brown Bears I). 26 LZ, an unincorporated association concerned with environmental protection, requested the defendant Ministry to inform it of any administrative decision-making procedure which might potentially affect the protection of nature and the environment, or which concerned granting derogations to the protection of certain species or areas. At the beginning of 2008, LZ was informed of a number of pending administrative proceedings brought by, inter alia, various hunting associations. On 21 April 2008 the Ministry took a decision granting a hunting association’s application for permission to derogate from the protective conditions accorded to the brown bear. In the course of that procedure, and in subsequent procedures, LZ notified the Ministry that it wished to participate. It sought recognition of its status as a party to the administrative proceedings under the provisions of Article 14 of the Slovak Administrative Procedure Code. In particular, LZ asserted that the proceedings in question directly affected its rights and legally-protected interests arising from the Aarhus Convention. It also submitted that the Aarhus Convention had direct effect.
In its decision of 26 June 2008 (‘the contested decision’) the Ministry confirmed its decision of 21 April 2008. It further stated that LZ did not have the status of a party to the proceedings. LZ could not, therefore, appeal against the decision of 21 April 2008. Moreover, the Ministry considered that the Aarhus Convention was an international treaty which needed to be implemented in national law before it could take effect. In its view, the Slovak Republic was the addressee of Article 9(2) and (3) of the Aarhus Convention; and those provisions, in themselves, did not contain any unequivocally drafted fundamental right or freedom which would be directly applicable, in the sense of the ‘self-executing’ theory used in public international law, to public authorities. 27
In its judgment, the Court explained that the Aarhus Convention was an international agreement entered into under joint competence (that is, both the European Union and its constituent Member States). The CJEU had jurisdiction to rule on where the dividing line between those competences lay (i.e., what was a matter of EU law and what remained within the province of national law). Because brown bears were a protected species under the Habitats Directive, 28 the issues leading to the making of the reference for a preliminary ruling fell within the scope of EU law. Moreover, where a provision of the Aarhus Convention could apply both to situations falling within the scope of national law and to situations falling within the scope of EU law, it was clearly in the interest of the latter that, in order to forestall future differences of interpretation, that provision should be interpreted uniformly, whatever the circumstances in which it was to apply. Therefore, the Court had jurisdiction to interpret the provisions of Article 9(3) of the Aarhus Convention and, in particular, to give a ruling on whether or not they have direct effect.
The Court then proceeded to examine Article 9(3) of the Aarhus Convention. Although it concluded that that provision did not have direct effect within the EU legal order, it stressed that the principles of equivalence and effectiveness applied and that it was therefore for the national court to interpret its procedural rules ‘to the fullest extent possible’ in order to enable an environmental protection organisation to challenge a decision ‘liable to be contrary to EU law’. I interject that, in so ruling, the Court followed its classic route and reasoning for cases where it feels unable to reach the desired objective via direct effect: that is, it passed the responsibility back to the national court whilst giving that court a strong hint as to the result that it should reach.
Issue 3: does EU law override a restrictive definition in national law of individual rights protected?
Here, I need to revisit Case C-115/09 Trianel, 29 which I mentioned earlier in this lecture. Friends of the Earth (who need no introduction as an environmental protection organisation) brought a challenge against a preliminary administrative decision and against a partial permit, issued after an environmental impact assessment (‘EIA’), that authorised Trianel to construct and operate a coal-fired power station. Friends of the Earth claimed that the EIA was defective because it infringed provisions of German law transposing Article 6 of the Habitats Directive (specifically, the EIA did not show that the project was unlikely to have a significant effect on the special areas of conservation (SACs) located nearby).
However, under German administrative law, Friends of the Earth as claimant had no right of action, because the administrative measures challenged (the preliminary decision and the partial permit) did not affect the claimant’s individual rights. 30 Hence the need to refer questions to the CJEU for clarification.
First, could an environmental protection organisation (such as Friends of the Earth), basing itself on Article 10a of the EIA Directive, rely on the infringement of a rule which protected only the interests of the general public and not the interests of individuals? Given that most rules under EU environmental law do just that, the answer had to be an emphatic ‘yes’. Second, what if the referring court could not interpret national procedural law in a manner consistent with attaining that result? The answer given was robust: in that event, an environmental protection organisation could rely directly on the last sentence of the third paragraph of Article 10a of the EIA Directive.
