Can international criminal law protect the environment? – Stephanie Erian

In June 2021, a panel of legal experts convened by the Stop Ecocide Foundation (called the Independent Expert Panel for the Legal Definition of Ecocide (Panel)) unveiled a proposal to make mass environmental destruction an international crime (Proposal). The Proposal involves adding new Article 8 ter to the Rome Statute of the International Criminal Court (ICC), which would place ecocide alongside existing international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Although encouraging to see environmental protection as the focus of international legal efforts, the Proposal raises serious questions for international criminal law practitioners. Some of these are considered below. 

So, what’s the proposed definition?

The Panel defines ecocide as ‘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’ (Proposal, p 5). 

A number of aspects of the draft definition are drawn from existing international law agreements, making its construction feel more familiar. For example, the Proposal reflects the structure of Article 7 of the Rome Statute relating to crimes against humanity: the first paragraph sets out the crime, and the second paragraph defines the crime’s core elements. In terms of language, the words ‘widespread’, ‘long-term’ and ‘severe’ replicate those in Article 8(2)(b)(iv) of the Rome Statute concerning damage to the environment during international armed conflict. This article prohibits intentionally conducting an attack in the knowledge that it will cause ‘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’. New Article 8 ter would essentially extend this war crime to times of peace, and cover environmental damage that is both cumulative and alternative (‘severe and either widespread or long-term’).

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New technology, equity and the law of the sea — Aline Jaeckel and Harriet Harden-Davies

Advancements in new technologies open up new ocean industries and possibilities to explore the ocean. Some of these new technologies, such as swarms of underwater mini robots to map the seafloor or sensors on automated underwater vehicles, assist scientists in their work and produce growing quantities of ocean data. Other technologies enable us to extract evermore resources from the ocean, be it wave energy, fish, genetic materials or seafloor minerals. Still others provide new ways to conserve marine ecosystems, such as the use of satellite technologies to monitor human activity at sea and detect illegal fishing in marine protected areas. 

Given the many possibilities offered by ocean technologies, the UN Decade of Ocean Science for Sustainable Development starting this year aims to stimulate innovation and access to new technology to increase ocean exploration. Yet, whether new technology will help us achieve the UN Agenda 2030 sustainable development goal of ‘leaving no-one behind’ and contribute to positive social, environmental and economic benefits will depend on how, where, and by whom ocean science and technology is used in pursuit of ‘sustainable development’. 

This calls for research and action into how ocean science and technology can address, rather than perpetuate, inequities between states and communities. International law provides the legal framework, though it is far from perfect.  

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The Paris Agreement’s White Whale: the hunt for greater ambition on shipping emissions — Tess Van Geelen

The shipping industry is often described as the ‘backbone’ of the international trade system, accounting for up to 90% of the global trade in goods. Even after the emergence of relatively affordable and much faster air freight, shipping continues to dominate due to its high efficiency and lower cost. Shipping is also generally seen as a greener alternative to air freight. According to some studies, shipping produces up to 40 times less CO2 equivalent than air freight.

Still, the sheer size of the fleet means that shipping makes a significant contribution to climate change. Current estimates put that contribution at around 2 or 3% of total global anthropogenic emissions. Shipping also causes a variety of other types of environmental damage, including oil spills, ship strikes that kill or wound marine animals, underwater noise pollution, and the transport of invasive species between ports.

Studies project that the rate of growth in shipping is likely to overwhelm recent efforts aimed at curbing emissions from the sector. Some studies have projected a future increase in emissions from shipping of up to 250% by 2050.

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Could Australia’s Environment Minister face prosecution at The Hague for “ecocide” due to climate change inaction? – Joshua Clarke

The recent report of the UNs Intergovernmental Panel on Climate Change is the latest in a series of events building pressure on Australias climate policy sclerosis. When an expert legal panel published a definition of ecocide” in June, it grabbed fewer headlines. But this international law milestone has potential implications for leaders globally. This article examines the proposed international crime of ecocide and considers what it means for political leaders whose countries are hindering global climate action.

A series of inconvenient events

It has been quite a month for headlines with temperature-related metaphors, and the news they were delivering was grim. On 9 August, the Intergovernmental Panel on Climate Change (IPCC) released part one of its sixth assessment report. In it, the UN body found that global warming of 1.5°C above pre-industrial levels could be upon us by 2030. With this prediction, the ambitions of the Paris Climate Agreement hang in the balance. The IPCC’s message is unequivocal: climate change is happening now and it is only through immediate, steep and sustained emissions reductions that catastrophe might be avoided. UN Secretary-General Antonio Guterres called the report a “code red for humanity”. 

