Recently, the France National Assembly has approved the fiercely debated Climate and Resilience bill (“bill”), commemorating it as a ray of optimism amid the pandemic. The bill came on account of a foiled move of increasing fuel prices in order to reduce carbon emissions that led to the massive protests in France (Yellow Vest Movement.) The bill is staged to cut greenhouse emission by 40 percent till the year 2030 and will help President Macron’s with his green credentials in the coming elections.
The author, in this piece, will try to demonstrate the controversy surrounding the bill, explicate what is ecocide and will accentuate the grey areas of the bill.
Discord surrounding the Bill
The bill, initially drafted by the Citizen’s Climate Convention (“council”) of 150 people, after going through fundamental changes, drew wide flak from both opposition and assembly members, after tabled in the house.
Firstly, the assembly and many jurists around the world, attract the provisions of strict liability with respect to ecocide, contrary to that, the bill, provides to prove mens rea as an essential of ecocide. Secondly, it introduces several dinky practices like, avoidance of flights if the travel time is less than 3 hours, avoiding non-vegetarian food, prohibition of construction of new airports and many others, against any major advancement. Thirdly, the bill does not align with the Paris accord.
Elucidate the ‘crime’ of Ecocide
Ecocide been derived from the term ‘Oikos-caido’ which means killing of the habitat. Ecocide is an environmental cataclysm that disrupts nature in an irretrievable manner. The fight for the recognition of ecocide as the ‘fifth crime’ tried in the International criminal court dates back to the Vietnam War, wherein the United States committed massive environmental destruction.
In 2019 the International Law Commission decided to draft legal principles in order to enhance protection for the environment before, during and after the armed conflicts, it has been termed as ‘the biggest step so far in terms of providing legal protection to the environment ever since the 1970s.
Ecocide has been given consideration merely through the explicit reference made in Article 8 (2)(b)(iv) of the Rome statute of ICC, which has numerous jurisdictional barriers to reach in order to prove guilt; while finding jurisdiction, the damage to the environment must be linked to an international conflict and committed as part of the plan or as a large-scale commission of such crimes and the elements of damage, disproportionality and several further limitations.
The amendment has surged with environmentalists, suggesting amending the Rome statute, in order to recognize ecocide a fifth crime, that, any individual damaging the environment can be tried in the International Criminal Court for committing an ecocide, if the States fail to bring an action, individuals can move to the International Criminal Court regarding the same.
The bill considered Ecocide as a serious issue of intentional environmental damage to air, water, or soil, and punishes the transgressors with an imprisonment extendable up-to 10 years and a fine of 4.5 million euros. Contrary to the international law principle and the draft, submitted by council, the bill requires to establish means-rea, which can be a tough nut to crack, as it excludes the possibility of punishing people who have damaged the environment due to their negligence, recklessness or by not taking proper due diligence to protect it.
The author endorses that, ecocide should in turn be based on the principle of strict liability and requirement of element of intention should not be present, as it will defeat the purpose, which in turn declares ecocide to be an offence rather than a crime.
Defiance with the Paris Accord
The bill, though not enforced has been subject to mass dissent from people, as it lacks to fulfill the objective and fails to incorporate the proposed draft put forth by the council during initial discussions. The CCC along with other signatories has petitioned against the government, in order to restore the initial ambition.
With respect to the verdict delivered in the Economic, Social and Environmental Council (CESE) case, stressing on the growing climatic concerns, the provisions of the bill are not very elaborate and have limited its scope to operate, and fail to mark any substantial development, with regards to climate protection, in near future.
At the outset, the bill lacks to comply with the climate objectives of the Paris agreement. Paris had ‘pledged’ to reduce its greenhouse gas emissions by 40% by 2030 compared to its level in 1990. But, the proposed bill states that France will emit 21.9% less carbon emissions than what was emitted in 1990, which clearly indicates its short sightedness and environmental apathy.
No ambitious progress
The bill put forth several measures, which are not substantial in nature, to save the climate. The steps which include, ban on gas heaters, state run schools offering more vegetarian food, halting the construction of any new airports, increase subsidy of bicycles and many more, will not bring significant change in the existing state of affairs. It is safe to remark that measures proposed would not benefit the policy with regards to climate protection and not be able to achieve the desired result as per the Paris agreement by 2030, rather it will only hamper the existing state of affairs.
The bill fails to incorporate much ambitious programs such as, making the tax liability to 4% on dividends for funding environment projects, imposing a travel ban from flight for even long distances, then the existing 2.5 hours etc. The obligation is casted only on the landlords to renovate, excluding homeowners and that too with no set target for the energy performances, it should have imposed a direct ban on advertisements for products that cast high levels of greenhouse gases.
The France Climate and Resilience bill came in place to impose strict measures, in order to protect the climate, from growing pollutants. The bill seeks to achieve targets set by the EU and Paris agreement. Nevertheless, imposing such small steps would not resolve the crisis as climate change does not merely mean changing the engines in the cars, the machines of the factories, rather it is about a change in civilization, culture and a better way of life.
The bill goes against the initially adopted draft framed by council, which declares Ecocide as a crime making it more rigorous rather than making it as a mere civil suit. The presence of the element of intention also makes the offence more problematic, which needs to be revisited. It also does not align with the Paris agreement, making it a futile exercise of saving climate.
The bill is less ambitious than the new targets of 55 percent cuts agreed at the European Union level and falls short of a German plan that was rejected last week by the country’s constitutional court as insufficient to meet the climatic commitments of the state because it absolutely does not enable France to achieve its environmental objectives.
The legislation, even though with a good intent, fails to address the real cause, needed in order to tackle the climate misery. The bill needs to be revised by the French assembly, which includes, adopting more bold measures and redefining ecocide, in order to emerge as a country, which prioritizes the environment. The entire bill enforces the idea of the “Polluter Pays Principle”, i.e. making the transgressor pay for the environmental damage but at the same time it is based on the legal lacunae, which completely fails to enforce the accountability of the citizens towards the environment by boycotting the possibility of intentional harm.
Note: The author would like to thank Ms. Mohita Yadav, Assistant Professor at Vivekananda Institute of Professional Studies for her contribution.
ABOUT THE AUTHOR
Sanjana is an undergraduate student at Guru Gobind Singh Indraprashta University. Her core areas of interest are criminal law and constitutional law.