- Naomi Manoj & Hayden D'souza
The Independent Expert Panel for the Legal Definition of Ecocide (IEP) defined ecocide as the wanton or unlawful acts committed with the knowledge of the substantial likelihood of long term or widespread harm to the environment. Implicit in the allegations of anthropocentrism is the idea that ecocentrism offers a better way forward, but this discussion rests on a false dichotomy. Untangling the notion of anthropocentrism requires reckoning with its colonial roots, Western-centric practice, and the side-lining of indigenous groups. What this reveals - and what I will argue in this essay - is that painting the debate as "anthropocentric versus eco-centric" ignores crucial questions like who benefits from anthropocentrism as it is practiced, and whether it is possible to build a symbiotic relationship with nature outside this binary.
Fourth World Approach to International Law (hereinafter referred to as ‘FWAIL’) offers an active voice and representation to native indigenous communities who have been side-lined and victimized by exploitative national law and international law. It has offered to provide an alternative solution for preserving biodiversity and construct a collective resistance to western domination in international law. In this paper, I argue that the anthropocentrism in the draft ecocide bill fails to engage with FWAIL. This will be done by establishing that the definition as proposed by the panel is anthropocentric and waters down the idea of ecocide [I]. Thereafter, I argue that the definition overlooks existing injustices and perpetuates discrimination against marginalised and indigenous sections of society [II]. The paper emphasizes the need to look at cultures that have been disregarded in a debate dominated by an idea of anthropocentrism rooted in European ideals.
II. ANTHROPOCENTRICISM VERSUS ECOCENTRISM
Anthropocentrism is the philosophical viewpoint that perceives the value of all non-human organisms in relation to the benefits they provide to mankind. It views humans as having the most intrinsic value and is premised on the belief of human supremacy. Ecocentrism, another perspective underlying environmental attitudes, is positioned in the idea of valuing nature for its own sake.
In the definition proposed by IEP, a distinction is drawn between lawful and unlawful acts which cause devastation to the environment. The former is subjected to a ‘wantonness’ requirement that must be satisfied failing which it will not be criminalized. ‘Wanton’ is described as the ‘reckless disregard’ for devastation which would be in clear excess to the economic and social benefits that have been anticipated. The ‘wantonness’ requirement directs lawful acts which result in the devastation of the environment to a cost-benefit analysis located in anthropocentrism. This does not take into consideration lawful acts that involve significant likelihood of causing long-term or widespread environmental damage simply because they are anthropocentrically beneficial.
The distinction between lawful and unlawful acts does not account for the vast majority of lawful acts that cause environmental damage. Sometimes the government itself is responsible for the destruction of the environment. The anthropocentric cost benefit analysis decriminalizes state actions that would otherwise fulfil the definition of ecocide. Therefore, permitting infliction of severe damage knowingly on the environment, provided anthropocentric benefits are created, unjustifiably waters down the concept of ecocide. . While it has been argued that eco-centrism fails to distinguish between legitimate and illegitimate human interests, this distinction posed by the conception of ecocide allows harmful exploitation of the environment in lieu of anthropocentric benefits.
The panel by including an anthropocentric escape valve conceptualizes an unjustifiable distinction between acts that are beneficial and non-beneficial. The middle path adopted raises the question of whether knowingly destroying the environment can be incriminated only if it does not benefit humans as per a cost-benefit basis. It continues to consider devastation of the environment in relation to the effect it has on humans thus preventing courts from considering the nature of harm inflicted to ecosystems.
III. THE INTERACTION BETWEEN ANTHROPOCENTRISM WITH FWAIL
In the previous section, I established the anthropocentric framework of the proposed definition. This positive affliction of viewing ecocide in relation to an anthropocentric cost benefit analysis invites the risk of legitimizing the colonization of the planet. Here, it is crucial to examine how the concept of anthropocentrism materializes and affects some humans more than others.
Anthropocentrism and the concomitant institutional and societal tendency of pitting nature against humanity is rooted in European modernity. This tendency delineates onto classic ideological categories of civilized versus barbarian and subject versus object. This legitimises the destruction of the natural world and creates a space where indigenous rights are contested. . FWAIL scholars have routinely demonstrated that the colonial encounter is central to the conceptualization of international law and forms the premise of doctrines particularly that of sovereignty. More importantly, FWAIL scholarship suggests that existing legal practice and discourse can be traced to colonialism and patterns of exclusion, premised on ‘othering’ and the classification of the ‘other’ as primitive.
The proposed definition of ecocide, which is drawn from anthropocentrism, does not acknowledge environmental injustice and environmental racism at all levels. Environmental pollution is rooted in colonialism and environmental racism. Just as pollution is concentrated in the most impoverished societies, toxic waste sites tend to be crowded near minority or poor countries within Western nations. Environmental injustice has long term, disastrous effects on indigenous and already marginalized communities. For instance, the Indian Power Ministry’s plan to develop hydroelectric dams to increase production of energy in the Himalayan states was met with harsh criticism from the Lepcha Indigenous youth in North Sikkim. A state-sanctioned development agenda that did not serve the interests of the community was criticised. This was amid growing condemnation of the government’s inability to create employment opportunities for the indigenous community overwhelmed by endemic poverty and deprivation.
