By Marsha Maghfira
According to Polly Higgins, ecocide can be defined as the act of human agency or other entities which caused extensive damage to, destruction of or loss of ecosystem(s) of a given territory. Although specific crime of ecocide had not been established yet, environmental lawyers and activists have also advocated for the incorporation of ecocide into existing laws and international instruments. This intention is based on the idea of Earth stewardship which entails that the earth is seen as “to be held in trust” and humans have the responsibility of providing the necessary stewardship in taking care of the earth. Based on the idea of earth stewardship, threats to nature can be seen as a crime of ecocide and can be punished.
The idea of earth stewardship is related to the public trust doctrine. This doctrine entails that a government should protect natural resources such as air and water necessary for public welfare and survival as well as the government’s duty to protect those within its jurisdiction. The public trust doctrine is therefore based on public trusteeship of resources within the state and provides an accountability mechanism for present generations to hold the state, as trustee, accountable for violations of these duties. Currently, these cases are only taking place under domestic law as it is possible to draw a direct link between the air and atmosphere of a particular state and its domestic constitutional provisions, but this is much more difficult on a global level.
Additional to the public trust doctrine, the principle of intergenerational equity is used as a basis for the protection of the environment and its resources for future generations. This principle defines the rights and duties of the present and future generations with respect to the use and enjoyment of natural and cultural resources as these should be passed on to the future generations in as least as good condition as they were received by the present generations. This principle applies to both the diversity of the resources as well as the general quality of the environment that is passed on.
Thus, the public trust doctrine is concerned with the clarification on the positive duty to protect citizens and the environment at this moment in time, whereas intergenerational equity is concerned with the protection of these elements in the future. As argued by legal scholars, ecocide law can then be used to enforce the obligations arising from the public trust doctrine and intergenerational equity.
Although the public trust doctrine has been referred to in domestic cases, only a few legal scholars have advocated for its adoption as a general principle of international law. The principle of intergenerational equity has been recognised in a few non-binding soft law instruments, but it is not possible to derive any rights from this principle in international law.