Law and economics behind ecocide: Juggling between rules and standards

Abstract

When natural environment is under an attack, humans suffer too but should “Ecocide” which literally translates into “killing the environment” be made a criminal offence and if yes, then how will such a law work out? Considering the current inadequacies in environmental governance and increasing catastrophic consequences, very recently, a proposal has been made in order to include ecocide as the fifth international crime. If and when promulgated as law, this should yield in a novel historic shift towards adopting a non-anthropocentric approach. Implementation of ecocide as a legal command, albeit an appreciable idea, involves certain challenges in terms of drafting and promulgating such command as a “rule” or “standard”. This paper, through a law and economics perspective, while discussing the various shortcomings, critiques the definition for its standard-like approach. Legally and economically, promulgation of any command can be either in the form of rules or standards. However, considering the lack of consensus and inconsistent usage of the terms in the definition, the proposal seems to be a closer fit within the latter category. This however, not only falls inconsistent with the envisioned aim of creating certainty and predictability but also falters within a sound regime of cost benefit analysis. The idea is to propose a combination of “ex ante” determination of law i.e., formulation of rule and “ex post” liability in the contingency of the said rule being violated. This is especially important considering the penal repercussions associated with the crime. That being said, it is acknowledged that even the implementation of rules might have certain shortcomings yet the idea is not to prove that ecocide as a rule is intrinsically the best; instead, it is at least perceived to be better than the rest.