Efforts to combat climate change will now need to redouble. But in this global campaign, few would regard Australia as a reliable ally. A report published in July on 193 countries’ progress towards the UN Sustainable Development Goals awarded Australia a score of only 10 out of 100 for climate action: the lowest awarded for any country. Australia’s high levels of exported greenhouse gas emissions and fossil fuel use per capita, plus its failure to make progress on implementing an effective price on emissions, earned the country its rock bottom ranking. It has not helped Australia’s standing that the country still conspicuously lacks a national commitment to carbon neutrality by 2050. And with the IPCC’s latest findings that urgent action in this decade is imperative, Australia’s unwillingness to update its 2030 emissions reduction targets since they were set in 2015 reads as defiance.

In commentary on Australia’s “climate wars”, the IPCC report now dominates: will it deal a decisive blow to climate policy stagnation as COP26 — the next UN Climate Change Conference — approaches in November? In the shadow of the IPCC report, it is easy to overlook other pertinent developments of the past few months. In July, Australia’s Great Barrier Reef narrowly avoided being classified by UNESCO as a world heritage site “in danger” primarily due to the threat posed by climate change. About the same time, Australia’s Federal Court declared that the Environment Minister Susan Ley, when determining whether to approve a coal mine project, owed a duty of care to avoid causing harm to children in Australia arising from emissions of carbon dioxide into the Earth’s atmosphere. The minister has appealed, but the Federal Government has since been hit with further lawsuits challenging its decisions for failing to take climate change into account, including in relation to a forest logging agreement and a gas exploration project

Amidst this flurry of activity, one milestone reached in international law went relatively unnoticed. But perhaps in time, this significant development may come to focus minds in Canberra and around the world on the necessity for climate action. 

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What does it take to violate Article IV of the Outer Space Treaty: Looking to Artemis for the celestial answer – Manasa S Venkatachalam

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967, also known as the Outer Space Treaty (OST), has long emphasised the need to use outer space for peaceful purposes, particularly when it comes to celestial bodies like the Moon. Along these lines, it becomes important to note the spreading international acceptance of the Artemis Accords (Accords) with Australia being one of the first to sign back in 2019 and most recently, Brazil becoming the first South American nation to sign. The objective of this international effort is to promote utilisation of space resources, particularly the recovery of resources from the surface or subsurface of celestial bodies like the Moon and Mars and other objects like asteroids and comets (Section 10 of the Accords). 

In this context, there could arise a situation where these resources are applied for military purposes, which then brings up the question as to the legality of such use. Thus, is important to understand what exactly the term “peaceful” means in the context of the OST and existing customary international law (CIL).

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Book Review: Is cyber-election interference a violation of the right to self-determination? Jens Ohlin’s ‘Election Interference’ provides a valuable correction to the debate – Robert Clarke

With the deluge of spurious ‘election fraud’ claims following the 2020 US Presidential Election, the genuine issue of foreign election interference has been somewhat overshadowed. However, international lawyers should not lose sight of this emerging threat which, accelerated by new technologies, is capable of forming the basis of genuine ‘election fraud’ in the years to come.  Despite much debate in the years following the Russian disinformation campaign in 2016, international lawyers have yet to arrive at a consensus as to if, and how, international law can evolve to deal with the challenges of modern election interference.  In his timely new book ‘Election Interference’, Jens Ohlin puts aside rhetoric of ‘acts of war’ frequently invoked by sabre-rattling pundits and politicians, to investigate a number of alternative doctrines of international law that could provide the answers to these questions. This book review will consider Ohlin’s approach to the two key doctrines of international law he discusses with respect to the 2016 Russian interference campaign: non-intervention and self-determination. 

Non-intervention

Unlike other international law scholars, (see for example Michael Schmitt and Ido Kilovaty) Ohlin is sceptical that cyber-election interference constitutes a violation of the doctrine of non-intervention. To constitute a violation of this principle, interference must first interfere with a state’s sovereign domaine réservé, and second involve an element of coercion [205]. That the conduct of elections is part of a State’s domaine réservé is accepted in a general sense, as well as in the context of cyber-interference (Rule 26 Commentary [20]). However, Ohlin questions whether cyber-election interference has ‘the essence’ of the principle of non-intervention, that of coercion.