Issue 4: ‘Brown Bears’ revisited
Case C-243/15 Lesoochranárske zoskupenie (‘LZ’) 31 is often referred to as ‘Brown Bears II’. Actually, however, it concerned a special protection area (‘SPA’) under the Habitats Directive, intended to ensure the protection and reproduction of, inter alia, the peregrine falcon; and a project by Biely Potok to extend a deer reserve on parcels of land located within that SPA. The environmental association, LS, sprang into action and requested a stay. It was refused status as a party on the grounds that the applicable national legislation allowed an association with legal personality such as LZ only the status of ‘interested person’ and not that of ‘party to the proceedings’. The permit to extend the deer reserve was duly granted. Meanwhile LZ had challenged the decision refusing it the status of a party before the regional court, which stayed the proceedings pending the CJEU’s ruling in Brown Bears I. On the basis of that judgment, once handed down, the regional court annulled the earlier decisions LZ had challenged. Biely Potok (of course) appealed the regional court’s decision to the Slovak Supreme Court.
There followed a long and complex back-and-forth between the Slovak Supreme Court and the regional court. 32 When the case reached the Slovak Supreme Court for the third time, that court did engage seriously with the issue of effective judicial protection and the objective of ensuring a high level of environmental protection. In consequence, it duly made a reference for a preliminary ruling to the CJEU. 33
In a long and purposive judgment, the CJEU held that the matter fell within the scope of Article 47 of the Charter of Fundamental Rights, thus triggering the right to an effective remedy. The Court proceeded to take a broad view of what decisions were covered and what guaranteeing a ‘wide access to justice’ means. Building on its earlier ruling in Trianel, it held that an environmental protection organisation must be able to mount a challenge and that, provided that the national court found and assessed the necessary facts, the CJEU could lay down the criteria that the national court ‘may or must’ apply and advise on their application. Crucially, the CJEU held that ‘it is possible that, without the participation in the administrative procedure of an environmental organisation such as LZ as a party to the procedure, arguments supporting protection of the environment will be neither put forward nor taken into account, so that the fundamental objective of the procedure envisaged in Article 6(3) of Directive 92/43, namely that of ensuring a high level of environmental protection, will not be achieved’. 34 Being an ‘interested person’ was not equivalent to being a ‘party to the proceedings’.
Speaking as a former barrister, I would have been so proud to have been involved in bringing the ‘Brown Bears I’ and ‘Brown Bears II’ cases before the courts. In terms of the leverage afforded to environmental protection organisations through participation as a party in administrative proceedings, these challenges generated truly blockbuster results.
Issue 5: ‘Catch-22’ procedural traps
Case C-664/15 Protect Nature 35 arose out of the extension of a permit for a snow-production facility for a ski resort that included a reservoir fed by water from a local river and thus gave rise to questions both under Directive 2000/60 (the Water Framework Directive) 36 and the Habitats Directive. 37 The case required a lengthy and detailed consideration and application of the four judgments that I have been discussing. What made it stand out, however, was its wonderful ‘Catch-22’ trap. Because the environmental protection organisation (Protect) did not have the status of a party, 38 it could not lodge (substantive) written observations during the administrative procedure. When it brought a court challenge against the decision granting the permit, its action was dismissed ‘on the ground that it had lost its status as a party to the procedure pursuant to Paragraph 42 of the AVG [ 39 because it had failed to invoke rights protected under the legislation governing water-related matters during administrative procedure and, at the latest, during the hearing [for the permit application]’. 40
Under EU law, a rule imposing a time limit ‘may —notwithstanding the fact that it constitutes, as a precondition for bringing judicial proceedings, a limitation on the right to an effective remedy before a court within the meaning of Article 47 of the Charter —be justified, in accordance with Article 52(1) of the Charter, to the extent that it is provided for by law, it respects the essence of that law, it is necessary, subject to the principle of proportionality, and it genuinely meets objectives of the public interest recognised by the EU or the need to protect the rights and freedoms of others’. 41
However, the real question was ‘whether, in a situation such as that in the main action, the imposition of the time limit concerned on an environmental organisation, such as Protect, is such as to excessively restrict the right to bring judicial proceedings, which is intended to be guaranteed by Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, for the protection of the rights conferred by Article 4 of Directive 2000/60’. 42 Whilst technically leaving that question to be resolved by the national court in the light of an assessment of all relevant matters of fact and national law, the CJEU gave the clearest possible indication that the arrangements under Austrian procedural law did indeed excessively restrict the right to bring judicial proceedings. 43
By way of transition to the second part of this lecture, let me now ask the following (quasi-philosophical) question:
‘In relation to any given topic (X), where should the law be positioned relative to public opinion on that topic?’
