Rights of Nature and Ecocide: A Literature Review
By Elena Tiedens
The Rights of Nature movement recognizes the intrinsic right of natural beings, from animals to rivers and mountains, to exist. Building upon Christopher Stone’s 1972 article “Should Trees Have Standing?”, lawyers and legal thinkers across the world have sought to ingrain the Rights of Nature into law. For instance, in 2008, Ecuador became the first country to add the rights of “Pachamama” or “Mother Earth” to its constitution.
Much like in Ecuador, most Rights of Nature legal efforts are intended to operate as constitutional amendments or within civil law. However, another concept of the Earth law paradigm, ecocide, addresses environmental harms through criminal law. The UK-based non-profit Stop Ecocide International is working with a coalition of lawyers, activists, and diplomats to lead a campaign to add ecocide to the Rome International Criminal Court’s crimes against peace. Following a definition from the Independent Expert Panel for the Legal Definition of Ecocide, Stop Ecocide International defines the term as follows:
“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.
Lawyers and activists have reckoned with the similarities and differences between the legal philosophies of the Rights of Nature and ecocide. Some scholars see Rights of Nature and ecocide as distinct concepts, while most understand ecocide to be an expansion of existing Rights of Nature theory into criminal law.
Dovetailed Concepts
Climate journalist Katie Surma understands Rights of Nature and ecocide to be distinct but “dovetailed” concepts—Rights of Nature more broadly applicable and ecocide only relevant to extreme environmental disasters. In a 2021 article, “Does Nature Have Rights?”, she focuses on the origins and development of Rights of Nature laws, primarily reporting on a 2020 referendum in Orange County, Florida that successfully implemented a provision on the Rights of Nature into the Republican county’s mini-constitution. “While the crime of ecocide would outlaw only severe environmental destruction, rights of nature laws aim to protect against more commonplace acts, like government permitted pollution,” notes Surma. “The concept has raised the question: What level of human impact on nature is acceptable?”
Surma’s article, being journalism rather than legal scholarship, does not pursue this question further. But the question potentially subverts the value of a legal designation of ecocide if such a designation allows for continued levels of environmental destruction beyond what most Rights of Nature proponents would condone. There is thus an implication that Rights of Nature may be a more productive legalistic approach than ecocide in addressing modern environmental destruction.
Ecocide: Applying Rights of Nature to Criminal Law
Whereas Surma’s article leaves at least some room to consider ecocide as distinct from Rights of Nature, a more common trend in the literature is a version of ecocide that expands the principle of the intrinsic Rights of Nature to criminal courts. Legal scholar Anastacia Greene argues that the criminal legal framework of ecocide can better prosecute Nature’s violators. Although Greene lauds the potential of Rights of Nature laws, she shows that even in countries with Rights of Nature ingrained into their federal legal system, environmental destruction has continued. She specifically cites an example from Ecuador in which, despite a court ruling in favor of the Vilcabamba River against a construction company, waste from the construction site continued to permeate the river. Greene posits that the criminal consequences of an international ecocide designation will provide a better legal mechanism for stopping environmental exploitation than constitutional and civil Rights of Nature laws. Ecocide, then, builds on existing Rights of Nature laws to heighten the consequences for Nature’s infractors.
Much like Greene, legal scholar Adithya Variath also views ecocide as a criminal legal framework for furthering the Rights of Nature. In fully adopting the philosophical underpinnings of the Rights of Nature movement, Variath argues that criminalized ecocide provides a more serious mechanism for addressing violations of Nature’s rights. Variath also offers a textured history of ecocide, beginning with American scientist and activist Arthur Galston’s early usage of the term in reference to America’s assault of Vietnam with Agent Orange, and offering further examples such as dangerous temperature and sea level rises in modern India. Variath urges the ICC to declare ecocide as the fifth crime against peace—alongside genocide, crimes against humanity, crimes of aggression, and war crimes—arguing that this designation would produce better channels by which to prosecute environmental offenders. An international embrace of the criminal offense of ecocide would give Nature rights at a crucial time in global history, as the Anthropocene comes to dictate more and more aspects of modern life.