This resistance effort illustrates how environmental justice can be found in struggles advancing decolonization in Indigenous political strategies. Shifting the abstract idea to the practical reality of hierarchies that play out in the western conception of anthropocentrism helps demonstrate the problematic assumptions in legal proposals aimed at protecting the environment. This is the first and foremost step required for rethinking and conceptualizing what justice for ecological harms mean.
The proposed definition does not provide space for recognition of the harms that originate from the denial of access to resources. The formalization of ecocide runs the risk of conceptualizing environmental justice without placing due regard on the marginalized and indigenous groups inhabiting these spaces. The failure of taking cognizance of FWAIL brings in a very real fear of excluding those who are victims of environmental injustice. The imbalance of power, a cause and consequence of unequal access to resources, within and among developing and developed nations is maintained in the current archetype. In the absence of an explicit acknowledgement of the relationship between ecocide and environmental injustice and racism, the anthropocentric cost benefit analysis should be removed in its entirety. The debate on anthropocentrism in environmental justice must be framed first as a fight for indigenous sovereignty. This is imperative to ensure that crimes in which the greatest harm is to the marginalized and the environment are not neglected.
The demand for a law of ecocide entrenched in eco-centrism may help in expanding our understanding of the nature of violence and environmental injustice. To facilitate this understanding as articulated by Johan Galtung, it is crucial to adopt an approach that acknowledges and codifies the cultural and systemic violence associated with the industrial mode of production and organization. A radical step towards the decolonization of international law by engaging with marginalized and subaltern cultures may pave the way for the realization of a new definition of ecocide. Such an interaction is likely to create a definition which provides for a reconciliation between anthropocentrism and ecocentrism. Thereupon, the restoration and subsequent maintenance of socio-ecological systems, including the protection of local knowledge systems, may be achieved. The potential solutions brought in by FWAIL and its intersection with ecocide are, however, beyond the scope of this essay.
The draft bill attempts to walk the tightrope between protecting biodiversity and safeguarding anthropocentric benefits. In doing so, it addresses neither the mass damage and destruction of ecosystems nor damage caused by localized individual acts. In conclusion, the anthropocentrism of the definition as it stands must be removed in its entirety to prevent injustices to the environment , in addition to poor and marginalized communities within developed and developing countries. This paper addresses only the existence of anthropocentrism in the definition and its subsequent effect on nature and marginalized communities. A possible solution is the anthropocentrism rooted in FWAIL as one that seeks to preserve nature without it being contingent on human gains.
Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide, (2021) https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf accessed 12 July 2021  Hiroshi Fukurai, 'Fourth World Approaches To International Law (FWAIL) And Asia's Indigenous Struggles And Quests For Recognition Under International Law' (2018) 5 Asian Journal of Law and Society.  Ibid.  Helen Kopnina and others, 'Anthropocentrism: More Than Just A Misunderstood Problem' (2018) 31 Journal of Agricultural and Environmental Ethics.  Anastacia Greene, ‘The Campaign to Make Ecocide and International Crime: Quixotic Quest or Moral Imperative?’ (2019) 30 Fordham Environmental Law Review  Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide, (2021) https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf accessed 12 July 2021  Samson Imasogie Omofonmwan and Lucky Osaretin Odia, ‘Oil Exploitation and Conflict in the Niger-Delta Region of Nigeria’ (2009) 26 Journal of Human Ecology  Peter Doran, Rachel Killean, Mary-Carmen McDermott, Karina McErlean, Lydia Millar and Stephanie Rodgers, ‘Criminialising ‘’Ecocide’’ at the International Criminal Court’ (2021) EJNI Student working paper series No.1 https://ejni.net/wp-content/uploads/2021/04/Student-Working-Paper-1-QUB-Ecocide.pdf accessed 12 July 2022  Amar Bhatia, ‘The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World’ (2012) Oregon Review of International Law  Fukurai (n 2)  Cynthia D. Moe-Lobeda, ‘Climate Change as Climate Debt: Forging a Just Future’ (2016) Journal of the Society of Christian Ethics  Eliana Cusato, ‘From Ecocide to Voluntary Remediation Projects: Legal Responses to ‘Environmental Warfare’ in Vietnam and the Spectre of Colonialism’ (2018) Melbourne Journal of International Law  Kachyo Lepcha, ‘Can the Movement Against Hydropower Proejcts in Sikkim be Reactivated?’ (EPW, 2018) https://scholarblogs.emory.edu/postcolonialstudies/2020/01/21/environmental-colonialism/ accessed on 12 July 2021  Lepcha (n 12).  Carly Krakow, ‘Legally Defining Ecocide: Implications for Addressing Environmental Racism and Prioritizing Human Health in International Law’ (OpinioJuris, July 2021) <https://opiniojuris.org/2021/03/17/legally-defining-ecocide-implications-for-addressing-environmental-racism-and-prioritizing-human-health-in-international-law/> accessed 12 July 2021  Peter Doran, Rachel Killean, Mary-Carmen McDermott, Karina McErlean, Lydia Millar and Stephanie Rodgers, ‘Criminialising ‘’Ecocide’’ at the International Criminal Court’ (2021) EJNI Student working paper series No.1 https://ejni.net/wp-content/uploads/2021/04/Student-Working-Paper-1-QUB-Ecocide.pdf accessed 12 July 2021  Ibid.  Ibid.