A conservative lawyer might argue that laws should only be enacted once society (by which is implicitly meant, ‘all right-thinking people’) is indubitably foursquare behind the position to be enshrined in law. An activist lawyer (I think I had perhaps better label myself as belonging to that camp!) will retort that, applying that test, much socially useful legislation would never find its way onto the statute book and would never be there to serve as the basis (perhaps, as the catalyst) for much-needed changes in society. Such a lawyer would point to measures such as the abolition of capital punishment, or legislation outlawing discrimination on grounds of sex, race, religion, ethnic origin (etc), or –come to that –the ECHR itself –as obvious illustrations confirming the proposition that society, if it is to respect fundamental rights, cannot simply wait until everyone is on board before ‘consolidating’ that public opinion in legislation.
At the other end of the spectrum, if legislation is enacted that is too far ‘ahead of the curve’ (in the sense of, too far ahead of the views of all save a tiny liberal minority), that law will in practical terms be unenforceable. Thus, for example, laws against fly-tipping (dumping refuse in the open countryside) only work if a majority of the population already does not fly-tip and disapproves of fly-tipping as a way of getting rid of unwanted objects.
Wondering about Ecocide
Let me invite you to stand back for a moment and think about law as a tool for tackling a problem. The collection of different laws that address a particular problem (different laws for different aspects of the problem, or for different sizes of the problem) is your toolkit –the toolkit with which (like any good craftsman) the (activist) lawyer works on the problem they are seeking to deal with. The lawyer will therefore ask two fairly obvious questions:
First, what tools do I have in my toolkit? A decent toolkit has a range of tools. Of course, no craftsman needs or uses every tool all the time. However, a well-equipped professional has a toolkit that includes not only the tools that are needed for pretty much any job (for a lawyer, things like procedural rules and the rules of evidence) but also a variety of more specialist tools that are only needed for particular jobs. Those tools are not used all the time. However, if the specific job at hand demands that particular tool, you may not be able (if you do not have the right tool) to improvise adequately or efficiently just using the other tools that you do have.
Second, of the available tools in my toolkit, which tool(s) do I need for this particular job? Do I need a hand-held screwdriver plus a small bag of screws plus a hand-held tenon saw to cut two mortice-and-tenon joints and a few dovetail joints to shape? Or is the task before me one that –realistically –will be impossible without an industrial quality, heavy duty saw bench, an electrical drill to pre-drill every hole, an electric screw driver and hundreds of screws?
Now let us look at the ‘really big crimes’ –the ones in the Rome Statute. 44 These are commonly known as the ‘four crimes against peace’: genocide, crimes against humanity, war crimes and crimes of aggression. 45 What do we know about the role and/or the function of those four crimes?
First, those four crimes against peace are (to continue my toolbox analogy) big tools to address big problems. They are not there to deal with (relatively) small-scale events. Other tools –such as, for example, a straightforward prosecution for murder –are appropriate and effective for dealing with those ‘lesser’ situations.
Second, the presence of those four crimes in the Rome Statute records publicly that the international community regards the conduct that they criminalise with abhorrence and will sanction it. They therefore represent a statement by our global society of global values: values which are antithetical to the actions constituting such crimes.