Speaking further to the entwinement of humans, the Rights of Nature, and ecocide, Ann Steiner contends that a criminal designation of ecocide would protect not only the Rights of Nature but also human rights. Steiner first focuses on human rights through the context of Rights of Nature law. She primarily demonstrates how Rights of Nature laws in Latin America have prioritized poor Indigenous women, who disproportionately rely on rivers and other natural landscapes. For example, Indigenous women in Peru sued on behalf of the Marañon River in order to protect the river and themselves against pollution from an upstream oilfield. Recent developments since Steiner’s 2022 article have shown her inclination to be correct, as a Peruvian court ruled in favor of the rights of the river in part because the plaintiffs were a coalition of Indigenous Kukama women who hold that their ancestry extends back to the river. The judge even extended co-guardianship of the river to the Kukama women’s federation as part of the ruling. Although the case is still in appeal, Steiner takes it as evidence that prioritizing the Rights of Nature simultaneously prioritizes the rights of marginalized peoples.
Moving from Rights of Nature decisions like that of the Marañon River case to ecocide, Steiner implicitly claims that the social imperative of Rights of Nature laws would become a criminal matter if the ICC adopted ecocide as a crime against peace. Steiner is less explicit than Greene and Variath in holding ecocide as an extension of Rights of Nature, but she valuably considers the entangled role of human rights in constitutional, civil, and criminal prosecution of environmental crimes.
Steiner’s article also adds to the literature on ecocide through her analysis of laws against environmental crimes implemented around the world. In 2021, France passed a law that not only criminalized “serious and lasting damage to the health, flora, fauna, or the quality of air, soil, or water,” but also required its government to take steps to recognize ecocide as an ICC crime against peace within a year. Also in the European context, in 2024, Belgium passed a law that explicitly defined and criminalized ecocide—setting a maximum prison sentence of 20 years, compared to France’s 10 years. The increasing European recognition of ecocide demonstrates the ways in which, even without an ICC recognition, the Rights of Nature are permeating national legislatures. Both national and international law on ecocide is rapidly developing and reflects a growing legal reckoning with the Rights of Nature.
Ecocide as a Narrative Building Tool
Although the literature largely has it that a legal embrace of ecocide would be a meaningful expansion of the Rights of Nature through criminal courts, other activists and writers emphasize the role of ecocide in global narrative-building. Legal researcher Femke Wijdekop, for example, urges caution around assuming what the legal outcomes of an ICC-designated ecocide would be, yet sees the designation as a tool for a successful ecocentric paradigm shift. Wijdekop warns that for all crimes against peace, the ICC has limited enforcement mechanisms. Additionally, the US, Russia, China, and India are not members of the ICC, rendering the ICC powerless in addressing ecocide driven by the world’s most serious violators of nature. In addition to the issues with an international embrace of ecocide, national criminalization of ecocide, including Belgium’s much lauded new law have, according to law professor Kevin Jon Heller, fallen short of Stop Ecocide International’s recommendations. For instance, whereas Stop Ecocide International’s definition includes a couple of key “or” phrases—“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—the national laws require ecocide to be both serious and extreme, and only apply it to illegal acts. This designation severely restricts the actions that would constitute ecocide. Despite these limitations, at least at the international level, Wijdekop encourages the addition of ecocide to the ICC in order to create an international framework and narrative for acknowledging the seriously destructive nature of human violations of Nature across the world.
Similarly, in her podcast on ecocide and the Rights of Nature, Swedish ecologist Pella Thiel posits the value of the intertwining concepts of the Rights of Nature and ecocide not only in initiating real legal change but also in shifting the global paradigm to address the environment with an ethic of care and respect.
Conclusion
Most authors to date view ecocide as a helpful extension of Rights of Nature theory into criminal law. Of course, there would be limitations in the ICC’s enforcement against ecocide, but the move to include ecocide as an international crime against peace nonetheless advances the global narrative on the Rights of Nature. Already, laws against ecocide in France, Belgium, and other countries around the world provide deeply imperfect but useful frameworks for implementing ecocide into national and international law.
