As a specialist in environmental ethics, how do you view the proposal by the Citizens’ Convention on Climate (CCC) to legislate on ecocide?
At first glance, it’s an appealing proposal. It’s important to punish the destruction of nature. But when we look more closely at the issues related to ecocide, things become less clear-cut.
We have to re-examine the context in which the term first appeared. It was the United States Army that was first accused of ecocide, after it started spreading massive amounts of Agent Orange on the forests of southern Vietnam. At the time, it was an act of war aimed at deliberately destroying an environment and its inhabitants. It had three characteristics: it was an attack on living environments—in other words systems in which human and non-humans were interdependent; there was a conflict situation; and, finally, it was an intentional action, which in my view is the most important aspect.
That’s why I agree with the notion of ecocide put forward by the law professor Laurent Neyret: in a report submitted to the French Minister of Justice in 2015, he defined ecocide as “intentional acts committed in the context of a widespread and systematic action that have an adverse impact on the safety of the planet.” But it’s not that often—especially in peacetime—that the destruction of inhabited or uninhabited environmental complexes is intentional. This is probably what led the CCC to include the “tort of negligence” in its proposals. It’s a matter of putting a decisive end to acts of negligence that occur when one should have known better but acted as if in ignorance. Tort of negligence can be a good argument when there is no intentionality but a serious offense has been committed.
But you have some reservations?
I question using lawsuits for problems that are structural and that should be treated by policy. In an essay entitled Punir – une passion contemporaine (“Punishment – a Contemporary Passion”), Didier Fassin mentions “populisme pénal” (“populism based on legal action”). Take the “citizen tribunal” held in The Hague in October 2016 against Monsanto. That company was accused, in a purely symbolic way, of the crime of ecocide. But what can this type of conviction lead to? Once the leaders of one multinational company or another are convicted and sent to prison, others will take their place.
It makes me think of a remark by Tacitus, about Roman history, often quoted since then (notably by Spinoza): “All blows are dealt to tyrants, and none to tyranny.” It’s not through criminal law that we can achieve reform. Criminal law condemns only extremes, whereas we should address the basic functioning of a system based on continued exploitation of natural resources.
Ecocide raises the question of the rights of nature. How, in a few decades, have non-human objects gradually been granted legal status?
A founding idea of Western modernity was that only human beings were moral subjects and endowed with rights. One of the pioneering approaches that turned this idea on its head was developed by the legal expert Christopher D. Stone in a very well-argued essay in 1972, in which he asked whether trees should have legal rights. At the time, a lawsuit had been brought against the Disney company, which was seeking to establish a winter sports resort in the Sierra Nevada, by an environmental organization, the Sierra Club. The California Court of Appeals dismissed its claim on the grounds that it was not personally harmed. Christopher Stone replied that non-natural objects should be able to benefit from rights, as they are no longer just objects, but subjects. In doing so, he challenged the well-established distinction between humans and non-humans.
The issue evolved later, to a matter of not only recognizing the value of natural objects taken one by one, like the trees mentioned by Stone, but also living environments shared by both humans and non-humans. In 2017, New Zealand granted the status of legal person to the Whanganui River following a long-waged battle by the Maori tribe who lived on its banks and whose intellectual tradition rejected the dualism that separates human beings from the natural environment in which they live. That decision is a kind of hybridization between what anthropologist Philippe Descola calls Maori “ontology” and Western law. It marks an evolution towards a different conceptual framework.
What is that different conceptual framework?
To speak of the “intrinsic value of nature”, as was very common in environmental ethics in the 1970s, was to consider that natural objects had value in and of themselves, apart from human presence. But, as the legal expert Marie-Angèle Hermitte points out in Le Droit saisi au vif (“The Law, Examined as it Happens”), there is nothing subversive about granting legal status to natural objects. It’s just a matter of expanding the scope of subjects, without questioning the founding categories of Western law and the anthropocentric conception of nature on which it is based.
We now talk more holistically, and we recognize the importance of relationships between humans and non-humans. The philosopher Baptiste Morizot provides an example of working on this type of ethics in Les Diplomates, (“The Diplomats”), which reflects on how we can live with wolves.
Does this perspective lead to the idea of “commons”, as the economist Elinor Ostrom worked on, for example?
When understood as resources managed collectively by self-organized communities, commons, as studied by Elinor Ostrom, can indeed be considered as living environments. But Ostrom’s perspective remains that of an economist who treats common goods in terms of resources, an approach that maintains the dualism already mentioned.
The legal expert Sarah Vanuxem, author of La Propriété de la terre (“The Ownership of Land”), prefers, on the other hand, to question the notion of property. Rather than considering ownership of a space as meaning absolute power to subjugate it, she sees it as putting into action the natural ability to inhabit a space and to appropriate it in the sense of “adapting to it”, a process which involves cohabiting with non-humans. What’s interesting is that her reflection is based on an interpretation of the French Civil Code. “There’s no need to tear down our law system to aid in the ecological transition,” she says, “as long as we can reactivate some of our environmentally virtuous institutions and legal solutions.”
Between politicians, judges, NGOs, scientific experts, and members of a participatory assembly (such as the CCC), who can best embody the general interest in order to put ecological transition into motion?
In representative democracies, it’s up to elected delegates to represent the general interest. The judiciary, on the other hand, deals with individual cases.
However, on ecological issues, the political balance of power is tilted toward the interests of special groups—in the French case, for example, of lobbies such as the National Federation of Agricultural Holders’ Unions. So, the judicial arena can conversely also be a way of maneuvering in favor of the general interest. In Justice pour le climat (“Justice for the Climate”), Judith Rochfeld interprets the increasing number of climate-related lawsuits as the creation of “diffuse communities”: the citizens who go to court do not participate in a global government, but they are all driven by a common concern.
Another major problem in the emergence of the general interest is the degree of knowledge and mastery of the issues. On the environmental issues for which scientific data are so important, those who produce it are viewed as experts. While scientific method consists of gradually developing hypotheses and testing them until a certain consensus is reached, the scientific community is being enjoined by both politicians and civil society to settle once and for all what’s “true” and what’s not. We’ve seen this during the COVID-19 crisis.
What then is the right answer for considering ecocide through the law?
The only right answer is to promote a pluralistic approach and not to be satisfied with one single appreciation. Citizens’ conferences, like the CCC, prove that when people are chosen at random, they are not immediately caught up in vested interests or conflicting ways of thinking. They know how to use their mind and conscience to reflect. But they have to be provided with pluralistic information. That would be my criticism of the CCC: on an issue as controversial as ecocide, I’m not sure that the members of the assembly were really presented with conflicting opinions.
Interview conducted by Emmanuelle Josse