Third, prosecutions based on the Rome Statute crimes are not –we devoutly hope! –to be used very often. We all trust and believe that we do not live in a world in which genocide, crimes against humanity, war crimes and crimes of aggression are everyday occurrences. However, the infrequency with which a particular ‘big’ crime occurs does not –sadly –mean that humanity has progressed to a level of civilisation in which the events constituting such crimes have disappeared. Dinosaurs are extinct; but man’s capacity for evil, alas, is not.
Fourth, the very fact that the crime exists –that it is there in the Rome Statute –is itself a significant deterrent. Put slightly differently, the presence of the crime in the legal statute book and the real possibility, if you commit it, that you may be found out and prosecuted and, if found guilty, be severely sanctioned for it together exert useful pressure on people not to commit the crime in situations in which, otherwise, they might be tempted to do so.
So, what might be the possible parameters of ‘ecocide’ as a new ‘fifth crime against peace’?
The pioneering British barrister, Polly Higgins, 46 offered the following definition of ecocide to the UN Law Commission in 2010: ‘extensive damage to, destruction of, or loss of ecosystem(s) of a given territory. . . to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished’. 47 It was to that definition that Pope Francis referred in November 2019 in calling for ecocide to become a crime. 48
As Polly Higgins herself pointed out, ‘In any given example of ecocide, the extent of ‘destruction’, ‘damage’ or ‘loss’ suffered requires analysis. Whereas ‘destruction’ and ‘loss’ are easy to ascertain by way of data, what constitutes ‘damage’ for the purpose of establishing the crime of ecocide is more complex. Size, duration and significance of impact of damage to a territory in most instances shall be of relevance to determine whether the crime is made out’. 49 She drew attention to the fact that the Rome Statute already contained an extended definition of damage to the environment, specifically as a consequence of war crimes, which provides useful assistance. Thus, Article 8(2)(b)(iv) thereof already criminalises ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ (emphasis added). Substitute ‘community’ for ‘military’, she suggested, and ‘incidents of ecocide such as the BP Gulf oil spill can begin to be properly assessed’. 50
Polly Higgins also noted that the wording used in Article 8(2)(b)(iv) of the Rome Statute was itself adapted from the 1977 United Nations Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (‘ENMOD’), and that ENMOD already specified meanings for the terms ‘widespread’, ‘long-lasting’ and ‘severe’:
“‘widespread”: encompassing an area on the scale of several hundred square kilometres;
“long-lasting”: lasting for a period of months or approximately a season;
“severe”: involving serious or significant disruption or harm to human life, natural and economic resources or any other assets’.
She concluded that ‘These expanded definitions, which are already embedded in international laws of war, offer an existing basis upon which the international crime of ecocide can be seated at the table of the ICC [the International Criminal Court]’. 51
Sometimes, it is a positive advantage not to write up a lecture for publication immediately! In the year that has elapsed between my giving this lecture and writing it up, much has happened. In November 2020, the ‘Stop Ecocide Foundation’ 52 53 With exemplary speed and diligence, that panel completed its work in June 2021 54 and has produced a draft definition with accompanying commentary. 55 Historically, ecocide is the ‘missing fifth crime’ that got omitted –or more accurately, deleted –during the process that led to the adoption of the Rome Statute. 56 The proposal would repair that omission.
Specifically, the Independent Expert Panel proposed inserting a new draft preambular paragraph (2bis) into the Rome Statute:
‘Concerned that the environment is daily threatened by severe destruction and deterioration, gravely endangering natural and human systems worldwide,’
to be followed by the addition, to Article 5(1) thereof, of a new sub-paragraph (e):
‘(e) The crime of ecocide’
and the insertion of the following substantive definition of the crime of ecocide as a new Article 8 ter:
‘Article 8 ter
Ecocide
For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts. For the purpose of paragraph 1: “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated; “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources; “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings; “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time; “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.’
The Expert Legal Panel expressed the specific hope that the proposed definition might serve as the basis of consideration for an amendment to the Rome Statute. It explains that the proposed new crime of ecocide ‘would build on the existing crime of severe damage to the environment during armed conflict, whilst reflecting the fact that today, most severe environmental damage occurs during times of peace, a situation that currently falls outside the jurisdiction of the ICC. This definition of ecocide offers the States Parties to the Rome Statute the opportunity to meet current challenges. Proceeding to agree a crime of ecocide could contribute to a change of consciousness, in support of a new direction, one that enhances the protection of the environment and supports a more collaborative and effective legal framework for our common future on a shared planet. It offers a new and practical legal tool’. 57
How feasible would it be to change the Rome Statute?
