Robert Paehlke

Femke Wijdekop’s “Against Ecocide” is an important piece, as it explores specific institutional and political means by which we can make progress globally toward sustainability, environmental protection, and social equity. I found the discussion of the early history of ecocide as a concept particularly helpful—likewise the idea of incorporating ecocide as a fifth crime against peace as a politically plausible possibility amidst many not-so-plausible ways of achieving global change.

Adding ecocide to the Rome Statute of the ICC is still a daunting challenge, but far from the least likely way to achieve change. Perhaps the greatest challenge here is getting the large nations not party to the treaty to accept ICC jurisdiction. That will require a considerable mobilization. It will also require a fortuitous moment when the missing nations might be motivated to be on side. That, however, can be achieved, and there may be a window to do so following the scare that Donald Trump’s candidacy is casting on both America and the world. Achieving broader support for ICC jurisdiction makes adding ecocide seem easy by comparison. As Wijdekop indicates, there is already considerable global momentum in that direction.

An additional piece of that momentum is discussed in a recent book by Canadian environmental lawyer David R. Boyd, The Right to a Healthy Environment. Boyd assesses several national constitutions that have incorporated the right to a healthy environment, and he advocates for inclusion of this right in Canada’s Bill of Rights (a transformation of Canadian law first enacted under the current Prime Minister’s father).

More broadly, legal action to counter short-term political thinking is, as noted by Wijdekop, crucial. One might add that it is also necessary to counter short-term economic thinking by changing balance sheet outcomes through policy or legal initiatives. For example, we might press for granting humans and nature standing before domestic courts with regard to the costs of climate change adaptation and other long-term costs—not only in criminal actions, but also in civil law. Assisting small island communities through international agencies, as Wijdekop suggests, is important, but sufficient progress might also require cities like New York or Miami to successfully sue the oil industry and other firms for the cost of building walls to hold back rising seas.

So-called free trade treaties already allow corporations to sue governments if environmental regulations cost them money. Perhaps the citizen campaign that is needed would seek offsets that make it easier for governments (or civil society organizations) to seek costs and damages with regard to altered climate. These could include flooding, drought, or the cost to government programs of health effects (or even the cost of extra air conditioning related to excess heat). These costs can be quite accurately estimated. If even a small proportion of these future costs were passed on to those responsible, short-term and long-term corporate balance sheets might be rather drastically altered.