Ecocide and the ‘polluter pays’ principle: the case of fracking

Karen Hulme and Damien Short assess the effectiveness of economic instruments for the prevention of environmental damage.

It seems as though the environment is subjected to attacks on its integrity and its viability on a daily basis. In the 1970s the term ‘ecocide’ was coined to describe attacks from military sources, such as the use of chemical defoliants in Vietnam. Today, similar levels of harm are more routinely caused in the name of development and the search for cheap energy sources, one example being the scramble for new oil and gas resources. The 1970s notion of ecocide has recently been revived with suggestions of elevating large-scale
environmental destruction to the level of an international crime. But how does this notion of holding an individual or company accountable for an environmental crime relate to other mechanisms for holding the polluter to account, such as the economic notion of accountability inherent in the ‘polluter pays’ principle? According to legal scholar and environmental activist, Polly Higgins, ‘ecocide’ refers to:

Dart Energy CBM drilling well in Farndon, Chester

Dart Energy CBM drilling well in Farndon, Chester

“the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.” (Higgins, 2010, p.63) [i]

Higgins views ecocide as a potential fifth international crime, after genocide, the crime of aggression, crimes against humanity and grave war crimes. Her notion is intended-as was the original proposal which dates back to the 1970s-to cover times of both conflict and peace, and today she has in mind the environmental destruction that accompanies such extreme energy processes (often called unconventional sources). This includes oil production from tar sands[ii], mountain-top removal, deep-water drilling and, potentially, the family of extraction processes involved in the production of shale gas, coal-bed methane (CBM), tight oil and synthetic gas (syngas) known colloquially as ‘fracking’ (hydraulic fracturing). Could fracking potentially produce ecocides and what is the benefit of criminalising such harm versus the traditional economic method of holding the polluter to account?

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Professor Karen Hulme specialises in environmental issues in armed conflict and environmental human rights. She acts as an environmental rights consultant with the Essex Business and Human Rights Project (EBHR), based in the Law School and Human Rights Centre at the University of Essex.

Dr Damien Short is Director of the Human Rights Consortium at the School of Advanced Study, University of London. He specialises in indigenous peoples’ rights, genocide and
ecocide studies.

[i] Higgins, P. (2010) Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet. Shepheard-Walwyn, London.

[ii] Husemann, J., and Short, D. (2012) A slow industrial genocide: tar sands and the indigenous peoples of northern Alberta. The International Journal of Human Rights, 16 (1), pp. 216–237.

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