Article 5 of the Statute specifies the crimes that fall within the jurisdiction of the International Criminal Court. Articles 6, 7, 8 and 8 bis then define, successively, genocide, crimes against humanity, war crimes and crimes of aggression. The procedure for introducing amendments to the Rome Statute is governed by Article 121 thereof (‘Amendments’).
Essentially, the basic procedure is as follows. Any State Party can propose an amendment (Article 121(1)). After a minimum of 3 months, the Assembly of States Party decides by a majority of those present and voting whether to take up that proposal (Article 121(2); note that ’The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants’). The adoption of an amendment on which consensus cannot be reached requires a two-thirds majority of States Parties (Article 121(3)).
Now comes the tricky part. Amendments to most of the Rome Statute enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited by seven-eighths of them (Article 121(4)). 58 However, that sub-paragraph incorporates an express carve-out in respect of the actual crimes defined in the Rome Statute, with a renvoi to the succeeding sub-paragraph (Article 121(5)), which merits to be set out in full:
‘5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.’ (emphasis added)
Introducing a new fifth crime of ‘ecocide’ into the Rome Statute would –as the Independent Legal Panel expressly and correctly recognised –require the insertion of ecocide as sub-point sub-paragraph (e) in the listing in Article 5(1) and the introduction of a new Article 8 ter. So, Article 121(5) would apply to the ‘new crime’ of ‘ecocide’. The obvious question therefore arises: could the countries where ecocide may be most likely to be committed simply bypass the effects of adding the new crime of ecocide to the Rome Statute by not accepting the amendment? And would that negate any real benefit from getting ecocide added as the fifth crime against peace?
Given the transnational nature of many operations that can potentially cause major damage to the environment, it seems to me that in many instances (not, of course, all) some part of the activity of planning the events that led to ecocide in a particular case might well take place within the territory of a State Party that had accepted the amendment; and / or might involve nationals of such a State Party. There is also the well-known phenomenon of international relations: no State really likes, in the long run, to be perceived by its peers as a pariah state. Over the years, many States have –one might think, rather surprisingly in view of their actual conduct –nevertheless signed up to international instruments incorporating noble aspirations. Is a mass boycott by multiple ‘rogue states’ of an amendment adding ecocide to the Rome Statute really a very probable or plausible outcome?
Perhaps I am being too sanguine, but the mere possibility that a particular state (or states) might not sign up to such an amendment does not seem to me to be a very good reason for not attempting to achieve the necessary support to get an ecocide amendment introduced for discussion.
Conclusion
In this article I have tried to explain why getting into court to assert the rights of the environment is not always straightforward (even when NGOs have in theory been given preferential status); and I have given a very schematic overview of some of the issues involved in trying to get the Rome Statute amended so as to include ecocide. I am tolerably certain that the debate surrounding both topics will continue way beyond the point at which this lecture has joined the academic archive of historical material. As a working, practical lawyer I am going to conclude by reverting to my image of the toolbox.
If I want, as a lawyer, to play my part in trying to protect the environment, I need to use whatever tools I have (notably, the administrative law challenge that is judicial review). I need to use those tools with the same professional judgment and skill that I would apply to lawyering in any other area of the law. Having an extra very big tool in my toolkit –ecocide –is not going to stop me using the other (smaller) tools which are perfectly adequate and indeed more appropriate for (most) situations that I shall probably need to deal with. I shall go on using the right tool for the particular job at hand. But having that extra, very big, tool available in the tool kit may just turn out to be very useful someday.
Footnotes
J.R.R. Tolkien, The Two Towers, being the second part of the Lord of the Rings, George Allen & Unwin Ltd, London, first published 1954, second edition 1966, at p.77 of the second edition.
