In December 2022, the United Nations Biodiversity Conference in Montreal (COP15) agreed goals and targets to protect ecosystems over the next decade. How is the UK Government doing on its promise to deliver an ambitious environmental programme to halt the decline of biodiversity by 2030? Legal geographer and part-time PhD student, Jodie Bettis, suggests further law reform will be needed if we are to better protect ecosystems in England.
Campaigners have long been calling for the introduction of international ecocide law to provide the legal means to conserve our remaining global ecosystems (Higgins, 2015). There is a question as to whether ecocide law might also better protect English ecosystems - think rivers killed by sewage or seabeds destroyed by trawlers.
Surely, the UK has laws in place to safeguard these natural ecosystems in England? My PhD research suggests it does not. Scholarly and political interest in what constitutes ecocide law is definitely increasing but there is little detail on how the criminalisation of ecocide manifests for English ecosystems.
What is ecocide?
Ecocide is defined as the destruction of a natural environment, or very great damage to it. The principles of ecocide law encompass elements of constitutional rights of nature and criminal prohibition of acts of ecological destruction (Gray, 1996; Humphreys, 2015; Boyd, 2017; Greene, 2019), where the victim – the ecosystem – is both the bearer of fundamental rights and the victim of crime (Cullinan, 2002). These principles have been codified disparately across fourteen countries worldwide but the UK is not one of them (Gauger et al., 2012; Putzer et al., 2022).
Environmental law after Brexit
Even after enactment of three post-Brexit environmental laws – the Agriculture, Fisheries, and Environment Acts – ecosystems, their rights, and criminalisation of their destruction have yet to be explicitly recognised. Despite several attempts by members of the House of Lords to strengthen the Environment Bill in debate, opportunities to rectify these omissions were missed.
Nonetheless, the Environment Act was hailed by Defra to be world-leading and ‘set to deliver the most ambitious environmental programme of any country on earth’. It does contain general duties on both public and private sector bodies to enhance biodiversity and reduce pollution in air and rivers (Sec.102 and Sec.83 respectively) but as secondary legislation in the form of regulations has yet to be appointed, even these limited provisions remain prospective.
To make matters worse, much of our pre-Brexit environmental law is currently subject to repeal or alteration via government bills currently making their way through Parliament. It is unclear what the environmental law landscape will look like once the Retained EU Law (REUL) and Levelling Up and Regeneration Acts have felled the targeted 570 pieces of EU-derived environmental legislation. What is likely is that the triumvirate of post-Brexit legislation will be the only law left to provide the legal framework to protect English ecosystems; a framework which is blind to their existence.
Two routes, one destination
Law reform to protect English ecosystems is still possible and could come about in two ways: the UK could await international pressure or seize domestic opportunity. If the campaign to recognise ecocide as an international crime in the Rome Statute succeeds, HM Government would be capacitated to criminalise ecocide and devolve regulation of ecosystem protection to national authorities.
Alternatively, civil society or local councils could pressure national authorities to recognise the rights of ecosystems. Like the bottom-up process of EU harmonisation of national laws (Klamert, 2015), standardisation of a rights-based approach could see devolved administrations working together on a UK Ecocide and Rights of Nature Act.
A long way to go
Regardless of the route by which legal protection arrives and given the incentive afforded by the ecological emergency, preparations should be expedited. To establish a coherent body of law, it is desirable to connect criminal and constitutional conditions of ecocide into a single Parliamentary Act thus providing two routes of enforcement to the same normative outcome - that of better legal protection for English ecosystems.
Like the part-time PhD journey I am on, the road to codification of ecocide in English Law is a long one. And we’re not there yet.
Jodie is a Grand Union Scholar and Postgraduate Researcher in the Department of Geography and Environmental Studies in the Faculty of Arts and Social Sciences at the Open University.
An OU alumnus, Jodie holds a Diploma in Pollution Control, a BSc (Hons) Open, and an MA in Environment Policy; qualifications she completed whilst working in industry as a soil scientist and for third sector coalitions on international and national environmental campaigns.
Jodie’s current research is on the protection of English ecosystems through the introduction of ecocide and rights of nature law. Her ESRC-funded project assesses post-Brexit environmental legislation for alignment with principles of ecocide law and explores pathways to the criminalisation of ecocide in England.
You can follow Jodie on Twitter @jodie.bettis