The difficulty with applying the doctrine of coercion to cyber-interference operations like that conducted by Russian individuals in 2016 according to Ohlin, is identifying who exactly who is being coerced. It cannot be said that the state itself is actually being coerced, because the results of the election will ultimately still reflect the views of its citizens, irrespective of whether they are improperly influenced by foreign meddling. Cyber-influence operations are therefore often characterised as ‘distortion rather than coercion’. 

Ohlin describes the failure of other international law scholars to properly reckon with this as reflecting a ‘teleological’ approach in the face of an ‘absence of evidence’, writing ‘information operations are not coercive simply because one hopes they are’.

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Event Re-Cap: Reflections on the International Criminal Justice System: In Conversation with David Re – Crystal Ji

The NSW Society of Labor Lawyers and the Muslim Legal Network NSW recently hosted an in-conversation event with David Re, who was the Presiding Judge of the Trial Chamber of the Special Tribunal for Lebanon (STL) from 2013 to 2021. In this role, Mr Re presided over the first international terrorism trial, which arose from the 2005 terrorist attack targeting former Lebanese Prime Minister Rafik Hariri. Three accused were acquitted, with one accused, Salim Ayyash, being convicted for his role in the attack. The judgment of the Chamber is available in full online and has previously been analysed on the ILA Reporter. Prior to being a judge of the STL (2010-2021), Mr Re was a judge of the Court of Bosnia and Herzegovina in Sarajevo (2008-2010) and a prosecutor at the International Criminal Tribunal for the Former Yugoslavia (2002-2008).

Mr Re traversed a number of topics during the course of the discussion, ranging from discussing the hybrid nature of the STL, to reflecting on the future of international criminal courts and international criminal law. Points of interest are highlighted below.

The hybrid model of the STL

The hybrid model of the STL was discussed. The STL was set up pursuant to a 2006 agreement between Lebanon and the UN and Security Council Resolution 1757, with Lebanon to pay 49% of the budget. The decisions of the STL are binding on all UN member states, given the STL’s establishment pursuant to a UN Security Council Resolution. It is a unique standalone institution with headquarters in the Hague, established there pursuant to an agreement with the Dutch government, and also an office in Lebanon, pursuant to an agreement with the Lebanese government. The STL features both Lebanese judges and international judges of different nationalities, and applies the substantive law of Lebanon while also applying international criminal procedure laws. The latter is itself a hybrid of the procedures used in civil and common law systems.

There are distinct advantages to the hybrid model of the STL, which allows international personnel to work with national personnel. These include the fact that international personnel bring money and resources, expertise, standards, witness protection, forensic and investigatory techniques to transitional justice countries that are often small, impoverished and affected by corruption. In the case of the STL, the Lebanese judges who were appointed could see what the procedures and standards are in the international legal system, and the international judges could safeguard the maintenance of independence and impartiality of the STL’s judicial decision-making.

However, the limitations of the model were also discussed. Although the judges are able to maintain independence and impartiality, there are forces that may have shaped the prosecutorial effort at the investigative stages of a trial. Choices as to which aspects and persons to investigate over others are entirely outside the judges’ purview, as are decisions as to who to name in the indictment. Questions about why the indictment for the trial Mr Re presided over did not extend wider or higher up the chain of command of Hezbollah remain unanswered. 

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Punching Up or Down: International Law’s Fraught Relationship to History As Illustrated Through Cultural Heritage – Lucas Lixinski

The “turn to history” in international law makes us more aware of our role in creating the history with which we grapple. Cultural heritage law in particular plays a direct role in making and querying the historical record, and recent controversies in Australia surrounding the destruction of Indigenous heritage and the obstinate protection of colonial heritage showcase our responsibility in ‘selecting’ the past for the benefit of present and future generations. Australian can and should do better, and international law offers tools to help us make better choices about the history we protect.

International law has long had a difficult relationship with the past. While many international lawyers fancy themselves historians, with a much-discussed “turn to history” in international legal scholarship, there is not enough recognition that international law freezes history in time, erases difficult pasts, and allows us to perpetuate injustice at home and globally. Cultural heritage law illustrates this relationship in vivid detail, while also making it clear that the law still has a role it can play in constructing a better present and future on the basis of that past. As Anne Orford argues, we have a role in using history to make, rather than simply understand, international law.