Stone, Christopher D. “Should Trees Have Standing? –Towards Legal Rights for Natural Objects.” Southern California Law Review 45 (1972): 450-501; available at: stone-christopher-d-should-trees-have-standing.pdf (wordpress.com) (accessed on 30 March 2022). Originally published in 1972, the classic work became a rallying call for the environmental movement and was subsequently published as Christopher Stone (1974), Should Trees Have a Standing? Towards Legal Rights for Natural Objects. Los Altos, California: William Kaufman.
(1972) 405 U.S. 727.
Under the Administrative Procedure Act (Pub.L. 79–404, 60 Stat. 237), a person has standing to seek judicial review only if he can show that he himself has suffered or will suffer injury, whether economic or otherwise. The Sierra Club had asserted no individualized harm to itself or its members.
United States Environmental Protection Agency, “Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund)”, 42 U.S.C. §9601 et seq. (1980); available at: https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-response-compensation-and-liability-act#:: ::text=The% 20Comprehensive% 20Environmental% 20Response% 2C% 20Compensation% 2C% 20and% 20Liability% 20Act% 20% 2D% 2D% 20otherwise,and% 20contaminants% 20into% 20the% 20environment (accessed on 30 March 2022).
Thomas Berry, The Great Work: Our Way into the Future (1999).
I am happy to report that we growled sufficiently loudly, making much play with EU law, to frighten the developers into negotiating appropriate precautionary measures with us in return for our agreeing not to take them to court and delay the project by many months if not years. The extra elaborate precautions that they found themselves taking, which slowed down appreciably the speed at which they could develop the site, probably (if fully costed) knocked about three quarters of a million pounds off their profit line, which still remained very healthy indeed. Given that half our members were unemployed local East Enders, there is no way that we could actually have taken on the developers in open litigation. Fortunately, whilst they may have come close to guessing that, they were not quite sure enough of themselves to dare to call our bluff.
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17).
Case C–72/95 Kraaijeveld [1996] ECR I–5403, paragraph 31; Case C–435/97 WWF [1999] ECR I–5613, paragraph 40; Case C–474/99 Commission v Spain [2002] ECR I–5293, paragraph 46; and Case C–142/07 Ecologistas en Acción-CODA [2008] ECR I–6097, paragraph 28.
Cross-refers to the earlier point 30 of the Opinion.
Opinion of 16 December 2010 in Case C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v Bezirksregierung Arnsberg, Trianel Kohlekraftwerk Lünen (intervening), ECLI:EU:C:2010 : 773 at points 75-77; see judgment of 12 May 2011, C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v Bezirksregierung Arnsberg, Trianel Kohlekraftwerk Lünen (intervening), ECLI:EU:C:2011 : 289.
The full text of the convention in its three authentic languages (English, French and Russian) is available on the UNECE website; available at: 
(accessed on 30 March 2022). On 25 June 1998, the European Community, the individual Member States and 19 other States signed the Aarhus Convention, which entered into force on 30 October 2001.
ECLI:EU:C: 2010 : 773 at point 5, see n.15.
See n. 13.
“(9) Article 9(2) and (4) of the Aarhus Convention provides for access to judicial or other procedures for challenging the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of Article 6 of the Convention’ (. . .) (11) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, and Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [IPPC] should be amended to ensure that they are fully compatible with the provisions of the Aarhus Convention, in particular Article 6 and Article 9(2) and (4) thereof”.
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40: ‘the EIA Directive’).
Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [IPPC], (OJ 1996 L 257, p. 26: ‘the IPPC Directive’).
Recital 11 to Directive 2003/35/EC, see n. 19.
Judgment of 15 October 2009, C-263, Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd, ECLI:EU:C:2009 : 631. My Opinion, delivered on 2 July 2009, is at ECLI:EU:C:2009 : 421.
See point 77 of my Opinion of 2 July 2009; available at ECLI:EU:C: 2009 : 421.
Judgment of 8 March 2011, C-240/09, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, ECLI:EU:C:2011 : 123. My Opinion, delivered on 15 July 2010, is available at: ECLI:EU:C:2010 : 436.
The statement of the facts is taken from points 22-23 of my Opinion of 15 July 2010; available at: ECLI:EU:C: 2010 : 436.