In Australia, two examples underscore the inconsistencies of international law’s relationship to history: first, the destruction of Juukan Gorge, which, decried as it was, was not illegal at the time it happened; and second, the calls for the tearing down of Captain Cook monuments, which are in fact illegal.

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Space Debris: A Major Challenge for the Future of Humanity – Steven Freeland

This piece describes the challenges posed by the increasing proliferation of orbital space debris, as well as debris falling back to Earth. It describes how a ‘business as usual’ case going forward threatens to result in outer space becoming less accessible and navigable, thus compromising future space activities. It describes the existing legal and governance frameworks that has been developed at the international level to address issues around space debris, concluding that more needs to be done if we are to maintain space as a sustainable area for the benefit not only of current, but also future generations.

Space is Ubiquitous and Critical

Over the past six decades, space-related technology has revolutionised the world we live in. Beginning in the 1950s/1960s with an initial focus on Government-led military and scientific activities, space has also become a very significant commercial sector, estimated in 2020 to be valued at $US385 billion, and growing at a significant rate (even during the COVID-19 period), far exceeding the growth of the broader global economy. In Australia, the Australian Space Agency is working towards a goal of facilitating the growth of the Australian space economy to reach $A12 billion by 2030.

Our use of outer space has developed to the point where it now plays an essential role in everyday human activities across the globe. You and I ‘use’ space many times a day in many different ways without even thinking about it. Space is ubiquitous and virtually every country on the planet requires access to some form of space technology, and the data it produces, as essential elements of its critical infrastructure. Seen in this light, a (theoretical) ‘Day Without Space’ would have significant negative consequences for every country, every community, every human on Earth. Indeed, the functioning of society as we know it would, in many respects, cease.

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Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties – Adeyinka Adegbite

To highlight the opportunity which the Draft Articles on Prevention and Punishment of Crimes Against Humanity present for progressive development of international criminal law, Adeyinka Adegbite outlines how the Draft Articles contribute to enhanced inter-State cooperation and capacity of national legal to prevent, prosecute and punish crimes against humanity.

Background to the Draft Articles

The motivation for developing the Draft Articles on Prevention and Punishment of Crimes against Humanity (‘Draft Articles on Crimes against Humanity’) by the International Law Commission (ILC), the expert body of the United Nations (UN) with responsibility for developing and codifying international law, was an awareness of the imperative to create a single international legal instrument which provided for the incorporation of the definition of crimes against humanity in national laws; imposed obligations on States to prevent the commission of crimes against humanity; and, conferred national jurisdiction to prosecute perpetrators of crimes against humanity. The first report of the ILC Special Rapporteur for the crimes against humanity stream of work in 2015 initiated what would later become the Draft Articles on Crimes against Humanity.

The comments of the government of States, including Australia, and other UN special agencies and international non-governmental organisations enriched the body of texts aimed at developing the law on this particular category of international crimes. It is important to note that the Charters, Statutes and instruments setting up International Criminal Tribunals, namely the International Military Tribunals for Nuremberg and Tokyo and the International Criminal Tribunal for Former Yugoslavia, among others, included a description of the crimes regarded as crimes against humanity. These provisions were further developed following the entry into force in 2002 of the Rome Statute of the International Criminal Court (‘Rome Statute’).

Article 7(1), (2) and (3) of the Rome Statute set out crimes against humanity as one of the categories of international crimes within the jurisdiction of the International Criminal Court (ICC). The Rome Statute appears to be richer in the provision concerning the category of crimes against humanity when compared with the earlier instruments of International Military Tribunals (IMT), as the definition of these crimes under the Rome Statute are broader in scope. 

Further, the principle of positive complementarity, a novel provision of the Rome Statute in Article 17, lends a two-pronged approach to the prosecution and punishment of crimes against humanity. The principle was a departure from the approach the IMT instruments, which gave priority to the jurisdiction of the IMTs over national jurisdiction. In further emphasising the importance of national jurisdiction, especially where the legal and judicial structures are available and the State is willing and able to undertake such prosecution, the ICC may offer assistance to the prosecuting State to the extent that the perpetrators of these crimes are prosecuted. Whilst a State shall cooperate with the ICC under Article 93(1), Article 93(10) imposes a discretionary duty on the ICC to cooperate with a prosecuting State, stating that the ICC may, upon request, cooperate and provide assistance to a State Party. Nonetheless, the recognition given to national jurisdiction is indeed very admirable. 

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