Council Directive 92/43/EEC of 21 May on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7: ‘the Habitats Directive’). The brown bear (ursus arctos) is designated under Annex II to the Habitats Directive as a species of Community interest whose conservation requires the designation of special areas of conservation, and under Annex IV as a species of Community interest in need of strict protection.
Full citations for judgment and Opinion, see n. 16.
Paragraphs 28 to 30 of the judgment contain a careful exposition of German administrative law on this point, as explained by the national court in its order for reference.
Judgment of 8 November 2016, C-243/15, Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín, ECLI:EU:C:2016 : 938. The Opinion of my colleague Advocate General Kokott, delivered on 30 June 2016, is at ECLI:EU:C:2016 : 491.
Thus, the Slovak Supreme Court set aside the judgment challenged on the basis (essentially) that this was all now history (see paragraphs 28-39 of the CJEU judgment); but then there was a second round (see paragraphs 30-32 of the CJEU judgment) followed by a third round (see paragraphs 33-34 of the CJEU judgment).
See paragraphs 34-38 of the CJEU judgment.
At paragraph 70 of the judgment.
Judgment of 20 December 2017, C-664/16, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd, ECLI:EU:C:2017 : 987. My Opinion, delivered on 12 October 2017, is available at ECLI:EU:C:2017 : 760.
Directive of the European Parliament and of the Council of 23 October 2000 establishing a framewrk for Community action in the field of water policy (OJ 2000 L 327, p. 1).
See n. 28 above.
Protect ‘had not claimed that any rights protected under the legislation governing water-related matters had been affected, and, for that reason, it could not claim to be a party in the procedure’: see paragraph 24 of the CJEU judgment.
The AVG is the Allgemeines Verwaltungsverfahrensgesetz (General [Austrian] law on administrative procedure).
See paragraph 27 of the CJEU judgment.
Paragraph 90 of the judgment.
Paragraph 92 of the judgment.
See paragraphs 93-100 of the judgment: a wonderfully refreshing moment of real, practical common sense.
For a magnificent account of the intellectual evolution of two of the four crimes against peace, see Philippe Sands, East-West Street: On the Origins of Genocide and Crimes Against Humanity, Weidenfeld & Nicholson, London, 2016.
Polly Higgins (1968-2019) made the campaign to make ecocide a crime her life’s work. Her book Eradicating Ecocide (Shepheard-Welwyn Publishers Ltd, London; 1st edition 2010, 2nd edition 2015) is the immediate reference point for anyone wishing to know more about these issues. The quotations that follow are taken from the 2nd edition.
Eradicating Ecocide, p.63.
Ibid, p.64.
Ibid. I have not done justice to the fullness of her reasoning and recommend, at the least, a proper reading of Chapter 5 (‘Ecocide: the 5th crime against peace’), pp.61-71 of Eradicating Ecocide.
Stop Ecocide International (‘SEI’) was co-founded in 2017 by Polly Higgins and its current Executive Director Jojo Mehta. SEI helps to coordinate and facilitate increasing global movement towards seeking to make ecocide an international crime. convened an ‘Independent Expert Panel for the Legal Definition of Ecocide’ (the ‘Independent Expert Panel’).
Stop Ecoside, “Top international lawyers to draft definition of Ecocide”; available at: (accessed on 30 March 2022). The panel, convened by Jojo Mehta, was co-chaired by Professor Philippe Sands QC and Dior Fall Sow. The timing for setting up the Expert Legal Panel had powerful symbolism. November 2020 marked the 75th anniversary of the opening of the Nuremberg trials of high-ranking Nazi officers following the end of World War II in 1945.
Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide –Commentary and Core Text, June 2021; available at: https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+% 281% 29.pdf (accessed on 30 March 2022).
See Polly Higgins & Damien Short & Nigel South, op.cit. in footnote 47, section entitled ‘Ecocide as the missing 5th crime against peace’.
Expert Legal Panel, op.cit, see n. 55, Introduction.
If an amendment has been accepted by seven-eighths of States Parties in accordance with Article 121(4), any State Party which has not accepted that amendment may withdraw from the Rome Statute by giving notice no later than one year after the entry into force of such amendment: see Article 121(6).